The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of race and national origin, for the reasons stated in the Charge of Discrimination and Petition for Relief, in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact Petitioner is a member of a protected class. Petitioner is Haitian and African-American. Respondent employed Petitioner up to the time of the alleged discrimination. On January 30, 1995, Respondent conducted a plant-wide meeting to introduce, distribute, and explain a new edition of Respondent's employee handbook (the "handbook"). The policies and procedures contained in the handbook, including a new attendance policy, became effective on February 1, 1995. Petitioner attended the plant-wide meeting along with Respondent's other employees. Respondent gave each employee at the meeting, including Petitioner, a copy of the handbook. Petitioner never indicated to anyone that he did not understand the contents of the handbook. Petitioner never asked any questions concerning the contents of the handbook, including the new attendance policy. Petitioner signed an acknowledgment of receipt form dated January 30, 1995. By signing the form, Petitioner agreed he had received and read the handbook and understood its contents, including the new attendance policy. Respondent's office and personnel manager (the "office manager") explained to the employees in attendance at the plant- wide meeting that they could take up to one week to review the handbook and sign and return the acknowledgment form to her. Petitioner chose not to use the allotted week. Respondent used a majority of the time at the plant-wide meeting to explain the new attendance policy contained in the handbook. The new attendance policy adopted a no-fault point system intended to implement an objective, non-discretionary attendance policy that eliminated employee excuses and management discretion concerning employee absences. The new attendance policy assessed each employee a prescribed number of points that ranged from a half point to five points for each absence or tardy attendance depending on the nature of the absence or tardiness. The points prescribed for each type of offense were based solely on each employee's timecard. Supervisors had no discretion in the assessment of points or the implementation of discipline for excessive points. The attendance policy imposed three tiers of a progressive discipline plan based on accumulated points. The progressive discipline required a written warning when an employee accumulated five points for absences or tardiness within a six-month period. If an employee accumulated eight points within a six-month period, the progressive discipline plan required a second written warning and an hourly reduction in pay rate for a prescribed period. If an employee accumulated 10 points within a six-month period, the progressive discipline plan required termination of employment. The office manager calculated each employee's accumulated points each week when the office manager calculated the payroll due each employee. The office manager reviewed each employee's timecard to verify attendance and tardiness. When the office manager determined a particular employee had reached any one of the three tiers prescribed in the progressive discipline plan, the office manager implemented the prescribed discipline. Prior to March 13, 1995, Petitioner accumulated 5.5 points within a six-month period pursuant to the terms of the new attendance policy. Petitioner accumulated two points each for two absences on February 17 and March 3, 1995, for a total of four points for absences, and accumulated a half point for each of three tardy attendances on February 21 and March 6 and 9, 1995, for a total of 1.5 points for tardy attendances. On March 13, 1995, the office manager issued a first written warning to Petitioner in accordance with the requirements of the progressive discipline plan prescribed in the attendance policy. Petitioner's supervisor discussed the first written warning with Petitioner. Petitioner signed the written warning on March 14, 1995. Prior to April 26, 1995, Petitioner accumulated 8.5 points within a six-month period pursuant to the terms of the new attendance policy. Petitioner accumulated one half point each for two tardy attendances on March 14 and April 3, 1995, for a total of one point for tardiness, and accumulated one point each for two absences on April 4 and 26, 1995, for a total of two points for absences. Between February 17 and April 26, 1995, Petitioner accumulated 8.5 points for absences and tardiness. On April 26, 1995, the office manager issued a second written warning to Petitioner and reduced Petitioner's hourly rate of pay by one dollar for four weeks. Petitioner's supervisor discussed the second written warning with Petitioner, but Petitioner refused to sign the second written warning. Company policy required an employee's supervisor to involve a second manager whenever an employee refused to sign a written warning to ensure that the employee understood the disciplinary warning and to provide a witness to the employee's refusal to sign. When Petitioner refused to sign the second written warning, Petitioner's supervisor included the office manager to ensure that Petitioner understood the disciplinary action and in fact received the written notice of the disciplinary action. Prior to June 29, 1995, Petitioner accumulated 10 points pursuant to the terms of the new attendance policy. Petitioner accumulated one half point for a tardy attendance on May 2, 1995, and one point for being more than one hour late on June 28, 1995. Between February 17 and June 28, 1995, Petitioner accumulated 10 points in accordance with the new attendance policy. On June 28, 1995, the office manager issued a third written notice of disciplinary action to Petitioner. Respondent terminated Petitioner's employment in accordance with the terms of the disciplinary plan prescribed in the attendance policy. Between 1994 and 1995, Respondent terminated 12 employees including Petitioner. Three of the terminated employees were Caucasian, three were Hispanic, three were African-American, one was Asian American, one was American Indian, and Petitioner was Haitian. On June 28, 1996, Petitioner signed and dated a Charge of Discrimination. The Charge of discrimination alleges that Respondent discriminated against Petitioner on the basis of race and national origin when Respondent terminated Petitioner's employment on June 28, 1995. Petitioner did not file the Charge of Discrimination with the Commission within 365 days of the alleged violation. Petitioner did not file the Charge of Discrimination in person in Tallahassee, Florida on the date he signed the document. Rather, Petitioner mailed the Charge of Discrimination on June 28, 1996, from Orlando, Florida to Tallahassee. The record evidence does not show when the Charge of Discrimination was actually filed with the Commission. However, the actual date of filing is not material. Counting June 29, 1995, as the first day of the 365-day filing period, 366 days elapsed from June 29, 1995, through June 28, 1996, because February 1996 contained 29 days. Even if February 1996 contained only 28 days, Petitioner testified that he mailed the Charge of Discrimination on the 365th day. Therefore, Petitioner could not have filed the Charge of Discrimination within 365 days of the alleged discrimination on June 28, 1995. The Commission failed to determine whether there was reasonable cause for the Charge of Discrimination within 180 days of the date that Petitioner filed the Charge of Discrimination. If the Charge of Discrimination was filed five days after Petitioner mailed it on June 28, 1995, the Charge of Discrimination was filed on July 3, 1996. Section 760.11(3) required the Commission to issue its determination of cause no later than December 30, 1996. Contrary to the statutory requirements of Section 760.11(3), the Commission did not make any determination of reasonable cause regarding the Charge of Discrimination within 180 days from either June 28 or July 4, 1996. Nor did the Commission make any such determination within 1,120 days from June 28 or July 3, 1996. The Commission issued a Notice of Determination: No Cause on August 2, 1999. Petitioner did not timely file his request for hearing. When the Commission failed to determine reasonable cause no later than December 30, 1996, Petitioner had 35 days thereafter, or no later than February 3, 1997, to request an administrative hearing in accordance with Sections 760.11(4) and 760.11(7). Petitioner filed his request for hearing when he filed his Petition for Relief on September 7, 1999, approximately 945 days after February 3, 1997. On August 2, 1999, the Commission issued a Notice of Determination: No Cause. Assuming arguendo that the 35 days prescribed in Section 760.11(7) required Petitioner to file his request for hearing within 35 days of August 2, 1999, Petitioner still did not file a request for hearing within 35 days of August 2, 1999. Counting August 3, 1999, as the first day, the 35th day was September 6, 1999. Petitioner filed his Petition for Relief, in which he requested an administrative hearing, on September 7, 1999, the 36th day after August 2, 1999. Petitioner did not file his request for hearing within 35 days of either August 2, 1999, or February 3, 1997. Petitioner's claim is barred. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that Respondent did not discriminate against Petitioner, and denying Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 10th day of March, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 10th day of March, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Jules Itule, pro se 6225 Sunshine Street Orlando, Florida 32808 John M. Finnigan, Esquire Garwood, McKenna, McKenna and Wolf, P.A. Post Office Box 60 Orlando, Florida 32802-0060
The Issue Whether cause exists for Petitioner's proposed termination of Respondent as an in-school suspension supervisor for the alleged failure to adhere to attendance procedures.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by Petitioner as an in-school suspension (ISS) supervisor at Venice High School, one of the public schools in Sarasota County, Florida. As ISS supervisor, Respondent was required to follow and adhere to ISS attendance procedures. These procedures required that Respondent do the following: (1) pick up the roster of students assigned to ISS between 2:15 p.m. and 2:30 p.m. on the day prior to the day the students were to report to ISS; (2) take attendance at 7:35 a.m. daily; (3) immediately after taking attendance, contact the appropriate teacher via telephone intercom to ensure that no student assigned to ISS was improperly attending his regular classes; (4) submit a list of students present in the ISS class to the appropriate staff by 8:30 a.m.; and (5) contact the appropriate administrator when a student left ISS without proper authorization. These responsibilities were to be performed each school day. Following several complaints about problems related to the attendance or nonattendance of students assigned to ISS, it was determined that the ISS attendance procedures were not being followed by Respondent. To assist Respondent and to clarify his job responsibilities, the attendance procedures for ISS were outlined in an October 10, 1994 memorandum and in an October 20, 1994 memorandum. The memos were from Dan Parrett, principal, and Candace Millington, assistant principal, respectively. On October 20, 1994, Mr. Parrett and Ms. Millington met with Respondent and thoroughly reviewed with him the ISS attendance procedures which were outlined in the memorandums. Following the meeting of October 20, 1994, Respondent continued to violate the attendance procedures by reporting as present in ISS, students who were, in fact, not in attendance. Respondent also failed to notify appropriate teachers when assigned students were not in ISS. Specific instances of such deficiencies in reporting attendance were cited to Respondent during an October 31, 1994 meeting with Mr. Parrett and Ms. Millington. A summary of these violations was detailed in a written reprimand to Respondent dated October 31, 1994. The written reprimand was issued by Ms. Millington, Respondent's direct supervisor, specifying violations which occurred on October 25, 26, 28, and 31, 1994. A second letter of reprimand, dated November 11, 1994, was issued to Respondent on November 18, 1994. This reprimand noted Respondent's repeated failure to follow ISS attendance procedures and cited incidents reflective of such failure. The letter of reprimand was based on Respondent's failure to notify appropriate teachers when students assigned to ISS did not report to ISS and on his failure to accurately report whether students were present or absent from ISS. In the latter category, there were several instances when Respondent had reported as present students who were not at school, and had failed to report as present some students who were in attendance in ISS. The incidents cited in this written reprimand occurred between November 1 and November 11, 1994. Notwithstanding the two written reprimands, Respondent continued to be unsuccessful in following the attendance procedures for ISS. In January 1995, there were at least two occasions when Respondent failed to contact the appropriate teachers to notify them of students' absences from ISS. Between January 10 and February 3, there were five days that Respondent's attendance records failed to list all students who were in attendance in ISS. As a result of these subsequent and continuing deficiencies, a third written reprimand was issued to Respondent at a meeting held on February 3, 1994. This meeting was attended by Mr. Parrett, Ms. Millington, and Mr. Mitchell. At the February 3, 1995 meeting, Mr. Mitchell asked Respondent to submit written suggestions that would assist Respondent in fulfilling his responsibilities as ISS supervisor. On April 4, 1995, Respondent wrote a letter to Mr. Parrett and Ms. Millington. However, this letter contained only Respondent's rationale for the errors in his attendance records, and offered no suggestions that would assist Respondent in successfully following the attendance procedures. In a February 10, 1995, letter from Ms. Millington to Respondent, specific instances of violations of the ISS attendance policy were detailed. The incidents referred to therein occurred on February 6, 7, and 10, 1995. Violations involved Respondent's failure to submit accurate records of attendance and his failure to notify appropriate teachers that students assigned to ISS were not present. This letter informed Respondent that because of his continuing failure to follow ISS attendance policies, Ms. Millington was recommending that Respondent receive a three-day suspension without pay. The letter stated that Respondent's failure to correct his performance would subject him to further disciplinary actions. On February 13, 1995, the superintendent recommended to Petitioner that Respondent be suspended for three days without pay for his failure to successfully follow attendance procedures. Pursuant to the recommendation, Respondent was suspended by Petitioner on or about February 21, 1995. After Respondent's three-day suspension without pay, there were additional instances where Respondent failed to successfully comply with the ISS attendance procedures. Between February 27 and March 21, 1995, there were at least eight days when Respondent's attendance records were in error. These errors involved Respondent's either listing students as absent who were present or listing students as present who were absent. Mr. Parrett and Ms. Millington met with Respondent on March 23, 1995, regarding these specific instances and notified him that these actions constituted a repeated and continuous failure to follow ISS attendance procedures. By letter dated April 20, 1995, Dr. Charles Fowler, Superintendent of the Sarasota School District, notified Respondent that he was recommending to Petitioner that Respondent be terminated from his position due to his failure to successfully follow attendance procedures. Despite numerous meetings and written correspondence, including written reprimands, Respondent's deficiencies continued. Respondent was either unwilling or unable to successfully comply with the ISS attendance procedures. As a result of Respondent's failure to adhere to the prescribed ISS attendance procedures at Venice High School, it was virtually impossible for school administrators to ascertain with any degree of certainty, the whereabouts of ISS students on any given day. The inaccurate reporting impeded the school's ability to accurately account for students assigned to ISS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Sarasota School Board enter a final order terminating Respondent's employment as an in-school suspension supervisor. DONE and ENTERED this 29th day of February, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 29th day of February, 1996. COPIES FURNISHED: Charles E. Williams, Esquire Scott and Williams, P.A. 1900 Main Street, Suite 205 Sarasota, Florida 34236 Dan Wisniewski 551 Garden Road Venice, Florida 34293 Gene Witt Superintendent The School Board of Sarasota County, Florida 1960 Landings Boulevard Sarasota, Florida 34231-3331 Michael H. Olenick General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Frank T. Brogan Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Petitioner has sufficient just cause to terminate Respondent, Jacqueline Skinner ("Skinner"), for multiple unapproved absences from work.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following Findings of Fact: Parties' Stipulated Facts At all times pertinent, Respondent was employed by Petitioner as a bookkeeper at Central Elementary School. Respondent's supervisor during the 2016-17, 2017-18, and 2018-19 school years was Joseph G. Stanley, principal of Central Elementary School. Respondent's supervisor during the 2019-20 school year was Cynthia Kubit, principal of Central Elementary School. At all times pertinent, Christina Norman was an assistant principal at Central Elementary School. At all times pertinent, Ken Kenworthy was superintendent of Okeechobee County Schools. The annual noninstructional employee evaluations of Respondent from the 2017-18, 2018-19, and 2019-20 school years showed that Respondent needed improvement in attendance. Pet. Ex. 1. Respondent failed to report for work on June 7, 2019, without arranging for leave in advance and without notifying her immediate supervisor. Principal Joseph G. Stanley issued a letter to Respondent dated June 14, 2019, confirming a verbal reprimand; Respondent acknowledged receipt of said letter. Pet. Ex. 2. Respondent failed to report for work on October 29, 2019, without arranging for leave in advance and without notifying her immediate supervisor. Principal Cynthia Kubit issued a letter of reprimand to Respondent dated October 30, 2019; Respondent acknowledged receipt of said letter. Pet. Ex. 3. During February 2020, Respondent continued to have incidents regarding leave and, by letter dated February 20, 2020, Principal Cynthia Kubit recommended disciplinary action against Respondent; Respondent acknowledged receipt of said letter. Pet. Ex. 4. On May 15, 2020, Respondent failed to report to work without arranging for leave in advance and without notifying her immediate supervisor. Principal Cynthia Kubit, in the presence of Assistant Principal Christina Norman, called Respondent several times and issued a memorandum of the telephone conversations. Pet. Ex. 6. Principal Cynthia Kubit issued a letter to Superintendent Ken Kenworthy dated May 18, 2020, recommending that Respondent be terminated; Respondent acknowledged receipt of a copy of said letter. Pet. Ex. 7. By letter dated May 18, 2020, to Respondent, Superintendent Ken Kenworthy informed Respondent that he was recommending to the Board that Respondent's employment be terminated. The letter was hand delivered to Respondent by Assistant Principal Dylan Tedders and Respondent acknowledged receipt of a copy of said letter. Pet. Ex. 8. At all times pertinent, School Board Policy 6.213--Notification of Absence--was in effect. Pet. Ex. 9. At all times pertinent, School Board Policy 6.20--Leave of Absence-- was in full force and effect. Pet. Ex. 10. At all times pertinent, School Board Policy 6.52--Suspension and Dismissal--was in full force and effect. Pet. Ex. 11. At all times pertinent, School Board Policy 6.45--Alcohol and Drug Free Workplace--was in full force and effect. Other Facts Established by the Evidence Skinner was employed pursuant to the Okeechobee County School Board Classified Personnel Contract for the 2019-20 School Year on a continuing basis. Pet. Ex. 18. An employee who has completed the probationary period may be dismissed under the Classified Personnel Contract for just cause. Pet. Ex. 18, p. 15. Pursuant to the Classified Personnel Contract, under Public Employer Rights, "[i]t is the right of the Board to direct its employees, to take disciplinary action for proper cause, and relieve its employees from duty because of lack of work and other legitimate reasons…." Pet. Ex. 18, p. 5. Pursuant to the Classified Personnel Contract, the Board is required to follow progressive discipline, the progression of which is as follows: "documented verbal warning; written reprimand following a meeting; suspension; termination." Pet. Ex. 18, p. 13. It was largely undisputed, as acknowledged in the Joint Pre-hearing Statement-Amended, filed September 1, 2020, that Skinner had attendance problems the past several years of her employment, which escalated in the last year of her employment. According to her supervisor, Kubit, Skinner's attendance problems started immediately when Kubit became principal in July 2019 and continued throughout the last year of Skinner's employment. During her last year of employment, from the time period July 1, 2019, through May 14, 2020, Skinner accumulated numerous absences from work. During her last year of employment, Skinner used more leave than she had allocated. This put her leave bank in the negative. Pet. Ex. 19. This was not the first time Skinner used more leave than she had accrued. Her prior supervisor, Dr. Stanley, testified that Skinner would run out of available sick days and then would have to take unpaid leave. During her last year of employment, Skinner failed to attend work approximately ten days and failed to arrange for advance leave with her supervisor. Pet. Ex. 12. Providing advance notice of an absence could have been accomplished by Skinner by calling, texting, or e-mailing her supervisor any time prior to the start of the work day, even a few minutes before. On some of the days when Skinner failed to attend work, arrange for leave, or notify her supervisor, her supervisor, Kubit, nonetheless tried to assist Skinner by not disciplining her for failure to attend work without notice. For instance, Kubit sometimes allowed Skinner to use vacation days when she ran out of sick days even though employees are normally required to arrange for vacation leave days in advance. Kubit did so because she wanted Skinner to come back and work more regularly. Kubit thought it would help Skinner to do so. According to Kubit, Skinner did not provide legitimate excuses for her unauthorized absences. Instead, she just repeatedly apologized and promised to improve her attendance in the future. Skinner candidly acknowledged during her testimony that she had attendance problems and that she had received multiple disciplinary letters for her problems with attendance. Annual Performance Evaluations As part of her employment, Skinner received annual employee evaluations. Pet. Ex. 1. Her attendance problems over time were documented and verified in her annual employee evaluations. Pet. Ex. 1. More specifically, Skinner's last four annual employee evaluations evaluated her on six main categories of performance, one of which was Attendance. This category evaluated the following performance attribute: "Complies with policies and procedures regarding usage of time and leave; [m]aintains scheduled work and break times; [r]eports absences for emergencies and illnesses, and requests leave, in a timely manner." Pet. Ex. 1, pp. 1-4. In each of her last three annual employee evaluations, Skinner was rated as "Needs Improvement" for Attendance. Pet. Ex. 1, pp. 2-4. On each of the last four annual employee evaluations, Skinner also received written comments from her supervisor about her attendance. These comments were consistent and pointed out that Skinner needed to improve attendance and work to comply with attendance policies. Pet. Ex. 1, pp. 1-4. Each annual performance evaluation was discussed with Skinner and she signed each. Pet. Ex. 1, pp. 1-4. School Board Attendance Policies and Requirements The Board's policies established and outlined general guidelines and expectations for work attendance. Employees were generally expected to attend work as scheduled unless they had arranged for advance leave. See generally, Pet. Ex. 10. Employees who were absent from duty for any reason were required to notify their supervisor as early as possible. Notification of an absence had to be given in advance unless conditions beyond the control of the employee made advance notice impossible. Pet. Ex. 9. The Classified Personnel Contract governing Skinner and other employees similarly provided that employees were required to arrange for advance leave for vacation and to notify their supervisor prior to the start of the work day if they were taking sick leave. Pet. Ex. 18, pp. 33 and 34. The School Bookkeeper Job Description, which applied to Skinner, required her to follow attendance, punctuality, and other qualities of an appropriate work ethic. Pet. Ex. 13, line 11. Skinner's significant and frequent attendance problems caused her to fall short of these policy, contract, and job description requirements. History of Attendance Problems The witnesses confirmed that Skinner violated the attendance policies on a frequent basis for several years. Regrettably, her attendance problems became most acute in her last year. This eventually lead to a recommendation for her termination in her last year of employment. The parties acknowledged in their Joint Pre-hearing Statement- Amended, that Skinner received all required stages of progressive discipline for her attendance problems. This included a verbal warning, a written reprimand, and a suspension, finally resulting in a recommendation by the Superintendent that her employment be terminated. Skinner's supervisors also discussed and counseled her on her attendance problems several times throughout the years, both informally and formally. In the disciplinary letters, Skinner was informed that, in the event of recurrence, she would be subjected to further discipline including a recommendation for termination. Pet. Exs. 2-3. More specifically, in the disciplinary letter from the Superintendent dated March 3, 2020, Skinner was informed that: "It is expected that there be no further occurrence of such behavior. If it continues, your position with the Okeechobee County School Board will be terminated." Pet. Ex. 5, p. 1. In this disciplinary letter, Skinner received numerous attachments including copies of the Board Policy 6.213, entitled "Notification of Absence and the Employee Assistance Plan." Skinner signed and acknowledged receiving the disciplinary letters for her attendance problems, and agreed that they put her on notice that her attendance shortcomings were a problem. Skinner also received negative employee evaluations on her attendance for the past three years, which were discussed and signed by her. Pet. Ex. 1, pp. 2-4. It was clear to the undersigned that Skinner received full, fair, and adequate notice of her attendance problem for several years. Unfortunately, she was unable to correct it after multiple warnings, corrective action, and progressive discipline. Termination Authority Superintendent Ken Kenworthy is responsible for determining and recommending whether an employee should be terminated for violation of Board policies or rules. Pet. Ex. 11. The Superintendent is only entitled to discipline and terminate the employment of an administrative employee on a continuing contract for "just cause." Pet. Ex. 18, p. 15. The Superintendent testified that he takes many factors into consideration when determining whether just cause exists for termination. He looks at the reasonableness of the Board's rules, whether the employee was informed of the rules, and whether the disciplinary action taken is proportionate to the infraction. The undersigned finds that this process is fair, and provides adequate due process to affected employees of the District. The Superintendent ensures that progressive discipline has been followed when taking an action against an employee's employment. See generally, Pet. Ex. 8. In this case, all the stages of progressive discipline from informal conversations and memoranda of conference through the formal disciplinary stages of verbal reprimand, written reprimand, suspension, and recommendation for termination were followed. The Board's rules on employee attendance are reasonable and necessary to ensure the proper functioning and operation of the school district. Several witnesses and the Superintendent testified that proper and regular attendance was a "critical" and "essential function" of an employee's job performance. Skinner's supervisors, Kubit and Dr. Stanley, both testified that notification of absences when an employee cannot attend work is "critical." Several Board witnesses provided testimony showing the hardship that Skinner's absences created for Central Elementary School. For instance, Dr. Stanley expressed his view that it was a hardship for Central Elementary School when Skinner was absent, especially at the last minute, because others had to cover her job. This left the school short staffed in other areas. Likewise, according to Kubit, it was especially difficult when Skinner was absent because other people had to perform her duties, but according to rules and regulations most people were not authorized to handle money. According to Assistant Principal Norman, when Skinner was absent from work, money would have to be kept at the school even though it is supposed to be promptly deposited. This was true because only Skinner could verify the money for a deposit. This violated bookkeeping rules about depositing money, and was unsafe when large sums of money were left undeposited at a school. Skinner was advised on numerous occasions and by different people that her repeated and unauthorized absences without notification were creating difficulty for the functioning of Central Elementary School. Not only did Skinner leave the school short staffed, but she had a tendency to do so when her presence was most needed. The witnesses concurred that Skinner's repeated absences tended to follow a pattern. For example, if Central Elementary School was at a busy time of year or an event occurred that required additional bookkeeping, like a fundraising event, Skinner often would not come to work and did not arrange for leave or call in. This left the school in a difficult predicament. Aside from her leaving the school short staffed, Skinner's work absences also had a negative effect on her job performance. Several Board witnesses testified, for example, that Skinner's work performance started to decline. This was caused by Skinner's work getting backed up and not completed on time because of her absences. This became particularly evident after her suspension when other employees came in to review her unfinished work and sort out the bookkeeping at Central Elementary School. During this review, several problems were noticed. Skinner acknowledged knowing that her problem with unauthorized absences was having a negative effect on Central Elementary School. During the hearing, Skinner admitted that her struggle with alcohol misuse caused or contributed to her attendance problems. According to her supervisor, Dr. Stanley, Skinner never provided alcoholism as an excuse for her absences. Instead, Skinner would make the excuse that she slept in or just did not get up to come to work. According to her supervisor, Kubit, Skinner did not offer or mention problems with alcohol as an excuse for her unauthorized absences. Instead, she regularly apologized and promised to improve her attendance in the future. Not only did Skinner not reveal to her supervisors that alcoholism was a reason for her absence problem, Skinner never sought assistance or accommodation for her struggle with alcohol prior to the Superintendent's recommendation for termination. The Board provides employees struggling with medical or other problems assistance through its Employee Assistance Program. It also provides leave for medical problems though the Family Medical Leave Act ("FMLA"). Pet. Ex. 18, p. 32. Skinner was provided a copy of the Employee Assistance Plan when she was suspended for three days in March 2020, prior to the Superintendent's recommendation for termination of her employment two months later. Pet. Ex. 5, p. 2. However, despite her awareness of the assistance offered in March 2020, Skinner never used the Employee Assistance Plan or FMLA leave to try and save her job or correct her underlying problem prior to being terminated. While the evidence revealed that an employee suffering from an alcohol problem had an opportunity to seek treatment while still employed, this treatment was permitted when their employment was active and in good stead--not after the employee was suspended and dismissal of employment was in progress. Further, Skinner testified that she had been an alcoholic her "whole life" and it had progressively gotten worse in the last four years. Regrettably, there was no medical documentation or other evidence provided in advance for the Board to verify her problem with alcohol. But, at the end of the day, and to be clear, this was Skinner's illness and it was her responsibility to seek help and take advantage of programs the Board offered.2 2 The undersigned reasonably infers from the evidence and record that Skinner knew or should have known about the Employee Assistance Plan many months, if not years, before her termination. Sadly, however, she did not take advantage of the program. Turning directly to the matter at hand, the allegations of the Superintendent's termination letter were limited to her attendance problems. While problems with alcohol may have existed or accounted for her absences, the crux of this case concerns Skinner's attendance problem. Other violations or performance deficiencies related to Skinner's problems with alcohol or related performance issues were not alleged as a basis to terminate her. Those related problems provide some background and context to the attendance issue at hand, but they are not being considered by the undersigned as directly affecting the outcome of this case. Added to that, despite later discovering Skinner's problems with alcohol and how this affected her attendance, the Superintendent did not amend his recommendation for termination of employment to include abuse of alcohol or other related work performance issues. Superintendent Kenworthy felt that Skinner's chronic and disruptive workplace absences alone merited termination of employment. In his view, no other violations needed to be cited since Skinner was not meeting his attendance expectations. Based on the greater weight of the evidence, the undersigned finds that the Board had sufficient just cause to terminate Skinner for repeated and chronic attendance problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Okeechobee County School Board enter a Final Order terminating Jacqueline Skinner's employment. DONE AND ENTERED this 22nd day of October, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2020. COPIES FURNISHED: Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Thomas L. Johnson, Esquire Law Office of Thomas Johnson, P.A. 510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed) Thomas W. Conely, Esquire Conely & Conely, P.A. Post Office Box 1367 Okeechobee, Florida 34973 (eServed) Molly Lauren Shaddock, Esquire Sniffen and Spellman 605 North Olive Avenue, 2nd Floor West Palm Beach, Florida 33401 (eServed) Ken Kenworthy, Superintendent Okeechobee School Board 700 Southwest 2nd Avenue Okeechobee, Florida 34974 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact The Parties Petitioner, Le'Tanya Stone ("Petitioner"), was employed by Respondent, Gentiva Care Centrix ("Gentiva"), in April 2005, as a client care coordinator in the patient registration department and remained in that position until she was terminated on May 24, 2007. Gentiva provides services for insurance companies by reviewing and coordinating patient referrals for home care which it receives from health care providers and discharge planners. Gentiva receives the patient referrals by telephone or by fax; employees assigned to the patient registration department are responsible for taking telephone referrals and/or retrieving fax referrals and coordinating those patient referrals. Petitioner's job duties at Gentiva included retrieving and/or reviewing patient referrals sent by fax and coordinating those referrals. Gentiva, including the patient registration department, is judged by certain standards established by the various insurance companies who are its clients. Those standards require Gentiva to meet a certain level of responsiveness as it relates to the referrals it receives. The company's ability to meet those standards requires a core number of people in that department. Moreover, Gentiva's level of success in meeting the established standards is directly affected by employee attendance. The Care Centrix Attendance Management Guidelines On or about September 1, 2005, Gentiva adopted "Care Centrix Attendance Management Guidelines" ("Attendance Guidelines") for its employees. The Attendance Guidelines outline procedures for: (1) requesting time off; (2) documenting reasons for absences; (3) imposing disciplinary actions for unscheduled absences, late arrivals to and/or early departures from work; and (4) appealing attendance decisions of supervisors. The Attendance Guidelines provide that "[a]ssociates [employees] who are absent, late, or leave work early without obtaining prior approval from their supervisor may be disciplined." The Attendance Guidelines list the number of unscheduled absences within 12 months that "may" result in disciplinary action and the "suggested" disciplinary action for those absences as follows: NUMBER OF UNSCHEDULED ABSENCES WITHIN TWELVE MONTHS SUGGESTED CORRECTION OR DISCIPLINARY ACTION Three (3) Verbal/Coaching Four (4) Written Warning/Counseling Five (5) Final Written Warning/Counseling Six (6) Termination An "unscheduled absence" occurs when an associate/employee fails to obtain approval for an absence one business day prior to the associate/employee's regular scheduled work day. For the purpose of corrective action, the Attendance Guidelines provide that: (1) three late arrivals to work are considered an unscheduled absence; (2) three early departures from work are considered an unscheduled absence; and (3) any combination of three late arrivals to work and early departures from work equal an unscheduled absence. Pursuant to the Attendance Guidelines, for the purpose of corrective/disciplinary action, unscheduled absences, late arrivals, and early departures from work are monitored on a rolling 12-month period. The Attendance Guidelines provide that the "rolling twelve month period" is determined by "beginning with the most recent unscheduled absence and counting twelve consecutive months backwards." Pursuant to the Attendance Guidelines, an employee is not written up on each single infraction. Instead, the employee is written up after an accumulation of attendance issues have occurred. Under the Attendance Guidelines, supervisors of Gentiva are required to document the attendance of associates/employees. These records should include details of "any coaching and counseling discussions with the associate [employee] about attendance, copies of all corrective action taken and any other facts that may have a bearing on the associate's attendance." On or about August 25, 2005, Petitioner received a copy of the Attendance Guidelines. At that time, Petitioner reviewed the guidelines and understood that adherence to those guidelines was a requirement of her employment with Gentiva. Petitioner's Attendance Problems and Gentiva's Efforts to Assist Throughout Petitioner's employment with Gentiva, she had problems with her punctuality and attendance at work. Petitioner acknowledged that she had problems with attendance at work, but attributed most of the problems to the illnesses of her three young children, two of whom suffered from asthma. Notwithstanding the reasons for her unscheduled absences and late arrivals at work, Petitioner was expected to address her personal issues so that she could adhere to the Attendance Guidelines. From time to time, Petitioner talked to Ms. Walsh about the personal issues she was experiencing at home, some of which contributed to her attendance and punctuality problems. After Petitioner shared some of the problems she was having, Ms. Walsh offered and/or provided accommodations that would assist Petitioner in addressing the attendance and punctuality issues. For example, in or about January 2007, Ms. Walsh gave Petitioner paperwork for Family Medical Leave ("FML") based on her children's illnesses. Ms. Walsh believed that if the FML forms were completed and approved for Petitioner's children, Petitioner's unscheduled absences due to her children's illnesses would not count against her. Also, in 2006, to assist Petitioner in alleviating or reducing her tardiness issue, Ms. Walsh changed Petitioner's work schedule so that her work day began later and coincided with that of Petitioner's mother, who was also employed by Gentiva. Ms. Walsh thought this schedule change would be helpful because Petitioner usually carpooled with her mother. Petitioner never returned the FML forms for her two children to Ms. Walsh or to anyone else at Gentiva. According to Petitioner, her children's doctor charged about $15.00 to complete each form and she could not afford to pay that service fee. Ms. Walsh believed that because Petitioner failed to submit completed FML forms for her children, she was not afforded protections under the FML for her children. Consequently, any unscheduled absence by Petitioner, even if for the unanticipated illness of Petitioner's children, would be counted against her for purposes of the Attendance Guidelines. Corrective/Disciplinary Action Taken Against Petitioner On or about October 6, 2005, about one month after Gentiva implemented the Attendance Guidelines, Petitioner received verbal counseling from her supervisor regarding two unscheduled absences (September 12 and 19, 2005) and three late arrivals (September 23 and 29 and October 6, 2005). The October 6, 2005, verbal counseling was documented on a corrective counseling record form, which was signed by both Petitioner and her then supervisor, Nestor Guzman. The corrective counseling record noted that Petitioner's work with the company was excellent, that she was a valuable employee, and that the company recognized the contributions she made to the company. However, it was also noted that "our business environment and the nature of our operations requires for [sic] employees to report and be present on their scheduled days." The corrective counseling record advised Petitioner the company could not overlook or support a poor attendance record for any employee and that failure to adhere to attendance and punctuality guidelines could result in further disciplinary action. About six months after receiving the October 6, 2005, verbal counseling, on April 19, 2006, Petitioner received a written warning for four additional unscheduled absences (November 2, 2005, and March 23, 2006, and April 11 and 14, 2006); one late arrival (December 1, 2006); and three early departures (October 14, November 21 and December 1, 2005). The April 19, 2006, written warning was documented in a corrective counseling record which was signed by Petitioner and her then supervisor, Nestor Guzman. The corrective counseling record recounted the October 6, 2005, verbal counseling that was given as a result of Petitioner's excessive unscheduled absences and late arrivals. It further advised Petitioner that: (1) employees are to "assume diligent responsibility for their attendance and promptness"; (2) management expects employees to "report to work on time and to maintain an acceptable attendance record" in accordance with the Attendance Guidelines; and (3) timely attendance at work is crucial for the success of the company's business. Finally, the corrective counseling record notified Petitioner that her failure to comply with the Attendance Guidelines would result in further disciplinary action, up to, and including, termination of employment. On May 26, 2006, Petitioner received a final written warning which documented that since receiving the written warning five weeks earlier, she had one late arrival on May 5, 2006, and one unscheduled absence on May 17, 2006. The final written warning was documented in a corrective counseling record and was signed by Petitioner and her then supervisor, Peggy Walsh. The May 26, 2006, final written warning acknowledged that Petitioner's work with the company had been excellent, but noted that her inability to adhere to the Attendance Guidelines was overshadowing her work record. The final written warning notified Petitioner that her failure to maintain an acceptable attendance pattern will result in termination of her employment "on [her] next unscheduled absence." On April 30, 2007, Petitioner received a final written warning for her continued attendance problems. The final written notice indicated that in the past year, Petitioner had five unscheduled absences (May 17, 2006, January 15, March 1 and 29, and April 13, 2007); two late arrivals (February 22 and April 12, 2007); and one early departure due to illness on April 23, 2007). According to the final written warning, which was documented in a corrective counseling record, Petitioner's failure to correct her attendance issues would result in termination. Both Petitioner and her supervisor, Ms. Walsh, signed the final written warning. In accordance with the Attendance Guidelines, the two final written warnings issued to Petitioner were based on her having multiple incidents of absences, late arrivals and/or early departures from work. In each case, Petitioner met with her supervisor and was notified that her continued failure to adhere to the Attendance Guidelines would result in her employment with Gentiva being terminated. By signing each of the above-referenced corrective counseling records, Petitioner acknowledged that the information contained therein was discussed with her. Each of the above-referenced corrective counseling records included a section for Petitioner, as the employee, to write comments concerning the stated infractions and the disciplinary action being imposed. Petitioner did not write comments on any of the corrective counseling records. Incident of April 23, 2007 Petitioner reported to work on April 23, 2007, but during the work day became very sick with a stomach virus. While at work that day, as a result of the stomach virus, Petitioner vomited six to eight times. However, Petitioner was afraid to ask for unscheduled time off, so she tried to "stick it out" by remaining at work. Ms. Walsh was aware that Petitioner was ill on April 23, 2007, because at one point that day, she went to Petitioner's work area when Petitioner was vomiting. Upon observing the situation, Ms. Walsh suggested that Petitioner wash her face and indicated that doing so might make her feel better. Petitioner did as Ms. Walsh had suggested, but still continued to feel ill and to vomit. On the afternoon of April 23, 2007, several Gentiva employees who worked near Petitioner's work station began to complain and were overheard saying that Petitioner should be sent home. Eventually, one employee who heard Petitioner vomiting went to Ms. Walsh and told her that Petitioner was sick and needed to go home. At that point, Ms. Walsh told Petitioner that she could go home, but that upon returning to work, she (Ms. Walsh) would have to "write [Petitioner] up." On April 23, 2007, at or about 2:00 p.m., Petitioner left work and went home because she was still very sick. That day, Petitioner was too ill to drive herself to the hospital, but she went to the hospital on April 26, 2007, and was diagnosed with a contagious stomach virus. Ms. Walsh knew that Petitioner was sick on April 23, 2007. Nevertheless, and despite feeling sympathy for Petitioner's situation, Ms. Walsh believed that under the Attendance Guidelines, she had no choice but to write up Petitioner for leaving work early that day. Ms. Walsh believed that the Attendance Guidelines are to be strictly adhered to and she treated Petitioner no differently than she would have treated any other employee in a situation similar to Petitioner. After going to the hospital, but prior to returning to work, Petitioner telephoned the company's Human Resources Office in Kansas and spoke to the vice-president of human resources, Jamie Rosenkoetter. Petitioner expressed her desire to file a complaint against Ms. Walsh for the way she had treated Petitioner on April 23, 2007, when she was ill. Petitioner's opinion was that Ms. Walsh had been "unfair" to her. Although Petitioner followed the grievance procedures in the company's handbook, no one ever contacted her about the verbal complaint she made. When Petitioner returned to work on April 30, 2007, she was "written up" by Ms. Walsh. This action taken by Ms. Walsh was consistent with what she had told Petitioner on April 23, 2007, prior to Petitioner's leaving work that day. Although Petitioner disagreed with the disciplinary action taken by Ms. Walsh, she signed the April 30, 2007, corrective action report, discussed above in paragraphs 27 and 38, and wrote nothing in the comment section. According to Petitioner, she signed the form because she believed that her employment would be terminated if she refused to do so. Petitioner gave no reason for not writing her concerns in the comment section of the subject corrective counseling. Petitioner testified that she perceived that by Ms. Walsh's issuing the April 30, 2007, corrective action report and engaging in other non-specified conduct toward her, is evidence that Ms. Walsh was retaliating against her. Gentiva's Approval of Family Medical Leave At all times relevant to this proceeding, Ernestine Ellis-Stone, Petitioner's mother, was employed by Gentiva and has been so employed for about seven years. Mrs. Ellis-Stone worked in Gentiva's patient registration department and also reported to Ms. Walsh. In or about April or May 2006, Jerald Stone, Petitioner's father and Mrs. Ellis-Stone's husband, suffered a stroke. The stroke, along with several other medical conditions, resulted in Mr. Stone's having long-term health-related challenges, including mobility issues. After Mr. Stone suffered a stroke, both Petitioner and Mrs. Ellis-Stone requested that they be allowed to take FML due to Mr. Stone's illness. Gentiva approved the leave request for Petitioner and her mother. Since Mrs. Ellis-Stone was approved for FML, Ms. Walsh has always granted her requests to take days off to care for Mr. Stone. Except for the one instance discussed below, Ms. Walsh has always approved Petitioner's requests to take FML in order to care for her father. Incident of May 23, 2007 On May 23, 2007, Petitioner and Mrs. Stone were contacted at work and told that there was an emergency at Mrs. Ellis-Stone's home. After being told of the reported emergency, the Gentiva supervisor on duty allowed Petitioner and Mrs. Ellis-Stone to leave work early so that they could check on the situation at home. When Petitioner and Mrs. Ellis-Stone arrived at the house, law enforcement officials were surrounding the residence and attempting to get an armed man who was inside the house to surrender. Mr. Stone and Petitioner's three-year-old son were inside the house with the armed man who, at one point, threatened to take Mr. Stone's life. The standoff between the armed man and the police officers and the U.S. Marshal's Service lasted about three hours. Both Mr. Stone and Petitioner's three-year-old son suffered adverse physical and/or emotional reactions to the three-hour standoff described in paragraph 47. For example, Mr. Stone was unable to take his medication during the three-hour standoff; that, along with the stress of the incident, caused his blood pressure to go up and his diabetes to get out of control. Petitioner's son was traumatized by the incident and was particularly upset by reportedly seeing the man involved in the standoff put a gun in his mouth and threaten to kill himself. Petitioner's May 24, 2007, Request for Leave On the morning of May 24, 2007, the day after the standoff, Mrs. Ellis-Stone called Ms. Walsh. After telling Ms. Walsh about the standoff incident, Mrs. Ellis-Stone told Ms. Walsh that both she (Mrs. Ellis-Stone) and Petitioner needed to take the day off to care for Mr. Stone. Ms. Walsh approved Mrs. Ellis-Stone's request to take the day off, but told her that Petitioner had to call in to request the day off. At the time, Petitioner was standing near her mother, so Mrs. Ellis-Stone handed her the telephone. After being handed the telephone by her mother, Petitioner told Ms. Walsh that she needed a FML day to help care for her father. Ms. Walsh denied Petitioner's request and stated that Mrs. Ellis-Stone was the "primary" person on the FML and that she had been given the day off. Petitioner believed that because she had been approved for FML for her father, Ms. Walsh should have allowed her to take the day off. Therefore, Petitioner persisted in requesting the day off. During that conversation, Petitioner also told Ms. Walsh that her three-year-old son had been traumatized by the incident and was home that day because he had been unable to sleep the night of the incident. Ms. Walsh indicated she would contact Jamie Rosenkoetter, the company's vice president of human resources, and then get back with Petitioner. On the morning of May 24, 2007, and after speaking to Petitioner, Ms. Walsh called Ms. Rosenkoetter about Petitioner's situation. Ms. Rosenkoetter, who was at the company's Phoenix location that day, returned the call later that morning. During that telephone conversation, Ms. Walsh told Ms. Rosenkoetter that "some incident" had occurred at Mrs. Ellis-Stone's house the day before. However Ms. Rosenkoetter was not given any of the details concerning the incident. Because Petitioner was on final written warning and pursuant to the Attendance Guidelines, Ms. Rosenkoetter determined that Petitioner's employment would have to be terminated unless she reported to work that day. Based on that determination and during the May 24, 2007, telephone conversation, Ms. Rosenkoetter directed Ms. Walsh to tell Petitioner that if she did not report to work that day, her employment would be jeopardized. Following her discussion with Ms. Rosenkoetter, either Ms. Walsh or Ms. Rosenkoetter, in a three-way telephone call, contacted Petitioner. During this conversation, Ms. Walsh notified Petitioner that she should report to work that day (May 24, 2007) or her employment would be terminated. Ms. Walsh also advised Petitioner that if she went in and worked part of the day, she would not be terminated. Presumably, this was because a late arrival at work was not as serious of an infraction as an unscheduled absence. Finally, Ms. Walsh told Petitioner that if she was coming to work that day, she should be there in 20 minutes. Petitioner then explained that her mother had left the house to run an errand, and she (Petitioner) could not leave her father and son home alone. Petitioner's mother had, in fact, left the house to run an errand. Due to Mr. Stone's medical condition and his limited mobility on May 24, 2007, Petitioner believed the she could not leave her father home alone. Accordingly, Petitioner did not go to work on May 24, 2007. Pursuant to the Attendance Guidelines, Petitioner's employment with Gentiva was terminated for her unscheduled and unexcused absence on May 24, 2007. After Petitioner's employment with Gentiva was terminated, she filed a Complaint with the U.S. Department of Labor alleging that her termination violated the FML Act. As part of the resolution of that claim, Petitioner was paid an annual salary ($29,000.00) and received $30,000.00 for payment of medical bills. The record in this case is devoid of any evidence that Petitioner suffered any damages as a result of Respondent's terminating her employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of September, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 30th day of September, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Le'Tanya Stone 3607 East 33rd Avenue Tampa, Florida 33610 Patrick F. Martin, Esquire Littler Mendelson, P.C. Two South Biscayne Boulevard Miami, Florida 33131
The Issue The issue to be resolved is whether Petitioner, Emma J. Brown, was subject to discrimination in her employment by Respondent for the reasons alleged in her Petition for Relief.
Findings Of Fact Based upon the demeanor of the witnesses while testifying, exhibits admitted in evidence, and stipulations and argument of the parties, the following relevant, material, and substantive facts are found: Petitioner, Emma J. Brown (Ms. Brown), an African- American female, began working for Respondent, Sunbelt Health Care (Sunbelt), a nursing home in Zephyrhills, Florida, as a Certified Nursing Assistant (CNA) on or about February 11, 2002, after an interview by Barbara Derby-Bartlett (Ms. Derby- Bartlett), director of nursing, who made the decision to hire Ms. Brown. Margaret Levesque (Ms. Levesque), a white female, was hired as a CNA by Sunbelt in June of 2002. A CNA's duties include assisting the nursing staff in overall patient care. At the time of their hire, all new employees were required to attend an orientation process. During orientation, new employees, including Ms. Brown, were given a copy of Sunbelt's employee handbook and other printed materials, including Sunbelt's "Call-Off Guides" policy. The "Call-Off Guides" policy specifies the means and method employees are required to follow when they can not be present for their scheduled work shifts. The policy also informs the new employee that repeated absenteeism will result in immediate dismissal. Sunbelt is a 24-hour, full-care facility with residents located in both its north side wing and south side wing. Employees work on both wings. Sunbelt used two shifts, the day shift and the night shift, to provide residents with 24-hour care and service. Ms. Brown testified that at the time of her hire, she informed Sunbelt that she could not work the day (first) shift because she had another job. Her request to work the night (second) shift was granted. On February 22, 2002, after 11 days of employment, Ms. Brown suffered an on-the-job injury to her wrist. Ms. Brown re-injured her wrist on March 22, 2002, and suffered an on-the- job back injury on April 7, 2002. Ms. Brown, through counsel, filed workers' compensation claims for her on-the-job injuries. Ms. Brown's treating physician placed her on work restrictions, limiting her duties to no bending and no lifting over 20 pounds. On or about May 24, 2002, Ms. Brown returned to work and presented her work restrictions, and Sunbelt assigned Ms. Brown to the night shift to perform light-duty work assignments. The light-duty work assigned to Ms. Brown consisted of answering residents' call lights, checking their vital signs, assisting residents with their meals (passing trays), and replenishing their water supplies on both the north and south wings. Ms. Brown requested that Sunbelt change her work schedule to day shift and allow her to work five consecutive days with weekends off. This request was denied. During the pertinent time, two other CNAs, Ms. Levesque and Shirley Manley (Ms. Manley), were also on light-duty. Ms. Levesque and Ms. Manley, white females, performed light-duty work assignments on both the north and south wings similar to those performed by Ms. Brown. According to Ms. Brown, Ms. Levesque worked weekdays for two consecutive months with no weekend duty, and she was not allowed to do likewise. On June 6, 2002, Sunbelt transferred Ms. Brown from night shift to day shift. Ms. Brown maintained that there is "more light-duty work" during the day shift than during the night shift, and by keeping her on the day shift, her workload was increased when compared to CNAs working during the night shift. Ms. Brown filed her claim of discrimination, and Sunbelt, by and through counsel, attempted settlement of Ms. Brown's claim of discrimination without success. Ms. Brown maintained that the proffered settlement did not justify the treatment she received. Sunbelt presented the testimony of Ms. Levesque, who was hired in June 2002 as a CNA but was initially assigned to the duty and function of "staffing coordinator." The staffing coordinator is a day shift employee whose primarily duties consisted of preparing CNAs' work schedules and identifying and securing replacements for those CNAs who called in and, for whatever reasons, did not or could not report for duty as scheduled. During her staffing coordinator assignment, Ms. Levesque also assisted CNAs in their duties, but was assigned light-duty with a 20-pound lifting restriction. Her CNA duties include passing food trays during breakfast, lunch, and dinner; replenishing water; and anything that did not require her to physically pick-up and/or lift a resident. In or about mid-August of 2002, Ms. Levesque's schedule changed, and she was required to work every other weekend. On several occasions, Ms. Levesque and Ms. Brown worked on the same shift, but not on the same wing. Ms. Derby-Bartlett testified that upon receipt from an employee's physician detailing the employee's limitations, she would work within those specific limitations in assigning CNAs to light-duty. According to Ms. Derby-Bartlett, light-duty work assignments are less during the night when residents are asleep and more during the day when residents are awake. After her appointment to the position of director of nursing, Ms. Derby-Bartlett became aware that Ms. Levesque was not working every other weekend and informed Ms. Levesque that she would be scheduled to work every other weekend. Ms. Levesque's request for a couple of weeks to make adjustments was granted, and she thereafter was scheduled to work every other weekend. Ms. Derby-Bartlett confirmed that Ms. Brown was assigned light-duty work assignments on June 6, 2002, and Ms. Brown was a no-show for work. On July 3, 2002, Ms. Brown was assigned light-duty, and she called in as a no-show. On July 4, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. On July 5, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. Ms. Derby-Bartlett contacted the staffing person on each day Ms. Brown called in and on each day Ms. Brown was a no- show, confirming the accuracy of the reports. Ms. Derby-Bartlett contacted Ms. Brown regarding her no-calls and no-shows and informed her of Sunbelt's policy of termination for repeated absenteeism. Ms. Brown, believing her doctor had called Sunbelt on one of the days she was a no-show, was mistaken because no doctor called. On July 5, 2002, Ms. Derby-Bartlett completed Sunbelt's disciplinary form to terminate Ms. Brown due to her several no-calls and no-shows, in violation of Sunbelt's policy, and forwarded her recommendation to Maria Coddington, Sunbelt's unit manager. Ms. Derby-Bartlett testified that since her appointment as director of nursing, the no-show/no-call termination policy has been consistently applied, and she was not aware of any employee who had been no-show/no-call for two consecutive days who had not been terminated. Five months after hiring Ms. Brown, Ms. Derby-Bartlett terminated her. Sunbelt's employee handbook's "Call-Off Guides" policy regarding absenteeism provides, in pertinent part that: "if employees do not call in or do not show up for work for two consecutive days or three nonconsecutive days, it is grounds for termination." Each employee, as did Ms. Brown, signed individual employment documents attesting to having received a copy of Sunbelt's "Call-Off Guides" policy when hired. Ms. Brown was terminated because of her violation of Sunbelt's policy regarding two or more absenteeism without notice to her employer and her repeated failure, albeit her belief that her physician was going to call on her behalf and did not do so, to timely inform her employer of her absence from scheduled duty. Ms. Brown's termination by Sunbelt was based on her violation of their employee work attendance policy and not because of her race and/or ethnic origin. Ms. Brown failed to present a prima facie case of discrimination based on her race as alleged in her complaint of discrimination.
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 by Petitioner, Emma J. Brown. DONE AND ENTERED this 20th day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 20th day of August, 2004. COPIES FURNISHED: Emma J. Brown 38723 Barbara Lane Dade City, Florida 33523 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alan M. Gerlach, Esquire Adventist Health System-Legal Services 111 North Orlando Avenue Winter Park, Florida 32789 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent holds Florida teaching certificate number 600100 which certifies Respondent in the area of elementary education. This certificate is valid through June 30, 1996. During the 1990-91 school year, Respondent was employed as a teacher at North County Elementary School (NCES), one of the schools in the Dade County School District. At the time of the formal hearing, respondent was employed as a classroom teacher at Liberty City Elementary, another of the schools in the Dade County School District. Respondent is an experienced school teacher who was, at the times pertinent to this proceeding, assigned to teach a sixth grade alternative education class at NCES. Wanda McMillon is a Paraprofessional I and was assigned to assist in Respondent's classroom on a full-time basis during the 1990-91 school year. There were approximately 15 students assigned to Respondent's class at NCES. Alternate education deals with children who are behavior problems, have attendance problems, or who are recommended by their counselors to attend alternate education for other reasons. Many of these students come from broken families. Students in Respondent's class frequently engaged in inappropriate and unruly behavior. Examples of this misbehavior included students throwing objects, hitting the Respondent, taking the Respondent's property, and running out of the classroom. As the teacher, Respondent is responsible for maintaining discipline in the classroom. The record is clear that discipline was a serious problem in Respondent's classroom. On November 2, 1990, an incident occurred in Respondent's classroom at NCES involving Respondent and Arthur Brown, a student who had been assigned to Respondent's alternative education class because he was a behavioral problem. Arthur was out of his seat without permission. Arthur did not obey the Respondent's instructions to sit down. Respondent thereafter touched Arthur Brown's shoulder in an attempt to get him to take his seat. Arthur pulled away from Respondent and picked up a plastic chair with metal legs. Arthur held this chair above his head and attempted to hit Respondent with the chair. Respondent grabbed the legs of the chair and a brief struggle for the chair ensued. Respondent took the chair away from Arthur Brown. During the struggle for the chair, Arthur was struck in the forehead by the plastic portion of the chair, but he suffered no meaningful injury. Respondent did not use excessive force in dealing with Arthur. Respondent's defensive reaction to this situation was reasonable and necessary to protect himself and possibly others from this student. 1/ On a date during the 1990-91 school year prior to November 2, 1990 2/, an incident occurred in Respondent's classroom involving Respondent and Vincent Bennett, a disruptive student who had been assigned to Respondent's alternative education class. Vincent was playing near the classroom door when Respondent told him to sit down. When Vincent failed to sit down, Respondent seized Vincent's arm and tried to redirect the student. Vincent began to struggle with Respondent and broke free of his grasp. Vincent began to run around Respondent flailing his arms and hitting Respondent. Respondent reacted by striking Vincent in the upper chest with the back of his hand. Vincent fell to the ground and began to cry. Although Vincent became mad as a result of that incident, there was no evidence that Vincent was injured by Respondent. It is concluded that Respondent's reaction to the attack by Vincent was reasonable and that Respondent did not use excessive force in responding to that situation. 3/ There was testimony that Respondent grabbed Vincent and Arthur by the arm on other occasions. There was, however, no showing that Respondent used excessive force in dealing with Vincent or Arthur on these other occasions or that he engaged in unacceptable conduct. There was testimony that Respondent grabbed or pushed other students in the class, including Lasavo Darkins, Marcus Hollis, Elijah Wadley, and Latraveus Dardy. The evidence established that Respondent's contact with these students occurred while the students were misbehaving and was an attempt to redirect the students. The testimony pertaining to these incidents otherwise lacks factual detail and does not establish that excessive force was used by Respondent. This vague testimony is insufficient to base a finding of wrongdoing on the part of Respondent. There was no evidence that Respondent's method of dealing with these students constituted professional misconduct. There was conflicting testimony as to whether Respondent improperly used profanity in front of the students in his classroom. Based on the greater weight of the evidence, it is found that Respondent did not address his students in profane terms and that he did not otherwise improperly use profanity in front of the students in his classroom. On February 20, 1991, Respondent received a written reprimand from Ruthann Marleaux, the principal of NCES, which provided, in part, as follows: You are hereby officially reprimanded for the following violations of your professional contract responsibilities: Failure to: "Maintain a safe and orderly learning environment...that disruptive behavior be dealt with safely, fairly, consistently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Respondent received an annual evaluation of "unacceptable" from his principal for the 1990-91 school year. Respondent testified that this evaluation was subsequently changed to acceptable. Although the subsequent evaluation was not introduced into evidence, the testimony of Respondent is accepted since his testimony is consistent with his continued employment as a teacher in the public schools of Dade County, Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the Administrative Complaint. RECOMMENDED this 10th day of February, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of February, 1992.
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent committed an unlawful employment practice by discharging the Petitioner from his position with the Respondent. Petitioner contends that he was discharged on account of his sex. Respondent contends that Petitioner was discharged on account of a severe attendance problem. Petitioner contends that female employees with similar or worse attendance problems were not terminated.
Findings Of Fact The Respondent is a corporation which does business in the State of Florida. The Respondent is a distribution warehouse for Seven-Eleven Stores. The Respondent is an employer within the meaning of the Florida Human Rights Act of 1977. Petitioner is a male citizen of the United States. He was employed in various capacities by the Respondent from January, 1974, until he was discharged on November 24, 1981. At the time of his discharge, he was employed as a receiving clerk in one of the Respondent's warehouse facilities. Petitioner filed a Complaint of Discrimination with the Florida Commission on Human Relations concerning his discharge in a timely manner. A determination of reasonable cause was issued by the Commission, effort at conciliation failed, and Petitioner filed his Petition for Relief in a timely manner. From late in 1978 until the time that Petitioner was discharged, all of the Petitioner's supervisors at the Respondent experienced difficulties with Petitioner due to a poor attendance record. At the time, the Respondent followed a four-step disciplinary procedure. Step 1 was employee counseling. Step 2 involved issuance of what was called a "pink slip," or unsatisfactory employee report. At Step 3, a final letter of warning would be issued. Step 4 was discharge. The first formal record that Respondent entered Step 1 of the disciplinary procedure was an employee counseling record issued October 31, 1978. It was therein noted that Respondent had failed to call in prior to an absence from his work shift. The second employee counseling record was issued April 4, 1978. The Petitioner's supervisor discussed repeated tardiness and absences with him on that occasion. Additional counseling records were issued April 11, 1979, and April 30, 1979, and raised the same problems. While these were apparently the only formal records of employee counseling, the Petitioner had been counseled on numerous other occasions regarding excessive tardiness and absenteeism. Respondent entered Step 2 of the disciplinary procedure on November 28, 1979, when a "pink slip," or unsatisfactory performance report, was issued. It was therein noted that the Respondent had been counseled about excessive absenteeism and that his performance had not improved. Petitioner's record did not improve, and on March 19, 1980, a warning letter was issued, thus placing Petitioner in the third step of the disciplinary process. The Petitioner's record regarding excessive tardiness and absenteeism was set out in the warning letter, and it was stated that if Petitioner did not improve, it could lead to termination of his employment. Despite issuance of the warning letter, Petitioner's performance did not improve. He continued to be frequently absent or tardy. A second warning letter was issued January 28, 1981. It was therein stated: As indicated to you on your performance review January 14, 1981, you have shown little or no improvement in your attendance since the warning letter of March 19, 1980. Since several months have passed without action, you are being given this letter to serve as formal notice that you remain at the third step of our disciplinary policy. If immediate improvement in [sic] not shown it could lead to termination of your employment. Despite the second warning letter and continuing efforts by Respondent's supervisor to counsel Petitioner, Petitioner's record of excessive absenteeism and tardiness continued. On November 24, 1981, his employment was terminated. At the time of Petitioner's termination, the Respondent did not have an established policy regarding how many times an employee could be late or absent without being subjected to various stages of the Respondent's disciplinary process. The Respondent did, however, have good grounds for counseling, reprimanding, warning, and ultimately terminating Petitioner. The Respondent's supervisors were lenient with Petitioner. He was counseled continuously and warned twice, once more than usual, before he was terminated. Petitioner alleged that three specific female employees of the Respondent had absentee problems as severe or more severe than Petitioner's, but were not terminated. The evidence does not support this allegation. Each of the three female employees, Theresa Roberts, Lisa Watt, and Gloria Sanders, had attendance problems. Each was subjected to disciplinary action by the Respondent. Sanders had received a Step 3 warning in October, 1981. Roberts had received a Step 2 unsatisfactory performance report in November, 1981. Watt had been counseled respecting her problem. None of these three female employees had attendance problems as severe as Petitioner's. Furthermore, each showed some improvement following counseling, unsatisfactory performance reports, or warnings. Nothing in the treatment of these three women vis-a-vis the Respondent's treatment of Petitioner demonstrates any sex-based bias, or discriminatory action, on the part of Respondent. The Respondent now has a set policy that includes a point system regarding discipline based upon excessive absences. The policy was not in effect when Petitioner was terminated. Some people with absentee problems less severe than Petitioner's were terminated for excessive absences during the years 1977 through 1981. Other employees with attendance problems more severe than Petitioner's were not terminated. It does not appear that this disparity had any basis other than the fact that Respondent had no set policy regarding excessive absences and dealt with the issue through its individual supervisors subjectively on a case-by-case basis. In 1981, the Respondent had approximately 170 laborers or unskilled workers in its warehouse. Forty-four of them were females. During the period 1977 through 1981, 20 employees at the warehouse were terminated for excessive absences or tardinesses. Thirteen of them were male, and seven were female. Five of the seven women who were terminated had fewer absences or tardinesses than Petitioner after receipt of the Step 3 warning. Neither these statistics nor any specific evidence regarding disciplinary action taken by Respondent demonstrates any sex-based bias or discrimination.
The Issue The issues in this case are whether Respondent, a teacher, failed to implement a student's Individual Educational Plan, made offensive comments to the same student's parent, and/or did not collect data to measure another student's response to interventions for purposes of determining eligibility for Exceptional Student Education services, as Petitioner alleges; and, if so, whether just cause exists to suspend Respondent without pay for five days.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all relevant times, Respondent Elaine Jaffe ("Jaffe") was employed as a reading teacher at Coral Springs High, a public school in Broward County. The events at issue involve two students, C.N. and N.P. Although the School Board alleges, in brief and broadly speaking, that Jaffe failed to fulfill obligations towards each of these students, there is no factual overlap between the situations of C.N. and N.P.——each student is the subject of a separate occurrence or occurrences. Further, the alleged wrongdoing in reference to C.N. took place (if at all) during the 2013-14 school year, while the disputed events concerning N.P. transpired the following year, 2014-15. C.N. was an eleventh grade student in 2013-14 who received Exceptional Student Education ("ESE") services pursuant to an Individual Educational Plan ("IEP"). Jaffe had taught C.N. the previous year (2012-13), when C.N had been in Jaffe's reading class for special education students. For 2013-14, C.N. was placed in a less restrictive, albeit remedial, reading class, which included students from the general population. Unhappy with her assigned teacher, however, C.N. (or her parents) requested that C.N. be transferred to Jaffe's class (Jaffe taught the same course), which was done. The fact that C.N. voluntarily transferred to Jaffe's class is significant for two reasons. First, it gives rise to the reasonable inference——confirmed by Jaffe's credible testimony——that Jaffe was aware, in 2013-14, of the supplementary aids and services ("accommodations") prescribed in C.N.'s IEP, with which her teachers were to provide her, having afforded the same (or substantially similar) accommodations to C.N. the previous year. Second, from the voluntary transfer the undersigned reasonably infers that neither C.N. nor her parents had concerns about Jaffe's alleged inability, failure, or refusal to implement C.N.'s accommodations; more than that, since they requested that C.N. be moved into Jaffe's class, the reasonable inference, hereby drawn, is that C.N. and her parents were satisfied with Jaffe's instructional performance in 2012-13, including the provision of accommodations. In its Administrative Complaint, the School Board alleges that Jaffe failed to provide C.N. the following three accommodations (as described in C.N.'s IEP): Flexible Setting-Small group for testing Flexible Presentation-Oral presentation of test prompts (if allowable) Flexible Scheduling/Timing-Add'l time for task (Total time = twice the allotted time) This alleged default, according to the School Board, was "demonstrated by [Jaffe's] failure to send C.N." to the Support Room, i.e., a separate classroom where special education students can take tests or complete other assignments in a small group under the supervision of an ESE teacher who serves as the support coordinator. C.N. did not report to the Support Room from Jaffe's class at any time during the 2013-14 school year. This fact means little, however, in light of other circumstances. C.N. went to the Support Room 13 times in 2013-14 at the instance of a teacher. Ten of those referrals were from C.N.'s American History class, which means that one teacher (Watson) accounted for 77 percent of C.N.'s trips to the Support Room. C.N.'s science teacher (Eyerman) sent her for support twice in November 2013, and a geometry teacher (Myers) sent C.N. to the Support Room once, in March 2014. Like Jaffe, C.N.'s English teacher (Merchant), American Sign Language teacher (Nesser), and another geometry teacher (Barr) did not account for any documented visits by C.N. to the Support Room during the 2013-14 school year. Jaffe's utilization of the Support Room vis-à-vis C.N., in short, was no different, or practically indistinguishable, from that of all the rest of C.N.'s teachers except one (who might have overutilized this resource for all the record shows). That being the case, the undersigned rejects the School Board's contention that Jaffe's "failure" to send C.N. for support constitutes persuasive proof that she failed to implement C.N.'s IEP. There is, moreover, no persuasive evidence in the record to support the charge that Jaffe otherwise ignored C.N.'s accommodations. On the contrary, Jaffe testified credibly that she read aloud test "prompts" or directions as appropriate, and that she always offered C.N. additional time to complete a task or test, which C.N. regularly declined. Finally, there is no persuasive evidence demonstrating that Jaffe ever failed to provide an accommodation to C.N. on a particular occasion when such an accommodation was requested or required under the circumstances. In sum, the School Board presented insufficient evidence in support of its allegations that Jaffe failed to implement C.N.'s IEP. The School Board also alleges that Jaffe made disparaging comments about C.N. to C.N.'s mother (P.F.) during the course of an IEP meeting on April 11, 2014. There is no dispute that Jaffe attended the meeting in question, and that Jaffe was excused from the meeting before it concluded because she needed to get back to her classroom. When Jaffe left, P.F. followed her out of the room, and the two spoke briefly and in private. Each gives a different, and conflicting, account of what was said. Based entirely on P.F.'s version of the event, the School Board alleges that Jaffe told P.F. that C.N. is "not college material" and her plans to attend college "were ridiculous and a complete waste of time." Allegedly, Jaffe further recommended to P.F. that C.N. concentrate on learning a "skill" for which she might get paid. Jaffe denied having made these remarks. Her testimony in this regard is corroborated by additional persuasive evidence demonstrating that P.F. was not visibly upset when she returned to the meeting following her one-on-one conversation with Jaffe, and that she did not say anything to the other participants about Jaffe's allegedly offensive comments. Indeed, P.F. first complained about the alleged remarks more than a month after the IEP meeting, contacting the assistant principal in late May 2014 to lambaste Jaffe. P.F.'s email to the administrator following their telephone conversation included such intemperate opinions as: "[A] higher level of thinking . . . is beyond [Jaffe's] intellectual capacity." The undersigned discounts the accuracy of P.F.'s recollection of her private conversation with Jaffe——her memory is likely corrupted by personal animus——and finds that Jaffe did not make the alleged remarks attributed to her in the Administrative Complaint. Rather, based on the evidence presented, it is likely that during the IEP meeting Jaffe expressed the view, which she evidently held, that pursuing a college degree might not be in C.N.'s best interests. Expressing such an opinion during an IEP meeting involving a high school student seems neither remarkable nor objectionable, so long as it is tactfully and respectfully offered. Obviously, the student is free to disagree and pursue whatever course of action or study is both desirable and available to him or her. At bottom, the School Board presented insufficient evidence in support of its allegations that Jaffe made offensive remarks about C.N. to C.N.'s mother. As mentioned above, the other student whom Jaffe allegedly underserved is named N.P. After his sophomore year, N.P.'s mother decided that N.P. would benefit from ESE services, which she resolved to secure. To that end, she brought her son to a private psychologist for an evaluation in the summer of 2014. The report of that study (dated June 9, 2014) was presented to Coral Springs High for consideration at the start of the next school year. Then a junior, N.P. was a student in Jaffe's reading class during 2014-15. The administration referred N.P. to a Child Study Team to evaluate his eligibility for ESE services. On September 2, 2014, the guidance counselor sent an email to N.P.'s teachers asking them to begin providing N.P. with "Tier 1" and "Tier 2" interventions and collecting data from such interventions pursuant to the response to interventions ("RtI") procedure used in determining ESE eligibility. On September 4, 2014, the guidance counselor informed N.P.'s teachers by email that the RtI process was being accelerated and that, accordingly, they were each immediately to commence a "Tier 3" intervention with the student. Tier 3 interventions are more involved than Tier 2 interventions, which latter are an intermediate step up from the Tier 1 interventions commonly provided to all students. A Tier 3 intervention, therefore, at least generally speaking, requires the teacher to spend more time on, and devote more attention to, the subject student than otherwise would be the case. The guidance counselor gave N.P.'s teachers notice of yet another change of plans regarding the RtI in an email dated September 12, 2014, which stated: "Many of you are expressing that you don't see any issues/concerns with [N.P.] and that's fine. Because of this, Mrs. Forde (the ESE specialist) would like you to now log ONLY Tier 1 interventions" into the electronic database. Nearly three months later, on December 8, the ESE specialist, Coleen Forde, emailed Jaffe to complain that "there is no data [on N.P.] for a Tier 3 intervention" and to assert that "[n]ot having this data will prevent him from being eligible for ESE." Ms. Forde advised Jaffe as follows: Being in an intensive class [such as yours] is a Tier 2 intervention and doing smaller groups in class is a Tier 3 intervention. What you do in that small group can be monitored and data can be collected and graphed. Jaffe replied later that day to Ms. Forde's email, writing in relevant part: On September 12, [2014,] we received an email that addressed the lack of issues/concerns regarding [N.P.]'s behavior and academic work. We were instructed that since we did not have issues with [N.P.], "Mrs. Forde would like you to now log ONLY Tier 1 interventions on [the database]." I did this. Your email today is a bit confusing. Tier 3 interventions were written, not inputted into [the computer] due to malfunctions of the [database] program. Both [the guidance counselor] and I have tried to input data into Tier 3 but it did not work, and then we were told to only put in information for Tier 1. * * * I believe I have done all that I have been asked to do. Please let me know if you need other information. Ms. Forde did not reply. Almost two more months passed. Jaffe received an email notifying her that a meeting of the Child Study Team, of which Jaffe was a member, would be held on February 2, 2015, to determine whether N.P. was eligible to receive ESE services. Jaffe was not instructed to bring any materials to this meeting. The meeting was held as scheduled. In its Administrative Complaint the School Board alleges that "because Ms. Jaffe had failed to collect Tier 3 data, the team was unable to find [N.P.] eligible for ESE and had to reschedule." Allegedly "[a]s a result, N.P.'s ESE eligibility determination had to be postponed for another month." The School Board failed to prove that Jaffe was solely, or even largely, responsible for the ensuing one-month delay in N.P.'s being deemed eligible for ESE services. (He would be approved at a meeting on March 2, 2014, after Jaffe collected Tier 3 data——the only one of N.P.'s teachers to do so.) While it is true that Jaffe did not bring Tier 3 data to the February 2nd meeting, the facts are that no one else did either, and that Jaffe had not been directed to bring such information. Moreover, the evidence fails persuasively to establish that Jaffe was ever clearly directed to resume collecting Tier 3 data after being told unambiguously on September 12, 2014, to "log ONLY Tier 1 interventions." (Ms. Forde's December 8th email contained only an implied (not express) directive to implement Tier 3 interventions——one which conflicted, at that, with the emphatic command of the September 12th email. Ms. Forde's failure to timely contradict Jaffe's assertion——that, as of December 8, 2014, she (Jaffe) had "done all that I have been asked to do"——increased the ambiguity.) In conclusion, the School Board presented insufficient evidence in support of its allegations that Jaffe failed to carry out her duties respecting the RtI process as it pertained to N.P. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Jaffe is guilty of the offense of misconduct in office, which is defined in Florida Administrative Code Rule 6A- 5.056(2).1/ The greater weight of the evidence fails to establish that Jaffe is guilty of incompetency,2/ which when proved affords just cause for suspension or dismissal from employment. The evidence does not support a determination that Jaffe violated School Board Rule 4008(B), which essentially directs teachers and other employees to obey all applicable statutes, rules, and policies. The greater weight of the evidence fails to establish that Jaffe is guilty of gross insubordination.3/ The evidence does not support a finding that Jaffe "intentional[ly] or reckless[ly] fail[ed] to carry out required duties," which if proved constitutes a disciplinable offense under rule 6A-5.056(5)(defining "willful neglect of duty").
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Jaffe of all charges brought against her in this proceeding and awarding her back salary (if she has already served the five-day suspension) as required under section 1012.33(6)(a). DONE AND ENTERED this 11th day of April, 2016, 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 11th day of April, 2016.
The Issue Did sexual harassment of Petitioner, Tania Aponte (Ms. Aponte), if any, create a hostile work environment? Did Respondent, Watson Pharmaceuticals, Inc. (Watson) discriminate against Ms. Aponte based on her gender by terminating her employment in March 2009? Did Watson retaliate against Ms. Aponte for complaining about alleged sexual harassment?
Findings Of Fact Based on the testimony and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Ms. Aponte is a female. Watson is a pharmaceutical company that manufactures generic brand medicines. Ms. Aponte began working for Watson on November 13, 2006, as a Process Operator I. During her employment with Watson, Ms. Aponte received two promotions, first to Process Operator II and then to Manufacturing Tech I. At all times during her employment, Watson categorized Ms. Aponte as a "non- exempt employee." This means her position was not exempt from the federal Fair Labor Standards Act and state wage and hour laws. Watson gave Ms. Aponte a Watson Employee Handbook when she started work. Ms. Aponte signed a receipt for the handbook. The receipt expressly acknowledged her responsibility to read, know, and follow the personnel policies and practices described in handbook. Watson records and tracks its nonexempt employees' time records through the Kronos time recordkeeping system. This computerized system relies upon employees "swiping" their identification cards to "clock in" and "clock out." During her time with Watson, Ms. Aponte accrued paid time off ("PTO") which combined traditional vacation and sick leave. Watson permitted employees to use PTO to take time off without consequence if they followed proper approval procedures. Watson's Policies and Procedures Manual sets forth Watson's attendance policy. Watson's Employee Handbook, which Ms. Aponte received and was bound to read and follow, also sets forth the attendance policy. The Handbook advises that attendance and punctuality are considered to be part of an employee's overall job performance. It states: "Maintaining a good attendance record is very important." The Handbook also cautions that "excessive or unauthorized absences and/or tardiness may result in disciplinary action, up to and including termination." The Handbook defines an "occurrence," describes when occurrences are incurred, and describes the number of occurrences resulting from specified conduct. Effectively occurrences function as a unit of measure for disciplinary offenses. An employee incurs one half of an occurrence if she is less than two hours late, leaves early, or takes excessively long or frequent breaks. An employee incurs one occurrence if she is absent for a full day or part of a day. An employee also incurs one occurrence if she fails to follow the prescribed call-in procedures. This is in addition to the occurrence incurred for the absence. The Handbook establishes call-in procedures. It requires an employee who is going to be unexpectedly absent to speak directly to her supervisor within 30 minutes of the scheduled start time, not leave a voice mail message. If the employee cannot reach the supervisor, then she is to speak to the next level of management or a member of the human resources department. A voice mail message is acceptable only if the employee has tried and failed to reach her supervisor, the next level of management, and the human resources department. The call-in procedure is only for unexpected absences. The Handbook requires, whenever possible, that employees request and receive advance written approval for an absence. Unless otherwise specified by a supervisor, Watson employees, including Ms. Aponte, were required to obtain 24 hours advance approval of an absence. The Handbook also provides that any absence or tardiness from work not approved in advance will result in an attendance occurrence. The Handbook also establishes what constitutes "excessive absenteeism." An employee is considered to be excessively absent if that employee incurs seven or more attendance occurrences within a rolling 12-month period. Ms. Aponte knew that excessive absenteeism would result in disciplinary action, up to and including termination of employment. She also knew of the "occurrence" system and standards. Throughout her employment with Watson, Ms. Aponte had a chronic absenteeism problem. The problem persisted regardless of who supervised Ms. Aponte. Ms. Anna Bohorquez was Ms. Aponte's first supervisor. On October 25, 2007, Ms. Bohorquez presented Ms. Aponte with a counseling memorandum, emphasizing the importance of attendance and punctuality. The memorandum stated that, over the last quarter, Ms. Aponte had several days on which she had not reported to work. It documented that Ms. Aponte had been counseled about her attendance. The memorandum concluded with the bold face heading "Consequence should incident occur again:" followed by the statement: "If further violations of this nature and/or violations of other company policies, GMPs, SOPs [occur, they] will result in further disciplinary action up to and including termination of employment." Ms. Aponte admits that, as of October 2007, she certainly knew the importance of complying with attendance policies and the seriousness of the potential consequences of continuing to violate Watson's attendance policy. Ms. Aponte's June 18, 2008, performance review by Ms. Bohorquez recorded Ms. Aponte's lack of dependability, defined as "[r]egular, punctual attendance and timely return from breaks; willingness to work overtime." The plan of action for improvement or progress specified Ms. Aponte's need to improve her punctuality and attendance. On or about June 25, 2008, Ms. Bohorquez counseled Ms. Aponte again about attendance and provided her a verbal warning. The basis for the warning was that, during the rolling year, Ms. Aponte had accrued 21 and one-half occurrences. Ms. Bohorquez provided a Corrective Action Notice. The Notice accurately stated that the issues of attendance and punctuality had been discussed with Ms. Aponte in the past, that Ms. Aponte previously had been counseled for her attendance on October 25, 2007, and that her attendance had not improved. The Notice specifically stated: "Tania is expected to improve her attendance drastically and comply with Watson's Attendance and Punctuality policy at all times." The "Plan for Improvement" in the Notice stated bluntly: It is imperative that Tania improve her attendance immediately. She must fully comply with the Watson's Attendance and Punctuality [sic], as unplanned absences are not allowed. Further violation of this policy will result in further disciplinary action up to and including termination. After Ms. Aponte's annual performance review, Ms. Bohorquez and another supervisor, Corey Washington, switched shifts for a couple of months. During that time Ms. Aponte reported to Mr. Washington. Her attendance problems continued. Ms. Aponte worked an eight-hour shift. Like all employees she was permitted to take two 30-minute breaks during her shift. On July 17, 2008, Mr. Washington issued Ms. Aponte a Corrective Action Notice for exceeding her break time. The written warning stated that Ms. Aponte left for her break at 4:45 p.m. and returned to the floor at 6:00 p.m., taking a break of one hour and 15 minutes. Ms. Aponte had been on her break with a male co-worker, Arlinson Hernandez. Mr. Washington issued Mr. Hernandez an identical written warning for exceeding his break time. After receiving the written warning, Ms. Aponte went to the Human Resources Department to complain that the written warning issued by Mr. Washington was too harsh. She requested that it be downgraded to a verbal warning. Ms. Aponte met with Maritza Pantigozo, Senior Human Resources Representative. Ms. Aponte admitted that she had taken an excessively long break. She just claimed that her break had not been as long as stated in the Corrective Action Notice. However, although the Corrective Action Notice provides that Ms. Aponte could place a written response to the disciplinary action in her human resources file, she never did so. Ms. Pantigozo denied Ms. Aponte's request to downgrade the warning because of Ms. Aponte's record of corrective actions and attendance problems. Human Resources downgraded Mr. Hernandez's written warning to a verbal warning because, unlike Ms. Aponte, he had a clean file and had not established a pattern of excessive absenteeism. When Ms. Aponte requested downgrade of the warning and in a subsequent meeting, she also claimed that Mr. Washington had once asked her if she was having phone sex with her boyfriend when she was talking on the telephone during work hours. Watson investigated the complaint in accordance with its sexual harassment policies. No persuasive evidence establishes that Mr. Washington made that comment or any of the other inappropriate comments that Ms. Aponte now claims he made. The timing of Ms. Aponte's claims, the fact that personal telephone use during work hours was not permitted, and the demeanors of Mr. Washington and Ms. Aponte when testifying are persuasive evidence that he did not make the comments alleged. Shortly afterwards, Mr. Washington and Ms. Bohorquez switched back to their original shifts. Ms. Bohorquez once again supervised Ms. Aponte. On October 27, 2008, Ms. Bohorquez issued Ms. Aponte a Corrective Action Notice because Ms. Aponte had accrued 13 occurrences for attendance during the 12-month rolling year. Five of the occurrences had been incurred since Ms. Bohorquez had issued her last warning to Ms. Aponte in June 2008. The Notice stated in bold print that any future incident of this or similar nature may result in additional corrective action, up to and including termination. On December 2, 2008, Ms. Bohorquez issued a Corrective Action Notice to Ms. Aponte. Ms. Bohorquez issued the Notice because Ms. Aponte had incurred 10 and one-half occurrences during the 12-month rolling year for attendance and punctuality. The Final Written Warning noted that, on November 30, 2008, Ms. Aponte had reported to work three hours late without authorization. It also noted occurrences for dress code violations and product production procedure violations in addition to Ms. Aponte's absenteeism violations. The "Plan for Improvement" section of the notice stated: "A Final written warning is being issued to Tania for attendance and punctuality. She is expected to drastically improve and sustain her attendance pattern immediately to avoid termination." On December 18, 2008, Ms. Bohorquez issued an addendum to the December 2 Notice. The addendum corrected the Notice to state that an audit of Ms. Aponte's attendance records determined that Ms. Aponte had incurred 13 occurrences in the prior 12 month rolling period, not the 10 and one-half reported in the December 2 Notice. The addendum reiterated the previous warnings about the importance of attendance and the likelihood of termination with any further occurrences. It stated: Tania must fully comply with Watson's Attendance and Punctuality Policy. This includes being present for work and arriving on time, and timely returns from breaks. If Tania earns 1.0 occurrence she will reach the next level of disciplinary action, which is termination. Ms. Aponte understood that she would be terminated if she incurred just one more occurrence. Ms. Bohorquez issued the Notice because of Ms. Aponte's work record, including her chronic absenteeism. There is no persuasive evidence that the Notice was related in any way to Ms. Aponte's complaint about Mr. Washington. After she received the December 2008 Final Written Warning from Ms. Bohorquez, Watson transferred Ms. Aponte, at her request, to the second shift under the supervision of Tysaun Cook. When Ms. Aponte started working on Mr. Cook's shift, he received her employee packet. From it Mr. Cook learned that Ms. Aponte was on a final written warning. Mr. Cook spoke to Ms. Aponte about her attendance and made sure that she understood that another occurrence could result in her termination. On March 4, 2009, while under Mr. Cook's supervision, Ms. Aponte incurred another occurrence. She did not come to work that day and did not seek or receive approval to take the time off. Ms. Aponte knew in advance that she was going to miss work on March 4, 2009. She planned to miss work that day to attend school orientation. Ms. Aponte also knew that she had used up all of her accrued PTO. On March 3, 2009, Ms. Aponte spoke to Ms. Pantigozo in Human Resources. At the time Ms. Pantigozo was not the Human Resources representative responsible for the division where Ms. Aponte worked. Ms. Aponte did not ask Ms. Pantigozo for authorization to take March 4 off or advise her that she intended to miss work on March 4. And Ms. Pantigozo did not tell Ms. Aponte that she could miss work on March 4. Ms. Aponte spoke to Ms. Pantigozo solely to try to determine if she could get away with missing work that day under the occurrence accounting system. Her conversation with Ms. Pantigozo consisted of general inquiries about the occurrence and attendance policies. On March 4, 2009, Ms. Aponte did not come to work. She left a voice mail message for Mr. Cook that she would not be coming to work that day. This violated Watson's call-in policy, because Ms. Aponte did not speak to Mr. Cook directly, attempt to speak with the next level supervisor, or, failing that, speak to a Human Resources representative. As significantly, the absence did not qualify for reliance on the call-in policy because it was not an unexpected absence. Both Ms. Aponte's testimony and her Proposed Recommended Order acknowledge that, at the least, she knew on March 3, 2009, that Ms. Aponte intended to miss work on March 4, 2009. But she did not attempt to contact her supervisor until March 4, 2009. Mr. Cook advised Human Resources of Ms. Aponte's violation of policy. He recommended that Watson follow the governing procedures and terminate Ms. Aponte. Her employment history of excessive absenteeism, the fact that she was on final warning, and the incurrence of another occurrence were the sole reasons that Mr. Cook recommended termination. Watson terminated Ms. Aponte approximately eight months after her single complaint that Mr. Washington made an inappropriate comment to her. During those eight months, two different supervisors assessed occurrences against her for absenteeism and warned her that further unapproved absences could result in termination. By Ms. Aponte's own testimony, the final occurrence violated Watson's attendance policies. She admits that she planned in advance to miss work to attend school orientation. And she admits that she did not attempt to notify her supervisor until the day of the absence although attending the orientation was not an unexpected absence. There is no persuasive evidence that Watson terminated Ms. Aponte because of her unfounded complaint about Mr. Washington. The persuasive evidence establishes that Watson terminated Ms. Aponte in full compliance with its policies and procedures for her accrued occurrences and her documented record of excessive absenteeism. No persuasive evidence established that Watson treated Ms. Aponte differently than similarly situated males. Ms. Aponte identified eight employees she maintains were similarly situated employees not in her protected class who Watson treated differently. They are: Ian Anderson, Jennifer Domenech, Arlinson Hernandez, Alexis McElhaney, Keisha Noel, Emile Jean-Phillipe, Arnold Phillips, and Valmyr Vavick. Only Ian Anderson, Arlinson Hernandez, Emile Jean-Phillipe, Arnold Phillips, and Valymr Vavick were proven to be male. Persuasive evidence did not establish that they were similarly situated to Ms. Aponte or whether they were disciplined and to what degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition of Tania Aponte in FCHR Case Number 2010-01250. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 May, 2011.
