The Issue The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 51-year-old white male who had cancer in one kidney at the time of an alleged unlawful employment practice. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a construction company engaged in the business of building bridges and other highway structures in Florida. For the reasons set forth hereinafter, a preponderance of the evidence does not show that Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability. Respondent employed Petitioner as a crane operator on February 22, 2008, at a pay rate of $18.00 per hour. Petitioner listed his residence as Naples, Florida. Petitioner was unaware that he had any disability and did not disclose any disability at the time of his initial employment. Petitioner solicited employment from Respondent and was not recruited by Respondent. Petitioner relocated from Wyoming to Florida to be with his family. Respondent assigned Petitioner to a construction job that was under the supervision of Mr. Scot Savage, the job superintendent. Mr. Brandon Leware was also a superintendent on the same job. Mr. William (Bill) Whitfield was the job foreman and Petitioner's immediate supervisor. Sometime in October 2008, medical tests revealed that cancer may be present in one of Petitioner's kidneys. The treating physician referred Petitioner to a specialist, David Wilkinson, M.D., sometime in October 2008. Medical personnel verbally confirmed the diagnosis of cancer to Petitioner by telephone on October 30, 2008. On the same day, Petitioner voluntarily resigned from his employment during a verbal dispute with his supervisors. Petitioner did not disclose his medical condition until after he voluntarily resigned from his employment. The verbal dispute involved Petitioner and several of his supervisors. On October 30, 2008, Mr. Whitfield, the foreman, assigned work to several employees, including Petitioner. Mr. Whitfield proceeded to complete some paperwork and, when he returned to the job site, discovered the work assigned to Petitioner had not been performed. When confronted by Mr. Whitfield, Petitioner refused to carry out Mr. Whitfield’s directions. Mr. Whitfield requested the assistance of Mr Savage. Mr. Savage directed Petitioner to return to work or quit. Petitioner quit and walked off the job. As Petitioner was walking off the job, Petitioner turned around and stated that he had cancer. Petitioner then left the job site. Petitioner's statement that he had cancer was the first disclosure by Petitioner and first notice to Respondent that Petitioner had cancer. The medical condition did not prevent Petitioner from performing a major life activity. Respondent did not perceive Petitioner to be impaired before Petitioner voluntarily ended his employment. None of the employees of Respondent who testified at the hearing regarded Petitioner as impaired or handicapped or disabled or knew that Petitioner had cancer prior to Petitioner's statement following his abandonment of his job on October 30, 2008.2 Within a week after Petitioner voluntarily left his position, Petitioner returned, approached Vice-President Mr. Scott Leware, and asked for his job back. Mr. Leware advised him that he would not get his job back. At the time, Mr. Leware was unaware that Petitioner had cancer. Mr. Leware was the ultimate decision-maker, and Mr. Leware was unaware that Petitioner had cancer when Mr. Leware made that decision approximately a week after Petitioner voluntarily left his employment. The terms of employment did not entitle Petitioner to a per diem payment while employed with Respondent. Petitioner's residence in Naples was within 75 miles of the job site where Petitioner worked. Respondent did pay for the hotel room that Petitioner used at the Spinnaker Inn while on the job, but not other per diem expenses, including meals. The cost of the hotel ranged between $50 and $60 a night. Mr. Brandon Leware followed Petitioner to a gas station and paid for gasoline for Petitioner’s vehicle. Mr. Leware and Petitioner then went to the Spinnaker Inn where Petitioner resided in a room paid for by Respondent. Mr. Leware advised the manager of the Spinnaker Inn that Respondent would pay for Petitioner’s lodging for that night, but not after that night. The rate of compensation that Respondent paid Petitioner was within the normal range of compensation paid to crane operators employed by Respondent. Crane operator compensation ranges from $16.00 to $20.00 an hour. Respondent paid Petitioner $18.00 an hour. A preponderance of the evidence does not show that Respondent ever offered to pay Petitioner $22.00 an hour. The allegation of age discrimination is not a disputed issue of fact. Petitioner admitted during his testimony that he never thought Respondent discriminated against him due to his age. Respondent employed another crane operator with cancer at the same time that Respondent employed Petitioner. The other crane operator is identified in record as Mr. Roddy Rowlett. Mr. Rowlett’s date of birth was October 14, 1949. Mr. Rowlett notified Respondent that he had cancer, and Respondent did not terminate the employment of Mr. Rowlett. Mr. Rowlett continued to work as a crane operator until a few weeks before his death. A preponderance of evidence does not show that age, cancer, or perceived impairment were factors in how Respondent treated Petitioner during his employment with Respondent. A preponderance of the evidence does not show that Respondent hired anyone to replace Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Administrative Hearing. DONE AND ENTERED this 2nd day of March, 2010, in Tallahassee, Leon County, Florida. S 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 2nd day of March, 2010.
The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against in employment by Respondent in retaliation for Petitioner's efforts in behalf of minority employees of Respondent.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Priscilla M. Young, was a licensed practical nurse employed by Respondent, BAT Management Foundation, Inc. (BAT), at its Orlando Health Care Center (OHCC), as a floor nurse responsible for the care of approximately 60 residents during the 11 p.m. to 7 a.m. shift. Her immediate supervisor was Joan Renee’ Banton. Petitioner began working at OHCC as an LPN in 1992. In 1987 she had been convicted of a felony, aggravated battery, in circuit court and sentenced to imprisonment for a term of 30 months. After serving 8 of the 30 months, she was released without probation. At that time, she went to nursing school and was subsequently licensed in Florida as a practical nurse. At no time did she ever conceal her conviction from either the nursing school or licensing authorities. Petitioner was hired at Winter Park Memorial Hospital after graduating from nursing school and becoming licensed. At that facility she worked for both Joan Renee’ Banton and Sue O’Brien. During this period, Ms. O’Brien left Winter Park Memorial to take a position with BAT at its OHCC facility. Somewhat later, Petitioner saw an advertisement by BAT in the newspaper and applied for employment there. She claims Ms. O’Brien, who was at that time director of nursing was happy to see her when she arrived to fill out the application. Petitioner was interviewed for employment at OHCC by Ms. Stanley, who was the unit manager of the north wing at the facility. The employment application form contained a question which asked the applicant if she "had ever been convicted of a felony or, within the last five years of a misdemeanor, which resulted in imprisonment." Petitioner claims she was not sure how to interpret the verbiage and asked Ms. Stanley. Ms. Stanley also was not sure, so they discussed it with Ms. O’Brien. Based on their discussion, the determination was made that Petitioner did not have to list her felony conviction because it had occurred more than five years prior to the application. This was an incorrect decision because clearly the application requires listing a felony conviction regardless of when it happened, but requires listing of only those misdemeanor convictions which occurred within the last five years prior to application. Nonetheless, Petitioner was hired. During the course of her employment with OHCC, Petitioner had no disciplinary problems. Both Ms. Stanley and Ms. Banton deny having had any problems with her or her work. Petitioner contends that at least twice during the term of her employment, however, she complained to Ms. Banton about Banton’s use of the term, "you people" in reference to the aides and orderlies who worked for her, all of whom were minority of some nature: African American, Hispanic, or Asian. Ms. Banton cannot recall Petitioner’s having ever complained to her about that, and she denies having ever used that term. She claims that if she ever did refer to the employees as a group, it would have been phrased more as "you guys," or something like that. Considering the evidence of record, however, it is found that Ms. Banton probably did use the term "you people" and that Petitioner did complain about that usage to Ms. Banton. According to Ms. Banton, shortly after Petitioner was hired, all people who had knowledge of her conviction had left employment with OHCC. Ms. Stanley had taken employment elsewhere. Ms. Banton also left employment with OHCC in August 1994 because of rumors involving management problems with which she did not want to be involved. Somewhere between two and three weeks after leaving OHCC, however, Ms. Banton received a call from Mr. Allen, the owner of the company, asking her to come back to OHCC as Director of Nursing to replace Ms. O’Brien whom he intended to discharge. She agreed, and when she assumed her new role, she quickly received a phone call from Mr. Allen. In this telephone call, Mr. Allen asked if Petitioner was employed at OHCC. When Banton replied that she was, Allen reportedly revealed he had received a background check on Petitioner which indicated she had a felony conviction. According to Banton, Allen, who did not want any felons working in his nursing homes, directed Banton to check Petitioner’s background to see if the conviction had been noted on her application. She did, and when she reported to Allen that it had not been listed, he directed Banton by telephone to fire the Petitioner. Ms. Banton did what she had been directed to do. Petitioner contends that Banton’s attitude at the time of discharge was cavalier. Ms. Banton admits that at the time she had the discussion with Mr. Allen, she knew that Petitioner had served time in prison, but did not know why. She also claims that she did not know that Petitioner had discussed the conviction with Stanley and O’Brien and had been advised not to list it. Petitioner’s termination from employment with OHCC was based on her failure to disclose her felony conviction. Petitioner claims the termination was based on her speaking out for the other nursing assistants, all of whom were minority, when they were accused of incompetence. Ms. Banton, however, cites instances where when she would come in at night to check on how things were going, she would find pillows and chairs scattered around as if people were sleeping on their shift. She discussed this with Petitioner and admits the discussions were sometimes loud, but she never took any disciplinary action against Petitioner or wrote her up for this. Banton absolutely denies having ever disciplined any employee in public, always taking an employee to a private area to take corrective action. Petitioner is adamant in her contention that the fundamental basis for her discharge from employment with OHCC is retaliation for her standing up for the minority nursing assistants who were accused of incompetence. She firmly believes that her failure to list her felony conviction was seized upon as a pretext upon which to support the unlawful basis for her discharge. She cites that both Banton and O’Brien knew of her conviction and the fact that she had served time, when they all were employed at Winter Park Memorial, and that though it was not listed on her application for employment with OHCC, O’Brien knew about it at the time of her hiring, and Banton knew about it when she, Banton, subsequently came to work at OHCC. Coincidentally, Petitioner claims to have been instrumental in Banton’s obtaining employment at OHCC.
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 determining that Petitioner, Pricilla Young, was not subjected to racial discrimination or retaliation because of her advocacy on behalf of minority employees; that her discharge from employment with Respondent, BAT Management Foundation, Inc., d/b/a Orlando Health Care Center was based on a determination by Mr. Allen, the owner thereof, that her prior felony conviction disqualified her from employment at the facility; and that she is not entitled to back pay, expenses, or compensatory damages as a result thereof. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000 COPIES FURNISHED: Priscilla M. Young 312 Lime Avenue Orlando, Florida 32805 Jefferson M. Braswell, Esquire Scruggs & Carmichael, P.A. One Southeast First Avenue Post Office Box 23109 Gainesville, Florida 32602 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The ultimate issue in this case is whether Janna Preissig is eligible for vocational rehabilitation benefits for which she has applied on three separate occasions. 1/ Ms. Preissig contends that she is eligible. The Department of Health and Rehabilitative Services (hereinafter "the Department" or "DHRS") contends that Ms. Preissig is ineligible on the grounds that vocational rehabilitation services may not reasonably be expected to render Ms. Preissig fit to engage in a gainful occupation.
Findings Of Fact Based on the stipulations of the parties, the exhibits admitted into evidence, and the testimony of the witnesses at hearing, I make the following finds of fact: The Petitioner, Ms. Janna Preissig, most recently applied for vocational rehabilitation services on January 17, 1984. Ms. Preissig applied for such benefits twice before, once in 1982 and once in 1983. Both of her prior applications were denied. Ms. Preissig is a 32-year-old, single, white, female with a long history of unsuccessful efforts at employment corresponding to a long history of mental problems. Her only period of regular employment was a three and one-half year period during which she was in the U.S. Army working as a supply clerk. She has obtained numerous other jobs from time to time, but is always fired after a short period of time due to her mental condition. Since childhood Ms. Preissig has suffered from severe mental problems. As early as age thirteen she was hospitalized for psychiatric problems for approximately one year. During the hospitalization she was subjected to at least 20 electrical shock treatments. She believes that some of her current problems are the result of the electrical shock treatments. Ms. Preissig has a long history of both inpatient and outpatient treatment for psychiatric disorders since her initial hospitalization at age thirteen. In addition to her difficulties in retaining employment, Ms. Preissig also has difficulties with social adjustment. She has a long history of vagrancy. Ms. Preissig has a long history of being uncooperative with treatment plans. She has been discharged from inpatient treatment because of disruptive conduct which interfered with the treatment of other patients. She has been suspended from outpatient treatment programs for breaking rules. She has a poor attendance record at outpatient treatment programs. She also has a negative attitude towards the treatment programs she has been exposed to and does not believe she is likely to receive any benefit from the treatment programs which have been recommended for her. Due to the nature of Ms. Preissig's mental condition and her uncooperative attitude towards the treatment which has been recommended for her and made available to her, the prognosis for significant improvement in her present condition is poor. Her present condition was summarized as follows by Dr. Michael C. Berg: She is at present, and previously, quite unable to hold gainful employment because of the presence of severe mental impairment, paranoia, which is long-standing and with a poor prognosis. Not only is she unemployable, but she lacks the basic living and social skills necessary for an independent life without some supervision, structure, and assistance with accommodation. This condition will not, in my opinion, significantly improve over the next 12 months. As a result of Ms. Preissig's current mental condition, which is not expected to improve over the next twelve months (and which may last much longer if she fails to cooperate with the treatment program), she is not fit to engage in a gainful occupation. Further, because of Ms. Preissig's current mental condition, vocational rehabilitation services would not render her fit to engage in a gainful occupation. The sine qua non to her ability to engage in a gainful occupation is some significant improvement in her current mental condition.
Recommendation On the basis of all of the foregoing, it is recommended that the Department of Health and Rehabilitative Services issue a Final Order denying Ms. Janna Preissig's application for vocational rehabilitation services. DONE and ORDERED this 18th day of October, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1984.
Findings Of Fact Petitioner, Harold Mayo, was employed by Respondent in March, 1987, through December 1, 1987. He has difficulty in controlling his emotions. He experiences rapid changes in mood. He has been diagnosed as suffering from a variety of mental disorders all of which have depression and rapid mood changes as part of their symptomatology. He often feels threatened by stressful situations, and sometimes responds to such situations by losing control of himself and crying as well as sometimes withdrawing from human contact. The Respondent, Advocacy Center for Persons With Disabilities, Inc., ("Center") is a private, non-profit organization which receives federal funds in order to provide advocacy for persons with disabilities. The Center has existed in its present, private status since October 1, 1988. Prior to October 1, 1988, the Center was a public agency within the Governor's office known as the Governor's Commission on Advocacy for Persons With Disabilities ("Commission"). The Commission was established in 1977, by executive order of the Governor. Since its creation, the Executive Director of the Commission (now the Center) has been Mr. Jon Rossman. Mr. Rossman is an attorney. Prior to becoming Executive Director of the Commission, Mr. Rossman worked as a staff attorney for the Association of Retarded Persons. The Center provides legal assistance to handicapped individuals, to ensure that they receive appropriate treatment and services by agencies designed to serve them. Specifically, the Center provides representation and advocacy under three programs: one program is designed to represent individuals with certain developmental disabilities defined by Congress. A second program is designed to represent individuals who are recipients of, or applicants for, vocational rehabilitation services from the state. A third program, the Mental Illness Protection and Advocacy ("MIP&A") program, is constituted to provide representation for mentally ill persons. The Center employs between 20 and 30 individuals. Each of the three programs administered by the Center is headed by a program director. The Center employs approximately six or seven attorneys, and several non-lawyer client "advocates." These jobs are supported by secretarial and clerical staff. Mr. Mayo had previously identified himself to Mr. Rossman as a former mental patient at a mental hospital, and therefore, as a "consumer" of mental health services. Mr. Mayo had indicated that he was interested in employment with the Center and in March 1987, Mr. Rossman offered employment in an OPS position to Mr. Mayo at the Commission. Prior to his employment Mr. Mayo had sought the Commission's assistance in dealing with the Division of Vocational Rehabilitation of HRS. At the time Mr. Rossman offered employment to Mr. Mayo, Mr. Rossman was aware that the Division of Vocational Rehabilitation had determined that Mr. Mayo was "not employable." Nevertheless, aware of this determination and of Mr. Mayo's status as a mental health consumer, Mr. Rossman offered Mr. Mayo employment and created an OPS position for him at the Commission. Mr. Mayo began his OPS employment with the Center on March 30, 1987. Mr. Rossman employed Mr. Mayo to assist the Center on two specific projects: a. to review applications which had been received by the Center for membership on an advisory committee; and b. to assist in organizing a conference to be sponsored by the Florida Mental Health Advocates Network. He was not hired to be a client-advocate and his OPS position did not include those duties. Mr. Mayo was assigned a space in a library/conference room in which to work. Mr. Mayo was only required to work as long as he felt able and comfortable in so doing; and was allowed to leave the office any time he felt threatened, to go home if he wanted, to talk to other employees and Mr. Rossman, to go outside and walk around in the parking lot, and to take breaks as he felt necessary when he experienced stress. He would sometimes lie on the floor and cry prior to getting back to work. There were times when Mr. Mayo took days off after experiencing a particularly emotional workday. Mr. Rossman spent entire days and afternoons talking things out with Mr. Mayo, walking around the office complex, and discussing his employment with him. These sessions occurred both in Mr. Rossman's office and in Mr. Mayo's. In short Mr. Rossman and other Center employees made a genuine, wholehearted effort to work with Mr. Mayo and went out of their way to accommodate him. There was absolutely no intent to unlawfully discriminate against Respondent due to his mental illness. In fact, the opposite was shown by the evidence. Mr. Rossman had a genuine desire that Respondent succeed as an employee. On two separate occasions, Mr. Rossman called Mr. Mayo's wife, concerned due to Mr. Mayo's depression and behavior, and expressed his concern and worry about Mr. Mayo's welfare to Mr. Mayo's wife. The contact on Mr. Rossman's part was a simple gesture of human concern for not only an employee but for a person who Mr. Rossman was very interested in his well-being. Instead Mr. Mayo took great umbrage at Mr. Rossman contacting his wife. He assumed that such contact was an affront to him and was treating him as if he could not take care of himself. On more than one occasion, Mr. Mayo tendered his resignation to Mr. Rossman. Mr. Rossman refused to accept the resignations. On several occasions, Mr. Rossman asked Mr. Mayo if Mr. Mayo would mind Mr. Rossman's speaking to Mr. Mayo's psychiatrist, in an effort to get his psychiatrist's opinions and suggestions on what Mr. Rossman could do to make Mr. Mayo's employment experience successful. On these occasions, Mr. Mayo responded that he was insulted by the request, and did not wish Mr. Rossman to contact his psychiatrist. Again, Mr. Mayo's over- sensitivity to attempts to gain insight into his handicap interfered with his ability to perceive the true intent of his employer in making such a request. Mr. Rossman did not contact Respondent' s psychiatrist. 1/ During his employment, Mr. Mayo frequently overstepped his bounds and overstated his position. This included contacting and writing letters to various persons and agencies, writing letters to the editor of publications, contacting "Nightline," and commenting on news articles, either on Commission letterhead or while identifying himself as an employee of the Commission. Mr. Mayo spent Commission time engaged in advocacy of his personal views which was not within the duties of the OPS position for which he had been hired. In April 1987, Mr. Mayo advised Mr. Rossman of his desire to be the Director of the MIP&A program, and further advised Mr. Rossman of his view that it was very important that the Director's position "should be occupied by a consumer, client or survivor." Mr. Rossman began to consider another individual, Kathleen Regan, for the position of Director of the MIP&A program.2/ Mr. Rossman sought Mr. Mayo's views on the matter. Mr. Mayo expressed his opinion that he thought Ms. Regan was incompetent for the position since she was a mental health professional and a middle management employee at HRS, rather than a consumer. Mr. Mayo told Mr. Rossman of a series of concerns he had should there be "such an incompetent source" running the program. He predicted, "it would all be downhill from now on." Ms. Regan was hired as the MIP&A Program Director effective August 1, 1987. As MIP&A Program Director, Ms. Regan would be Mr. Mayo's direct supervisor. At the time, Ms. Regan began, Mr. Rossman communicated to Ms. Regan that he strongly desired to see Mr. Mayo succeed in his employment at the Commission. He asked for her assurance that she would cooperate in that effort. She gave such an assurance. As the first director of the MIP&A program, Ms. Regan was responsible for developing program priorities, and developing a structure for the MIP&A program. Ms. Regan found that she had a number of people who had input into the development of such priorities and structure, including the Commission's Board of Directors, the Executive Director, the 24 members of the advisory committee, and Mr. Mayo. Ms. Regan attempted to integrate all that input into decisions on the direction and structure of the program. Ms. Regan found it difficult to integrate Mr. Mayo's own strong personal convictions about priorities and structure, but attempted to do so. Mr. Mayo and Ms. Regan had an extremely difficult time in their working relationship. As an example of the problems between Mr. Mayo and Ms. Regan, after it was agreed that they would meet for one-half hour, twice each week, to discuss Mr. Mayo's work, Mr. Mayo submitted a nine-item agenda for the first meeting. Ms. Regan, feeling that one-half hour was insufficient time to discuss so many items, asked Mr. Mayo if he would select two of the items for discussion. Mr. Mayo refused. The following day, Mr. Mayo again attempted to address the entire agenda, refused to select two items for discussion, and told Ms. Regan that he would not "play by her rules." These and subsequent meetings deteriorated,3/ and communications between Mr. Mayo and Ms. Regan broke down. Mr. Mayo told Ms. Regan that he did not consider her to be an advocate, but a "badvocate." Mr. Mayo would undertake work activities not assigned to him without first discussing them with Ms. Regan. On a number of occasions, Mr. Mayo would engage in some such activity, embarrassing Ms. Regan when she would get a call or communication from persons outside the Commission inquiring about Mr. Mayo's conduct, and she would be entirely unaware of his activities. Mr. Mayo and Ms. Regan experienced difficulties when Mr. Mayo sent out personal correspondence advocating personal views on Advocacy Center letterhead. This included correspondence sent by Mr. Mayo to Mr. Allen Tedder, Executive Director of the Mental Health Association of Florida. At least one such letter was sent on Commission letterhead even though Ms. Regan had specifically instructed Mr. Mayo to have the letter redrafted on non-Commission letterhead. Mr. Mayo and Ms. Regan had difficulties when Mr. Mayo refused to acknowledge that Ms. Regan had any right to approve or disapprove his travel requests. Part of Ms. Regan's supervisory duties was to review such travel requests. On another occasion, Mr. Mayo refused to submit his time sheets to Ms. Regan for approval. Again, part of Ms. Regan's supervisory duties was to review and approve employee time sheets. Likewise, when Ms. Regan told Mr. Mayo that he needed to route certain documents through her for signature, Mr. Mayo made an obscene gesture to Ms. Regan three times in the course of the morning. Ms. Regan told Mr. Mayo that his conduct constituted insubordination. His response was, "Fuck you." A frequent issue between Mr. Mayo and Ms. Regan was the issue of "partnership." Mr. Mayo asserted that he wanted to be viewed as an equal. Whenever Ms. Regan made a decision he didn't agree with, Mr. Mayo complained that she was violating her commitment to work with him, and was excluding him from the decision-making process. Ms. Regan received complaints from members of the advisory committee about Mr. Mayo. She also received verbal complaints from Martha Larson, Administrator of the hospital program at HRS. Ms. Regan heard from at least one outsider that Mr. Mayo was advocating against her as the program director. Ms. Regan reported these problems to Mr. Rossman. They met frequently in an effort to determine how best to resolve these difficulties. During his employment, people with whom Mr. Mayo had contact, outside the Center, complained directly to Mr. Rossman about Mr. Mayo's behavior and conduct. Many of these complaints were discounted by Mr. Rossman, who frequently defended Mr. Mayo against accusations being made about him. Inside the office, Mr. Rossman also received complaints about Mr. Mayo. There were complaints from other employees about difficulties working with Mr. Mayo, about shouting matches, about Mr. Mayo going through mail, about telephone calls he was making, and about representations made by Mr. Mayo outside of the office, regarding office policy. Mr. Mayo went directly to Mr. Rossman with his own complaints about Ms. Regan. At first, Mr. Rossman told Mr. Mayo that he did not want to get involved, and that Mr. Mayo and Ms. Regan should attempt to work the problems out themselves. However, the problems between Ms. Regan and Mr. Mayo worsened. Mr. Mayo repeatedly asked Mr. Rossman to take him out from under Ms. Regan's supervision. On September 9, Mr. Mayo submitted a written resignation in which he stated that he didn't feel his presence would serve any purpose "without direct involvement in policy matters." Mr. Rossman refused to accept Mr. Mayo's resignation. Instead, however, he agreed to Mr. Mayo's request that he (Mayo) not work under Ms. Regan's supervision. Once again, Mr. Mayo reported directly to Mr. Rossman. By September 9, the Governor had ordered that the Commission would become a private not-for-profit corporation effective October 1. Mr. Rossman was extremely busy making preparations for this transition and did not have the time to give Mr. Mayo as much individual attention as he had previously. The Commission's offices at that point were on two floors, Ms. Regan's office was on the first floor, and Mr. Rossman's office was on the second floor. This period was one of transition, and eventually, all the Center's offices were consolidated on the second floor. During the transition period, the office was very crowded. Mr. Rossman shared a corner of his office with his administrative assistant. Two lawyers shared the conference table at which Mr. Mayo had previously worked. Mr. Mayo was moved to a work location in an alcove outside Mr. Rossman's office on the second floor. When Mr. Mayo expressed concern about his ability to make the move, everyone in the office encouraged him, telling him that he was capable of making the move. Mr. Mayo made an attempt to change office locations. The new location did not work very well because Mr. Mayo felt exposed to other human beings. After September 9, Mr. Mayo continued to report to work each day, and was paid for a full eight hours. During this time Mr. Mayo invented work to do since Mr. Rossman did not have enough work to keep him busy. Following Mr. Mayo's being removed from Ms. Regan's supervision, Mr. Mayo continued to respond to matters that would be properly directed to Ms. Regan. He made calls about the MIP&A program around the state, criticizing the program and Ms. Regan, and again asserting his beliefs that the Center made a bad decision in employing her. As one example, Mr. Mayo, without authorization, contacted people to attend a consumer conference and invited a number of people to come on scholarship. Scholarship means that the Advocacy Center would pay that individual's expenses. No one at the Center (other than Mr. Mayo) had authorized the reimbursement for their expenses. A number of such people arrived without the registrar having any advance notice that they would attend. On another occasion, Mr. Mayo wanted certain individuals to be invited to attend a meeting between some of the staff and some of the members of the Board. Mr. Rossman advised Mr. Mayo that those individuals did not need to be involved. Nevertheless, Mr. Mayo insisted that the meeting was covered by the Sunshine Act, and that 11 members of the public were entitled to attend the meeting. On that basis, without asking permission, Mr. Mayo telephoned members of the advisory committee and invited them to this meeting. Since Mr. Mayo had been unable to work directly for the MIP&A program director, Mr. Rossman asked Mr. Mayo to prepare a job description for his position.4/ Mr. Rossman asked Mr. Mayo to advise him on how Mr. Mayo felt that he could be of use to the Advocacy Center. Mr. Mayo responded by typing out Respondent's Exhibit No. 6, asserting that he should be able "to advocate as a Consumer Consultant in whatever direction I choose (emphasis added)," and "as a Consumer Consultant to be kept up to date on all the workings of the MIP&A and to be involved as a consultant in that work." Following September 9, Mr. Rossman assigned Mr. Mayo the task of rewriting a report or contract which had been prepared by Ms. Regan. Mr. Mayo refused the assignment because of his view that it was "grossly unethical" to rework another person's work product. Although he refused to work on it, Mr. Mayo objected that Mr. Rossman "had refused to allow consumers any part in writing the contract and I could not speak for all consumers . . ." Shortly before October 8, 1987, Mr. Rossman was contacted by Allen Tedder, Executive Director of the Florida Mental Health Association, with a complaint about Mr. Mayo. Mr. Rossman replied to Mr. Tedder by letter dated October 8, 1987 stating that, as a mental health consumer, Mr. Mayo "apparently has less control over his personal feelings than might otherwise be expected," and further, that Mr. Mayo had undoubtedly "let his strong beliefs get ahead of him at times, overstating his position." Mr. Mayo was offended by Mr. Rossman's October 8th letter because of his view that while he had the right to identify himself to others as a person with difficulty controlling his emotions, Mr. Rossman, as a professional, had no such right. Mr. Mayo felt so "demeaned" by the letter that he cried uncontrollably, left the office, and spent the rest of the afternoon crying on the floor at his doctor's office. On October 21, Mr. Mayo left a copy of a memorandum from him to Dr. Schuchts, his psychiatrist, on the desks of both Mr. Rossman and Ms. Regan. In this memorandum, Mr. Mayo complained that he, as a consumer of mental health services, was being excluded from decision-making at the Center, and criticized advocates "who maintain [they] can speak for us." Outlining his opinions in his October 21 memorandum to Dr. Schuchts, Mr. Mayo listed as one of them: "To continue to disobey Jon and act upon my conscience. To attend meetings for which he refuses to "empower consumers and to openly submit reports from those meetings to him." Shortly before October 28, Mr. Gene Padgett, a close friend of Mr. Mayo's and a personal advisor to him, met Mr. Rossman for lunch. At lunch, they discussed Mr. Mayo's status, and Mr. Padgett encouraged Mr. Rossman to give Mr. Mayo a very definite set of guidelines within which to operate. On October 29, Mr. Rossman issued to Mr. Mayo a memorandum dated the previous day. The memorandum of October 28 began with a statement of the problems which had occurred and which Mr. Rossman felt required the setting forth of specific guidelines and limitations for Mr. Mayo's subsequent work activities. The memorandum then set forth specific assignments and guidelines for continued employment. The conditions were reasonable and nondiscriminatory. Mr. Rossman advised Mr. Mayo that he was expected to agree to the conditions if he was going to continue working for the Advocacy Center. Mr. Rossman's purpose in giving Mr. Mayo the memorandum of October 28 was an attempt to salvage Mr. Mayo's employment. By that time, Mr. Rossman had become convinced that excess independence and insufficient direction might be contributing to the problems with Mr. Mayo's employment. He believed that setting forth strict assignments and guidelines, as suggested by Mr. Padgett, might result in a productive work experience for Mr. Mayo. On October 29, Mr. Mayo was given the memorandum and told he must agree to its terms. Mr. Rossman had arranged for two other employees to witness the events of the meeting. Mr. Mayo asked if he could have a copy of the memorandum and if he could have until November 3 to take the document to his attorney. Mr. Rossman agreed to the request. Mr. Mayo left the office and did not return to work. Nothing in the meeting demonstrates any discriminatory purpose or intent on the part of the Center or Mr. Rossman. Mr. Mayo's claim that the presence of the two other employees was intimidating and therefore discriminatory is simply not born out by later events and Mr. Mayo's own actions. On November 10, Mr. Rossman received a letter from Mr. Richard Powers, a Tallahassee attorney, on behalf of Mr. Mayo. Mr. Power's letter indicated no willingness on Mr. Mayo's part to accept the conditions set out in the October 28 memorandum. The letter suggested a meeting to discuss the subject. On November 18, Mr. Rossman, Mr. Mayo, Mr. Parker Thompson (Board Member), and Mr. Powers met at Mr. Power's office. Mr. Mayo and his attorney insisted that Mr. Mayo be allowed to return to work without conditions. Mr. Mayo's return without conditions addressing the problems in the performance of his job was not acceptable to the center. On November 25, 1987, Mr. Rossman wrote to Mr. Powers, confirming Mr. Rossman's understanding that Mr. Mayo was insisting on a "return to work without any conditions," and reiterating Mr. Rossman's own position that Mr. Mayo could return to work "under conditions designed to address problems in his performance." Mr. Rossman agreed in the letter to hold Mr. Mayo's position open until December 1, 1987. Mr. Rossman did not hear further from Mr. Mayo or his attorney prior to, or following December 1, 1987. The only conclusion that can be drawn from Mr. Mayo's action or inaction is that he quit his employment with the Center when he determined that he was not going to be allowed to do as he pleased in his employment. In January 1988, following Mr. Mayo's departure, the Advocacy Center hired an individual, to fill the position of client advocate for the MIP&A program. The individual hired has a history of mental illness -- specifically, bipolar depression. Other than Mr. Mayo, the Commission/Center has employed a number of individuals with a variety of handicaps. The former Program Director for the Developmentally Disabled Program was a person with cerebral palsy who chose not to continue in employment with the Commission when it converted to private status. The Center's CAP Program Director is a wheelchair user, due to childhood polio. She has her desk up on blocks, high enough to accommodate her wheelchair. One of the Center's attorneys has epilepsy. A CAP client advocate for the Center is blind. Another Center employee has a hearing impairment. During his employment, Mr. Mayo was not able to accept supervision and was unable to work in the structured environment at the Center. There was no substantial evidence presented which establishes a nexus between Mr. Mayo's shortcomings and his mental illness. Without such evidence it is difficult to say what role Mr. Mayo's handicap played in his demise. A handicap does not entitle the individual to accommodation in areas unrelated to that handicap. Therefore, the evidence did not demonstrate any discrimination by the Center due to that handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petitioner's Petition be dismissed. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 6th day of December, 1989.
Findings Of Fact The Petitioner is the Department of Health and Rehabilitative Services. The Respondent is Elizabeth Joseph, licensed at all times pertinent to these proceedings to operate Jas Manor, an adult congregate living facility in Miami, Florida. Petitioner's employee, Elizabeth Baller, conducted an inspection of the Respondent's facility on September 18, 1986, and discovered seven persons in residence. This number of individuals exceeded the licensed capacity of Respondent's facility by one person. Ms. Baller recited the initials of those residents present in Respondent's facility on that date. Respondent's composite exhibit number 1, consisting of what are alleged to be copies of admission and discharge records, corroborates Ms. Baller's finding. The Respondent was not present at the facility at the time of this inspection. The failure of the Respondent to limit the capacity of the facility to no more than six residents posed a potential threat to the well-being of the residents. The existence of the deficiency finding was discussed with the Respondent by Baller via telephone on September 26, 1986. Ms. Baller did not visit Respondent's facility on September 24, 1986 and is without any direct personal knowledge that the number of residents in the facility on that date exceeded the licensed capacity. In the absence of such direct testimony, Petitioner exhibit number 1, alleged to be a statement of deficiencies issued by Petitioner, is not corroborative or credited with probative value as to the existence of any deficiency of the licensed facility on September 24, 1986. Petitioner exhibit number 1 does not conform to the statutory requirements for a class III deficiency citation as specified in section 400.419(3)(c), Florida Statutes, in that the exhibit fails to set forth the time within which the deficiency is to be corrected. Ms. Baller conducted a follow up visit on November 21, 1986, which, she contends, revealed seven residents in the facility, and a continuation of the violation cited previously in September. This contention of Ms. Baller is not supported by the weight of the evidence. Respondent's denial of the continuation of the deficiency at that time is supported by the testimony of Christine Sassone who regularly visits the facility on behalf of the church attended by her and Respondent. Ms. Sassone works with the residents of Respondent's facility, teaching arts and crafts there every evening, Monday through Friday, from 3:30 or 4 P.M. until 8:30 or 9:00 P.M. She was present at the facility on September 18 and November 21, 1986. She attests that there were only six residents present on either occasion. It is her testimony that individuals in excess of the licensed capacity on both of the dates in question may have been visitors from a neighboring facility known as the "Vet's Nest" which abuts Respondent's property. While discounting Sassone's unsupported testimony regarding the number of residents present on September 18, 1986, her testimony and that of the Respondent establish the fact that only six residents were present at the time of the follow up visit by Baller. Notably, Respondent's exhibit number 1 which supported the Petitioner's finding of seven residents in Respondent's facility on September 18, 1986, corroborates the testimony of Respondent and Ms. Sassone establishing that such deficiency was cured by November 21, 1986. The evidence fails to establish that the violation of Respondent discovered on September 18, 1986, was a repeat offense. It is found that the offense was not a repeat offense.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the Department of Health and Rehabilitative Services enter a final order finding the commission of a class III violation by Respondent, but assessing no civil penalty for the violation. DONE AND RECOMMENDED this 11th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX The following constitutes my specific rulings on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Included in findings 2 and 3. Included in finding number 3, except for the last sentence relating to the visit of November 21, 1986. This sentence is rejected as not supported by the weight of the evidence. Included in finding number 3 and 9, except for the last sentence which is rejected. Rejected as unnecessary. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 N.W. 167th Street Miami, Florida 33014 Elizabeth Joseph Administrator Jas Manor 645 N.E. 131st Street North Miami, Florida 33161 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire Department of Health and Rehabilitative Serviced 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should grant Petitioner an exemption from disqualification from working in a position of special trust with developmentally disabled persons.
Findings Of Fact On April 13, 1987, Petitioner was convicted of a second degree felony in the Circuit Court of Gadsden County, Florida, for selling cocaine, a controlled substance as defined by Section 893.03, Florida Statutes, contrary to Section 893.13, Florida Statutes. Petitioner was sentenced to serve 21 days in jail, with credit for 21 days served. She was placed on two years' probation. Petitioner failed to comply with the terms of her probation. Specifically, she failed to report to her probation officer, she changed her residence to Leon County without the consent of her probation officer, and she failed to pay any of the costs assessed as a result of her April 13, 1987, conviction. The Circuit Judge of Gadsden County issued a warrant for Petitioner's arrest on September 24, 1987. On April 13, 1988, Petitioner was convicted of the following in the Circuit Court of Leon County, Florida: (a) selling cocaine, a second degree felony, contrary to Section 893.13, Florida Statues; (b) possession of cocaine, a third degree felony, contrary to Section 893.13(1)(e), Florida Statutes (1987)1; and (c) possession of drug paraphernalia, a first degree misdemeanor, contrary to Section 893.147, Florida Statutes. Petitioner was sentenced to 93 days of time served in the Leon County jail and placed on community control for one year to be followed by four years of probation. Petitioner's sentence to community control included commitment to an inpatient drug treatment program. Conditions of her probation required drug counseling and random urinalysis for drug screening. On May 24, 1988, the Circuit Court Judge in Gadsden County revoked Petitioner's probation pursuant to an amended affidavit for violation of probation. The amended affidavit charged Petitioner with failing to remain at liberty without violating any law. Petitioner was subsequently sentenced on her April 13, 1887, conviction to a term of 30 months with a recommendation that she receive drug counseling and treatment. Petitioner received treatment for substance abuse in 1988 while serving her sentences for the above-referenced convictions. She admits that she occasionally continued to use drugs during her subsequent probation. She had a positive urinalysis as late as 1992. Petitioner's probation was terminated in 1993. She has had no urinalysis to test for substance abuse since that time. Petitioner is 35 years old. She has three children, aged 19, 18, and 6. The middle child is developmentally disabled due to spinal meningitis. Petitioner married the father of the youngest child in 1996. She currently lives with her husband, her disabled 18 year-old child, and her six year- old child in Leon County, Florida. Petitioner became interested in working with developmentally disabled persons because of her middle child's disability. She received her general education diploma in 1995. She is currently working on an Associate of Arts degree at Kaiser College in two areas: Health Service Administration and Medical Assistance. Petitioner worked at Tallahassee Developmental Center as a training instructor from February 1999 through April 1999. Her work included providing personal assistance with bathing and feeding of developmentally disabled clients. Petitioner left this job so that she would be free for her church ministry on Sundays. From April 1999 through September 1999, Petitioner worked in a day care program for developmentally disabled clients at Pyramid, Inc. Her work included collecting data, feeding and changing clients, walking clients, and assisting clients with skill modules. Petitioner was placed on administrative leave from this job because she did not pass the background screening required for direct care providers by Section 393.0655, Florida Statutes. However, Petitioner is eligible to return to her position at Pyramid, Inc., pending receipt of exemption from disqualification pursuant to Section 435.07, Florida Statutes. After leaving her job with Pyramid, Inc., Petitioner worked on-call for one month providing in-home personal care for Human Resources Development. She is currently unemployed. Petitioner's career goal is to start her own business working with developmentally disabled persons. She wants to be qualified to manage a professional office like the one at Pyramid, Inc., and to provide direct care to clients on an as- needed basis. Petitioner has been a member of the Holy Community Church for six years. She is now a minister/evangelist for her church having spent one year in the field as a missionary to other churches. Petitioner's work within her church includes founding a program known as Second Chance Outreach Ministry. The purpose of the program is to assist alcoholics and drug addicts. The program currently has about twelve active participants. The program sponsors a food bank and clothes closet for addicts. At the time of the hearing, Petitioner was working on raising money to help participants in the Second Chance Outreach Ministry pay rent. She was also working on a project to feed the homeless on February 19, 2000, at the shelter in Leon County, Florida. She hoped to raise enough money through donations to provide the homeless with clothes and blankets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue The issue is whether the Florida Department of Education (“the Department”) committed one or more unlawful employment practices against Petitioner (“Ms. Spradlin”) by discriminating against her based on race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Spradlin worked from 2006 to 2010 as a psychological specialist at a facility known as Sunland in Marianna, Florida. Ms. Spradlin is Caucasian. During a portion of the time that Ms. Spradlin was at Sunland, Tawana Gilbert worked there as a human service administrator. Ms. Gilbert is African-American. Ms. Spradlin and Ms. Gilbert did not work closely together, but they served on the same interdisciplinary team and worked with the same residents. Ms. Gilbert’s only knowledge of Ms. Spradlin was through the documentation that Ms. Spradlin submitted to the interdisciplinary team. Ms. Gilbert left Sunland in approximately November of 2009, and began working for the Department as a unit supervisor for a vocational rehabilitation services unit in Marianna, Florida. Vocational rehabilitation assists people by providing them with services that enable them to obtain and maintain gainful employment. During the time period relevant to the instant case, the Marianna unit had 10 staff members and served five counties. Of those 10 staff members, five were counselors and one was the unit supervisor. At some point after Ms. Gilbert left Sunland, Ms. Spradlin saw an advertisement for an entry level vocational rehabilitation counselor position at the Marianna unit. Ms. Spradlin applied for the position and was hired in 2010. In March or April of 2011, Ms. Gilbert invited all of her coworkers to a special event at her church. Ms. Gilbert asked her coworkers with children if their child would like to participate in a program that was to be part of the festivities. Ms. Spradlin said that her daughter was willing to participate, and Ms. Gilbert typed out the words that Ms. Spradlin’s daughter was to recite during the program. When it was time for Ms. Spradlin’s daughter to recite her part, she became nervous, and her grandmother read the part. Following this event, Ms. Spradlin asserts that Ms. Gilbert’s attitude toward her changed and that the unlawful employment practices alleged in her Charge of Discrimination began. Findings Regarding Ms. Spradlin’s Interviews for Senior Counselor Positions There were two openings for senior vocational rehabilitation counselors at the Marianna unit in October of 2012.1/ When the Department is considering applicants for a particular position, it utilizes a three-person panel to conduct interviews and score the applicants. After the interviews, the three-person panel reaches a consensus as to each applicant’s scores, and the Department uses a standardized matrix to rank each applicant. The panel for the two senior vocational rehabilitation counselor openings consisted of Allison Gill, the Department’s area supervisor; Michael Nobles, the former supervisor of the Marianna unit; and Ms. Gilbert. Ms. Gill and Mr. Nobles are Caucasian. Of the five people who interviewed for the two openings, Ramonia Robinson earned the highest score, a 72. With regard to Ms. Robinson’s qualifications, Ms. Gilbert testified as follows: Ms. Robinson, she was a current employee there. She was an entry-level counselor, had been for many, many years. She was there prior to my hiring with VR, so I was familiar with her work history. And she was very thorough, very detailed, very flexible, and very unemotionally involved with her cases. So she, in conducting her cases and case management, was awesome. And she was very knowledgeable about the questions that were being asked. She had had a long history of experience with case management, providing services to individuals with disabilities, and just adequately managing her caseload. She did very well on her interview. Ms. Spradlin received the second highest score, a 56. Keith Sutton, an outside applicant, received a score of 55. When two applicants’ scores are within one point of each other, the Department bases the ultimate hiring decision on reference checks. Ms. Gilbert contacted Mr. Sutton’s references and received positive feedback about him. As for Mr. Sutton’s qualifications, Ms. Gilbert provided the following testimony: Q: What about Mr. Sutton’s experience, resume was notable to you in the interview process? A: Well, he had his degree. It’s directly related to the field of counseling. He had a wealth of experience in the counseling field. He came to us from the Agency for Persons with Disabilities, which is Sunland, where he had a year there, and he met at least the minimum qualifications. He was very – his application was very detailed, and it identified precisely his experience based on his ability to – or his experience with providing counseling, providing services for those with disabilities. And he had a long history from where he had previously worked in the field of counseling. Q: Okay, so Mr. Sutton achieved a Master’s in Counseling in 2011, is that correct, according to his application? A: Yes. Q: And that’s directly related to the position; is that correct? A: Yes, that’s correct. Q: And he had experience as a master’s level therapist? A: Yes. Q: Is that accurate, according to the application? A: Yes. He worked for Florida Therapy as a master’s level therapist, where he was expected to provide counseling, psychotherapy to children, adults and their families, but doing so on an independent basis. That demonstrated he was very flexible, detailed oriented and [had] the ability to function independently. Because she was Ms. Spradlin’s supervisor at the time, Ms. Gilbert acted as her reference and did not recommend her for a senior counselor position. In explaining her reasoning, Ms. Gilbert testified that: Ms. Spradlin was difficult to work with and she was very negative. She had several participant complaints during the span of [] that year. In her first year coming in, she was very challenging, she did not want to accept constructive criticism from me as the unit supervisor. She did not want very – she wanted very little feedback from me based on her performance. Several participant complaints, calling me directly, contacting the ombudsman, faxing me complaints based on their interaction with Ms. Spradlin, how they felt that they were being treated unfairly, they did not agree with her tone from time to time. She was not at all culturally sensitive to some of our participants. She was insubordinate. She would – there were times she would just leave the unit because things – conditions were unfavorable to her. Ms. Gilbert submitted her recommendation to the Department’s area director, and Mr. Sutton was ultimately offered a senior counselor position. Mr. Sutton is currently the supervisor of the Marianna unit. There is no persuasive evidence that Ms. Spradlin was not promoted because of her race or any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding that Ms. Robinson and Mr. Sutton were more qualified for the openings. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of applicants for the two openings discussed above. In May of 2016, Ms. Spradlin applied for another senior counselor position in the Marianna unit. The interview panel for this opening consisted of Ms. Gilbert and two other Department employees, Evelyn Langmaid and Rebecca Stevens. Ms. Langmaid and Ms. Stevens are Caucasian. Ms. Gilbert did not supervise Ms. Langmaid or Ms. Stevens, and she did not attempt to influence their decision-making. Georgia Britt received the highest score from the interview panel and was offered the senior counselor position. Ms. Langmaid described Ms. Britt’s interview as follows: She just came in and every answer we’d or every question that we gave her she was just right on with the answers and [was] hitting the points on the – because we have sort of like a little sheet that we can look for certain points that we’re looking for answers, and she was just right on every point, and was very, very knowledgeable of what was going on. Ms. Spradlin had obtained a certified rehabilitation counseling certification in October of 2014, and Ms. Britt lacked that certification. However, Ms. Britt’s other credentials bolstered her application. For instance, she has a bachelor’s degree in elementary and special education and a master’s degree in counseling. Ms. Britt also had relevant work experience. When she applied for the senior counselor position, Ms. Britt was employed at Sunland as a behavior specialist working with adults with developmental disabilities. Ms. Britt wrote in her application that she had been able to “work with all different types of individuals at all intellectual levels” via her position at Sunland. Prior to working at Sunland, Ms. Britt had worked in a children’s psychiatric hospital in Dothan, Alabama. That position also gave her an opportunity to work with individuals from diverse backgrounds. Ms. Britt wrote on her application that her position at the hospital required her to engage in some counseling and that she had to use counseling skills in order to obtain psychiatric histories and other information. Ms. Britt’s interview bolstered her application. According to Ms. Langmaid, Ms. Britt “blew it out of the water. She was fantastic on the interview.” Ms. Gilbert was also very complimentary of Ms. Britt’s interview: Q: What about Ms. Britt stood out to you and the panel? A: Her ability to respond to the questions as they were being asked. At that time, we were transitioning to where we were asking more emotional [intelligence] questions where – to identify a counselor’s ability to emotionally manage cases and refrain from being emotionally involved with that case. So she answered the questions. It’s on ones that can give a thorough answer based on the circumstance that occurred, the actions that took place and the results of the question. Q: Okay. A: She was really, really thorough with her answers. There is no persuasive evidence that Ms. Spradlin did not receive the promotion because of her race or due to any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding Ms. Britt was more qualified for the opening. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of Ms. Britt. Findings Regarding Ms. Spradlin’s Hostile Work Environment Allegations Ms. Spradlin made several allegations during the final hearing that she was subjected to a hostile work environment during her time with the Marianna unit.2/ For example, in October of 2010, Ms. Spradlin exposed at least part of her posterior to a coworker in the Marianna unit in order to demonstrate the severity of a sunburn. Ms. Gilbert did not learn of that incident until another incident was reported to her on May 2, 2011. That day, Ms. Spradlin was seated in an office within the Marianna unit when a female coworker got very close to Ms. Spradlin and “twerked” in her face. Ms. Spradlin states that she placed her hands on the coworkers posterior and playfully pushed her away. However, the coworker reported to Ms. Gilbert that Ms. Spradlin had pinched her posterior. Upon learning of both incidents, Ms. Gilbert discussed them with Ms. Spradlin and conferred with the Department’s labor relations unit on formulating a proper course of action. With input from the labor relations unit, Ms. Gilbert issued a counseling memorandum to Ms. Spradlin on October 4, 2011.3/ The counseling memorandum4/ read in pertinent part as follows: You are being issued a Counseling Memorandum for your violation of Rule 60L- 36.005(2)(f)(1), Florida Administrative Code (F.A.C.), Conduct unbecoming a public employee. On October 12, 2010, you signed the Department’s Acknowledgement Form stating you received copies of the policies and rules of the Department. Please be aware that you are expected to abide by all Standards of Conduct as stated in 60L- 36.005, F.A.C. On May 2, 2011, you violated the following rule and policy: Rule 60L-36.005(2)(f)(1), F.A.C., requires that “Employees shall conduct themselves, on and off the job, in a manner that will not bring discredit or embarrassment to the state. Employees shall be courteous, considerate, respectful, and prompt in dealing with and serving the public and co-workers.” On May 2, 2011, it was reported by one employee that you pulled your pants down exposing your buttocks and “mooned” that employee. Another employee informed me that on that same day you pinched her on her buttocks. After I was told about these incidents that day, I counseled you and informed you that this was inappropriate behavior and it was explained that your actions were unacceptable. This type of conduct is not conducive to a satisfactory work environment. Your conduct has adversely impacted the morale and efficiency of your unit and the Department, is detrimental to the best interests of the state and Department, and adversely affects your effectiveness with the Department, as well as your ability to continue to perform your job. This behavior must cease immediately. Should you continue conduct unbecoming a public employee, disciplinary actions, up to and including dismissal may be taken. Ms. Spradlin signed the counseling memorandum on October 4, 2011, and added the following comments: These two incidents happened on [sic] different persons. The incident w/ “mooning” was with [a] coworker after I incurred a severe sunburn. It was done only to show my burns not to offend her. She sobbed – I was not wearing pants – skirt instead. On the second occasion w/co-worker E.R. she put her buttocks in my face, playing around, & I pinched it as if to express my willingness to play as well. It was provoked – not done in an offensive manner. I understand that this type of behavior is not accepted in my work environment. They were done in a playful uplifting manner, not intentional. However, I will refrain from this behavior as I have obviously offended my colleagues. Another allegation of disparate treatment concerned an incident with a Department client named B.H., who Ms. Spradlin assisted with enrolling in nursing school. B.H. arrived at the Marianna unit one day without an appointment and reported that he wanted to do something other than nursing. Ms. Spradlin asserts that B.H. got aggressive when his requested changes could not be accomplished immediately. Ms. Spradlin further asserts that she became afraid, threatened to call 9-1-1, and managed to get past B.H. and into the hallway outside her office. Ms. Gilbert heard the commotion and called the police. By the time the police arrived at the Marianna unit, B.H. was very calm, and Ms. Gilbert concluded there had been no need to call law enforcement. While Ms. Spradlin asserts that she became an object of ridicule in the Marianna office for overreacting, Ms. Gilbert asserts that she was ridiculed for failing to give the address of the Marianna office when she called 9-1-1. As another example of disparate treatment, Ms. Spradlin cites an incident on November 14, 2013, involving a cigarette butt. Ms. Spradlin was in Ms. Gilbert’s office and dropped a cigarette butt into a trashcan. According to Ms. Spradlin, Ms. Gilbert demanded that she remove the cigarette butt and forced Ms. Spradlin to search through used tissues for the cigarette butt. Ms. Gilbert acknowledged that she asked Ms. Spradlin to remove the cigarette butt from the trashcan, but she credibly denied berating Ms. Spradlin or yelling at her. According to Ms. Gilbert, Ms. Spradlin was able to quickly remove the butt from the trashcan and was not upset about having to do so. Ms. Spradlin made several other allegations about how Ms. Gilbert gave African-American employees in the Marianna unit preferential treatment. For example, Ms. Spradlin alleges that she was required to handle more cases and incur more travel than her African-American coworkers. With regard to her travel reimbursements, Ms. Spradlin alleged that Ms. Gilbert refused to account for all the miles she traveled. Ms. Spradlin further asserts that Ms. Gilbert subjected her to disparate treatment by requiring her to maintain more documentation of her daily activities, inundating her with e-mails inquiring about the status of her work, and being less lenient regarding Ms. Spradlin’s use of flex and leave time. Ms. Gilbert testified that she has never denied a request for annual leave and that she approved the majority of Ms. Spradlin’s requests for flex time, even though Ms. Spradlin did not follow the proper procedure for making such requests. As for the other allegations mentioned above, Ms. Gilbert credibly testified that she did not subject Ms. Spradlin to any disparate treatment. Finally, Ms. Spradlin alleges that Ms. Gilbert unfairly administered a system by which counselors within the Marianna unit shared their successful cases with African- American counselors who had fewer successful cases. This system was implemented because counselors within the Marianna unit were expected to have a certain number of successful cases. Ms. Gilbert credibly denied that the system was administered unfairly: Q: Ms. Gilbert, do you ever ask counselors to donate their successful cases or case numbers to other counselor? A: I never asked counselors specifically to do that. I did discuss it with the unit, with our team as an option. Q: Okay, and why would that be an option they may want to do? A: Well, the way Vocational Rehabilitation operates is a person has to be on their job a minimum – a minimum of three months, okay, 90 days, to consider that person as successfully rehabilitated. And that was a measurement. That was an expectation on each counselor’s performance evaluation, that they had to get so many successful rehabs within one year. So someone that’s being hired and coming to Vocational Rehabilitation in the middle of the year, they don’t have that opportunity to monitor that person for 90 days, if they don’t already have someone that’s in that employment status ready to begin monitoring. So it’s difficult. But I did not want that to be a negative reflection of a counselor that’s really trying and that’s working their caseload and trying to get their successful rehabs. So I would ask counselors once they’ve received all of their rehabs and they close enough people successfully that allows them to get the most maximum score that they can get on their evaluation, I would ask them if they wanted to, share those rehabs with someone that’s probably a new counselor or that’s just having a difficult time with obtaining their successful rehabs. Q: Okay. And so Mr. Sutton’s first year, might he have received some successful numbers donated to him from other counselors? A: That is a possibility. Q: Okay. Did Ms. Spradlin ever receive any successful numbers donated to her when she had a lower number? A: Yes. * * * Q: Okay. And so that number of successes or successful rehabilitations is important to counselors? A: Absolutely. Q: Because they are – are they evaluated on that each year in their yearly performance evaluation? A: Yes. Each level of counselor, if you’re an entry-level counselor, your first year you may be expected to get five. Those numbers are prorated. So the cutoff period is last business day of June, so if you have a new counselor that starts in February or March, they’re at a disadvantage, they don’t have the time. Time works against them. But if they are involved with their cases and they are trying to work their cases, I felt that it was only reasonable to assist them. * * * Q: Okay, so you said that Ms. Spradlin would have received a donation of successful cases maybe early on in her career? A: Yes. Q: Did she donate cases once she became a more proficient counselor? A: I’m pretty sure she did. Q: And did you specifically ask her to donate cases to any particular employee? A: No. Ms. Spradlin resigned from the Department on August 10, 2016. There is no sufficiently persuasive evidence to support Ms. Spradlin’s disparate treatment claims. The greater weight of the evidence demonstrates that Ms. Spradlin was not subjected to any disparate treatment during her tenure in the Marianna unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of July 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July 2018.
Findings Of Fact Based upon the evidence presented, I submit the following: Patricia R. Franks was employed at Tampa General Hospital on November 14, 1988 and discharged August 7, 1989 for the stated reason of "continued rendering of unsatisfactory service after instruction and counselling for neglect of duty or failure to perform assigned duties." (Exhibit 2) Petitioner was admitted to Tampa General Hospital as an inpatient on July 20, 1989 with polycystic kidney disease (Exhibit 3) and discharged July 28, 1990 with instructions she would be able to return to work August 8, 1989. (Exhibit 3) During the period between December 27, 1988 and August 7, 1989, Petitioner had the following absences: December 27, 1988 - called in sick December 29, 1988 - called in sick March 29, 1989 - called in sick April 27, 1989 - May 2, 1989 - called in sick May 28, 1989 - called in sick June 24, 1989 - July 5, 1989 - called in sick July 20, 1989 - August 7, 1989 - sick. Following the absence in April 1989, Petitioner was given a verbal warning regarding the hospital policy that over four absences or tardiness within a twelve months period was considered excessive and subjected the employee to disciplinary action. Following the May 28, 1989 absence, Petitioner was given a written warning. Another written warning was given Petitioner following the absence ending July 5, 1989. In her six months evaluation given 5/01/89, Petitioner received only one unsatisfactory mark but received only 49 points out of a maximum of 136 for an average of 1.167 points out of a maximum average of 3. Under this scoring unsatisfactory performance received 0 points, effective received 1 point, frequently exceeds received 2 points, and consistently exceeds received 3 points. (Exhibit 4) In June 1989, Petitioner was counseled concerning inconsistences in ordering supplies, reports were received from floor nurses concerning Petitioner's excessive length of "breaks", and on one occasion Petitioner was seen smoking on the balcony, in a non-smoking area. Petitioner testified she was unaware this was a non-smoking area and did not repeat this infraction. During the period Petitioner was hospitalized in late July, she requested permission to work between the time she needed to be in her room for treatment. This request was denied. Petitioner offered the testimony of a former employee of the hospital who was allowed to work in the lab between the time she needed to be in her room for her insulin tests. No employee who was in an infectious state, such as was Petitioner while an inpatient, had ever been permitted to work on the wards at Tampa General Hospital. In her Petition alleging discrimination Petitioner acknowledges that she missed six weeks of work in a three months period.
Recommendation It is recommended that the charge of discrimination by reason of handicap filed by Patricia R. Franks against Hillsborough County Hospital Authority, be dismissed. ENTERED this 3rd day of July, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1991. COPIES FURNISHED: Patricia R. Franks 11212 Garfield Court Seffner, Florida 33584 E. John Dinkle III, Esquire P.O. Box 1427 Tampa, Florida 33601 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Margaret Jones Agency Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue The issue to be resolved in this proceeding concern whether the Respondent has been discriminated against on account of her handicap or disability in connection with her termination of employment, in alleged violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Teresa Cavanaugh, was employed by Sprint from 1985 through 2000. During 1999 and 2000, Ms. Cavanaugh held the position of Technical Analyst I, assigned to the Carrier Market’s department at Sprint’s National Access Service Center in Leesburg, Florida. In this position, Ms. Cavanaugh was responsible for assuring that orders for the use of Sprint’s local telephone lines by long distance carriers such at AT&T were processed correctly. Ms. Cavanaugh’s immediate supervisor in this position was Robert Whittaker, the Customer Access Manager. Mr. Whitaker’s immediate supervisor was Jackie Picard, the National Customer Service Manager. On August 26, 1999, the Petitioner was arrested in Marion County, Florida and charged with two third-degree felonies involving obtaining a controlled substance by fraud and possession of a controlled substance. The Petitioner informed Sprint’s house counsel, Susan Stucker, of her arrest on August 31, 1999. Ms. Cavanaugh explained the arrest to Ms. Stucker and Ms. Stucker informed Ms. Cavanaugh that she needed to report the arrest to her supervisor. Ms. Stucker also told the Petitioner that as long as the arrest was not related to work, she would be permitted to continue working for Sprint until such time as there was a disposition of the charges. After speaking with Ms. Stucker, the Petitioner informed Mr. Whitaker of her arrest. The Petitioner testified that Ms. Stucker informed her, in the above-described conversation, that her job would not be affected as long as adjudication was withheld with respect to the criminal charges. Ms. Stucker, however, denied telling that to Ms. Cavanaugh and instead testified that she would never have made such a statement because, pursuant to Sprint’s unwritten policy, convictions for or pleas to felony charges are terminable offenses, regardless of whether adjudication is withheld. Ms. Stucker also told the Petitioner that Sprint’s policy was to that effect in a subsequent conversation. This dispute in testimony is resolved in favor of that given by Ms. Stucker because of the respective demeanor of the witnesses and Ms. Stucker’s undisputed testimony that on at least two other occasions she approved terminations of persons who pled nolo contendere to felony charges. Her testimony was corroborated by documentation regarding the nolo contendere plea of one of the persons whose employment was terminated, Wilson Hinson. In fact, as with Ms. Cavanaugh, Mr. Hinson’s records demonstrate that the court withheld adjudication of guilt regarding the charges against him. Several weeks later, on Friday, September 17, 1999, the Petitioner sent an e-mail to Mr. Whitaker expressing that she was "losing control of her mind," was "spinning out of control," felt "helpless and desperate," was "going over the edge," and needed "some serious help." The Petitioner indicated also that she had an "overwhelming sense of helplessness and hopelessness." Ms. Cavanaugh stated in her e-mail, and in testimony at the hearing, that prior to this incident, she never had felt this way. She further testified that she had no prior history of mental illness. After reading the Petitioner's e-mail, Mr. Whittaker became concerned that Ms. Cavanaugh could be a threat to herself or to co-workers. Based upon this concern, he shared the e-mail with Ms. Picard, and both Mr. Whittaker and Ms. Picard informed the Human Resources Department of Sprint of its contents. Mr. Whitaker, Ms. Picard and Colby Gilson, the Manager of Employee Relations, developed a plan whereby the Petitioner would be placed on paid "crisis leave" and referred to Sprint's Employee Assistance Program (EAP) for evaluation as to her ability to safely perform her job. Mr. Whittaker informed the Petitioner that she was being placed on leave and referred to EAP on the morning of her next scheduled work day, Monday, September 20, 1999. After meeting with Mr. Whittaker, the Petitioner was placed on leave and evaluated by the EAP. The Petitioner informed the psychiatrist who was evaluating her as part of the EAP process that her mood had improved after being placed on leave. The Petitioner was cleared to return to work on a part-time basis in late December 1999 or early January 2000. She was allowed to return to a full-time schedule in late January 2000. On or about June 27, 2000, the Petitioner, on her own initiative, commenced a short-term disability leave. Because the leave was for an alleged mental condition, the Petitioner was asked to undergo an independent medical examination (IME) pursuant to Sprint's standard policy of verifying leaves for conditions that are difficult to review through objective medical evidence (e.g., mental conditions and soft tissue injuries). The Petitioner underwent the IME, which confirmed her need for leave. The Petitioner then remained on leave until October 17, 2000, at which time she returned to work on a part- time basis. She resumed a full-time schedule approximately one week later, on October 23, 2000, with no restrictions on her ability to work. Due to the amount of leave the Petitioner had taken to date, during September and October 2000, Sprint's Benefits Department in Kansas City sent the Petitioner two letters informing her regarding the availability of long-term disability benefits and disability retirement benefits, respectively, should she wish to apply for them. These letters were sent out pursuant to the Benefits department's standard practice of notifying employees who have been out comparable periods of time of the availability of such benefits so as to minimize the potential lapse in benefits should an employee exhaust all of his or her short-term disability leave. After her return from leave, on or about October 31, 2000, the Petitioner told Mr. Whittaker that she was taking what she believed to be a very strong prescription that had been given to her by her doctor. Mr. Whittaker consulted with Mr. Gilson as to whether he needed to take any action in response to this information. Mr. Gilson informed Mr. Whittaker that he should require the Petitioner to provide a note from her doctor indicating whether or not she could continue at work while taking the medication. Mr. Whittaker followed Mr. Gilson's directions and requested that the Petitioner provide a note from her doctor. She submitted such a note to Mr. Whittaker on November 2, 2000. According to that note, the Petitioner was cleared to work with no limitations or restrictions, "as long as she participates in treatment and maintains compliance with medications and scheduled appointments." The Petitioner has not established how any major life activities have been substantially limited by any alleged mental condition. On or about November 29, 2000, the Petitioner informed Mr. Whittaker that her probation officer would be calling him to verify that she worked at Sprint and was coming to work on a regular basis. According to Whittaker, at no time prior to that conversation had the Petitioner informed him of any final disposition of the felony charges filed against her. Mr. Whittaker informed Mr. Gilson of this conversation, and Gilson then asked Stacy Smith, a security investigator, to contact the court in Marion County to determine whether there had been any final disposition of the charges lodged against the Petitioner in August 1999. Mr. Smith, who as part of his regular job duties had been tracking the proceedings against the Petitioner and other Sprint employees subject to criminal charges, contacted the Marion County Clerk's office which provided documents showing that, in October 2000, the Petitioner pled nolo contendere to the two felony charges. The documents Mr. Smith received also showed that the court had withheld adjudication on the basis of that plea. The information Mr. Smith received from the court ultimately was provided to Mr. Gilson, Ms. Stucker, Mr. Whittaker and Ms. Picard. Based upon Sprint's unwritten policy regarding terminations for felony convictions or pleas, Mr. Whittaker recommended the termination of the Petitioner's employment. Ms. Picard concurred with Mr. Whittaker's recommendation, as did Picard's immediate supervisor, Krystal Barr. Mr. Whittaker's recommendation was reviewed by Ms. Stucker, Mr. Gilson, and David Sapenoff, Mr. Gilson's immediate superior. Each of these individuals concurred in the decision to terminate the Petitioner’s employment. On the basis of Mr. Whittaker's recommendation, and the above-mentioned concurrences, the Petitioner's employment was terminated on December 14, 2000. Although the Petitioner claims that she was never told the basis for her termination, both Mr. Whitaker and Ms. Picard testified that the Petitioner was told that she was terminated because of her felony plea. This dispute in testimony is resolved in favor of that of Mr. Whittaker and Ms. Picard, given both the respective demeanor of the witnesses and the fact that the records of the Florida Department of Labor and Employment Security indicate that the Petitioner stated in an interview, regarding her entitlement to unemployment compensation benefits, that she was terminated because of her felony conviction.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations denying the Petition in its entirety. DONE AND ENTERED this 9th day of February, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2004. COPIES FURNISHED: Teresa Cavanaugh 3010 Northeast Seventh Lane Ocala, Florida 34470 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Patrick M. Muldowney, Esquire Akerman Senterfitt Post Office Box 231 Orlando, Florida 32802-0231 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
