The Issue The issue is whether Grand Boulevard Health and Rehabilitation, d/b/a FL HUD Destin, LLC (“Grand Boulevard”), committed an unlawful employment practice by discriminating against Angela D. Jones based on her race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: Ms. Jones is a 49-year-old African American female. She has a high school degree and earned certifications or licenses enabling her to work as a certified nursing assistant (“CNA”), a home-health aide, a cosmetologist, and a security guard. However, healthcare has been her primary field of work. 2 Ms. Jones stated during the final hearing that she had transmitted to DOAH an audio recording made by Mr. Manning and that she had intended to move that audio recording into evidence. The audio recording was not received by DOAH. Nonetheless, the undersigned has determined that no prejudice resulted to Ms. Jones because there was no dispute regarding the event described by Mr. Manning’s affidavit. In May of 2019, Ms. Jones was working in a nursing home and heard from a coworker about the substantial benefits and signing bonus that Grand Boulevard was offering new hires. Grand Boulevard’s employment application contained a question asking each applicant to respond “yes” or “no” as to whether he or she had “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre- trial intervention program as a result of being charged with a crime.” Ms. Jones left that portion of her application blank.3 Ms. Jones responded “no” in response to a question asking if she had “ever been convicted of any criminal violation of law, or [if she was] now under pending investigation or charges of violation of criminal law.”4 The employment application contained a provision requiring Ms. Jones to certify that: the information provided in this employment application (and accompanying resume, if any) is true and complete. I understand that any false, incomplete, or misleading information given by me on this form, regardless of when it is discovered, may disqualify me from further consideration for employment, and may be justification for my 3 Ms. Jones testified that she told Shakara Mayberry, Grand Boulevard’s Director of Staff Development at the time, that she had a criminal background and that she left that portion of the application blank because she could not remember specific details about the charges. Ms. Jones also testified that she offered to supplement her application with precise information after she had an opportunity to consult documentation in her possession. According to Ms. Jones, Ms. Mayberry accepted her application and told her to not worry about disclosing her criminal background. Ms. Mayberry also testified during the final hearing and denied telling Ms. Jones that she could leave that portion of her application blank. During the final hearing, Grand Boulevard provided no satisfactory explanation as to why Ms. Jones was hired without completing that portion of her application. 4 Respondent’s Exhibit 3 was Ms. Jones’s responses to interrogatories from Grand Boulevard. Via her responses, Ms. Jones provided documentation regarding her criminal history. However, Grand Boulevard did not request that Respondent’s Exhibit 3 be accepted into evidence. When being questioned about Respondent’s Exhibit 3, Ms. Jones acknowledged that she has: (1) pled no contest to a battery charge; (2) been charged or arrested for resisting an officer; (3) been arrested for criminal mischief; and (4) entered a plea on a different criminal mischief charge. dismissal from employment, if discovered at a later date. After conducting a background check through the Agency for Health Care Administration (“AHCA”) indicating Ms. Jones had no disqualifying offenses, Grand Boulevard hired Ms. Jones.5 Ms. Jones began working for Grand Boulevard on May 15, 2019, as a CNA helping nursing home residents with activities of daily living such as dental hygiene, grooming, and eating. On June 16, 2019, a resident in Ms. Jones’s care suffered injuries after he rolled out of his bed while Ms. Jones was cleaning him. Pursuant to its policy, Grand Boulevard suspended Ms. Jones while the Walton County Police Department investigated the incident. Ms. Jones returned to work at Grand Boulevard three days later but was suspended again on June 20, 2019, because she had allowed her CNA certificate to expire. Ms. Jones paid her delinquency fee, and her certificate was reinstated. During the course of the investigation of the June 16, 2019, incident, an investigator from the Walton County Sheriff’s Office asked Heather Hanna, Grand Boulevard’s Director of Nursing at the time, why Grand Boulevard would hire someone such as Ms. Jones with a criminal history. Ms. Hanna then had Ms. Jones’s application pulled and noticed that Ms. Jones did not 5 Section 400.9065, Florida Statutes, mandates that AHCA “shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.” Section 408.809(1)(e), Florida Statutes, requires level 2 background screening of any person who is expected to provide personal care services directly to nursing home residents. Section 435.04(2), Florida Statutes, lists many specific offenses that disqualify someone from working in a nursing home. Accordingly, the background screening conducted through AHCA is narrower in scope than Grand Boulevard’s employment application, which asks applicants if they have “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” For example, while Ms. Jones acknowledged that she has pled no contest to a battery charge, that charge would not necessarily have been a disqualifying offense because section 435.04(2) only encompasses felony battery, battery on a minor, sexual battery, and battery on a vulnerable adult. Likewise, resisting an officer and criminal mischief are not disqualifying offenses. respond to the question asking if she had ever been charged with a crime. Ms. Hanna sent the following report to Connie Zuraff on June 28, 2019: I received a visit from Investigator Donna Armstrong with Walton County PD and Julianne Dalton APS investigator. The investigator questioned why we would have an employee who had a recent arrest record, she stated that she knew Angela Jones from the community and that she was concerned that she was employed here. We reviewed her application and found that she had not checked the boxes related to history of arrests.[6] I called Ms. Jones with Tuwanna RN Risk Manager and [Shakara] Mayberry LPN SDC present in the room. I placed Ms. Jones on speaker phone and asked if she had been arrested for any recent criminal activity and she confirmed that she was arrested for battery, petty theft and fighting. I notified the employee that failure to disclose this information could lead to termination and suspended her at that time. The DCS did pull her background through the AHCA clearing house and we confirmed that she still showed eligible for employment. Grand Boulevard then suspended Ms. Jones and ultimately terminated her on June 27, 2019, on the basis that she “knowingly falsified [her] employment application.” There was no persuasive evidence of Grand Boulevard giving more favorable treatment to nonminority employees who neglected to fully disclose whether they had “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” Any testimony from Ms. Jones on that point was 6 The pertinent question on the application does not require applicants to disclose arrests. The question asks applicants if they have “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” either unpersuasive, unsubstantiated, or insufficiently specific. Accordingly, the greater weight of the evidence does not demonstrate that Grand Boulevard committed an unlawful employment practice.
Conclusions For Petitioner: Angela D. Jones, pro se 115 Christie Lane Panama City, Florida 32404 For Respondent: David Sydney Harvey, Esquire Lewis Brisbois Bisgaard and Smith 401 East Jackson Street, Suite 3400 Tampa, Florida 33602
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 Ms. Jones’s Petition for Relief. DONE AND ENTERED this 26th day of August, 2021, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Angela D. Jones 115 Christie Lane Panama City, Florida 32404 David Sydney Harvey, Esquire Lewis Brisbois Bisgaard and Smith 401 East Jackson Street, Suite 3400 Tampa, Florida 33602 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
Recommendation The Hearing Officer would, based on the foregoing Findings of Fact and Conclusions of Law, recommend that no action be taken because Dr. Evangelakis has not suffered a demotion or other personnel action appealable to the Career Service Commission. DONE and ENTERED this 24th day of August, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1976. COPIES FURNISHED: Douglas E. Whitney, Esquire HRS, Legal Services 1323 Winewood Blvd. Tallahassee, Florida 32301 E. Leonard Fleet, Esquire 4001 Hollywood Blvd. Hollywood, Florida 33021 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel & Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304
The Issue The issues in this case are whether Respondent, A-1 Block Corp., discriminated against Petitioner, Harold E. Ford, Jr., on the basis of his race and/or color and in retaliation, and, if so, what remedy should be ordered.
Findings Of Fact Respondent is a family-owned business that manufactures concrete products, ready-mix concrete, concrete block, and precast concrete. Mr. Freeman has been the president of Respondent for approximately 10 years. Petitioner is an African-American male who was employed by Respondent at two different times. Petitioner was hired to work in several different capacities which included: ready-mix driver; block driver; dump truck driver; and/or loader operator. Mr. Caviglia serves Respondent in a supervisory position, and Mr. Caviglia made the decision to hire Petitioner as a truck driver in December 2009 (first employment). Respondent hired Petitioner at $12.00 an hour. Respondent terminated Petitioner’s employment in July 2011 (first employment termination). Mr. Freeman described the circumstances under which Petitioner was terminated as: Petitioner failed to unhook some type of ladder or other apparatus at a self-loading dock, and drove off causing approximately $4,000 to $5,000 of damage to Respondent’s truck and/or the dock. Respondent was responsible for making the repairs. At the time of his first employment termination, Petitioner was making $13.00 an hour. Approximately five months later, in December 2011, Mr. Caviglia re-hired Petitioner to be a truck driver for Respondent. The other drivers employed by Respondent wanted Petitioner to return. Petitioner was hired at $13.00 an hour (second employment). At various times during Petitioner’s employment with Respondent, Petitioner inquired about becoming a “dispatcher” for Respondent. Mr. Freeman indicated to Petitioner that he (Mr. Freeman) would think about Petitioner’s dispatcher request. However, one of the requirements for Respondent’s dispatcher position was the availability to work on Saturdays. Mr. Freeman knew that Petitioner had a second job which required Petitioner to work on Saturdays. Since 2004, Petitioner worked part-time as an attendant at a local funeral home, which required Petitioner to work some Saturdays. Petitioner was paid $75 per funeral; however, he did not know how much he had been paid since his second employment termination. Petitioner did not have any pay-stubs to reflect how much he had been paid by the funeral home. Petitioner continues to work for the funeral home. In October 2013, Petitioner caused damage to tires on a truck belonging to Respondent. Respondent incurred a financial loss as a result of the damaged tires. Petitioner was terminated from his second employment with Respondent on November 20, 2013. Petitioner alleged and testified that Mr. Caviglia threatened Petitioner at various times during Respondent’s operational meetings.3/ Two other witnesses, Mr. Timmons and Mr. Sandy, testified that they did not observe Petitioner being threatened at these meetings. Petitioner alleged that he was retaliated against based on his race. Petitioner claimed that he was directed to wash a white man’s truck. Petitioner refused to wash the truck. Respondent requires its drivers to wash the trucks that they drive each day. However, there was no evidence of any retaliation against Petitioner when he did not wash the other man’s truck. Petitioner alleged he asked for raises when he thought it appropriate, and was refused. Mr. Freeman paid his employees the going rate, and it was established that Petitioner was being paid $14 an hour when he was terminated. Mr. Timmons, a former employee of Respondent, received the same rate of pay for working as a driver or as a dispatcher for Respondent. Petitioner’s resumé was admitted into evidence as Exhibit C. Petitioner created this resumé in 2011, and revised it one time to assist in the preparation for the hearing. The resumé does not accurately reflect Petitioner’s separate employment periods at Respondent, nor does it contain a two-week period of employment at another construction company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations DISMISSING the Petition for Relief filed by Mr. Ford. DONE AND ENTERED this 22nd day of December, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2014.
The Issue Whether the Respondent's motion to dismiss should be granted.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination based on marital status and recognizing Petitioner has elected to bring a civil action in federal court which is a court of competent jurisdiction to resolve all other claims against this Respondent. DONE AND ENTERED this 10th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 January, 1996. COPIES FURNISHED: Jonathan D. Fishbane, Esquire Roetzel & Andress 850 Park Shore Drive Naples, Florida 33490 Steve J. Longariello, pro se 9999 Summerbreeze Drive Apartment 422 Sunrise, Florida 33322 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue This cause came on for consideration upon Respondent's Motion to Dismiss the Petition for Relief from a "Determination: No Cause," order entered by the Florida Commission on Human Relations.
Findings Of Fact The undisputed facts are as follows: After investigating Petitioner's Claim of Discrimination, the Florida Commission on Human Relations (FCHR) entered its Order, "Determination: No Cause," on March 12, 1996. FCHR's order unequivocally advised Petitioner that her Petition for Relief, if any, must be filed within 35 days. The thirty-fifth day would have been April 16, 1996. After the time as provided by FCHR's Rule 60Y-5.008(1) and by FCHR's March 12, 1996 order for the filing of her Petition for Relief had already run out, Petitioner filed a request for extension of time in which to file her Petition for Relief. Her request for extension stated that she needed the extension of time "due to failing health of my spouse and medical care and concern for him." This late request for extension of time was the only request for extension of time filed by Petitioner. It was dated April 17, 1996, (one day late) but it was not filed with the FCHR until April 24, 1996 (eight days late). Petitioner did not mail a copy of her April 1996 request for extension of time to Respondent as required by FCHR rules. Therefore, Respondent was unaware there had been a request for extension made to the FCHR until Respondent received the FCHR's order dated May 31, 1996. Because it had no notice that Petitioner was requesting an extension in April 1996, Respondent had no opportunity to object to the FCHR before the Commission entered its May 31, 1996 order. By its May 31, 1996 order, FCHR granted Petitioner an extension of time only until June 14, 1996 in which to file her Petition for Relief. The order does not state a number of days, but clearly and specifically states that the Petition for Relief must be filed by June 14, 1996. FCHR granted no further extensions to Petitioner for filing her Petition for Relief. Petitioner filed her Petition for Relief beyond the June 14, 1996 date assigned her by the FCHR. Although her Petition for Relief was dated June 14, 1996, FCHR's date stamp on the Petition for Relief shows that it was not filed with the Commission until June 18, 1996. FCHR transmitted the Petition for Relief to the Division of Administrative Hearings on or about July 12, 1996. Respondent filed a Motion to Dismiss the Petition for Relief and an Answer with affirmative defenses based on untimeliness. See, Conclusion of Law 15. In response to the October 8, 1996 order to show cause herein, Petitioner filed a pleading she labelled "Order Requiring Further Advices and to Show Cause." Although she had been required to show cause why she did not timely file her Petition for Relief between May 31, 1996 and June 18, 1996, she instead explained her tardiness in filing for an extension of time back in April 1996 this way: I was under the impression that I had 35 days to respond from the time I received the Notice of Determination: No Cause. I receive [sic] this notice on March 15, 1996, under my impression the 35 day lapse period would have been until April 19, 1996. I feel my response met this time period as my letter was dated April 17, 1996. In response to the October 8, 1996 order herein, Petitioner has offered no explanation why she filed her Petition for Relief beyond the clearly specified extension period granted her by the Commission.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
Findings Of Fact On or about July 12, 1993, Petitioner filed a complaint, including attachments, with the Florida Commission on Human Relations (FCHR) alleging that Respondent had discriminated against him on the basis of sex/gender (male) and marital status (single) in violation of the Florida Human Rights Act. In his complaint, Petitioner states in pertinent part: I am writing to file a FORMAL SEX/MARTIAL STATUS DISCRIMINATION COMPLAINT against: 7) Lighthouse Academy at 3701 NE 22nd Avenue, Lighthouse Point, FL 33064. * * * 6) Lighthouse Point Academy - Many times throughout the year I contacted +/or applied for positions at this private school for special education children. Because of their lack of acknowledgement, I question whether or not their hiring practices are discrim- inating. On August 9, 1993, Petitioner filed the same complaint with the U. S. Equal Employment Opportunity Commission (EEOC) but alleging that the discrimination was in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII). On May 23, 1995, the EEOC issued its determination that Respondent had not considered Petitioner's gender or marital status and that no violation of Title VII had been committed. Furthermore, the EEOC notified Petitioner in its determination that he had 90 days in which to file a civil suit in federal district court and that the suit was his exclusive remedy. On or about August 5, 1995, Petitioner requested a formal hearing from the FCHR which had not issued a determination on the complaint filed with it. Petitioner requested a hearing on his claim of discrimination based on gender/sex (male) and marital status (single). On August 14, 1995, Petitioner filed suit in federal district court alleging that Respondent discriminated against him on the basis of sex in violation of Title VII. On April 30, 1996, the federal district court issued a final judgment in Respondent's favor, resulting from cross-motions for summary final judgment. 1/ The court determined that, based upon the motions, the record, and the status of the case, and viewing the facts in a light most favorable to Petitioner, Petitioner had failed to raise a genuine issue of fact that he was intentionally discriminated against by Respondent on the basis of sex. In the instant case, at no time material hereto did Respondent make inquiry as to Petitioner's marital status. In the case at hand, at no time material hereto did Petitioner inform Respondent as to his marital status. In the instant case, at no time material hereto did Respondent have any knowledge of Petitioner's marital status.
Recommendation Based on the foregoing, it is RECOMMENDED that the petition of Steve J. Longariello be DISMISSED. DONE AND ENTERED this 13th day of June, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 13th day of June, 1996.
The Issue The issues in this case are whether Petitioner, in response to a question on the application for licensure as a certified nursing assistant, intentionally denied the fact that she had been convicted of crimes; and, if so, whether Respondent has grounds to deny Petitioner's application.
Findings Of Fact Petitioner Ruby Mouzon ("Mouzon") wants to become a certified nursing assistant ("CNA"). Because she is not currently certified in another state, to accomplish this goal Mouzon must submit an application for certification by examination to Respondent Board of Nursing (the "Board"). The Board is responsible for reviewing such applications and determining whether applicants are eligible to take the nursing assistant competency examination, which consists of a written test and a skills-demonstration test. Successful completion of both portions is necessary to obtain a CNA license by examination. On February 15, 2012, Mouzon submitted her first application to take the CNA examination. She truthfully answered a question on the application inquiring whether the applicant has a criminal record. This prompted the Board to request additional information regarding the judicial dispositions of her several arrests. Mouzon provided the details concerning her convictions for carrying a concealed firearm (1988 and 1992), battery (1992), and aggravated assault (1998). The Board considered Mouzon's application at its meeting on June 6, 2012, and authorized her to sit for the examination. Mouzon passed the written test in 2012 but failed the clinical skills test. For the next two years, she would be eligible to re-take the clinical skills test without taking the written test again. Therefore, on March 13, 2014, Mouzon submitted her second application for licensure as a CNA, this time as a "retester." As before, the application included a question which sought information about the applicant's criminal convictions, if any. It provided as follows: Have you EVER been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction other than a minor traffic offense? . . . *If you answered YES, please be prepared to create a typed or printed letter with arrest dates, city, state, charges and final dispositions and be prepared to send it to the Board Office upon request. (Do not send this information with your application for examination.) Mouzon, who with her first application had provided all of the relevant information pertaining to her various criminal convictions and thereafter been approved by the Board to take the examination in 2012, mistakenly interpreted the question as seeking merely an update to her previous application. Because she did not have any convictions besides the old ones she had already reported to the Board, Mouzon answered, "No." Mouzon's explanation for this objectively false answer is probably true. Based on her credible testimony, which the undersigned credits, it is found that Mouzon had no intention of deceiving the Board in hopes her criminal record would not be discovered. Mouzon knew, after all, that the Board, having considered her criminal convictions in 2012 and deemed them not to be disqualifying, was well aware of her background. Thus, she had no reason intentionally to omit or attempt to conceal these facts, nor anything to gain by doing so. Her belief that she needed only to update her previous application, although incorrect, was an honest mistake, more likely than not. On April 10, 2014, a member of the Board's staff named Sara Rotunda sent Mouzon a letter requesting additional information regarding the judicial dispositions of her several arrests, together with three to five letters of recommendation. Mouzon contacted Ms. Rotunda to remind her that, in connection with an application in 2012, she (Mouzon) had supplied the Board with all of the details concerning her criminal convictions. Ms. Rotunda checked the Board's files and found the information Mouzon had provided previously. Satisfied that Mouzon had complied with the Board's request for information regarding the convictions, Ms. Rotunda wrote again to Mouzon on April 15, 2014, but now asked only for letters of recommendation, which Mouzon submitted. On June 11, 2014, the Board executed a Notice of Intent to Deny Mouzon's application to re-take the CNA clinical skills test. The Board accused Mouzon of having attempted to obtain a license by bribery, misrepresentation, or deceit when she denied having any criminal convictions in response to the relevant question on the application. Determinations of Ultimate Fact Mouzon is not guilty of attempting to procure a CNA license by misrepresentation or deceit, which is a disciplinable offense and grounds for denial of licensure under section 464.204(1)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order approving Mouzon's application for licensure by examination as a certified nursing assistant. DONE AND ENTERED this 23rd day of December, 2014, 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 23rd day of December, 2014. COPIES FURNISHED: Ruby J. Mouzon 309 Northwest First Avenue Hallendale, Florida 33009 Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399 (eServed) Lavigna A. Kirkpatrick, BSN, RN, Chair Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399
Findings Of Fact Mary Abbot, the Petitioner, is a white, female American. Mary Abbot was employed as a full-time police officer with the City of Tallahassee Police Department in February 1981. Prior to her employment with the Department, she successfully completed pre-employment psychological and physical examinations and was recommended for hiring. The Respondent stipulates that the Petitioner, Mary Abbott is educationally qualified for employment as a full-time law enforcement officer and is certified by the Florida Department of Law Enforcement. In 1989 and 1990, the Tallahassee Police Department was hiring police officers. Petitioner's Exhibit 11 indicates the names of the officers hired during this period. During this period both male and female officers were hired. Petitioner was employed as a full-time police officer by the City of Tallahassee Police Department (TPD) continuously from February 1981 until January of 1988, and from January 1988 until August of 1990 as a part-time officer. During her employment as a police officer, her performance evaluations were above average except for her first evaluation which was average. No disciplinary action of any kind was ever taken against the Petitioner, and no complaints were made against her which were determined to be of substance after investigation. Prior to March of April of 1985, the Petitioner had a romantic relationship with a superior officer, Lieutenant George Creamer. This relationship was maintained discretely by both parties and was not known within the Department. In March or April of 1985, this relationship was terminated, and the Petitioner, suffering from a depression, requested a conference with Lieutenant Tom Coe to discuss this relationship. Lieutenant Creamer was confronted with the existance of the relationship, and denied it, giving rise to the belief by Petitioner's supervisors that she was delusional. Petitioner was forced to undergo counseling, and the Department's psychologist, Mark Bronsdorf, reported on the Petitioner's condition to the administration of the Department. This ultimately led to a confrontation among the counselor, the Petitioner and her superiors in the Department, in which the Petitioner was given the choice of voluntarily being hospitalized for psychological observation and evaluation, or not working. Given this choice, the Petitioner admitted herself "voluntarily" to Tallahassee Memorial Regional Medical Center Psychiatric Center for observation and evaluation at her own expense. Upon her release, the Petitioner was placed on a forced leave of absence for three months at which time her sick leave was used up. At this time, the Petitioner received an above average performance evaluation. Before being permitted to return to duty, Petitioner was required to be evaluated by Patrick E. Cook, the City's contract psychologist, who found her fit for duty but recommended that she remain in counseling at her own expense. In his interview of Petitioner, Dr. Cook asked Petitioner questions regarding her decision to undergo tubal ligation, which Petitioner considered inappropriate and unrelated to her examination. Dr. Cook testified and admitted that his questioning about Petitioner's tubal ligation was unrelated to his examination on her fitness for duty. He also admitted that, as his report reflected, that had he would not have recommended her hiring had he been assessing Petitioner for initial employment as opposed to returning to duty. The Petitioner's claim of bias on the part of Dr. Cook was based upon his having required her to pay for her own mandatory counseling as part of her therapy, and comments contained in his report of 1985 which indicate that Dr. Cook would not have recommended the Petitioner for employment on a full-time basis if she had not already so employed and had established that she could satisfactorily perform the duties of a police officer with the Tallahassee Police Department. On October 1, 1985, the Petitioner was restored to full status by Melvin Tucker, Chief of Police. Thereafter, the Petitioner was seen by George Rosselot, another psychologist, who discharged her from further counseling having determined that Petitioner was in good mental health. Lieutenant Creamer, who had initially denied the existance of a relationship with the Petitioner, was not forced to submit to psychiatric evaluation, was not disciplined for having a relationship with a subordinate officer or for lying about the relationship to his superiors. Further, when Lt. Creamer ultimately sought counseling to deal with the identical issue, it was paid for by the Department. In January of 1988, the Petitioner resigned from her position as a full-time police officer with the City of Tallahassee. There were several reasons for her resignation, but chief among them was her disparate treatment by the Department, as described above, and her perception that her future within the Department had been compromised by her required hospitalization for psychological reasons together with Lieutenant Creamer's initial denials of their prior relationship which lent credence to the perception that the Petitioner was of less than sound mind. Testimony was received from various officers that lack of confidence in a fellow officer's sound mental state was a basis for suspicion and rejection of the suspect officer. In addition, between 1985 and late 1988, the general treatment of female officers was a matter of contention between many older officers, many of whom were in leadership positions, who did not fully respect the abilities of female officers. The Petitioner had applied on November 13, 1987, to become a full-time investigator with the State Comptrollers Office in the Department of Banking and Finance of the State of Florida. Subsequent to her resignation in January of 1988, the Petitioner was employed full-time at the Comptroller's Office, The Petitioner's letter of resignation made no mention of any problems with the City of Tallahassee Police Department. The Petitioner indicated that her reason for leaving the Department was to take a full-time position with the State of Florida. At the same time Petitioner submitted her resignation from her full time position with the Tallahassee Police Department, she applied to become a reserve officer with the Department. Reserve officers must meet all of the criteria of a regular officer and have the same authorities and duties; however, they are not full-time employees. In the early summer of 1989, the Petitioner was contacted by Captain Joan Vanmeter, who was in the Department's personnel office, and was urged to contact Harriet W. Williams. (Vol. I, pg. 52.) On June 28, 1989, the Petitioner met with Harriet W. Williams who asked Petitioner a standard set of questions regarding issues related to the pending lawsuit brought by Linda Koss against the Police Department. During the meeting, the Petitioner expressed her feelings about the treatment that she had received while with the Department. The concerns Petitioner expressed to Ms. Williams centered upon Petitioner having been required to undergo, at her own expense, counseling and hospitalization, and her subsequent loss of confidence and credibility with her fellow officers due to this hospitalization and the denials by Lieutenant Creamer of their relationship. Shortly after the Petitioner's meeting with Harriet W. Williams, the Petitioner had a chance meeting with Melvin Tucker, Chief of Police, at the State Capitol Building. During this meeting she indicated her interest in returning to full-time employment with the Tallahassee Police Department, and Chief Tucker indicated that she should make an application to the Department, and come to see him. On or about July 18, 1989, Petitioner submitted an application for employment as a full-time law enforcement officer with the Tallahassee Police Department. The Petitioner made an appointment to see Chief Tucker at his office, and the Chief advised her, that having left in good circumstances, there was no reason she could not return to full employment. (See Vol. IV, pgs. 357-8 and Vol. I, pgs. 52, 56, 57, 59, Vol. III, pgs. 275, 276, Vol. IV, pgs. 351, 353, 356, 357, 359, 361, 363.) Through her discussions with the Petitioner, Harriet W. Williams became aware of the Petitioner's assertions that she had been treated inappropriately by having to pay for counseling required by the Department and being forced to take leave. Ms. Williams brought Petitioner's grievances to the attention of the police department's personnel office and sought to obtain some recompense for the Petitioner. While the Petitioner's application for full-time employment was pending with the Department, the Chief was made aware of the nature and extent of the Petitioner's grievances which related back to Petitioner's previous full- time employment with the Department as a result of Petitioner's discussions with Ms. Williams. After the Chief became aware of the Petitioner's grievances as outlined above, he had a meeting with the Petitioner in which he advised the Petitioner that he had become aware of the matters which concerned her. The Chief indicated that he too was concerned about some of these matters, and urged the Petitioner to work with the personnel department and Ms. Williams and to see if these could be settled. While the Petitioner's application for full-time employment was pending, she discussed settlement of these matters with Mrs. Williams, who prepared a tentative settlement which was presented to the Petitioner. After receiving the proposed settlement, the Petitioner obtained counsel to assist her in determining whether she should accept the proposed settlement. Notwithstanding whether it was stated directly, the facts reveal that settlement of Petitioner's prior grievances became part of the discussions of her re-employment on a full time basis. Within the context of these discussions, Petitioner was advised that she would be required to undergo a complete physical, to include gynecological examination, and would have to undergo psychological assessment. A gynecological examination is part of a complete physical. These demands also became a part of the negotiations between Ms. Williams, the Petitioner and Petitioner's counsel. The issues being negotiated included reimbursement of Petitioner for the counseling she had been required to undergo during her prior full-time employment, her objections to another gynecological examination, and her objections to another psychological assessment. As the demands seesawed back and forth during the negotiations, the Petitioner also requested that Lieutenant Creamer be required to acknowledge his prior relationship with her in order to reestablish her credibility with the coworkers. The panoply of the Petitioner's demands were presented to the Chief by Ms. Williams, the Department's personnel staff, and by the Petitioner. Based upon the information which he received, the Chief reached a negative conclusion about rehiring the Petitioner based upon his concerns about her ability to reintegrate herself into the Department. Based upon this determination, the Chief directed the Assistant City Attorney, Ms. Williams, to send the Petitioner a letter withdrawing the offer of reemployment. This letter was sent to Petitioner's attorney on December 7, 1989, and stated as follows: Inasmuch as the overall assessment regarding Mary's hiring as a full-time law enforcement officer has raised numerous concerns in regard to her past employment, as well as concerns for her future employment, I regretably advise, Chief Melvin Tucker hereby withdraws any offer for full-time employment of Mary Abbott. The Department's letter of December 7, 1989 had discontinued negotiations regarding who would conduct the psychological assessment and whether the Petitioner would be required to have a gynecological examination. On March 21, 1990, the Petitioner and the City reached an agreement to refund to Petitioner most of the $2,500 in counseling fees which she had paid during her previous full-time employment for counseling. This money was a reimbursement of her counseling expenses and covered nothing beyond the straight reimbursement. In June of 1990, the Petitioner left the employ of the Comptroller's Office and immediately increased her part-time hours at the Tallahassee Police Department. Petitioner for leaving the Comptroller's Office were related to a conflict with Dorothy Sheppard, a coworker, with whom the Petitioner had had at least one prior conflict. In July of 1990, the Petitioner wrote the Chief of Police a letter asking that her application of July 1989, be reconsidered. The Chief of Police, through his personnel officer, referred the matter to Harriet W. Williams to determine if Ms. Williams had any information pertaining to the letter. Petitioner also wrote Catherine Spears of the Department's personnel office indicating Petitioner's willingness to submit to preemployment screening if the psychological portion could be performed by George Rosselot and if Dr. Preston could perform the physical examination. The City determined that it would consider Petitioner's letter of July 23, 1990, as reactivating her full-time application, and the City reviewed the Petitioner's application for full-time employment with the TPD. On or about August 15, 1990, Tom Hinkle, an investigator with the Tallahassee Police Department, reviewed Petitioner's employment file in the Office of the State Comptroller. Based upon Hinkle's findings, the Chief of Police spoke with the Assistant Comptroller, Larry Fuchs, who advised the Chief of the problems the Petitioner had had with Mrs. Sheppard. On December 7, 1989, the Tallahassee Police Department received a complaint from Dorothy Sheppard, an employee of the State Comptroller's Office, who alleged that the Petitioner had assaulted her in their mutual workplace. Officer's of the Tallahassee Police Department responded and investigated the alleged Sheppard incident. The Chief of Police was made aware of this because it involved an officer; however, no internal investigation was initiated. The complaint was closed administratively with the notation "exceptionally cleared." Harry Mills, the Petitioner's supervisor at the Comptroller's Office, gave a reprimand to both Sheppard and the Petitioner both of whom he supervised. Subsequently, Petitioner's evaluation reflected the comment that she could not get along with coworkers, and Petitioner appealed the evaluation and it was changed to reflect problems with one coworker. The Petitioner resigned from the Comptroller's Office, had a good record with that office, and was eligible for rehire by that office. The Department's representatives had represented to the Petitioner that she would be required to undergo a complete psychological and physical examination to include gynecological examination. The Chief was also aware of the Petitioner's refusal to submit to a psychological evaluation by Patrick Cook, and her refusal to submit to a physical examination. While considering the Petitioner's renewed application, the Chief was advised that the Petitioner was working approximately 80 hours per month as a part-time officer. On August 24, 1990, the Petitioner was denied full-time employment and terminated from her part-time reserve status by a letter from the Chief of Police. The letter of termination was given to the Petitioner by Captain Gary Lassiter in the presence of the Petitioner's counsel at that time, John Stuart. The Department's letter of termination of August 24, 1990, (Petitioner's Exhibit 8/Respondent's Exhibit 24) states that the reason for denying her full-time employment is "your prior record with TPD and your subsequent employment with the State of Florida Comptroller's Office." The letter states in its second paragraph that the reason for terminating the Petitioner from her part-time position is that "it would be inconsistent . . . to reject you as a full-time applicant and to continue to allow you to continue to work as a reserve officer." The Tallahassee Police Department had employed at least one other officer, Wayne Deason, who could not qualify as a full-time, solo officer with the Tallahassee Police Department but was permitted to continue as a reserve officer. Officer Deason had failed to satisfactorily complete his probationary period with the Department, but was permitted to stay in part-time status. The Petitioner filed an appeal of her termination from part-time employment and denial of full-time employment pursuant to PTL 145, and on October 12, 1990, the Chief of Police responded to the Petitioner's grievance confirming his decision to deny full-time employment and terminating her from her part-time employment. The Department asserted at hearing that its policy was to require part-time reserve officers seeking full-time employment to undergo full psychological and physical examination. The Department asserts that this policy had been applied to part-time reserve officers prior to the Petitioner's application for full-time employment in 1989. The evidence revealed that the Department first applied this policy in December 1988, when Tom Herzog, a reserve officer applying for full-time employment, was assessed by Patrick E. Cook. Patrick E. Cook researched his records, and reported by letter (Respondent's Exhibit 26) that Herzog had been initially evaluated in 1981 and had been reevaluated in December of 1988 prior to his full-time employment. The Petitioner distinguishes Herzog's case from that of Petitioner on the basis that Herzog had never served as a full-time officer prior to December of 1988. Subsequent to the Petitioner's case, the Department has applied this policy to all employees seeking permanent full-time employment. The Department has not applied this policy retroactively to officers who are currently full- time employees. Prior to the Petitioner's application in 1989 for full-time employment, the Department had reemployed officers in full-time positions without psychological and physical examinations. The Department asserts that its withdrawal of the offer of employment on December 7, 1989, was based on Petitioner's general attitude and demeanor exhibited to the Chief of Police and Petitioner's refusal to submit to psychological and physical examination as inferred from communications from her counsel, Janet Ferris. Dr. Cook's recommendation that Petitioner pay for her own counseling , and his comments as outlined in Paragraph 8, above, reveal a reasonable basis for Petitioner to conclude that Dr. Cook would have a bias against her, and to request evaluation by another psychologist. The evidence revealed that the Department had permitted another female officer to be evaluated by another psychologist at the officer's request because they had had a previous professional relationship. Regarding physical examinations of female officers, the doctors administering these examinations indicated that they did not perform gynecological examinations if a female officer objected, particularly if the officer had been examined by her own physician. The Tallahassee Police Department had employed on a part-time basis at least one officer, Wayne Deason, who could not qualify as a full-time, solo officer with the Tallahassee Police Department. Officer Deason was permitted to continue as a reserve officer, notwithstanding his inability to qualify for employment as a solo officer by satisfactorily completing his probationary period with the Department. At the time the Chief determined that he would not reemploy the Petitioner full-time in August of 1990, he had not had any personal contact with the Petitioner for nearly a year. During the period Petitioner was placed on a forced sick leave, she satisfactorily completed a tour of inactive duty with the Guard/Reserve in a command position. In October 1985, the Petitioner received an above average performance evaluation, was removed from conditional status, and restored to full status. Her subsequent performance with the Department with the Department between 1985 and her resignation of 1988, was above average. The Department persisted in attempting to force Petitioner to be evaluated by Dr. Pat Cook, a clinical psychologist, as a condition of reemployment in a full-time position, notwithstanding that the Petitioner had brought to the attention of the Department that Dr. Cook had made statements in his 1985 report indicating a potential bias on his part. Dr. Cook testified at the hearing and acknowledged that he had made these statements in his 1985 report. The Petitioner's concerns about Dr. Cook's potential bias had a factual foundation. In 1990, the Petitioner did not categorically reject psychological evaluation. The Petitioner suggested psychological evaluation by George Rosselot as an alternative to examination by Dr. Cook. The Department's steadfast refusal to permit the Petitioner's evaluation to be performed by another psychologist and evidence that females were permitted to skip gynecological examinations are evidence of prejudice against the Petitioner. The Petitioner has sought, and has been unable to obtain, employment with other law enforcement and investigative agencies. The Petitioner has suffered a loss of income as a result of these actions against her. The Petitioner has incurred legal expenses in prosecuting this litigation. The Petitioner also filed a complaint with the Florida Commission on Human Relations. Pursuant to Policy 7-10.07H, the City ceased action on Petitioner's other City grievances because when a grievance is filed outside the agency is deemed to waive an internal grievance. The Executive Director of the Florida Commission on Human Relations made a determination of cause on April 24, 1992. If Mary Abbott had been reemployed as a full-time officer in late August, 1990, she would have earned $9,210.62 in 1990, $28,297.76 in 1991; $30,215.72 in 1992, and $28,302.40 through November, 1993 from the City of Tallhassee excluding overtime or part-time employment. Petitioner's part-time employment would have been limited to twenty (20) hours per week. The city's contribution to social security and the retirement system are set by federal and state statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner be awarded damages for her lost wages and benefits from August 1990 until the present, plus the economic value of any contributions the employer would have made to Social Security, retirement, and health care. Further, that the Petitioner recover damages for part-time employment at the rate of twenty (20) hours a month ($144,039.75) together with any applicable fringe benefits less her reported income, that Petitioner be awarded attorneys fees and costs, that the Commission direct the Respondent to employ immediately the Petitioner in a position appropriate to an officer with her educational and work experience, and that the Commission maintain jurisdiction over the case to insure that the Respondent ceases its disparate treatment of the Petitioner. DONE AND ENTERED this 5th day of November, 1993, in Tallahassee, Florida. STEPHEN F. DEAN, 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 5th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5932 Respondent, City of Tallahassee's proposed findings were read and considered. The following list indicates which findings were adopted, where they can be found in the recommended order, and which were rejected and why: Respondent's In Recommended Order Proposed RO 1.-16. Preliminary Statement Adopted in paragraph 2. Adopted in paragraph 5. Subsumed in paragraph 5. 20.-22. Rejected. See paragraph 6. 23. Rejected. See paragraph 8. 24.-26 Rejected, irrelevant. 27.-29. Rejected. See paragraph 9. Rejected, irrelevant. Adopted in paragraph 16. First sentence adopted in paragraph 13. Second sentence adopted as paragraph 17. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in paragraphs 19 & 20. Adopted in paragraph 21. Rejected, irrelevant. Rejected, irrelevant, contrary to facts; see paragraphs 23-24. Adopted in paragraphs 23 & 24. Adopted in paragraph 22. 41.-42. Rejected, irrelevant. Adopted in paragraphs 27, 28 & 29. Rejected, irrelevant. Rejected, irrelevant, contrary to facts; see paragraph 26. Rejected, irrelevant. Rejected, irrelevant. Adopted in paragraph 28. Rejected, irrelevant. First sentence adopted in paragraphs 28 & 30. Second sentence rejected as contrary to facts - see paragraphs 30, 31 & 32. Rejected as contrary to facts - see paragraphs 30, 31 & 32. 52.-55 Adopted in paragraph 28. 56.-57. Rejected, irrelevant. 58.-59. Adopted in paragraphs 36 through 41. Rejected, irrelevant. Adopted in paragraph 31. 62.-64. Adopted in paragraph 34. 65.-66 Adopted in paragraph 35. Adopted in paragraph 36. Adopted in paragraph 42. Adopted in paragraph 43. Adopted in paragraph 44. Adopted in paragraph 45. Rejected, irrelevant. Adopted in paragraph 44. 74.-75. Rejected, irrelevant. 76.-77. Adopted in paragraph 47. 78.-82. Adopted in paragraph 66. 83. Adopted in paragraph 67. 84.-86. Rejected, irrelevant. Rejected as contrary to best evidence. Adopted in paragraph 49. Rejected, irrelevant; see paragraph 51. Adopted in paragraph 51. Rejected, irrelevant. 92.-93. Adopted in paragraph 52. 94. Adopted in paragraph 4. 95.-97. Rejected, irrelevant. 98.-99. Adopted in paragraph 52. 100.-101 Adopted in paragraph 68. Adopted in paragraph 33. Rejected as contrary to best evidence. COPIES FURNISHED: Ms. Sharon Moultry Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Linda G. Miklowitz, Esquire Post Office Box 14922 Tallahassee, FL 32317-4492 Lewis E. Shelley, Esquire Assistant City Attorney City of Tallahassee City Hall Tallahassee, FL 32301
The Issue The issue in these cases is: a) whether the Department of Education is liable for attorneys' fees and costs incurred in the prosecution of the Rushton case (DOAH Case No. 89-1551) and b) if so, whether such fees and costs should include those incurred in the prosecution of a rule challenge styled, Florida Education Association/United and Florida Teaching Profession/National Education Association v. Department of Education, DOAH Case No. 88-0847R.
Findings Of Fact Petitioner Lewis Rushton is a person within the meaning of Section 760.02(5), Florida Statutes. Mr. Rushton is an individual within the meaning of Section 760.10(1). The Department of Education ("DOE") is a personwithin the meaning of Section 760.02(5). The School Board of Seminole County, Florida ("School Board"), which is also a person within the meaning of the same statute, was at all material times Mr. Rushton's "employer" within the meaning of Section 760.02(6). At all material times, Mr. Rushton was employed as a bus driver by the School Board, which removed him from this position on April 19, 1988. The reason for the School Board's action was that the continued service of Rushton, who was over 70 years of age, was contrary to Rule 6A-3.0141(a), Florida Administrative Code, which required mandatory retirement of bus drivers at age 70 years ("Rule"). The other Petitioners were similarly situated to Mr. Rushton. The only difference is that they were employed by different district school boards. The School Board gave Rushton the option to continue in employment as a bus monitor, which was a lower-paying job than bus driver. Rushton accepted this reassignment and experienced the resulting reduction in pay beginning the 1988-89 school year. At all material times, DOE, which promulgated the Rule, maintained standards affecting the ability of Rushton to engage in his occupation or trade within the meaning of Section 760.10(5). The Rule was part of these standards. On January 29, 1987, Rushton filed a Complaint of Discrimination, FCHR Case No. 88-5616, against the School Board. The Florida Commission on Human Relations dismissed this complaint on November 11, 1988. On May 3, 1988, Rushton timely filed and prosecuted a Complaint of Discrimination, FCHR Case No. 88-5703, against DOE. On September 7, 1988, the Florida Commission on Human Relations issued a Notice of Determination--Cause. The Notice of Determination names as the sole respondent the School Board, which had employed Mr. Rushton prior to requiring him to retire at age 70. After DOE filed a Request for Reconsideration on September 16, the Florida Commission on Human Relations issued on January 12, 1989, a Notice of Redetermination--Cause. The Notice of Redetermination names DOE as the sole respondent. The Notice of Redetermination states that DOE's "assertion that [the Rule] is an established 'bona fide occupational qualification' for employment has not been upheld." The quoted statement in the Notice of Redetermination is to a final order issued December 14, 1988. The final order found the Rule to be an invalid exercise of delegated legislative authority. The final order was the culmination of a Section 120.56 challenge to the Rule that had been prosecuted against DOE by two unions representing the Petitioners. This rule challenge was styled, Florida Education Association/United v. Department of Education, DOAH Case No. 88-0847R ("Rule Challenge"). The Florida Teaching Profession/National Education Association was an intervenor on the side of the petitioner in the Rule Challenge. Lorene C. Powell represented the petitioner in theRule Challenge, and Vernon T. Grizzard, of Chamblee, Miles and Grizzard, and the law firm of Egan, Lev & Siwica, represented the intervenor. As the final hearing in the Rule Challenge approached, DOE requested abatements of the pending cases in which individual bus drivers had sought relief under Section 760.10. At that time, the cases of all Petitioners except Mr. Rushton were pending in the Division of Administrative Hearings. The grounds for the abatements were that the decision in the Rule Challenge "would substantially affect the outcome" of the pending individual cases. Each case was abated. The parties in the Rule Challenge stipulated that various counties, due to the Rule, had not rehired bus drivers who would have been rehired but for the fact that they had attained the age of 70 years. The parties also agreed that Sections 760.10 and 112.0444 [sic], together with cited federal law, "do not permit an age limitation on employment with the exception of where such an age limitation is based on Bona Fide Occupational Qualification." The stipulated issues for determination in the Rule Challenge included "whether the 70-year old age barrier . . . is a [bona fide occupational qualification] and thus a valid exception to the state and federal ban on age discrimination based solely on chronological age." By memorandum dated January 11, 1989, DOE informed school board superintendents of the final order invalidating the Rule. By letter dated February 9, 1989, the School Boardnotified Mr. Rushton that DOE was no longer requiring enforcement of the mandatory retirement rule and he could return to work as a bus driver if he could meet certain lawful requirements. Each Petitioner was so notified by his respective school board. By Petition for Relief filed March 21, 1989, Mr. Rushton sought relief against the School Board and DOE, including a finding that mandating his retirement due to age was an unlawful employment practice, an award of back pay and associated benefits, and an award of attorneys' fees in the prosecution of the subject proceeding and such other proceedings as were necessary or appropriate to obtain the relief and apportioning the fees between the School Board and DOE. With the filing of the Petition for Relief on March 21, 1989, John Chamblee of the law firm of Chamblee, Miles and Grizzard entered his appearance for Mr. Rushton. Mr. Chamblee had been retained for Mr. Rushton by his union, the Florida Teaching Profession/National Education Association. On or shortly after May 1, 1989, the School Board settled with Mr. Rushton by agreeing to compensate him for back pay, interest, and other benefits constituting relief otherwise available under Section 760.10. Similar settlements between the other Petitioners and their respective school boards resulted in the dismissal of all claims against the various school boards.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitions for Relief in the above-styled cases. ENTERED this 2nd day of May, 1990, in Tallahassee, Florida. COPIES FURNISHED: John J. Chamblee, Jr. Chamblee, Miles and Grizzard 202 Cardy Street Tampa, FL 33606 Vernon T. Grizzard Chamblee, Miles & Grizzard 116 South Monroe Street Tallahassee, FL 32301 Sydney H. McKenzie III General Counsel Carl J. Zahner Assistant General Counsel Department of Education Knott Building Tallahassee, FL 32399 Lorene C. Powell, Assistant General Counsel FEA/United 208 W. Pensacola Street Tallahassee, FL 32301 Ned N. Julian, Jr. Sun Bank Building, Suite 22 Post Office Box 1330 Sanford, FL 32772 Tobe Lev Egan, Lev & Siwica P.O. Box 2231 Orlando, FL 32802 Norman Smith Brinson, Smith & Smith 1201 W. Emmett St. Kissimmee, FL 32741 ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1990. William H. Vogel, Assistant Superintendent Personnel and Administrative Services P.O. Box 1948 Kissimmee, FL 32742-1948 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
