The Issue Whether the decision of Respondent, Seminole County School Board, not to include Petitioner, Cady Studios, LLC, in its award of a yearbook and photography services contract was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact Respondent, School Board, operates the public school system established for the School District of Seminole County, Florida. See § 1001.30, Fla. Stat. The School Board oversees 37 elementary schools, 12 middle schools, nine high schools, and seven special centers. The Seminole County School District includes over 67,000 students. The School Board is an authorized governmental entity allowed to contract for commodities or services using the competitive solicitation process set forth in section 287.057, Florida Statutes. See §§ 1010.04 and 1001.41(4), Fla. Stat. On July 18, 2017, the School Board published [Request for Proposal] #17180001P-LL, Yearbook and Photography Services (the “RFP”). Through the RFP, the School Board solicited qualified vendors to provide Photography Services to Seminole County Public Schools. The initial contract for the Photography Services runs for three years, with a possible extension of another two years. Prior to this RFP, the School Board had never used a request for proposal to solicit the Photography Services. Thirteen photography and yearbook vendors, including Cady Studios, responded to the RFP. Ultimately, as further explained below, the School Board determined to offer the top seven vendors a contract to provide the Photography Services. Cady Studios was ranked eighth. Consequently, Cady Studios was not selected under the RFP. Cady Studios is a family-owned portrait company based in Florida and has provided school portrait services since 1998. Cady Studios has partnered with over 50 schools in central Florida, and is an approved vendor in 35 Florida school districts. The School Board published the RFP, as well as an Addendum, on VendorLink and Demand Star websites. The School Board used these two on-line platforms to disseminate information regarding the solicitation to interested vendors. The School Board provided links to VendorLink and Demand Star on the district’s website. After the School Board posted the RFP on July 18, 2017, the School Board did not receive any protests to the terms, conditions, or specifications contained in the RFP.5/ Pertinent to this matter, Cady Studios never protested the RFP’s terms, conditions, or specifications, or the School Board’s decision to competitively solicit bids for the Photography Services under section 287.057. As stated in the RFP, the School Board conducted a pre- proposal conference on July 27, 2017. During this meeting, the School Board offered interested vendors the opportunity to ask questions about the RFP, as well as educate themselves about the process. Cady Studios did not attend the pre-proposal conference. On August 2, 2017, the School Board posted an Addendum to the RFP which requested specific pricing information for the Photography Services to be offered to high schools, middle schools, and/or elementary schools in Seminole County. Proposals for the Photography Services were due on August 15, 2017. Thirteen school photography and yearbook vendors, including Cady Studios, presented proposals in response to the RFP. RFP, Section V, directed each vendor to deliver “One (1) original, One (1) copy, and ten (10) electronic [USB] thumb drive version[s]” of its proposal to the School Board. To score the proposals, as set forth in RFP, Section IV, 1.A, the School Board formed an Evaluation Committee. The voting members consisted of an executive director from an elementary school, a middle school, and a high school (or their designees), as well as a local business advisory member. A non-voting School Board member was also included on the Evaluation Committee. The individuals selected to serve as the voting members of the Evaluation Committee included Dr. Trent Daniel (Principal, Lake Brantley High School); Byron Durias (Principal, Sanford Middle School); Tina Langdon (Principal, Sabal Point Elementary School); and Donald Miller (Business Advisory Member). Karen Almond served as the non-voting School Board member. After the School Board assembled the Evaluation Committee, the four voting members received training on the RFP’s scoring procedure. The training was conducted by Luangel Lowder, the School Board’s Purchasing Agent, on August 17, 2017. Ms. Lowder drafted and prepared the RFP. She also facilitated the RFP process. Ms. Lowder distributed training notes to each evaluator, which included guidance on how to score the proposals. In her written comments, Ms. Lowder wrote, “The Vendor Submittals are on Individual Jump Drives. I do have a hard copy if needed.” Ms. Lowder also provided “Adjectival Descriptor Rating Guidelines,” which the voting members were to use to score the proposals. Regarding a score of “0,” the guidelines explained: Unsatisfactory (0): Not responsive to question. “Unsatisfactory” is defined as a response not meeting the requirements without major revisions and proposes an unacceptable risk. “Unsatisfactory” demonstrates a misunderstanding of the requirements; the approach fails to meet performance or capability standard and contains major omissions and inadequate detail to assure the evaluator that the respondent has an understanding of the requirement. RFP, Sections IV and V, also listed the specific evaluation criteria, as well as the adjectival scoring system, the Evaluation Committee was to use to determine each vendor’s score. RFP, Section V, directed that “[e]ach response shall be organized and presented in the following sequence and will include the following at a minimum”: Tab 1-Respondent’s Profile and Submittal Letter (Non- Scored) Tab 2-Experience of Personnel (Weighted Value 25) Tab 3-Technical Approach Methodology (Weighted Value 30) Tab 4-References (Weighted Value 10) Tab 5-Fee Schedule (Weighted Value 35) Tab 6-Confidential Materials, Financial Statement and Litigation (Non-Scored) Tab 7-Exceptions to Draft Contract (Non-Scored) Tab 8-Addenda (Non-Scored) Tab 9-Required Documents (Non-Scored) The proposals were to be scored on a scale of 0 to 4 with a score of 0 as the least favorable, and a score of 4 as the most favorable in all sections. RFP, Section IV, 1.C, noted that a vendor’s response would receive a score of 0 if it was “Unsatisfactory: Not responsive to the question.” The RFP did not provide objective measures for the evaluators to score the proposals. Instead, the School Board relied on the experience and judgment of each evaluator as to what score to award in each category. The RFP notified vendors that, after the proposals were evaluated, the Evaluation Committee might conduct interviews or presentations from a shortlist of vendors. Per the terms of the RFP, the School Board required each winning vendor to enter into a Master Services Agreement. The Master Services Agreement was to ensure that each vendor for the Photography Services complied with, and operated under, the same terms and conditions. These standard terms and conditions included, but were not limited to, requirements for background checks, licenses, certificates of insurance, as well as the use of a common commission’s structure. Thereafter, the School Board intended for each district school to select a company from the list of approved vendors from whom they desired to obtain the Photography Services. After the 13 vendors presented their proposals on August 15, 2017, the School Board distributed a thumb [USB] drive from each vendor to each Evaluation Committee member. At that point, each committee member separately scored each proposal using the four weighted criteria listed in RFP, Section V: Experience of Personnel (25 points), Technical Approach Methodology (30 points), References (10 points), and Fee Schedule (35 points). On September 21, 2017, the Evaluation Committee convened a “short-list meeting” to discuss the scores each committee member awarded to each vendor. When Cady Studios’ proposal came up for review, two committee members, Dr. Trent Daniel and Byron Durias, announced that the USB drives they had been given for Cady Studios were blank. Dr. Daniel had tried her USB drive on two computers with similar results: the USB drive did not contain any files. Ms. Lowder then asked both members if they wished to review another USB drive or a paper copy of Cady Studios’ presentation so that they could score its proposal. Dr. Daniel declined. On her score sheet for Cady Studios, Dr. Daniel wrote before the short-list meeting, “could not read USB - empty.” During the discussion between the other evaluators, Dr. Daniel added: “notes, experience limited, reference from school, senior package high, presentation of bid, partnership w/ Herff Jones.” At the end of the discourse, because she had no proposal to score, Dr. Daniel disclosed to the Evaluation Committee that she awarded Cady Studios a score of “0” in every category. Mr. Durias, however, was willing to evaluate Cady Studios during the short-list meeting. Therefore, Ms. Lowder provided him another USB drive that did contain Cady Studios’ proposal. After his review, Mr. Durias awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 1 – References, and 2 – Fee Schedule. Each USB drive that Tina Langdon and Donald Miller received for Cady Studios contained its proposal, which they scored. Ms. Langdon awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 3 – Fee Schedule. Mr. Miller awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 2 – Fee Schedule. At the final hearing, Dr. Daniel explained that she passed on the opportunity to rescore Cady Studios’ proposal because, in her mind, a blank response (or USB drive) equated to a nonresponsive proposal. In other words, she scored what she had been given. Cady Studios’ proposal was “unsatisfactory” because it contained no response to the questions. Dr. Daniel further commented that Cady Studios’ failure to ensure that its proposal was properly copied onto all of its USB drives was irresponsible and unprofessional. This carelessness gave Dr. Daniel apprehension about the quality of service Cady Studios would provide if it could not follow the RFP’s explicit directions. Following the discussion and scoring of the vendors’ proposals, the Evaluation Committee members ranked all 13 vendors by overall total weighted scores. The Evaluation Committee’s final list of vendors and their scores read as follows: Grad Images: 1335 Life Touch: 1290 Leonard’s: 1272.5 Dean Stewart: 1140 Strawbridge: 1095 Josten’s: 1030 Walsworth: 1010 Cady Studios: 720 Barksdale: 715 Nation Wide: 710 Monden Studios: 705 Herff Jones: 670 Ritoba: 585 As shown above, Cady Studios received the eighth highest score. The Evaluation Committee then discussed which vendors it should invite back for informal interviews. After a brief deliberation, the Evaluation Committee reached a consensus that it should extend an interview to the top seven vendors on the scoring list. Dr. Daniel and Ms. Lowder explained that this division was chosen because of the “natural break” in the scores between the seventh ranked vendor (Walsworth) and the eighth ranked vendor (Cady Studios). Ms. Lowder relayed that the relatively large scoring differential between Walsworth (1010) and Cady Studios (720) (nearly 300 points) appeared to separate the top vendors from the others. Therefore, to narrow down the list of vendors to those most qualified to provide the Photography Services, the Evaluation Committee chose this gap as the dividing line. Dr. Daniel relayed that she had previously used this “natural break” scoring technique in cheerleading and dance competitions. Ms. Lowder testified that the RFP did not establish an exact number of vendors the School Board should select to provide the Photography Services. Neither did the RFP state how the vendors were to be condensed, if at all. The Evaluation Committee, however, felt that the number of approved vendors should be limited. A truncated list of vendors would provide a more manageable group for the School Board to oversee to ensure that each vendor offered a similar pricing structure and consistent services. This action would also make it easier for individual schools to select the vendor with which they desired to work. As a result of the Evaluation Committee’s “natural break” methodology, Cady Studios was not grouped with the winning vendors for the Photography Services. As a non-selected vendor, Cady Studios was not authorized to offer Photography Services to the district schools for the length of the RFP contract period (3 to 5 years). Cheryl Olsen serves as the School Board’s Director of Purchasing and Distribution. In this role, she supervised the procurement activities. After the Evaluation Committee’s short- list meeting, Ms. Olsen prepared a “Short List Letter” for the top seven vendors. The letter notified the vendors of their ranking on the short list and invited them back for informal interviews with the Evaluation Committee. On September 22, 2017, Ms. Lowder forwarded Ms. Olsen’s letter to the seven short-listed vendors. The interviews were scheduled for September 28, 2017. On September 28, 2017, the Evaluation Committee met with each of the seven short-listed vendors. Following the interviews, the Evaluation Committee decided that the School Board should offer the Photography Services to all seven short- listed vendors. That afternoon, Ms. Olsen drafted a Notice of Intended Decision announcing the intent to award the RFP to the top seven vendors. Ms. Olsen posted the Notice of Intended Decision on-line through both VendorLink and Demand Star. The Notice of Intended Decision stated: The Purchasing and Distribution Services Department hereby notifies all firms of an intended decision regarding the award of the [RFP] as outlined below or attached. The firms on the attached list will be recommended to the School Board on October 17, 2017 with final contracts to be presented at a future meeting. Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes.[6/] Attached to the Notice of Intended Decision was the list of the seven vendors who the Evaluation Committee intended to recommend to the School Board for award of the RFP. Cady Studios was not included on the list. On October 10, 2017, the School Board formally approved an award of the Photography Services to the seven vendors identified in the Notice of Intended Decision. On November 7, 2017, the School Board entered into a Master Services Agreement with each of the seven winning vendors for the Photography Services. The initial term of the Master Services Agreements runs from November 8, 2017, through November 7, 2020. Jimmy Smith works as the Market Vice President for Cady Studios. In his role, Mr. Smith oversees all of Cady Studios’ photography services in Florida. Mr. Smith prepared Cady Studios’ proposal for the RFP. Mr. Smith explained that he is familiar with the competitive solicitation process. He has previously submitted proposals on behalf of Cady Studios for school photography services in Pinellas, Hillsborough, and Brevard Counties. In a typical school portrait arrangement, the parents/students directly pay the studio for the photography services. The studio then pays a commission back to the school. Prior to the RFP, Cady Studios was an approved vendor for the School Board. Cady Studios had worked with approximately four schools in the Seminole County School District. Mr. Smith was also familiar with VendorLink and Demand Star, the on-line platforms the School Board used to publish information regarding the RFP. Mr. Smith learned about the RFP after the School Board had already posted notice of the solicitation on July 18, 2017. However, by August 9, 2017, Mr. Smith had registered Cady Studios with VendorLink, and began receiving the notifications regarding the RFP. On Sunday, September 24, 2017, Mr. Smith found out about the Evaluation Committee’s short-list from another vendor. Mr. Smith then accessed the VendorLink website and spotted the Evaluation Committee’s invitation to the seven top vendors to return for informal interviews. When he discovered that Cady Studios was not included on the list, he concluded that Cady Studios would not be awarded the Photography Services contract. Mr. Smith promptly wrote an e-mail to Ms. Lowder. He asked her for any information as to why Cady Studios did not make the Evaluation Committee’s shortlist. Ms. Lowder received Mr. Smith’s e-mail the following morning on Monday, September 25, 2017. She replied to Mr. Smith both through an e-mail, as well as a phone call. During the phone call, Ms. Lowder offered to meet with Mr. Smith for a “debriefing” to review the Evaluation Committee’s decision. Ms. Lowder did not offer any information as to why Cady Studios was not included with the short-listed vendors. Ms. Lowder and Mr. Smith scheduled the debriefing meeting for Thursday, October 5, 2017. In the meantime, Mr. Smith received the School Board’s Notice of Intended Decision on September 28, 2017. He did not contact Ms. Lowder to reschedule the debriefing meeting. On October 5, 2017, Mr. Smith met with Ms. Lowder and Ms. Olson for the debriefing meeting. They reviewed the results of the Evaluation Committee’s short-list meeting, as well as each evaluator’s scores. During this meeting, Mr. Smith first discovered that one evaluator (Dr. Daniel) scored Cady Studios’ proposal with a “0” in every category. Mr. Smith further learned that Cady Studios received this score because the USB drive Dr. Daniel had been given was blank. At the final hearing, Mr. Smith adamantly declared that all 10 USB drives that he produced for the School Board contained Cady Studios’ proposal. He had no idea why two of the drives were blank when opened by Dr. Daniel and Mr. Durias. Mr. Smith also pointed out (correctly) that the RFP contained no provisions regarding what an evaluator was supposed to do with a blank USB drive. The RFP certainly did not direct the evaluator to score the proposal with all zeros. In his communications with Ms. Lowder, Mr. Smith never indicated that Cady Studios intended to protest the School Board’s ranking of vendors, or challenge the School Board’s decision in any other manner. However, on October 12, 2017, legal counsel for Cady Studios, Jeff Childers (Cady Studios’ counsel in this administrative matter), wrote to Ms. Olsen questioning the results of the RFP. Mr. Childers referenced the fact that one evaluator failed “to assign any points in any category to Cady.” Mr. Childers concluded by requesting that the School Board consider resolving this issue informally by allowing Cady Studios “to join the other seven authorized proposers” to provide Photography Services to district schools. On October 16, 2017, Ms. Olsen responded to Mr. Childers in a letter saying: The Notice of Intent to Award this solicitation was posted on September 28, 2017 at 2:24 p.m. In accordance with School Board Policy 7.71, Resolution of Bid Protests, “Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation.” Ms. Olsen then noted that, as of the date of her letter, Cady Studios had not filed a written notice of protest with the Office of the Superintendent or Clerk of the School Board. At the final hearing, Ms. Olsen (as well as Ms. Lowder) explained that, because the School Board posted its Notice of Intended Decision on Thursday, September 28, 2017, the 72-hour deadline to file a protest fell on Tuesday, October 3, 2017. (Saturday, September 30, 2017, and Sunday, October 1, 2017, are excluded in the computation of the 72-hour time period. See § 120.57(3)(b), Fla. Stat.) The fact that Mr. Smith’s debriefing meeting occurred two days after the 72-hour period had elapsed did not change the protest calculation. As described above, the School Board’s Notice of Intended Decision specifically stated, in pertinent part: Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes. Similarly, RFP, General Purchasing Terms and Condition, Paragraph 10, entitled, RFP TABULATIONS, RECOMMENDATIONS, AND PROTEST, addressed the possibility of a bid protest and stated: Failure to file a protest within the time prescribed in Section 120.57(3) Florida Statutes will constitute a waiver of proceedings under Chapter 120, Florida Statutes and School Board Rules.[7/] Paragraph 10 also referenced School Board Policy 7.71, Resolution of RFP Protest, and included a link to the School Board’s policy webpage where the Policy 7.71 could be accessed. Policy 7.71, Section V, states: Notice of Protest - Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation. In the event notice of intent to award a bid is issued by certified mail or express delivery service return receipt requested, the notice of protest must be filed on or before 4:30 p.m. on the third day following the date of receipt of the notice. In computing the deadline for filing, Saturdays, Sundays, and legal holidays observed by the School Board shall be excluded. Despite Ms. Olsen’s letter, as well as the language regarding protests in the RFP and the Notice of Intended Decision, Cady Studios formally filed a Notice of Protest with the School Board on November 9, 2017. At the final hearing, Mr. Smith acknowledged that 72 hours following the Notice of Intended Decision (not including Saturday and Sunday) fell on October 3, 2017. Therefore, to explain the delay in submitting Cady Studios’ Notice of Protest, Mr. Smith testified that he did not become aware of the material deficiencies in the Evaluation Committee’s review of Cady Studios’ proposal until he met with Ms. Lowder on October 5, 2017. Mr. Smith further admitted that he was not fully aware that Cady Studios only had 72 hours in which to protest the Notice of Intended Decision. Instead, he relied on Ms. Lowder to explain the RFP process, as well as the basis for the Evaluation Committee’s selection of the winning vendors. Consequently, Mr. Smith asserted that Cady Studios “was misled or lulled into inaction by” the School Board’s (Ms. Lowder’s) action of not scheduling a debriefing meeting until two days after the 72-hour protest window had closed. Mr. Smith maintained that if he had been informed of the deadline, Cady Studios would have filed immediately. Mr. Smith conceded that he was familiar with the protest language contained in the RFP’s General Purchasing Terms and Conditions, and was generally aware that the RFP referred to section 120.57(3). Mr. Smith further disclosed that he had read RFP, Paragraph 10, which identified Policy 7.71. However, he did not click the link to actually read the policy. Mr. Smith estimated that, by not making the School Board’s list of approved vendors for the Photography Services, it will lose approximately $2,000,000 worth of business and opportunity costs every year over the life of the contract. At the final hearing, Ms. Lowder responded to Mr. Smith’s testimony by pointing out that, even if Dr. Daniel had awarded Cady Studios with a “1” in each category, Cady Studios’ score would only have increased to 820. As the next lowest score to Cady Studios was 1010, Cady Studios’ adjusted score would still have fallen significantly below the top seven vendors. Continuing to conjecture, Ms. Lowder commented that if Dr. Daniel had given Cady Studios scores similar to the lowest score awarded by the other committee members, Cady Studios’ score would have equaled 935. This score is still below the “natural break” threshold of 1010. On cross examination, however, Ms. Lowder agreed that if Dr. Daniel awarded Cady Studios scores similar to the highest score awarded by the other committee members, Cady Studios would have received a score of 990--much closer to, but still below, the “natural break.” Ms. Lowder and Ms. Olsen also remarked that November 9, 2017, the date Cady Studios eventually filed its Notice of Protest, was 27 business days after the deadline to file a bid protest (and 25 business days after Mr. Smith learned the Evaluation Committee’s scores at the debriefing meeting). Cady Studios’ Notice of Protest was also submitted after the School Board had entered into a Master Service Agreement with each of the seven winning vendors. As discussed in detail below, the evidence presented at the final hearing establishes that Cady Studios failed to timely file its notice of protest within 72 hours after the School Board posted its Notice of Intended Decision. Further, Cady Studios did not prove that it may circumvent the filing deadline based on the defense of equitable tolling. Therefore, Cady Studios’ challenge of the School Board’s intended award of the Photography Services must be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board enter a final order dismissing Cady Studios’ protest as untimely filed. DONE AND ENTERED this 23rd day of January, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 23rd day of January, 2019.
Findings Of Fact On August 7, 1983, the Petitioner, accompanied by two companions, a male and female, entered the Richway Department Store at 1941 South Military Trail in West Palm Beach, Florida. The male approached the store's service desk and attempted to obtain a refund for some silverware. Previously, the store security manager, Art Riggott, had been informed by telephone call from another local Richway Store that if two black females and a black male attempted to obtain a refund for silverware at his store, a refund should be refused. When Mr. Riggott advised the male that a refund for the silverware could not be issued without a receipt for its purchase, he left the silverware on the service desk counter and exited the store. While the two women were in the store, Mr. Riggott and another security officer kept them under surveillance. In the ladies wear department, they placed several articles of clothing in a carriage, including two women's jackets, and continued through the store, placing several other articles of merchandise in the carriage also. In the domestic department, the Petitioner was observed as she put the two jackets in her purse. The women then left the carriage in an aisle with the other merchandise in it, and exited the store. Outside, they rushed toward a red car parked at the curb, which was driven by the male who had sought the refund for silverware. The Petitioner was arrested. The other woman was able to get into the car before it sped off with one door open. The Petitioner was taken to the store office where her purse was opened and the two women's jackets were removed. The jackets had Richway price tags on them. They had been received by the Richway Store only two days before. When the Petitioner failed to appear at her scheduled court appearance, a bench warrant was issued for her arrest. She did appear at a subsequent hearing on January 20, 1984, and entered a plea of no contest to the offense of retail theft. The court withheld adjudication of guilt, ordered the Petitioner to pay a fine of $90.00, and rescinded the outstanding bench warrant. The Petitioner paid the fine. In 1985, after graduating from college, the Petitioner applied to the Dade County School Board for a teaching position. On her application, the Petitioner answered "no" to the question "Have you ever been convicted, fined, imprisoned or placed on probation in a criminal proceeding?" On this application, the Petitioner also certified that the information she provided was true, correct and complete to the best of her knowledge and belief, and that the information was furnished in good faith. The application includes the statement that any omissions or false statements will constitute reason for dismissal. The Petitioner was hired and worked during the 1985-1986 school year, but she was dismissed from this position when school officials learned of her criminal prosecution and the false statements on her employment application. On April 9, 1986, the Petitioner applied to the Department of Education for a Florida teaching certificate. On this application, the Petitioner answered "no" to a question "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Because the results of a routine fingerprint check by the Florida Department of Law Enforcement disclosed that the Petitioner had been arrested and prosecuted for shoplifting in August of 1983, the Petitioner's application was denied. On November 26, 1986, the Petitioner filed another application for a Florida teaching certificate. On this application the Petitioner disclosed that she had been arrested in West Palm Beach for shoplifting on August 3, 1983, and that adjudication of guilt was withheld. The Petitioner's falsification of her applications for employment and for a teaching certificate are acts of extreme dishonesty and conduct which would seriously reduce her effectiveness as an employee of the school system. Such conduct violates the Principles of Professional Conduct for Educators, and is unacceptable for members of the teaching profession.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Cherry D. Cornelius for a Florida teaching certificate, be denied. THIS RECOMMENDED ORDER entered this 2nd day of April 1987 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 2nd day of April 1987. COPIES FURNISHED: Ms. Cherry D. Cornelius 231 S.W. 15th Avenue Delray Beach, Florida 33444 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 J. David Holder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Karen Barr Wilde Executive Director Department of Education 125 Knott Building Tallahassee, Florida 32399 Hon. Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Department of Education 319 West Madison Street Room 3 Tallahassee, Florida 32301
The Issue Whether the Respondent is guilty of an unlawful employment practice against Petitioner on the basis of handicap.
Findings Of Fact On July 17, 2003, Petitioner filed with the Commission a Charge of Discrimination, in which she complained only that Respondent University of Florida (Respondent or UF) discriminated multiple times by not hiring her on the basis of handicap (dyslexia). The last date of this alleged failure to hire was stated in the Charge as June 8, 2003. The Charge had been typed and signed on July 17, 2003. The Charge contained no allegation that Respondent had terminated Petitioner due to discrimination. On October 27, 2003, the Commission entered its "Determination: No Cause." By its "Notice of Determination: No Cause" of the same date, the Commission notified Petitioner that she had 35 days in which to file her Petition for Relief. The thirty-fifth day after the Determination: No Cause fell on Monday, December 1, 2003. According to the Commission's date stamp, Petitioner filed her Petition with the Commission on December 3, 2003. Petitioner became employed by CCR-Head Start in September 2003. On her job application to CCR-Head Start, she did not list Respondent as a prior employer. The late Petition for Relief alleged, for the first time, that UF had jeopardized Petitioner's education and career opportunities in her job with CCR-Head Start, by character defamation against her and/or due to information that UF had not disclosed. Petitioner explained at hearing that this new allegation was intended to allege that UF had not provided course grades, CLAST results, and other general testing scores, and that UF had not provided a grade point average to Petitioner upon her request. (See Findings of Fact 21, and 23-25.) Again, the Petition contained no allegation that Respondent had terminated Petitioner due to handicap or for any other discriminatory reason. 1/ The late Petition for Relief further newly alleged that Petitioner's current employer, CCR-Head Start, had denied her a high-back chair, computer, desk, and business cards and was seeking ways to terminate her. This allegation against her current employer is totally extra-jurisdictional to these proceedings against Respondent UF. At hearing, Petitioner extended her allegations to include that UF has prevented her being hired for numerous advertised positions inside and outside UF, spread over three counties from 1999 to the date of hearing. At hearing, Petitioner also presented her view that in 1998-1999, while she was employed in UF's Horticultural Services Department, she was "persecuted" or "harassed" by her supervisor, Carolyn Reynolds, and other UF employees, due to cognitive comprehension problems, which she has self-diagnosed by unilateral computer research as "dyslexia." However, in addition to never having told anyone at UF that she is dyslexic, Petitioner testified that she also has never been professionally diagnosed as dyslexic.2/ Petitioner graduated from high school prior to her employment with Respondent and began taking some college courses at Santa Fe Community College. When Petitioner was first hired by Respondent in 1996, she scored 57 on a typing test, well above the passing score of 35. On May 2, 2003, Petitioner achieved an AA degree from Central Florida Community College. Petitioner achieved this degree after she ceased to be employed by Respondent in 1999. Petitioner was first employed with Respondent UF from 1997 to 1998 as a clerk in a medical area. In July 1997, she received a raise in salary. The single performance evaluation in evidence, which occurred during this period of time, shows improvement and rated her as satisfactory. In 1998-1999, Petitioner was employed by Respondent UF in the Horticultural Sciences Department. She held a secretarial position involving preparing, typing, and processing travel request and reimbursement forms, handling room and vehicle reservations, and typing correspondence for several professors. Ms. Reynolds was Petitioner's immediate supervisor. Despite graduating from high school and eventually junior college, Petitioner claims to have had "cognitive comprehension problems," especially with sequencing tasks and with mathematics, throughout her whole life. Petitioner also claims that while employed in UF’s Horticultural Services Department, these problems required her to repeatedly ask her supervisor to repeat all instructions and to write out some instructions so that she could refer to them. She also claims she had to ask co-employees to interpret or rewrite her supervisor's instructions and to interpret and/or rewrite the written material her professors gave her to type. (See also Finding of Fact 18.) Petitioner never told anyone associated with UF in 1998-1999 that she was dyslexic or that she had "cognitive comprehension problems," and she had no reason to believe that anyone else told UF personnel that she was dyslexic.3/ Petitioner perceived her requests for help in the Horticultural Services Department as alerting UF personnel to her "condition." She perceived their compliance with her requests as persecution and/or harassment. Yet, all the specific instances Petitioner described were of Ms. Reynolds and co-workers complying with her requests to repeat oral and written instructions. The co-workers who testified described Petitioner's requests as normal, or at least commonplace, because they understood that no one learns how to do everything at once and everyone sometimes needs help.4/ Petitioner demonstrated no disability in general life activities, such as walking, talking, or seeing. At most, she testified to having difficulty with mathematics and limited or categorical employment activities involving sequencing tasks. Petitioner assumed that her professors, supervisor, and co-workers in the Horticultural Services Department knew that she was dyslexic because the supervisor and co-workers had worked with her and accommodated her requests for help; because the professors let Ms. Reynolds evaluate her; and because of part of a conversation she overheard. (See Findings of Fact 14 and 17-18). Petitioner came upon Ms. Reynolds and a co-employee, Tami Spurling, talking. When Petitioner entered the room, Ms. Reynolds was saying to Ms. Spurling, "Do I have to write everything down for you? Are you ADHA too?" Then Ms. Reynolds and Ms. Spurling stopped talking. Petitioner never confronted either woman about what Ms. Reynolds had meant. Rather, she unilaterally inferred that the women stopped talking because they were talking about her. Petitioner also unilaterally inferred from Ms. Reynolds' comment about ADHA that both women knew or perceived Petitioner as dyslexic, or that Petitioner had some other type of learning disability, or that Petitioner had cognitive comprehension problems, whatever those might be. Petitioner's interpretation of this conversation is speculative and not a reasonable interpretation of the event.5/ Petitioner believes that her professors in the Horticultural Services Department in 1998-1999 discriminated against her on the basis of handicap because they did not give her typing assignments as they did other secretaries and because they allowed Ms. Reynolds to evaluate Petitioner’s job performance instead of evaluating her themselves. At hearing, Petitioner claimed for the first time that she was retaliated against because Ms. Reynolds forced her to resign in May 1999, (see Finding of Fact 19), because of her February 9, 1999, memo to Ms. Reynolds complaining that the professors were not giving her major typing assignments. Petitioner’s memo was admitted in evidence. However, Petitioner presented no evidence that any other secretary got more or better typing assignments than she did; that anyone else in her position was evaluated by the professors instead of by Ms. Reynolds; that the professors ever knew about her memo to Ms. Reynolds; or that Ms. Reynolds ever gave Petitioner a bad or unfair evaluation. Petitioner testified that sometime in 1999, she became depressed from a combination of the work place "harassment," as she perceived it; the loss of her stepfather; and the loss of her pastor. Apparently, she was absent from work for awhile after February 1999. She testified that when she returned to work, she presented Ms. Reynolds with a doctor's excuse for home rest for two weeks, and Ms. Reynolds then berated her for an hour and a half and gave her an ultimatum to quit or be fired. Petitioner stated first that she resigned because of this alleged "ultimatum" and then testified that she resigned because she was depressed and confused from the medicine she was taking. However, Petitioner's doctor's note was not offered in evidence, and her self-serving testimony was not corroborated. Petitioner's May 27, 1999, resignation letter to Ms. Reynolds states that Petitioner's last day would be June 8, 1999, and gives no reason for quitting. It does not bespeak of coercion. Petitioner further testified that Ms. Reynolds prepared a letter for the UF Personnel Office to get permission to rehire Petitioner in less than 100 days, contrary to a UF rule. Petitioner put in evidence a memo from a different supervisor, Lynn Jernigan, showing that UF employed Petitioner on OPS at UF's Department of Physical Therapy until August 5, 1999, and at that time, Petitioner refused Ms. Jernigan’s request to keep Petitioner’s name in the job hiring pool (P-13). Petitioner additionally put in evidence an exhibit that included a letter by Petitioner claiming to have been hired for a full-time job in UF's Physical Therapy Department.6/ Considering all of the foregoing, the undersigned is not persuaded that Petitioner was involuntarily terminated by Ms. Reynolds, effective either May 27, 1999, or June 8, 1999. At most, the evidence shows that after those dates, Petitioner was in an OPS position in a different department of UF, which position was not funded after August 5, 1999. Petitioner did not present credible evidence to show that Ms. Reynolds or any UF employees "blackballed" her from being rehired by UF or by any other employer in three Florida counties between June 8, 1999 (her last day in UF's Horticultural Services Department), and the date of hearing. She was also vague about what position, if any, with UF she was turned down for on the only date (June 8, 2003) listed in her Charge of Discrimination. (Cf.--Finding of Fact 21 and its Endnotes, discussing other dates and allegations.) Petitioner is credible that she was not hired in numerous positions from August 1999 (when she left Ms. Jernigan's department) until she was hired in September 2003, by CCR-Head Start. However, she did not affirmatively demonstrate that Ms. Reynolds of the UF Horticulture Services Department had hiring authority in any of the other UF departments Petitioner applied-to during this period of time. Petitioner conceded that Ms. Reynolds did not have hiring or firing authority in Ms. Jernigan's department, where Petitioner worked in August 1999. Petitioner did not know who made any of the hiring decisions rejecting her after she left Ms. Jernigan's department in 1999. Petitioner did not know who applied for any of the job openings within UF or with outside employers or who made the interview or hiring decisions for any of the jobs for which she applied. She did not present threshold evidence that she was minimally eligible for any of the jobs for which she applied or any evidence that the persons hired were less qualified than herself or were equally qualified but without a handicap. The possibility that a genuinely handicapped person was hired for each of these positions was not eliminated. The possibility that the jobs she applied for were not awarded to more qualified applicants was not eliminated. Finally, Petitioner did not demonstrate a nexus between any hiring decision of UF or any hiring decision of any other employer in the three-county area and her alleged handicap, and she showed no nexus between other potential UF supervisors or outside employers and her prior relationship with UF or Ms. Reynolds. Petitioner's mere speculations are not probative of discrimination. For purposes of the present case, Petitioner filed a Charge of Discrimination with the Commission on July 17, 2003, alleging that she was last not hired for a job on June 8, 2003. (See Findings of Facts 1-4 and 6, and n. 1.) However, about June 24-25, 2003, Petitioner also signed a "Workforce Innovation Complaint" form of the Commission, alleging against UF "constant surveillance"; on-the-job harassment; not being hired; and sabotage of her home computer line. This form represented that UF's discrimination against her was "June 1999" and the latest discrimination was "estimated at June 24, 2003." When or if her lawyers on that case ever actually filed the Workforce Innovation Complaint with the Commission is not clear.7/ However, the same lawyers seem to have helped Petitioner get her UF employment records. (See Finding of Fact 25.) From the chronology, it is clear that neither Petitioner's separation from UF in 1999 nor any failure to hire her on June 8, 2003, could possibly have been the result of retaliation for her filing either the June 24, 2003, Workforce Innovation Complaint or the July 17, 2003, Charge of Discrimination.8/ Neither is there any credible evidence that Petitioner was not hired at any time thereafter as a result of filing either the Complaint or the Charge. Petitioner testified, again without corroboration, that she had discussed her problems concerning Ms. Reynolds with someone in the UF Personnel Office in 1999, had been persuaded that further action was not necessary, and had elected not to pursue her allegations of discrimination at that time. Given all the evidence, this statement is less than credible, but assuming, arguendo, that the conversation occurred, it would be unreasonable and illogical to suppose UF would interfere with Petitioner’s subsequent attempts at employment for four years in retaliation for her not filing a charge of discrimination in 1999. With regard to Petitioner's late claim that UF withheld papers from her, there is no evidence in this record that Respondent withheld any employment records that impeded Petitioner being hired by anyone, including but not limited to CCR-Head Start. UF employees would have to have been clairvoyant to even guess that Petitioner was applying to CCR- Head Start. (See Finding of Fact 5.) Apparently, in 2002, Petitioner wanted some results of a CLAST test taken at her community college, but graded by UF. Exhibits in evidence show that UF permitted her to challenge these scores in April and August 2002, but the score was not changed. However, Petitioner put on no evidence that any portions of these standardized tests may legally be released to any test-taker. She did not demonstrate any reason that UF would have her college grades, test scores, or grade point average from other institutions. Petitioner testified that sometime in 2002, at the request of her lawyers for the Workforce Innovation Complaint, (see Finding of Fact 21), UF provided her with papers that purported to be her UF employment records but an UF employee removed some papers from the pile before handing the rest to her. Petitioner admitted that she did not know the UF employee and did not know what was in the pile of papers removed. Her only reason for believing UF misused her at that time was her unilateral belief that someone would not remove papers from a pile assembled for her lawyers unless they were hiding something from her. This is not a reasonable interpretation of the event described.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 June, 2004.
The Issue Whether the Respondent, Benny O. Tjia, should be suspended from his position with the University for one semester and be required to reimburse the University for one working day?
Findings Of Fact Benny O. Tjia has been employed by the University since July 1, 1975. Dr. Tjia has been employed as an Extension Floriculture Specialist in the Department of Ornamental Horticulture of the Institute of Food and Agricultural Sciences (hereinafter referred to as "IFAS"), of the University. IFAS, including the Department of Ornamental Horticulture, provides teaching, research and extension services at the University. Dr. Tjia is a tenured Associate Professor at the University with an appointment in the Department of Ornamental Horticulture. Dr. Tjia's duties include the planning, developing and implementation of off-campus educational programs and the dissemination of research information to plant growers and the public in the area of floriculture. Dr. Tjia is the only Extension Floriculture Specialist working throughout the State of Florida. The chairman of the Department of Ornamental Horticulture, and Dr. Tjia's immediate supervisor, is Dr. Thomas Sheehan. Dr. Sheehan's immediate supervisor is Dr. John T. Woeste, IFAS Dean for Extension. On July 22, 1987, Dr. Tjia requested approval of leave with pay for the period October 12-27, 1987. The purpose of this leave was to participate as a speaker at a conference scheduled for October 15-17, 1987, and to participate in a post-conference seminar on October 22, 1987, at Massey University, New Zealand. Dr. Sheehan, in a memorandum dated August 11, 1987, approved Dr. Tjia's request for leave with pay, but only for the period of October 13-24, 1987. Dr. Sheehan advised Dr. Tjia that any additional time off would have to be taken as annual leave. Dr. Sheehan further advised Dr. Tjia that he should inform Dr. Sheehan in advance of any future negotiations for proposed out-of-state or out- of-country travel in order to avoid any embarrassment to Dr. Tjia or the University if leave is not approved. In late August, 1987, Dr. Tjia discussed with an Australian businessman the possibility of presenting a series of seminars in Australia from October 26, 1987, through November 10, 1987. Dr. Tjia decided that be would request approval of leave without pay to attend the seminars in Australia. He realized, however, that he did not have sufficient annual leave to cover the period of time he planned to spend in Australia. Therefore, Dr. Tjia requested the payment of 2,000.00 as compensation for his participation in the Australian seminars, which he believed would reimburse him for the leave without pay he would have to take from the University. During the first week of September, 1987, the Australian businessman and Dr. Tjia agreed that Dr. Tjia would participate in the seminars. Despite Dr. Sheehan's instructions to discuss out-of-county travel with him before accepting, Dr. Tjia did not inform Dr. Sheehan of, or obtain approval for, the Australian seminars before or after agreeing to participate. On Friday October 9, 1987, Dr. Tjia left a request for annual leave for the period October 26, 1987, through November 2, 1987, with Dr. Sheehan's secretary Dr. Tjia did not indicate in his request that he intended to participate in seminars in Australia during this period of time. Instead, Dr. Tjia indicated that he intended to visit relatives. On October 9, 1987, Dr. Tjia also left a request for leave without pay for the period November 3-13, 1987. Again, Dr. Tjia did not indicate in his request that he intended to participate in seminars in Australia during this period of time. Instead, Dr. Tjia indicated that he was requesting the leave for "personal reasons." Dr. Tjia did not discuss or attempt to discuss his leave requests of October 9, 1987, with Dr. Sheehan. When Dr. Sheehan received Dr. Tjia' leave requests on October 9, 1987, he attempted to contract Dr. Tjia to determine more information about Dr. Tjia's leave plans. Dr. Sheehan was unable to contact Dr. Tjia, however. After being informed that Dr. Tjia was running errands and would not return to this office on October 9, 1987, Dr. Sheehan wrote a memorandum to Dr. Tjia granting his request for annual leave on October 26, 1987, through November 2, 1987, and denying his request for leave without pay. A copy of this memorandum was left on Dr. Tjia's desk and in his University mail box and the original was mailed to Dr. Tjia's residence. Dr. Sheehan did not attempt to call Dr. Tjia. Dr. Tjia left the University on October 9, 1987. He left Gainesville, Florida, on Saturday October 10, 1987. Dr. Tjia never informed Dr. Sheehan that he intended on leaving Gainesville on October 10, 1987, instead of October 13, 1987, the first day of his approved leave. Dr. Tjia did not return to the University until November 16, 1987. Dr. Tjia was absent from the University without approval on October 12, 1987, and from November 3, 1987, through November 15, 1987. Dr. Tjia did not submit his request for approval of his proposed absence without pay until the last minute and did not wait until he determined whether his absence had been approved because he did not believe that his request would be approved. Dr. Tjia did not report to work on Monday, October 12, 1987. Dr. Tjia did not receive approval for his absence on October 12, 1987. October 12, 1987, was Columbus Day. Although Columbus Day is a Federal holiday, it is not a holiday for University personnel. Although Dr. Tjia was told by the department's administrative secretary that Columbus Day was a day, Dr. Tjia should have known that Columbus Day had not been a holiday for University personnel ever since his employment by the University in 1975. Additionally, Dr. Tjia was provided with a list of holidays in a memorandum which did not list Columbus Day as an authorized holiday. Dr. Tjia's testimony that he believed Columbus Day was a holiday is inconsistent with the fact that he requested approval of leave on July 22, 1987, for October 12, 1987. On or about October 19, 1987, Dr. Sheehan realized that Dr. Tjia had not receive the memorandum disapproving Dr. Tjia's request for leave without pay before his departure on October 10, 1987. Therefore, Dr. Sheehan telephoned Dr. Tjia's host in New Zealand an left a message requesting that Dr. Tjia call him. On October 21, 1987, Dr. Tjia telephoned Dr. Sheehan. Dr. Sheehan read his October 9, 1987, memorandum denying Dr. Tjia's request for leave without pay to Dr. Tjia over the telephone. Dr. Tjia was informed that he must return to the University on November 3, 1987 and that his failure to do so would constitute grounds for disciplinary action, including dismissal. On October 29, 1987, Dr. Sheehan received a letter dated October 23, 1987, from Dr. Tjia. In this letter Dr. Tjia indicated that he would not return to the University on November 3, 1987, as instructed by Dr. Sheehan. Dr. Tjia indicated that he would not return because he believed that his cancellation of his commitments would cause embarrassment to himself and the University. On October 30, 1987, Dr. Sheehan sent Dr. Tjia a mailgram, in care of Dr. Tjia's Australian host. Dr. Sheehan informed Dr. Tjia in the mailgram that his failure to report to the University a directed would constitute insubordination, neglect of his responsibilities to the University and a violation of the University's rules and regulations. Dr. Sheehan also called the spouse of Dr. Tjia's Australian host twice and asked her to ask Dr. Tjia to call him. Dr. Tjia received the information contained in Dr. Sheehan's mailgram of October 30, 1987, and Dr. Sheehan's request to call. Dr. Tjia did not call Dr. Sheehan, however, because he knew what Dr. Sheehan was trying to tell him. Dr. Tjia returned to the University on November 16, 1987. Dr. Tjia knew that he would be disciplined for failing to return to the University on November 3, 1987. Dr. Tjia did not visit relatives during the period of his annual leave as he indicated he planned to do in his request for annual leave. On November 19, 1987, Dr. Sheehan delivered a letter to Dr. Tjia from Dr. Woeste dated November 16, 1987. In this letter Dr. Tjia was informed that the University intended to suspend him without pay for the Spring Semester of 1988 (January 4 - May 5, 1988). Dr. Tjia was also informed that he would be required to reimburse the University for his salary for October 12, 1987. Dr. Tjia was informed that these actions were being taken because of his absence from the University on October 12, 1987, and during the period of November 3-13, 1987, without approval. Dr. Tjia was also informed that his actions constituted insubordination and neglect of his responsibilities to the University. Finally, Dr. Tjia was informed that he had the right to respond to the letter in writing or he could request a meeting within ten days of receipt of the letter. Dr. Tjia did not respond to the letter. By letter dated December 9, 1987, Dr. Woeste informed Dr. Tjia that the University had decided to take the actions outlined in the letter of November 16, 1987. Dr. Tjia was advised that he had the right to request a hearing pursuant to Section 120.57, Florida Statutes. Dr. Tjia requested a hearing pursuant to Section 120.57(1), Florida Statutes. The proposed action of the University was held in abeyance pending conclusion of the hearing. During the period of Dr. Tjia's absence without authorization from November 3, 1987, through November 13, 1987, Dr. Tjia's duties and responsibilities as an employee of the University were not carried out by Dr. Tjia. As a full-time faculty member, Dr. Tjia was required to be present at the University to preform day-to-day responsibilities unless his absence was approved by the University. Dr. Tjia did not perform these duties. Dr. Tjia received the University Faculty Handbook in January of 1984 and in the Fall of 1987. At page 24 of the 1987 Handbook it is provided: A leave of absence without pay may be granted by the President when it is determined that the leave of absence is an important benefit to the faculty member and the University. Pursuant to this provision, faculty members are required to provide sufficient information to demonstrate the benefit to the University and the faculty member of any leave without pay requested by a faculty member. IFAS Internal Management Memorandum Number 6C1-6.30-1-11, which Dr. Tjia received, requires that University faculty members submit requests for leave without pay well in advance of the period of leave. Dr. Tjia did not comply with the portion of the Handbook quoted, supra, by providing the University with sufficient information in his request for leave without pay of October 9, 1987, or otherwise, which demonstrated any benefit to the University. Dr. Tjia also did not comply with IFAS Internal Management Memorandum Number 6C1-6.30-1-11. Instead, Dr. Tjia waited until the day of his departure from the University and the day before his departure from Gainesville before submitting his request for leave without pay. Dr. Tjia intentionally waited until October 9, 1987, to request leave without pay because he was afraid it would be denied. No other employee of the Department of Ornamental Horticulture has requested leave without pay. Leave without pay has not been approved by the University for faculty members who desire to engage in the type of activities Dr. Tjia engaged in while he was absent from the University without approval. Leave without pay has only been granted for short periods of time when an employee has been inadvertently unable to return to the University as planned. Leave without pay has not been granted under circumstances similar to those involved in this case. Dr. Tjia, as a University faculty member, is charged with knowledge of the rules of the University and the Board of Regents. Dr. Tjia was aware, or should have been aware of the pertinent rules an regulations concerning leave and disciplinary matters. He also knew that he was in violation of those rules when he failed to return to the University on November 3, 1987, as directed by Dr. Sheehan. Dr. Tjia also knew that suspension was one of the penalties that could be imposed for neglect of duties or for insubordination. The University has suspended faculty members for misconduct. The University has not suspended any faculty member under circumstances similar to this case but no faculty member has failed to return to the University when instructed to do so other than Dr. Tjia. Dr. Tjia's failure to return to the University at the end of his annual leave on November 3, 1987, could have been treated by the University as a voluntary resignation pursuant to Rule 6C1-7.029(11), Florida Administrative Code. The University chose the lesser penalty of suspension to give Dr. Tjia an opportunity to remain with the University. The University chose suspension as the penalty in order to impress upon Dr. Tjia and other employees the seriousness of Dr. Tjia's offense, especially in light of his prior leave- related disciplinary problems. Dr. Tjia has been reprimanded and suspended by the University in the past for leave-related violations at the University. On August 30, 1984, Dr. Tjia received a written reprimand for absence from the University without approval. On September 27, 1985, Dr. Tjia was suspended without pay for ten days for being absent from the University without approval and for misrepresentations to University officials.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the University issue a Final Order requiring Dr. Tjia reimburse the University within thirty days of the date of the Final Order for his absence from the University on October 12, 1987, and suspending Dr. Tjia from his position with the University without pay for one semester. DONE and ENTERED this 13th day of December, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5611 The University has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The University's Proposed Finding of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2 4-6. 3 7-8. 4 9-11. 5 12-13 and 17. 6 12-14. 7 12-13 and 31-33. 8 15. 9 16-17 and 19. 10 20-21. 11 22. 12 23-25. 13 26, 28 and 36. 14 27. 15 26 and 28. 16 28. 17 29. 18 36 and 39. 19 40. 20 41. 21 30. 22 34-35. 23 37-38. COPIES FURNISHED: Marshall M. Criser, Jr. President University of Florida 226 Tigert Hall Gainesville, Florida 32611 Isis Carbajal de Garcia Assistant General Counsel Office of the General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32011 Harry F. Chiles Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1501 Tallahassee, Florida 32399-1000 Rodney W. Smith, Esquire Post Office Box 625 Alachua, Florida 32015
The Issue Whether or not on March 16, 1977, the Respondent, Verna A. Robinson, entered the home of Edward Johnson at 1100 Little River Drive, Miami, Florida, and fired several shots at Edward Johnson; who suffered gun shot wounds in the wrist, upper arm and hip. Whether or not this alleged conduct described is in violation of Section 231.36(6), and 231.09, Florida Statutes; together with Rules 6A-4.37, 6H-1 and 6H-5, Florida Administrative Code, in that it is conduct that is grossly immoral and a poor example for students. Further, whether or not such alleged conduct raises serious questions as to the Respondent's emotional preparedness to properly deal with the normal stresses which arise in classroom teaching.
Findings Of Fact This cause is brought upon the notice of charges by the Petitioner, dated September 22, 1977, as amended November 1, 1977. This action is placed against the Respondent, Verna A. Robinson, who is the holder of Florida Teaching Certificate no. 176010, Graduate, Rank II, valid through June 30, 1979; which covers the areas of Elementary Education and Junior College. The charging document prays for the dismissal of the Respondent as an employee of the Dade County School Board. The facts in this case show that the Respondent was acquainted with one Edward Johnson, to the extent that they had been intimate over a period of seven years. By .arch 16, 1977, the relationship between Mrs. Robinson and Mr. Johnson had diminished to some degree. On that date, in the late afternoon, a telephone conversation was held between the Respondent and Johnson. The discussion concerned getting together to attend a movie. Johnson declined to go with Robinson and this was the cause of some consideration on the part of the Respondent. The depth of that consternation was demonstrated when the Respondent went to the home of Johnson, later that afternoon and carried a pistol with her. When she arrived at the Johnson hone she was admitted by Mr. Johnson's son and there ensued a short conversation. It should be indicated that the Johnson and Robinson families were social friends, and Mrs. Johnson worked as a teacher in the same school where the Respondent was employed. After Mrs. Robinson entered the home the son indicated that his father was changing clothes, to which Mrs. Robinson replied "ice doesn't need any clothes". She then approached Johnson, who was in the bedroom area of his home and stated to him "I'll teach you to fuck with me". She then fired several shots, five or six in number, at Johnson, striking him with three-of the bullets in the area of his wrist, shoulder and hip. The wounds were not fatal. The Respondent then turned around and left the house and was followed by the Johnson's teenaged son who threw an object through her windshield as she was departing the scene of the confrontation. During the course of this exchange at the Johnson home, the Johnsons to include the victim, Edward Johnson, his wife and son, did not find the Respondent to be overly excited. The Respondent then went to the home of a fellow teacher one Linda Panapas. When she arrived, Mrs. Panapas described the Respondent as being agitated, disoriented, illogical and incoherent. She said the Respondent stormed about the house speaking in incompleted sentences and Mrs. Panapas found it very difficult to understand what had transpired. She did however discern that something had happened involving a shooting. The Respondent did not indicate who had been shot. Something in the conversation lead Mrs. Panapas to call the Johnson home where she was told that there had been a shooting. One other factor in the shooting which was described by the Respondent, was the fact that she had thrown the gun away afterwards. Early the next morning the Respondent voluntarily surrendered herself to the Dade County Public Safety department. She spoke with a police officer of that organization whose name is John Little. At that time the Respondent was given an opportunity to make a statement. After being advised of her constitutional rights she indicated that she remembered throwing out a gun while driving on Interstate 95 near Northwest 103 Street in Dade County, Florida. At the time of this interview, there was no sign of lack of control of her faculties, that could be detected by the officer. The principal of the elementary school where the Respondent was working at the time of the shooting was contacted on the day after the incident. The school is the Norwood Elementary School, in Dade County, Florida. The principal in that school is Betty Angell. Ms. Angell stated that at the time of the incident she was unaware of the involvement between the Respondent and Johnson. When Robinson contacted the principal she stated that she would be taking some days off, but did not indicate for what reason. Later, on the Sunday following the shooting, Robinson spoke to Ms. Angell at Ms. Angell's residence. Mrs. Robinson explained to Ms. Angell that Robinson and Johnson had, "got to liking each other too much and she had more than she could take." The Respondent was interested in knowing what would happen to her career in view of the incident. It was explained to Mrs. Robinson, by's. Angell, that she might be recommended for suspension or placed in some other school. Mrs. Robinson was not opposed to being placed in another school. During the conversation at the Angell home, the Respondent remained calm and appeared to be sorry for what had happened. The Respondent has not returned to the school where she teaches. According to Ms. Angell, prior to this event, the Respondent had been a teacher of high caliber, even though she recalled a few deficiencies in Mrs. Robinson's teaching effectiveness. Ms. Angell now holds the opinion that Mrs. Robinson's effectiveness as a teacher has been impaired because she has demonstrated an inability to manage conflict and in the mind of Ms. Angell this would translate itself into an ineffectiveness in dealing with the conflicts between the various students in Mrs. Robinson's class. Ms. Angell holds this view, notwithstanding the fact that the children and other people within the community and school are unaware of the incident itself. Moreover, Ms. Angell indicated that steps had been taken to keep the incident from becoming a matter of common knowledge within the community and within the Norwood Elementary School. She has made these efforts because she feels that if the incident became a matter of community knowledge it would create problems on the issue of the effectiveness of Mrs. Robinson. The Respondent was charged with the shooting of Edward Johnson under the terms of Chapters 782.04(1) ad 777.04(1), Florida Statutes. She was tried for those offenses of attempted murder in the first degree, and possession and display of a firearm. The outcome of that trial was a finding that the Respondent was not guilty because she was insane at the time of the commission of the offenses. This decision was reached in view of the opinion of several experts in the field of psychiatry and psychology. The same experts testified in the course of the hearing at bar. The experts testified about their observations of Mrs. Robinson shortly after the shooting and immediately prior to the hearing before the undersigned. The observations of the experts could be summarized; however, they are sufficiently critical to warrant examination separately. One of the specialists who saw the Respondent at the request of the Circuit Court, was Jeffrey J. Elenewski. Mr. Elenewski has a doctorate in clinical psychology. Elenewski saw the Respondent in May, 1977. From his observation he concluded that the Respondent was suffering an accute disassociative reaction at the time of the shooting incident involving Mr. Johnson. This reaction rendered the Respondent out of contact with reality. Elenewski arrived at this opinion after doing psychological testing on the Respondent and through clinical observation of the Respondent. Beginning on June 7, 1977, the Respondent was treated by Dr. Elenewski through individual psychotherapy. He saw her weekly for approximately one hour through the end of September, 1977. She has called and discussed her situation with Dr. Elenewski subsequent to September, 1977, as occasion demanded. On January 30, 1978, Dr. Elenewski saw the Respondent for purposes of examining her mental state in the context of the present time. Again he conducted clinical interviews and gave her a battery of tests. The clinical interview took approximately one hour and the testing a period of two to three hours. His overall opinion of the Respondent based upon his January 30, 1978 observations and prior history, was to the effect that she has made an adequate psychological adjustment after the incident. At the January 30, 1978 session he found her to be relatively free of anxiety, to be energetic and innovative and someone who is extremely conscientious and dedicated to her profession. Dr. Elenewski currently believes the Respondent does not present a danger to herself or to other people, and would not pose any specific danger to children of the age group which she teaches. Moreover, Dr. Elenewski feels that the Respondent possesses attributes that make her an excellent role model for children. In his view, the Respondent has strong self-confidence and through the recent past has developed a high tolerance for frustration. Dr. Elenewski believes that the shooting incident was an isolated incident and is extremely encapsulated and he does not feel that those stresses and pressures which lead to the incident would exist in the future. Because the incident itself was one that the Respondent was not conscious of, it was therefore an act without premeditation, according to Elenewski. The Respondent was also seen by Dr. Syvil Marquit. Dr. Marquit is a clinical psychologist who had examined Mrs. Robinson at the request of Mrs. Robinson's defense attorney. He saw her for a period of six or seven hours in the latter part of April, 1977, this interview sequence followed some initial testing in the beginning of April, 1977. His conclusions about the Respondent were that at the time of the offense, that she did not know right from wrong and was suffering from a frenzied disoriented state, to the extent that another personality emerged. By April, 1977, Dr. Marquis felt that the Respondent was no longer a danger to herself or to others but still might become a danger if not treated. Dr. Marquit saw Mrs. Robinson again on February 3, 1978. At that time the interview phase and psychological testing that was done took place over a period of two hours. He found Mrs. Robinson to be much improved and not as depressed as of the time of the interview in April, 1977. Based upon the February, 1978 observation, Dr. Marquit feels that the Respondent could handle herself well in a classroom setting in times of stress. In summary, Dr. Marquit felt that the Respondent was unaware of the events that took place during the course of the incident, but has sufficiently recovered to be able to continue in her role as a teacher. At the time of the criminal offense, the Circuit Court also ordered the Respondent to be examined by Dr. Arthur D. Stillman. Dr. Stillman is a psychiatrist. Dr. Stillman saw the Respondent in April, 1977. His initial observations of the Respondent was to the effect that she was serious minded and cooperative in a studied way. She was able to respond to the questions readily and had no fragmentation of thinking, looseness, or dysphoria or euphoria. She denied any delusions or hallucinations. Her memory, to his observation, was generally good except for the events in which she was found to be amnesiac. Those events pertained to the incident in question. At best she had vage screen memories of those parts of the incident. From his observations and the testing that was done, Dr. Stillman concluded that the Respondent showed evidence of a psychotic episode. He felt that she needed therapy for her condition, and that she presented potential for acting out. Specifically concerning the events that occurred in the shooting, Dr. Stillman felt that she was suffering from a temporary, transitory episode and was insane at the time of the commission of the offense. Dr. Stillman saw Mrs. Robinson again in February, 1978, in his mind there had been some improvement and although the Respondent was not totally aware of her situation in terms of an emotional perception of the incident, she was improving. In Dr. Stillman's opinion, the patient would benefit from further attention in the area of the difficulty involved in the shooting incident. Dr. Stillman felt like Mrs. Robinson had not achieved enough insight about the why of the events of the shooting incident. The type of treatment that she needs is not a structured treatment plan. However, in his view, the chances of such an event reoccurring are remote. He did not find her to be a danger to herself or others or in particular, children. In Dr. Stillman's mind the Respondent is a good role model because she is stable after having suffered through a rather traumatic experience, and additionally because she got sick and recovered. The incident in itself in Dr. Stillman's opinion is an isolated event, and now he feels that she is sufficiently recovered to deal with stress. In Dr. Stillman's analysis, the sickness caused her to commit the act, not a lack of morality. Finally, Dr. Stillman feels that Mrs. Robinson would be more effective in helping children deal with their problems of stress, because of the experience she has suffered through. One of the other witnesses that testified in the course of the hearing was Samuel Hudson Latimore. Mr. Latimore is the Detention Superintendent of the Dade Detention Facility. This facility deals with juvenile delinquents, and has as one of its functions the education of those children. Beginning in August, 1877, the Respondent volunteered to work in this facility. This voluntary service was not a condition imposed by any court. According to Latimore, the Respondent works at the facility twice a week, two or three hours a day and teaches 10 through 18 year old boys and girls. In his mind, the Respondent has demonstrated herself to he competent and effective in dealing with this type of young person. Latimore stated that she teaches survival skills, and aspects of getting jobs and helped to develop programs for these young people. In Latimore's opinion, its. Robinson would be capable of working with any children in an education setting. He feels that she is very qualified to fulfill this function and believes this even after being made aware of the shooting incident. Mrs. Robinson's husband, her minister and fellow employees at the school where she taught, also gave testimony. Those individuals stated that she has done well in the school setting in the past and has attempted to face up to the problem that lead to the incident with Mr. Johnson. Mr. Robinson, her husband, has stood by his wife during the pendency of the present charges and the criminal prosecution that was brought against her. His testimony demonstrated that he intends to continue living with his wife and to assist her in whatever fashion necessary to deal with the remnants of the problem which she has had. The Petitioner has charged the Respondent with a number of violations. Specifically, a violation of Sections 231.36(6) and 231.09, Florida Statutes; together with Rules 6A-4.37, 6B-1, and 65-5, Florida Administrative Code. The facts when considered in light of the language of those provisions of the Florida Statutes, and the Florida Administrative Code, demonstrate to the Petitioner that the Respondent is guilty of conduct which is grossly immoral and a poor example for students. The Petitioner further feels that those facts show that the Respondent is guilty of conduct which raises serious questions as to whether or not Verna A. Robinson is emotionally prepared to properly deal with the normal stresses which arise in classroom teaching. In examining the basis of the charges, the provisions of Section 231.36(6), reads as follows: Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, may be suspended or dismissed at any time during the school year; provided that no such employee may be discharged or removed during the school year without opportunity to be heard at a public hearing after at least ten days' written notice of the charges against him and of the time and place of hearing; and, provided further that the charges must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. An examination of the testimony offered in the course of the hearing, with due regard to the fact that the testimony of the experts in the fields of psychiatry and psychology is unrefuted, leads to the conclusion that the Respondent is not guilty of immorality or conviction of any crime involving moral turpitude, as alleged. At the time the offense was committed, the Respondent was found to he insane by the jury, and therefore was not convicted of any crime involving moral turpitude. The same opinion which was expressed by the experts, to the effect that the Respondent did not appreciate the nature of her act, leads to the conclusion that she was not capable of committing an immoral act, because such acts of immorality prosuppose intent and knowledge. The Respondent being insane at the time of the commission of the act was incapable of such intent and knowledge. An examination of the provisions of Section 231.09, D-f Florida Statutes, leads to the conclusion that none of the provisions found in the charges have been violated by the act which the Respondent committed, for the reasons discussed in examining Section 231.36(6), Florida Statutes, to include the fact that the pupils in her school are unaware of the events for which Mrs. Robinson has been charged. Therefore, it can not be said that what she did is a poor example for pupils in their deportment and morals and in the future the accurate impression which has been offered by the psychiatrist and psychologist shows that she will be an example for people in their deportment and morals. The provision concerning deportment and morals comes directly from the Section 231.09(2), Florida Statutes. It should also be stated that that particular provision has been held unconstitutional in the case of Meltzer v. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals). However, on petition for rehearing and petition for rehearing en banc, which is reported at 553 F.2d 1008, the U.S. Fifth Circuit Court of Appeals granted rehearing with the right for oral argument and the opportunity to submit supplemental briefs, with the date of the oral argument to be announced. That rehearing has been held but no decision has been rendered. Consequently, the remarks about the provision, Section 231.09(2), Florida Statutes, have boon offered with the caution that the section may be ultimately held unconstitutional. In the charging document, the Petitioner makes further reference to certain rules of the Florida Administrative Code. The first reference is to Rule 6A-4.37, Florida Administrative Code. That provision pertains to the procedures to be utilized in cases of this sort, and does not set forth substantive requirements, which if violated would constitute grounds for disciplinary action. Again, Rule 6B-1, Florida Administrative Code, sets forth the Code of Ethics of the education profession in the State of Florida; however, it does not delineate substantive requirements which would he cause for consideration under the factual allegations in these charges. Rule 6B-5.07, Florida Administrative Code, reads as follows: Management Techniques. In exercising management techniques, the competent educator shall: Resolve discipline problems in accordance with law, state board regulations, school board policy, administrative regulations and accepted school policies, Maintain consistency in the application of policy and practice, Use management techniques which are appropriate to the particular setting such as group work, seat work, lecture, discussion, individual projects and others, and Develop and maintain standards of conduct. These provisions should be read in conjunction with the provisions of 6B-5.10 and 5.11, Florida Administrative Code, which state: 65-5.10 Human and Interpersonal Relationships. Competent educators are held to possess effective human and interpersonal relations skills and therefore: Shall encourage others to hold and express differing opinions or ideas, Shall not knowingly misinterpret the statements of others, Shall not show disrespect for or lack of acceptance of others, Shall provide leadership and direction for others by appropriate example, Shall offer constructive criticism when necessary, Shall comply with reasonable requests and orders given by and with proper authority, Shall not assign unreasonable tasks, and Shall demonstrate self-confidence and self- sufficiency in exercising authority. 6D-5.11 Personal Requirements. In assessing the mental or physical health of educators, no decision adverse to the educator shall be made except on the advice or testimony of personnel competent to make such judgment by reason of training, licensure and experience. However, certain behaviors are held to be probable cause to examine, and each competent educator within the scope of delegated authority shall: Be able to engage in physical activity appropriate to the designated task except for temporary disability, Be able to communicate so effectively as to accomplish the designated task, Appropriately control his emotions, and Possess and demonstrate sufficient intellectual ability to perform designated tasks. When these requirements are examined in view of the facts that were offered in the course of the hearing, it is clear that the Respondent is able to resolve those problems of discipline in a proper manner and to deal with the interpersonal relationships between the students, to include students who are having conflict. Moreover, it is clear that the Respondent would be able to control her emotions in the classroom setting and is emotionally prepared to deal with the normal stresses in classroom teaching. In conclusion, the facts do not warrant the dismissal of Verna Armstrong Robinson as an employee of the Dade County School Board.
Recommendation It is recommended that the action for dismissal of the employee Verna Armstrong Robinson, he withdrawn and that Verna Armstrong Robinson be allowed to continue as a teacher employed by the Dade County School Board. It is further recommended that that employment he at some school other than the Norwood Elementary School. DONE AND ENTERED this 20th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse J McCrary, Jr., Esquire 300 Executive Building Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Elizabeth J. du Fresne, P.A. Suite 1782, One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 Michael S. Hacker, Esquire Hacker, Phelps & Matters Suite 1400 - Ainsley Building 14 Northeast First Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY Petitioner, vs. CASE NO. 77-660 VERNA ARMSTRONG ROBINSON, Respondent. / ORDER OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA THIS CAUSE came on for hearing before The School Board of Dade County, Florida, at its regular meeting on June 28, 1978, upon the Hearing Officer's findings of fact, conclusions of law, and recommended order, recommending that the action for dismissal of Verna Robinson be withdrawn and that Verna Robinson be allowed to continue as a teacher employed by the School Board of Dade County, The attorneys for Robinson and the School Board have waived the 90-day requirement for rendition of orders under the provisions of the Florida Administrative Procedure Act. IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that: The Hearing Officer's Findings of Fact; attached hereto, are adopted by the School Board of Dade County, Florida. The Hearing Officer's Conclusion of Law are modified to the following extent and effect: Paragraph one of the Conclusions of Law is accepted. Paragraph two of the Conclusions of Law is rejected in that the action of the respondent, Verna Robinson, was immoral and cause for dismissal under the provisions of Florida Statutes section 231.36(6), and not in keeping with the duties of instructional personnel set forth in Florida Statutes section 331.09, and the Florida Administrative Code Chapter 6B-1 or Chapter 6B-5. Verna Robinson be and is hereby dismissed from her employment with The School Board of Dade County, Florida and that Verna Robinson shall receive no compensation from The School Board of Dade County, Florida from March 23, 1977 at 5:00 p.m. DONE AND ORDERED this 5th Day of July, 1978. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA Phyllis Miller, Chairman
The Issue Whether the Respondent, Beverly Enterprises, d/b/a Heritage Health Care Center-Tallahassee, discriminated against the Petitioner, Johnnie Caldwell, on the basis of his sex?
Findings Of Fact The Parties. The Petitioner, Johnnie Caldwell, is a male. The Respondent, Beverly Enterprises, d/b/a Heritage Health Care Center- Tallahassee, (hereinafter referred to as the "Beverly"), is a nursing home located in Tallahassee, Florida. Mr. Caldwell's Employment by Beverly. In 1987 or 1988, Mr. Caldwell began employment with Beverly at its Heritage Health Care Center-Tallahassee (hereinafter referred to as "Heritage"), nursing home. Mr. Caldwell was employed as a "dietary associate" in the kitchen of Heritage. Mr. Caldwell was supervised by a "dietary manager", the person in charge of Heritage's kitchen. During the time that Mr. Caldwell was employed by Beverly he worked for at least three different dietary managers. All three dietary managers who supervised Mr. Caldwell were women. Mr. Caldwell's Disciplinary Problems. By his own admission, Mr. Caldwell had problems with all three of the dietary managers he worked for. All three managers issued written reports concerning problems they experienced with Mr. Caldwell. The first dietary manager issued an oral warning to Mr. Caldwell on or about January 1, 1991, for failing to follow instructions. The second dietary manager issued an oral warning to Mr. Caldwell on or about December 20, 1991, for excessive tardiness. She also issued a written warning to Mr. Caldwell on or about January 8, 1992, for an altercation with another employee. Finally, she issued a second written warning to Mr. Caldwell on or about February 13, 1992, for excessive tardiness. Mr. Caldwell's Termination from Employment. Sometime during 1992, the third dietary manager Mr. Caldwell was supervised by, Rhonda Herndon, was placed in charge of Heritage's kitchen. Ms. Herndon was located at Heritage from another Beverly nursing home because of difficulties with the staff of the kitchen at Heritage. Ms. Herndon, who was experienced in operating other nursing home kitchens, began to actively supervise the Heritage kitchen. Mr. Caldwell, who had worked at Heritage for approximately five years, testified that he felt that he "knew what needed to be done without any supervision" and that he resented Ms. Herndon's efforts. Mr. Caldwell did not believe that Ms. Herndon knew what she was doing. Mr. Caldwell simply did not want to accept the fact that Ms. Herndon was in charge of the kitchen and all the employees of the kitchen, including him. Mr. Caldwell described Ms. Herndon as a "tough lady." The evidence, however, failed to prove that Ms. Herndon was doing anything other that performing her responsibilities and carrying out her duties. Because of Mr. Caldwell's attitude and lack of respect for Ms. Herndon's authority, he was placed on probation on or about June 16, 1992, as part of his annual evaluation. On or about July 7, 1992, Mr. Caldwell was discharged from employment by Beverly for insubordination while on probation. The insubordination took place when Mr. Caldwell was questioned by Ms. Herndon about why he was continuing to work in the kitchen beyond the end of his shift. When questioned about why he HAD yet clocked out, Mr. Caldwell became agitated, argued with Ms. Herndon and made comments to other employees as he left the kitchen. Ms. Herndon recommended to the manager of Heritage that Mr. Caldwell be discharged. Heritage's manager discussed the matter with Alvin Taylor, Director of Associate Relations for Beverly. Mr. Taylor approved Mr. Caldwell's discharge. Mr. Caldwell was terminated from employment due to the fact that he was not adequately performing his job. Mr. Caldwell failed to prove that Beverly's reason for terminating his employment was a pretext. Mr. Caldwell's Charge of Discrimination. On or about September 25, 1992, Mr. Caldwell filed a Charge of Discrimination against Beverly with the Florida Commission on Human Relations. Mr. Caldwell alleged that he had been discriminated against on the basis of his sex. On June 9, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " On June 29, 1993, the Commission issued a "Notice of Dismissal" based upon the failure of Mr. Caldwell to file a request for redetermination. On August 19, 1993, after Mr. Caldwell filed a Petition for Relief, the Commission issued a "Rescission of Notice of Dismissal" reinstating this matter. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Caldwell. Alleged Sex Discrimination. Mr. Caldwell failed to prove that any action of Beverly was based upon Mr. Caldwell's sex: he was not held to any standard or requirement based upon his sex and he was not terminated because of his sex. In support of his charge, Mr. Caldwell testified that he believed that Ms. Herndon "didn't like him or men." No factual basis for Mr. Caldwell's belief was offered. Mr. Caldwell also testified that there was a "rumor" that Ms. Herndon had said that "men should not work in the kitchen" and that "she did not like working with men." No evidence to prove these rumors was offered. Mr. Caldwell failed to prove that any Beverly policy or standard had a disparate impact on male employees. Mr. Caldwell failed to prove that he was replaced by a female employee. Mr. Caldwell failed to prove that Beverly discriminated against him on the basis of his sex, male.
