The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
Findings Of Fact The petitions herein were filed by Petitioner with PERC on June 16, 1975. (Hearing Officer's Exhibits 1 and 2). The final hearing was scheduled to be conducted on September 17, 1975, by Notice dated August 26, 1975. (Hearing Officer's Exhibit 3). The Intervenor filed a petition with the Public Employees Relations Commission on June 26, 1975. (Hearing Officer's Exhibit 6). The Intervenor's petition was dismissed by the Chairman of PERC on August 6, 1975. The Motion to Intervene was filed with PERC on September 8, 1975. (Hearing Officer's Exhibit 8). The School Board of Broward County is a Public Employer within the meaning of Florida Statutes Section 447.002(2). (Stipulation, TR, vol. I, pp. 13, 14). The Petitioner is an employee organization within the meaning of Florida Statutes Section 447.002(10). (Stipulation, TR, vol. I, pp. 14, 15). The Intervenor is an employee organization within the meaning of Florida Statutes Section 447.002(10). (Stipulation, TR, vol. I, pp. 14, 15). There is no contract bar to holding an election in this case. (Stipulation, TR, vol I, p. 15). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 5). Intervenor offered approximately 88 signed statements into evidence at the hearing as Intervenor's Exhibit 5. The statements express the signers' desire to resign from membership in the Petitioner. The statements were not accompanied by any testimony or other evidence with respect to their authenticity, and they were not, therefore, received in evidence. No additional evidence was offered at the hearing to rebut the administrative determination previously made by PERC respecting Petitioner's showing of interest. PERC has previously determined that the Intervenor is a duly registered employee organization. (Hearing Officer's Exhibit 7). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. In order to make a proper showing of interest in support of its Motion to Intervene, Intervenor offered authorization cards which had previously been forwarded to PERC in Case No. 8H-RC-754-2177, and which were not found by PERC to be stale and untimely. Intervenor offered additional authorization cards at the hearing, which cards have been forwarded to PERC by the undersigned. At the time of the hearing no administrative determination had been made by PERC with respect to the Intervenor's showing of interest. No evidence was offered at the hearing to rebut such an administrative determination in the event that one is made. The Broward Educational Secretaries Association is an employee organization which is seeking to represent a unit of clerical personnel employed by the Public Employer. Petitioner and Intervenor are not seeking to represent the same employees which the Broward Educational Secretaries Association is seeking to represent except that the Intervenor wishes to include employees in the Purchasing and Warehousing Departments in the unit in this case. The International Union of Operating Engineers, Local 675; the Plumbers and Pipe Fitters, Local Union 719; the International Brotherhood of Electrical Workers, Local 728; and the Air Conditioning Local 725, are building trades unions which are seeking to represent employees of the Public Employer who perform building trades labor. At the time that the hearing was held none of these organizations had filed any petition with PERC seeking to represent employees of the Public Employer, and no motions to intervene were made at the hearing. The organizations had joined to form a new organization, the Broward County Public Employees Maintenance Committee. This new organization had registered with PERC, and is actively seeking to represent employees of the Public Employer. The new organization had not filed any petition with PERC, and made no motion to intervene at the hearing. The Petitioner, the Intervenor, and the Public Employer agree that the appropriate collective bargaining unit would include the following employees: Bus Drivers, Bus Driver Aides, Substitute Bus Drivers and Aides, Mail Service Employees, Garage Employees, Assistant Head Custodians, and Head Custodians, Warehousemen and Maintenance Men, except that there is a disagreement as to whether tradesmen should be included. The parties agree that the following employees should be excluded: all instructional personnel, and confidential and managerial employees. The functions of the School Board of Broward County are divided both functionally and geographically. The School Board of Broward County serves as the legislative body of the Broward County School System. The superintendent is the Chief Executive Officer. The central school board office is divided into four primary departments: Instructional Services, headed by a Program Superintendent for Instruction and a Program Director; Business Services, headed by a Program Director; Operational Services, headed by a Program Director, and Personnel Services, headed by a Director. Many school board functions are administered on a decentralized basis in four geographic areas. Each of the schools within the Broward County system fall within one of the areas. The principal of each school is charged with the responsibility for administering both instructional and non-instructional functions at the school. Each geographic area performs support functions for the schools. Four departments have been established in each area to perform the support functions. These departments are headed by a Curriculum Analyst, a Business Analyst, a Supervisor of Maintenance and Operations, and a Supervisor of Transportation. Employees involved in this case are employed in the Central Operational Services Department, in the purchasing and warehousing office of the Central Business Services Department, in the area Maintenance and Operations and Transportation Departments, and at the individual schools. There are five departments within Operational Services. The School Facilities Department is headed by a Director. This department is responsible for planning the construction of new schools or additions to already existing schools. Personnel in the department serve as a liaison between educational personnel and the school board architects. Once a project is approved by the School Board and the State, and has been contracted, the School Facilities Department supervises construction. The Minor Capital Outlay Department is headed by a Coordinator. The Coordinator prepares the budget for the Department, assigns duties, and coordinates the activities of the Department with maintenance personnel in the areas. When area maintenance personnel have special problems that cannot be handled in the ordinary course of their work day, the area supervisor from Maintenance and Operations will request assistance from Minor Capital Outlay. Five supervisors work under the Coordinator. The Plumbing Supervisor is responsible for seeing that supplies are furnished, determining what jobs need to be performed, assigning personnel to the jobs, and seeing that all jobs are accomplished. The Plumbing Supervisor submits a proposed budget to the Coordinator, coordinates purchases with area supervisors, and serve as the first step in the grievance procedure. The Electrical Supervisor, Custodial Services Supervisor, Portable Classroom Supervisor, and Painting Supervisor have the same duties and responsibilities as the Plumbing Supervisor within their respective realms. Functions performed by the Minor Capital Outlay Department which are not supervised in the `foregoing manner are supervised by foremen or leadmen. These personnel answer directly to the Coordinator. They are responsible for submitting budget information to the Coordinator, serve as the first step in the grievance procedure, and coordinate purchases with area supervisors. The Auxiliary Services Department, which is headed by a Director, covers the garage, transportation, and mailroom. The garage is responsible for maintaining buses and all school board vehicles. The Garage Coordinator is responsible for supervising activities at the garage. A Body and Paint Foreman, a Shop Foreman, and Day and Night Shift Mechanic Foremen answer to the Garage Coordinator. These foremen are working foremen. The Transportation Division is headed by a Coordinator. The Central Transportation office coordinates with transportation offices in each area. Area Transportation Supervisors work out bus routes for the individual schools based upon information submitted by the school principals. The central office coordinates with the area offices to assist in routing of buses. Bus drivers answer to the Area Transportation Supervisors, and to the Principals at the individual schools. The primary function of the Central Transportation Office is to coordinate activities of the Area Transportation offices. The mailroom provides intra-school mail service. The mailroom is headed by a mailroom specialist. The Pupil Accounting and Sight Planning Department is responsible for maintaining demographic records of the county, in order to determine where future schools should be built, and when they should be built. The department coordinates the acquisition of school sites. The department consists of a Director, two secretaries and three clerk typists. The Safety Department was previously a division of the Auxiliary Services Department. It is now a separate department under Operational Services. The Department consists of a Coordinator and two Inspectors. These personnel are certified by the State Department of Education to make health and safety inspections of the school facilities. In the event of an accident, these personnel would make an investigation and report. Such an investigation might result in disciplinary action being taken against other employees. A part of the Safety Inspector's function might be to testify at grievance hearings relating to accidents. These employees would be eligible for membership in the Petitioner, but the Constitution of Petitioner would not permit the employees to file reports that might cause disciplinary action to be taken against another member of the Petitioner. Each area is headed by an Area Superintendent. The Area Superintendent is responsible for both instructional and non-instructional matters within the area. School principals answer to the Area Superintendent. The Supervisor of Maintenance and Operations, and the Supervisor of Transportation for each area also answer to the Area Superintendent. There is no intermediate management in the non-instructional divisions of the areas. Various functional divisions of the Maintenance and Operations Departments may have working foremen which generally direct the activities of the crews. There is, for example, a small mower foreman in each area. Employees in the areas receive the same salaries and benefits, and work the same hours as the employees in the central office. A journeyman electrician assigned to the Maintenance and Operations Department of an area would receive the same employment benefits as a journeyman electrician assigned to the Minor Capital Outlay Department of Operational Services in the central office. School principals are in charge of both instructional and non- instructional matters at the schools. The principal is responsible for hiring and firing the school's custodians and on-site repairmen. The on-site repairmen will coordinate their activities with the area maintenance and operations office, but they will nonetheless answer to the principals. Head custodians provide principals with information respecting monetary needs, but they play no other budget role. Head custodians play no policy or collective bargaining role. Head custodians do serve as the initial step in the grievance procedure. Some of the principals in the school system place strong reliance upon their head custodians; others do not. Some principals assign the head custodians the responsibility of interviewing prospective employees, and such principals rely upon the head custodian's recommendations respecting hiring, firing, promotion, and vacations. Head custodians generally perform the same functions as other custodians, in addition to their supervisory functions. Head custodians will open the school plants, perform maintenance chores, clean floors, and move heavy objects. Some head custodians are given virtually no supervisory role respecting other custodians. Some of the schools employ student custodians. Student custodians answer to the Head Custodian and to the Principal. They work on a part-time, irregular basis during the school year. Regular custodians work on a full-time regular schedule, twelve months per year. Student custodians are paid less than regular custodians. The Purchasing and Warehousing Department is located within Business Services. The Director of Purchasing and Warehousing answers to the Program Director of Business Services. The Purchasing and Warehousing Department is divided into a Purchasing Division, a Property and Inventory Control Division, and a Warehouse Division. The Purchasing Division is headed by a supervisor who answers to the Director of Purchasing and Warehousing. The Purchasing Division is responsible generally for purchasing all supplies for the school system. Supplies are sent to the warehouse and are delivered from the warehouse to the schools. There are twenty-one employees in the Purchasing Division. Fifteen are Clerks or Clerk Typists. These employees generally type invoices and do filing. There are four Buyers in the Division. These employees process requisitions, process bids, and write bid specifications. The Buyers will consult with maintenance and instructional supervisors respecting supplies. The Purchasing Division is in constant contact with the warehouse, although the division is located approximately five miles from the warehouse. Three Purchasing Clerks work at the warehouse. These employees sit at desks and do not wear warehouse uniforms. Many persons in the Purchasing Division have been members of the Broward Educational Secretaries Association for some time, and wish to be represented in collective bargaining by that organization. Other employees of the Purchasing Division have been members of the Intervenor. The Public Employer employs numerous employees who perform work generally classified as in the building trades. Trade unions affiliated with the AFL-CIO have a long-standing agreement among themselves that they will not seek to represent members of another affiliated union's trade. The trade unions commonly refer to members of their trade as within their "jurisdiction". Neither the Petitioner, the Intervenor, nor the Public Employer are parties to that agreement. Tradesmen employed by the Public Employer do perform non-trade work. All tradesmen will drive trucks. The crane operator is often not engaged in that activity and will perform other maintenance work. Plumbers are occasionally called upon to dig ditches. Approximately 90 percent of the tradesmen's work is in their trade. The School Board has participated in an apprenticeship program which is managed in part by the trades unions. Through this program an employee of the School Board can become a journeyman. The program is not mandatory, and employees can become journeymen without participating in it. No evidence was offered at the hearing showing any direct conflict between tradesmen and other employees of the Public Employer. ENTERED this 12 day of March, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida
Findings Of Fact The Respondent is a Public Employer within the meaning of Section 447.203(2), F.S, William F. Sietsema was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S. Richard O. Prather was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S. The pleadings attached to Exhibit 1 show that on July 19, 1976 Petitioner, Local 2019 of the IBEW, filed a representation petition; on August 12, 1976 the Petitioner filed the Unfair Labor Practice Charge here under consideration; that on September 22, 1976 Petitioner and Public Employer entered into a Consent Election Agreement that was approved by the Chairman of PERC on or about October 1, 1976; that the election was held on November 12, 1976; and that on November 18, 1976 Petitioner filed Objections to the election. Several unions, including IBEW, made organizational drives to represent the city employees of Leesburg. While IBEW was engaged in their drive, the Supervisor of the Sanitation Department, John Torpey, on July 28, 1976, held an informal meeting with the employees of the Sanitation Department. At this meeting Torpey advised the employees that a pay raise was scheduled to commence on October 1, 1976 and gave specific examples of how it would affect their pay. He also advised them that, if representation by a union was voted for, pay schedules and working conditions would have to be negotiated with the union. He clearly indicated that he was opposed to a union representing the employees; however, if they were represented by the union he would follow the contract that was negotiated. He also advised of pending transfers from the Parks Department and cautioned the employees regarding the care of automated equipment recently provided by the city to facilitate the handling of garbage and to eliminate the need of the collectors to "tote" the garbage and lift it to dump it in the garbage truck. The Sanitation Department is under the Public Works Department (PWD). Meetings of a similar nature where policies, working conditions and productivity are discussed had been held more frequently than once per month in the past. These meetings were also used to pass departmental policies to the crews. The director of PWD had advised his superintendents to pass along to their men the city's policy that solicitation for union membership would not be tolerated during working hours, but would have to be done either before or after work or during the lunch period. Although no one specifically testified that this was one of the subjects discussed by Torpey at the July 28 meeting, the testimony respecting the "white cards" discussion by Torpey could well have stemmed from Torpey passing this policy directly to his crews. The crews assigned to garbage pickup consist of a driver and two toters. Those picking up in residential areas work specific routes on Mondays and Tuesdays and repeat those routes on Thursdays and Fridays. On Wednesdays they pick up trash. Since the advent of the automated equipment the container, which is on wheels, is placed at the curb by the residential customer. The toter wheels this container to the back of the truck where it is mechanically lifted and dumped into the truck and returned to the street. The toter then returns the container to the curb and replaces the lid. The garbage crews commence work at 8:00 a.m. Upon completion of their route they return to the "barn" from where they are released after it is ascertained there have been no "skips". If skips are reported the same crew is required to return to pick up the garbage or trash they missed. As a result of being released when their "task" is completed the sanitation employees are usually free to go home by noon or 1:00 p.m. Seldom do they work beyond 2:00 p.m. They are paid for a full eight hour work day. Parks Department employees, also in the PWD, commence work at 7:00 a.m. and complete their work day at 3:30 p.m. with one half hour off for lunch. These employees trim shrubs, hoe, mow, plant, cultivate, and remove trash. Prior to the advent of the mechanical equipment in the Sanitation Department the turnover in this department was approximately 100 percent per year. Subsequent to the installation of this equipment the turnover rate has been comparable to the turnover rate for laborers in other departments of the city. Transfers from Parks Department to Sanitation Department are frequently made with the more recently employed laborers the first to be transferred. On January 27, 1977 William Sietsema was transferred from the Parks Department to work as a toter in the Sanitation Department and assigned to the crew of Johnson, driver, and Prather, toter. During the first week in August Johnson was off-duty one or two days and Norris Griffiths was assigned to drive his route on Wednesday, August 4. On August 4, 1976 the crew comprised of Griffiths, Prather, and Sietsema were on trash pickup and, because of insufficient equipment, had skipped a load on Susan Street. Shortly before completing their route Johnson, who was driving a radio equipped truck, encountered them and relayed a radio message that Torpey wanted to see them and for them to wait for him when they returned to the barn. All members of the crew were cognizant of this instruction. Prather requested Johnson to pick up the trash they had skipped on Susan Street and Johnson told him that it was not his, Johnson's, job. Apparently the discussion involving Johnson and the pick up crew occurred from the two trucks and was overheard by all parties. Accordingly all members of the crew were aware they had skipped the pick up on Susan Street and would undoubtedly have to return to pick it up. Upon their return to the barn the driver gassed the truck and the other two walked into the office where Prather looked at the "skip" pad then he and Sietsema departed. Shortly thereafter, when Griffiths went into the office he was told by the secretary about Torpey's message and he acknowledged that they all knew about the message. They were also all aware that they had skipped the load on Susan Street. Prather and Sietsema both testified that Griffiths had told them they could leave; however, Griffiths categorically denied giving such permission and further testified that he had returned to get another truck and equipment to get the Susan Street pick up. Only Sietsema was seen in the office by the secretary and she was unaware that he was in the crew with Griffiths. Neither Prather nor Sietsema made any inquiries in the office regarding Torpey's message but they were aware that Torpey was not there when they arrived. Torpey arrived some ten minutes later but Prather and Sietsema had departed. A well established and understood policy of the Sanitation Department was that the crews did not depart the barn area until released. Generally the driver checks at the office for reported skips and, if none, either releases the crew or another supervisor releases them. When Torpey arrived and learned that Sietsema and Prather had departed knowing of his instruction to wait for him, as well as the load they had skipped on Susan Street, and that Griffiths had not authorized them to leave, he wrote a memo to his superior, the Director of PWD, requesting that they be dismissed. The following morning when Sietsema and Prather arrived for work they were advised that Torpey wanted to see them. Upon reporting to Torpey he asked why they did not follow his instructions and he advised them that if they couldn't follow instructions they could hit the road. When Prather asked if that meant they were fired Torpey told them that the Director of PWD (Jack Willard) had the final word on firing and that they could talk to him. Both Sietsema and Prather became upset and Sietsema (or both) made several disparaging comments which were overheard by Willard in an adjoining office. Neither Prather nor Sietsema made any effort to see Willard and later that morning Willard signed the personnel papers discharging both of these men. Immediately after being advised by Torpey they were being fired Prather went to the City Manager to complain of his treatment. Sietsema demanded that all the pay due him be ready by noon and the following day he complained of his firing to a city commissioner. Both men testified they where upset, Prather sufficiently so to have used profanity; although Torpey attributed use of profanity at the firing only to Sietsema, which Sietsema denied. People who feel strongly that they are being unfairly treated normally go to the closest person capable of settling their grievance. In this case that would be Willard but no effort was made to obtain a hearing from Willard who was sitting in an adjoining office. Torpey testified that at the time the recommendation for dismissal was made, he had no information that either Prather or Sietsema were promoting union recognition. The Director of PWD had previously been advised that Sietsema and others were promoting union recognition and he advised his superintendents to be sure their employees knew that union promotion was restricted to times other than work hours. Willard testified that Earl Gray, foreman of the Parks Department where Sietsema worked for about eleven months, had advised him that Sietsema had been promoting the union on city time. Immediately following this testimony the following was asked: "Q. And isn't it a fact, Mr. Willard, that John Torpey came to you one morning before work and told you that Bill Sietsema was meeting with the men about the union and you replied that it was all right so long as it was before work? Yeah; true. Q. Is that true? A. uh-huh. Q. Isn't it a fact, Mr. Willard, that you were fully aware that Bill Sietsema was actively supporting the union? A. Him and some other people too." Torpey denies he ever mentioned Sietsema by name to Willard but "may have said that I had heard that there was some talk of organization in the area of the Public Works." (TR p. 235-236) The testimony of Willard and Torpey is not necessarily conflicting with respect to Torpey's knowledge of Sietsema's activities. As noted above Willard was asked two questions to which he replied one time, "yeah; true." The first part of the question pertained to Torpey telling him about Sietsema's activities and the second part involved the city's position that solicitation was all right if not conducted on city time. In earlier testimony (TR p. 128) Willard acknowledged that he had met with his department heads and told them that "the union should not be discussed on work time." A fair conclusion from all the evidence presented on this matter is that Gray, for whom Sietsema had worked for eleven months and not Torpey, for whom Sietsema worked for six days, advised Willard regarding Sietsema's union activities and that Willard's affirmative answer quoted above related only to the second half of the question posed. Previously other employees in the Sanitation Department had been dismissed for leaving before their departure was authorized and thereby requiring someone else to pick up garbage or trash they had skipped. On one occasion an entire crew was fired because they left the barn area without reporting in to see if they had any skips, when, in fact, they had skips and others had to pick up the skips. On other occasions toters have left without permission and not been disciplined when no skips had occurred and management did not become aware of the infraction. Findings of Fact submitted by Respondent not contained in the finding's above were either not supported by evidence or not relevant to the issues presented.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged by Petitioner in her Employment Charge of Discrimination.
Findings Of Fact During all times material to this case, Petitioner was employed by Respondent as a park ranger at Alafia River State Park in Lithia, Florida. On January 1, 2010, Petitioner became a full- time park ranger, and from this date through June 5, 2014, Petitioner was supervised by Coy Helms, the manager for Alafia River State Park. Respondent terminated Petitioner’s employment for “poor performance and conduct unbecoming a public employee.” The events that led to Petitioner’s termination from employment with Respondent occurred on March 28, 2014. Petitioner is a 40-plus-year-old Christian female, who identifies as being of Greek and Native American origin. Petitioner describes her skin color as “olive.” Background Information On November 18, 2013, Petitioner received a written reprimand from Coy Helms, who at the time served as park manager at Alafia State Park and Petitioner’s immediate supervisor. Petitioner was reprimanded for insubordination and conduct unbecoming a public employee. According to the reprimand, Petitioner had interactions with certain park volunteers that resulted in complaints being filed with Mr. Helms. The written reprimand advised that “THIS IS AN OFFICIAL WRITTEN REPRIMAND [and that] FUTURE VIOLATIONS MAY RESULT IN FURTHER OR MORE SEVERE DISCIPLINARY ACTION, UP TO AND INCLUDING DISMISSAL.” Petitioner refused to sign the reprimand when the same was presented to her by Mr. Helms. In early December 2013, a few weeks after receiving the written reprimand, Petitioner verbally reported to Valinda Subic that during the summer of 2011, Petitioner was inappropriately touched on the ear by her co-worker, Ronald Stevens. Ms. Subic advised Rae Kelly, from Respondent’s bureau of human resource management, of Petitioner’s complaint, and on December 6, 2013, Ms. Subic and Ms. Kelly contacted Petitioner to get a statement from her about the incident. Petitioner advised that she did not wish to make a statement about the incident but would provide follow-up documentation in support of her harassment allegations at a later time. After several unsuccessful attempts to secure from Petitioner information supporting her harassment allegations, Ms. Kelly informed Petitioner that if the information that Petitioner promised was not received by March 12, 2014, the harassment allegation investigation would be closed. There is no evidence of record indicating that Petitioner ever provided additional information to Respondent in support of her allegation of harassment by Mr. Stevens. Termination of Employment On March 28, 2014, at approximately 7:30 a.m., Petitioner met with Mr. Helms to discuss work plans for the day. It was understood that Petitioner would be doing yard maintenance work at the park’s north gate. In addition to the yard maintenance work, Mr. Helms assigned Petitioner an additional work-related task of placing an out-of-order sign on the restroom facility near the north gate. In order to perform her work-related tasks, Respondent assigned Petitioner a DEP-owned Ford Ranger pick-up truck. Mr. Helms, within a few hours of assigning tasks to Petitioner, went to the north gate area to verify that Petitioner had completed her assignments. When Mr. Helms arrived at the north gate, he did not see Petitioner. Mr. Helms noted that the out-of-order sign had been placed on the restroom as directed, but that Petitioner had failed to perform the yard maintenance work. Seeing that Petitioner had not completed her work assignment, Mr. Helms then searched for Petitioner throughout the park but was unable to locate her. Mr. Helms then exited the park and went to a nearby Circle K convenience store in a further attempt to locate Petitioner. After waiting for some period of time at the Circle K, Mr. Helms observed Petitioner, while driving her assigned Ford Ranger pick-up truck, enter the convenience store parking lot. Petitioner parked the truck, exited the vehicle, walked towards the store, and then returned to the vehicle without entering the store. Upon reentering the vehicle, Petitioner drove back to the state park. Respondent’s email records show that on April 3, 2014, Mr. Helms submitted a written narrative to Ms. Subic wherein he outlined what he observed on March 28, 2014, with respect to Petitioner, her whereabouts, and her use of DEP’s vehicle. On April 7, 2014, Ms. Subic directed Mr. Helms to speak with Petitioner about what he observed on March 28, 2014. On April 10, 2014, Mr. Helms met with Petitioner to discuss her actions of March 28, 2014. Petitioner testified that during this meeting with Mr. Helms, she explained that on the morning of March 28, 2014, after placing the out-of-order sign on the restroom near the north gate, she left the park in her assigned DEP vehicle to go to the Mobil station to get gas for the vehicle. Petitioner also testified that although she did drive to the Mobil station, she did not purchase gas for the vehicle, but instead went to the Sweetbay market located next to the Mobil station where she filled a personal prescription and purchased a sympathy card for the family of a deceased friend. Petitioner further testified that after leaving Sweetbay, she went to Ace Hardware. Petitioner has no specific recollection of why she stopped at Ace Hardware and did not present any evidence indicating that the visit to the store was for work-related reasons. Finally, after leaving Ace Hardware, Petitioner then drove to the home of the bereaved to deliver the sympathy card that she purchased from Sweetbay. In explaining her actions on March 28, 2014, Petitioner claims that Mr. Helms allowed employees to conduct personal business if the personal business did not cause the employees to deviate from their authorized travel route related to DEP official business. Petitioner’s statement regarding Mr. Helms may generally be true; however, under the facts of the present case there is no credible evidence that Petitioner left the park on March 28, 2014, for anything other than reasons related to the handling of her personal affairs. Succinctly stated, Petitioner put 50 miles on DEP’s vehicle on March 28, 2014, and none of these miles were related to the operation of Alafia River State Park. By correspondence dated April 28, 2014, Scott Robinson, on behalf of Respondent, informed Petitioner that it was the intent of Respondent to terminate her employment with the agency for reasons related to her actions of March 28, 2014. Following Petitioner’s predetermination conference, Mr. Robinson, by correspondence dated June 5, 2014, informed Petitioner that her employment was being terminated due to her actions of March 28, 2014. Mr. Robinson also informed Petitioner that the written reprimand she received on November 18, 2013, was a factor in Respondent’s decision to terminate her employment. Petitioner did not offer any evidence, direct or circumstantial, that in any way establishes that she was subjected to discriminatory animus, or that Respondent’s decision to terminate her employment was motivated by reasons related to her allegation of sexual harassment by Mr. Stevens.1/ Respondent had legitimate non-discriminatory reasons for terminating Petitioner’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Florida Department of Environmental Protection, did not commit unlawful employment practices as alleged by Petitioner, Catherine M. Lecas, and denying Petitioner's Employment Charge of Discrimination. DONE AND ENTERED this 30th day of August, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2016.
The Issue The issue in this case is whether Respondent, the Department of Environmental Protection, violated the Florida Civil Rights Act of 1992 as alleged in a Petition for Relief filed by Petitioner, Edwin R. Bollinger, with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Edwin R. Bollinger, is a Caucasian male, born March 18, 1936. At the time of the alleged unlawful employment practice at issue in this case, Mr. Bollinger was 58 to 59 years of age. Mr. Bollinger was employed by the State of Florida from at least 1982 until his termination in May 1995. At all times relevant to this matter, Mr. Bollinger was employed by Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), or, prior to its absorption into the Department, the Department of Natural Resources. Prior to July 1994 Mr. Bollinger served as a park officer in the Florida Park Service of the Department. Mr. Bollinger was stationed at Bill Baggs Cape Florida State Recreation Area located in Dade County, Florida. Two other park officers were working with Mr. Bollinger in July 1994: Antonio Sanchez and Kathy Martinez. Effective July 1, 1994, all Florida Park Service officers were reclassified as law enforcement officers and were transferred to the Department's Division of Law Enforcement (hereinafter referred to as the "Division"). The position of park officer was abolished. Colonel Mickey Watson was the Director of the Division at all times relevant to this matter. Captain Carl Nielsen, Mr. Bollinger's immediate supervisor, met with Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on July 1, 1994, to swear them in as law enforcement officers within the Division. Captain Nielsen explained the nature of the new positions to the three officers, gave them a copy of the position description for the positions, and gave them new manuals. In particular, Captain Nielsen explained that the new positions would require the enforcement of the laws and rules that governed the parks on a full-time basis and the devotion of their efforts to full-time law enforcement. On February 3, 1995, Captain Nielsen placed Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on performance improvement plans (hereinafter referred to as "PIPs") because of deficiencies in their performance since their reclassification. Ms. Martinez and Mr. Sanchez successfully completed their PIPs. On May 10, 1995, Mr. Bollinger was dismissed from his position with the Department for failure to perform his duties satisfactorily. The dismissal was recommended by Captain Nielsen and approved by Colonel Watson. Mr. Bollinger was 59 years of age at the time of his dismissal. Colonel Watson, Captain Nielsen, and Mr. Sanchez were in excess of 40 years of age at the time of Mr. Bollinger's dismissal. Ms. Martinez was less than 40 years of age at the time of Mr. Bollinger's dismissal. Mr. Bollinger challenged his dismissal before the Public Employees Relations Commission (hereinafter referred to as "PERC"). On June 22 and 23, 1995, and July 5, 1995, a hearing was conducted by a PERC Hearing Officer. A Recommended Order was entered on August 2, 1995, finding that just cause existed for Mr. Bollinger's dismissal. The Recommended Order included the following conclusion: In conclusion, the Agency has proven by a preponderance of the evidence that Bollinger did not meet his performance standards, after he was informed of the deficiencies, given assistance in improving the deficiencies, and had an amply opportunity to improve his deficiencies. See Croce v. Department of Corrections, 3 FCSR 239 (1988), affirmed, 553 So.2d 1181 (Fla. 4th DCA 1989)(unsatisfactory performance on one or few job duties which are critical factors for the effective functioning of an agency can support discipline for unsatisfactory performance). Thus, Bollinger's unsatisfactory performance of his duties supports just cause for discipline. Page 19, Respondent's Exhibit 1. The Recommended Order was subsequently adopted by PERC by Final Order entered on or about January 23, 1996. The evidence failed to prove that Mr. Bollinger's age played any role in his dismissal by the Department. In June of 1990 Mr. Bollinger underwent extensive surgery on his right shoulder, chest, and neck due to squamous cell carcinoma right parotid gland. Mr. Bollinger returned to work on November 12, 1990. Although the following description of the results of Mr. Bollinger's initial and subsequent surgery was written after Mr. Bollinger's termination from employment with the Department, it adequately describes his condition during the times relevant to this proceeding: This produced a deformity of the chest wall as well as more deformity of the supraclavicular area of the right side of his neck as well as a large scar in that area. The surgery included dissection of the facial nerve which was not completely successful because of the entanglement of the tumor around the nerve. [Mr. Bollinger] was left with a facial nerve palsy. He also complains of some loss of hearing, loss of motion of the shoulder and loss of motion of his neck. Petitioner's Exhibit 11. After returning to work after his surgery, Mr. Bollinger informed his immediate supervisor that he could perform his responsibilities without limitation but requested that he be permitted time to switch his firearm qualification from his right hand to his left hand. He also made informal requests for reduced beach patrol, foot patrol, and water patrol so that he could minimize his exposure to the sun. The evidence failed to prove that these informal requests were not granted. Mr. Bollinger did not inform Captain Nielsen that his physical condition would in any way prevent him from satisfying the PIP imposed on him by Captain Nielsen prior to his dismissal. Mr. Bollinger also did not make any request to the Department for any accommodation for his physical condition other than noted, supra. Despite the consequences of the surgery performed on Mr. Bollinger, he continued to carry out his duties with the Department from 1990 to 1994 when he was discharged for reasons unrelated to his medical condition. The evidence failed to prove that Mr. Bollinger's disability played any role in his dismissal by the Department. The evidence failed to prove that the Department's actions were a pretext for discrimination based upon Mr. Bollinger's age or disability. There was no evidence that the Department's dismissal of Mr. Bollinger was grounded on discriminatory animus or that discriminatory reason motivated the Department in its actions toward Mr. Bollinger.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding that Edwin R. Bollinger failed to prove that the Department of Environmental Protection committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes (1995), and dismissing, with prejudice, Mr. Bollinger's Petition for Relief. DONE AND ENTERED this 15 day of June, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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, 2000. COPIES FURNISHED: Edwin R. Bollinger 6372 Alderwood Plaza Woodbury, Minnesota 55125 Marshall G. Wiseheart, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149
