The Issue The issue in the case is whether the Pinellas County School Board may terminate the employment of Minnie L. Moody as a school bus driver.
Findings Of Fact Since 1996, Petitioner has employed Respondent, initially in the Food Services Department and then as a "Plant Operator." Beginning on January 3, 2001, Respondent began working for Petitioner in the Transportation Department as a school bus driver. Respondent is represented by a collective bargaining unit of the Service Employees International Union (SEIU) with whom Petitioner has entered into an agreement. Petitioner has adopted minimum qualifications an applicant must meet to become employed as a school bus driver. Although the job description has changed over a period of years, at all times material to this case Petitioner's minimum qualifications for employment as a school bus driver required as follows: "graduation from high school, possession of GED, or must obtain a GED within one year of being hired." A "GED" is a "general equivalency diploma" which can be earned by persons completing a prescribed course of study and passing a standard examination. The GED is generally regarded as the equivalent of a high school diploma. At the time Respondent began her employment as a school bus driver, she did not meet the minimum qualifications because she had not graduated from high school, did not possess a GED, and was not within one year of obtaining a GED. Pursuant to the collective bargaining agreement between Petitioner and SEIU, a person not meeting the minimum requirements for employment may work in a position as an "intern" for a period of one year with a salary reduction of ten percent below the applicable minimum. An employee seeking employment as an intern enters into an "internship agreement" with Petitioner. The purpose of the internship mechanism is apparently to permit the employee an opportunity to complete certain job-related requirements within the first year of the employment. In January 2001, Respondent executed a one-year internship agreement with Petitioner. The agreement provided as follows: Internships are limited to one (1) year, however; [sic] in some circumstances, the Director of Personnel Relations, or designee, may grant an extension on a case- by-case basis. In June 2001, Respondent entered into an adult education course to prepare for enrollment in a GED program. Towards the end of 2001, Respondent sought and received an internship extension of three months. Because Respondent was attending educational classes, the request was approved, and Respondent continued bus driving through the end of the 2001-02 school year. In the summer of 2002, Respondent was enrolled in basic adult education classes. In August 2002, Respondent sought an additional internship extension. The request was approved, and Respondent drove a school bus for the 2002-03 school year. In February 2004, Respondent was again enrolled in basic adult education classes, and sought an additional internship extension. The request was again approved, and Respondent drove a school bus for the remainder of the 2003-04 school year. Respondent suffered a family tragedy in April 2004 when her son passed away after a long illness. By letter dated July 30, 2004, Petitioner advised Respondent that her internship would expire on August 21, 2004, and that she needed to complete the GED requirement prior to that date. The letter also provided several options to pursue, including other employment prospects with Petitioner, if the GED was not obtained by the expiration of the agreement. The internship agreement between Petitioner and Respondent expired on August 21, 2004, without Respondent's obtaining the GED. By letter dated September 3, 2004, Petitioner advised Respondent that her employment was suspended for failing to meet the minimum qualifications of the position for which she was employed. Because Respondent's progress toward obtaining the GED has been minimal, Petitioner determined that the internship agreement would not again be extended. Petitioner has no written policy regarding how many times an internship agreement can be extended. The witness testifying at the hearing indicated that in determining whether to grant an internship extension to Respondent, Petitioner considered Respondent's progress towards completion of the academic goals as well as personal factors, including the family illness. Since June 2001, Respondent has worked towards, but has not yet obtained, the GED. In order to obtain a GED a student must complete basic education classes prior to entering into the GED course of study. Respondent has worked to improve her reading ability so as to provide skills sufficient to support entry into the GED program, but her reading skill level has shown no marked improvement, and Respondent has not yet begun the actual GED course of study. There is no evidence that Respondent has not performed her duties as a school bus driver in an acceptable manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as a school bus driver. DONE AND ENTERED this 11th day of March, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2005.
The Issue The issue is whether Amalgamated Transit Union Local 1395 (“the Union”) committed an unlawful employment practice against Petitioner (“Addie L. McMillan”) by failing to provide her with the same level of advocacy provided to Union members and non-African-Americans.
Findings Of Fact Ms. McMillan is a 55-year-old, African-American female who had worked at ECAT for 22 years. She began as a part-time beach trolley operator and progressed to becoming a full-time bus driver. The Union and ECAT had a labor agreement1/ in place between October 23, 2013, and September 30, 2016 (“the labor agreement”). Article 52 of the labor agreement had a policy regarding the use of cell phones by ECAT employees and provided as follows: While on duty the use of cellular phone or any other personal communication device is limited as follows: SECTION 1: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other Company motor vehicle is prohibited while the vehicle is not secured. Push to talk communication devices issued by the Company may be used for work related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. Note – Secured definition: Vehicle must be in neutral/park position and emergency brake on. SECTION 2: If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable) or in a safe location with the bus secure. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. SECTION 3: The use of a cellular phone or other communication device by an employee while on the shop floor or during work time (unless previously approved) is prohibited, other than a Push to Talk communication device issued by the Company for work related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. SECTION 4: Disciplinary Action: Failure to comply with any portion of this policy may result in disciplinary action as follows: Violation of Section 2 or Section 3 of this Article: 1st offense: 3-day suspension 2nd offense: Termination Violation of Section 1 of this Article: 1st offense: Termination On the morning of July 29, 2015, Ms. McMillan was driving a route that went through the Naval Air Station in Pensacola, Florida. At that time, the navy base had been on alert status for approximately one month. As a result, every vehicle entering the navy base had to be searched, and that caused Ms. McMillan’s bus to run behind schedule. At approximately 10:30 that morning, Ms. McMillan needed to use a bathroom and called a dispatcher via a radio provided by ECAT. The dispatcher contacted by Ms. McMillan was not receptive to her request for a bathroom break and cut off communications. Because Ms. McMillan was unsuccessful in re- establishing contact with the dispatcher over the radio, she used her personal cell phone to call a coworker, Elaine Wiggins. Ms. McMillan was hoping that Ms. Wiggins could assist her with contacting an ECAT general manager. At this point in time, the bus driven by Ms. McMillan was in traffic and moving. In other words, it was not “secured” by being in the neutral/park position with the emergency brake on. Diane Hall was an assistant general manager for ECAT during the time period at issue, and Ms. Hall talked to Ms. McMillan via Ms. Wiggins’ cell phone. Ms. Hall stated to Ms. McMillan that the route she was driving had a pre-arranged break point at a bowling alley and that Ms. McMillan could use a bathroom there. It is possible that Ms. McMillan would not have suffered any consequences for her violation of the cell phone policy but for a customer complaint provided to ECAT on July 28, 2015. On July 28, 2015, at 12:25 p.m., Roberta Millender, a customer service representative at ECAT, received a phone call from a customer who reported that the bus driver for Route 57 had left the bus at approximately 11:00 a.m. in order to smoke a cigarette, even though the bus was 25 minutes behind schedule. Ms. McMillan also drives that route. ECAT’s buses are equipped with video cameras. Therefore, ECAT reviewed the videotape from that particular bus in order to investigate the complaint. Because the bus videotapes are on a continuous loop, ECAT had to pull video corresponding to days before and after July 28, 2015. While looking for the incident on July 28, 2015, that led to the customer complaint, an ECAT employee noticed that Ms. McMillan was using her cell phone on July 29, 2015. There is no dispute that Ms. McMillan is not the bus driver who took the cigarette break on July 28, 2015.2/ On July 30, 2015, ECAT began an investigation of Ms. McMillan’s cell phone use. ECAT notified Ms. McMillan that she would continue to work during the investigation. ECAT terminated Ms. McMillan on August 3, 2015, for violating section 1 of Article 52 of the labor agreement. Article 5 of the labor agreement sets forth the procedures that ECAT and the Union follow in order to resolve labor issues. Pursuant to Section 2 of Article 5, Michael Lowery, the President of the Union, filed an “Official Grievance Form” (“the McMillan grievance”) with Mike Crittenden, ECAT’s General Manager. Ms. McMillan had reservations about Mr. Lowery handling her grievance. Because she had not joined a recent strike and was not a Union member, Ms. McMillan feared that Mr. Lowery would not use his best efforts on her behalf. However, Mr. Lowery handles the majority of the grievances, and he handles all of the grievances involving termination.3/ The McMillan grievance stated the following: The employee does not dispute the offered video and will stipulate that she used her personal cellphone while operating a transit bus while not secure. This professional bus operator understood the Company policy but did not clearly understand the proper procedure to request assistance to disembark her motor coach while under tremendous physical bodily stress to relieve herself of a bodily function. Operator McMillan understood the procedure to request a 10-7 (Operator off Motor Coach) but was concerned with her bodily stress and finding a safe, clean rest room which was continuing to cause significant additional stress. The Company has clearly FAILED to work at providing known secure, clean, safe facilities for professional bus operators to utilize while operating ECAT buses. The Union has brought this topic forward to Management numerous times and no action has been taken to formulate the needs of the professional bus operators on many bus routes including the bus route that Operator McMillan was driving on the day in question. Operator McMillan was dealing with other related stress on that particular run. The military base was under alert and traffic was extremely backed up. She was dealing with one Dispatcher Supervisor and had reached agreement with him on how to proceed on the bus route. But when another Dispatch Supervisor came on duty it was clear that neither of those Supervisors had shared information on dealing with Route 57 with the military heighten[ed] alert. The new Dispatch was difficult to communicate with about established procedures set earlier with another Dispatcher. This did not help the already adverse or very demanding circumstance. Mr. Lowery concluded the grievance by asking that ECAT rescind its termination of Ms. McMillan, pay her lost wages and benefits, and remove any discipline from her file. Ordinarily, the first step in resolving a grievance involves settlement discussions between ECAT officials and the Union. However, because Ms. McMillan’s grievance involved a termination, it went directly to Mr. Crittenden for his consideration. Via an e-mail dated August 4, 2015, Mr. Crittenden notified Mr. Lowery that he was “denying this grievance and upholding the termination of the subject employee.” Because Ms. McMillan’s grievance was denied, the next step in the process called for the Union to decide whether it wanted to submit the grievance to arbitration.4/ As part of this next step, Mr. Crittenden prepared a draft version of a “Last Chance Agreement” for the Union to review. A Last Chance Agreement is an agreement between an employee, ECAT, and the Union. The draft Last Chance Agreement prepared by Mr. Crittenden contained the following provisions: The employee violated the Company’s cell phone [policy] which is a serious safety infraction that warrants immediate termination. In lieu of terminating her employment, the Employee’s discipline record will reflect this infraction as suspended without pay from August 3, 2015 to August 14, 2015 and returning to work on August 17, 2015 upon acceptance of this agreement, and placed on a twelve month probation/Last Chance Agreement. The employee will retain her rate of pay and security. The employee understands that in the event she violates company policy by being charged with any infraction that warrants immediate termination, her employment will be terminated without any further consideration. This agreement will be in effect for a period of twelve (12) months from the date of signature. The Employee attests that her signature below was in no way coerced by any party or by the representative of any party. By entering into this agreement, the employee acknowledges that she has read and considered each of the provisions of this Agreement and that she voluntarily enters into this Agreement with full knowledge of the consequences. This Agreement is made on a one-time only, non-precedent basis that shall not be used or referred to in any future discipline or termination case or during any grievance/arbitration hearings between the parties. Mr. Lowery presented the proposed Last Chance Agreement to the Union’s legal counsel, and the Union had an issue with the seventh provision’s reference to “non-precedent basis.” Mr. Lowery attempted to reach an agreement with Mr. Crittenden for amending that provision, but his efforts were unsuccessful. Mr. Crittenden would not consent to the removal of that language. Ms. McMillan was disturbed by the fact that she had no input into the Last Chance Agreement proposed by Mr. Crittenden and that it was not presented to her for approval. However, after the Union decided not to accept Mr. Crittenden’s proposal, Ms. McMillan’s approval or disapproval became irrelevant. As noted above, a Last Chance Agreement involves three consenting parties: the employee, ECAT, and the Union. Thus, even if Ms. McMillan had been satisfied with the Last Chance Agreement proposed by Mr. Crittenden, it would not go into effect without the Union’s approval. In order for the Union’s Executive Board to vote on whether to refer Ms. McMillan’s case to arbitration, Mr. Lowery put Ms. McMillan’s grievance on the agenda of the Executive Board’s August 23, 2015, meeting. The five members of the Executive Board who were present and eligible to vote unanimously recommended against pursuing arbitration for Ms. McMillan’s grievance because her case lacked merit. As for why Ms. McMillan’s case lacked merit, Mr. Lowery testified that Well, basically, it’s pretty simple, we negotiated the policy in the labor agreement, and this was a video. And the video showed that she had clearly violated the policy. And so from there, it was going to be very difficult, based on that evidence, that we were not going to be able to go forward. And that’s why the membership voted not to go forward. The Executive Board’s recommendation was considered by the full Union membership later that day, and the Union voted to accept the Executive Board’s recommendation. When asked to explain why the Union elected not to arbitrate Ms. McMillan’s grievance, Mr. Lowery testified that Simply it’s the severity of the policy, which was it’s in the labor agreement. It was negotiated between the Union and the company. And because they had a solid video, we would not be able to demonstrate a way to achieve a victory in that arbitration case. And, potentially, because it’s in the Labor Agreement, that would be used against us in an arbitration because we negotiated it. We negotiated the policy. When subsequently asked a very similar question, Mr. Lowery reiterated that Well, basically, it’s pretty simple, we negotiated the policy in the labor agreement, and this was a video. And the video showed that she had clearly violated the policy. And so from there, it was going to be very difficult, based on that evidence, that we were not going to be able to go forward. And that’s why the membership voted not to go forward. The Union has not arbitrated any grievances in which a driver has been terminated for using a cell phone while a bus was not secured. Including Ms. McMillan, four drivers have been terminated for violating section 1 of Article 52 since the labor agreement has been in place. Three of those drivers were African-American (two females and one male), and one was a Caucasian female. Mr. Crittenden was unaware of any driver being retained by ECAT after violating the cell phone policy.5/ In addition to Mr. Crittenden, Ms. McMillan called three other ECAT employees who were unaware of any bus driver being retained after violating the cell phone policy. Mr. Lowery represents every grievance to the best of his ability, and he represented Ms. McMillan’s grievance to the best of his ability. The greater weight of the evidence demonstrates that he handled Ms. McMillan’s grievance no differently than any other grievance.6/ Mr. Lowery did not consider Ms. McMillan’s race or religion in the course of representing her.7/ The Union did not discriminate against Ms. McMillan based on her race or non-union status. In addition, to whatever extent that Ms. McMillan is alleging that she was discriminated against on any other grounds, there is no evidence to support such allegations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Addie L. McMillan’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 31st day of May, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2017.
Findings Of Fact By Stipulation of Fact, the parties agreed, and it is found, that: Respondent, Janet Shrader, has been employed by the School Board of SARASOTA County for approximately seven years as a school bus aide. The job responsibilities of a school bus aide include assisting the bus driver in dealing with discipline problems and doing everything possible for the comfort of the students. School bus aides are required to have good working relationships with drivers, teachers and parents. The school bus aide is supervised by the route coordinator. Bus aides are only assigned to buses which transport students participating in the exceptional student education program. The Board provides training courses for bus drivers and bus aides by a behavior specialist. This program is designed to assist employees in acquiring skills for disciplining students in an appropriate manner. This program is titled ACT, (Aggression Control Techniques), and was developed by the Department of Health and Rehabilitative Services. Janet Shrader attended the training programs for ACT conducted by behavior specialist, Linda Hall. On the morning of October 19, 1989, Janet Shrader lost her temper with Roy Sanders, a Board employee employed at the Student Center. In the course of the ensuing intercourse, she tweaked his nose with her hand, dislodging his eyeglasses, and yelled at him to, "Fuck Off, Asshole." On the afternoon of October 19, 1990, the bus on which she was riding as an aide had to return to the school. Respondent and Tony Sanders, a child classified as Severely Emotionally Disturbed, and the son of the Roy Sanders previously mentioned above, got off the bus. Ms. Shrader went with Tony to speak with Mr. Marks, the school psychologist. At this point, Ms. Cocanower, a teacher, and an aide, Ms. Rizzo, got on the bus to attempt to calm down the students who appeared to be somewhat upset. Shortly thereafter, Respondent returned with Tony and boarded the bus. She began yelling and when Ms. Cocanower heard this, she got on the bus and observed Respondent yelling at Tony who, by then, was even more upset. He was standing up saying, "I didn't do it." He was not trying to harm anyone. Ms. Cocanower attempted to take Tony's wrist but was unable to do so because Respondent grabbed the boy by the elbow from behind in a modified ACT grip and pushed him forward, at the same time yelling at Ms. Cocanower to get off the bus. At this point, Mr. Marks boarded the bus and Ms. Cocanower got off. In the opinion of Ms. Cocanower, Respondent's use of the ACT procedure was not consistent with the training received and was improper, especially when accompanied by the yelling Respondent was doing at the time. It is so found. Subsequent inquiry revealed that the incident came about when Tony was assaulted by `another child, Bobby Resnick and was responding to the attack on him. He `had not initiated the incident. Respondent did not see Resnik's kick but only Tony's response. As Respondent pushed Tony down the aisle toward the bus entrance, in the course of resisting her efforts to put him off the bus, he apparently kicked her. Whether this was by accident or on purpose is unknown. Respondent, in response, kicked back at him as he exited the bus. Her attempt to kick Tony did not connect. Had it done so, according to Detective Bank, the school resource officer who saw the incident, he would have arrested her. As it was, in his opinion, Ms. Shrader was completely out of control. She was yelling and screaming at the children and was verbally abusive. He does not recall her exact words, and refers more to the inappropriate tone of voice she was utilizing with emotionally disturbed children. There was, according to Ms. Tucker, another unusual incident relating to Respondent that same day, but earlier, in the morning. Ms. Tucker had written a referral slip on Tony Sanders to which Respondent wanted to place an addendum to the effect that Tony had been good that day, except for the referral incident. While on the bus, in front of the children, Respondent began yelling at Ms. Tucker about that situation and walked off the bus leaving Ms. Tucker alone with the children. That upset Tony. As a result of this incident, two meetings were held between Board officials and Ms. Shrader. The first was held on November 1, 1989. It was called by Vincent Laurini, Board Director of Transportation, and attended by the Assistant Superintendent for Human Resources and the union representative, as well as Respondent. The second was held on November 2, 1989,after Respondent had been given an opportunity to review witness statements regarding the incident. Ms. Shrader admitted that the statements were "pretty accurate" and in a conversation with Ms. Tucker, on the bus on October l9, 1989, after the incident took place, she commented to the effect that at least if they "got" her, she wouldn't have to ride with the kids for a year. As a result of this incident, Mr. Laurini subsequently recommended Ms. S~rader be terminated for her conduct on October 19, 1989 and this action was subsequently recommended to the Superintendent. Ms. Shrader was thereafter initially suspended with by Dr. Fowler, but on November 21, 1989, the Board suspended her without pay pending termination. There is no contest by Respondent regarding the fact that the incident took place or that it happened as described. Whereas Ms. Tucker, Ms. Cocanower, Ms. Rizzo, and Detective Bang all opined that her conduct was a severe overreaction which was inconsistent with the best interests of not only Tony but all of the exceptional children dn the bus, it may have been an isolated incident. This was the first year Ms. Tucker had been riding with Respondent. A written statement from another driver who worked with Respondent for three years, and who retired from bus driving in 1988, indicates she was always very good with the children, had a good rapport with the parents and teachers, and contributed greatly to making his/her job easier. On the other hand, there is some evidence of aberrant behavior on the part of the Respondent in early March,1989 which resulted in her being evaluated by a psychiatrist at Mental Health Associates in Sarasota. The physician's report, rendered on April 4, 1989, indicated that Respondent had had psychiatric contact as early as 1966 when she was 19 and has been under continuing psychiatric care, intermittently, since that time. Her psychiatric history reflects a diagnosis of a bipolar illness, (manic-depressive), and a history of alcohol abuse. Based on this evaluation by Respondent's own psychiatrist, she was also referred to the Suncoast Mental Health Center for evaluation. In his report dated June 1, 1989, Dr. Fosser confirmed the prior diagnoses, indicating both conditions were in remission, and concluding she was ready to restart work. Dr. Fosser related he could not see, at that time, that her psychiatric symptoms would endanger the safety of the children under her custody. This opinion appears not to have been borne out by the ensuing circumstances.
Recommendation Based on the foregoing bindings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the $chool Board of SARASOTA County enter a Final Order confirming its action suspending her without pay effective November 12, 1989, and dismissing her from employment with the Board. RECOMMENDED this 6th day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1990. COPIES FURNISHED: Maria D. Korn, Esquire Kunkel & Miller 290 Cocoanut Avenue SARASOTA, Florida 34236 Herbert W. AbeIl, Esquire 3224 Markridge Rd. SARASOTA, Florida 34231 Janet Shrader 22 Goodrich Street SARASOTA, Florida 34236 Dr. Charles W. Fowler Superintendent of Schools Sarasota County 2418 Hatton Street Sarasota, Florida 34237
Findings Of Fact Exception No. 1 - That portion of Findings of Fact No. 15, which finds that "(t)he Division has consistently denied Petitioners the right to purchase their service with the Pawley companies", is clearly erroneous and not substantiated by the evidence of record. Petitioners are correct in that the Division has advised them by letter (Petitioner's Exhibit No. 2, #17B) that they were able to buy their prior service with Pawley at full actuarial cost. However, that was not an issue nor the subject of this proceeding, and the finding of fact must be considered in the context of the ultimate issue in this case, that being whether or not the Petitioners were entitled to purchase their prior service at the reduced rates provided in Section 121.081(1)(g), Florida Statutes. ,with respect to that issue, the Division has consistently denied Petitioners the right to purchase their prior service. The Report of Proceedings of the Dade County Independent Review Panel (Petitioner's Exhibit No. 2, #10) contains a similar statement. That statement appears to be based on statements of Mr. Stone and Petitioner's Exhibit No. 2, #17B, above. The Report of Proceedings is hearsay and duplicates the facts and exhibits presented at the hearing. In the context of the issue in this case, the Proposed Finding of Fact No. 15 is correct, and Petitioners' exception is rejected being without factual basis in the record. Exception No. 2 - That portion of Findings of Fact No. 17, which finds that "the IRP de- termined what the "Cut-Off" date of March 27, 1962, was a "reasonable decision" to end the "period of solicitation", is irrelevant and immaterial, unless it is considered together with whether the Petitioners were given ade- cuate notice of that "reasonable decision". Petitioners claim that the above finding is irrelevant and immaterial unless considered together with the "issue" of adequate notice. The only question the Division may consider is whether or not the finding of fact was based on competent substantial evidence in the record. Since there is no evidence in record to contradict the proposed finding of fact, it is the only finding that the Hearing Officer or the Division could have reached. It is based on competent, substantial evidence in the record. The proposed finding of fact was made based on the finding of the Independent Review Panel in its Report of Proceedings. Petitioners accepted the report of the Panel and placed the Report into evidence at the hearing. They are not attempting a collateral attack on the report. Such an attack should not be a-lowed In the absence of good and sufficient reason. The question of relevancy and materiality raised by Petitioners is an appropriate objection at the time the evidence is introduced at the hearing but is inappropriate in attacking a finding of fact In a recommended order. Petitioners' objection is rejected. Exception No. 3 - That portion of Findings of Faction 20 which finds that "(i)t is under- standable that Dade County gassed a resolution simply supporting Petitioners in their claims, rather than placing Petitioners in their claims situation as any other Pawley employee who came to work for Dade County before 3/27/62, since the latter position would cost Dade County $104,696 for retroactive benefits. Petitioners claim the above finding 15 clearly erroneous and misleading, and not supported by substantial and competent evidence In the record. Petitioners discuss certain amounts necessary to purchase employee benefits and other amounts needed to purchase creditable service in the Florida Retirement System. By discussing the two amounts as if they were one amount, Petitioners clearly show their understanding of the evidence and testimony presented at the hearing. The Division advised Petitioners that it would cost Petitioner Stone $18,997.12 and Petitioner Wilson $11,657.23 to purchase their prior service should they prevail in the case at bar. In the event Dade County had considered all three petitioners to be continuously employed from the date of the strike to the respective dates of their reemployment the cost to the County to pay retroactive benefits would have been 5104.E95. Since the County and not consider Petitioners to be employees during this period, it did not pay for the normal employees fringe benefits. The payment of those benefits (albeit, retroactively) is represented by the $104,695 amount. Thus, the two amounts discussed by Petitioners represent two different funds; one to be paid by Petitioners for prior service, and one to be paid by Dade County for fringe benefits, but not including Petitioners' prior service. Contrary to Petitioners' assertion that their employment percentent and payroll status from the date of the strike to the respective dates of reemployment was not the issue in this case, the Division believes that that issue is at the very heart of this case. In order to purchase their prior service at the rates permitted by Section 121.081(1)(g) , Florida Statutes, Petitioners had to be employees of the County on March 2, 1962. If they were employees, then they are due the appropriate employee benefits for that period of time. However, since the County did not pay those benefits, then Petitioners were obviously not employees during the period at issue and, therefore, not eligible to purchase the creditable service under Section 121.06.1(1)(g), Florida Statutes. Petitioners' objection is rejected. Exception No. 4 - That portion of Findings or Fact No. 22 which finds that "/i/n addition to the obvious fact that petitioners were par- ticipating in an illegal strike and were in violation of the restraining order of the cir- cuit court, they voluntarily abandoned their right to employment by not commencing their jobs by March 27, 1962", is not supported by substantial and competent evidence. In reviewing this proceeding to determine the legality vel non of the strike, It seems obvious that the strike was illegal under one or both of two principles (see Finding of Fact No. 4). First, it was illegal under existing state law; and second, it was illegal for being in violation of the injunction issued by the circuit court. Respondent's Exhibit No. 4, pg. 271. The union in which Petitioners ware members, Amalgamated Association of Street, Electric, Railway and Motor Coach Employee of America ("Union") was involved in labor negotiations concerning the future status of the Union after the transfer. The County filed a declaratory judgment action in circuit court (Respondent's Exhibits 4 against the Union. In its final decree, the circuit court stated in part that: "2. plaintiffs are not require by law to offer employment to members of the defendant union, . . . plaintiffs are not authorized by law to enter into a collective bargaining agreement with defendants and would not be authorized to do so upon consummation of the contractual transaction evidenced by the record in this cause. plaintiffs are not authorized to recog- nized as lawful any strike directed against them and would not be authorized to do so upon consummation of the con- tractual transaction evidenced by-the record in this cause." (Respondent's Exhibit 4, numbered pages 199-200) Notwithstanding the above provisions the Union went on strike on January 29, 1962 (Respondent's Exhibit.4, numbered pg. 256); the Court, after issuing an order to show cause (id. numbered pg. 259), ordered that the Union was "enjoined and restrained from striking or continuing any strike for the purpose of covering the plaintiffs (county) or any other governmental agency to engage in collective bargaining". (Id, numbered pg. 271) However, the Union continued on strike. The case was appealed to the Third District Court of Appeal. The illegality of the strike under state law was affirmed by that court in Dade County v. Amalgamated Assn. of S.E.R. of M.C. Employees, et al, 157 So.2d 176, 183 (Fla. 3rd DC. 1963). The second issue concerning the violation of the injunction was never appealed, and the Union and its members were in continued violation of the injunction by remaining on strike. Accordingly, petitioners' objection is rejected. Exception No. 5 - That portion of Findings of Fact No. 23, which finds that "/p/etitioners claim that any returning strikers employed more than "one day" after the takeover, had a in service", is not supported by substantial and competent evidence. Petitioners claim that absence from employment of "one calendar month" constitutes a "break in continuous service". In reviewing the exhibits, we note that petitioners' Exhibit No. 2, 12, listed 33 individuals who were prior employees of the Pawley companies, went on strike and returned to work by March 27, 1962. These individuals were given retroactive benefits by Dade County and, therefore, the right to purchase the prior service under Section 121.081(1), Florida Statutes. Some of those individuals were hired by the County before the end of "one calendar month" (that is to say, before March 9, 1962) and others were hired after that date. Petitioners originally argued that an absence of one day constituted a break in service. Apparently, they have changed their position since the hearing and now argue that "one calendar month" constitutes a "break in continuous service". However, based on the facts shown and the arguments bade at the hearing the Hearing Officer's finding of fact is correct and is based on competent substantial evidence. Even if Petitioners were correct, the change from "one day" to "one calendar month" would not change the fact that they did not become employees of the County as a result of the transfer or merger of the private bus company. Petitioners' objection is rejected. EXCEPTIONS TO CONCLUSIONS OF LAW Exception No. E - Conclusion of Law No. 4. Petitioners' claim that Dade County recognized and credited them with their past service with Pawley. The evidence and testimony given at the hearing does not substantiate their claim. While the transmittal letter of Mr. Talbert (Petitioners' Exhibit No.2,#14) states that the "County Commission instructed the County Manager that the above subject employees shall be considered by Dade County to have an original employment date reflecting their employment with the Pawley companies", the actual motion by Commissioner Shack was "that Hodowud, Stone and Wilson be permitted to purchase their past services from the Satate of Florida at the reduced rate." Further, the testimony of Mr. Richard Jay Weiss, Assistant Dade County Attorney, and his exhibit (Petitioners' Exhibit 3) do not support Petitioners' position. The Exhibit states in part as follows: ". . .the County Commission has gone on record by motion to urge the State Retirement System to allow the three present claimants to receive their back time at the reduced rate". Thus, the County merely urged the Division to allow Petitioners to purchase their prior service and did not itself credit them with their past service with retroactive fringe benefits. The bearing Officer's conclusion of law is supported by competent, substantial evidence. Petitioners' objection is rejected. Exception No.7 - Conclusion of Law No. 5 Petitioners' claim that the Hearing Officers' conclusion that they did not enjoy an employee/employer relationship at the time of takeover is not supported by competent, substantial evidence. Section 11 of Ordinance 60-23 of Dade County (petitioners' Exhibit 2, item 1) states that: "whenever the County acquires existing transit systems or facilities from a publicly or pri- vately owned public utility, to the extent necessary or feasible for the economical opera- tion of such facilities, all of the employees of such acquired transit system whose duties pertain to the facilities acquired shall be employed In comparable positions in the County service and the pay status, seniority, vacation and sick leave rights shall be preserved and maintained to the fullest possible extent. All employees of the Authority shall be deemed, con- sidered or construed as County employees and shall be entitled to all the rights, privileges and benefits of County employees." Since the County cannot force any person to work or it the words "all of the employees" and "shall be employed" can logically only refer to those employees who decide to go to work for the County and conversely do not include those employees who voluntarily decide not to work for the County. In addition to the fact that the Hearing Officer found that Petitioners were participating in an illegal strike and were in violation of the restraining order of the circuit court, Petitioners voluntarily abandoned their right to employment by not returning to their jobs by March 27, 1962. Later, when they finally did commence employment with MTA, they were hired as new employees rather than previous employees who were being given reemployment. The hearing officer's conclusion of law is supported by competent, substantial evidence, and Petitioners' objection is rejected. Exception No. 8 - Conclusion of Law No. 7 Petitioners argue that the met their burden of proving that they were entitled to purchase their service under Section 121.081(1)(g), Florida Statutes; however, they offer no basis in law or fact would allow the Division to conclude the Hearing Officer was in error. In the absence of an adequate legal basis or contrary evidence in the record, the Division rejects Petitioners' objection. By motion prior to the hearing, Petitioners Wilson and Stone moved to add Metropolitan Dade County as a art Respondent. The motion was denied by the bearing Officer, and the Division hereby adopts that ruling as part of this final order. The Recommended Order is corrected at page 8, paragraph 20, line 6, wherein the month of "January" is changed to read "February". WHEREFORE based upon the foregoing findings, holdings and rulings or the Division as to Petitioners' exceptions to the Hearing Officer's Recommended Order, it is, ORDERED AND DIRECTED that each and every exception of the Petitioners' to the Recommended Order be and the same are OVERRULED and REJECTED. It is further, ORDERED AND DIRECTED that copy of said Recommended Order is attached hereto and incorporated as part of this final order. It is further, ORDERED AND DIRECTED that Petitioners' requests to purchase in the Florida Retirement System their prior service with the Pawley companies at the rates allowed in Section 121.081(1)(g), Florida Statutes, are denied. DONE AND ORDERED this 20th day of October, 1983. J. MULLIAN, III State Retirement Director Filed with the Clerk of the Division of Retirement this 21st day of October, 1983. Edna E. Canino, Esquire 1609 NW 14th Avenue Miami, Florida 33125 Edward F. Hodowud 8874 Emerson Avenue Surfside, Florida 33154 Linda M. Rigot, Hearing Officer Dan Brown, Esquire Division of Administrative Hearings John Finney, Esquire The Oakland Building Paul McMahon 2009 Apalachee Parkway Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioners' requests to purchase in the Florida Retirement System their prior service with the Pawley companies at a reduced rate pursuant to Section 121.081(1)(g), Florida Statutes. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Edna E Canino, Esquire 1609 NW 14th Avenue Miami, Florida 33125 Mr. Edward F. Hodowud 8874 Emerson Avenue Surfside, Florida 33154 Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT NORMA WILSON, EDWARD F. HODOWUD, and, WESLEY E. STONE, Petitioner, vs. CASE NO. 81-3192 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
The Issue Whether Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Euretha L. Davies, is a white female, who was first employed by Respondent, Laidlaw Educational Services (Laidlaw), in 1997 as a school bus driver. Respondent is an employer within the meaning of the Florida Civil Rights Act. Respondent provides pursuant to contract school bus transportation in Santa Rosa County School District. This includes all aspects of transportation: training drivers, maintaining vehicles, preparing routes and administering the system, and preparing reports to state and federal authorities. Petitioner had been an employee of the Santa Rosa County School District for nine years prior to Laidlaw contracting to provide these services in 1997. She transferred her employment to Laidlaw at that time, maintaining her senority and pay rate. On January 4, 2000, Petitioner contacted Jeffrey R. Capozzi, Driver Development and Safety Supervisor for Laidlaw at their office in Milton, Florida, about pain she was experiencing in both her wrists. She was sent to Immediate Care at West Florida Medical Center, Pensacola, Florida. There, she was seen by Kenneth Hill, M.D., an orthopedic specialist. Dr. Hill performed surgery to release the carpal tunnel in the right wrist on May 23, 2000. On August 24, 2000, a follow-up evaluation of the right had revealed that soft support of the wrist was needed, but Petitioner had reached maximum medical improvement with a one percent partial impairment. Petitioner was released to full duties. On May 2001, an annual check up was done in order to maintain Petitioner's entitlement to future workman's compensation medical treatment. This examination was performed by James St. Louis, M.D., who took over Petitioner's case when Dr. Hill moved. Dr. St. Louis ordered nerve conduction studies of the right upper extremity, which was performed on July 30, 2001, by Dr. Gerhard. Dr. Gerhard found that the transmittal of nerve impulses was normal in the right upper extremity and left median nerve. On May 2, 2002, approximately a year later and after Petitioner had had a nerve conduction study, she was sent to see Michael L. Shawbitz, M.D., a neurological specialist. Dr. Shawbitz concluded that she had tendonitis in her right wrist and recommended physical therapy. On May 15, 2002, Petitioner was given a Dexterity Test for School Bus Drivers by Lillian Barnes, which Petitioner passed. On June 5, 2002, Dr. T. F. Brown gave Petitioner a physical, which she passed. On August 6, 2002, Petitioner returned to work when school started, driving a school bus with an automatic door opener. On September 4-6, 2002, Petitioner began training to become a driver trainer. Her instructor was Zeke Zeigler, a training director for Laidlaw. From September 9 through 13, 2002, Petitioner attended classroom training presented by Stephanie Slaton, who was in charge of Driver Safety and Development at the Laidlaw office in Milton, Florida. At this time, Petitioner was driving her bus seven hours and 35 minutes each day on a regular schedule. On September 16 through 20, 2002, Petitioner completed the classroom training and was scheduled to go on the road training with the trainer who fit into her schedule. At this time, Dianne Hall, Head of Routing and Data Entry, requested that Petitioner be taken off her driving schedule to assist in preparation of the report prepared by Laidlaw for the State of Florida on bus schedules and routes for the children in the district. Petitioner was taken off her bus to assist with this report, and when it was completed, she was to continue coming into the office between the morning and afternoon bus routes to keep information in the data system updated and correct. This data entry amounted to several hours of light typing daily. On October 15, 2002, Petitioner was informed that she had an appointment to see Dr. Minoo Hollis, for Petitioner's annual checkup on her workman's compensation injury. This examination was conducted on October 17, 2002. Dr. Hollis determined that Petitioner had tenosynovitis of the right flexor, a ganglion cyst of the left wrist volar ganglion, and diffused chronic pain of the left forearm and wrist. Dr. Hollis prescribed medication and physical therapy for Petitioner and put her on light duty not driving a school bus. On October 23, 2002, Petitioner started physical therapy at Santa Rosa Medical Center three times per week for three weeks. Petitioner continued to work at the school office and to make entries into the computer system. Petitioner was assigned to the school office where she worked on various projects. She did light typing, copied documents for the school staff, and handled mail. There is a conflict in testimony regarding whether these assignments were in pursuit of assisting with the data entry or were the result of light duty because of Dr. Hollis' findings. It is found that at the point Petitioner ceased driving the bus, it was the result of the light duty assignment. These light duties continued until December 10, 2002, when Petitioner was assigned to Pace High School (PHS) where the assistant principal, Bradley Marcilliat, was delegated authority to assign her duties. Upon her assignment to PHS, Petitioner's hours per week were reduced to 30, and her typing was restricted further by her supervisors at Laidlaw. On December 12, 2002, Dr. Hollis did a follow-up examination of Petitioner after physical therapy and found that she had a two percent permanent partial impairment and prescribed the following restrictions as they relate to her bus driving duties: Can sit, stand, and walk without interruption for eight hours; Reach above shoulder level frequently Can use hands for repetitive actions such as: Simple grasping-both hands Pushing and pulling-right hand no; left hand yes Restrictions of activities involving: Unprotected heights-none Moving machinery-none Changes in temperature and humidity-none Driving automotive equipment-none Restrictions to automatic transmission-yes Fumes and gas-none On December 12, 2002, Jennifer Jack, MSN, RN, who was the case manager employed by Genex Services, Inc., for Crawford and Company, Respondent's workman's compensation insurer, reported to Stephanie Slaton that Petitioner could drive a vehicle with automatic transmission per Dr. Hollis. Ms. Jack opined, "I am not sure if driving the bus requires any repetitive pulling, but if it does not, then it looks like Ms. Davies can drive a school bus." A question existed about whether Petitioner could operate the automatic door opener on the school bus, which required the driver to pull a knob with the right hand. Ms. Jack queried Dr. Hollis, and was told Petitioner could drive a bus with an automatic door opener. On December 24, 2002, Crawford and Company informed Petitioner that she would be paid one percent as the difference between the one percent she had initially been paid, and her current permanent impairment of the body as a whole. Petitioner continued her duties at PHS until January 31, 2003. Nothing was said about her returning to her normal bus driving duties, although she had been released by her doctor to return to work with the limitations stated above. On January 31, 2003, Petitioner was advised by personnel at PHS to report to Bobbie Williams' office at Laidlaw at 10:30 that morning. When she reported to Williams, he gave her a dismissal letter, and stated that Laidlaw had been informed by the insurance company that she had reached maximum medical improvement with regard to her injury that had occurred on January 4, 2000, and that with her current restrictions she was no longer able to perform essential requirement necessary to drive a school bus. This determination was based upon the Laidlaw's determination that Petitioner could not operate the automatic door opener on the school bus. This conclusion is contrary to the evidence presented by Petitioner that she had operated the door without problem before she developed the tendonitis, and contrary to Dr. Hollis' reports and the information provided to Ms. Jack by the doctor. Although the record shows that Petitioner continued to improve as revealed in her May 2003 examination, the fact that the doctor indicated that Petitioner had a permanent impairment of two percent in December 2002 indicates that Petitioner had reached maximum medical improvement as of that date. The facts reveal that Petitioner was ready to return to work; was discharged by Respondent because of an alleged inability to open the door of the bus; that Petitioner was able to open the door of a bus equipped with an automatic door opener; and that the "inability to perform the duties of the job" asserted by Respondent were not supported by the medical restrictions communicated to Respondent's agent, who made that information known to Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter its final order directing that Respondent desist from discriminatory employment practices and directing Respondent to re-employ with appropriate accommodation Petitioner, promote her to a trainer-driver, and cease any further discriminatory practices. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 4th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Euretha Davies 3404 Oaktree Lane Pace, Florida 32571 Danny K. Guerdon Laidlaw Education Services 975 Cobb Place Boulevard, Suite 218 Kennesaw, Georgia 30144 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner was employed by the respondent $` percent General Telephone Company in October of 1971. From November of 1980 to February 3, 1982, he was classified as a cable splicer. This position requires strenuous physical duties including climbing telephone poles, lifting and moving heavy equipment, handling compressed gas cylinders that weigh 150 pounds and digging splice pits. Performance of the duties of a cable splicer requires strong hands, arms, back and leg muscles. In November of 1980, petitioner suffered a back injury and was unable to perform the activities of a cable splicer. He was placed on Absent Injury status, thus receiving 80 percent of his salary, and returned to work on or about January 6, 1981. He then took left-over vacation time until January 19, 1981, and about one week later, a light duty assignment was located for him at the Seminole DART Center. Although this assignment required no driving, petitioner complained that the drive to and from the Seminole location aggravated his back condition and was difficult for him due to the medications he was taking for his physical problems. On or about February 17, 1981, petitioner was reassigned to duty as a clerk at the St. Petersburg main building. Due to several absences, complaints by petitioner that he could not sit, stand or bend for long periods of time and that alternating from sitting to standing was painful, petitioner was relieved of all duties on March 30, 1981. He was informed that he would again be placed on Absent Injury status until such time as respondent could verify with the treating physician exactly what petitioner was capable of doing. There is some indication that petitioner may have returned to work in a light duty position in May and June of 1981, though petitioner had no recollection of these dates. In any event, petitioner returned to Absent Injury status on or about June 23, 1981, and was paid Absent Injury benefits until approximately December 15, 1981. He was then advised that his Absent Injury benefits were exhausted, that he would be placed on vacation as of December 16, 1981, and that his benefits with respondent would expire as of December 31, 1981. Petitioner was further advised that he could request a 30-day leave of absence, provide a doctor's statement regarding his present condition and that, during that 30-day leave of absence period he could request an additional 5 month leave of absence. Upon the advice of his Union representative, petitioner did request and was granted a 30-day leave of absence, which expired on January 31, 1982. On January 19, 1982, a meeting was held with petitioner to discuss his medical condition. He was advised that there were no light duty positions available at that time and that his 30-day leave of absence would terminate at the end of January. Petitioner's supervisor suggested that he request further leave of absence without pay in order to protect his employment and continue his benefits. Petitioner became angry at this suggestion, refused to request additional leave without pay, and uttered some statement about a "personal tragedy." His supervisor felt that he had been threatened by Mr. Wiggins and notified the police. Petitioner was terminated on February 3, 1982. The reasons cited for the termination were failure to apply for an additional leave of absence before his last 30-day leave had expired and insubordination at the January 19, 1982, meeting. Petitioner presented no evidence that other light duty assignments were available in January of 1982. He made reference to two other light duty assignments held by other employees. He acknowledged that one such position held by a white employee required extensive driving, and admitted that he was unable to drive for long distances or long periods of time. The other light duty position that petitioner believed he could have filled was awarded to a black employee. Other than these two positions, petitioner was not aware of any light duty assignments which were available between May and December of 1981 and were not afforded to him. Petitioner also admits that he was unable to perform the duties of a cable splicer in 1981 and in January of 1982.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's charge that the respondent committed an unlawful employment practice be DISMISSED. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0606 The undersigned has carefully considered the proposed findings of fact and conclusions of law submitted by the petitioner and the respondent. The proposed findings of fact have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner: The document filed by the petitioner entitled "Proposed Findings of Fact and Conclusions of Law" contains neither factual findings nor legal conclusions. Instead, petitioner complains of the procedural rulings at the final hearing. The undersigned would only note that the final hearing occurred on a Friday and that the parties were advised that if the hearing were not completed on that day, it would be continued to a later date. It was only after the petitioner announced that he had no further witnesses that respondent moved for a directed recommended order and elected not to present any evidence after that motion was granted. Respondent: (NOTE: Any reference to the hearing transcript and Mr. Wiggins' deposition transcript are rejected inasmuch as neither transcript was filed with the Division of Administrative Hearings.) 23 and 24. Rejected as irrelevant and immaterial to the issues in dispute. COPIES FURNISHED: E. D. Wiggins 4843 Campenella Drive Jacksonville, Florida 32209 Kathryn M. Lancaster, Esquire 501 First Avenue North Suite 626 St. Petersburg, Florida 33701 Leslie Reicin Stein, Esquires Post Office Box 110, M.C. 7 Tampa, Florida 33601 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Regina McGriff, Clerk Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issues to be determined in this case are whether Respondent discriminated against Petitioner based upon a disability in violation of section 760.10(a), Florida Statutes (2017); and, if so, what remedies are appropriate.
Findings Of Fact The original complaint filed with FCHR states in pertinent part: “I am a disabled female. I have been discriminated against based on disability. On 8/17/2017, I told my CEO (Mr. David Yokeum) that I had to leave the office due to my disability. I was feeling dizzy and needed to take my medication. . . . Respondent knew I had a previous injury on my arm/hand and that I couldn’t use my hand in an excessive amount. I re-injured my hand while cleaning and went to the Emergency Room. I was placed on medical leave until I was cleared by Hand Surgeon. . . . I was told I was no longer needed because I couldn’t clean. The Petition for Relief filed after the FCHR’s Determination of No Cause states in pertinent part: “discriminated, treated unfairly due to anxiety disorder; wrongfully demoted to cleaning person resulting in further aggravation of an injury.” No mention of the anxiety disorder appears in the original complaint. Melissa Bruno is a single mother with two sons. Her father, Thomas Tegenkamp, owns a local business in the Sunrise area. Mr. Tegenkamp has enjoyed a long-standing friendship with David Yokeum, the chief executive officer of WCA USA, Inc. (WCA). There was little, if any, evidence presented about WCA, except that Mr. Yokeum was the chief executive officer and that, at the time of Petitioner’s employment, there were approximately 25 employees. At some point, Mr. Yokeum mentioned to Mr. Tegenkamp that his company was looking for an employee for the office.1/ Mr. Tegenkamp told Mr. Yokeum that his daughter was looking for a job. No evidence was presented regarding her qualifications for the job at WCA-–her past training and job experience was as a cosmetologist. It appears from the evidence that she was hired primarily because of her father’s friendship with Mr. Yokeum. Petitioner was hired by WCA in July 2014 as a receptionist. Initially, her duties included answering the phone and the door, ordering supplies, and helping around the office. Her position was a salaried, as opposed to an hourly, position. About four months after Petitioner was hired, she was given responsibility for the UPS program. The UPS program is a billing function that needed to be completed each week, and involved downloading approximately 20,000 lines of data regarding shipping charges, separating the lines by “members,” and invoicing those members for their shipping costs. Matthew West is the regional director of North America for WCA, and has been with the company for approximately six years. He performed the duties related to the UPS program previously, in addition to several other responsibilities, and performed these duties after Petitioner’s departure. He believes that the UPS program can be completed by one person and is not a full-time job. He was not informed by Petitioner or anyone else that Petitioner had any type of disability. Sudkhanueng Bynoe has worked for WCA for 16 years in a variety of capacities, and currently serves as the company’s office manager. She participated in Petitioner’s hiring, and performs the company’s human resources functions. She remembered that, at some point, Petitioner told her that Petitioner had G.A.D. (generalized anxiety disorder), but she was not familiar with the acronym, and Petitioner did not explain what G.A.D. meant. Petitioner did not ask for any modification of her work based on her anxiety. She acknowledged that she did not advise Ms. Bynoe that her generalized anxiety disorder limited her ability to perform tasks, and did not ask for an accommodation. Both Petitioner’s brother and father testified at hearing. When asked at hearing, neither identified any disability from which Petitioner suffered while working at WCA. Both knew she took medication, but did not know what kind of medication or the basis for taking it. Neither identified any activity of daily life that was impaired by any type of disability. In late 2014, Petitioner was arrested for driving under the influence (DUI). She claimed that the reason for the arrest was that she was overmedicated for her anxiety disorder. She notified her employer about the DUI, and had a conference with Mr. Yokeum and Ms. Bynum about the legal requirements she needed to fulfill with respect to the DUI. None of the documents related to the DUI were admitted into evidence, and the specific requirements were not identified. However, it is undisputed that WCA allowed her time off to attend whatever court dates she had, and that she was allowed to come in late and leave early for an unspecified length of time because she needed to get a ride from her father to and from work. Mr. West described Petitioner as someone who tried very hard, and put in a lot of hours. However, her performance was not up to par. The UPS program needed to be completed each week, and her timeline for completion was way too long. She was often as much as a week behind. He recalled her having a couple of “meltdowns” while with the company, but was never informed that she had a disability. In addition to the length of time that it took Petitioner to complete her work each week, she developed a problem with attendance. When she did come to work, she was frequently late, and took lengthy breaks during the day. Mr. West testified that employees started with five vacation days at the beginning of employment, which would progress to ten days. He testified that there was no specific time allotted for personal time in addition to the vacation days. Ms. Bynoe indicated that employees were allotted ten days each year for vacation, and ten PTO (personal time off) days. Respondent believed that she had ten days for vacation and ten days for PTO, for a total of 20 days each year. Assuming that the attendance policy in fact allowed both vacation days and PTO days, Petitioner’s absences exceeded what was allowed. For example, in 2015, Ms. Bruno took nine days of sick leave, 15.5 days of PTO, and nine days of vacation, for a total of 33.5 days. She was allowed to work from home an additional five days, although working from home meant that someone else had to perform her receptionist duties. In 2016, she took 14 days of sick leave, 10.5 of PTO, and nine days of vacation, again for a total of 33.5 days. She came in after 10:00 a.m. an additional six days and worked from home an additional three days (two full days and two half days).2/ Petitioner had hand surgery in June 2016, which accounted for at least some of her absences. In 2017, from January 1 until August 31, Petitioner took six days of sick leave, 6.5 days of personal leave, and one day of vacation. She worked from home on 8.5 days, and was late (coming in after 10:00 a.m.) 13 times. She was also absent from the office an additional 11 days, of which ten were attributed to her suspension as of August 17, 2017. There were two occasions, although the dates were not specified, where Petitioner did not come into work and did not call to say that she would not be coming in. In short, Petitioner was late or absent more times than anyone else in the company. Because of her absenteeism, there was a meeting at some point in 2017 with Ms. Bynoe and another employee, where Ms. Bynoe requested that Petitioner sign in when she came to work and sign out when she left. She was the only employee required to sign in and out, but the procedure was implemented because of her excessive absences that other employees did not share. Petitioner’s absences were related to a variety of problems, including her mother’s passing, an anxiety disorder, dental work, hand surgery in June 2016, a partial hysterectomy, and ovarian cysts. Petitioner also had some issues with one of her sons, which increased her stress. However, the greater weight of the evidence does not indicate that she had a disability as is contemplated under the Americans with Disabilities Act. The evidence also does not establish that Petitioner ever asked for an accommodation based upon a disability. The greater weight of the testimony established that WCA made several attempts to assist her, by having people help her with carrying supplies and allowing her to occasionally work from home, even though that impeded her ability to perform her receptionist duties. In 2017, issues related to Petitioner’s performance came to a head. Mr. West had several discussions with Petitioner during the last six months of her employment, because she was often as much as a week late completing each week’s invoices. She was also often late in the mornings, and while she testified that when she came in after 10:00 a.m., it was because she was picking up supplies for the office, she did not notify her supervisor at the time that that was what she was doing. As noted above, she was allowed to work from home several times during her last year of employment. A few months before her termination, Petitioner came to work with a cast on her arm, and told Mr. West that she had dropped a couch on it at home. She had broken her wrist. However, she did not ask for a less strenuous job because of her hand, and did not ask for help with the UPS program. Other employees helped her with carrying supplies and other manual tasks. Petitioner was aware that she was behind in her work. On August 16, 2017, she spoke directly with Mr. Yokeum and told him she needed additional help. The next morning Petitioner reported to work, but had to leave for the day shortly after she started, because she was dizzy and “twitching,” and was afraid it would evolve into a panic attack. Once again, Petitioner texted Mr. Yokeum to advise him of her absence and the reason she had to leave the office. Mr. Yokeum was not her direct supervisor. On August 17, 2017, Petitioner was advised by letter from Mark Mairowitz, WCA’s Executive Vice President, that she was being suspended from the office until at least September 1, 2017, due to her office attendance. The letter she received states in part: Hello Melissa David Yokeum called me to his office this morning to express his displeasure at your office attendance record as he has grown very concerned. Because of his relationship with your father, he has asked me, as WCA Executive Vice President, to interact with you and to let you know that you are NOT to contact David from now on. He has no desire to hurt your family and so he has turned all matters regarding your employment over to me. Again, you are NOT to contact David in any way. Doing so will jeopardize your continued employment at WCA. You are only to deal with me from this day forward. Your attendance record has been examined by David and myself and we find a disturbing pattern of absence, with far more days/hours out of the office than other WCA employees. We are concerned for your health and your safety in getting to and from the office and before you can return to the office, you will be required to undergo a complete medical evaluation/examination and obtain a “clean bill of health” letter from a physician before you can return to work. Furthermore, as David will be out of the office until September 1st, he prefers you NOT be in the office until his return. So, consider yourself on suspension until that date. Mr. Mairowitz’s letter also requested that Ms. Bruno return her office computer and cell phone until she was reinstated, and advised her that her salary would be unaffected by the suspension. However, it is unclear from the letter what health issue Mr. Mairowitz is referencing. In early September 2017, Ms. Bruno returned to the office. At this time, she was relieved of her responsibilities related to the UPS program and reassigned to cleaning in addition to stocking the office and breakroom. The cleaning consisted of vacuuming, mopping the floor, and taking out the trash. From management’s point of view, this assignment would allow her to have flexible hours and less responsibility, while not suffering any reduction in pay. From Petitioner’s point of view, the change in job responsibilities was demeaning and humiliating, and meant to embarrass her. Ms. Bruno cleaned the office once, over Labor Day weekend, and did not do so again. She testified that after cleaning the office that weekend, she experienced significant pain in her hand and had to go to the emergency room to have it examined. While she testified that the emergency room sent her home with a work release for two days or until cleared by her hand surgeon, no documentation from the emergency room was submitted at hearing, and no evidence was submitted to demonstrate that the emergency room records were provided to WCA.3/ Ms. Bruno advised Mark (presumably Mark Mairowitz) that she hurt her hand and could not clean the office the way it needed to be cleaned. She did not report back to work at WCA. There was some testimony that the office was closed for a period in September related to a hurricane that hit the area, but there was no evidence as to how many days the office was closed. Petitioner’s employment was terminated as of September 29, 2017. Petitioner saw her hand surgeon on or about September 26, 2017. She submitted documentation from the Vanguard Aesthetic Plastic Surgery which is, for the most part, illegible, but is clear enough to confirm that she was seen as a patient and received some instructions. She did not report to Ms. Bynoe that she had gone to the emergency room, and did not inform her that she was unable to perform work cleaning and organizing the office because of her hand or because of any other disability. Petitioner did not testify that she was unable to perform the duties of cleaning and organizing the office because of her G.A.D. Petitioner did not establish by the greater weight of the evidence that she has a disability. However, she did establish that toward the end of her employment, WCA perceived her as having some sort of disability, as evidenced by Mr. Mairowitz’s letter to her requesting that she get a doctor’s clearance to return to work. Despite evidence that there were concerns, it is not at all clear whether WCA’s perception is based upon problems with her hand or problems caused by her anxiety disorder. Petitioner did not establish by the greater weight of the evidence that she requested an accommodation from her employer based on a disability. Likewise, she did not establish that WCA ever denied a request from Petitioner for an accommodation. Petitioner did not establish that WCA treated persons without a disability differently. No evidence was presented regarding any employee with a similar position and a similar attendance history, much less that such a person was treated differently than Petitioner. If anything, the evidence supports the view that WCA went to great lengths to accommodate Petitioner, in large part because of her father’s relationship with Mr. Yokeum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Petition for Relief be dismissed. DONE AND ENTERED this 30th day of January, 2019, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 January, 2019.
The Issue Whether Petitioner has been the subject of discrimination in a public accommodation due to a disability.
Findings Of Fact Petitioner, Cari Anderson, is a veteran of the Iraq War and has Post Traumatic Stress Disorder (PTSD). Her PTSD is sufficiently severe so as to constitute a disability under Florida law. Because of her disability, Petitioner keeps with her two small poodle-type service dogs that help her remain calm. Petitioner also trains such service dogs. On April 5, 2009, Petitioner was visiting her friend, Michelle Clas-Williams, at her home in Panama City, Florida. During her visit at around 2:00 in the morning, Petitioner, along with her friend, and her friend’s daughter, decided to go shopping at the Wal-Mart store in Callaway, Florida. Petitioner brought along her two service animals to the Callaway Wal-Mart. Neither of the dogs wore any identification as service dogs; and therefore, could not be readily identified as such. Upon arrival, Petitioner and her friend obtained separate shopping carts. Petitioner placed her two dogs on the bottom of the shopping cart, on a towel. Petitioner and her shopping companions entered the main part of the store. No one from Wal-Mart stopped Petitioner from entering the store. Both she and her friend spent the next 20- 30 minutes shopping throughout the Callaway Wal-Mart store where surveillance cameras intermittently monitored their passage through the store. None of the surveillance footage has sound. As a consequence, the surveillance footage of Petitioner’s visit does not add support for either party’s version of the events in this case. During her time in the store, Petitioner walked freely throughout the aisles and was not prevented from shopping at the Callaway store. On at least two separate occasions, individual employees politely informed Petitioner that she could not have her dogs in the store. However, on each such occasion Petitioner explained to the employee that her dogs were service animals. The employees responded positively and Petitioner continued her shopping. There was no evidence that these employees communicated with Wal-Mart management. As Petitioner and her friend approached the checkout lines, the Customer Service Manager, Monica Amis, noticed Petitioner’s two dogs in her shopping cart. Ms. Amis walked up to Petitioner and said, “Ma’am those dogs cannot be in the store.” Before Ms. Amis could ask anything else, including whether the dogs were service animals, Petitioner erupted into a loud vocal tirade stating among other things, “You don’t tell me what the fuck to do. I can do what I want. I’m sick of Wal- Mart’s shit you think you own the world.” Ms. Amis could not get a word in and could not calm Petitioner down. Petitioner demanded the store manager be called and demanded that some papers which “proved” her dogs were service animals be looked at. Within minutes of first approaching Petitioner, Ms. Amis instructed the cashier to process Petitioner’s purchases. She then walked away and called the store manager. The better evidence did not demonstrate that Ms. Amis was rude or profane with Petitioner. The evidence did demonstrate that Ms. Amis’ actions in approaching and interacting with Petitioner were clearly reasonable and did not constitute discrimination against Petitioner. Shortly after Ms. Amis’ call, the store manager, Gary Wright, approached the front of the store. He could hear Petitioner yelling. He was very concerned about her behavior and the disturbance she was making. He approached her at the cash register. Mr. Wright asked Petitioner to calm down so he could speak with her. As she was paying for her items, Petitioner continued to yell loudly and use profanity. She was permitted to complete her transaction and no one from Wal-Mart interfered with her ability to do so. However, Petitioner remained belligerent, loud, and profane. Petitioner believed that her rights were being violated and that Ms. Amis and the manager could not tell her that her dogs could not accompany her in the store and if they inquired about them, they could only ask one specific question about whether her dogs were service dogs under an alleged agreement Wal-Mart recently entered into with the federal government. Petitioner’s beliefs about the meaning and scope of this alleged agreement, which was not introduced into evidence, is simply misplaced and does not establish any of the actions by either Ms. Amis or Mr. Wright as discriminatory acts. Like Ms. Amis, Mr. Wright could not get a word in. He understandably became exasperated with Petitioner and the conversation devolved with Mr. Wright telling Petitioner on at least two occasions to “shut up” and “shut the fuck up.” He also told her that he did not think poodles were service animals, but old-lady dogs. In the meantime, Petitioner was yelling about her papers and that Mr. Wright needed to look at them. Mr. Wright simply wanted Petitioner to leave the store. He also told her that he had no problems with the service dogs being in the store, but if she did not calm down, he would have to call the Bay County Sherriff’s office. Given Petitioner’s loud and irrational behavior it was reasonable for Mr. Wright to ask Petitioner to leave the store. When Mr. Wright informed Petitioner that he was calling the Sheriff’s office, Petitioner stated that she was glad they were coming. She wanted their assistance. Mr. Wright walked away and called the Sheriff’s office. There was no evidence that Mr. Wright made a false report to the Sheriff’s office. Additionally, Petitioner called 911 to confirm that an officer was en-route. Likewise, given Petitioner’s continued behavior and her assent to the call, it was reasonable for Mr. Wright to call the Sheriff’s office. Notably, the entire interaction between Petitioner, Ms. Amis, and Mr. Wright took less than 10 minutes. After completing her purchase, Petitioner remained at the checkout lane while her friend, who was in another checkout lane, paid for her merchandise. Petitioner continued yelling, using profanity, and causing a disturbance. Then Deputy, now Investigator, VanStrander arrived outside of Wal-Mart’s east entrance doors and was met by Mr. Wright. Mr. Wright informed Investigator VanStrander that Petitioner was making a scene and being very loud and disruptive. Indeed, Investigator VanStrander could hear Petitioner yelling while he was outside the store and she was inside the store. Mr. Wright did not ask the officer to arrest Petitioner. Once both Petitioner and her friend had completed their purchases, they began walking toward the exit, with Petitioner continuing to yell. Investigator VanStrander entered the store and was immediately approached by Petitioner who was screaming and “cussing like a sailor.” Investigator VanStrander instructed Petitioner that she needed to leave the store. He also informed her that she would be arrested if she did not comply. Petitioner did not immediately follow his instructions. Instead she attempted to argue her position and show the officer her papers. He again instructed her to leave and motioned to the door. He did not block the doorway as Petitioner claimed that he did. She again did not immediately comply and within seconds the officer arrested Petitioner. With little to no struggle she was handcuffed, placed into custody, and charged with disorderly conduct and resisting an officer without violence. Petitioner’s interaction with the deputy while in the store lasted less than 5 minutes. Importantly, the evidence clearly demonstrated that the decision to arrest Petitioner was made by Investigator VanStrander. Respondent was not responsible for the actions of the officer or for Petitioner's behavior which led to her arrest. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 1st day of November, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 1st day of November, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amy Harrison Turci, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cari Anderson Post Office Box 371792 Las Vegas, Nevada 89137 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Does Petitioner, Seminole County School Board (Board), have just cause to terminate the employment of Respondent, Danny Jenkins, for being absent without leave and for failing to follow proper procedures for reporting absences?
Findings Of Fact The Board operates the public schools in Seminole County, Florida. It is responsible for hiring, terminating, and overseeing all employees of the school district. The Board has employed Mr. Jenkins as a bus driver in the transportation services division of the school district since 2006. Their employment relationship is subject to the collective bargaining provisions between the bus drivers' union, Seminole County School Bus Drivers' Association, Inc., and the Board, as reflected in the Collective Bargaining Agreement (Agreement), dated July 1, 2013, through June 30, 2016, and the Board's Transportation Services School Bus Operations Handbook (Handbook), dated July 2014. Mr. Jenkins had regular employment status as established by Article IX, Section 3 of the Agreement. Article XXII, Section 14 of the Agreement requires each bus driver to call in to report an absence in advance of the driver's regular starting time. The "Absentee Procedures" on page 50 of the Handbook require the same procedures. An employee is considered absent without leave (AWOL) for each day the employee is absent from work without reporting the absence using the process agreed to in the Agreement and established by the Handbook. Each day that an employee is AWOL is a separate offense for disciplinary purposes. The Agreement provides for a "progressive step process" of discipline for AWOL employees. The first offense is a reprimand with a one-day suspension. The second is a five-day suspension. The third is a recommendation for termination. The Handbook provisions for AWOL employees are similar to those of the Agreement. Employees who fail to notify dispatch within an hour past their report time are considered AWOL. The first AWOL incident results in a one-day suspension without pay. The second offense causes a five-day suspension. The third offense is cause for termination. Regular employment class employees may be suspended without pay or discharged for reasons including, but not limited to: violation of Board policy; violation of work rules; insubordination; improper use of sick leave; failure to perform assigned duties; and other infractions as set forth by the superintendent. Just cause is required. On August 11, 2014, the first day of the 2014-2015 school year, Mr. Jenkins did not show up for work. He did notify dispatch that he was not coming in. The Board took no disciplinary action for Mr. Jenkins' absence that day. On August 12, 2014, Mr. Jenkins did not report for work and did not call dispatch to report his absence from work. Ms. Murphy, assistant director of Transportation Services, sent Mr. Jenkins a letter notifying him that due to being AWOL on August 12, 2014, she recommended that he be suspended for one day pursuant to the Agreement. On Wednesday, August 13, 2014, Mr. Jenkins did not report for work. He did not call dispatch as the Handbook required. But he did call the School Board's front desk. The Board did not take disciplinary action for that absence. On Thursday, August 14, 2014, Mr. Jenkins did not report for work. He did not call dispatch or make any other form of contact with the Board concerning his failure to report for work on that day. On Friday, August 15, 2014, Mr. Jenkins did not report for work. He did not call dispatch. At 12:08 a.m. that day, he sent a fax addressed to Ms. Murphy saying that he would not be able to come into work. The fax also contained a narrative disputing previous recommendations for discipline, discussing alleged poisoning from fumes on the bus, and giving reasons why he had not taken a physical to obtain a current medical certification as required. On Monday, August 18, 2015, Mr. Jenkins did not report for work. He did not call dispatch or otherwise contact the Board about his failure to report for work. Mr. McKenzie sent Mr. Jenkins a letter on August 18, 2014, stating that Mr. Jenkins must contact him by Thursday, August 21, 2014, to discuss his employment status. Mr. McKenzie also called Mr. Jenkins' home and cell telephone number in order to "help him as best as I can to get him to come to work." Mr. Jenkins did not respond. On Tuesday, August 19, 2014, Mr. Jenkins did not report to work. He did not call dispatch. He sent Ms. Murphy a fax at 9:09 p.m., on August 18, 2014, stating that he would not be able to report for work on August 19, 2014. The fax also claimed the school was not acknowledging his telephone calls. Mr. McKenzie called Mr. Jenkins four times on August 19, 2014, to discuss his absence from work and other work-related issues. Mr. Jenkins did not report to work on Wednesday, August 20, 2015. He did not call dispatch or otherwise communicate with his supervisors about his failure to report for work. Mr. McKenzie called Mr. Jenkins four times on that day to discuss his absence from work. Mr. McKenzie also e-mailed Mr. Jenkins. On Thursday, August 21, 2015, Mr. Jenkins did not report to work. He did not call dispatch an hour before his scheduled runs. He called Mr. McKenzie via telephone later that afternoon after receiving Mr. McKenzie's August 18, 2014, letter. Mr. McKenzie offered to meet with Mr. Jenkins the following day. Mr. Jenkins said he would attend. On Friday, August 22, 2014, Mr. Jenkins met with Mr. McKenzie, Mr. Lewis, and union representative Andrea Reeves. The parties discussed, among other things, the fact that Mr. Jenkins was not in compliance with the physical, medical card, training, and related commercial driver license requirements necessary for him to operate a bus. Mr. Lewis also confirmed each of Mr. Jenkins' absences and AWOL status for the dates in August where he did not report for work and did not call dispatch. This is a party admission admissible under the hearsay exception created by section 90.803(18)(a), Florida Statutes. The vast majority of the Board's evidence was hearsay, not subject to a hearsay exception. But Mr. Jenkins' admission to Mr. Lewis, coupled with the fact that Mr. Jenkins' testimony at the hearing basically did not dispute the charges, so much as offer reasons why he could not come to work and reciting many of his concerns, including student verbal and physical abuse on the bus, bullying of his children, and poisoning of some sort related to his employment. To the extent that the testimony of Mr. McKenzie and Mr. Lewis conflicted with Mr. Jenkins' testimony, the undersigned found Mr. Lewis and Mr. McKenzie more credible. The outcome of the meeting was that Mr. Jenkins was expected to report for work on Monday, August 25, 2014. Immediately after the meeting, Mr. Lewis met privately with Mr. Jenkins. Mr. Lewis told Mr. Jenkins that he could either resign or come in the following Monday and do everything he needed to do to retain his employment. Mr. Jenkins did not report for work on August 25, 2014. He did not contact dispatch or otherwise communicate with his supervisors or the Board. Mr. Lewis called Mr. Jenkins on Monday after he failed to report for work and offered to pick him up and bring him to work. Mr. Jenkins declined that offer. After Mr. Jenkins did not report for work on August 25, 2014, Mr. Lewis caused a letter to be mailed to Mr. Jenkins notifying him of a second AWOL offense and Mr. Lewis's recommendation that Mr. Jenkins be terminated from employment. On Tuesday, August 26, 2014, Mr. Jenkins did not report for work. He did not contact dispatch or otherwise communicate with his supervisors or the Board. That same day, the superintendent sent Mr. Jenkins a letter noting that Mr. Jenkins had been AWOL on August 14, 20, 21, 25 and 26, 2014. The letter also noted that Mr. Jenkins failed to follow the required notice procedures for his absences on August 15, 18, and 19, 2014. The superintendent's letter notified Mr. Jenkins that he was recommending that the Board suspend Mr. Jenkins without pay at the September 9, 2014, Board meeting and that the superintendent would recommend Mr. Jenkins' termination at the October 14, 2014, board meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Seminole County School Board, enter a final order finding that there is just cause to terminate Respondent, Danny Jenkins', employment and dismissing him from his position as a regular employee bus driver with the Seminole County School District. DONE AND ENTERED this 13th day of April, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2015.
