The Issue The issues are as follows: (a) whether Petitioner's April 27, 1998, Charge of Discrimination states a cognizable claim under Sections 760.01 - 760.11 and 509.092, Florida Statutes; and if so (b) whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of age, race, and/or gender.
Findings Of Fact Petitioner is a black female who is over 60 years old. According to her 1992 résumé, she earned a general education diploma at Haney Vocational Technical Center, in Bay County, Florida in 1981. Petitioner's résumé states that between 1981 and 1984, she completed thirty semester hours in hotel/motel restaurant management at Gulf Coast Community College, in Bay County, Florida. At the hearing, Petitioner testified that she was certified as a working chef by the American Culinary Federation with a degree from the University of Michigan in hospitality management. However, Petitioner did not refer to the American Culinary Federation or list a graduate degree on the résumé that she furnished to Respondent in 1992. Petitioner's testimony is not credible. Petitioner's 1992 résumé includes the following professional training and certifications: (a) 1969, United States Air Force sanitation certificate; (b) 1986, State of Florida sanitation certificate; (c) 1981, National Cooking Institute, Denver, Colorado, for 360 hours in a culinary arts skills program, receiving an outstanding performance award for contribution in support of United States Air Force food service, catering, and special functions; (d) 1981, American Hotel/Motel Association certification for a course in introduction to hospitality industry and food and beverage control; (e) 1987, certificate of achievement for the United States Air Force Culinary Arts Upgrade Training for Managers and Supervisors, a 260-hour workshop at Randolph Air Force Base in Texas; and (f) 1988, a nutrition certificate for a 450-hour workshop at the Culinary Arts School in St. Augustine, Florida. Petitioner's 1992 resume includes the following work experience: (a) 1969-1975, service supervisor at a local restaurant in Panama City, Florida; (b) 1969-1985, full-time party chef and kitchen manager at Tyndall Air Force Base Non- Commissioned Officer's Club; (c) 1982-1992, part-time kitchen manager and food production specialist at Haney Vocational Technical Center, in Bay County, Florida, including working as an assistant instructor; and (d) 1985-1992, full-time kitchen/dining room manager and executive chef at Tyndall Air Force Base Officer's Club. Respondent is a hospitality company that provides upscale accommodation and fine cuisine to its guests. Respondent gives its employees a copy of its comprehensive employee handbook when they are hired. New employees are required to sign an acknowledgement that they agree to read and abide by the rules and regulations contained therein. Petitioner signed the acknowledgment that she had received and would abide by the rules set forth in the employee handbook on May 12, 1992. The employee handbook contains a complaint procedure. Employees are encouraged to report any job-related problems, including discrimination or harassment, to their supervisor and up the chain of command if the supervisor is part of the problem. The employee handbook sets forth rules of conduct and a three-step progressive disciplinary procedure that applies except in certain circumstances. The first time an employee violates a rule, the employee receives an oral reprimand. The second rule violation results in a written final warning regarding the behavior. Respondent terminates an employee for a third violation of a rule. The employee handbook requires employees to call their supervisor when they find it necessary to be absent from work due to illness, or other emergencies. This call to the supervisor must be made no later than one hour before a scheduled time to start work. Violation of this rule may result in immediate termination of employment without resort to the three-step disciplinary procedure. In 1996, Respondent amended its personnel procedures. The new policy regarding sick and personal leave was attached to employees' paychecks. The new policy required employees to request non-emergency personal or sick leave in writing ten days in advance. The request form was to be submitted directly to the employees' supervisors. Respondent knew about this policy and complied with it when she had surgery. Respondent hired Petitioner as a cook in the banquet kitchen effective May 14, 1992. On June 2, 1992, Respondent transferred Petitioner to the kitchen in Respondent's Sunset Bay facility. On April 1, 1993, Respondent transferred Petitioner back to the banquet kitchen as lead pantry cook. She usually worked the breakfast shift. Her principal duties involved preparation of cold foods. Chris Chirum was Respondent's Executive Chef of the Resort in April 1997 and at all times material here. Michael Kulow, Respondent's Director of Food and Beverage, was Chef Chirum's supervisor. Chef Chirum supervised an Executive Sous Chef, a Banquet Chef also known as Chef Tourant, and various restaurant chefs/managers and/or cooks, including Petitioner. Chef Chirum encouraged all of his subordinates to adhere strictly to Respondent's attendance policies. He urged them to call him directly at work or home when they would not be able to make a scheduled shift. This enabled Chef Chirum to ensure that the kitchens were always properly staffed. When a position of employment becomes available, Respondent's Human Resources Department publishes the vacancy in a company newsletter. Respondent's policy is to hire qualified applicants from within the organization if possible. If Respondent does not receive an application from a qualified in- house applicant, Respondent advertises job vacancies in newspapers and accepts outside applications. The company newsletter is available in the personnel office for walk-in applicants to review. Once the Human Resources Department receives an application, it is sent to the appropriate department head for further consideration. In April 1997, Wayne Edwards, applied for a vacant position as Chef Tourant.1 Mr. Edwards had not previously been employed by Respondent, but he had excellent credentials as a Chef. Mr. Edwards graduated from the University of Kansas with a graduate degree in business. He also completed a three-year degree program in hospitality management at a community college in Kansas. He was certified as a working chef by the American Culinary Federation, receiving Chapter Chef of the Year in Huntsville, Alabama. Mr. Edward's work experience includes the following: (a) 1990-1991, food and beverage director for a Hilton hotel; (b) 1992-1993, food and beverage director for a Marriott hotel; (c) 1994, food and beverage supervision for banquets and culinary a la carte at a Holiday Inn hotel; and 1995-1997, owner/operator of a sports bar. Petitioner discussed her interest in applying for the position of Chef Tourant with Michael Kulow in April 1997. He did not encourage her to apply for the job but told her to file an application. Petitioner went to the personnel office and picked up an application. Her testimony that she completed the application and submitted it to Respondent's Human Resources Department is not persuasive. The record does not contain a copy of Petitioner's application for the position of Chef Tourant. Michael Kulow, in conjunction with Chef Chirum, usually made the hiring decisions for kitchen employment positions. In this case, Michael Kulow decided to hire Wayne Edwards as Chef Tourant. Chef Chirum agreed with Michael Kulow that Mr. Edwards was more than qualified for the position of Chef Tourant. Chef Chirum was not aware that Petitioner was interested in the job. Chef Chirum provided persuasive testimony at the hearing that Petitioner did not have the educational background or work experience that Mr. Edwards possessed. Competent evidence indicates that Respondent would have hired Mr. Edwards as Chef Tourant even if Petitioner had followed the correct procedure and submitted an application for the position. On July 21, 1997, Petitioner filed a complaint with FCHR alleging age and race discrimination based on Respondent's failure to promote her to Chef Tourant. FCHR did not provide Respondent with a notice of this complaint until May 1998. On August 8, 1997, Chef Chirum gave Petitioner a verbal warning for being absent during a scheduled shift. He explained to her the importance of following the policies set out in the employee handbook relative to attendance. He explained the disciplinary procedure. Petitioner signed the Employee Communication Notice but indicated that she did not agree with it. On November 24, 1997, Chef Chirum gave Petitioner a final written warning for an unexcused absence. Petitioner was scheduled to work the morning shift and never showed up. Petitioner claimed that she had requested the day off. However, Petitioner had not submitted the proper paperwork in a timely manner for requesting non-emergency personal/sick leave. Petitioner was or should have been aware that any further violation of the attendance policy might result in termination of her employment. On December 13, 1997, Chef Chirum set up a television in the banquet kitchen. He wanted to watch the score of a football game with the sound muted on the set. Petitioner became upset when she realized that Chef Chirum had the television in the kitchen because she had not been allowed to have a radio on while she worked. Chef Chirum attempted to explain that, unlike the radio, the muted television did not interrupt essential communications in the kitchen. Petitioner continued to argue, raising her voice. Chef Chirum spoke to Petitioner in his office. He told her to take the rest of the day off so she could calm down. Before she clocked out, Petitioner asked Chef Chirum if she should work the next day. He responded that she should because she was scheduled. On the evening of December 13, 1997, Petitioner called Jo Ann Thigpen, one of the banquet servers, at work. Petitioner told Ms. Thigpen that she would not be coming in to work the next day because she had experienced an anxiety attack. Petitioner asked Ms. Thigpen to relay the message to her boss. Ms. Thigpen gave Executive Sous Chef, Chris Anglin, Petitioner's message that night. Petitioner should have contacted her supervisor directly instead of delivering the message through another employee. December 13, 1997, was Petitioner's last day at work. December 14, 1997, was a Sunday. Petitioner usually had the day off on Sunday. However, she had volunteered to work on the 14th and had been scheduled to do so. On the morning of December 14, 1997, Petitioner called the banquet kitchen and talked to Carol Ann Ernest, who worked next to Petitioner in the banquet kitchen. Petitioner asked Ms. Ernest to tell Chef Chirum that she would not be in to work that day. Ms. Ernest delivered the message a few minutes later when Chef Chirum called the kitchen. Petitioner should have called Chef Chirum at home or left a message on his voice mail instead of giving the message to a co-worker. Petitioner did not show up for scheduled work or call Chef Chirum on Monday, December 15, 1997. Petitioner was not scheduled to work on Tuesday, December 16, 1997. She did not show up for scheduled work or call Chef Chirum on Wednesday, December 17, 1997. On December 17, 1997, Petitioner went in to Respondent's Human Resources Department to talk with Sylvia Hanks, Respondent's Vice President of Human Resources. Petitioner told Ms. Hanks why she became upset and left work on December 13, 1997. Petitioner explained to Ms. Hanks that she was under a lot of stress in her work environment. Petitioner claimed that Wayne Edwards and other employees in positions of authority had been rude and threatening to her. At the time of the meeting on December 17, 1997, Ms. Hanks was not aware that Petitioner had filed a race or age discrimination claim on July 21, 1997.2 Petitioner did not raise the issue directly with Ms. Hanks. Instead, Petitioner requested a three to four-week leave of absence. Ms. Hanks gave Petitioner a leave of absence form and encouraged her to complete the form and return it to the Human Resource Department. Petitioner never returned the completed form. After meeting with Petitioner on December 17, 1997, Ms. Hanks investigated Petitioner's allegations regarding the incident on December 13, 1997, and her allegations of unfair treatment. Ms. Hanks was unable to verify Petitioner's allegations. Ms. Hanks did not attempt to contact Petitioner after completing her investigation because she agreed with Chef Chirum's decision to terminate Petitioner for violation of Respondent's attendance policy. Sometime during the workweek beginning December 15, 1997, Petitioner's attorney contacted Ms. Hanks. The attorney informed Ms. Hanks that she knew Respondent would do the right thing for Petitioner. The attorney never mentioned Petitioner's pending claim of age or race discrimination against Respondent or that Petitioner had filed a Charge of Discrimination with FCHR. Respondent subsequently terminated Petitioner's employment, effective December 13, 1997, for failure to comply with the attendance policy. When Chef Chirum made the decision to fire Petitioner, he was not aware of her pending claim of age or race discrimination. There is no persuasive evidence that Petitioner's termination was in retaliation for filing a discrimination claim with FCHR.
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 Charge of Discrimination with prejudice. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 12th day of January, 2001.
Findings Of Fact Petitioner, Jackie Kilpatrick, worked for Respondent, Howard Johnson Company, for approximately eighteen years in the capacity of waitress. Petitioner is a black woman whose birth date was February 10, 1946. Kilpatrick in the relevant time period worked the initial shift of a three shift work cycle in the restaurant which is located on West Tennessee Street, Tallahassee, Florida. That shift was the 6 A.M. to 3 P.M. morning cycle. Petitioner was one of several waitresses working that shift all of whom had long-standing service with Howard Johnson Company. Petitioner was the only black waitress; however, the cook on that shift was also black. As an employee of Howard Johnson, Petitioner enjoyed a good reputation among her fellow workers and customers of the restaurant with the exception of one customer, in incident which will be subsequently discussed. In early 1982, a meeting was held in the Howard Johnson restaurant in which the Petitioner indicated that she felt the restaurant manager, a Ms. Williams, gave preferential treatment to a white employee. The District Manager for Howard Johnson, Ramon Jimenez, was involved in the meeting and was left with an unfavorable impression of the Petitioner's conduct related to the remarks made to Ms. Williams. Shortly thereafter, Ms. Williams was replaced as the store manager for the Howard Johnson, West Tennessee restaurant. Her replacement, Lionel Robbins, felt that the management of the subject restaurant under the direction of Ms. Williams had not been acceptable and he set about his management task by informing the waitresses on the first shift that he was not there to be their friend. He stated that he was there to, in effect, clean up the operation. Making known his sentiments, he on a number, of occasions indicated to those waitresses, to include the Petitioner, in individual conversations with those employees, that "You can't teach an old dog new tricks". He had mentioned to Mary Mills, a waitress in the first shift, with total service of 25 years with Howard Johnson, that he was there to get rid of people on the first shift. Robbins constantly pressured the first shift waitresses on the question of their performance. He reduced their work hours and assigned more available work hours to new waitresses who he had hired. The new waitresses were hired after Petitioner was dismissed from her employment. Those new waitresses were somewhat younger than the waitresses on the first shift. The original waitresses on the first shift were from 35 to 55 years of age and the new waitresses who were hired were 18 to 23 years of age. During Robbins' time as store manager, in addition to Petitioner, he fired Bernice Johnson, a white waitress, of 16 years service with Howard Johnson who had been employed on the first shift with Kilpatrick. Bernice Johnson's dismissal was within four weeks of Robbins assignment as restaurant manager. Robbins' treatment of the Petitioner was provocative. This aura of provocation commenced from the first day that Robbins met the Petitioner. On that occasion, which took place in the restaurant on March 25, 1982, Robbins witnessed a disciplinary conference between Jimenez and Kilpatrick complaint had been made by a Mrs. DeCarlo, the owner of a privately run Howard Johnson motel operation adjacent to the restaurant, and this was the subject of the disciplinary conference. DeCarlo indicated that the Petitioner would not serve her when DeCarlo came to the restaurant. On the date of the conference Jimenez had prepared the employee reprimand which is Respondent's exhibit number one admitted into evidence, prior to the conference. He presented it to Kilpatrick and indicated to her that it was her responsibility to serve Mrs. DeCarlo or any patron, regardless of the desires of the employee waitress. Kilpatrick indicated that she surmised that DeCarlo really did not wish to be served by her. The conversation became somewhat heated and Robbins interceded and indicated that the Petitioner might wish to transfer to another Howard Johnson restaurant in Tallahassee, Florida. The suggestion was not well received by the Petitioner, in that she indicated an unwillingness to accept a transfer. Robbins indicated that if the Petitioner could not get along with Jimenez, who was Robbins superior, then she was going to have an attitude problem toward Robbins. He suggested the move to the Apalachee Parkway restaurant in Tallahassee, because he felt there was already a personality conflict developing. Petitioner stated that she felt that Robbins wanted to remove her because he was prejudiced. Eventually Robbins talked about the possible termination of the Petitioner's employment. The matter was finally resolved following a discussion with another official within Howard Johnson Company, a George Gover, by telephone call in which it was decided that the reprimand would stand, but the Petitioner would be allowed to continue her employment. From the point of this encounter on March 25, 1982, until the Petitioner's dismissal on April 27, 1982, the working relationship between Robbins and the Petitioner was strained. Between the time of the March 25, 1982 incident, in which the Petitioner was reprimanded, and April 27, 1982, Petitioner and other waitress employees in the first shift were the subject of continuing criticisms by Robbins. Robbins had the impression that Kilpatrick was "too set in her ways" and would not cooperate with his management scheme. 0n the morning of April 7, 1982, Petitioner had to make a number of adjustments in the station where she serves patrons because of oversights of the prior shift of waitresses. She had concluded this activity when Robbins arrived around 8 AM. He observed the "set up" of the tables and found them to be lacking, in his estimation. One matter that struck his eye was the fact that the silverware on one of the napkins was "kind of astray". He spoke first with the waitress Donna Cooper who referred him to the Petitioner. Petitioner indicated that the problem was one related to the prior shift to which the manager, Robbins, retorted that the Petitioner was responsible. An argument ensued between the Petitioner and Robbins and they retired to Robbins office which was in the area of the kitchen. While in the kitchen Petitioner kept referring to the fact that the problems in the restaurant were not those caused by the shift on which she worked. Robbins was insisting that the problems were related to the overall operation. In the course of this conversation, a discussion was entered into related to a reprimand which the Petitioner had received, along with other waitresses, related to the sufficiency of the guest checks as to errors in computations. A copy of that reprimand may be found as Respondent's exhibit's number two admitted into evidence. Petitioner did not wish to sign the written reprimand although she acknowledged making mistakes. She remarked that no one was perfect and Robbins stated that she would have to come closer to his standards of performance. Robbins then asked the Petitioner to transfer from the restaurant and she declined. Robbins then indicated that he was doing to reprimand her for the events of that morning. Her response was that if he reprimanded her that he might as well take her off the schedule, meaning remove her from the shift. In return Robbins struck her name from the work schedule and began calculating her final pay and told the Petitioner that she was discharged. The basis of the discharge was related to the impression by Robbins that the Petitioner was insubordinate. Prior to the dismissal or discharge, in addition to the reprimand related to the dining room table setting, a reprimand for insubordination was presented to the Petitioner. She refused to sign this latter document. A copy of that reprimand may be found as Respondent's exhibit number three admitted into evidence. At the time of her discharge the Petitioner was working 34-35 house a week at a rate of $2.01 per hour together with $35.32 tips per week. Since her discharge the Petitioner has attempted to find work by checking with the State Employment Agency; the local School Board; Rose Printing; with a gentlemen named Holiday, related to custodial work; with a person Joe Williams and another individual who works at Morrisons Cafeteria. These efforts were not successful. Petitioner has not pursued the idea of gaining work as a waitress in view of her desire to participate in church work on each Sunday. Petitioner does not wish to work in any Howard Johnson restaurant other than Tennessee Street, Tallahassee, and specifically would not wish to work in the Apalachee Parkway restaurant in Tallahassee, Florida. Furthermore, the Petitioner does not wish to work at the Tennessee Street restaurant if Lionel Robbins remains as manager. At the point of final hearing, Robbins was still serving as manager of the Tennessee Street restaurant. Petitioner has been unemployed since the time of her dismissal from her job at Howard Johnson restaurant.
The Issue The issue for consideration in this case is whether the School Board should cancel the Respondent's Professional Service Contract and terminate his position due to low enrollment and reduction in his program.
Findings Of Fact At all times pertinent to the issue herein, the Pinellas County School Board, (Board), operated the public instructional program in Pinellas County, including preschool, elementary and secondary education, and adult technical and vocational training programs. The Respondent, Frederick Usher, was a teacher at PTEC, St. Petersburg, instructing in the organization's culinary arts program. Respondent holds a professional services contract with the Board for his services as an instructor. At PTEC, St. Petersburg, the culinary arts program currently consists of three teachers, including the Respondent. The program offers three basic areas of instruction. The first is basic cooking. The second is baking, and the third, where Respondent teaches, is advanced chef. In this area, as well as all other subject matters taught at PTEC, St. Petersburg, a desired pupil/teacher ratio has been established. For culinary arts this ratio is 15 students to 1 teacher. At the present time, there are 16 adults and 14 part- time high school students enrolled in PTEC, St. Petersburg's culinary arts program. Twelve adults are full-time students, (6 hours per day). The remaining 4 adults and the 14 school students are all part time. Even if all adults, and the high school students were full-time, the total of 30 students would still be well below the desired 15 - 1 ratio. The culinary arts program has been in existence at PTEC, St. Petersburg for at least three years, Over that period, school records indicate 211 adult enrollments and 28 graduates. The student enrollment in the culinary arts program, however, has been steadily declining even though numerous efforts have been made to increase the enrollment. Among these are public relations efforts by the Board, and encouragement to instructors to recruit students for the program. This is a recognized and accepted practice in vocational adult education. Other efforts have been made to try to keep all three teachers on board, including the reduction of the teacher contract term from 235 days per year to 196 days per year. This was an effort to reduce costs so that all three current instructors could be retained. Respondent is the most junior of the three instructors in the culinary arts program at PTEC, St Petersburg. Over a year ago, members of the Board staff spoke with all teachers about the situation, and in an effort to expand the program, contacted the Director of PTEC, Clearwater to see if a culinary arts program could be established in the Clearwater prison, within the area served by PTEC, Clearwater. It was anticipated that if this program could be started, an instructor from PTEC, St. Petersburg could fill the position. When the matter was presented to the Respondent, though he was not particularly interested in it, he went to the prison on two separate occasions. He examined the facility and found it to be extremely dirty and in poor condition, and he also concluded that it would take a significant amount of money and effort to provide the equipment necessary to operate an effective program. To counter those objections, the Board produced evidence that the prison authorities had agreed to clean up and refurbish the kitchen area, and the Board agreed to provide whatever equipment was necessary to allow the instructor to operate an effective program. This would include stoves, refrigerators, cutting tables, sinks and the like. The state of repair of the facility was not the Respondent's only objection, however. Granted there were, and are, other instructional programs at the prison, the majority of them are conducted outside the secure area of the prison proper in separate buildings. In contrast, the kitchen is within the prison proper, and access thereto requires passage through three locked areas. Respondent also discussed the situation with several of the other instructors at the prison who, while they might have been satisfied with the conditions under which they taught, indicated to Respondent that the conditions he would face inside the prison would not be pleasant. On the basis of this information, and based on his genuine fear for his safety should he accept a position inside the prison walls, Respondent declined the transfer. According to Dr. Laux, the Director of PTEC, St. Petersburg, the culinary arts program at that institution has been running in the red for the past five years, and it was determined to be necessary to close down the least active of the courses. This happened to the advanced chef program taught by the Respondent. Another factor which Respondent contends impacts on the need to close down the program is that the Board agreed to the opening of a MacDonald's restaurant in the PTEC, St. Petersburg facility where the culinary arts curriculum was carried out. According to Respondent, this resulted in a decline in the number of students interested in taking advanced chef courses. Dr. Laux admits that when the decision was made to terminate the Respondent's employment, he was not offered any retraining so that he could remain in a teaching position within the County. Respondent is assumed qualified to teach all of the three culinary arts courses, but Dr. Laux does not know whether the other two instructors are qualified to teach the advanced chef course. In any event, the advanced chef program is to be closed for lack of interest. The desired student/teacher ratio of 15 - 1 discussed previously is not a hard and fast rule. As of the last week in May, 1995, several other areas at PTEC, St. Petersburg fell below the desired rate. For example, the air conditioning and refrigeration course is at a ratio of 8.9 students to 1 teacher. The auto body repair program is at 14 - 1; auto mechanical repair, 10.2 - 1; auto painting, 11.8 - 1; precision machinery, 7.6 - 1; printing, 11.6 - 1; and optical technician, 14.6 - 1. As of the same period, the ratio in the culinary arts program, including part-time students, was 11.7 - 1. Before making the decision to close down the advanced chef program because of a lack of interest, Board officials had to take a look at the need for the program in the community. This is done in the case of every potential closure. The State of Florida requires a 70 percent placement rate for graduates of the vocational/technical schools in each program. Officials also look at the production rate of each program, and culinary arts was below the state standard in that area. A further area for consideration is the completion rate, and, again, 29 graduates out of an enrollment of over 200 students in the culinary arts program is not an acceptable record. The Board has closed other programs in the past because of low enrollment. Included in these are fashion design, hotel/motel management, drapery and interior design, and in several cases, the incumbent instructor was placed in another job within the school system. In many cases, however, the displaced instructor was not given alternate placement and, quite often, retired. The Board admits it could continue to run the program at a loss with three teachers, including the Respondent. However, after a three year analysis, the Board has determined to reduce this program. Various programs have varying funding criteria. Some are high value programs, such as the air conditioning and carpentry programs, and these get a higher funding to make up for lower enrollment. The lack of interest in culinary arts, in a time of limited program funding, requires a serious and critical appraisal of the need for the program. Here, the Board determined that the advanced chef portion of the culinary arts program could and should be curtailed because of a lack of enrollment. This decision was not taken lightly. On February 22, 1995, Dr. Ross, the Board's Assistant Superintendent for Career, Technical and Adult Education, advised Dr. Graeff, the Board's Director of Instructional Personnel, that there was a need to reduce the culinary arts program at PTEC, St. Petersburg by one teacher due to low enrollment. When he received this information, Dr. Graeff first checked those who were in the program and looked at the seniority and certification information. He then looked to see if there was any one in the culinary arts program, county-wide, under an annual contract and there were none. Therefore, since the Respondent was the teacher with the least seniority at PTEC, St. Petersburg, he was identified as the one whose contract was to be terminated. Admittedly, there were more junior teachers at other schools under Professional Services Contracts, but it is the Board's unwritten policy not to allow bumping of more junior personnel at other schools, except for teachers holding annual contracts. This policy was implemented to stop the chain effect of bumping. It also, in effect, emasculates the seniority system. The contract between the Board and the Union requires the Union be advised of any situation requiring a reduction in force. In this case, the Board claims it first contacted the union and advised of the situation by telephone and later on engaged in a face to face meeting with Union representatives at which potential placements for the Respondent were discussed. In that regard, it appears that at that time, there were no annual contract teachers who could be bumped, and there were no other teaching positions in the county for which Respondent was qualified. The parties also discussed possible support service jobs for Respondent, and the Board representative suggested that the union representative contact the pertinent School Board official to inquire as to what jobs were available. The Respondent's teaching certificate is based on his experience, not his education. The rules of the State Board of Education require that a teacher in vocational/technical courses have at least 6 years experience to be certified. Though certified in the field of culinary arts, the Respondent does not have the requisite work or educational background in another field to support certification in another field. To be sure, Respondent could go back to school and get his degree, and be certified that way, and the Board has, in the past, granted instructors in a position similar to that of the Respondent, up to 2 years paid sabbatical to go back to school. However, the issue here is not qualification or certification, but a lack of enrollment. The Respondent is qualified for his job. The required students are not there, however. Respondent claims he has in excess of 135 credit hours in undergraduate courses and approximately 45 hours in graduate work credit. Notwithstanding this, the Respondent has neither a Bachelor's degree nor a Master's degree. An evaluation of his academic credentials, conducted by Dr. Graeff, indicated that though Respondent has an Associate degree, many of the courses which went toward the granting of that degree would not apply to a Bachelor's degree in education. As Dr. Graeff saw it, 4 courses which Respondent took would be acceptable and 8 others might be acceptable, but the remaining courses probably would not be acceptable toward a Bachelor's degree. Those courses in food service would not go toward a teaching degree. On the other hand, those in English, literature and music would. Those in math and accounting, as well as other business subjects, might. In substance Dr. Graeff feels that Respondent would have no more than 30 acceptable credits toward a 120 credit requirement for a Bachelor's degree in an educational field. Many other courses, however, might be creditable toward a degree in another field. In that regard, a graduate holding a degree in a non-educational field, may nonetheless teach in the area of specialty, but would have to take the educational courses required for a degree in education within two years of being hired. Respondent had been employed by the Pinellas County School Board for 13 years, all in the culinary arts field. He has taught all the courses offered on one occasion or another. During his 13 years, however, only he taught the advanced chef segment. After Respondent looked into the possibility of teaching at the prison as an alternative to his current position, and declined to accept that offer, he was called to a meeting with Dr. Laux at which he got the impression that the Board officials were very disappointed he would not take that position. Nonetheless, he was not threatened, and though he received sympathy from Board officials, he has been offered no comparable position. Any position he might have been offered, such as working in a school cafeteria, would be compensated with less pay and with less prestige. In the 21 year recollection of Mr. Moore, the Union Executive Director, only two cases come to mind where certified teachers were laid off, not for cause. This took place in the 1980's. One of those individuals taught welding and the other taught air conditioning repair. Both were at the lowest seniority level. In 1990, because of a potential budget deficit, there was some consideration of a lay off again, but as a result of the joint efforts of the Board and the Union, this was avoided. In the past, according to Mr. Moore, teachers identified for layoff have been retrained to allow them to continue employment. Some were given summer work to help pay for their certification courses. In one case, a vocational teacher was allowed to go to school for two years under a paid sabbatical program so that he could be retrained into a field useful in the K - 12 environment. As was noted by Dr. Graeff, the union contract calls for the Board to consult with the Union to see how a teacher identified for reduction in force can be utilized within the system as an alternative. Notwithstanding that representative's contention that this was done, according to Mr. Moore, it was not done. In light of all the evidence, it is found that a conference was held at which Respondent's case, among other matters, was discussed. The Board official's suggestion that the union representative seek out other jobs for the Respondent is indication of the lack of cooperative or sympathetic attitude by Board personnel, however, and is not acceptable. Consistent with the issue of additional education, a teacher can be allowed to teach outside his or her field of certification under a professional services contract, provided that the teacher takes 6 hours per year of course work leading toward certification in the field in which the teacher is teaching. The Respondent could do this, but this option was not offered to him. In that regard, Mr. Moore admits he does not know in what area the Respondent could teach under this type of program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frederick Usher's employment with the Pinellas County Schools, not be terminated due to low enrollment, and that if reduction in force is necessary, alternative approaches be genuinely considered, such as the use of seniority, retraining, or placement out of field. RECOMMENDED this 24th day of July, 1995, 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 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 14. Accepted and incorporated herein. & 16. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a Conclusion of Law. Irrelevant to any issue of fact or law. FOR THE RESPONDENT: 1. - 5. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated herein. 13. - 16. Accepted and incorporated herein. 17. & 18. Accepted. 19. - 21. Accepted. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County Schools 301 Fourth Street, S.W. P.O. Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A. 1718 E. 7th Avenue, Suite 301 P.O. Box 75638 Tampa, Florida 33675-0638 Dr. J. Howard Hinesley Superintendent Pinellas county Schools 301 E. Fourth Street, S.W. P.O. Box 2942 Largo, Florida 35649-2942
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner was employed as a line cook with Smitty's Restaurant of Sanibel from January 20, 1988 until approximately August 4, 1988. On or about August 1, 1988, Petitioner and the kitchen manager at the restaurant became embroiled in a verbal confrontation with regard to the time off Petitioner had recently taken. Petitioner had had a doctor's note to take two days off for rest in connection with treatment the Petitioner was receiving for back pain (the specific nature of Petitioner's malady was not disclosed at hearing nor made a part of this record). Apparently, the kitchen manager had had to cover Petitioner's work shift in his absence. In any event, Petitioner and the kitchen manager had unpleasant words and the Petitioner believed he had been fired. Consequently, he left the premises and did not return to work. Contrary to Petitioner's belief, and supported by the record in this cause, the kitchen manager did not have the authority to terminate the Petitioner's employment. When Petitioner chose to leave the premises on August 1, 1988, he did so contrary to the direct verbal instruction of the restaurant manager, Martin Howard, and the company policy regarding terminations. On at least two prior occasions, Respondent had allowed Petitioner to take time off for personal or medical reasons. Petitioner presented no evidence that the Respondent discriminated against him because of a handicap.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission of Human Relations enter a final determination of no cause in connection with Petitioner's discrimination claim. DONE AND ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990. APPENDIX CASE NO. 90-3806 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 14 are accepted. COPIES FURNISHED: Stephen J. Iwaniszek 922 Countington Lane, Apt. J Fort Myers, Florida 33919 Douglas L. Waldorf, Jr. SMOOT ADAMS JOHNSON & GREEN, P.A. P.O. Box 06259 Fort Myers, Florida 33906-6259 Acting Executive Director Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Margaret Jones, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925
The Issue Whether the Respondent committed the following acts on Ellenton Shoney's construction project: Aiding and abetting a person engaged in the unregistered and uncertified practice of contracting. Obtaining a permit for construction in which he took no part. Using his license to illegally associate with an unlicensed contractor.
Findings Of Fact At all times material to these proceedings, Respondent, Samuel E. Whitener, was licensed as a certified general contractor in Florida, and held license number CG C024909. His qualifying status is that of an individual, and the business address is 13502 Greenleaf Drive, Tampa, Florida 33612. On December 9, 1987, the Respondent contracted with Restaurant Management Services, Inc., a Georgia corporation, to manage a construction project known as Shoney's in Ellenton, Florida. Respondent was awarded the contract once it was determined that he had submitted the lowest bid for the job. This contract was the written restatement of an oral agreement entered into by the parties on December 4, 1987. Pursuant to the contract terms, Respondent was to substantially complete the partially completed project within four weeks from the restart of the job. His management fee of $4,000.00 was to be paid upon completion of his contract. The reason the job had to be restarted was that Stop Work Order number 1055 had been issued by the Manatee County Building Official on December 3, 1987 because a properly qualified Florida licensed contractor was not on the permit documents previously submitted to the county. At the time the stop work order was issued, the project was seventy- five percent complete. All of the subcontractors were in place, and the project manager retained by the owner was still with the project. The Shoney's restaurant being built at this location was based upon a design and plans created by the architect Steven Cooper. This was a "cookie cutter" project in that the project manager and a majority of the subcontractors had built Shoney's restaurants from the same plans at various locations throughout Florida and the Southeast. The project manager and the subcontractors went from location to location, and built the restaurants wherever the owner, Restaurant Management Services, Inc., scheduled such construction. In keeping with the corporate plan to locate these restaurants in certain locales by certain target dates, the subcontractors and the project manager were paid by the corporation instead of the contractor. When Respondent entered into the contract with Restaurant Management Services, Inc., he was aware that the funds for supplies and services on the project were to be managed by the owner. Respondent likened the contract to those traditionally made with school boards and hospitals. In Florida, these particular entities hire a contractor, but they like to maintain control of the funds themselves. However, as part of the cost management of the project, the contract specifically required that Respondent, Samuel E. Whitener, approve all related costs prior to payment by the owner. He also had authority to determine the value of the subcontractor's work on the site. It was agreed that Respondent would visit the jobsite twice weekly, and he would be on call during normal working hours. He would meet with building officials when needed. Values of work or code interpretation would be his sole responsibility, and the job superintendent had to be qualified and approved by Respondent Whitener. If he were unable to work with the job superintendent provided, a replacement would be made by Respondent. During the time period between December 4, 1987 and the completion of the project, the Respondent took responsibility for the work performed at the site and fulfilled his obligations of contract. As agreed, he was paid upon completion of the job. The Respondent was not paid $4,000 by Fred Pringle to obtain the permit. He was paid $4,000 to manage the remaining twenty-five percent of the project, which he did. After his personal interview of the project manager, and upon review of his work during the project, the Respondent decided to allow the same project manager to continue with his work on this project. No conflicts occurred on the job involving Respondent's authority or the quality of construction undertaken by the subcontractors or the project manager. Testimony from one subcontractor at hearing revealed that Respondent exercised his authority as the general contractor to reject some clay materials brought to the site that he determined were unacceptable for its intended use.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent be found not guilty of having violated Sections 489.129(1)(e), (f) and (m), as alleged in Counts I, II and II of the Amended Administrative Complaint filed August 14, 1990, and modified without objection on December 14, 1990. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-5657 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. Accepted. See HO number 4. Reject the first sentence. Contrary to fact. See HO number 2. Accept the rest of the paragraph. Reject the first sentence. Contrary to fact. See HO number 3, number 11 and number 12. Accept second sentence. See HO number 8. Reject the rest. Contrary to fact. See HO number 5 - number 15. Accept the first sentence. Reject the second sentence. Contrary to fact. See HO number 10, number 11, number 13 - number 15. Reject the third sentence. Contrary to fact. See HO number 7. Reject the fourth sentence. Contrary to fact. See HO number 10. Accept the last sentence. Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. See HO number 2, number 5, number 8, number 9, number 10. Accepted. See HO number 11 - number 15. Rejected. Irrelevant. Accepted. See HO number 11 and number 12. Accepted. Accept that Respondent was unaware of an entity known as Quality Construction. See HO number 8. The rest of the paragraph is rejected as irrelevant. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Brian A. Burden, Esquire Post Office Box 2893 Tampa, Florida 33601 Daniel O'Brien, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Jack McCray, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Did the Department of Children and Family Services (Department) properly terminate Home-Delivered Meals to Petitioner under the Community Care for Disabled Adults Program?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of administering the Community Care for Disabled Adults Act (CCDA). See Sections 410.601- 410.606, Florida Statutes. In accordance with Section 410.604(1), Florida Statutes, the Department contracted with Gulf Coast Jewish Family Services, Inc. d/b/a Gulf Coast Community Care (Gulf Coast Community Care) to administer the CCDA in the following Florida Counties: Pasco, Pinellas, and Hillsborough. The services to be administered under the contract with Gulf Coast Community Care are Case Management, Personal Care, Homemaker, Emergency Alert Response, and Home-Delivered Meals. In December 1998, the Department determined that Petitioner met the eligibility requirements for services under the CCDA Program as set out in Sections 410.603(2) and 410.604(2), Florida Statutes, and Chapter 2, Client Eligibility, HRS Manual 140-8, Aging and Adult Services, Community Care For Disabled Adults. At this time, Petitioner was eligible to receive Case Management and Homemaker services. In September 1999, Petitioner became eligible for Home- Delivered Meals, which consisted of three frozen meals being delivered to Petitioner's home once a week. On November 19, 2001, Petitioner's Caseworker, Odette Powell, visited Petitioner's home for the purpose of completing a Homemaker Service Plan (Plan). The Plan listed the different Homemaker services which Petitioner was to receive. Meal Planning/Preparation/Food Storage was not included in the services listed in the Plan because Petitioner advised her caseworker that she did not need that service. On November 19, 2001, the Homemaker was spending two hours per week at Petitioner's home helping with the different Homemaker Services. Petitioner's neighbor helps Petitioner prepare meals on Tuesdays and Thursdays. Additionally, Petitioner's children, a son and a daughter, come approximately twice a month to assist Petitioner with whatever needs to be done. Petitioner also obtains food through charities and buys food with her social security income and the social security income of a second daughter who lives with Petitioner. On May 20, 2002, the caseworker completed another Plan which added the services of meal planning/preparation/food storage as needed and another hour of homemaker services, which totaled three hours per week of Homemaker services for Petitioner. Petitioner is capable of preparing her own food. Particularly with the help of her neighbor, relatives, and Homemaker services. Petitioner has sufficient income with which she could purchase Home-Delivered Meals if she so desired. Therefore, Petitioner is no longer in need of the Home-Delivered Meal service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order terminating Home-Delivered Meals to Petitioner under the CCDA Program. DONE AND ENTERED this 12th day of July, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 12th day of July, 2002. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Children and Family Services 9393 North Florida Avenue, Room 902 Tampa, Florida 33612 Delores Morris Post Office Box 2373 Dade City, Florida 33525 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
