The Issue The issue in this case is whether Petitioner was retaliated against in violation of the Florida Civil Rights Act of 1992 (FCRA), chapter 760, Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the District by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). On July 1, 2016, the District began operating the educational programs at FCTC, due to the dire financial situation which had developed at the college. In taking over the programs at FCTC, the District immediately recognized that the administrative staff at FCTC was bloated and needed to be streamlined. Further, because FCTC would now be operated by the District, the District endeavored to evaluate FCTC’s structure to determine how it could operate more like a District school, including with respect to personnel structure. The District set out to reorganize and restructure FCTC to align it with the District and address administrative redundancy and financial issues. To facilitate this transition and evaluation, the District placed all administrative employees at FCTC on temporary contracts, effective July 1, 2016. This decision was made sometime in June 2016. On the morning of July 1, 2016, all employees of FCTC were called to a meeting held by Dr. Joseph Joyner, the District Superintendent. At that meeting, Dr. Joyner introduced Cathy Mittelstadt as the interim principal. At the conclusion of the meeting, all administrative personnel, including Petitioner, were offered temporary employment contracts, for a term of approximately six months. The contracts could be terminated by either party with two weeks’ notice. No administrative employee was placed on a longer temporary contract. The temporary employment contracts, including Petitioner’s, began on July 1, 2016, and terminated on December 21, 2016. Petitioner’s temporary employment contract expressly incorporates District Board Rule 6.10(3). Board Rule 6.10(3) concerns temporary employment with the District, and provides that temporary employees work for a limited amount of time. The rule does not state that temporary employees enjoy an expectation of employment beyond the contract term. As the interim principal, Ms. Middelstadt was tasked by the District with evaluating the structure of FCTC to determine how it could be streamlined to address budget and financial issues and also bring it in line with how other District schools operated. The elimination of positions at FCTC was contemplated as part of this evaluation. Every administrative position at FCTC was evaluated for potential elimination. Ultimately, Ms. Mittelstadt was responsible for recommending to the District’s Executive Cabinet (Executive Cabinet) how FCTC should be restructured. As part of this process, Ms. Mittelstadt was also responsible for recommending to the Executive Cabinet those positions that would be eliminated as part of the restructuring process. The Executive Cabinet did not reject any of Ms. Mittelstadt’s recommendations, but rather, accepted them without change. The Executive Cabinet would not have taken any action with respect to any employee working at FCTC without a recommendation from Ms. Mittelstadt. Ms. Weber had limited involvement in the restructuring process. She provided ministerial assistance to Ms. Mittelstadt during this process, but she was not responsible for, or involved in, the decision as to how the school would be restructured, or for any recommendations regarding the same. FCTC employees were kept informed as to the status of restructuring during the process. Ms. Mittelstadt and Ms. Weber did not tell any administrative employee at FCTC, including Petitioner, that they could expect their contract would be renewed or that they would retain their positions past the term of their temporary employment contract. Petitioner understood that he was being appointed to a temporary employment contract not to extend past December 21, 2016. Ms. Mittelstadt made the determination as part of the restructuring process that Petitioner’s position should be eliminated, and that his temporary employment contract would be allowed to expire pursuant to its terms. Ms. Mittelstadt recommended this course of action to the Executive Cabinet, which approved it. Through Ms. Mittelstadt’s evaluation and assessment of the needs of FCTC, she determined that a full-time grant writer was not necessary for FCTC. Certain tasks related to grants obtained by the School District, including accounting related tasks, are handled in the District’s main office, and the remaining tasks related to grants are handled at particular schools by a different position, career specialists. Indeed, no other District school employs a full-time grant writer. In furtherance of the District’s decision to streamline administration at FCTC and realign it with how other District schools operated, Ms. Mittelstadt determined that the grant writer position occupied by Petitioner, as well as another type of position at FCTC, the program manager position, should be eliminated, and the duties performed within those positions subsumed within the career specialist position, as in other District schools. The District distributed a vacancy announcement for the Career Specialist position to all FCTC employees, including Petitioner. The announcement included a job description for the position. The job description and vacancy announcement were used to fill the position. The job description provides that grant writing and management, encompassing Petitioner’s duties as a grant writer, are part of the duties, among others, of a career specialist. Petitioner did not apply for this position. Petitioner was informed at a meeting on November 18, 2016, that his contract would be allowed to expire effective December 21, 2016, and not renewed. Present at this meeting, in addition to Petitioner, were Ms. Mittelstadt, Ms. Weber, and Brennan Asplen, the District’s Deputy Superintendent for Academic & Student Services. At the meeting, Petitioner was provided a notice indicating that his temporary employment contract was expiring pursuant to its terms. Petitioner was permitted to work through the remainder of his contract term with no diminution in benefits or pay. Petitioner requested to be placed in another position at FCTC at this time, but was informed there were no vacancies posted for him to be moved to, that the District was not placing non-renewed employees into positions, and that he could apply to any position he liked when it was posted. One position, a Case Manager in the Career Pathways program, was funded from a grant, and that position was technically vacant under the grant. However, FCTC was in a hiring freeze at the time, as Ms. Mittelstadt made the decision to not fill the Case Manager position given, and during, the extensive realignment and assessment of FCTC whose budget was being scrutinized at a deep level. The District did not place any other non-renewed employees into positions. The Case Manager position was eventually advertised in April 2017. Petitioner did not apply for the position despite being informed of it and having nothing restricting him from doing so. Petitioner’s work performance played no role in the decision to eliminate his position. Ms. Mittelstadt and Ms. Weber both indicated that they did not retaliate against Petitioner for any reason. In fact, Petitioner was not the only person whose position was eliminated. Ms. Mittelstadt also recommended that six or seven other positions also be eliminated. Furthermore, approximately 12 to 15 FCTC employees resigned, and their positions were eliminated. Had those employees not resigned, their positions still would have been eliminated and those employees’ contracts would have been allowed to expire. Petitioner filed the complaint or charge, at issue in this proceeding, with the FCHR on December 22, 2016 (December 22nd Complaint). In it, Petitioner alleges that he was retaliated against in violation of the FCRA. While Petitioner was not represented by counsel at the time that he filed the December 22nd Complaint, he obtained representation from a lawyer thereafter, and during the FCHR’s investigation of this complaint. This was not Petitioner’s first complaint filed with FCHR concerning his work at FCTC. Just before the District began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed a complaint (June 27th Complaint) with the FCHR also alleging retaliation. The June 27th Complaint was received by the FCHR on June 28, 2016. Petitioner introduced no evidence showing that at the time the decision was made to place individuals on temporary employment contracts, that the District was aware of his June 27th Complaint. Petitioner alleges in the December 22nd Complaint that the District terminated his employment because he engaged in protected activity under the FCRA. Petitioner does not allege in the complaint that he was subjected to a hostile work environment or harassment due to any retaliatory animus on the part of the District. Rather, Petitioner only alleges that he believes he frustrated his supervisor at various times, not that he was subjected to a hostile work environment. On August 17, 2017, the FCHR issued a no-cause determination. On September 20, 2017, Petitioner filed a Petition for Relief from Unlawful Employment Practice, initiating the instant proceeding. In the Petition, Petitioner largely alleges that he believes the District submitted false information to the FCHR and that the District was guilty of various acts of fraud and abuses. Specifically, Petitioner alleged: Not only did the SJCSD lie about its relationship with FCTC, the SJCSD deliberately lied about my position working collaboratively with other SJCSD personnel assigned to grants administration and my unique ability to assist the SJCSD in avoiding mistakes that they were driven to make, mistakes that rose to the point that they became criminal. The SJCSD committed to a path of making such criminal errors with federal funds and falsifying their account of why they fired me. I have assembled sufficient evidence to show that the SJCSD is guilty of violating the Racketeer Influenced and Corrupt Organizations Act and that they fired me as a whistle blower having abundant evidence of their crimes committed against the public interest for the personal benefit of key administrators. In his Petition, Petitioner did not identify reasons why he believes the FCHR’s “No Reasonable Cause” finding was without merit. And other than his alleged retaliatory firing, Petitioner does not identify any other adverse effects that he suffered as a result of the SJCSD “criminal” activities, or allege that he was subjected to a hostile work environment. Petitioner alleged for the first time at hearing that the District subjected him to a hostile work environment in retaliation for engaging in protected activity. He alleged this hostile work environment centered on three actions. First, that the District did not provide him a copy of a harassment complaint filed by another employee concerning him in a timely manner, and did not set up the meetings he requested to address that complaint the way he wished. Second, that District personnel did not provide him access to “SunGard” software. And, third, that District officials asked him to sign a form related to grants that he did not wish to sign. Regarding the first allegation, sometime prior to July 1, 2016, Renee Staufaccher filed a complaint with Stephanie Thomas regarding Petitioner’s conduct. This complaint was lodged while the District was not operating the programs at FCTC. District officials told Petitioner that complaints lodged during this time period should be referred to FCTI. Once the District began operating the programs at FCTC, Petitioner reached out to Ms. Weber for a copy of Ms. Staufaccher’s complaint. Ms. Weber took steps to obtain that complaint, and it was provided to Petitioner within roughly two weeks of his request, despite Ms. Weber being out of the office one of those weeks. Petitioner requested to meet with Ms. Staufaccher and Ms. Thomas regarding the nature of the complaint and his concerns about whether the complaint was authentic. Ms. Staufaccher was no longer employed at FCTC within a matter of days of this request. Petitioner also requested to meet with Ms. Thomas only a matter of days before she ceased working at FCTC. Petitioner was not afforded the meeting or other items requested because the matter concerned old, not ongoing events occurring prior to the time the District began operating FCTC. Petitioner did not interact with, or report to, Ms. Staufaccher or Ms. Thomas during this time, and neither supervised him. Petitioner never disclosed to the District that he was suffering continued harassment at the hands of Ms. Staufaccher or Ms. Thomas subsequent to July 1, 2016. Petitioner offered no evidence that his request was handled differently from any other District employee, and Ms. Weber credibly testified he was treated the same as any other District employee in this regard. Regarding the second allegation, Petitioner alleged at the hearing that the District did not provide him access to SunGard, a computer program that had some relation to the performance of his job duties. At hearing, Petitioner represented that he was never provided access to this program. However, he later conceded that he did have access to this program during his employment. Specifically, prior to being given direct access to this program, Petitioner was provided access to the information in the program through the assistance of another District employee. This provided Petitioner with access to the information he needed to perform his job, including generating reports. Accordingly, it was not necessary for Petitioner to have direct access to SunGard to perform his job duties. The District was not authorizing extensive access to SunGard during this time because it was in the process of creating new systems and processes to bring FCTC in line with the District’s standards. In short, Petitioner was still able to perform his job, despite his complaint that he was not given direct access to SunGard. As to Petitioner’s third complaint, on or about October 2016, Jena Young, formerly employed in the District’s accounting office, asked Petitioner to sign a form related to grant accounting. Ms. Young was not Petitioner’s supervisor. Petitioner stated that he did not want to sign the form because he believed there was incorrect information on the form. Petitioner was not forced to sign the form, and was not told he must sign the form or face adverse consequences. Ultimately, he did not sign the form. The District maintains a rule governing harassment in the workplace. The rule provides a complaint procedure for employees to complain of harassment. The rule provides multiple avenues for employees to report harassment, and provides that complaints will be investigated and discipline meted out for employees impermissibly harassing others in violation of the rule. The rule prohibits retaliation against an employee who files a complaint. Notably, Petitioner never filed a harassment complaint about conduct occurring subsequent to July 1, 2016, despite his being aware of the rule. Petitioner’s protected activity at issue in this case concerns his June 27th Complaint and varied grievances that he filed while he was an employee at FCTC prior to July 1, 2016. Petitioner only offered three grievances into evidence--his first grievance, his ninth grievance and his tenth grievance-- all lodged prior to July 1, 2016, and all concerning the conduct of administrators at FCTC while it was still operated by FCTI and not the District. Petitioner’s first grievance was filed on May 21, 2015, alleging that FCTC’s then-president, Sandra Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and in e-mails. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner’s ninth and tenth grievances, both filed on June 13, 2016, allege that Ms. Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s Human Resources Director, and Ms. Stauffacher, were complicit in that nepotism. Indeed, Petitioner testified that the thrust of these grievances was that members of potential protected classes did not get to interview for jobs at FCTC, not because of those protected classes, but because they were not Ms. Fortner’s friends or family. Ms. Mittelstadt had not seen the grievances that Petitioner filed, and had no knowledge of the June 27th Complaint when she determined that his contract be allowed to expire pursuant to its terms and his position eliminated. Petitioner introduced no evidence that Ms. Mittelstadt ever saw any of his grievances or the June 27th Complaint at the time she made the decision to eliminate his position. Ms. Mittelstadt credibly testified that none of Petitioner’s grievances, requests for grievances, e-mails related to grievances, or his June 27th Complaint played any role in her recommendation that his position be eliminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 28th day of June, 2019, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 28th day of June, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Gregory Ryan Lulkoski 212 River Island Circle St. Augustine, Florida 32095 (eServed) Michael P. Spellman, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Jeffrey Douglas Slanker, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Robert J. Sniffen, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue in this case is whether the Respondent committed an unlawful employment practice against the Petitioner.
Findings Of Fact At some time prior to August of 2013, the Petitioner and Respondent discussed the Petitioner’s potential employment as a “Pharmacy Sales Representative” for the Respondent. The Respondent eventually offered such employment to the Petitioner, the terms of which were set forth in a letter (hereinafter “agreement”) from the Respondent (identified therein as “SCP, LLC” or “company”) to the Petitioner. The agreement stated as follows: Your job title will be Pharmacy Sales Representative and your duties include all aspects of sales and marketing to physicians and patients SCP, LLC can provide for. You will be responsible for producing leads and establishing new pharmacy sales as well as maintaining all existing accounts. You will report to members of SCP, LLC. You may be assigned other duties as needed and your duties may also change on reasonable notice, based on the needs of the company and your skills, as determined by the company. The agreement provided that the Petitioner would be paid an annual base salary of $45,000, and a commission “based on the total sales of compounded products sold to all accounts you are managing.” The salary was to be paid bi-weekly. The commission was to be paid quarterly. The agreement stated that the Petitioner would receive an additional $250 per month for the purposes of obtaining private health insurance, and that the additional payment would cease if a company health insurance plan became available to employees. The agreement stated that the Petitioner would also have access to an expense account, including a company credit card, and receive either a car or a paid car allowance from the Respondent. The agreement specifically provided as follows: YOUR EMPLOYMENT WITH THE COMPANY IS AT-WILL. IN OTHER WORDS, EITHER YOU OR THE COMPANY CAN TERMINATE YOUR EMPLOYMENT AT ANY TIME FOR ANY REASON, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE. According to the agreement, the Petitioner’s employment was to commence on September 3, 2013. Although the Petitioner was dissatisfied with the salary structure offered by the Respondent and believed that the offer was below her market value, the Petitioner signed the agreement on August 1, 2013, and accepted the employment terms set forth therein. The Petitioner’s dissatisfaction with her income was a continuing issue during her employment. The Petitioner repeatedly requested that her base salary be increased, but the Respondent was unprofitable and was unwilling to agree to the Petitioner’s request. Although the Petitioner initially developed some marketing materials for the Respondent, the Respondent was not satisfied with the Petitioner’s overall job performance. Additionally, there appears to have been disagreement between the Petitioner and the Respondent as to the responsibilities of her employment, including continuing friction between the Petitioner and her supervisor. On several occasions, the supervisor requested that the Petitioner come into the office during working hours to meet with him. The Petitioner apparently believed that her time was better utilized meeting with prospective clients; however, some of the prospective clients sought products that, for a variety of reasons, the Respondent could not supply. In any event, rather than come into the office as requested by her supervisor, the Petitioner chose to communicate with him by “after hours” email or by telephone. The supervisor was dissatisfied by the Petitioner’s failure to comply with his request. At some point in December of 2013, the Respondent determined that the Petitioner’s performance was not satisfactory and that a change needed to occur. The Petitioner was advised of the Respondent’s dissatisfaction in a meeting on December 5, 2013, between the Petitioner and a representative of the Respondent. After being advised that some type of change was going to occur, the Petitioner raised a number of complaints about her supervisor. The Petitioner complained that the supervisor used profanity, that he had hung up on her during a telephone call, and that, on one occasion, he had patted her on the head in an apparently demeaning manner. The Respondent had a written “zero tolerance” policy prohibiting all forms of harassment, including sexual harassment. The policy prohibited any form of retaliation against an employee who complained that he or she was a target of harassment. The Respondent also had a written “open door” policy that provided a specific procedure for resolving employment-related disputes. The Petitioner was specifically advised of such policies during an orientation process that occurred at the commencement of her employment with the Respondent. Additionally, the Petitioner received written copies of all relevant policies from the Respondent’s human resource director. There is no evidence that, prior to learning on December 5, 2013, that her employment was in jeopardy, the Petitioner advised any representative or employee of the Respondent that she objected to the supervisor’s alleged behavior. After the meeting on December 5, the Petitioner wrote an email to company officials dated December 17, 2013, wherein she asserted that she had “closed” a number of accounts on behalf of the Respondent, and suggested that her contribution to the company was being undervalued. She also requested reevaluation of her compensation because she believed the commission structure was inadequate. The Respondent apparently disagreed with the Petitioner because few actual sales resulted from the Petitioner’s “closed” accounts. Accordingly, during a meeting with Respondent’s representatives on December 20, 2013, the Petitioner was advised that her employment was officially being terminated. Central to the Respondent’s decision was the lack of revenue generated by the Petitioner’s sales and the unprofitability of the company. The Petitioner’s failure to comply with the requests of her supervisor also provided a basis for her termination from employment. During the meeting on December 20, the Petitioner restated the complaints she had first addressed during the meeting on December 5, and raised a number of additional complaints, including allegations of harassment or sexual harassment by her supervisor or another employee. There is no evidence that, prior to learning on December 20, 2013, that her employment was being terminated, the Petitioner had advised any representative or employee of the Respondent that she had been harassed in any manner by her supervisor or by any other employee of the Respondent. The alleged perpetrators of the harassment dispute the Petitioner’s assertions. The evidence fails to establish that any of the alleged acts of harassment or sexual harassment actually occurred. In a memorandum to the Petitioner dated December 20, 2013, the Respondent advised the Petitioner that her termination package would include salary payments for three weeks (one week of “final” pay and two weeks of severance pay), additional payment for 27 hours of accrued paid time off and unused comp time, and a total commission payment of $31.97. By letter to the Respondent dated December 27, 2013, the Petitioner restated the alleged harassment referenced herein and requested that she receive an additional two weeks of severance pay. The Respondent ultimately paid the Petitioner a total of four weeks of severance pay. The evidence fails to establish that the termination of the Petitioner’s employment by the Respondent was related to any complaint of harassment or sexual harassment, or was retaliatory in any manner.
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 the Petitioner's complaint against the Respondent. DONE AND ENTERED this 5th day of January, 2015, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2015. COPIES FURNISHED: Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Christina Harris Schwinn, Esquire Pavese Law Firm 1833 Hendry Street Post Office Drawer 1507 Fort Myers, Florida 33901 (eServed) Antonios Poulos, Esquire Poulos Law Firm 1502 West Busch Boulevard Tampa, Florida 33612 (eServed)
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was subjected to sexual harassment in the form of a sexually hostile work environment and was retaliated against for complaining about the alleged harassment in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, James E. Gonzales, is a male person who was hired by the Respondent, Pepsi Bottling Group, on March 13, 1995. He was hired as a route sales trainee in the Central Florida marketing unit of that employer. The Pepsi Bottling Group (Pepsi) is responsible for the manufacture sale and delivery of Pepsi products to its vendors. Over the last three years the Central Florida unit has been the foremost marketing unit in the United States. The management of the Central Florida Marketing Unit has been rated by its employees as being the top management team in the country for Pepsi. The Petitioner applied for a Pre-sale Customer Representative (CR) position on March 27, 2003. On April 21, 2003, the Petitioner was assigned to a Pre-Sell (CR) position. As a Pre-Sell CR, the Petitioner was responsible for serving his own accounts; creating and maintaining good will with all customers; ordering customer's products in advance; and developing all assigned accounts relative to sales volume, market share, product distribution, space allocation and customer service. He was responsible for solicitation of new business; selling and executing promotions; soliciting placement of equipment; selling sufficient inventory; and utilizing point of purchase materials to stimulate sales. He was also charged with maintaining "shelf facings" cleaning and shelving and rotating product and merchandising product sections and building displays to stimulate sales. Additionally, he was required to complete and submit all related paperwork regarding sales and promotional operations in an accurate and timely manner. The Petitioner's direct supervisor initially was David Lopez. He was replaced by Wanzell Underwood in approximately August 2003. On December 5, 2002, the Petitioner received the Respondent's employee handbook. The handbook contains the Respondent's Equal Employment Opportunity Policy and Sexual Harassment Policy. The Equal Employment Opportunity Policy prohibits discrimination on the basis of race, color, religion, gender, age, disability, etc. including sexual orientation. It encourages employees to immediately report any complaint, without fear of retaliation, to the Human Resources Manager or Human Resources Director. The Respondent's policy has a zero tolerance for retaliation and forbids any retaliatory action to be taken against an individual who in good faith reports a perceived violation of that policy. Employees who feel they have been retaliated against are required to report such retaliation to the Human Resources Manager or Director. The sexual harassment policy of the Respondent prohibits all forms of harassment and clearly sets out complaint procedures for employees to follow in the event they have experienced harassment. They are directed to report any complaint immediately to the Human Resources Manager or Director. Throughout his employment the Respondent received numerous customer complaints regarding the Petitioner's poor performance. The Petitioner received five disciplinary actions against him from the period 2003 through 2005. These "write- ups" were for failing to service customers according to the Respondent's standards and were dated August 2003, April 2004, September 2004, October 2004, and May 2005. On August 1, 2003, the Petitioner received a documented verbal warning after the Respondent received a complaint from a customer regarding the amount of out-of-date product in his store and the poor level of service he was receiving from the Petitioner. On April 9, 2004, the Petitioner received a documented verbal warning for his failure to prepare his three Circle K stores for a "customer tour," although he had assured his direct supervisor, Mr. Underwood, and the Key Account Manager, Eric Matson, that the store would be ready. The Petitioner's failure to prepare his Circle K stores for the customer's tour embarrassed both his supervisor and the Key Account Manager. On June 23, 2004, the assistant manager at ABC Liquor, a store Gonzales was responsible for, sent an e-mail to Eric Matson complaining about the lack of service provided by Gonzales and requested a new CR to service his store. The customer stated that Gonzales had given nothing but "crappy" service, bad attitude, and sometimes no service. On September 21, 2004, Eric Matson received an e-mail regarding the Petitioner's failure to order product for the Mt. Dora Sunoco store. The Petitioner's supervisor, Wanzell Underwood, visited the Mt. Dora Sunoco store and confirmed the manager's complaints. The Petitioner received a written warning for not properly servicing the Mt. Dora Sunoco store. In the Petitioner's contemporaneous written comments in opposition to the written warning he failed to note that the manager of the Mt. Dora Sunoco was purportedly sexually harassing him. On October 11, 2004, the Petitioner received a final written warning and one-day suspension after his direct supervisor re-visited the same Mt. Dora Sunoco store that complained previously. The Petitioner was warned that a similar problem in the future would lead to his termination. Again, in the Petitioner's written comments in opposition to his written warning, he made no mention that the manager of the Mt. Dora Sunoco store was sexually harassing him. On October 11, 2004, after the Petitioner was suspended for one day, he requested that the Human Resources Manager, Christopher Buhl, hold a meeting. During the meeting he complained for the first time to the Unit Sales Manager, Howard Corbett, the Sales Operations Manager, Tom Hopkins, and Mr. Buhl, that three years previously, in 2001, one person had told the Petitioner that everyone thought he was "gay" (meaning co-employees). One person asked him if he was gay, according to the Petitioner's story, and one person said, "We all know you're gay," before he became a Pre-Sell CR. The Petitioner, however, refused to cooperate with Mr. Buhl in obtaining information regarding his complaints. At no time during the meeting did the Petitioner complain about being sexually harassed by the manager of the Mt. Dora Sunoco store. During the October 11, 2004, meeting the Petitioner claimed his supervisor, Wanzell Underwood, threatened him. However, the Petitioner conceded during the meeting that the alleged statement made by Mr. Underwood was made to a group of Customer Representatives, to the effect that he would "kill you guys if you do not make the sales numbers." Mr. Underwood denied ever threatening to kill the Petitioner. During the meeting the Petitioner also complained that his route was too large and he requested that it be reduced. At no time during that October 11, 2004, meeting did the Petitioner complain that he was sexually harassed by Alice Marsh, the Mt. Dora Sunoco manager. His extensive notes and comments on his Disciplinary Action Reports did not document any such complaint. In November 2004, the Petitioner was asked to go to K- Mart and place an order, but the Petitioner failed to follow instructions and visit the store. Instead, the Petitioner placed the order over the phone. The manager of the store called the Respondent three times to complain about the poor service provided by Mr. Gonzales. Each year the Respondent changes its delivery routes. During the end of 2004 or the beginning of 2005, the Respondent re-routed all of its Pre-sell CR routes. The Respondent reduced the Petitioner's route as he had requested and in conformity with its route standards. Despite the Petitioner's allegation to the contrary, in fact the Petitioner's route was not reduced by as much as 50 percent. In May 2005, Key Account Manager, Mike Lewis, visited the Petitioner's K-Mart store to conduct a "Look at the Leader" audit. The Petitioner had been trained and was responsible for preparing the K-Mart for the audit. When Mr. Lewis arrived at the store, the store did not meet the Respondent's standards. Additionally, required product was missing from the displays. Mr. Lewis called Howard Corbett to inform him of the problems. Mr. Corbett called the Petitioner to ask about the missing product. The Petitioner assured him that the product was in the store and on display. The missing product was not displayed, however, and was later found in the back room of the K-Mart store. On May 18, 2005, the Respondent received another e- mail from Charles Pippen, District Manager for Sunoco, complaining of the Petitioner's poor service at the Mt. Dora Sunoco store. He claimed that the Petitioner did not reply to phone calls and rarely ordered enough product. On May 19, 2005, the Territory Sales Manager, John York, followed up on that complaint by visiting the Mt. Dora Sunoco store and meeting with the Manager, Alice Marsh. Mr. York was substituting for Mr. Underwood who was out on medical leave. During the meeting, Ms. Marsh complained that the Petitioner did not order the quantity of product she requested, failed to provide adequate signage, and refused to place product where she requested. While at the Mt. Dora Sunoco store, Mr. York observed the problems about which Ms. Marsh had complained. After meeting Ms. Marsh, Mr. York spoke with the Petitioner to inform him of Ms. Marsh's complaints. During his conversation with Mr. York, the Petitioner admitted to failing to service the account by not placing the product by the gas pumps as requested, not ordering the amount of product requested, and not hanging certain signs. Later in this conversation with Mr. York, the Petitioner informed Mr. York that he believed that the Sunoco Manager's reason for complaining about his service was that he had refused her sexual advances. The Petitioner did not tell Mr. York what the alleged advances consisted of or when they might have occurred. Mr. York, however, in fact was never the Petitioner's supervisor. The Petitioner was responsible for two CVS stores in Mt. Dora. On Friday, May 20, 2005, the Petitioner made an unusual request of his temporary Manager, Dan Manor, for a Saturday delivery to his CVS stores. The Respondent does not normally schedule Saturday deliveries for such "small format" stores like CVS. When Mr. Manor approved the Saturday delivery, he specifically instructed the Petitioner that must meet the bulk delivery driver at the stores to "merchandise" the product, because bulk delivery drivers do not merchandise the product delivered and Mr. Manor did not have a merchandiser assigned to the Mt. Dora stores. The Petitioner agreed to meet the bulk delivery driver at the CVS stores on Saturday. The Petitioner did not advise his supervisor that he had made arrangements with the CVS store manager or a merchandiser regarding alternate arrangements for the Saturday delivery. The supervisor would have expected the Petitioner to do so. On Saturday, May 21, 2005, the Petitioner failed to meet the bulk driver to assist in merchandising the orders at the two CVS stores as instructed. The customer refused to take delivery of the product until a merchandiser was present to merchandise the product. Mr. Manor was unable to reach the Petitioner by telephone because the Petitioner was at Sea World with his family. Mr. Manor had to send a merchandiser from Longwood in order to merchandise the product that the Petitioner had ordered for the CVS stores. On May 23, 2005, the Petitioner failed to attend a weekly mandatory 5:00 a.m. meeting. He did not call his supervisor advising of his unavailability. The Petitioner did call Mr. Manor at about 6:15 a.m. and told him that he had overslept. When Mr. Manor questioned the Petitioner about why he did not meet the bulk driver on Saturday, he said that "he did not get a chance to make it out on Saturday." On May 23, 2005, Mr. Corbett decided to terminate the Petitioner based on his very poor performance. That decision to terminate him was approved by the Respondent's Human Resources Department. On May 26, 2005, the Respondent terminated the Petitioner for failing to service the CVS stores at a critical time, for the services issues at the Sunoco and the K-Mart, and for failing to attend the Monday morning meeting. At the time of his termination the Petitioner was on a final warning and had been advised that he could be terminated. The Petitioner never alleged during his termination meeting that he was being sexually harassed. Howard Corbett provided the Petitioner with documents to file an internal appeal on the day he was terminated. The Petitioner, however, did not appeal his termination as permitted by the Respondent's policy. The Petitioner claims he was the victim of sexual harassment by being subjected to (1) homosexual related comments made in 2001, and (2) alleged sexual overtures by the Sunoco Manager, Alice Marsh, in 2003. According to Ms. Marsh, she was never interested in the Petitioner sexually. She did not socialize with the Petitioner, and did not want a relationship with him. She did not touch him and did not state that she wanted the Petitioner fired. She also testified that she never stated that she wanted a sexual relationship with the Petitioner. The Petitioner's allegations regarding sexual harassment by Ms. Marsh related the following behaviors: She touched his back and arm; She was too close to him when he was around; She was nice to him until informed that he was married; She suggested sexual interest by her body language and eyes; and She wore provocative clothing. David Lopez supervised the Petitioner for approximately two years in the 2001 to 2003 time period. During this time period the Petitioner never complained to Mr. Lopez that he had been sexually harassed. Mr. Lopez did not witness the Petitioner being harassed while working with the Respondent either. Wanzell Underwood supervised the Petitioner for approximately two years in the 2003 to 2005 time period. During this time, the Petitioner never complained to Mr. Underwood that he had been sexually harassed. Mr. Underwood did not witness the Petitioner being harassed while he worked for the Respondent. The Petitioner never made a compliant regarding the alleged sexual harassment by the Sunoco Manager, Alice Marsh, to the Human Resources Department, in accordance with the Respondent's policy. He did not explain the nature of any sexual harassment, even when he finally claimed that he was being harassed. The Respondent would have terminated the Petitioner for his poor performance regardless of whether he engaged in the purported protected activity by complaining of sexual harassment. The Petitioner alleges he was terminated for reasons other than complaining about sexual harassment, including his alleged knowledge of theft in Lake County. In any event, on July 15, 2005, the Petitioner filed the Charge of Discrimination with the Commission and the resulting dispute and formal proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 29th day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James E. Gonzales 26437 Troon Avenue Sorrento, Florida 32757 Nicole Alexandra Sbert, Esquire Jackson Lewis LLP 390 North Orange Avenue Orlando, Florida 32802
The Issue Whether Petitioner, Craig Tapper, was subjected to a hostile work environment as a result of his race and national origin and retaliation, as alleged in his Petition for Relief.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, an black male, born in Jamaica, was employed by Respondent as a department head/stock clerk and is classified as an "associate." He started his employment with Respondent in June 2006 and was "resigned"1 on December 5, 2007. Respondent owns and operates retail grocery stores in Florida. Respondent employs more than 15 people. Respondent provided an Associate Handbook ("Handbook") to Petitioner when he was employed. The Handbook contains a "Policy Statement on Harassment, Including Sexual Harassment" ("Harassment Policy") and information regarding a Formal Complaint Procedure. The pertinent portion of the policy states: Policy Statement on Harassment, Including Sexual Harassment: We at Publix Super Markets share the belief that each of us should be able to work in an environment free of discrimination and any form of harassment, including harassment based on race, color . . . national origin. . . Harassment based on any of these factors will not be tolerated. . . [I]n order for the Company to deal with the problem [of discrimination/harassment], offensive conduct or situations must be reported to the correct person. If you work in a store and want Publix to address your concern, you must report it to your Store Manager, District Manager, or Associate Relations Specialist. . . Formal complaints may also be lodged with the Manager of Equal Employment Opportunity (MEEO) through the Formal Complaint Procedure. If you choose to use these complaint resolution procedures, you'll be treated courteously. Your complaint will be handled as swiftly and as confidentially as practical in light of the need to remedy the problem. Registering the complaint will in no way be used against you, nor will it have adverse effect on your employment. . . . Furthermore, Publix' "Rules of Unacceptable Conduct" prohibit the use of derogatory racial slurs and profanity. The "Rules of Unacceptable Conduct" are posted in the break room and the training room. The Attendance and Punctuality Policy" states, "[a]ssociates who miss 2 entire shifts without calling will be terminated." Associates are required to personally call in and speak with a manager two hours before their scheduled shift if they plan to miss work. On January 29, 2007, Petitioner was scheduled to work, but did not call or show up. As a result, Petitioner was suspended for a week and received a written "Associate Counseling Statement" ("Counseling Statement"), which instructed that he "must call himself when he is not going to be here" and that he "must call in for all shift [sic] he can not fulfill." He was further warned that a failure to improve would result in his discharge. On February 19, 2007, Petitioner was counseled and suspended for one week for "his 6th absent [sic] this 6 month period." Despite this warning, on May 20, 2007, Petitioner was again a "no call-no show." Petitioner was issued a Counseling Statement for failing to call in and speak with a manager before missing his scheduled shift. Petitioner was warned again that he "must call in 2 hours prior to his shift, call in personally and speak to a manager." This Counseling Statement contains the following admonition: "The next occurrence of not following proper procedures will result in a one week suspension. The next occurrence of a no show/no call will result in termination." On August 28, 2007, Dennis Sacca, grocery manager, overheard Petitioner say, "I am tired of being treated like a nigger." Sacca later walked up to Kendall Brown, an African- American grocery clerk, and said, "Go tell the nigger that I sent him some help." Brown relayed the message to Petitioner. Petitioner reported the incident to Ron Brassel, a former store manager and who is African-American, and an investigation was immediately conducted. Brassel informed the district manager who also participated in the investigation. During the investigation, Petitioner wrote a statement for Brassel in which he stated "[a]s far as the incident [sic] myself and Dennis sat down and spoke about the statement he made [and] we both worked it out. I would like very much for this to go no further than it being documented, I don't want Dennis fired, transferred, demoted or any action being taken against him on my behalf. As I said we both worked it out, he made a mistake and he already said he was sorry for saying it; I forgave him and we [sic] back to business." (Emphasis in original). Despite Petitioner's written statement requesting that Sacca not be disciplined, on September 26, 2007, Dwayne Bryant, district manager, suspended Sacca for one week. Bryant also reviewed Publix' Harassment Policy with Sacca and issued Sacca a written Counseling Statement warning Sacca that the next violation of Publix' Harassment Policy would "result in further disciplinary action such as removal from management or termination . . ." Petitioner never heard Sacca use the word "nigger" again. Petitioner was also given a Counseling Statement for using the word "nigger." In the "Associate Comments" section of the Counseling Statement, which is where the associate has the opportunity to note their disagreement with the counseling, there is no statement denying that Petitioner used the word "nigger." Several employees, including other African-American associates, have heard Petitioner use the word "nigger" on various occasions. Rentia Dawsey was employed at the same store as an assistant customer service manager. Dawsey, who is African-American, heard Petitioner used the word "nigger" at the store frequently. She specifically remembered an incident where she asked an associate to check with the store manager before she marked anything down, and Petitioner said, "[w]hat, you don't trust the nigger?" Brown, who worked with Petitioner, heard Petitioner say in the back room, "nigger, what's up" or "nigger this." Ron Calkins, grocery manager and Petitioner's direct supervisor, remembers overhearing Petitioner in the cooler saying, "he was nothing but the store nigger." Calkins verbally counseled Petitioner warning him that he could not use that language as it may be offensive to customers who overhear him. Petitioner claims that after Sacca was suspended, Calkins and Bowles, another employee, began harassing him, because they were unhappy with what had happened to Sacca. Petitioner failed to utilize the established complaint procedures regarding this alleged harassment. No other employee confirms these allegations; in fact, they testified that they never heard Bowles or Calkins say anything derogatory toward Petitioner or behave any differently toward him after the incident with Sacca. Petitioner's allegation of the harassment by Calkins and Bowles is not deemed credible. There is no credible evidence of discrimination based on national origin. In October of 2007, Kris Kolczynski became the new store manager. On Friday, November 30, 2007, Petitioner was detained and taken to the Orange County Jail for matters unrelated to his employment. On the morning of December 2, 2007, Kolczynski was notified by another employee that Petitioner did not show up for work, because he was in jail. Later that day, a woman, apparently Petitioner's girlfriend, came to the store and informed Kolczynski that Petitioner would not be coming in. Petitioner failed to call in and was absent again for his scheduled shift on December 3, 2007. Accordingly, Kolczynski called Tammie Taylor in Human Resources that same day to explain that Petitioner had been a "no call-no show." Taylor is a regional retail associate relations specialist who provides employment advice to management employees. Taylor informed Kolczynski that the standard practice within is that if an employee does not come to work for three consecutive days, they are "resigned." Accordingly, Taylor advised Kolczynski that if Petitioner did not show for a third consecutive shift "to resign him" for job abandonment. Taylor advised Kolczynski to resign Petitioner, rather than terminate him so that Petitioner would be eligible for rehire at other Publix stores. Associates, who are terminated, are not eligible for rehire at Publix for a year. On December 4, 2007, Petitioner was scheduled to begin work at 7:00 a.m.; however, he did not call in until 11:00 a.m., four hours after his scheduled shift. This was a "no call-no show" according to Publix' policy, which requires associates to call in two hours before their scheduled shift. Because Petitioner was a "no call-no show" for three consecutive days, Kolczynski followed Taylor's recommendation and "resigned" Petitioner's employment. Petitioner claims that he attempted to call Publix twice from the jail, but the store would not accept collect calls. Contrary to Petitioner's allegations, there is no written or even unwritten policy prohibiting accepting collect calls. When Petitioner contacted Kolczynski, he was informed that his services were no longer needed at Publix and that he was considered "resigned" because he failed to call in and personally inform a manager that he would miss his scheduled shifts. Subsequently, Petitioner contacted Taylor. Taylor informed Petitioner again that he was "resigned" for failing to call in or show up for work for three consecutive days. Kolczynski received calls from about two or three Publix store managers regarding whether Petitioner was "rehirable." Kolczynski informed them that Petitioner was resigned for job abandonment for failing to show up to work for three consecutive days, but that he was eligible for rehire. Kolczynski did not mention anything about the Sacca incident, and he did not tell them not to hire Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2008.
The Issue The issues are whether Respondent, City of Edgewater (the City), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on her age, gender, and/or disability by the manner in which the City terminated Petitioner’s employment. Also at issue is whether Petitioner’s termination was in retaliation for Petitioner’s complaints regarding discriminatory conduct by her immediate superior.
Findings Of Fact The City is an employer as that term is defined in section 760.02(7), Florida Statutes. Petitioner is a white female who was over the age of 40 during the events relevant to this proceeding. Petitioner was hired by the City as a part-time animal control officer on June 9, 1993. At the time Petitioner was hired, animal control was part of the City’s police department. On October 15, 1993, Petitioner was transferred to a full-time position as records clerk/telecommunicator in the police department. Petitioner maintained the department’s records and answered all police calls, including 911 calls. She dispatched officers and emergency personnel. Petitioner testified that this was a desk job with no real physical requirements beyond walking to a window to deal with members of the public. She received excellent evaluations and stayed in this position until early 1999. While working this job, Petitioner obtained police training at Daytona State College. Upon graduation, Petitioner applied for a job as a police officer with the City. On February 19, 1999, the City hired Petitioner as a police officer. Petitioner was promoted to sergeant on May 7, 2006, and served in that position until her demotion following an altercation with a female detainee in the City’s holding facility on June 16, 2011. Petitioner was continuously employed by the City for 18 years and eight months. During her employment, she received regular pay increases and numerous commendations. Over the years, she received three written warnings and one demotion, from sergeant to officer after the incident on June 16, 2011. Chief of Police David Arcieri characterized her disciplinary record as good in light of Petitioner’s length of service. During the course of her employment, Petitioner had multiple health problems. In 2001, during work-related mountain bike training, Petitioner suffered a fall that badly injured her shoulder.3/ Petitioner had surgery and recalled that she missed at least four months of work. When she came back to work, Petitioner was unable to perform the normal duties of a police officer. She was allowed to return in a light-duty desk position, working with the City’s chief of grants. She worked in this position for approximately six months before returning to regular duty as a police officer. In 2004, Petitioner was diagnosed with lupus and rheumatoid arthritis (“RA”). Petitioner testified that she freely discussed her condition with her co-workers because of the problems she had establishing a medication regime that did not cause allergic reactions. Until late 2011, she was forced to give herself painful injections in the stomach. She now has a port implanted that allows her to take the medications via infusion. Chief Arcieri confirmed that it was common knowledge in the City’s police force that Petitioner had lupus. Petitioner testified that she missed very little work because of the lupus and RA. She requested no accommodations in the workplace for these conditions. Sometime in 2009, Petitioner underwent neck surgery to repair a disc “that was almost gone.” Petitioner recalled discussing her condition with then-Sergeant Arcieri4/ prior to the surgery. They talked about the fact that her doctors were unsure whether the neck condition had been brought on by her RA. Petitioner testified that she was out of work for two or three months due to this surgery, but did not require a light-duty assignment when she reported back to her position. On September 22, 2009, Petitioner was at work conducting a witness interview when her nose began bleeding uncontrollably. A fellow officer drove her to the emergency room. Another city employee came to the emergency room to make sure Petitioner got home safely. At the hospital, Petitioner was diagnosed with hypertension. She missed several days of work and was placed on medications to control her blood pressure. City Manager Tracey Barlow testified that he was contemporaneously aware of Petitioner’s hypertension. Petitioner requested no workplace accommodations for her hypertension. In early 2010, Petitioner was out of work for a time with uncontrolled vomiting and diarrhea. Petitioner’s physician, Dr. Beatrice Bratu, diagnosed her condition as stress-induced colitis. Petitioner testified that her treatments for the colitis lasted about three months but that she was back at work within a few weeks. On March 15, 2010, Personnel Director Donna Looney addressed the following email to Petitioner: We are very pleased to see you back and doing well! I am in receipt of a note from Dr. Bratu which indicated you may return to work. I want to stress that we understand the necessity for you to follow your doctor’s instructions. No restrictions are noted; therefore you are allowed to continue your regular duties. Please be advised that you have a continuing obligation not to work when you are feeling impaired (fatigue, weakness, pain, etc.). It is City policy that if you expect to have any adverse side effect while taking medication, you must inform your supervisor, and you are never to drive a City vehicle when you are feeling impaired. If I can be of any further assistance, please feel free to contact me. Petitioner requested no workplace accommodation related to her colitis. On June 16, 2011, Petitioner was involved in an altercation with a 28-year-old female detainee at the City police station. Several officers submitted witness statements about the incident and police station video cameras captured the essentials of the acts that occurred. The video recording did not include sound. The detainee, J.G., had been arrested for battery and was by all accounts heavily intoxicated and belligerent. J.G. asked to go to the bathroom. Petitioner let her out of the cell and escorted her to the bathroom. The video shows Petitioner standing in the open doorway of the bathroom, waiting for J.G. to finish. Petitioner told the police department’s internal affairs investigator that J.G. asked for tampons. Petitioner responded that the police department did not keep such items and that she would have to clean up as best she could with the materials available in the bathroom. J.G. replied that she could not put back on the shorts she had been wearing. She stated they were not her shorts and they were bloody. Petitioner told her that she had to put the shorts back on. At this point, the video shows the shorts flying out of the bathroom and landing behind Petitioner, who kicked them back into the bathroom and stepped into the doorway. J.G., stepping into camera range, picked up the shorts and threw them at Petitioner. The shorts hit Petitioner along her beltline. Petitioner took a step forward and struck J.G. in the face with her open right hand. J.G. pushed forward momentarily, but retreated into the bathroom as Petitioner continued to advance. At this point, Officer Eric Selvaggio entered the picture to assist. For a period of roughly forty seconds, all three people were inside the bathroom, invisible to the camera. The doors then opened, and the three emerged. The two police officers guided the handcuffed J.G. toward a point outside the range of the camera. J.G. wore only a shirt and underwear. The video next cut to an empty holding cell. Petitioner and Officer Selvaggio entered the picture, guiding the handcuffed J.G. toward the cell. J.G. continued to struggle with the officers. She dropped to the ground. The officers pulled her to her feet and pushed her into the cell. J.G. kicked at Petitioner. The camera angle made it impossible to see whether there was contact, but Petitioner stated at the time, and has consistently maintained since the incident, that J.G. kicked her in the stomach. Immediately after the kick, Petitioner attempted to push her way past Officer Selvaggio toward J.G. Petitioner drew back her right fist but Officer Selvaggio’s left arm blocked her from throwing a punch. He pushed Petitioner away and then secured J.G. in the holding cell. Though there is no sound on the video, it is clear that Petitioner and J.G. continued an animated conversation after J.G. was locked in the cell. Multiple police witnesses recalled Petitioner calling J.G. a “fucking bitch.” Petitioner and the other officers on duty went out the back door to discuss the situation. The video appears to show Petitioner performing a joking reenactment of her attempted punch at J.G. Officer Selvaggio stated to the investigator that Petitioner told him she might not charge J.G. for the incident, but he replied that under the circumstances it would be best if she did follow through with charges. Petitioner filled out a charging affidavit against J.G., charging her with battery on a law enforcement officer, in violation of section 784.07(2)(b), Florida Statutes. In her charging affidavit, Petitioner wrote as follows, in relevant part, verbatim: On June 16, 2011 at approximately 12:45 a.m., the defendant, [J.G.] was in police custody at the Edgewater Police Department on a battery charge from a previous police call. The defendant requested to use the bathroom and was escorted to the bathroom by me. The defendant was upset over being arrested, while sitting on the toilet, she kicked off her shorts and threw them out of the restroom stating that she was not putting them back on as they were not hers and were soiled from her menstrual cycle. I pushed the shorts back into the restroom with my foot and advised her she needed to put them back on, she screamed she was not going to. When the defendant rose from the toilet, she picked up the shorts and threw them directly into my face, striking me with the shorts. The defendant then pushed herself up against the sink and began calling me a bitch and telling me again she was not putting the shorts back on and she was leaving. I entered and attempted to get her out of the bathroom, she began to punch at me. Myself and Officer Selvaggio, who was standing nearby, grabbed hold of the defendant in an effort to get her out of the bathroom. The defendant struggled against us, before we got her to the floor and secured her. As we were getting her back into the cell, the defendant threw herself onto the bench and kicked out striking me in the stomach with her right foot. The defendant was left in the cell with no shorts on and in handcuffs . . . . It should be noted that Petitioner’s charging affidavit states that J.G. hit her in the face with the bloody shorts, when in fact the shorts hit Petitioner in the waist area. Petitioner failed to mention that she slapped J.G. in the bathroom or that Petitioner attempted to punch J.G. in the holding cell. Chief Arcieri testified that when he came in later that morning, he reviewed all of the reports filed since the previous day. Petitioner’s report caught his eye because it involved battery on a law enforcement officer inside the station house. He instructed his assistant to pull the video of the incident and make one copy for him and one for Petitioner. When he saw the video, Chief Arcieri notified the Florida Department of Law Enforcement (“FDLE”) and requested an investigation. Chief Arcieri testified that he went to FDLE because he thought criminal charges could ensue in the case and that he does not like to investigate criminal matters internally. He also ordered an internal affairs investigation, but placed it on hold pending the outcome of the FDLE investigation. On June 21, 2011, Petitioner was placed on paid administrative leave for the duration of the investigations. J.G. refused to cooperate with the FDLE investigators. Without a victim willing to go forward, no criminal charges could be brought against Petitioner. The FDLE investigation was dropped. The internal affairs investigation was completed on August 15, 2011. The investigator’s written report concluded as follows: Sgt. Winston did commit the act of perjury on an official felony charging affidavit. Sgt. Winston did in fact using her hand strike a prisoner in the face which caused her to fall back onto the sink. Sgt. Winston did reach her right arm over the shoulder of Officer Selvaggio in an attempt to strike a handcuffed prisoner which Officer Selvaggio was attempting to secure inside the holding cell. Sgt. Winston did violate Edgewater Police [sic] & Procedure by removing a prisoner, removing the prisoner’s handcuffs without another officer present and allowed the prisoner to use the restroom. Sgt. Winston violated Edgewater Policy & Procedure by entering the cell/booking area wearing both her issued side arm as well as her issued taser. Sgt. Winston violated Edgewater Police [sic] & Procedure by openly criticizing the policy of securing any and all weapons prior to entering the booking/cell area when prisoners are present. This was done openly in the presence of fellow officers. Sgt. Winston violated City Policy and Procedure 12.02 Inappropriate/Unacceptable Behavior. Sgt. Winston did violate Edgewater Police Department Policy & Procedure Excessive force not resulting in injury. Petitioner was represented by counsel for the Fraternal Order of Police (“FOP”) in defending herself against the allegations that resulted from the internal affairs investigation. Negotiations ensued between the City and Petitioner to resolve the matter short of litigation. A settlement agreement was reached and executed on August 24, 2011. Petitioner agreed to findings that some of the allegations were sustained.5/ Petitioner agreed to a demotion from sergeant to officer, effective August 19, 2011, with a resulting salary cut, and she agreed to attend anger management courses. On August 24, 2011, Chief Arcieri ordered Petitioner to report for duty at 6:00 a.m. the following morning. Petitioner called in sick and did not report for work on August 25, 2011. Ms. Looney, the personnel director, contacted Petitioner to find out why she was not reporting for work. Petitioner told Ms. Looney that she had sustained a back injury during the altercation with J.G. on June 16, 2011. Ms. Looney testified that this was the first she knew of Petitioner’s back injury. In a letter dated August 24, 2011, and received by Chief Arcieri on August 25, 2011, Petitioner’s personal workers’ compensation attorney wrote as follows, in relevant part: As you know, Ms. Winston is an 18 year employee with our [sic] agency who was recently in an altercation with a belligerent, drunken female on June 16, 2011. Ms. Winston was injured during the arrest but was placed on Administrative leave pending an internal investigation and the matter has not been reported as an injury as of yet. Ms. Winston was not aware that she had injured her low back immediately due to circumstances surrounding the altercation and the typical adrenaline response resulting from such an altercation. She thought she was just sore from being beat up a bit but as the weeks went by her condition worsened. A recent MRI has revealed two herniated discs in the lower back and Ms. Winston does require medical treatment for this work related injury. I am requesting at this time that the Agency immediately file a First Report of injury on behalf of Ms. Winston. This should be considered notice under Chapter 440 of the work related injury. In addition to the back injury, Ms. Winston now suffers from uncontrolled high blood pressure which is also disabling. Ms. Winston will be receiving a letter from her doctor indicating that she is unable to work due to her uncontrolled blood pressure at this juncture. That is also a work related claim under F.S. 112.18, more popularly known as the “Heart/Lung Bill.” This claim should also be processed and medical care should be provided as soon as possible. Please see that a First Report of Injury is completed with regard to this claim . . . . In a related claim, Ms. Winston also has a September 22, 2009 uncontrolled hypertension incident which resulted in hospitalization. As you know, the 2009 accident occurred while Ms. Winston was interviewing a sex crime victim. She was experiencing a severe headache and then had an uncontrollable nose bleed during the interview. The blood pressure reading at the time revealed her blood pressure was severely elevated and she was taken to the hospital. This incident should have triggered the immediate filing of a First Report of Injury under F.S. 112.18 as referenced above. For whatever reason, no First Report of Injury was filed but I am requesting that you file such a First Report of Injury immediately on Ms. Winston’s behalf and that you provide appropriate medical care for this condition . . . . Finally, Ms. Winston advises me that she has been under an internal investigation since the June, 2011 incident. This internal investigation appears to be entirely inappropriate given the circumstances surrounding this event and would appear to be part of an intimidation practice on the part of your Agency, which is in clear violation of F.S. 440.205. As I am sure you know, 440.205 prohibits the harassment, intimidation, retaliation, or termination of an employee by virtue of a workers’ compensation claim. Needless to say, Ms. Winston has numerous ongoing workers’ compensation claims and it appears that all of the harassment which she has been subjected to since the time the internal investigation was opened in this matter appears to be directly attributable to her ongoing workers’ compensation issues. It should also be noted that Ms. Winston is suffering from post traumatic stress disorder as a result of this recent altercation and all of the fallout related to same. As I am sure you are well aware, post traumatic stress disorder of this nature is also covered for First Responders under the auspices of F.S. 112.1815. I am requesting again that a First Report of Injury be filed relative to this issue and that appropriate medical care be provided. Ms. Winston is entitled to full pay as she was injured during an altercation with a violent individual. Full pay is appropriate pursuant to the provisions of F.S. 440.15(11). This means that she should be receiving a regular paycheck without deduction of sick or vacation bank time. Please see that the appropriate adjustment is made relative to payment of benefits and feel free to contact me with any question . . . . On August 30, 2011, Petitioner submitted three “Incident/Accident Information Forms” to the City in regard to her workers’ compensation claims. The first states that Petitioner suffered an injury to her lower back on June 16, 2011, when “an intoxicated combative prisoner . . . kicked me in my stomach just above my gun belt.” The second describes “stress” as the injury, dated June 28, 2011, caused by “constant harassment & belittled by Dave Arcieri.” The third form states that the date of injury was September 22, 2009, the injury was “blood pressure caused bleeding of the nose,” and describes the incident in terms similar to those used in the attorney’s letter of June 24, 2011. Petitioner testified that she still sees a psychiatrist once a month and goes to counseling every two weeks, but that she first sought mental health counseling in June 2011 because of problems with Chief Arcieri that dated from long before he became chief. She testified that “he would cuss me out, call me names, have people that were subordinates watching me and reporting back to him to make sure I didn’t breathe the wrong way.” Petitioner testified that Chief Arcieri’s animus toward her dated from her handling of a situation as a sergeant that led to the firing of an officer. A member of Petitioner’s squad reported to her that an officer in another squad stole property from a civilian during a traffic stop and then gave him the stolen item. Petitioner told the officer to file a report and drop the item into evidence and that she would meet with the other officer’s sergeant. The other officer’s sergeant required him to write a report. The officer lied in the report. Petitioner and the other sergeant brought the matter to the attention of their superiors. After an investigation, the department had no choice but to fire the officer. At a sergeants’ meeting a little while later, then- Administrative Sergeant Arcieri said that Petitioner was incompetent. If she had handled the situation differently, Sergeant Arcieri would not have had to fire a good officer. Petitioner asked how the department could tolerate a lying thief in its midst. Sergeant Arcieri told her that the officer could have been reprimanded in some other way. Petitioner testified that she was afraid of Chief Arcieri because of threats he made to her. He made it clear to her and to any other officer who thought about reporting something to Ms. Looney or Mr. Barlow that these officials would let him know and the snitch would pay a price. On September 27, 2011, Petitioner sent an email to Michelle Grenham, Chief Arcieri’s secretary, stating that she would be unable to attend the anger management class required by the settlement agreement because she was undergoing major surgery on September 28 at Halifax Hospital in Daytona Beach. Ms. Grenham forwarded the email to Chief Arcieri and Ms. Looney. Petitioner underwent surgery on September 28, 2011, to repair the herniated discs in her back. Petitioner testified that prior to the surgery, she had difficulty walking, standing, bending at the waist, reaching, and climbing stairs due to the pain in her back. She was able to drive a car but only for short distances. She did not have full control of her bladder and bowels. She could only sleep by putting herself in a fetal position then bracing herself with pillows to keep her in that position. Petitioner described the surgery as less than a complete success. She had numbness in her right leg, was unable to bend, squat, kneel or stretch, and could not sit for very long. She eventually required spinal injections and the surgical insertion of a morphine pump in her stomach for pain in her spine. The morphine pump was still in place at the time of the hearing. Physicians also implanted a spinal cord stimulator in her back. She regained control of her excretory functions but was unable to walk without the use of a walker for several months and a cane thereafter. She wore a back brace most of the time. On November 29, 2011, Petitioner and her husband met with Mr. Barlow and Ms. Looney to discuss Petitioner’s medical situation and when she might return to work. The meeting was held at Petitioner’s request. Petitioner testified that she came into the meeting wearing a back brace and using a walker. Her husband had to drive her to the meeting. Petitioner testified that she asked for the meeting to find out if she could get an extended leave until her physician cleared her to go back to work. She also wanted to discuss Chief Arcieri’s harassment and belittling of her. At the meeting, Petitioner told Mr. Barlow that she didn’t know how long the healing process would take or whether she would need additional surgeries. Petitioner testified that Mr. Barlow told her it might be in her best interest to retire, in light of her age and her many health problems, including RA, lupus, hypertension, and now the back injury. Mr. Barlow stated that it seemed to him that Petitioner didn’t have anything that was going to go away, and that anyone with a back injury would have issues with it for life. Mr. Barlow asked whether Petitioner really thought she could ever come back as a police officer. Petitioner could only say that she didn’t know. Petitioner testified that she told Mr. Barlow that she hoped to reach retirement as a police officer but that she was willing to take another position with the City if her physical limitations kept her from returning to her former position. Petitioner testified that she told Mr. Barlow that she had a doctor’s appointment on May 3, 2012, and that Mr. Barlow promised to give her a leave of absence until that appointment. Petitioner’s husband, Ricky Winston, testified that at the meeting, his wife explained her injuries to Mr. Barlow and complained about Chief Arcieri’s constant ridicule and badgering. Mr. Winston stated that Mr. Barlow had a calendar and some paper and a calculator that he was using to diligently figure out something. It turned out that Mr. Barlow was calculating the date of Petitioner’s full retirement, with the idea of carrying her on the City’s employment roster until then. Mr. Winston testified that he left the meeting with the understanding that Mr. Barlow had agreed to grant Petitioner unpaid leave until she reached retirement. Mr. Winston recalled that Mr. Barlow listed all of Petitioner’s physical problems and asked why she didn’t just quit. Mr. Winston testified that this question was devastating to his wife because she never had any intention of leaving the job she loved. Ms. Looney testified that she did not recall Mr. Barlow mentioning any of Petitioner’s physical infirmities aside from her back injury. She did not recall Mr. Barlow using a calculator or calendar during the meeting or stating a date for Petitioner’s retirement. Ms. Looney stated that the goal was for Petitioner to return from her next doctor’s appointment with a physician’s statement as to when she could return to work, whether at full or light duty. Ms. Looney’s assumption, based on Petitioner’s condition, was that Petitioner would return to light duty at first. Mr. Barlow explicitly stated that the City wanted Petitioner to return to work, either full or light duty. Ms. Looney testified that she believed everyone at the meeting understood that Petitioner wanted to return to light duty and that the police department would try to find light duty restricted work for Petitioner when her doctor cleared her to return. Petitioner would remain on unpaid leave until her next doctor’s appointment in January 2012, at which time the City would need to know whether she could return to work. Petitioner had given Ms. Looney light duty notes from physicians in the past, which led Ms. Looney to assume that Petitioner understood what she needed to provide to the City. Ms. Looney stated that Mr. Barlow did not promise to keep Petitioner’s job open until May 2012. Mr. Barlow recalled almost nothing about the November 29, 2011, meeting with Petitioner. The only relevant specific testimony he provided on the subject was a denial that he told Petitioner that she could have a leave of absence until May 2012. However, given his lack of recall as to anything else that transpired in the meeting, Mr. Barlow’s testimony on this single point is not credited. The testimony of Petitioner and her husband regarding the statements made at the November 29, 2011, meeting is credited as to Mr. Barlow’s discussing Petitioner’s retirement and as to the fact that a discussion of Chief Arcieri’s behavior toward Petitioner occurred. On these points, Petitioner and Mr. Winston were credible, consistent witnesses. Ms. Looney’s testimony on these points was confused and equivocal. Mr. Barlow’s testimony was of little use at all as he claimed to remember virtually nothing about the meeting. However, the testimony of Petitioner and her husband cannot be credited as to the matter of Mr. Barlow’s promise to give Petitioner a leave of absence until May 3, 2012. Even disregarding Mr. Barlow’s convenient memory on this point, Petitioner’s testimony and that of her husband diverged on the ground for the leave of absence. Petitioner testified that Mr. Barlow gave her until May 3, 2012, because that was the date of her next doctor’s appointment. Mr. Winston vaguely recalled that a date was mentioned, either March or May, and that this date was based on Mr. Barlow’s calculation of Petitioner’s retirement date. Petitioner’s claim that Mr. Barlow gave her until May 2012 is further undercut by documentary evidence. On January 26, 2012, Petitioner sent Ms. Looney an email that stated as follows, in relevant part: Call me when you get the chance, I have prescriptions to pick up and get fitted for another brace, but I am going to need to take a leave of absence for a bit. Dr. Vinas [Petitioner’s surgeon] is not releasing me for duty at this time . . ., I will be going into a new brace and will be going to pain management for epidural injections in my spine. I have attached the letter from Dr. Vinas, as well as a copy of the medications I will be taking. My next appointment with him will be May 03/2012 unless the Dr. at the pain management center feels I need further surgery. I have no idea what to do about taking a leave, is there paperwork I need to file or just send you a letter? I would rather speak to you so if you are not busy please call me . . . . If the November 29, 2011, meeting had settled the question regarding Petitioner’s leave of absence until her doctor’s appointment on May 3, 2012, there would have been no need for Petitioner to write to Ms. Looney on January 26, 2012, to request a leave of absence and to inform Ms. Looney that her next doctor’s appointment would be on May 3. This email is consistent with the assertion made in the City’s February 21, 2012, letter terminating Petitioner’s employment that Mr. Barlow agreed to maintain the status quo until January 23, 2012, the date of Petitioner’s next scheduled doctor’s appointment.6/ In an email to Ms. Looney dated February 9, 2012, Petitioner stated, “[A]t this stage nothing surprises me anymore, I mean after all, I was supposed to be back on my feet and rarin to go by January, well that, as you know did not happen.” Petitioner closed a separate February 9, 2012, email to Ms. Looney with the following: “I forwarded this to [Mr. Barlow] also, but if he does not get it please let him know and tell him I said to keep his chin up as he always does and thank him for allowing me to take a leave of absence. Hopefully it won’t be much longer.” These emails cast further doubt on Petitioner’s claim that she had obtained a leave of absence until May 3, 2012, from Mr. Barlow at the November 29, 2011, meeting. The greater weight of the evidence indicates that Petitioner was granted an unpaid leave of absence at the November 29 meeting, but only until her physician cleared her to return to work in some capacity, which Petitioner at the time anticipated would occur in January 2012. The evidence presented at the hearing showed that Petitioner had used her twelve weeks of leave under the Family Medical Leave Act (“FMLA”) as of November 16, 2011. She had exhausted all of her accrued leave as of December 9, 2011, when she formally began the unpaid leave of absence. On January 1, 2012, Petitioner began receiving the City’s long-term disability benefits. Ms. Looney signed a letter to Dr. Federico Vinas, dated January 25, 2012, that stated as follows: Ms. Winston has informed us she is a patient of yours. She has a follow-up appointment January 26, 2012 in association with surgery perform [sic] by you. First, and foremost, enclosed you will find the Authorization to Disclose Medical Information form executed by Ms. Winston along with her job description (Police Officer) setting out the physical requirement. JoAnne is a valued City employee and it would be greatly appreciated if you verify her ability to perform any or all of these duties. Please provide us with specific restrictions or requirements necessary not to aggravate her condition and advise as to exactly when she can be cleared for full police officer’s duties. Your expertise is [sic] this matter is greatly appreciated. Please contact me for any further information you may need. The City’s job description for “Police Officer” reads as follows, in relevant part: PRIMARY DUTIES AND RESPONSIBILITIES: (all duties may not be performed by all incumbents) Patrols designated area of the City to preserve the peace, to prevent and discover criminal acts, and to enforce traffic regulations. Answers calls and complaints involving drunkenness, domestic disputes, assaults and batteries, missing persons, fires, thefts, accidents and other felonies and misdemeanors. Is responsible for being knowledgeable of the crime problem in assigned work area and developing strategies to combat the problem. Develop contacts and provide intelligence reports to detectives and administration. Makes preliminary investigations at crime scenes or incidents, protects and collects physical evidence, locates witnesses, interviews witnesses, makes arrests, assists paramedics with basic and advance [sic] life support. Interviews complaints [sic] and witnesses to obtain information about crimes; assists in investigative work. Prepares evidence for issuance of complaints and testifies as a witness in both civil and criminal court, transports prisoners. Patrols school zones and high activity areas when assigned. Assists motorists, directs traffic, investigates accidents, recovers stolen automobiles, prepares detailed reports, advise of and interpret laws and ordinances and provides general information to the public. Cooperates and coordinates with other law enforcement agencies and other components of the Criminal Justice System. * * * Environmental Conditions: Outdoor environment with exposure to discomforting and dangerous working conditions Office environment with exposure to computer operations Physical exertion in lifting/moving items weighing up to 50 pounds Routine travel is required along daily assigned routes Occasional overnight travel is required Other physical/mental requirements may apply * * * DISCLAIMER STATEMENT This job description is not intended as complete listing of job duties. The incumbent is responsible for the performance of other related duties as assigned/required. The physical demands described herein are representative of those that must be met to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable qualified individuals with disabilities to perform the essential functions. On January 26, 2012, Dr. Vinas forwarded to Ms. Looney a “Work Status” form regarding Petitioner that provided as follows: The above captioned patient is being treated in this office. The patient’s current work status is as follows: ( ) This patient was seen for treatment in our office today, please excuse any absence from work or school. (X) Based on the job description provided by the patient, it is in this patient’s best interest to be excused from all work duties at this time. Restrictions The patient may return to or continue to work with the following restrictions: ( ) No lifting over pounds. ( ) No excessive/repetitive bending or twisting. ( ) No prolonged sitting/standing or stooping. ( ) No excessive/repetitive pulling or pushing. ( ) No excessive activity with arms above shoulder level/overhead activity. ( ) ALL OF THE ABOVE ( ) Specific instructions ( ) This patient does not work at this time, but has been instructed to limit household/daily activities so as to remain within the above noted restrictions. ( ) This patient’s most recent evaluation supports a return to normal, routine work activities. The effective date of this Work Status is from the date noted above until further notice. If the patient’s current position of employment can be modified or other position found that conforms to the above restrictions, then the patient may return to work. If these restrictions cannot be maintained, I would recommend that the patient be excused from work until further notice. The patient’s work status will be evaluated on a visit-to-visit basis. Ms. Looney testified that based on Dr. Vinas’ Work Status form and her own conversations with Petitioner, she concluded that Petitioner was unable to return to work in any capacity, full or light duty, as of January 26, 2012. At the hearing, Petitioner conceded that she could not have returned to work as a police officer on January 26, 2012. As set forth in Finding of Fact 54, supra, Petitioner notified Ms. Looney via email on January 26 that her next appointment with Dr. Vinas would be on May 3, 2012. In the same email, Petitioner asked for guidance on how to request a further leave of absence. The record of this proceeding includes a “Request for Leave of Absence” form in which Petitioner asked for a leave of absence commencing on January 26, 2012, with an “anticipated return date” of May 3, 2012. At the hearing, Petitioner could not recall filling out this form. In her testimony, Ms. Looney indicated that she filled out the form for Petitioner. In the space in which the applicant is to set forth reasons for the leave of absence, Ms. Looney wrote, “See attached e-mail,” which was Petitioner’s January 26 email to Ms. Looney. Mr. Barlow denied the request for a further leave of absence by signature on the request form. The form does not indicate when Ms. Looney filled it out or when Mr. Barlow denied the request. The record is also unclear as to when Petitioner was notified that the City was denying her a further leave of absence. As late as February 9, 2012, Petitioner was still sending chatty emails to Ms. Looney regarding her medical condition and treatment, even asking Ms. Looney and Mr. Barlow to stop by her house for a visit if they are ever in the neighborhood. The first clear notice of the denial was in the termination letter set forth in the next paragraph. On February 21, 2012, Ms. Looney wrote the following letter to Petitioner: On November 29, 2011 Tracey Barlow, City Manager, and myself met with you to discuss your medical situation. You informed us your next doctor’s appointment was January 23, 2012, at which time you were hoping to be taken out of your brace. We agreed your continued employment with the City would depend on your returning to full duty and I would send Dr. Vinas a letter requesting exactly when you would be cleared to return to full duty as a police officer. Following your exam on January 26, 2012, you emailed me Dr. Vinas’ work status form which states “based on the job description provided by the patient, it is in this patient’s best interest to be excused from all work duties at this time.” You also stated your next appointment is May 3, 2012 and asked about taking a leave of absence. JoAnne, as you are aware your FMLA was met as of November 16, 2011; all your workers compensation claims have been denied;7/ you exhausted all of your accruals as of December 9, 2011 and have been granted unpaid leave of absence for the previous 74 days, and as of January 1, 2012 you began receiving the city’s long term disability benefit. Therefore, due to all the facts stated too [sic] include uncertain ability to return to work date, the City Manager has denied your request for leave of absence exceeding 30 days. As a result, consider this formal notification that your employment with the City of Edgewater ends effective February 24, 2012. It is very important that you contact the Personnel Department to make the necessary arrangements for your continued insurance coverage and any outstanding benefits/obligations you have with the City. Petitioner testified that at the time the City terminated her employment, she was still using a cane at home and a walker when she went out. There is no question that Petitioner was unable to return to full duty as a police officer on February 24, 2012. It was Petitioner’s contention that she could have come back to work for the police department in some form of light duty, as she had been allowed to do in the past, or in one of several jobs that the City advertised as open during her convalescence. Petitioner further contended that Ms. Looney should have sent Dr. Vinas the job descriptions of all open City jobs rather than just the job description of a police officer. As to the last point, Ms. Looney testified that it was standard practice for the City to send the physician an employee’s current job description for an assessment of the employee’s ability to return to work. Petitioner was treated no differently than any other City employee in this regard. Petitioner testified that she asked the City to bring her back in another position, but could offer no documentary evidence to support that testimony. She claimed that part of the discussion at the November 29 meeting with Mr. Barlow and Ms. Looney was her hope to retire as a police officer, but her desire to remain a city employee in whatever capacity she could. Ms. Looney testified that Petitioner never asked to work in any position other than that of police officer. Petitioner sent an email to Ms. Looney on December 26, 2011, asking whether Ms. Looney had “heard from my Dr. as to when I might be able to come back light duty or anything else?” Petitioner claims that the “anything else” portion of the email indicated her desire to be placed in any available job. Ms. Looney read the email as merely asking whether she had heard from Petitioner’s doctor, not as a job request. Ms. Looney’s reading is not unreasonable given that this was the only document Petitioner produced that even arguably contained a statement asking to be placed in a position other than police officer. In any event, whether Petitioner asked to be placed in another position is not decisive because of the blanket statement in Dr. Vinas’ work status form. Ms. Looney testified that she was unable to place Petitioner in any position because Petitioner’s physician had clearly stated that it was in her best interest to be excused from all work duties. It was always the City’s understanding that Petitioner would return to work in a light duty function at first, but in fact Petitioner was not cleared to work at all. Ms. Looney might have followed up with Dr. Vinas and inquired whether Petitioner was capable of doing clerical work or some other form of indoor, deskbound job, but Petitioner has pointed to nothing that required Ms. Looney to do so in light of Petitioner’s failure to request that accommodation. Ms. Looney testified that it was the City’s practice to hold off on discussing positions outside of an employee’s department until the employee has actually been cleared for light duty. No evidence was presented that the City treated Petitioner any differently than it treated other employees in a similar position. Similarly, Mr. Barlow might have agreed to extend Petitioner’s unpaid leave of absence to May 3, 2012, but he was not required to do so. At the time of her termination, Petitioner had used twelve weeks of FMLA leave and had been granted an additional 74 days of unpaid leave at Mr. Barlow’s discretion. Petitioner had been out on some form of medical leave for approximately six months. The City did not seize on some early opportunity to dismiss Petitioner; rather, the City had anticipated that Petitioner would return to work as a police officer and waited until Petitioner had exhausted all avenues of leave except a second discretionary unpaid leave of absence before deciding to terminate her employment. Petitioner offered no credible evidence that her termination was based on her age, gender, disability or perceived disability or that she was treated differently than other employees due to her age, gender, or disability. The lone indication of possible bias was Mr. Barlow’s statement at the November 29, 2011, meeting that Petitioner should consider retirement in light of her age and poor health. This statement may be easily read as a kindly (if poorly phrased) expression of concern for Petitioner. By her own testimony, Petitioner was on good terms with Mr. Barlow and Ms. Looney right up to the time of her termination. Petitioner sent solicitous emails to them as late as February 9, 2012. Petitioner’s feelings were hurt by the statement, but no other ill effect followed. She was granted the requested unpaid leave of absence and remained employed by the City for three more months. Petitioner testified that she never considered herself disabled and prided herself on not calling in sick or requesting accommodations for her conditions. Ms. Looney, Mr. Barlow, and Chief Arcieri all testified that they did not perceive Petitioner as having a disability that required accommodation in the workplace, though they were all aware of at least some of her chronic conditions such as lupus, RA, and hypertension. Petitioner claimed that Chief Arcieri carried on something of a vendetta against her. Chief Arcieri testified that prior to the demotion his relationship with Petitioner was friendly. When Petitioner’s house was flooded, Chief Arcieri took off work to help Mr. Winston solder a broken shower valve. After Petitioner was demoted, the relationship was less friendly but always professional. Chief Arcieri testified that he has never yelled at Petitioner or any other employee. He never called her names. The harassment and belittling that Petitioner alleged never happened. Chief Arcieri denied any sort of gender bias, pointing to the successful efforts his department has made to recruit and hire female officers. He denied ever making a comment about Petitioner’s age. He testified that he never considered Petitioner disabled while she was on active duty, despite her lupus. Petitioner never requested an accommodation and Chief Arcieri never saw the need for an accommodation. Chief Arcieri testified that at the close of the internal affairs investigation of the June 16, 2011, incident, he declined to sustain some of the allegations in order to protect Petitioner from a referral to the Criminal Justice Standards and Training Commission (“Commission”) for further discipline. Chief Arcieri assented to a request by the FOP that he submit a letter to the Commission stating that he believed the demotion was sufficient and asking the Commission not to take further action against Petitioner. Petitioner’s testimony against Chief Arcieri consisted of general statements that he harassed and belittled her. The only specific incident Petitioner recounted as to the source of any possible animus the chief bore toward her involved the firing of the officer who stole something during a traffic stop. Even if Petitioner’s version of events is accepted, Chief Arcieri’s anger toward Petitioner had nothing to do with her age, gender, or disability. He called her “incompetent.” He was upset about the manner in which Petitioner performed her job, which he believed led to the needless dismissal of a good officer. Whether Chief Arcieri was right or wrong to be angry at Petitioner, he did not engage in an act of discrimination. Even if the factfinder were to accept Petitioner’s description of Chief Arcieri as a bully on the job, there is no evidence aside from Petitioner’s general comments to indicate that she was singled out due to her age, gender or disability. It is telling that in testifying about her fear of reporting the bullying, Petitioner stated, “I was afraid. I was very afraid. David Arcieri made it not only clear to me, but to any other officer who even thought about going to report to Donna Looney or to Tracey Barlow, ‘Don’t worry, they’ll let me know and you will pay the price.’” This statement might be evidence that Chief Arcieri is a bully, a poor leader of his department, or a bad administrator. However, the statement does not establish that Chief Arcieri discriminated against Petitioner in a manner prohibited by section 760.10, Florida Statutes. If anything, the statement indicates that Petitioner found herself in the same boat as the other officers in her department.8/ Petitioner was aware of and understood the City’s nondiscrimination and no-harassment policy, the operative language of which states: The nature of some discrimination and harassment makes it virtually impossible to detect unless someone reports the discrimination or harassment. THUS, IF ANY EMPLOYEE BELIEVES THAT HE OR SHE OR ANY OTHER EMPLOYEE IS BEING SUBJECTED TO ANY OF THESE FORMS OF DISCRIMINATION OR HARRASSMENT, HE OR SHE MUST REPORT THIS TO THE PERSONNEL DIRECTOR (386-424-2408) AND/OR CITY MANAGER (386-424-2404). If you are encountering a problem, please do not assume that the City is aware of it. The City is committed to ensuring that you have a pleasant working environment, and your assistance in bringing your complaints and concerns to our attention is a necessary first step. (Emphasis in original). The policy was included in the City’s personnel manual. Petitioner was provided with copies of the policy and amendments thereto several times during her tenure with the City. Petitioner conceded that, notwithstanding the policy, she did not report any incidents of harassment or discrimination to either Ms. Looney or Mr. Barlow while she was actively working for the City. The allegations of intimidation and harassment made by Petitioner’s attorney in his August 24, 2011, letter and Petitioner’s allegation of “constant harassment and belittlement by Dave Arcieri” in her workers’ compensation incident report were made only after Petitioner had been off the job for eight weeks. Further, the specific allegations made by Petitioner’s attorney claimed that the City was in violation of section 440.205, Florida Statutes, not that Chief Arcieri or any other City employee was discriminating against or harassing Petitioner because of her age, gender, disability, or perceived disability. The evidence produced at the hearing established that Petitioner sustained an injury to her back, most likely due to an altercation with a detainee on June 16, 2011, that necessitated surgery and a rehabilitation process that was not complete even at the time of the hearing in May 2014. The City carried Petitioner as an employee until all of her available leave had been used and then for another 74 days on an unpaid leave of absence. The City had no legal obligation to grant Petitioner an unpaid leave of absence but did so in the hope that Petitioner would be able to return to work in January 2012. As of the termination date of February 24, 2012, Petitioner had been away from her job for more than six months, had not been cleared by a physician to do work of any kind, and would not receive a physician’s clearance to work any sooner than May 3, 2012. The City could have consented to carry Petitioner even longer on an unpaid leave of absence, but it was not discriminatory for the City to make the business decision to terminate Petitioner’s employment. Petitioner offered insufficient credible evidence to refute the legitimate, non-discriminatory reason given by the City for the termination of her employment. Petitioner offered insufficient credible evidence that the City's stated reason for the termination of her employment was a pretext for discrimination based on her age, gender, disability, or perceived disability. Petitioner offered insufficient credible evidence that the City discriminated against her because of her age, gender, disability, or perceived disability in violation of section 760.10, Florida Statutes. Petitioner offered insufficient credible evidence that her dismissal from employment was in retaliation for any complaint of discriminatory employment practices that she made while an employee of the City.
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 finding that the City of Edgewater did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 30th day of January, 2015, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of January, 2015.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged by Petitioner in her Employment Charge of Discrimination.
Findings Of Fact During all times material to this case, Petitioner was employed by Respondent as a park ranger at Alafia River State Park in Lithia, Florida. On January 1, 2010, Petitioner became a full- time park ranger, and from this date through June 5, 2014, Petitioner was supervised by Coy Helms, the manager for Alafia River State Park. Respondent terminated Petitioner’s employment for “poor performance and conduct unbecoming a public employee.” The events that led to Petitioner’s termination from employment with Respondent occurred on March 28, 2014. Petitioner is a 40-plus-year-old Christian female, who identifies as being of Greek and Native American origin. Petitioner describes her skin color as “olive.” Background Information On November 18, 2013, Petitioner received a written reprimand from Coy Helms, who at the time served as park manager at Alafia State Park and Petitioner’s immediate supervisor. Petitioner was reprimanded for insubordination and conduct unbecoming a public employee. According to the reprimand, Petitioner had interactions with certain park volunteers that resulted in complaints being filed with Mr. Helms. The written reprimand advised that “THIS IS AN OFFICIAL WRITTEN REPRIMAND [and that] FUTURE VIOLATIONS MAY RESULT IN FURTHER OR MORE SEVERE DISCIPLINARY ACTION, UP TO AND INCLUDING DISMISSAL.” Petitioner refused to sign the reprimand when the same was presented to her by Mr. Helms. In early December 2013, a few weeks after receiving the written reprimand, Petitioner verbally reported to Valinda Subic that during the summer of 2011, Petitioner was inappropriately touched on the ear by her co-worker, Ronald Stevens. Ms. Subic advised Rae Kelly, from Respondent’s bureau of human resource management, of Petitioner’s complaint, and on December 6, 2013, Ms. Subic and Ms. Kelly contacted Petitioner to get a statement from her about the incident. Petitioner advised that she did not wish to make a statement about the incident but would provide follow-up documentation in support of her harassment allegations at a later time. After several unsuccessful attempts to secure from Petitioner information supporting her harassment allegations, Ms. Kelly informed Petitioner that if the information that Petitioner promised was not received by March 12, 2014, the harassment allegation investigation would be closed. There is no evidence of record indicating that Petitioner ever provided additional information to Respondent in support of her allegation of harassment by Mr. Stevens. Termination of Employment On March 28, 2014, at approximately 7:30 a.m., Petitioner met with Mr. Helms to discuss work plans for the day. It was understood that Petitioner would be doing yard maintenance work at the park’s north gate. In addition to the yard maintenance work, Mr. Helms assigned Petitioner an additional work-related task of placing an out-of-order sign on the restroom facility near the north gate. In order to perform her work-related tasks, Respondent assigned Petitioner a DEP-owned Ford Ranger pick-up truck. Mr. Helms, within a few hours of assigning tasks to Petitioner, went to the north gate area to verify that Petitioner had completed her assignments. When Mr. Helms arrived at the north gate, he did not see Petitioner. Mr. Helms noted that the out-of-order sign had been placed on the restroom as directed, but that Petitioner had failed to perform the yard maintenance work. Seeing that Petitioner had not completed her work assignment, Mr. Helms then searched for Petitioner throughout the park but was unable to locate her. Mr. Helms then exited the park and went to a nearby Circle K convenience store in a further attempt to locate Petitioner. After waiting for some period of time at the Circle K, Mr. Helms observed Petitioner, while driving her assigned Ford Ranger pick-up truck, enter the convenience store parking lot. Petitioner parked the truck, exited the vehicle, walked towards the store, and then returned to the vehicle without entering the store. Upon reentering the vehicle, Petitioner drove back to the state park. Respondent’s email records show that on April 3, 2014, Mr. Helms submitted a written narrative to Ms. Subic wherein he outlined what he observed on March 28, 2014, with respect to Petitioner, her whereabouts, and her use of DEP’s vehicle. On April 7, 2014, Ms. Subic directed Mr. Helms to speak with Petitioner about what he observed on March 28, 2014. On April 10, 2014, Mr. Helms met with Petitioner to discuss her actions of March 28, 2014. Petitioner testified that during this meeting with Mr. Helms, she explained that on the morning of March 28, 2014, after placing the out-of-order sign on the restroom near the north gate, she left the park in her assigned DEP vehicle to go to the Mobil station to get gas for the vehicle. Petitioner also testified that although she did drive to the Mobil station, she did not purchase gas for the vehicle, but instead went to the Sweetbay market located next to the Mobil station where she filled a personal prescription and purchased a sympathy card for the family of a deceased friend. Petitioner further testified that after leaving Sweetbay, she went to Ace Hardware. Petitioner has no specific recollection of why she stopped at Ace Hardware and did not present any evidence indicating that the visit to the store was for work-related reasons. Finally, after leaving Ace Hardware, Petitioner then drove to the home of the bereaved to deliver the sympathy card that she purchased from Sweetbay. In explaining her actions on March 28, 2014, Petitioner claims that Mr. Helms allowed employees to conduct personal business if the personal business did not cause the employees to deviate from their authorized travel route related to DEP official business. Petitioner’s statement regarding Mr. Helms may generally be true; however, under the facts of the present case there is no credible evidence that Petitioner left the park on March 28, 2014, for anything other than reasons related to the handling of her personal affairs. Succinctly stated, Petitioner put 50 miles on DEP’s vehicle on March 28, 2014, and none of these miles were related to the operation of Alafia River State Park. By correspondence dated April 28, 2014, Scott Robinson, on behalf of Respondent, informed Petitioner that it was the intent of Respondent to terminate her employment with the agency for reasons related to her actions of March 28, 2014. Following Petitioner’s predetermination conference, Mr. Robinson, by correspondence dated June 5, 2014, informed Petitioner that her employment was being terminated due to her actions of March 28, 2014. Mr. Robinson also informed Petitioner that the written reprimand she received on November 18, 2013, was a factor in Respondent’s decision to terminate her employment. Petitioner did not offer any evidence, direct or circumstantial, that in any way establishes that she was subjected to discriminatory animus, or that Respondent’s decision to terminate her employment was motivated by reasons related to her allegation of sexual harassment by Mr. Stevens.1/ Respondent had legitimate non-discriminatory reasons for terminating Petitioner’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Florida Department of Environmental Protection, did not commit unlawful employment practices as alleged by Petitioner, Catherine M. Lecas, and denying Petitioner's Employment Charge of Discrimination. DONE AND ENTERED this 30th day of August, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2016.
The Issue Whether Respondent Eastern Florida State College (EFSC) engaged in discriminatory employment practices and retaliation, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Garrett is a 53-year-old African American woman. EFSC is a public college in Brevard County, Florida. For the time period relevant to this matter, EFSC is, and has been, her employer. On July 9, 2018, Darla Ferguson informed Ms. Garrett that EFSC eliminated her position as e-Learning Coordinator. EFSC did not fill Ms. Garrett’s position in the e-Learning department; rather, the prior job duties were assigned to other members in the e-Learning department. After eliminating the position of e-Learning Coordinator, EFSC offered Ms. Garrett the position of Coordinator of the Office of Undergraduate Research (OUR). The OUR department supports and promotes research opportunities among undergraduate research students through EFSC’s four campuses. Ms. Garrett accepted EFSC’s offer, and Ms. Garrett became EFSC’s first employee to hold the position as Coordinator of OUR. In lieu of offering Ms. Garrett the position of Coordinator of OUR, EFSC could have laid off Ms. Garrett following the elimination of her position as e-Learning Coordinator. However, rather than laying her off, EFSC found a new position for Ms. Garrett. Following her transfer to the position as Coordinator of OUR, Ms. Garrett’s salary and benefits remained unchanged from her prior position as e-Learning Coordinator. On July 10, 2018, Ms. Garrett met with Dr. Sandra Handfield, Scott Herber, and Dr. Ashley Spring to discuss Ms. Garrett’s new position as Coordinator of OUR. At that meeting, Dr. Handfield—who was Ms. Garrett’s new supervisor—informed Ms. Garrett that Dr. Spring and Mr. Herber were the founders of OUR. Prior to Ms. Garrett’s arrival as Coordinator of OUR, Dr. Spring and Mr. Herber, who were full-time faculty members, oversaw the OUR program. Dr. Handfield also informed Ms. Garrett that should she have any questions regarding her position as Coordinator of OUR, she should consult with Dr. Spring and Mr. Herber. As of the date of the final hearing, Ms. Garrett remained employed by EFSC as the Coordinator of OUR, and continues to receive the same salary and benefits that she received when she was the e-Learning Coordinator. Allegations of Adverse Employment Action EFSC originally intended for the Coordinator of OUR to be a Director, and possess a doctorate degree. However, EFSC later changed this position to Coordinator, which did not require a doctorate degree, and which had a lower salary. Ms. Garrett never applied for the Director of OUR position, and she does not have a doctorate degree. Ms. Garrett testified concerning her belief for the reason that EFSC transferred her to the Coordinator of OUR position, stating: I believe they did that because the intent was to put me in a position that was beyond my reach so that when I had issues and problems, they could use that and tie it with this position in order to say that I could not do the job. On April 12, 2019, Ms. Garrett received a six-month performance evaluation covering her first six months in her position as Coordinator of OUR. Dr. Handfield provided the performance evaluation approximately four months after the performance period ended. The performance evaluation indicated that Ms. Garrett was deficient in the areas of teamwork, valuing differences, and communication. Following the performance evaluation, Ms. Garrett did not lose any pay or benefits, and nothing adverse happened to Ms. Garrett as a result of the performance evaluation. Ms. Garrett testified that she believed Dr. Handfield gave her that evaluation “as a form of retaliation[,]” but not on the basis of her race, age, or gender. She further testified as follows: Q. Okay. But just to be clear, not gender, age, or race. You think it’s retaliation, what she did, correct? A. Correct. Q. Okay. And what was she retaliating against you for in your view or what facts do you have that it was for retaliation? A. I believe it was retaliation based on the input from the faculty members, based on the interactions we had during the actual performance review period, which would have been July 9th, 2018, until January 9th, 2019. Q. So based on the interaction you had with Dr. Handfield, Dr. Spring and Mr. Herber for the six months before that; is that what you’re saying? A. Yes In January 2019, Ms. Garrett requested that she use Canvas shell computer software to enable her to build an orientation outline. EFSC denied this request, because it would not generate money. Allegations of Comparator Ms. Garrett identified Justin Looney, a 38-year-old white male, as a comparator in support of her discrimination claim.1 Ms. Garrett’s testimony was that Mr. Looney was an EFSC employee working as an Academic Services Coordinator at EFSC’s Patrick Air Force Base campus; upon the closing of that campus, EFSC eliminated Mr. Looney’s position and, similarly to Ms. Garrett, transferred him to a newly-created position in which he received the same salary and benefits. 1 At the final hearing, Ms. Garrett also mentioned Marian Sheltman as a possible comparator, stating that she was a white female. However, Ms. Garrett failed to introduce any additional facts or evidence concerning Ms. Sheltman’s status or to explain how the undersigned could consider Ms. Sheltman as a valid comparator. The undersigned finds that Ms. Garrett failed to establish Ms. Sheltman as a comparator in this matter. Ms. Garrett contends that EFSC treated Mr. Looney differently, during his transfer, in that EFSC provided Mr. Looney more notice time between the elimination of his prior position and the transfer to his new position. Ms. Garrett also contends that EFSC treated Mr. Looney differently than her because Mr. Looney was Dr. Handfield’s son-in-law. Allegations of Hostile Work Environment Ms. Garrett testified that at the July 10, 2018, meeting, Dr. Spring commented about the uncleanliness of the OUR office, and recommended that Ms. Garrett obtain a broom and dustpan to keep the office clean. Ms. Garrett also testified that she declined to assist Dr. Spring in hanging posters on the wall of the OUR office. Ms. Garrett also testified that Dr. Spring noticed that the OUR signage was covered up on the outside of the building, and asked Ms. Garrett to correct this. Ms. Garrett testified that in subsequent meetings with Dr. Handfield, she “shared [her] concerns regarding the work environment[,]” and stated that she did not feel comfortable with the things Dr. Spring and Mr. Herber asked of her because these things “were in violation of college policy.” Ms. Garrett testified that Dr. Spring micromanaged her role as the Coordinator of OUR; for example, Dr. Spring continued to process online student research forms, and coordinated the Fall 2018 OUR board meeting. Ms. Garrett also testified that Dr. Spring opened the OUR online student forms too early, which prevented Ms. Garrett from matching faculty mentors with student applicants.2 Ms. Garrett also testified that Dr. Spring made decisions concerning the OUR without consulting with her. Ms. Garrett testified that Dr. Spring would send her e-mails asking if Ms. Garrett had completed the work requested of her. 2 Ms. Garrett also testified that Mr. Herber was not involved in micromanaging her role as the Coordinator of OUR. Ms. Garrett testified that Dr. Spring told Ms. Garrett what she should be doing, and would become vocal with her dissatisfaction of Ms. Garrett’s job performance. Ms. Garrett testified that she did not know why Dr. Spring engaged in any of these actions. After a November 2018 meeting with Dr. Spring, Ms. Garrett testified that her work atmosphere became “more tense … in terms of Dr. Spring and Mr. Herber starting to make comments about allegations about my work.” She further testified that after this meeting, Dr. Handfield “started issuing directives[,]” such as requiring Ms. Garrett to first ask Dr. Spring and Mr. Herber for input prior going to other EFSC campuses to host information tables. Ms. Garrett claimed that she was subjected to a hostile work environment in which “in every meeting that I planned and hosted, Dr. Spring and Mr. Herber would say disparaging comments during the meeting.” For example, “[t]hey would talk across me and I did not reply.” Although Dr. Handfield was Ms. Garrett’s supervisor, Ms. Garrett testified that Dr. Handfield openly discussed supervision of the OUR with Dr. Spring and Mr. Herber. Findings of Ultimate Fact Ms. Garrett presented no persuasive action that EFSC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race-based, sex-based, or age-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age discrimination. Ms. Garrett presented no persuasive evidence that EFSC’s actions subjected her to harassment based on race, sex, or age. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age harassment. Ms. Garrett presented no persuasive evidence that EFSC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Garrett presented no persuasive evidence that EFSC’s actions were sufficiently severe or persuasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record upon which the undersigned could make a finding of hostile work environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Mary F. Garrett’s Petition for Relief. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Mary F. Garrett Apartment 2508 2741 Caribbean Isle Boulevard Melbourne, Florida 32935 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on May 10, 2005.
Findings Of Fact Petitioner is an African-American male1/ who was employed by Respondent from 1998 until his resignation on May 13, 2004. Respondent, the City of Deland (City), is an employer within the meaning of the Florida Civil Rights Act. At all times while he was employed by Respondent, Petitioner worked in the City's Utilities Department, Water Production Division. Petitioner began his employment as a Maintenance Worker I and was promoted to Maintenance Worker II in 2003. A Maintenance Worker II is responsible for the upkeep of the wells and plants and performs a variety of semi-skilled manual tasks including laying pipe, pouring and forming concrete, installing water meters, mowing, fence maintenance, digging, cleaning, painting, simple maintenance on vehicles and equipment, yard maintenance, routine custodial work, and minor repairs. The Water Production Division is responsible for the care and maintenance of the City's drinking water wells. The City owns 11 wells and seven water production plants. The plants are drinking water class "C" plants. John Stanberry is the Chief Water Plant Operator for the City. He has been in that position since 1999 and has worked for the City for 19 years. At all times material to this proceeding he has been either Petitioner's immediate supervisor or his second-level supervisor. Petitioner received "above standard" ratings from Mr. Stanberry on his 1999, 2000, and 2001 performance appraisals. These ratings were endorsed (given a second-level rating) by Robert Harrison, the Deputy Utilities Director. On each of his performance appraisals, the City encouraged Petitioner to begin a class "C" drinking water course to obtain a drinking water certification or license. Petitioner was also encouraged verbally by his supervisors to obtain this certification. In order to obtain this certification, a person must pass a state examination and obtain one year's experience in actual plant operations. Obtaining this certification would have allowed Petitioner to advance within the Department and become a plant operator. The "well route" is a daily operation that must be performed by a person holding at least a class "C" license. Lloyd Joiner holds such a license and is directly responsible for the well routes. He is required to take daily well readings and note the well pumpage and the chemicals used at each water plant. He is also required to perform daily well functions, such as maintenance, repairs and hauling away hazardous materials. Because of the hazards involved in this work, a second person is required to accompany Mr. Joiner on the well route. If the plant operator is out sick or on vacation, the position is temporarily filled by a maintenance worker. During 2001, the plant operator position which served as the second person on the well route became vacant. The position was advertised, but the City did not receive any applications as there was a shortage of water operators in the state. Petitioner was assigned to temporarily fill-in on the well route. Consequently, Petitioner's primary focus changed from performing regular maintenance work to performing day-to- day well route operations. Petitioner was informed by his supervisors that he would be permitted to study for the class "C" drinking water exam during work hours and that he would not be able to stay on the well route permanently if he did not get the class "C" certificate. In 2002, Petitioner's performance appraisal was completed by Lloyd Joiner, Assistant Chief Plant Operator and was endorsed by John Stanberry. Again, Petitioner received an "above standard" rating. Petitioner was then promoted to Maintenance Worker II in 2003. In 2003, Petitioner had gained the necessary work experience to obtain the drinking water license but had not enrolled in any course to enable him to take the certification examination. Mr. Stanberry removed Petitioner from the well route and returned him to regular maintenance duties. At that time, another Maintenance Worker II, Leo Woulard, had enrolled in a course to obtain his drinking water certificate but needed the necessary work experience to obtain his certificate. The decision was made by Deputy Director Robert Harrison and Mr. Stanberry to replace Petitioner on the well route with Mr. Woulard. Mr. Woulard is an African- American. Petitioner was not pleased that he was taken off the well route and returned to regular maintenance duties. After Petitioner was returned to regular maintenance duties, Mr. Stanberry observed what he believed to be unsatisfactory work by Petitioner. Petitioner's 2003 job performance evaluation was again completed by Mr. Joiner and endorsed by Mr. Stanberry. Mr. Joiner gave Petitioner high scores on the well route work. Mr. Stanberry, however, rated Petitioner's work in performing his regular maintenance duties and gave him low scores in three areas. This was the first time since Petitioner began his employment for the City that Mr. Stanberry gave him below standard scores. Notwithstanding these lower scores, Petitioner received an "above standard" rating on his 2003 performance appraisal and received a merit pay increase. Petitioner did not regard this performance appraisal as discriminatory. On September 9, 2003, which was immediately after the 2003 performance appraisal, Mr. Stanberry wrote a memo to Petitioner as a written backup to verbal counseling he had given to Petitioner: This memo is to inform you of your responsibility when assigned work duties. When I give you a task to do, I expect the job to be done. I want the job completed in a timely manner with good results. I don't want corners to be cut or jobs to be avoided because you don't feel it's your responsibility. If you have questions about a task, you need to ask me and make sure you understand what is expected of you in the assigned job or make sure it's done better than what I expect. I don't feel like you do projects to the best of your abilities and I would like to see improvement. This memo was not considered formal disciplinary action and was, therefore, not placed in Petitioner's personnel file. The September 9, 2003, memo was the first time that Mr. Stanberry had issued a counseling memo to Petitioner and is what Petitioner perceives to be the first incident of discrimination by Mr. Stanberry towards him. Petitioner's allegations regarding discrimination involve only Mr. Stanberry. Petitioner asked Mr. Stanberry to clarify the September 9, 2003, memo. The next day, Mr. Stanberry wrote a follow-up memo which read as follows: This memo is to clarify the previous memo. You were assigned to clean well houses for three days on August 27, 28, and 29 upon my inspection on Sunday, August 31st I found that you had done very little cleaning and had not cleaned three well sites at all. In three days time all of the wells should have been spotless. I have told you time and again what to clean and how, and you failed to do this completely again. It is my opinion that your performance related to this assignment does not meet minimum standards. Mr. Stanberry gave this memo to Petitioner in person at a meeting with Petitioner and Mr. Joiner. At this point, things began to deteriorate between Petitioner and Mr. Stanberry. Mr. Stanberry asked Petitioner to mow the grass at the main water plant but Petitioner refused. Petitioner made reference in this meeting to the Taliban either hiring or looking for fighters. Mr. Stanberry felt threatened by this statement. On the afternoon of September 10, 2003, Petitioner met with Mr. Stanberry, Mr. Joiner, and Mr. Harrison to discuss what happened that morning. Petitioner was belligerent at this meeting and stated that he did not want to work for Mr. Stanberry any longer and would not report back to work until he had been transferred to another department. On September 11, 2003, Petitioner reported to work at 7:00 but refused to work for Mr. Stanberry. Instead, Petitioner waited for Mr. Harrison to arrive. Mr. Harrison allowed Petitioner to complete a Leave of Absence request form for six days of vacation to begin the next day. Petitioner then left the work premises without permission and without clocking out and did not return to work that day. On September 11, 2003, Mr. Stanberry wrote a memo to Jim Ailes, Utility Director, informing him of the events of the past two days regarding Petitioner's evaluation and meeting with supervisors. On September 16, 2003, Mr. Stanberry wrote another memorandum to Mr. Ailes outlining violations of personnel rules committed by Petitioner and requesting a meeting with Mr. Ailes to get recommendations as to what disciplinary actions should be taken against Petitioner. After returning from his vacation on September 23, 2003, Petitioner again refused to perform work assigned to him by Mr. Stanberry. Mr. Stanberry informed Mr. Ailes of this. As a result, Mr. Ailes issued Petitioner a written reprimand for "insubordination by disobeying or refusing to follow a direct order or by refusing to perform assigned work or to comply with an official and legal supervisory directive or by demonstrating an antagonistic, insolent, disrespectful or belligerent attitude toward management." It was Mr. Ailes' decision to issue the written reprimand. Under the City's disciplinary guidelines, insubordination is an offense for which an employee may be discharged upon the first offense. However, Mr. Ailes decided to issue a written reprimand in conformance with the City's step disciplinary action process. Mr. Stanberry's memos to Petitioner were considered written confirmation of oral reprimands. This written reprimand was the next step of discipline. On September 24, 2003, another incident occurred in which Petitioner again refused a work assignment. Mr. Stanberry reported this to Mr. Ailes. As a result, Mr. Ailes suggested that Petitioner receive his work assignments from Mr. Joiner instead of Mr. Stanberry in an attempt to diffuse this situation. However, this did not solve the matter. Petitioner requested a transfer. Mr. Ailes inquired of other department heads as to whether there were any available positions and whether or not the other department heads were willing to take Petitioner as an employee. There were no positions in the other branches in the utilities department to which Mr. Ailes could transfer Petitioner. He also attempted to transfer Petitioner outside the Utilities Department, including Mr. Davenport of the Public Works Department. However, Mr. Davenport was not willing to allow the transfer. Mr. Davenport is an African-American. Further, Mr. Ailes directed Petitioner to visit the City's employee assistance program (EAP) in a memo dated October 1, 2003. A series of incidents happened during the first half of October 2003 in which Petitioner continued to refuse or challenge assignments made to him by his supervisors. On October 13, 2003, Petitioner met with Mr. Stanberry, Mr. Harrison and plant operator Jeff Hunter. The purpose of the meeting was to discuss and resolve allegations of an incident that occurred a year prior to this time. The incident concerned a telephone call made by Petitioner's girlfriend, Jane Wilkinson. According to Ms. Wilkinson, she called Petitioner's workplace for Petitioner, and the phone was answered by Mr. Hunter, who asked her whether or not she and Petitioner were married and would have children. Mr. Hunter had been counseled not to make inappropriate comments to anyone when answering the phone shortly after the incident occurred. However, in this meeting on October 13, 2003, Petitioner told Mr. Hunter that he would "kick his ass" if he ever spoke to his girlfriend again and made other inappropriate comments. Another incident happened on October 14, 2003, when Petitioner dropped a weed-eater spool on Mr. Stanberry's desk. Mr. Stanberry instructed Petitioner to work on something else until a new spool was purchased but Petitioner refused. Petitioner made inappropriate comments to Mr. Stanberry. In response, Mr. Stanberry told Petitioner that he was acting like a "damn fool." Mr. Stanberry received a verbal reprimand from Mr. Ailes for making that statement to Petitioner. Mr. Ailes informed Mr. Stanberry that if any further similar conduct occurred that progressive disciplinary action would be taken. On October 15, 2003, Mr. Ailes issued a Notice of Proposed Discipline to Petitioner in which Mr. Ailes proposed a three-day suspension without pay and a letter of reprimand and warning for violations of the City's personnel rules on October 9, 10, 13, and 14, 2003. The notice listed several offenses, including four which were identified as dismissal offenses, and instructed Petitioner, "[Y]our continuous challenge of every assignment given to you must stop. The disrespectful, belligerent, threatening, and defamation of character of your immediate supervisor must stop." The letter also noted that Petitioner had refused to contact the City's EAP despite having been instructed to do so on three occasions. Petitioner did not contest the proposed disciplinary action and served the three-day suspension. Another incident occurred on October 27, 2003, resulting from a disagreement between Mr. Stanberry and Petitioner concerning an assignment of mowing the grass at a well station. Petitioner told Mr. Stanberry that he was acting "freaked out" and that Petitioner could not understand why. Petitioner said that he would understand Mr. Stanberry being "freaked out" if he got a call about his son being run over by a truck or turning up missing. Mr. Stanberry was alarmed about this comment and believed it to be a threat against his family. Based upon the October 27, 2003, incident, Petitioner was placed on paid administrative leave pending an investigation. Mr. Ailes made an appointment for Petitioner with the EAP that day in an effort to diffuse the situation. Mr. Ailes recommended that Petitioner be terminated from employment in a Notice of Proposed Discipline. A predetermination hearing was held on November 7, 2003, in which Mr. Ailes concluded that Petitioner committed all of the offenses outlined in the October 27, 2003, Notice of Proposed Discipline. However, Petitioner was not terminated. Petitioner was required to write a letter of apology to Mr. Stanberry, refrain from making threats to co-workers and supervisors, and report to another supervisor, Mr. Hadley, for his work assignment. Additionally, Petitioner was placed on probation for a 90-day period and warned that if any further occurrence happened during that period, he would be terminated immediately. On May 3, 2004, Mr. Stanberry went to Mr. Hadley, another supervisor, to discuss daily duties. Petitioner was in Mr. Hadley's office at the time. Mr. Stanberry wanted Petitioner to do painting and other tasks within his job description, but Petitioner responded that it was not his job to do so. Mr. Stanberry told Petitioner that these duties were his assignment for the day, and that if he did not want to complete them, he could leave. Petitioner and Mr. Stanberry argued. Petitioner called Mr. Stanberry a "faggot" and a "fucking faggot" and threatened to "whip [Mr. Stanberry's] ass." Mr. Stanberry responded by telling Petitioner that if Petitioner came anywhere near him or his family that Mr. Stanberry would kill him. As a result of this altercation, Mr. Ailes determined that both Petitioner and Mr. Stanberry should be disciplined. As for Mr. Stanberry, Mr. Ailes determined that Mr. Stanberry should receive a three-day suspension without pay. Mr. Stanberry waived his predetermination hearing and wrote a letter of apology. Based upon Mr. Stanberry's apology letter and his years of service to the city, Mr. Ailes reduced the suspension to a two-day suspension and required Mr. Stanberry to attend a conflict management and confrontational skills seminar. He further advised Mr. Stanberry that if further incidents occurred, it could lead to termination. As for Petitioner, Mr. Ailes issued a Notice of Proposed Disciplinary Action on May 6, 2004, in which he recommended that Petitioner be terminated and setting a date of May 14, 2004, for a predetermination hearing. Prior to a final decision on the proposed termination, Petitioner resigned from his employment from the City. He did not request a predetermination hearing. Mr. Stanberry played no role in the decision to discipline Petitioner for either the October 27, 2003, incident for which he was suspended, nor for the May 3, 2004, incident. Those decisions to discipline Petitioner were solely Mr. Ailes'. Mr. Ailes proposed different levels of discipline for Mr. Stanberry and Petitioner because they were at different levels of the progressive discipline process. Petitioner had already received both oral and written reprimands and had been suspended for misconduct. Further, Petitioner had been recommended for termination as a result of the October 27, 2003, incident, but was instead placed on probation and allowed to return to work. In contrast, Mr. Stanberry had received only one previous verbal warning. Although the next step in the progressive discipline process for Mr. Stanberry would have been a written reprimand, Mr. Ailes believed the circumstances warranted an unpaid suspension. There was no evidence presented that establishes or even suggests that Mr. Ailes' decision to impose discipline on Petitioner was based on race. The only disciplinary actions imposed on Petitioner from Mr. Stanberry were the verbal and written counseling memo on September 9, 2003. Mr. Stanberry had written memos of a similar nature on at least two occasions to Caucasian employees. There is no evidence that Mr. Stanberry's actions toward Petitioner were based on race. On August 2, 2004, Petitioner threw a cinder block through the front glass doors of City Hall. Petitioner was charged with Throwing a Deadly Weapon. Petitioner pled nolo contendere to the charge. Adjudication was withheld and the court placed him on probation. He was later charged with violation of his probation. Petitioner ultimately pled guilty to the probation violation and he was adjudicated guilty of throwing a deadly missile at a building.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 20th day of March, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 20th day of March, 2006.
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 March, 2018.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that Mr. Duverglas is a male and Black and that his national origin is Haitian. No dispute exists that he is a member of the protected class as it relates to discrimination. No dispute exists that, at all times material hereto, the City was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Mr. Duverglas began his employment with the City in 1996 as a Park Ranger. An inference is drawn and a finding is made that Mr. Duverglas wore a uniform type of clothing for his position. In 2002, some employees complained, among other things, that the vehicles that Mr. Duverglas drove and in which he rode often were left reeking of urine. On December 17, 2002, a counseling session was held with Mr. Duverglas by his supervisor, Kelton Wayns, regarding, among other things, Mr. Duverglas’ personal hygiene and cleanliness of vehicles. In 2003, a complaint was received by Mr. Wyans regarding Mr. Duverglas urinating in a drain on the floor in a bathroom, instead of a urinal. Mr. Wyans investigated the complaint, and the investigative report was reviewed by the Park Ranger Supervisor and Foreman, Earnest Jones. Mr. Jones concluded that the allegation could not be substantiated, but he did counsel Mr. Duverglas that, as an employee of the City, he (Mr. Duverglas) must conduct himself professionally, at all times, and that any unsanitary behavior would not be tolerated. Performance evaluations of Mr. Duvergals were conducted. The categories for the rating of the evaluations were unsatisfactory, marginal, satisfactory, above satisfactory, and outstanding. At the review ending date of April 29, 2001, he received a satisfactory rating; and at the review ending dates of October 29, 2001, October 27, 2002, and October 27, 2003, he received an above satisfactory rating. In February 2004, due to workforce reductions, Mr. Duverglas was bumped and reassigned to the Grounds Maintenance Division as an Apprentice Maintenance Worker. In that position, Mr. Duverglas was assigned to a roving-crew of three to four workers who picked-up litter in a quadrant of the City. An inference is drawn and a finding is made that he wore a uniform type of clothing for his position. Also, around November 2004, Mr. Duverglas was hired as a part-time Park Ranger. Any problems, regarding Mr. Duverglas in this position, were directly dealt with by Mr. Jones. On December 9, 2004, Mr. Duverglas, as a maintenance worker, had a problem arriving at work timely. On December 15, 2004, he was given a letter of reprimand by his supervisor, John Neal, for arriving to work late and for failing to call-in regarding his tardiness. Additionally, the reprimand indicated that future occurrences could result in more severe disciplinary action up to and including dismissal. In January 2005, Mr. Neal, advised Mr. Duverglas that he was spending too much time on his (Mr. Duverglas’) cell phone. At that time, Mr. Duverglas informed Mr. Neal that a co- worker, L. C. Orr, had made offensive comments about Haitians. Mr. Neal had no knowledge of Mr. Orr’s alleged comments before being informed of them by Mr. Duverglas. Mr. Orr was aware of Mr. Duverglas’ Haitian ancestry. However, Mr. Neal was not until he was informed of Mr. Orr’s alleged comments. After that meeting and also in January 2005, Mr. Duvergals made a complaint with the City’s Office of Professional Standards (OPS) against Mr. Orr. Mr. Duverglas complained that Mr. Orr had made offensive comments about Haitians and that the offensive comments had contributed to a hostile work environment. After making the complaint with OPS, Mr. Duverglas was counseled by Mr. Neal regarding his (Mr. Duverglas’) poor work performance. At that time, Mr. Duverglas informed Mr. Neal that he had made a complaint against Mr. Orr with OPS. Mr. Neal had no knowledge of the OPS complaint before being informed of it by Mr. Duvergals. Mr. Duvergals also complained to OPS that Mr. Neal had retaliated against him when Mr. Neal met with him to counsel him about his performance deficiencies after his (Mr. Duverglas’) OPS complaint. Mr. Duverglas informed Mr. Neal, during the meeting, that he (Mr. Duverglas) had made a complaint to OPS against Mr. Orr regarding Mr. Orr’s derogatory comments about Haitians. Mr. Neal was not aware of Mr. Duverglas’ complaint against Mr. Orr until Mr. Duverglas informed him (Mr. Neal) of it. OPS investigated the complaint. OPS was unable to question Mr. Orr because he had retired from the City. Following an investigation, OPS determined that the allegations were unfounded and without merit. During his work as a maintenance worker and his part- time work as a Park Ranger, complaints regarding Mr. Duverglas’ personal hygiene occurred in both positions. Complaints were made regarding his clothing and body having the odor of urine and his trousers being wet in the front, and regarding the odor of urine being left in vehicles and lingering in the Park’s office. Mr. Duverglas was counseled on several occasions regarding these issues and notified that, if the problems continued, stronger action, than counseling, would be taken to address the problems. When Mr. Duverglas was a part-time Park Ranger, only one Park Ranger, Alan Brown, did not complain about Mr. Duverglas smelling of urine, wetting the front of his trousers, or leaving the smell of urine in vehicles. The evidence demonstrates that Mr. Jones, Mr. Duverglas’ supervisor as a Park Ranger, was aware of Mr. Duverglas’ Haitian ancestry. The evidence fails to demonstrate that any of Mr. Jones’ actions were taken because of Mr. Duverglas’ Haitian ancestry. In March 2005, Mr. Duverglas, as a maintenance worker, was sent by the City for a Fit-For-Duty evaluation, which was a medical evaluation to determine his fitness for duty. On March 22, 2005, a Fit-For-Duty evaluation was performed. The report by the examining physician indicates, among other things, that a prior evaluation was performed on March 11, 2005, and Mr. Duverglas was found fit for duty; that another evaluation was requested due to continued concerns regarding his “cleanliness” at work; that a concern existed as to whether he was suffering from incontinence; that he refused to allow the physician to perform an abdominal and genital exam; that his personal physician wrote a note to the examining physician that Mr. Duverglas did not suffer from incontinence and was fit to return to work with no restrictions; and that, based upon the representations by Mr. Duverglas’ personal physician, the examining physician had no choice but to find Mr. Duverglas fit for duty and clear him to return to work. Mr. Duverglas denied, and continues to deny, that he suffered or suffers from a medical condition, i.e., incontinence. The evidence is insufficient to demonstrate that Mr. Duverglas suffered or suffers from incontinence. The evidence demonstrates that Mr. Duverglas was fit- for-duty. In April 2005, Teresa “Terry” Reynard, Assistant Director of Parks and Recreation, who had the responsibility for park maintenance, transferred Mr. Duverglas, in his position as a maintenance worker, from one location to another location, Carter Park. Ms. Reynard’s intent was to accommodate what she perceived to be a problem with Mr. Duverglas’ personal hygiene by placing him in a park, Carter Park, in which several restrooms were available and accessible. However, the complaints continued at both of Mr. Duverglas’ jobs with the City. Mr. Duverglas’ supervisors counseled him on several occasions regarding his hygiene, the smell of urine, and trousers being wet in the front. At one point, Mr. Duverglas, as a maintenance worker, was notified that he should bring a change of clothing to work in an effort to eliminate the odor and smell of urine. Mr. Duverglas admits that he may have urinated on himself maybe once or twice but nothing extraordinary. Also, complaints were made regarding Mr. Duverglas’ excessive cell phone use, instead of working, inadequately performing his work, and unauthorized breaks. Mr. Duverglas admits that he was disciplined for excessive cell use. Mr. Duverglas admits that, on April 14, 2005, he was issued a reprimand for arriving at work late and that was his second violation in six months. Further, he admits that he was notified that the continuation of such conduct could be a basis for termination. On June 13, 2005, Mr. Duverglas was issued a letter of reprimand by Ms. Reynard for lack of productivity. Furthermore, the letter of reprimand notified Mr. Duverglas that his failure to be productive in his work could result in further disciplinary action including termination. On June 15, 2005, Mr. Duverglas was again issued a letter of reprimand by Ms. Reynard for lack of productivity. The letter of reprimand indicated, among other things, that Mr. Duverglas had violated the following General Employees’ Work Rules: Minor Rule 3 – Failure to observe department work schedules (starting time, quitting time, and meal periods). Minor Rule 6: - Unsatisfactory work performance, inefficiency. Minor Rule 7 – Loafing or other abuse of time during assigned working hours. Major Rule 6 – Leaving City premises during working hours without permission of supervisor. Further, the letter of reprimand notified Mr. Duverglas that, among other things, “future occurrences of the same or similar nature will result in more severe disciplinary action up to and including dismissal.” Mr. Duverglas refused to sign the letter of reprimand, but was provided a copy of it. On June 22, 2005, Ms. Reynard issued Mr. Duverglas an “Informational Letter” regarding his personal hygiene, i.e., urinating in his trousers. The Informational Letter provided, among other things, that, despite prior conversations and counseling, he (Mr. Duverglas) continued to have the personal hygiene problems; that his situation was a serious health risk; that, if he soiled his uniform in the future, he would be asked to change his uniform, and, if he failed to have a change of uniform with him at the time, he would be asked to leave work on his own time and not return until he had changed his uniform; and that, if his problem was caused by a medical condition and he wished to request an accommodation, he should do so. On June 24, 2005, Mr. Duverglas was issued a letter of counseling by Ms. Reynard regarding his (Mr. Duverglas’) personal hygiene. The letter of counseling provided, among other things, that Mr. Duverglas had been spoken to and counseled in the past months regarding his personal hygiene, but that the problem had persisted; and that Ms. Reynard had observed, the day before, that Mr. Duverglas’ trousers were wet. Further, the letter of counseling reminded Mr. Duverglas what he was directed to do if he wet his trousers. Moreover, the letter of counseling provided that future occurrences would result in disciplinary action, including dismissal. Mr. Duverglas contends that he was not protected from a threat of violence made by a co-worker Wilmar “Slim” Alexander. On June 29, 2005, Mr. Alexander threatened physical violence against Mr. Duverglas if Mr. Duverglas approached him (Mr. Alexander) in an aggressive manner. On July 5, 2005, Ms. Reynard issued a letter of reprimand against Mr. Alexander for “an inappropriate remark to a coworker.” Further, the letter of reprimand provided, among other things, that the behavior exemplified by Mr. Alexander would not be tolerated and that future occurrences would result in severe disciplinary action including dismissal. The evidence failed to demonstrate that Mr. Alexander exhibited any further violent behavior towards Mr. Duverglas. The evidence failed to demonstrate that the letter of reprimand was not the appropriate punishment for Mr. Alexander’s behavior. The evidence is insufficient to demonstrate that Mr. Alexander exhibited any violent behavior towards Mr. Duvergals prior to Mr. Alexander’s threat. The evidence failed to demonstrate that the City failed to protect Mr. Duverglas from the threat made by Mr. Alexander. On June 30, 2005, Mr. Duverglas was placed on administrative leave with pay pending the City’s investigation that he “may have violated City rules and regulations.” On July 27, 2005, after notice, an informational meeting was held with Mr. Duverglas. Based on the informational meeting, on July 28, 2005, Ms. Reynard issued a written recommendation to Phil Thornburg, Director of the City, regarding Mr. Duverglas. The recommendation provided, among other things, that the persons in attendance at the informational meeting included Ms. Reynard, Mr. Duverglas, and a union representative; that the meeting was held to address several issues including Mr. Duverglas’ personal hygiene, complaints regarding the smell of urine, his performance deficiencies and general loafing, and the report of his urinating in public; and that Mr. Duverglas denied all allegations. Further, the recommendation determined that Mr. Duverglas’ denials, explanations and responses were “incredible and unworthy of belief” and that he had engaged in severe conduct. Ms. Reynard recommended the termination of Mr. Duverglas. Around May 2005, a self-employed painter, Samuel Mitchell, was performing contract work at Carter Park. Mr. Mitchell observed whom he recognized as Mr. Duverglas leaning against a concrete pole with his (Mr. Duverglas’) trousers around his (Mr. Duverglas’) knees, appearing to be urinating, but Mr. Mitchell did not observe a stream of liquid. The area in which Mr. Duverglas was observed was near a residential area, was an area that the general public frequents, and was an area used by school children. Mr. Mitchell perceived the conduct to be inappropriate. Mr. Mitchell spoke with Mr. Duverglas, and Mr. Duverglas vehemently denied that he was the person whom Mr. Mitchell observed. Mr. Mitchell did not wish to report what he observed to the City, but wanted Mr. Duverglas to change the behavior that he (Mr. Mitchell) observed; however, because of the way Mr. Duverglas reacted to his (Mr. Mitchell’s) talking with him (Mr. Duverglas), Mr. Mitchell reported the incident to the City. Mr. Mitchell testified at hearing, and his testimony is found to be credible. Mr. Duverglas denied that he was the person observed by Mr. Mitchell. Mr. Mitchell’s testimony is found to be more credible than Mr. Duverglas’ testimony. Also, at the time of the incident, another person, who was a non-employee of the City, reported the same observation to the City. That person did not testify at hearing. A finding is made that Mr. Duverglas was the person observed by Mr. Mitchell and was the person engaged in the conduct observed by Mr. Mitchell. Further, even though Mr. Mitchell did not observe a stream of liquid, an inference is drawn and a finding is made that, based upon the prior conduct, actions, and behavior of Mr. Duverglas, regarding his personal hygiene and the wetting of the front of his trousers, Mr. Duverglas was urinating. Moreover, a finding is made that the City was reasonable in making a determination that Mr. Duverglas was urinating. The evidence demonstrated that Ms. Reynard was aware of Mr. Duverglas’ Haitian descent. However, the evidence failed to demonstrate that any of her actions were motivated by Mr. Duverglas’ Haitian descent. Mr. Thornburg had the final authority in disciplinary matters regarding the Parks and Recreation Department. By letter dated August 5, 2005, Mr. Thornburg notified Mr. Duverglas that he (Mr. Duverglas) was being suspended, without pay, for 20 days, effectively immediately, and was being dismissed from the City as an Apprentice Maintenance Worker, effective September 2, 2005. The letter was hand-delivered to Mr. Duverglas. The letter provided, among other things, that the action was being taken for continued deficiencies in performance and conduct, setting forth the deficiencies, which were: Despite prior counseling, a transfer to another facility with better access to bathroom facilities and other accommodations, you continued to disregard your personal hygiene and appearance as a representative of the City by urinating in your trousers in public and disregard of proper safety practices and precautions. Your failure to conform your behavior to civilized standards has been the subject of complaints by your co-workers over having to work in offensive, unsanitary and unhealthy conditions and cannot be tolerated. You continued to demonstrate deficiencies in performance of assigned duties by taking unauthorized breaks, excessive use of your personal cell phone in the field during working hours and general loafing. Employees of two City contractors have witnessed you urinating in a public place although restroom facilities were available. City Ordinance 16-75(a)(5) – Public Indecency. Additionally, the letter set forth General Employees’ Work Rules that Mr. Duverglas violated, which were: Major Rule 1 – Any act which might endanger the safety or lives of other [sic]. Major Rule 2 – Refusal to perform work properly assigned by a supervisor. Major Rule 3 – Willful, deliberate or repeated violation of City safety rules, including instances where there is evidence of willful disregard of proper safety practices and precautions while operating City equipment. Major Rule 7 – Deliberately abusing [sic] destroying, damaging or defacing City property, tools, equipment or the property of others on City premises. Major Rule 21 – Neglect of duty. Major Rule 24 – Conduct, either while on or off duty, which tends to reflect discredit upon the City. Major Rule 25 – Employee harassment, abusive conduct towards an employee or a member of the general public. Major Rule 26 – Violation of City Charter, ordinances, or administrative rules and regulations, specifically City Ordinance 16- 75(a)(5) – Public Indecency. Furthermore, the letter provided that Mr. Duverglas had the opportunity to request a hearing, setting forth the procedure for such a request, and indicated the consequences for his failure to request a hearing. City Ordinance 16-75(a)(5) – Public Indecency provides in pertinent part: Offense. It shall be unlawful for any person to commit public indecency. A person commits public indecency when he performs any of the following acts in a public place: * * * (5) Urinates . . . in other than a toilet or washroom . . . . Definitions. “Public place,” for purposes of this section, means any place where the conduct may reasonably be expected to be viewed by others. Penalties. Any person convicted of violating this section shall be deemed guilty of the offense of public decency and upon conviction shall be punished as provided in section 1-6 of this Code. Section 1-6, titled “Penalty for violations,” provides in pertinent part: In this section “violation of this Code” means: Doing an act that is prohibited or made or declared unlawful or an offense by ordinance or by rule or regulation authorized by ordinance . . . . * * * Except as otherwise provided herein, a person convicted of a violation of this Code, shall be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment for a term not to exceed sixty (60) days or by both such fine and imprisonment. . . . The imposition of a penalty does not prevent revocation or suspension of a license, permit or franchise or the imposition of civil fines, civil penalties or administrative sanctions. Administrative sanctions could be imposed for a violation of City Ordinance Section 16-75(5). Mr. Duverglas admits that a violation of City Ordinance Section 16-75(5) is just cause for suspension and dismissal. The ground of public indecency was sufficient, in and of itself, to dismiss Mr. Duverglas from employment. The evidence demonstrated that he committed the act of public indecency as defined in City Ordinance Section 16-75(5). The evidence fails to demonstrate that Mr. Thornburg had any knowledge of Mr. Duverglas’ Haitian ancestry prior to the disciplinary action. Mr. Duverglas requested a hearing from the City. The hearing was held on September 6, 2005. By letter dated September 7, 2005, the City Manager, George Gretsas, notified Mr. Duverglas that, after a review of all the available and relevant information, including that presented at the hearing, the suspension and dismissal was upheld. A grievance under the union contract was filed. On November 21, 2005, the City’s Employee Relations Director issued a “Fourth Step Response Teamster Grievance,” providing, among other things, that a hearing was held on November 9, 2005, in accordance with the grievance, that no evidence was presented to cause the City to modify its decision, and that, therefore, the grievance was denied. An inference is drawn and a finding is made that an arbitration hearing was held on or about May 18, 2006, regarding Mr. Duverglas’ suspension and dismissal. The evidence was insufficient to demonstrate the outcome of the arbitration proceedings, but an inference is drawn and a finding is made that the arbitration decision was not favorable to Mr. Duverglas. On July 24, 2006, Mr. Duverglas filed a Charge of Discrimination with the Broward County Civil Rights Division and the EEOC against the City alleging that the City discriminated against him on the basis of national origin (Haitian) and retaliation in violation of the Florida Civil Rights Act of 1992, as amended. The Broward County Civil Rights Division waived investigation of the charge. The matter was investigated by the FCHR. On January 19, 2007, the FCHR issued a Determination of No Cause and a Notice of Determination of No Cause. Mr. Duverglas timely filed a Petition for Relief with the FCHR against the City.
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 the discrimination complaint of Donald Duverglas against the City of Fort Lauderdale. DONE AND ENTERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 25th day of November, 2008.
