The Issue Whether Respondent terminated the Petitioner from employment based upon the Petitioner’s disability and/or perceived disability in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Respondent is an assisted-living facility/nursing home providing care to elderly individuals and/or individuals needing care on a consistent basis. On March 13th and 17th, 2013, Respondent ran announcements in the Daytona Beach News Journal that it had an opening for a fulltime “houseman.” The same publication also announced openings for CNA’s, and Med Techs, but not for a carpet cleaner. On April 11, 2013, Petitioner appeared at Respondent’s location to submit an application for employment. Both Petitioner and Petitioner’s father had heard from an acquaintance who was employed by Respondent that a position was being created by Respondent for a carpet cleaner. Petitioner was interested in that position since he was experienced in cleaning carpets. There is no indication in this record that Petitioner or his father was aware of the published opening for a “houseman.” As a matter of convenience, Petitioner’s father completed the application because, as he testified, Petitioner was able to complete the application on his own, but not as quickly as the father. Since they had other appointments to get to later that morning, it was decided to have the father fill out the application. The employment application completed by Petitioner’s father included a space for applicants to indicate what type of employment was desired. In this space, Petitioner’s father wrote “carpet cleaning.” Subsequent to the submittal of Petitioner’s application, Respondent’s Director of Environmental Maintenance and Housekeeping, David Hornfeck, took Petitioner on a tour of the facility. During this tour, Mr. Hornfeck advised Petitioner that if hired, his job duties would include housekeeping, maintenance, carpet cleaning, and painting, among others. Respondent does not have and never has had a position limited to cleaning carpets. By letter dated April 17, 2013, Petitioner was conditionally offered the position of housekeeper by Respondent. The letter advised Petitioner that before he could be hired it would be necessary for him to obtain fingerprints, have a background screening, and pass a drug screen. Petitioner successfully completed those requirements. After completing the application process, Petitioner was told by Respondent to return to Respondent’s location to attend orientation. Petitioner appeared at the facility and attended a two-day orientation during which he watched various videos and was oriented to the facility. On April 24, 2013, Petitioner signed a job description acknowledging that he was aware he would be working as a “housekeeper” within the housekeeping department and that he understood the nature and scope of the position. According to the written job description, the position of housekeeper required “Sufficient education to demonstrate functional literacy.” Additionally, under “Essential Functions and Responsibilities,” the job description required that the candidate: be “Able to understand and to follow written and verbal directions”; be “Able effectively to communicate with the staff members and residents through verbal and/or written means”; be able to “Post signs indicating a safety hazard any time housekeeping activities pose environmental hazards to staff, residents, visitors or others in the building”; and be able to “Familiarize self with Material Safety Data Sheets (MSDS) and Universal Worker Precautions for all housekeeping chemicals and cleaning supplies.” Upon successfully completing the orientation, Petitioner was given a name tag with his name and the word “housekeeping” on it. He was told he would be called by Respondent and informed when he would be starting work. Petitioner was hired for the 11:00 p.m. to 7:30 a.m. shift. He would have been the only one working in maintenance during that shift. If needed, Petitioner would have been responsible for the entire facility during his shift. During orientation, it was brought to Mr. Hornfeck’s attention that Petitioner might not have the ability to read well. As a result, Petitioner was invited back to the facility and asked to read some passages from the job description. Petitioner failed to demonstrate sufficient literary skills, which resulted in Mr. Hornfeck advising him that his employment was terminated. Mr. Hornfeck made the decision to terminate the Petitioner’s employment on this basis. Petitioner attended normal classes in school through the end of the sixth grade. However, he was placed in special education classes which were specifically focused on improving his reading skills for the seventh and eighth grade. Thereafter, Petitioner was homeschooled beginning in the ninth grade. Petitioner’s father conceded that even he didn’t realize the extent of his son’s reading difficulties until he reviewed the intellectual, behavior, and academic evaluation report prepared by Dr. JoEllen Rogers, a licensed school psychologist, in August 2013. Psychologist Rogers was retained by Petitioner’s counsel to conduct her evaluation of Petitioner sometime subsequent to Petitioner’s termination by Respondent. Psychologist Rogers’ evaluation reported that Petitioner has a Full Scale I.Q. of 97 and “is currently functioning in the Mild Mental Retardation range of intellectual development.” The job description signed by Petitioner on April 24, 2013, included a space for applicants to indicate “any accommodations that are required to enable me to perform these duties.” Petitioner did not list any desired accommodations. At hearing, Petitioner conceded that he never told any employee of Respondent that he had a disability. When asked on direct examination to describe his need for help reading, Petitioner testified simply that he has trouble reading in that he does not understand some words and that he “can’t read that well.” There was no evidence adduced at hearing which indicated or suggested that Respondent knew Petitioner had taken special education classes in the seventh and eighth grades, or that Respondent had any actual or constructive knowledge of any alleged disability.
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 against Respondent. DONE AND ENTERED this 21st day of July, 2014, 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 21st day of July, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David W. Glasser, Esquire Law Office of David W. Glasser 116 Orange Avenue Daytona Beach, Florida 32114 Dorothy Parson, Esquire Ogletree, Deakins, Nash, Smoak, and Stewart, P.C. 111 Monument Circle, Suite 4600 Indianapolis, Indiana 46204 J. Robert McCormack, Esquire Ogletree, Deakins, Nash, Smoak, and Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Ms. Jensen's charge of discrimination dated May 19, 1995, alleges that her employer, Selma's Cookies, discriminated against her on account of her disability when it fired her on December 5, 1994. The issue for determination in this proceeding is whether that discrimination occurred and, if so, what relief is appropriate.
Findings Of Fact Patricia (Patty) Jensen was 48 years old in November 1994, when she saw the "Help Wanted" sign in Selma's Cookies' window in Altamonte Springs, Florida. Interested in learning new work and in need of earning extra cash Ms. Jensen entered the establishment to inquire about the job. Her interview with Selma Sayin, the company owner, led Ms. Jensen to believe that she would be allowed to work part- time, that Christmas rush was near, and that the company needed someone on the phone to take orders and later to train to do baskets. Ms. Jensen commenced work on or about November 18, 1994. She began working on the front line, taking baked cookie trays off the racks, removing cookies from the trays, putting cookies in bags, and performing similar functions. There were numerous holiday orders for Florida Hospital doctors and the company was busy. Ms. Jensen, working with students on some work-study program, packaged the cookies in tins and boxed the orders for delivery by United Parcel Service. This entailed lifting and weighing boxes and stacking them against a wall. At her age, Ms. Jensen claimed, this was not the sort of work she was interested in learning. She had taught school and done other hard work, including operating her own business, a cleaning service for 20 years, but she wanted to learn other aspects of a business, like taking and filling orders. Ms. Jensen thought she might eventually have another business of her own, something like making up gift baskets. Aside from dissatisfaction with the tasks she was given, Ms. Jensen also felt that Ms. Sayin was brusque and "talked down" to her employees. Still, when Barbara Johnson, who also worked on the packaging line and closed up at night, was terminated, Ms. Jensen accepted the offer of more hours, including the responsibility to close at night. On December 1, 1994, the second evening of Ms. Jensen's expanded shift, she was closing up with one of the high school student employees. They had been told generally to "put everything away," but they did not know exactly what this meant. They tried to put cookies into tubs and the tubs into freezers. This was time-consuming and frustrating as the tubs did not fit easily. Ms. Jensen estimates the tubs each weighed approximately 30 pounds. As she and the high school student were lifting the last two to the top shelf, the girl suddenly let go and exclaimed, "I broke my nail." Ms. Jensen hung on to the tub until the girl could lift again. Ms. Jensen felt a burning sensation down her shoulder. That night, the pain continued with burning, stinging and tingling in Ms. Jensen's arm and shoulder. She went to work the next day and another employee heard her groan as she performed her regular tasks. At the other employee's suggestion, Ms. Jensen went to Selma Sayin to tell her about the injury. According to Ms. Jensen, when she told Ms. Sayin about the injury she was offered no sympathy nor a visit to a physician but rather was told only that others also got aches and pains from lifting and bending and she could take some pain medication. Ms. Jensen called her own physician and when she was unable to reach him, she drove around on her lunch break and found a chiropractor's office open. Both the nurse and the chiropractor spoke to Ms. Jensen but told her that, since her injury was a worker's compensation case, she needed to go through her employer's insurance carrier. Ms. Jensen returned to work still in pain. Over the weekend, December 3 and 4, 1994, Ms. Jensen came in to talk with Selma Sayin. Ms. Jensen first asked if Ms. Sayin would be interested in investing in a business with her; later she asked whether Ms. Sayin's friends or clients might be interested in investing. The answer to both was "no", and Ms. Sayin asked that Ms. Jensen not approach her friends and clients. On Monday, December 5, 1994, Ms. Jensen came late to work. Ms. Sayin called her in and terminated her. Ms. Jensen simply was not learning the job and was merely a seasonal employee who was not working out, according to Ms. Sayin. Moreover, Ms. Sayin was concerned that Ms. Jensen would try to take advantage of Selma's Cookies' clients by approaching them for funds for another business. The December 1, 1994, injury was reported to the company's workers' compensation carrier on December 14, 1994, which is when Ms. Sayin claims that Ms. Jensen called to tell her, after her termination, that she had been injured and needed to get medical treatment. As authorized, Ms. Jensen was examined at Centra Care clinic on December 15, 1994, and was diagnosed with a cervical strain. After the initial examination Ms. Jensen continued to receive treatment from the clinic and other health care providers for a variety of complaints which she claimed all emanated from her injury at Selma's Cookies on December 1, 1994. Treatments were primarily anti-inflammatory and pain medications and physical therapy. The parties settled all further workers' compensation claims with a stipulation and lump-sum payment of $14,500 on November 10, 1995. According to the stipulation executed by both parties, Ms. Jensen achieved maximum medical improvement with a 5 per cent permanent impairment rating (Dr. Dancy) or a 0 per cent permanent impairment rating (Dr. Beckner).
Recommendation Based on the foregoing, it is RECOMMENDED: that the Florida Commission on Human Relations enter its Final Order dismissing the petition for relief and charge of discrimination against Selma's Cookies. DONE AND ORDERED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1998. COPIES FURNISHED: Patricia F. Jensen, pro se 2301 Oak Drive Longwood, Florida 32779 Selma Sayin, President and Owner Selma's Cookies Post Office Box 160756 Altamonte Springs, Florida 32716 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Petitioner has been subjected to an unlawful employment practice.
Findings Of Fact Chipola is a college located in Marianna, Florida, and offers two-year and four-year degrees. In August 2005, Ms. Tucker contacted personnel at Chipola inquiring about a faculty position. She sent an e-mail to Karan Davis (Ms. Davis), Chipola’s associate vice president of Human Resources and included a brief résumé. No positions were available at that time. On or about May 18, 2006, Ms. Tucker submitted an application for employment at Chipola as an adjunct instructor. An adjunct instructor position is a temporary position on an as- needed basis to instruct a specific course. Health benefits are not provided for adjunct instructors. The employment application which Ms. Tucker submitted requested that applicants complete a section on educational employment and a section on non-educational employment. In each section, the application provided space for the listing of three present or former employers. The application stated, “If you wish to further describe your work experience, please attach a resume to this application.” Ms. Tucker did not attach a résumé to the application. In the section for educational employment, Ms. Tucker listed employment as a substitute teacher for two school districts and one private school. In the section for non- educational employment, Ms. Tucker listed employment in 2006 at Florida State University, employment from 1979 to 1988 with the United States Postal Service, and a position as a legal secretary from 1975 to 1977. The application asked, “Have you ever been discharged or forced to resign from a previous position?” to which Ms. Tucker replied, “No.” The application contains an applicant certification, which states: I am aware that any omissions, falsifications, misstatement or misrepresentations may disqualify me for employment consideration, and if I am hired, may be grounds for termination at a later date. Ms. Tucker signed the applicant’s certification. Wendy Pippen (Ms. Pippen) is employed by Chipola as the human resources coordinator. She is responsible for coordination of the daily activities and tasks in the Human Resources Department, including review of employment applications and résumés. She did not receive a résumé from Ms. Tucker at any point during the hiring process. Ms. Tucker was interviewed for the position as adjunct instructor. During a conversation with Ms. Pippen following Ms. Tucker’s interview, Ms. Tucker mentioned that she had worked at the University of South Florida. Ms. Pippen did not recall seeing the University of South Florida listed as an employer on Ms. Tucker’s application. She checked Ms. Tucker’s application and confirmed that the University of South Florida was not listed on the application. Ms. Pippen immediately advised her supervisor, Ms. Davis, of the omission. Ms. Tucker told Ms. Pippen that she had omitted her employment with the University of South Florida because an employment agency had advised her to do so due to the potential for a negative reference. Ms. Tucker vehemently testified at the final hearing that the reason she did not list employment with the University of South Florida was that she was terminated for medical reasons, and it was “no one’s business.” However, she also testified that the University of South Florida gave “bad references.” She had told others that she was concerned that the University of South Florida would give her a bad reference. It was her opinion that the University of South Florida was not ethical in giving references on former employees. Having judged the demeanor of the witnesses, Ms. Pippen’s testimony is credited that Ms. Tucker told her the reason that she did not put the University of South Florida on her application was that she felt the University of South Florida would not give her a good reference. Upon being informed by Ms. Pippen that Ms. Tucker had worked at the University of South Florida, Ms. Davis contacted the University of South Florida to check Ms. Tucker’s past employment. Ms. Davis was advised that Ms. Tucker had been employed by the University of South Florida and that she had been terminated for medical reasons. Ms. Davis did not inquire why Ms. Tucker was terminated. That information was volunteered by personnel at the University of South Florida. Ms. Davis did not ask for an explanation of the medical reasons, and no explanation was volunteered. Ms. Davis did not inquire whether Ms. Tucker had a disability, and no one from the University of South Florida told Ms. Davis that Ms. Tucker had a disability. The decision was made not to hire Ms. Tucker as an adjunct instructor because she had failed to include the University of South Florida on her application and had stated in her application that she had not been discharged or forced to resign from a previous position. Ms. Davis perceived that the omission of the University of South Florida from the application and the failure to indicate that she had been discharged from previous employment amounted to falsification of the application, which was a reason for disqualification from employment as clearly stated in the application form. Ms. Tucker contends that Ms. Davis was aware that she had been employed by the University of South Florida because she had included the employment on the résumé that she sent to Ms. Davis in 2005. Ms. Davis did not recall seeing the résumé and given that there was a lapse of seven months from the time that Ms. Tucker sent her résumé in 2005 until she submitted an application in May 2006 without a résumé, it is reasonable that Ms. Davis would not recall seeing the résumé or was not aware that Ms. Tucker had listed the University of South Florida on a résumé. After Ms. Tucker was advised that she would not be hired as an adjunct instructor, she wrote Dr. Spires at Chipola, stating that she had not put the University of South Florida on her employment application because she had been advised by an employment agency to omit the University of South Florida because it had a long history of illegal employment practices. Ms. Tucker does not contend that she has a particular disability which served as the basis for Chipola’s failing to hire her, and she did not inform staff at Chipola that she has a disability or identify any medical condition she has. Her claim is that she was not hired because of a history of medical problems. The evidence overwhelmingly established that Ms. Tucker was not hired because she had made misrepresentations on her application and not because of any history of medical problems. It is clear that Ms. Tucker did not include the University of South Florida on her application and did not inform Chipola that she had been discharged because she was afraid that the University of South Florida would give her a bad reference.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entering finding that Chipola College did not discriminate against Ms. Tucker and dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of November, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 2nd day of November, 2007.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of her age.
Findings Of Fact Respondent, the Pasco County Board of County Commissioners, is a governmental entity, and the Pasco County Library System is one of its departments. Petitioner, a female, was born on July 2, 1955. Respondent first employed Petitioner on or about September 8, 1997, as a Library Assistant II, a paraprofessional position. When Respondent hired Petitioner to this position, she was 42. On April 9, 2001, Petitioner was promoted to a Librarian I trainee position, at the age of 45. On February 4, 2002, Petitioner was promoted to a Librarian I position, at the age of 46, after she earned a Master's Degree in Library Science. The position of Librarian I is an at-will position, meaning that the person serving in such position can be terminated for no cause. Petitioner continued to work in the position of Librarian I until Respondent terminated her on or about March 24, 2005. Prior to 2002-2003, Petitioner's annual evaluations were favorable. Even after Petitioner was promoted to the Librarian I position, her annual evaluations rated her job performance in several categories, as well as her overall job performance, as "meets standards." The rating of "meets standards" indicates that the employee's performance "generally meets the supervisor's expectations on most performance criteria." Notwithstanding Petitioner's overall ratings of "meets standards," in the annual evaluations for 2002-2003 and 2003- 2004, her performance in some categories was rated as "needs improvement." Petitioner's annual evaluation for the period from April 2, 2002, to April 9, 2003 (the 2002-2003 evaluation), rated Petitioner's performance as "needs improvement" in several sub-categories under the following three categories: (1) Application of Professional Skills; (2) Performance of Routine and Special Assignments; and (3) Working Relationship, Communication, and Coordination with Other Personnel. Under each broad category, there were four sub-categories as well as a sub-category for the total rating in that particular category. On Petitioner's 2002-2003 evaluation, under the category, "Application of Professional Skills," Petitioner was rated as "needs improvement" in one sub-category. That sub- category was, "no unnecessary delays are encountered in performing assignments or resolving problems." On the 2002-2003 evaluation, under the category, "Performance of Routine and Special Assignments," Petitioner's performance in all sub-categories was rated as "needs improvement." These sub-categories were as follows: (1) conformance with schedules, standards, and plans does not require close supervision; (2) deviations in instructions, work schedules, and standards are approved by supervisor or corrected; (3) new and additional assignments are readily accepted and performed; and (4) work is of sufficient quality and quantity to meet supervisor's expectations. With regard to the category, "Performance of Routine and Special Assignments," the supervisor's written comments on the evaluation indicated notes that Petitioner should be at her assigned work location at scheduled times, and should obtain approval in advance from her supervisor prior to changing her work location and/or assigned work times. The written comments on the evaluation also stated that Petitioner had difficulty accepting a new supervisor, but indicated that Petitioner was responsible for readily accepting and implementing instructions from her supervisor. The 2002-2003 evaluation rated Petitioner's performance in all the sub-categories under the category, "Working Relationship, Communication, and Coordination with Other Personnel," as needs improvement. The sub-categories were as follows: (1) conflicts or problems in working relationships are usually resolved without intercession of higher authority; (2) needs, problems, and procedures are communicated to affected parties; (3) desired results are accomplished through subordinate and other personnel; and (4) few and only minor problems occur because of inadequate communication and coordination of activities. With reference to the category, "Working Relationship, Communication, and Coordination with Other Personnel," on the 2002-2003 evaluation, Petitioner's supervisor wrote, Petitioner has the propensity for starting projects at the last minute which negatively affects other team members. Furthermore, in the written comments on that evaluation, the supervisor directed Petitioner to communicate regularly with other team members when collaborating on projects and to communicate needs and problems to her supervisor before deadlines. On the 2002-2003 evaluation, under the category, "Other Factors Important to Supervisor," Petitioner's supervisor noted that Petitioner "is encouraged to learn and adapt to change." Petitioner's second annual evaluation (the 2003-2004 evaluation), while employed as a Librarian I, covered the period of April 9, 2003, to April 9, 2004. Petitioner's 2003-2004 evaluation, like her 2002-2003 evaluation, rated her overall performance as "meets standards." However, on the 2003-2004 evaluation, Petitioner's supervisor rated her performance in three sub-categories as "needs improvement." In the 2003-2004 evaluation, the first category in which Petitioner was rated as "needs improvement" was "Application of Professional Skills." The specific sub-category in which Petitioner was rated as "needs improvement" was "no unnecessary delays are encountered in performing assignments or resolving problems." With regard to the category, "Application of Professional Skills," on the 2003-2004 evaluation, Petitioner's supervisor wrote that Petitioner has excellent reference skills, is resourceful and determined to provide good customer service, has highly developed problem solving skills, and has made many helpful and logical suggestions that have benefited the library. However, the supervisor's written comments also noted that, "the strength of some of [Petitioner's] ideas may occasionally make it difficult for [her] to adjust quickly when a decision is made to proceed in a fashion that differs from the way she believes is correct." On the 2003-2004 evaluation, in one of the four sub- categories under the category, "Performance of Routine and Special Assignments," Petitioner's performance was rated as "needs improvement." That sub-category was "new and additional assignments are readily accepted and performed." With regard to the category, "Performance of Routine and Special Assignments," the supervisor's written comments on the 2003-2004 evaluation indicate that Petitioner served as reference support for many branches throughout the county, that her efforts are appreciated by staff and supervisors at those branches, and that her willingness to travel to the various locations on an ever-changing basis is commendable. The supervisor further noted that in addition to her other assignments, Petitioner developed a series of on-line tutorials. However, in addition to the foregoing commendations about Petitioner's work, the supervisor wrote that "there has been occasional reluctance to initiate some assignments in a timely fashion on [Petitioner's] part." The third area in which Petitioner was rated as "needs to improve" was a sub-category under the category, "Working Relationship, Communication, and Coordination With Other Personnel." The specific sub-category under that category in which Petitioner's performance was rated "needs to improve" was "conflicts or problems in working relationships are usually resolved without the intercession of higher authority." With regard to this category, the evaluation notes that Petitioner is a respected member of the Pasco County Library System. However, the evaluation states that Petitioner "is reminded that she should strive to complete her assigned duties in a timely fashion so as not to affect her co-workers in a negative way." Petitioner's 2003-2004 evaluation also made detailed comments in an area designated "Other Areas Important to Supervisor." While acknowledging that Petitioner is an intelligent and thoughtful employee, and that her suggestions are consistently logical and well thought out, the supervisor's written comments on the evaluation stated, "[Petitioner] has been told . . . that she needs to develop her ability to accept and implement decisions that she may not agree with. She has also been told to focus more of her efforts on being a team player rather than defending her own position (no matter how defensible that position may appear)." Petitioner received and signed the 2002-2003 and the 2003-2004 annual evaluations, and was verbally counseled by two of her supervisors. There is no dispute that Petitioner was a competent librarian and well trained for the position. Moreover, Petitioner did a good job on her work-related assignments if they were assignments that she liked, but she tended to ignore assignments that she did not want to do. Such conduct created problems on the job by requiring other employees to do some work-related tasks assigned to Petitioner. Following Petitioner's 2002-2003 and 2003-2004 evaluations, there was an work-related assignment which ultimately culminated in Respondent terminating Petitioner's employment. The assignment was an important, extensive, and comprehensive project that required team work. That assignment, referred to as "weeding," was given to all librarians in or about October 2003. The project required the librarians to "weed" assigned sections in the library by removing outdated and damaged books and materials. New books and materials were to be ordered to replace those outdated and damaged books and materials. Petitioner believed the "weeding" project was a 15- month project with a projected completion date of December 2004. In April 2004, Petitioner's supervisor asked her when she would complete her portion of the weeding project. Petitioner did not respond to her supervisor's question. Instead, Petitioner asked her supervisor if the deadline for completing the project had changed. In August 2004, Petitioner's supervisor again asked her when she would have her assigned weeding project complete. As she had in April 2004, Petitioner responded to this inquiry by asking her supervisor if the "deadline" had changed. Petitioner never gave her supervisor a specific or approximate time when she would complete the project, but only said she would complete the project "soon." This response was non- responsive and gave the supervisor no information regarding how much of the Petitioner's weeding assignment was complete, how much of the assignment remained to be done, or when she would complete the assignment. After Petitioner failed to respond to her supervisor's inquiry about when she would complete the weeding assignment, the supervisor pulled Petitioner off the weeding assignment. He then assigned another librarian to complete Petitioner's weeding assignment that she had not yet completed. That librarian completed Petitioner's assigned weeding in about a day and a half. Based on Petitioner's failing to complete her assignment described in paragraph 25, Petitioner's supervisor conferred with appropriate human resources personnel about terminating Petitioner's employment. Upon completion of the review process, Petitioner's employment was terminated. In a letter dated March 24, 2005, Respondent notified Petitioner that, effective immediately, her services at the Pasco County Library Services were no longer required. The letter did not give a reason for Respondent's termination. Petitioner's employment as a Librarian I was an at- will position. Accordingly, Respondent was under no duty to give Petitioner a reason for her termination and could, in fact, terminate her for no cause. Petitioner alleged that she was terminated in retaliation for following a supervisor's directive that Petitioner terminate the services of a library volunteer. Petitioner also alleged that Respondent terminated her employment, based on her age, in order to bring in younger librarians and to move out the older librarians. Petitioner's allegation that she was terminated based on her age is not supported by the evidence. First, the allegation that her employment was terminated because she followed a supervisor's directive to terminate the services of a library volunteer does not in any way establish that Petitioner was terminated because of her age. Second, although Petitioner alleges that there was an effort to bring in young librarians and to move out the older librarians, the evidence established that there was no interest in or effort to hire only young librarians and fire the older librarians. Rather, there was an effort to promote persons currently in Librarian I positions with the Pasco County Library System, regardless of their age, and to bring in new librarians into the entry level positions. The average age of professional and management staff in the Pasco County Library System is 46, even though the Librarian I is an entry level professional position and may attract younger candidates. The reason Petitioner was terminated as a librarian, with the Pasco County Library System, was because of her job performance and not because of her age.
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 Respondent committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 31st day of January, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of January, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Barbara DeSimone Pasco County Board of County Commissioners d/b/a Pasco County Library System 7530 Little Road New Port Richey, Florida 34654 Cyd Johnston Stewart 3801 Allen Road West Virginia, Florida 33541 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner proved that Respondent discriminated against her on the basis of her race at Respondent's restaurant or place of public accommodation, and, if so, what the relief should be.
Findings Of Fact Based on the evidence presented at hearing, the undersigned makes the following findings of material and relevant facts: Scott is an African-American woman. On May 22, 2015, Scott visited the McDonald's in Marathon, Florida, with her husband in the afternoon. Scott ordered two meals, including a hamburger, and testified that the type of hamburgers she received at the inside counter were incorrect. Scott complained to the counter staff and was provided the correct hamburgers and ultimately received the food that she ordered. Scott then complained that the new burger she was given was cold. She insisted on getting another burger and also demanded to keep the first one. There were several customers inside the McDonald's on the afternoon in question, and Scott's actions and demeanor were visible to and done in the presence of the other customers. Scott became loud and started screaming at the employee(s) behind the counter. Scott's dissatisfaction and yelling caused a disturbance in the store in front of other patrons and also caused patrons in the drive-through line to ask what was going on inside. The disturbance Scott was creating escalated to the point that the counter employee could not handle Scott and had to turn the matter over to a supervisor, who tried to quell the problem. The supervisor was not successful either. One of the managers of McDonald's called the police in response to Scott's disruptive behavior. It was not until then that Scott left the service counter and sat back down.1/ Deputies Matthew O'Neill and Rose DiGiovanni of the Monroe County Sheriff's Department arrived. Upon their arrival, Scott was still yelling, protesting, and being disruptive, again, inside the restaurant, around other patrons. Because Respondent requested a trespass notice be issued, Deputy O'Neill reminded Scott that, if she did not leave the premises, she would be arrested. Instead of promptly departing, Scott demanded her money back. Deputy O'Neill advised Scott that the restaurant did not have to refund her the money, particularly if Scott was going to keep the food she was given. McDonald's staff nevertheless decided to refund Scott her money in an effort to accommodate her and resolve the matter. Scott testified that she did receive her money back. As they were being escorted out by Deputies O'Neill and DiGiovanni, Scott's husband told Deputy O'Neill to take off his uniform so that he could fight him. Deputies O'Neill and DiGiovanni escorted Scott and her husband out of the premises and advised them of the trespass warning that McDonald's had asked to be issued. Once outside, Scott continued to yell at the officers across the parking lot. Scott never mentioned to the staff or officers that her race (African-American) or race discrimination by McDonald's, or its staff, played any role in (1) the service or hamburger product or type delivered to Scott during the incident or (2) McDonald's response to the incident. Likewise, the undersigned heard no persuasive evidence to suggest or prove that race discrimination played any role in the incident that day. No action, inaction, or treatment of Scott was because of her race. Other than conclusory allegations, there were no facts, either direct or circumstantial, to prove that Scott's race played any role in what she was served or how she was treated by McDonald's.
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 with prejudice and find in Respondent's favor. DONE AND ENTERED this 26th day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 26th day of May, 2016.
The Issue The issue for determination is whether Petitioner is entitled to a consumer's certificate of exemption as an organization providing special educational, cultural, recreational, and social benefits to minors pursuant to Subsection 212.08(7)(n), Florida Statutes.
Findings Of Fact Dormouse Productions, Inc. (Petitioner) is a non-profit Florida corporation. Petitioner has one employee who is salaried and is its president. Petitioner currently holds, and at all times material hereto held, an exemption from federal corporate income tax pursuant to Section 501(c)(3) of the U.S. Internal Revenue Code. Petitioner does not hold a certificate of tax exemption issued by the Florida Department of Revenue (Respondent). Petitioner filed its Articles of Incorporation (Articles) with the State of Florida on August 19, 1994. Article III of Petitioner's Articles provides its specific purposes: To promote the educational and cultural development of minors through materials and activities designed to target their communities. To create and produce materials encompassing the language, history, art, architecture, geography, and cultural diversity of communities. To develop civic awareness and pride in hometown communities. To incorporate multi-disciplinary approaches in a variety of learning activities. Petitioner provides copies of a soft-cover book, free of charge, to third grade classes in public, parochial, and private schools in Dade County. Accompanying the books is a teacher's guide for each class, which is also free of charge. Petitioner's sole employee produces the content of the book and teacher's guide. At the time of hearing, one soft-cover book had been printed and one was going to the printer. Petitioner's books (soft-cover book and teacher's guide) are intended to provide information about a child's own local community in Dade County. Presently, to teach children about the concept of "community", teachers use a non-specific textbook and resources which are located by the individual teacher. Petitioner intends to produce books devoted to each local community in Dade County. Teachers and school administrators have been receptive to Petitioner's books. Petitioner's books are provided to the Dade County Public Schools system for distribution to the schools' libraries. The books have been provided to every branch of the Dade County Public School library system and have been distributed to every public elementary school library. Petitioner's sole employee personally takes the books to the elementary schools in the community for which the books are written. Volunteers distribute the books to libraries outside of the public library system and to private and parochial school libraries. Petitioner's sole employee does not go into the classrooms and teach children from or with the books. She holds meetings with teachers to discuss the books and to obtain input as to what the teachers suggest be included in the books. No activities are provided to minors by Petitioner. The teacher's guide describes activities which teachers can provide to minors, if they so choose. Petitioner's chief expenditure of funds involves printing costs and salaries.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying a consumer's certificate of exemption to Dormouse Productions, Inc. DONE AND ENTERED this 8th day of April, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1997. COPIES FURNISHED: Kevin J. ODonnell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Joseph H. Huppert, Treasurer Dormouse Productions, Inc. 1601 Biscayne Boulevard #1191 Miami, Florida 33132 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Respondent Gulf Coast Community College (Respondent or the College) violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes, by subjecting Petitioner Derek A. Robinson (Petitioner) to discrimination in employment or by subjecting Petitioner to adverse employment actions in retaliation of Petitioner’s opposition to the College’s alleged discriminatory employment practices.
Findings Of Fact Petitioner is an African-American male. The College is a public institution of higher education located in Panama City, Florida. In 1998, Petitioner was hired by the College to work in its custodial department as a custodian. Petitioner held that position until his termination on February 11, 2009. The College's custodial department is part of the College's maintenance and operations division (collectively, ?Maintenance Division?) managed by the campus superintendent. The two other departments within the Maintenance Division are the maintenance and grounds departments. During the relevant time period, there were approximately 40 to 50 employees in the Maintenance Division. Of those, there were approximately 21 to 28 custodians in the custodial department. Most of the custodians were African-Americans and there were only three Caucasian custodians. The Caucasian custodians were Tom Krampota, Josephine Riley, and Tommy Gillespie. Custodial staff typically work shifts beginning at 2:00 p.m. and ending at 10:00 p.m., Monday through Friday. They are generally assigned housekeeping duties for a specific building. In addition to Monday through Friday, the College is also open on most weekends. Prior to 2001, the College began designating one employee to work a non-rotating weekend shift. Unlike other custodians, the designated weekend custodian worked from 10:00 a.m. to 10:30 p.m. on Fridays and 6:00 a.m. to 6:30 p.m. on Saturdays and Sundays. The weekend custodian was not assigned to a particular building, but rather worked in various buildings as needed and was to be available to open doors to campus buildings during weekend hours. Petitioner was the designated weekend custodian from 2001 until his duties were changed in September 2008. Dr. John Holdnak, who worked for the College for 26 years in various capacities, including four years as Director of Human Resources, was the one who established the position of designated weekend custodian. Dr. Holdnak served as the College's Vice-President for Administration Services for his last eight years of employment with the College until leaving in July, 2008. As vice-president, Dr. Holdnak reported directly to the president of the College, Dr. James Kerley. Sometime prior to 2008, Dr. Holdnak observed that the departments in the Maintenance Division were underperforming, not adequately supervised, and failing to meet expectations. Dr. Holdnak observed that the Maintenance Division employees took excessive breaks and showed lack of effort in their work. For example, mold was found in some of the classrooms, an open window with a bird's nest was found in another, maintenance orders were backlogged, and Dr. Holdnak received a number of complaints from faculty and College employees regarding the Maintenance Division's level of service. As a result of Dr. Holdnak's observations, the College removed the campus superintendent from his position because of the superintendent's inability to manage line supervisors, provide leadership, or supervise personnel. After that, Dr. Holdnak personally supervised the Maintenance Division for a time in order to assess and develop a solution to the problem. Based upon Dr. Holdnak's assessment, the College sought applications for a new campus superintendent who could change and clean-up the culture of the Maintenance Division. At the time, the three department supervisors within the Maintenance Division were: Carlos "Butch" Whitehead for maintenance, Dan Doherty for custodial, and Ronny Watson for grounds. All three supervisors were Caucasian. The vacancy for the campus superintendent position was advertised. Dr. Holdnak encouraged John Westcott to apply for the campus superintendent position because he had previously worked with Mr. Westcott on a College construction project and was impressed with his vigor and work ethic. Mr. Westcott, a Caucasian, applied. So did custodial department supervisor, Dan Doherty, and three other candidates. Mr. Westcott disclosed on his application that he had been convicted of a felony twenty years prior to his application. Dr. Holdnak determined that Mr. Westcott's prior conviction would not impact his candidacy for the position. The applicants were screened by a selection committee composed of a number of College employees from various divisions, including Petitioner. Of the five applicants who applied, the selection committee's first choice was John Westcott, who was qualified for the position. Petitioner did not agree with the selection committee's first choice and was not impressed with Mr. Westcott during the screening process because Mr. Westcott referred to himself as the "terminator." Based upon the selection committee's first choice and the conclusion that Mr. Westcott satisfied the necessary criteria to change the Maintenance Division's culture, Dr. Holdnak recommended that the College hire John Westcott as the new campus superintendent. John Westcott was hired as campus superintendent in January 2008. Once Mr. Westcott was hired, Dr. Holdnak specifically directed him to take control of his departments, ?clean up the mess? and hold his mid-level supervisors responsible for their subordinates' results. Dr. Holdnak instructed Mr. Westcott to take a hands-on approach, physically inspect and visit the buildings to ensure cleanliness, increase effectiveness, stop laziness, and decrease work order backlogs. During his tenure, Mr. Westcott increased productivity and reduced backlogs. Mr. Westcott took more initiative than previous superintendents with cleaning and maintenance, and he conducted weekly walkthroughs. While Mr. Westcott was campus superintendent, the backlog of 400 work orders he had inherited was reduced to zero. During Mr. Westcott's first month as campus superintendent, he had an encounter with a Caucasian employee named Jamie Long. On January 31, 2008, Mr. Westcott issued a written memorandum to Mr. Long as a follow-up from a verbal reprimand that occurred on January 28, 2008. The reprimand was Mr. Westcott's first employee disciplinary action as campus superintendent. According to the memorandum, the reprimand was based upon Mr. Long's confrontation and argument with Mr. Westcott regarding the fact that Mr. Westcott had been ?checking-up? on him. According to the memorandum, Mr. Westcott considered "the manner in which [Mr. Long] addressed [him as] totally inappropriate and could be considered insubordination." Mr. Long disputed Mr. Westcott's version of the incident and later sent a letter to College President Dr. Kerley dated June 23, 2008, complaining about "the alleged incident of insubordination" and the "almost non-stop harassment by John Westcott." There was no mention or allegation in the letter that John Westcott was racist or had discriminated against anyone because of their race. After Dr. Holdnak left the College in July 2008, John Mercer assumed his responsibilities. Mr. Mercer, like Dr. Holdnak, had the perception that custodial work was below par based on complaints and personal observations. He therefore continued to direct Mr. Westcott to address these deficiencies to improve the custodians' performance. Petitioner was the designated weekend custodian when Mr. Westcott was hired. In February 2008, Dr. Holdnak discovered a problem with the amount of paid-time-off Petitioner received as a result of his weekend schedule. The problem was that if a holiday fell on a weekend, Petitioner would take the entire weekend off, resulting in a windfall of 37.5 hours in additional paid-time- off for Petitioner over other employees because his work hours on the weekends were longer. In order to correct the problem, in approximately March 2008, Petitioner was placed on a similar holiday pay schedule as all other employees. At the time, the then-director of the College's Department of Human Resources, Mosell Washington, who is an African American, explained the change to Petitioner. According to Mr. Washington, Petitioner was not happy about the change in his holiday pay schedule. Petitioner, however, does not blame Mr. Westcott for initiating the change. Because of the change in his holiday pay schedule, Petitioner was required to work or use leave time for the additional working hours during the Fourth of July weekend in 2008. Petitioner called and asked to speak with Mr. Westcott regarding the issue. During the phone call, Petitioner used profanity. After being cursed, Mr. Westcott hung up the phone and then advised Mr. Washington, who told Mr. Westcott to document the incident. The resulting written reprimand from Mr. Westcott to Petitioner was dated July 11, 2011, and was approved by Mr. Washington. When Mr. Washington presented Petitioner with the written reprimand, Petitioner refused to sign an acknowledgement of its receipt and abruptly left the meeting without any comment. Petitioner did not tell Mr. Washington that he believed he was being targeted or discriminated against because of his race. In addition to setting forth Mr. Westcott's version of what occurred, the written reprimand advised Petitioner that the College had a grievance procedure, and also stated: I have an open door policy and will gladly address any concerns you may have whether personal or job related. If you have a grievance, tell me, but in the proper manner and in the proper place. Petitioner did not take advantage of either the College's grievance procedure or Mr. Westcott's stated open door policy. The College maintains an anti-discrimination policy and grievance policy disseminated to employees. The College's procedure for employee grievances provides several levels of review, starting with an immediate supervisor, then to a grievance committee, and then up to the College's president. Under the College's anti-discrimination policy, discrimination and harassment based on race or other protected classes is prohibited. Employees who believe they are being discriminated against may report it to the Director of Human Resources. Likewise, harassment is prohibited and may be reported up the chain of command at any level. Petitioner acknowledged receipt of the College handbook and policies on August 17, 2007. In addition, both the College President, Dr. Kerley, and Vice President, John Mercer, maintain an ?open door? policy. After receiving the July 11, 2008, written reprimand, Petitioner spoke to both Dr. Kerley and Mr. Mercer, at least once, on July 15, 2008. Petitioner, however, did not tell them that he had been discriminated against because of his race. In fact, there is no credible evidence that a report of race discrimination was ever made regarding the July 11, 2008, written reprimand prior to Petitioner's termination. Petitioner, however, did not agree with the July 11, 2008 written reprimand. After speaking to Dr. Kerley and Mr. Mercer, Petitioner met with Jamie Long, the Caucasian who had earlier received a write-up from Mr. Westcott, for assistance in preparing a written response. The written response, dated August 4, 2008, and addressed to Mr. Washington, Mr. Westcott, and Mr. Mercer, stated: On July 25, 2008, I was called into Mosell Washington's office and was given a written letter of reprimand from John Westcott, the Campus Superintendent, which states that on July 3, 2008, I had used profanity in a phone conversation with him regarding my 4th of July work schedule. From the schedule that I received in February, from Mosell Washington, I believed I was off that weekend. I am writing this letter to dispute Mr. Westcott's version of our conversation and to protest the letter of written reprimand. Mr. Westcott says in the reprimand that I was insubordinate to him and had used profanity. I did not use profanity, and I do not believe that I was insubordinate in any manner to him during our brief conversation. I feel that my work record and my integrity speaks for itself. I have never been insubordinate, or been a problem to anyone until John Westcott, and had I known that I was supposed to be on the job that weekend, I would have been there. Mr. Washington, Mr. Westcott, and John Mercer all deny receiving the written response. In addition, contrary to the written response, at the final hearing, Petitioner admitted that he used profanity during the call and said ?ass? to Mr. Westcott. Moreover, the written response does not complain of race discrimination, and Dr. Kerley, Mr. Mercer, Dr. Holdnak, Mr. Washington, and Mr. Westcott all deny that they ever received a complaint of race discrimination regarding the incident. Evidence presented at the final hearing did not show that the written reprimand given to Petitioner dated July 11, 2008, was racially motivated, given in retaliation for Petitioner’s statutorily-protected expression or conduct, or that a similarly-situated non-African-American who used profanity to a supervisor would not be subject to such a reprimand. Mr. Westcott generally worked a more traditional Monday through Friday schedule and, because of Petitioner's weekend work schedule, had minimal contact with Petitioner. In fact, Mr. Westcott would not usually be on campus with Petitioner, except Fridays, and the two men rarely spoke until Petitioner's work schedule was changed in September 2008. During the weekends that he worked at the College, Petitioner was on-call and expected to return communications to his pager or mobile phone, even during his lunch breaks, regardless of his location. On Friday, August 22, 2008, after receiving a request from faculty member Rusty Garner, Petitioner’s supervisor Dan Doherty asked Petitioner to clean the music room floor. On Sunday afternoon, August 24, 2008, Mr. Mercer and Mr. Westcott were working when they received word from Mr. Garner that the music room floor had not been cleaned. After unsuccessful attempts to reach Petitioner by cell phone and pager, both Mr. Mercer and Mr. Westcott drove around the College campus to find him. They were unsuccessful. The reason Petitioner could not be reached was because he had left campus and had left his telephone and pager behind. According to Petitioner, he was on lunch break. Mr. Mercer and Mr. Westcott found another employee, Harold Brown, to help prepare the music room for Monday. Mr. Mercer was upset because he had to take time out from his own work to find someone to complete the job assigned to Petitioner. That same afternoon, Mr. Mercer reported the incident by e-mail to Mr. Washington and requested that appropriate action be taken. On August 27, 2008, Petitioner’s supervisor, Dan Doherty, issued a written reprimand to Petitioner for the August 24th incident. No evidence was presented indicating that the written reprimand was racially motivated, or that a similarly situated non-African-American who could not be located during his or her shift would not be subject to such a reprimand. In September 2008, Dr. Kerley unilaterally determined that no single employee should work his or her entire workweek in three days. He believed this schedule was unsafe, and not in the best interests of the college. He therefore directed Mr. Westcott and Mr. Mercer to implement a rotating schedule for the weekends. Mr. Westcott was not in favor of the change because it meant additional scheduling work for him to accommodate new rotating shifts. No credible evidence was presented that the schedule change was because of Petitioner’s race, or made in retaliation for Petitioner’s statutorily-protected expressions or actions. From August 27, 2008, through January 2009, there were no other disciplines issued to Petitioner or reported incidents between Petitioner and Mr. Westcott. In December, 2008, a group composed of most of the custodial employees, including Petitioner, conducted a meeting with the College's president, Dr. Kerley, and vice-president, Mr. Mercer. The group of custodians elected their new supervisor James Garcia, an Asian-Pacific Islander, as their spokesperson for the meeting. The custodians' primary purpose for the meeting was to address complaints regarding Mr. Westcott’s management style, his prior criminal conviction, and approach with employees. They felt that Mr. Westcott could not be pleased. Various concerns about Mr. Westcott expressed by the employees were condensed into three typed pages (collectively, ?Typed Document?) consisting of two pages compiled by Jamie Long and his wife Susan Long which contained 12 numbered paragraphs, and a third page with six unnumbered paragraphs. Mr. Garcia did not transmit the Typed Document to the president or vice- president prior to the meeting. Neither Jamie Long nor his wife attended the meeting. During the meeting, Mr. Garcia read several of the comments from the Typed Document and Dr. Kerley responded to each comment that was read. Mr. Garcia did not read through more than the first five of the 12 items listed on the Typed Document. The Typed Document was not reviewed by the president or vice-president and they did not retain a copy. Petitioner asserts the comment listed in paragraph 9 on the second page of the Typed Document constitutes a complaint or evidence of racial animus. Although not discussed at the meeting or reviewed by Dr. Kerley or Mr. Mercer, paragraph 9 states: During a recent candidate forum, Westcott used the term ?black ass? in regard to School Superintendent James McCallister. This was heard by at least two witnesses. Q. Are such racial slurs and inappropriate, unprofessional behavior condoned and acceptable? Mr. Westcott denies making the alleged statement referenced in paragraph 9 of the Typed Document. No evidence of other racial remarks allegedly made by Mr. Westcott was presented. There is no evidence that the College or its administration condoned the alleged statement. President Kerley, Vice President Mercer, and Mr. Washington all gave credible testimony that they were not made aware of the statement and that, if the statement in paragraph 9 of the Typed Document or any alleged racial discrimination by Mr. Westcott had been brought to their attention, immediate action would have been taken. As a result of custodial employees’ complaints about Mr. Westcott’s management style, Dr. Kerley and Mr. Mercer required Mr. Westcott to attend several sessions of management training. In addition, Dr. Kerley counseled Mr. Westcott against using harsh tactics and rough language that may be acceptable on a construction site, but were not appropriate on a College campus. On February 9, 2009, Mr. Westcott observed both Petitioner and a co-worker leaving their assigned buildings. He asked their supervisor, Mr. Garcia, to monitor their whereabouts because he thought that they appeared to not be doing their jobs. Mr. Westcott also told Mr. Garcia that, although the two workers may have had a legitimate reason for walking from their assigned buildings, he had not heard anything on the radio to indicate as much. The next day, on February 10, 2009, Mr. Garcia told Petitioner that Mr. Westcott had wanted to know where they had been headed when they left the building the day before. Petitioner responded by saying that if Mr. Westcott wanted to know where he was, Mr. Westcott could ask him (Petitioner). Later that day, Petitioner spoke to Mr. Washington on campus. Petitioner was very upset and said to Mr. Washington, ?What’s wrong with Westcott? He better leave me alone. He don’t know who he’s messing with.? Later that same afternoon, Petitioner had a confrontation with Mr. Westcott. According to a memorandum authored that same day by Mr. Westcott: I [John Westcott] had stopped outside the mailroom to talk with Beth Bennett. While talking with her I observed Derek [Petitioner] leave Student Union West. After seeing me, he returned to Student Union West and waited outside the door. Beth walked toward the Administration building and I headed through the breezeway. Derek approached me and said that he had heard that I wanted to ask him something. I asked him what he was talking about. He said that I wanted to ask him where he was going the evening before. I said ok, where were you going? Derek said that it was ?none of my f_ _ _ ing business.? I told him that since I was his supervisor, that it ?was? my business. At this time, he stepped closer to me in a threatening manner and said ?if you don’t stop f_ _ _ ing with me, I’m going to f_ _ _ you up.? I told him that if he would do his job, that he wouldn’t have to worry about me. He replied ?you heard what I said--- I’ll f_ _ _ you up?, as he walked back into SUW. I left the breezeway and went to John Mercer’s office to report the incident. Mr. Westcott’s testimony at the final hearing regarding the incident was consistent with his memorandum. While Petitioner’s version of the confrontation is different than Mr. Westcott’s, at the final hearing Petitioner admitted that Mr. Westcott had a legitimate question regarding his whereabouts and that he failed to answer the question. And, while he denied using the specific curse words that Mr. Westcott attributed to him, Petitioner testified that he told Mr. Westcott to leave him the ?hell? alone because he was doing his job. While there is no finding as to the exact words utilized by Petitioner to Mr. Westcott, it is found, based upon the testimonial and documentary evidence, that on the afternoon of February 9, 2009, Petitioner was confrontational towards Mr. Westcott, that Petitioner refused to answer a legitimate question from Mr. Westcott, that Petitioner demanded that Mr. Westcott leave him alone even though Mr. Westcott had a legitimate right to talk to Petitioner about his job, and that Petitioner used words that threatened physical violence if Mr. Westcott did not heed his warning. After Mr. Westcott reported the incident to Mr. Mercer, both Mr. Mercer and Mr. Westcott went to Dr. Kerley and advised him of the incident. Dr. Kerley believed the report of the incident and that Petitioner had threatened Mr. Westcott. Mr. Washington was then informed of the incident. After reviewing Petitioner’s employment history, including Petitioner’s recent attitude problems, as well as Mr. Washington’s own interaction the same day of the latest incident, Mr. Washington concluded that Petitioner should be terminated. Mr. Washington gave his recommendation that Petitioner be terminated to Dr. Kerley, who adopted the recommendation. The following day, February 11, 2009, Mr. Washington called Petitioner into his office and gave him a memorandum memorializing Petitioner’s termination from his employment with the College. The memorandum provided: This memorandum is written notification that because of a number of incidents which the administration of the college deems unprofessional, adversarial, and insubordinate, you are hereby terminated from employment at Gulf Coast Community College, effective immediately. At the time that he presented Petitioner with the memorandum, Mr. Washington provided Petitioner with the opportunity to respond. Petitioner told Mr. Washington, ?It is not over.? Petitioner did not state at the time, however, that he believed that his termination, change of schedule, or any disciplinary action taken against him were because of racial discrimination or in retaliation for his protected expression or conduct. Further, at the final hearing, Petitioner did not present evidence indicating that similarly-situated non-African- American employees would have been treated more favorably than was Petitioner for threatening a supervisor. Further, the evidence presented by Petitioner did not show that the decision to terminate him was based on race or in retaliation for protected expression or behavior, or that the facts behind the reason that Petitioner was fired were fabricated. Following his termination, Petitioner met with both Dr. Kerley and Mr. Mercer and apologized for acting wrongly. The empirical record evidence of discipline against College employees in the Maintenance Division during Mr. Westcott’s tenure does not demonstrate a tendency by Mr. Westcott or the College to discriminate against African- American employees. The majority of disciplines and the first discipline taken against Mr. Long by Mr. Westcott were administered to Caucasians. In total, Mr. Westcott only reprimanded five employees. Of these, three were Caucasian -- Mr. Long, Mr. Whitehead, and Mr. Doherty. Despite the fact that the majority of the custodians were African-American, only two African-Americans were disciplined -- Petitioner and Harold Brown. During Mr. Westcott’s employment, the only two employees who were terminated were Petitioner and a white employee, Mark Ruggieri. Excluding Petitioner, all African-American witnesses testified that Mr. Westcott treated them equally and not one, except for Petitioner, testified that they were treated differently because of their race. The testimony of Petitioner’s African-American co-workers is credited over Petitioner’s testimony of alleged discrimination. Harold Brown’s discipline was based upon the fact that he gave the College’s master keys to an outside third-party contractor. Although Mr. Brown disagreed with the level of punishment he received, in his testimony, he agreed that he had made a mistake. Mr. Brown further testified that he did not believe African-Americans were targeted. According to Mr. Brown, Mr. Westcott did not discriminate against him because of his race, and ?Westcott was an equal opportunist as far as his behavior? and ?seemed agitated towards everybody when he was in his moods.? Mr. Garcia was the lead custodian when Petitioner was terminated and is currently the College’s custodial department supervisor. While several employees told Mr. Garcia that they did not like Mr. Westcott’s management style, Mr. Garcia never heard a racist comment and testified that Mr. Westcott was strict and threatened the entire custodial and maintenance staff. Butch Whitehead believes that Mr. Westcott attempted to get him and his maintenance crew ?in trouble.? He had no personal knowledge of the manner in which Mr. Westcott treated Petitioner. Mr. Whitehead's testimony does not otherwise support a finding that Mr. Westcott was a racist or that the College discriminated against Petitioner because of his race. Tom Krampota, a Caucasian and longtime employee and former supervisor, agreed that Mr. Westcott was firm with all custodians and complained about everybody, but was not a racist. Lee Givens, an African-American, testified that his custodial work was monitored because Mr. Westcott took issue with dust and cleanliness, but that if he did his job Mr. Westcott did not bother him. Mr. Givens did not testify that he felt discriminated against because of his race, but rather stated that Mr. Westcott made the job hard for ?all the custodians.? Horace McClinton, an African-American custodian for the College, provided a credible assessment of Mr. Westcott in his testimony which summarized how Mr. Westcott treated all of his subordinates: There were certain things that he wanted us to do that we should have been doing already, and he was just there to enforce it . . . he did not think anybody was doing their job . . . . He was put there to make sure we were doing our job . . . . I don't think he was a racist. Mr. McClinton further testified that all Maintenance Division employees, including Caucasian supervisors, were afraid of Westcott because it was ?his way or the highway.? Latoya ?Red? McNair testified that he was being monitored like the other custodians but did not believe it was because of race. Just as Petitioner’s co-workers’ testimony does not support a finding that Mr. Westcott was a racist, Dan Doherty’s deposition testimony does not support a finding that Mr. Westcott’s actions against Petitioner were because of race. A review of Mr. Doherty’s deposition reflects that Mr. Doherty has no first-hand knowledge of actual discrimination. Mr. Doherty stated, ?I don't know? when asked how he knew Westcott was motivated by race. Nevertheless, according to Mr. Doherty, five African-Americans were singled out, including Petitioner, Mr. McClinton, Mr. Givens, Mr. McNair, and Mr. Brown. Two of these alleged ?victims? outright denied that Mr. Westcott treated them unfairly because of race. The others did not testify that they believed Mr. Westcott treated them differently because of race. Mr. Doherty testified that besides the five identified, the remaining African-Americans were not criticized or targeted. Mr. Doherty also conceded that it was possible that Mr. Westcott just did not like the five custodians. Further, despite the fact that Mr. Doherty was written up by Mr. Westcott more than any other employee, including Petitioner, Mr. Doherty never reported Mr. Westcott for discrimination and did not state in his exit interview from the College that Mr. Westcott was a racist or complain that race was an issue. Rather than supporting a finding that Mr. Westcott was motivated by race, Mr. Doherty’s testimony demonstrated that the problems he had with Mr. Westcott were similar with those pointed out by others—-namely, that Mr. Westcott had a prior criminal conviction, had a harsh management style, and closely scrutinized all workers. While Petitioner and Mr. Long contend that they raised the issue of discrimination with the College's management, the College's president, vice-president, director of human resources, former vice-president, and superintendent all deny receiving a report of discrimination or that any employment action was based on race or in retaliation. Mr. Long’s testimony that he complained of race is not substantiated because he did not witness any discrimination first hand. He also never documented his alleged concerns about racial discrimination prior to Petitioner's termination. In addition, in his testimony, Mr. Long admitted that he never heard Mr. Westcott use a racially discriminatory term. Likewise, Petitioner never documented alleged discrimination until after being terminated. Considering the evidence presented in this case, and the failure of Petitioner and Mr. Long to document alleged complaints when an opportunity was presented, it is found that the allegations of reported complaints of discrimination by Mr. Long and Petitioner are not credible. Further, the testimony from Petitioner’s co-workers and supervisors, which indicates that Mr. Westcott was harsh with all employees but not racially discriminatory, is credited. It is found that Petitioner did not show that any employment action by the College or Mr. Westcott against him was based on race. Rather, the evidence presented in this case demonstrates that Petitioner was not targeted or treated differently from any other employees based upon race. The evidence also failed to show that Petitioner was retaliated against because of his protected expression or conduct. In sum, the evidence did not show that Petitioner was subject to racial discrimination or wrongful retaliation, and Respondent proved that Petitioner was terminated for engaging in a pattern of unprofessional, adversarial, and insubordinate behavior, including a threat to his supervisor’s supervisor, John Westcott.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, 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 6th day of December, 2011.
The Issue The issue is whether Respondent, Duval County Public Schools (DCPS), violated the rights of Petitioner, Katherine E. Otto, under the Florida Civil Rights Act, chapter 760, Florida Statutes.
Findings Of Fact Ms. Otto filed a Complaint with FCHR, alleging race, sex, and age discrimination against DCPS, having been employed by the school district as a school teacher from December 2009 until September 2010. The Complaint alleges that Dr. Alvin Brennan, the principal of the Forrest High School, where Ms. Otto worked as a teacher: (a) announced at a staff meeting that he "prefers all black male young teachers"; (b) announced at another staff meeting that "anyone who takes off a Friday or a Monday . . . will be fired"; (c) verbally harassed Ms. Otto; and (d) discharged her for calling in sick. The face of the Complaint shows that it was signed by Ms. Otto on October 24, 2010 - only weeks after the last date of alleged discriminatory conduct on September 8, 2010. However, the "date stamp," which also appears on the face of the Complaint, shows that it was not received by FCHR until October 25, 2011. Notably, FCHR sent to DCPS a "Notice of Filing of Complaint of Discrimination" on November 10, 2011, which was stamped as received by DCPS on November 16, 2011. At the hearing, Ms. Otto could not explain the apparent delay of exactly one year and one day between the date she signed the Complaint and the date it was stamped as received by FCHR. Ms. Otto testified that she never actually typed the Complaint. Further, she stated the typed Complaint was inconsistent with a handwritten version she originally submitted to FCHR "a month or two before" October 24, 2010. Surmising at the hearing that "someone" at FCHR must have typed the Complaint, Ms. Otto testified that she signed and returned the document even though it showed that she was 11 years older than her actual age of 50 years. Ms. Otto's Petition for Relief contains accusations about harassment and "racists remarks" by Dr. Brennan, and adds that he and other DCPS personnel "committed purjery to [the Commission]" [sic] during its investigation of the Complaint. Unlike the Complaint, the Petition for Relief also states that Ms. Otto was "was fired for no reason" as opposed to being fired for calling in sick. At the final hearing, Ms. Otto testified that she did not know why she was fired, and it was only "possible" that she was fired due to her race, gender, or age. Ms. Otto testified that her Complaint and Petition were based on events in August and September 2010, shortly after Dr. Brennan became the principal of Forrest High School. By the end of the 2009-2010 school year, Forrest High School was identified as "critically low performing," having received consecutive "school grades" of "F" or "D" over the preceding school years. The District was, therefore, required to treat Forrest High School as a "turn-around school," and replace/"reconstitute" much of its staff and administrative team. Dr. Brennan, a veteran educator and administrator of 27 years, was selected by the superintendent to replace the principal at Forrest High School at the beginning of the 2010-2011 school year, since he had a successful track record for improving other low-performing schools. Dr. Brennan conducted various staff meetings just before and during the first two weeks of the school year. According to Ms. Otto, Dr. Brennan stated at one such meeting that anyone who took a Friday off would be fired. Ms. Otto testified that Dr. Brennan stated at another meeting that he prefers to hire young African-American men. Ms. Otto thereafter "felt like [she] was being harassed, discriminated against because [Brennan] was just going after white women." Despite these negative "feelings" about Dr. Brennan, Ms. Otto never made a complaint to the school district about him or his comments. Ms. Otto stated that she privately met with Dr. Brennan on only two occasions. During the first private meeting at the beginning of the 2010-2011 school year, Dr. Brennan "yelled" at Ms. Otto for speaking with state officials who visited Forrest High School due to its "turn•around" status. The second private meeting was on September 8, 2010, when Dr. Brennan purportedly "harassed" Ms. Otto for missing lesson plans, and "yelled" that she was fired. In the days leading up to the September 8 conference, Dr. Brennan and Assistant Principal Jeravon Wheeler visited Ms. Otto's class and warned her about missing lesson plans. At all times, Ms. Otto was aware that she was required to have lesson plans readily available in her class. During a scheduled classroom observation on August 31, 2010, Ms. Wheeler (once again) noted Ms. Otto's lack of lesson plans. A post-observation conference was to take place on Friday, September 1, 2010. There is conflicting evidence as to whether Ms. Otto was present on that date. The record contains a post-observation "teacher assessment instrument" which Ms. Otto apparently signed and dated on September 1, 2010. However, Ms. Otto claims to have called in sick after her observation and did not return to the school until September 8, 2010. When summoned to Dr. Brennan's office on the morning of September 8, 2010, Ms. Otto assumed he wanted to discuss her illness-related absence and her discussions with "people from the State." Ms. Wheeler also attended the September 8 conference with Ms. Otto and Dr. Brennan. Contrary to Ms. Otto's view, Dr. Brennan and Ms. Wheeler testified that the September 8 conference was actually called to: (a) discuss the classroom observation; present a "non-compliance letter" for Ms. Otto's repeated failure to provide lesson plans; and (c) place her on a "Success Plan" formulated to improve her overall teaching performance. Ms. Otto walked out of the September 8 conference before Dr. Brennan had the chance to provide her with the Success Plan and non-compliance letter. Dr. Brennan's contemporaneous handwritten notes on the non-compliance letter indicated that Ms. Otto abruptly quit during the September 8 conference and "walked off the job." Ms. Otto testified that she left the September 8 conference because Dr. Brennan was screaming at her and yelled that she was fired. She denied, however, that Dr. Brennan made any comments about race, gender, or age at that time. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan neither raised his voice nor stated that Ms. Otto was fired during the September 8 conference. Rather, according to Dr. Brennan and Ms. Wheeler, it was Ms. Otto who became indignant during the September 8 conference, and who abruptly quit and walked out of the school after "throwing" her district-issued laptop on the desk of Dr. Brennan's assistant. Ms. Otto testified that she ultimately submitted lesson plans at some point after her August 31, 2010, observation, though that was disputed by Dr. Brennan. Regardless, Ms. Otto admitted during the hearing that she was "unprepared" during Ms. Wheeler's observation and the lesson plans entered into the record which she purportedly prepared for the August 31 observation were incomplete and inadequate. Dr. Brennan and Ms. Wheeler concurred that the lesson plans presented at the hearing were defective. Ms. Otto testified that she contacted a lawyer with the teacher's union immediately after the September 8 conference. Ms. Otto thereafter learned that Dr. Brennan did not have the authority to unilaterally fire her. Nevertheless, Ms. Otto advised the union lawyer that she would not go back to the school in any event because she was "allergic to it." Ms. Otto testified that the union lawyer gave her assurances that she would be reassigned to another school. These and other statements purportedly made by the union lawyer amounted to hearsay and were not corroborated by other, independent evidence. Shortly after the September 8 conference, Ms. Otto received from the school district a letter dated September 9, 2012, which indicated its recognition of Ms. Otto's resignation and encouraged her to contact the sender (Ms. Dawn Gaughan) with any questions. Ms. Otto did not respond to the September 9, 2012, letter, assuming that the union lawyer was securing her another teaching position in a different school. Ms. Otto testified that she called in substitutes on the days immediately following the September 8 conference using the school district's automated telephone system. However, she also stated that the personal identification number she needed to access the system was invalid at the time of her departure from the school. Having lost faith in the union lawyer's assurances, Ms. Otto testified that she eventually spoke with the school district human resources' personnel about the September 8 conference, but could not remember when that occurred. Ms. Otto subsequently filed a claim for unemployment compensation which was rejected on the grounds that she voluntarily resigned from her position. However, an Unemployment Compensation Appeals Referee ultimately determined that Ms. Otto was entitled to compensation because (during a telephonic hearing on the matter) the school district presented inadmissible hearsay to debunk Ms. Otto's assertion that she had been fired. At the hearing, Ms. Otto presented the testimony of Ms. Judith Julian, who claimed that she was "forced to resign" due to harassment by Dr. Brennan and Ms. Wheeler. Ms. Julian stated that Dr. Brennan "harassed" her by forcing her to park in the teacher's parking area, and Ms. Wheeler harassed her by "following" Ms. Julian on campus during a phone call. Ms. Julian had "no idea" whether such "harassment" was motivated by any animus toward her gender, age, or race, and also commented that she was "replaced" by a male Caucasian. According to Ms. Julian, lesson plans: (a) are "absolutely" important; (b) should be available at all times; and are part of a teacher's contractual duties. Ms. Julian testified that the only personal interaction she had with Dr. Brennan was during a classroom observation when Dr. Brennan stated that she was "a great teacher." Ms. Julian stated that she never heard Dr. Brennan make statements about Ms. Otto's race, gender, or age. Ms. Julian did not attend and, therefore, could not comment on the September 8, 2010, conference. She did, however, recall statements purportedly made by Dr. Brennan at a staff meeting regarding a preference to hire African-American teachers. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan made no such announcement, though he did discuss the need for a staff which reflected the demographics of the community served by Forrest High School. Dr. Brennan also presented statistics showing that his hiring decisions had no appreciable impact on staff demographics at the high school. Rather, African-American staff members increased by only seven percent and the percentage of male teachers at the school actually decreased between the 2009-2010 and 2010-2011 school years. Regardless, the testimony and evidence of record show that school principals do not have unilateral authority to terminate a teacher. The testimony offered by Dr. Brennan and Ms. Wheeler was consistent with contemporaneous notes and statements they prepared in September 2010 as well as other written statements they later prepared for the School District's Office of Equity and Inclusion in November 2011. The collective bargaining agreement between the school district and the teachers' union, Duval Teachers United (DTU), stresses the importance of lesson plans and the expectation that teachers shall have them at all times. The agreement also provides that insubordinate conduct and failure to prepare lesson plans merit discipline up to and including dismissal. Further, the collective bargaining agreement also contains school district policies against harassment and directions on how to process complaints. Ms. Otto was aware of these policies and procedures, but never lodged any complaints against Dr. Brennan with school district officials. Based on the testimony and evidence of record, the greater weight of the evidence demonstrates that Ms. Otto resigned from her position during a September 8, 2010, conference with Dr. Brennan and Ms. Wheeler. Further, the evidence shows that Ms. Otto failed to provide timely and complete lesson plans despite several warnings from her superiors. This failure alone would support dismissal, as would Ms. Otto's insubordinate conduct or abandonment of her post. The Employment Complaint of Discrimination, filed with FCHR by Ms. Otto appears to be signed and dated by her on October 24, 2010, only 46 days after the last incident giving rise to her claim occurred. However, the date stamp from FCHR on that document is for October 25, 2011, more than 365 days after the September 8, 2010 incident. No explanation was given for this discrepancy in the dates on the complaint giving rise to this matter. Ms. Otto testified at the hearing that she "didn't care which way this case goes" and was "happy" just to be there.
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 Katherine E. Otto's Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 December, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katherine E. Otto Apartment 407 7740 Plantation Bay Drive Jacksonville, Florida 32344 Katherine E. Otto 785 Oakleaf Plantation Parkway, Unit 814 Orange Park, Florida 32065 David J. D'Agata, Esquire Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether just cause exists to suspend Respondent from her employment with the Broward County School Board.
Findings Of Fact Background Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times relevant to this proceeding, Respondent was employed as an art teacher at Western High School ("Western High"). Respondent's career with the School Board, which spans some 21 years, has not proceeded entirely without incident: on January 31, 1997, Respondent uttered profanity in the presence of her students, which resulted in the issuance of a written reprimand that directed her to "cease and desist from inappropriate remarks"; several months later, Respondent's further use of colorful language led to a second written reprimand; and, in August 2009, Respondent agreed to serve a three-day suspension "for inappropriate language." The School Board now seeks to suspend Respondent for five days based upon an allegation that, on August 16, 2013, she used profanity and "aggressively grabbed" a female student's arm during an episode in Western High's parking lot. The facts relating to the instant charges are recounted below. Instant Allegations On the morning of August 16, 2013——the final weekday before the start of the 2013-2014 school year——Respondent arrived at Western High's campus to place the finishing touches on her classroom. On several occasions throughout the day, one of Western High's assistant principals announced that the school's parking lot would be locked at 5:30 p.m. The final such warning, which was made at 5:15 p.m., prompted Respondent to exit the building approximately five minutes later. As she headed toward her vehicle, Respondent (accompanied by her mother, Carol Fischer, herself a longtime educator) noticed several groups of students decorating parking spaces in the school lot. As explained during the final hearing, the students' presence was not unusual, for incoming seniors at Western High were authorized, pursuant to a school fundraiser, to "purchase" a parking space and adorn it as each saw fit. Mindful that the school gate would soon be locked, Respondent walked toward the groups and, from a distance of approximately 50 yards, loudly directed them to pack up their belongings and leave the campus. Each of the groups complied, save for one, which prompted Respondent to approach the stragglers and repeatedly announce——with diminishing volume as she made her way closer——that they needed to go home. Suffice it to say that these importunings had no discernable effect on the group's activities; as a result, Respondent continued toward the parking spot where the students were working. Now in their immediate vicinity, Respondent informed the group (which included two female students, N.S. and T.C., both of whom were incoming seniors at Western High) that they had two minutes to gather their possessions and leave the campus. During the ensuing interaction, T.C. began to argue with Respondent and, to make matters worse, acted as if she intended to continue painting. Her patience understandably waning, Respondent reached toward T.C. and, in a non-violent fashion, placed her hand on the student's upper arm. This brief physical contact, intended to secure T.C.'s complete attention and gesture her in the direction of the exit, was instantly met with a vocal objection. Respondent immediately reacted by stepping backwards,1/ at which point the group began to gather up the painting materials. T.C. and the other students departed the parking lot a short time later. Contrary to the complaint's allegations, the credible evidence demonstrates that, although Respondent addressed the students with an elevated voice (but only as she approached from a distance), she at no point used profanity or any other inappropriate language.2/ Further, the record is pellucid that Respondent's momentary, gesturing contact with T.C. was completely innocuous and in no way constituted an "aggressive grab."3/ Indeed, T.C. acknowledged during her final hearing testimony that Respondent plainly intended no harm.4/ Finally, and with respect to the charge of insubordination, there has been no showing that Respondent's behavior ran afoul of any direct order. Although the School Board attempted to prove the existence of a "no touching whatsoever" rule, the testimony on that point was internally contradictory and ultimately unpersuasive. In any event, and as discussed shortly, a general policy——i.e., one applicable to all employees——does not constitute a direct order for the purpose of sustaining an insubordination charge. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent is not guilty of misconduct in office. It is determined, as a matter of ultimate fact, that Respondent is not guilty of insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: exonerating Respondent of all charges brought against her in this proceeding; and awarding Respondent any lost pay and benefits she experienced as a result of the five-day suspension. DONE AND ENTERED this 3rd day of June, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 3rd day of June, 2014.
