Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
The Issue Whether Petitioner is entitled to credit for her answers to questions 55 p.m. and 56 p.m. on the Fundamentals of Engineering portion of the engineering licensure examination given on April 15, 2000.
Findings Of Fact Upon consideration of the oral and documentary evidence received at the hearing, the following relevant findings of fact are made: The examination for licensure of an engineer in the State of Florida is administered by the Florida Engineers Management Corporation, a not-for-profit corporation, created under Section 471.038, Florida Statutes. A written examination is authorized by Rule 61G15-21.001, Florida Administrative Code. Respondent contracts with the National Council of Examiners for Engineering and Surveying to provide engineering licensure examinations. This practice is approved by Section 455.217, Florida Statutes, and Rule 61G1 5-21.005, Florida Administrative Code. The National Council of Examiners for Engineering and Surveying develops standardized tests given for licensure throughout the United States and ensures that the questions are not ambiguous through a number of methodologies. A candidate for licensure as an engineer intern must attain a "scaled" score of 70 to pass the examination. On the examination taken by Petitioner, the minimum "raw" score required to attain a "scaled" score of 70 was 107; Petitioner's "raw" score was 105. Petitioner had initially challenged five questions; at the hearing, Petitioner withdrew her challenge to three questions; the two remaining challenged questions (55 p.m. and 56 p.m.) were "ethical" questions, i.e., they dealt with questions of engineering ethics. The challenged questions were multiple-choice questions. The test gives the following directions: "Each of the questions or incomplete sentences below is followed by four suggested answers or completions. Select the one that is the best in each case and then fill in the corresponding space on the answer sheet." (Emphasis added.) The challenged question 55 p.m. deals with an engineer hired to prepare a report on the design, manufacture, and assembly of a structure. The report contains references to "shoddy workmanship." Petitioner states that while she agreed that answer A [the graded "correct" answer] is correct, she believed that the inclusion of the word "also" in answer B included answer A in answer B by reference and therefore she chose B as her answer. Petitioner acknowledges that the word "also" in answer B could be referring to language in the question rather than in answer A. Answer A specifically refers to "engineering issues" which the engineer is "qualified to assess"; answer B indicates that the references to "shoddy workmanship" are "personal opinions" and "not professional opinions". An engineer is obligated by his license not to give an opinion for which he does not have expertise. An engineer should not render a personal opinion in a report in which the engineer gives a professional opinion. The challenged question 56 p.m. deals with an engineer who lacks expertise dealing with space frames but designed structures which included same. Regarding challenged question 56 p.m., the Petitioner acknowledged that answer A (the graded "correct" answer) could have been the correct answer as well as the answer she chose, answer D. Answer D indicates that the engineer was unethical because he did not refer that matter to the Registration Board. An engineer should not contact the Registration Board and report to the Board that someone has asked him to do something unethical; it is incumbent upon an engineer to practice engineering ethically without the input of the Board. In both instances in answering the challenged questions the Petitioner failed to provide the "best" answer and at hearing acknowledged that the graded "correct" answer by the National Council of Examiners for Engineering and Surveyors was a "correct" answer even though she chose a different answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Engineers Management Corporation enter a final order denying Petitioner's challenge to questions 55 p.m. and 56 p.m. DONE AND ENTERED this 27th day of December, 2000, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2000. COPIES FURNISHED: Yvette Bowman 3401 North Lakeview Drive Apartment 216 Tampa, Florida 33618 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Barton, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to creditable service with the Florida Retirement System (FRS) from February 1, 1997 through November 30, 1999.
Findings Of Fact Hendry County is governed by the Hendry County Board of County Commissioners (Board). The period in dispute is February 1, 1997, through November 30, 1999. During this 32- month period, Petitioner served as legal counsel for the Port LaBelle Utility System (PLUS), a division of Hendry County, under the direction of the County Administrator. (Stipulation e.2.b., modified. See also Finding of Fact 11.)1/ Both immediately prior to and immediately following the period in dispute, Petitioner was employed full-time by Hendry County in the regularly established position of "County Attorney." (Stipulation e.1.a. modified) Regularly established positions in Hendry County, such as "County Attorney," are created by the Board and supervised by the County Administrator. When Petitioner resigned the County Attorney position in 1997, he was approached by a Board member to work on two specific PLUS projects for $500.00 per month minimum, at the rate of $100.00 per hour. The Board and Petitioner initially called the $500.00 a "retainer fee" and anticipated that Petitioner would only work on two specific PLUS projects. Petitioner is only claiming that this guaranteed $500.00 per month, which was paid for 32 months, should have been covered by FRS. The new County Attorney had no experience in water and sewer utilities, so Hendry County and Petitioner later struck a deal for Petitioner to take up the additional role of counsel of record for all routine PLUS matters, including special projects, and to act (as he had when he was County Attorney) as PLUS contact person between PLUS and all governmental regulatory agencies at the rate of $100.00 per hour for every hour he worked above the guaranteed minimum of $500.00 per month. Petitioner was hired in this capacity due to his legal expertise in the area of utilities. Both Petitioner and the Board contemplated that he would personally render his legal services, and it was never anticipated by either party that Petitioner would sub-contract out those legal services. All of his services were rendered personally by Petitioner during the disputed period of time. At the commencement of the agreement, both parties anticipated their arrangement would continue indefinitely. No formal written contract was executed between Petitioner and the County for the period at issue. Either Petitioner or the Board could terminate the oral contract at any time without financial liability, but Petitioner would have had a professional duty to assist in the transition of cases to a replacement attorney. (Stipulation e.l.k. expanded.) The County Administrator could terminate the County Attorney, but only the Board could terminate Petitioner. During the disputed period of time, Petitioner's responsibilities and services as counsel for PLUS became essentially the same as the responsibilities and services he had provided to PLUS in his regularly-established position as County Attorney prior to the disputed period and which he subsequently provided to PLUS as County Attorney after the disputed period. However, during the period at issue, Petitioner did not perform all the other non-PLUS duties of the County Attorney. The oral agreement between Petitioner and the Board provided for Petitioner to be paid $500.00 per month by the County on behalf of PLUS. (Stipulation e.2.b., modified. See also Finding of Fact 1.)2/ Originally, Petitioner understood that the agreement guaranteed him $500.00 minimum per month even if he did no routine or special project work for PLUS. Ultimately, the oral agreement also contemplated that Petitioner could charge the County at an hourly rate of $100.00 per hour for any time he spent working on PLUS projects. This was substantially more money per hour than the full-time regular employee salary Petitioner had previously received from the County as its County Attorney. Petitioner is not claiming FRS coverage for any additional amounts of money above $500.00 per month that he charged Hendry County for PLUS work during the 32 months at issue. Petitioner is only claiming that the $500.00 per month constitutes his part time employee "salary" for this period of time. The parties stipulated that the $500.00 fee was paid to Petitioner by the County on a monthly basis, and Petitioner was not required to submit a time card to his supervisor setting forth his time worked each month in order to be entitled to the $500.00 payment. (Stipulation e.1.d. expanded.) Petitioner was not required to submit a timesheet or to similarly account for his time. However, Petitioner, in fact, billed the County for his services. The testimony is that he billed monthly, but his invoices appear to have been rendered every two or three months. Petitioner referred to the $500.00 as a "retainer" on each invoice he prepared. Each of his invoices included a vendor number, recognizable by the County Finance Department. Regularly established positions in Hendry County have no numbers. He sent his invoices from a law office in his home. Most, if not all, of the months during the disputed period, Petitioner billed more than $500.00, including time for projects and legal work not originally anticipated. Most of his services were frequent and sometimes recurring; other were not. Despite his testimony that his agreement with the County guaranteed him a retainer of $500.00 per month, regardless of how few or how many hours he worked on PLUS projects, Petitioner conceded that from the first invoice, he always credited the guaranteed $500.00 to the County and deducted it from the total hours of legal work he billed the County. Petitioner's invoices itemized all services for PLUS and any other projects he performed for the County in tenths of hours worked at the rate of pay of $100.00 per hour, and the $500.00 was always applied each month against the total PLUS hours worked. The County's Finance Department's policies were directed by the Board. Testimony shows that during the period at issue, Petitioner's monthly $500.00 was paid by the County's Finance Department, out of funds exclusive to PLUS, in response to Petitioner's invoices. However, the invoices which are in evidence show that the $500.00 and all additional charges were paid by a single County check for a lump sum in response to the total on each invoice, whenever the invoice was received. The accompanying check stub differentiated between specific projects and general charges, but the $500.00 was not isolated on the check stub. The greater weight of the credible evidence is that during the period at issue, the County Administrator's Office, Human Resources Office, and Clerk of Court did not handle Petitioner's situation as if he were an employee filling a regularly established part-time position. Rather, they treated the whole of his services, invoices, and remuneration as if he were a vendor or independent contractor. Payments to him were designated by the Finance Department as paid out of "professional services." However, the County's current Finance Director, an accountant who was not hired by the County until later, testified that the County should have separated out the $500.00 retainer and the cost of Petitioner's monthly services above that amount into separate amounts because Petitioner was performing non-vendor services for the $500.00 base amount. The County reported Petitioner's pay by Form 1099 for an independent contractor, rather than by Form W-2 for an employee. The Hendry County Personnel Manual requires that one work 7.5 hours per day in order to qualify as a full-time County employee. By law, the County is required to withhold income tax, social security, and medicare deductions for its employees, even the part-time ones. The County withheld no taxes, social security, or medicare deductions from the amounts it paid to Petitioner during the period at issue. The County did not make matching contributions for social security or medicare from the amounts it paid to Petitioner in this period. (Stipulation e.1.c., expanded.) The County did not include any fees paid to Petitioner in its wage computations for its workers' compensation insurance premiums, but had Petitioner claimed to have been injured on the job, and coverage denied by the company, only litigation would have determined if he were "covered" by workers' compensation. (Stipulation e.1.c., expanded.) Petitioner did not accrue, and was not paid, sick pay or vacation time during this period. (Stipulation e.1.c., expanded.) According to the County Personnel Manual, a County employee who works less than 22 hours per bi-weekly pay period does not earn sick or vacation leave, but would still be eligible for FRS. No FRS payments are linked to Petitioner's employment during this period. All County employees in regularly established positions, both part-time and full-time, are paid bi-weekly. Petitioner billed every two or three months. In response, the Finance Department paid Petitioner's invoices in lump sums, as if Petitioner were a vendor or independent contractor. Petitioner did not consider himself a County employee during the disputed time period, and, in fact, considered his arrangement with the County to be a classic retainer agreement. Petitioner treated his income from the County as "other income" by paying both the employer's and employee's share of social security during this period. During the period at issue, Petitioner did not list himself in the business section of the phone book or the yellow pages or otherwise offer his services to the general public, although he could have done so without violating his arrangement with the County. Petitioner had a separate and independent law office in his home during this period and charged individuals for occasional deeds and wills. Petitioner did not have to account to the County for any of his time not on the clock for County business. During this period, Petitioner also acted and was paid as counsel for the Central County Water Control District. Prior to accepting the District as his client, Petitioner sought from the Hendry County Board of County Commissioners permission to represent the Central County Water Control District, because of the Florida Bar Rules on attorneys' conflicts of interest and, presumably, rules on full disclosure to clients, but not because Hendry County was his employer. During the period at issue, Petitioner advised the Hendry County Attorney of what work he was performing, but the County Attorney could not instruct Petitioner how to do his job and did not assign him tasks or direct him. (See Findings of Facts 40 and 42.) During the period at issue, Petitioner received no training from the County. Most of the knowledge Petitioner had regarding County procedures and PLUS issues had been acquired prior to the period in question while he had been serving as the County Attorney. Some of the additional issues Petitioner represented Hendry County on during the disputed time period were assigned by the County Administrator or the Board, but Petitioner could prioritize issues and had discretion as to when he would work on them. The Board, as Petitioner's client, could direct certain of Petitioner's actions as its utilities counsel and had to agree or disagree to certain proposals. On most of these matters, votes of the Board were necessary. A major part of Petitioner's duties as counsel for PLUS during the disputed period involved attendance and providing advice to the Board and other County personnel at meetings or appointments scheduled unilaterally by the County Administrator. Petitioner was required to make reports at these events. No one in the County's administrative hierarchy could instruct Petitioner how to do his job as an attorney but the Board, County Administrator, and Utility Director could assign him tasks and instruct him on projects. In the main, however, the Board and its County Administrator had to rely on Petitioner's expert legal capabilities and professionalism as would any client in an attorney-client situation. During the disputed period, almost all of Petitioner's work for PLUS was done at a County office facility or at meeting sites designated by the County. The County made available office materials, books, and other equipment to Petitioner. All of the clerical and other staff assisting Petitioner in the performance of his duties for the County were employees of the County in regularly established County positions. Petitioner reimbursed the County for its paralegal's services at the rate of $15.00 for each hour she worked on PLUS projects. Petitioner's reimbursement to the County was in the form of a deduction from his invoices. The County paid Petitioner's cell phone and travel expenses or provided reimbursement of these expenses during this period, as billed on his invoices. Petitioner submitted his travel expenses as starting from the County courthouse, not from his home with its private law office. During this period, the services provided by Petitioner were critical and essential to the continued operation of PLUS. Petitioner did not use any of his personal capital in performing the services as counsel for PLUS during the disputed period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order ratifying its denial of FRS creditable service for February 1, 1997 through November 30, 1999. DONE AND ENTERED this 7th day of April, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 7th day of April, 2005.
The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Has Respondent committed an "unlawful employment practice" against Petitioner, pursuant to Chapter 760, Florida Statutes, based upon a Petition for Relief dated October 13, 1997, referred to the Division of Administrative Hearings by the Florida Commission on Human Relations?
Findings Of Fact Respondent stipulated to jurisdiction, and the evidence demonstrates that by number of employees, Respondent is an "employer" as defined in Chapter 760, Florida Statutes. Respondent is a freight company which ships and receives living nursery stock by truck through a depot/warehouse. Petitioner was employed there from 1993 until June 16, 1995. In the course of formal hearing, Petitioner waived his Charge of Discrimination on the basis of his national origin (United States citizen). (TR-116). There is no evidence the Respondent employs anyone other than United States citizens. The remainder of Petitioner's allegations were that Respondent failed to accommodate one or more handicaps and subjected Petitioner to disparate treatment from similarly situated black employees. Petitioner also related a series of remarks and one personnel action that he considered to be harassing and abusive due to his handicaps. The "handicaps" that Petitioner testified to were high blood pressure, an undefined heart condition requiring medication, "bad knees," and problems with his back. At formal hearing, no medical physician or health care professional corroborated the foregoing conditions. However, it is undisputed that on or about January 9, 1995, Petitioner presented a physician's excuse to Respondent's Warehouse Supervisor, Jeff Bradner. That physician's excuse stated that Petitioner could return to work on that date, working 10 hours per day, 5 days per week, doing medium lifting, that is, "lifting 30 pounds and frequently lifting and/or carrying objects weighing 25 pounds." The excuse further stated that Petitioner was to avoid squatting, kneeling, and climbing. Mr. Bradner informed Eddie Payne, Petitioner's immediate supervisor, that the foregoing January 9, 1995, medical restrictions were to be observed for Petitioner. Attached to both Petitioner's initial Charge of Discrimination and his later Petition for Review was another physician's letter dated January 29, 1993. It stated, in pertinent part: [Petitioner], patient of record, suffers from high blood pressure, anxiety, and arterial coronary disease. These conditions are aggravated by the stress caused by problems he has with his teenage son. Also attached was a March 3, 1994, doctor's letter stating that Petitioner had a spine and knee injury. It contains the same restrictions as the January 9, 1995, letter. Because the 1993 and 1994 letters are part of the record herein, (attached to the Charge of Discrimination and Petition for Relief), I have taken official recognition thereof and find that they supplement or explain Petitioner's oral testimony at formal hearing to the effect that Petitioner was suffering from high blood pressure, anxiety, and arterial coronary disease in 1993, and from a knee injury in 1994. However, these letters were not introduced in evidence at formal hearing, and Petitioner did not testify that he ever presented any such written medical confirmations of these conditions to any of Respondent Employer's supervisory personnel. Mr. Payne and Mr. Bradner denied that any oral or written requests for accommodation had been received from Petitioner other than the January 9, 1995, doctor's excuse listing specific restrictions. Contrary to Petitioner's testimony, Mr. Payne denied knowing of Petitioner's heart condition. There also is no corroboration of Petitioner's testimony that he orally requested any accommodation specifically because of his high blood pressure or heart condition at any material time. Furthermore, and most importantly, the 1993 letter places no restrictions on Petitioner in the workplace, and the 1994 letter imposes the same restrictions as the 1995 letter, which is in evidence. The only medical condition any of his co-workers ever heard Petitioner complain about was his "bad knees." Upon the record as a whole, it is inferred that Eddie Payne also knew Petitioner complained of "bad knees." At all times material, both before January 9, 1995, and afterwards, Petitioner worked for Respondent as a "checker." Checkers have the most physically non-taxing job in Respondent's operation. They make sure that "wheelers" or "loaders" place unloaded freight on pallets in the correct location in the warehouse and that "loaders" load the correct freight from the warehouse or warehouse dock into the correct truck. In this capacity, the bulk of Petitioner's work was carrying a clipboard, making notations thereon, and orally directing others where to put boxes. Petitioner testified that due to his blood pressure and back condition, he "needed" to sit down for 15 minutes' rest every 20 minutes after January 9, 1995. The evidence as a whole does not indicate that Petitioner clearly enunciated this "need" to any supervisor. Moreover, the credible evidence supports the inference that no one could work effectively as a checker while taking 15 minute breaks as frequently as every 20 minutes, because each truck needed to be loaded or unloaded as a component, so as to avoid shipping errors. Therefore, substituting other checkers every 20 minutes would have adversely affected Respondent's business and would constitute an unreasonable accommodation for Petitioner and undue hardship for the Employer. Either substituting another checker or waiting on Petitioner to rest every 20 minutes would have been unduly costly, burdensome, or substantially disruptive and would have altered the nature of Respondent's business. Prior to January 9, 1995, Petitioner worked at least a 40-50 hour week and was paid by the number of hours he worked. Due to the nature of Respondent's business and the hours when freight was received, Petitioner's usual hours before January 9, 1995, were from approximately 4:00-4:30 p.m. until 9:30 a.m. (17- 18 hours) three days a week, mostly Monday, Tuesday and Thursday. At all times material, both before and after January 9, 1995, only twenty-five percent as much freight came in on Wednesdays and Fridays as came in on the other three work days of each week. Therefore, all employees were not needed for a 17-18 hour day on those days, and employees had the option of working at whatever was available on those days to "make their hours" for pay purposes. At all times material, on Wednesdays and Fridays, all employees who wanted to work took turns digging weeds out of the cracks in the Respondent's paved parking lot with a claw on a broom handle or the edge of a shovel; picking the weeds up with a shovel; and throwing them away. Sometimes a blower was used. In accord with the January 9, 1995, physician's written restrictions, Eddie Payne accommodated Petitioner by assigning him to work from 10:00 p.m. until 8:00 a.m., so that Petitioner would only be working 10 hours per day. This assignment had Petitioner working the hours during which the employer needed the most men because those were the hours when the workload was the heaviest. Petitioner complained because Mr. Payne would not let him work his 10 hours from 4:30 p.m. to 2:30 a.m., a less busy time, but he complained only because those hours were more convenient for him. Petitioner related that after January 9, 1995, he was made to lift more than 30 pounds of parking lot weeds at a time, with the shovel, after getting on his hands and knees to dig the weeds out, and always in the hot sun, which aggravated his undisclosed heart condition. He also related that he never got to use the blower like other employees. His testimony on this issue is not credible in light of the contrary testimony of all the other witnesses. Even if credible, Petitioner was not forced to do this work. He was permitted to do this "make work" during slow days so that he would earn at least 40 hours per week. Witnesses confirmed that another "make work" project on a single occasion was digging muck out of a ditch. Petitioner testified that he was required to dig more than 30 pounds of muck in each shovelful that he lifted out of the ditch. His description was neither corroborated or refuted, but again, Petitioner was the one who controlled the content of each shovel, and he could have declined to work at that "make work" project. According to Petitioner's time cards, from which information Petitioner received his pay, Petitioner usually worked only 10 hours or less per day after January 9, 1995. Occasionally, he worked more than 10 hours, but less than 11 hours per day. Petitioner and Eddie Payne were fishing buddies outside of work, and on at least one occasion, Eddie Payne treated his subordinates, including Petitioner, to a night-clubbing expedition. Petitioner asserted that on the job, Eddie Payne had used derogatory and profane language to him, on account of his handicaps. Once, when Petitioner wanted to punch-out early, Mr. Payne supposedly said, "Go home if you need to, you crippled old pussy." Once, Mr. Payne allegedly called Petitioner "a crippled old Mother F-----." Mr. Payne denied ever using such language either socially or on the job. Mr. Bradner testified that he had instructed his subordinates against profanity on the job, and related that Mr. Payne had a reputation for not using profanity. No other witness corroborated Petitioner's testimony that any such language had ever been addressed to Petitioner. Petitioner called Matthew Hickox, a co-employee, as a witness. Mr. Hickox related that Petitioner would often "act goofy," by doing a "Quasimodo imitation," twisting his arm, making a face, and dragging one leg behind him. When Petitioner did this, other employees would "make cracks." Petitioner claimed that dragging his leg behind him was evidence of his handicap. Mr. Hickox's opinion was that "disabled don't give you the right to act like a nut and then people not make some comment." Petitioner testified that he had only become entirely disabled since leaving Respondent's employ June 16, 1995. Although Petitioner moved slowly and evidenced pain on rising and sitting, he was able to move around and approach the witness stand at formal hearing. The undersigned observed no twisted arm, facial contortions, or dragging leg. It is inferred from observing the candor and demeanor of all the witnesses, including Petitioner, and from the whole of the evidence, but particularly from Mr. Hickox's testimony, that on such occasions as Petitioner performed his imitation on the job, Mr. Payne or Mr. Bradner may have vehemently ordered Petitioner back to work and warned him to cut out the horseplay. Petitioner claimed to have received only a fifteen-cent per hour raise when other employees received more. According to Petitioner, the other employees, including Mr. Gonzalez, were raised by twenty-five cents per quarter hour for a $1.00 per hour raise. What anyone was being paid before this raise is not in evidence. Since no evidence indicates whether this raise occurred before or after January 9, 1995, when Respondent's management clearly knew of any of Petitioner's restrictions, there was no nexus between the lack of raise and handicap discrimination.2 Petitioner also developed no nexus between this raise and racial discrimination. According to Eddie Payne, Petitioner was a sub-average worker. According to Eddie Payne and Jeff Bradner, they frequently had to instruct Petitioner to resume work. Mr. Bradner related an incident when Petitioner was leaning on a shovel in the parking lot, so Mr. Bradner sarcastically commented, "You're not getting much work done leaning on that shovel," but this motivational comment was not directed at a handicap. No employee testified that any supervisor's instructions to Petitioner, which they observed or overheard, were offensive or otherwise inappropriate. On one occasion, Petitioner was told by Mr. Bradner to stop kicking a "basketball of tape" around; throw it away; and get back to work. No employee other than Petitioner found this instruction offensive. On another occasion, Petitioner was given a written reprimand when a truckload of freight was sent to the wrong location. Petitioner attributed the error to a black "loader" named James Oliver and perceived the reprimand as discriminatory because Mr. Oliver was not reprimanded. Petitioner's superiors reprimanded Petitioner as a formal personnel action instead of Mr. Oliver because they considered Petitioner responsible for the error and resultant costs since Petitioner was in the superior position of checker. Petitioner suffered no loss of pay, hours, or seniority as a result of the reprimand. Petitioner's assertions that he was required to climb tall ladders to change light bulbs in the warehouse, to squat to lift boxes, and to kneel to pull weeds were denied by management witnesses and uncorroborated by Petitioner's witnesses. On one occasion, Petitioner had just come on duty and was having a coke and a cigarette, when Mr. Bradner told him to get to work helping a black loader named "Willie T." unload a truck. On this single occasion, Petitioner may have been asked to lift boxes in excess of 30 pounds, but the boxes also may have weighed as little as 20 pounds. This incident may have occurred before Mr. Bradner knew of Petitioner's medical restrictions on January 9, 1995, but it was probably afterwards. If so, this single incident was contrary to Petitioner's doctor's instructions, but Petitioner admittedly never complained to Mr. Bradner about this one-time incident in terms of "lack of accommodation" for his physical limitations. On the same occasion, Willie T., who already had been loading the truck for three hours, took a coke and cigarette break a half an hour after Petitioner began to help him unload the truck. Willie T. asked Petitioner to join him on his break, which Petitioner did. Mr. Bradner spotted them and instructed Petitioner to return to loading the truck because he felt Petitioner was not entitled to a break after only a half an hour of work, but did feel that Willie T. was entitled to a break after three full hours of work. This was a bona fide business consideration of Respondent. Petitioner failed to establish a nexus of racially discriminatory intent on the basis of this incident. On June 16, 1995, Petitioner was sweeping the warehouse floor, leaving trails of residue behind. Petitioner intended to go back and sweep up the residue, but before he could do so, Mr. Bradner told him that he was leaving trails and that he should do a better job. Petitioner considered this instruction to be demeaning and discriminatory, but he did not reply to Mr. Bradner. Mr. Bradner noted that Petitioner began to do a better job of sweeping, and Mr. Bradner left the area. Petitioner perceived that his co-workers were laughing at the incident and became upset. Petitioner finished sweeping one section of the warehouse and asked Eddie Payne if he could clock-out. He assumed that Eddie Payne knew he was upset because of Mr. Bradner's comment but did not tell him so. Eddie Payne authorized Petitioner to clock-out. Petitioner clocked-out and never returned to work for Respondent
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Human Relations Commission enter a Final Order denying and dismissing the Petition for Relief on all issues. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 15th day of October, 1998.
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of race and by retaliating against her, in violation of the Florida Civil Rights Act of 1992, as amended, Sections 760.10 et seq., Florida Statutes (2006).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Outreach Center is an organization serving the homeless in Broward County, Florida. It is associated with the Miami Rescue Mission and operates two centers in Broward County, one in Pompano Beach, Florida, and one in Hollywood, Florida. It provides shelter, emergency services, and comprehensive services to its clients, and receives its funding from private donations, in-kind gifts, contracts with governmental entities, and partnerships with local communities. At the times pertinent to this proceeding, the staff of Outreach Center's Hollywood center was multi-ethnic; approximately 50 percent of its employees were African-American, including two supervisors, and the rest of the staff consisted of Hispanics, whites and persons of other ethnic origins. At the times material to this proceeding, Ronald Brummitt was the Executive Director of the Miami Rescue Mission/Broward Outreach Center; Scott Hall was the Director of the Hollywood center of the Outreach Center and reported to Mr. Brummitt; and Martha Ayerdis was the Director of Human Relations for the Outreach Center. Mr. Brummitt and Mr. Hall are both white men. Ms. Chester, who is an African-American woman, began working for the Outreach Center in early 2005 as a case manager in its Pompano Beach center. During part of the time she worked in the Pompano Beach center, Mr. Hall was the social services supervisor and supervised Ms. Chester. Mr. Hall and Ms. Chester had a very good working relationship when they worked together in Pompano Beach. Later in 2005, Ms. Chester transferred to the Hollywood, Florida, center of the Outreach Center. Prior to her transfer, Mr. Hall became the Director of the Outreach Center's Hollywood center. Francesca Fraser, an African-American woman whom Ms. Chester had known when they both worked as case managers in the Pompano Beach center, was the social services supervisor at the Hollywood center when Ms. Chester began working there. Ms. Fraser began working with the Outreach Center in Pompano Beach in 2004; she was offered the social services supervisor position in Hollywood about a year and a half later. As the social services supervisor, Ms. Fraser supervised Ms. Chester. Mr. Hall and Ms. Fraser both thought very highly of Ms. Chester, and they recommended to Mr. Brummitt that Ms. Chester be promoted to lead case manager. Mr. Brummitt, who, as the Executive Director of the Outreach Center, had the power to hire, fire, and promote employees, approved Ms. Chester's promotion. The social services supervisor was a key person at the Outreach Center because, in addition to managing the case managers, the social services supervisor was responsible for ensuring that the required data were input into the Outreach Center's client-tracking database system and for extracting this data and preparing the monthly reports that were sent to the Miami Rescue Mission, the Outreach Center's parent organization. The data in the monthly reports were relied on to prepare the quarterly reports and the annual reports. During the times pertinent to these proceedings, Mr. Hall prepared the quarterly and annual reports, which were provided to Broward County as a condition of the Outreach Center's receiving funding from the county. Ms. Fraser liked her work at the Hollywood center of the Outreach Center. She felt, however, that her interaction with management, specifically, with Mr. Hall, was stressful and uncomfortable and became increasingly so. For Mr. Hall's part, he felt that, any time he questioned Ms. Fraser or tried to instruct her, she became defensive and gave him the impression that she felt insulted. Mr. Hall considered Ms. Fraser a very capable person, but their working relationship began to deteriorate because of the lack of communication between them. After a time, Ms. Fraser decided that she had no alternative but to resign her position with the Outreach Center. She was experiencing a great deal of stress as a result of her dissatisfaction with her working relationship with Mr. Hall, and she became ill. Ms. Fraser missed a great deal of work because of her illness, and, during Ms. Fraser's absences, Ms. Chester stepped in and helped Mr. Hall complete Ms. Fraser's work. Ms. Chester was a tremendous help to Mr. Hall during this time. After Ms. Fraser resigned, Ms. Chester acted as the de facto social services supervisor, and Mr. Hall worked with Ms. Chester on the client-tracking database and worked with her to complete the monthly report due June 30, 2006. Ms. Chester was promoted to social services supervisor at the Hollywood center effective July 1, 2006. Mr. Hall assumed that, when Ms. Chester was promoted to lead case manager, Ms. Fraser taught her how to use the client-tracking database system and how to supervise the case managers and had requested her assistance in the preparation of reports. He, therefore, did not provide Ms. Chester with any formal training with regard to the duties of the social services supervisor. He was, however, available to answer questions and work with her whenever she needed assistance, and he met with her regularly regarding various matters. Ms. Fraser left behind a great deal of unfinished work when she resigned, and Ms. Chester had a lot to do to get the work current. At the same time that she was trying to learn the job of social services supervisor, Ms. Chester was also handling the cases that she had when she was the lead case manager, and she had also advised Mr. Hall of her intention to take college courses to further her education. Mr. Hall was concerned that Ms. Chester was overwhelmed, and he urged her to transfer her case files to one of the case managers and to concentrate on her administrative and supervisory responsibilities. In Ms. Chester's opinion, the case managers under her supervision had heavy caseloads, and Ms. Chester continued to work with clients. When Ms. Chester was promoted to social services supervisor on July 1, 2006, Barbara Law was an intake case manager and was under the supervision of Ms. Chester. Ms. Law was promoted to resident services supervisor in August 2006. Ms. Chester believed that Ms. Law was given preferential treatment by Mr. Hall. For example, Ms. Law brought her daughter into the office on occasion, when she had an emergency; on one occasion, the lead family case manager, who was under Ms. Chester's supervision, had to tell Ms. Law's daughter not to run around the building with the children of clients. Ms. Chester believed that Mr. Hall was showing favoritism to Ms. Law by permitting her to bring her child to the office, but this was not a privilege extended only to Ms. Law. Other employees were routinely allowed to bring their children to the office. Ms. Chester felt that Ms. Law's family concerns were accommodated by Mr. Hall by allowing Ms. Law to bring her daughter to the office during work hours, but that Mr. Hall did not accommodate her family concerns. Ms. Chester referred to an incident that occurred during the first week of December 2006. Ms. Chester telephoned Mr. Hall on Monday, December 3, 2006, to advise him that she had a family medical emergency and would not be at work that day. Ms. Chester told Mr. Hall that she would not take leave because she intended to make up the time by working on the following Saturday. Mr. Hall told Ms. Chester that this was fine. On Saturday, Mr. Hall received a call from one of the case managers asking for help with an emergency. Mr. Hall told the case manager to report the problem to Ms. Chester, but he was told that Ms. Chester was not at the Outreach Center. Mr. Hall telephoned Ms. Chester on Sunday to ask if she reported to work on Saturday, and she confirmed that she had not but gave no explanation. When she submitted her timesheet for the week, she reported that she had worked a 40- hour week. Mr. Hall wrote this incident up in a Disciplinary Action Report dated December 14, 2006, which was later amended on December 21, 2006. On another occasion, when Mr. Hall was out of the office on vacation, Ms. Law told the case managers, including those who were supervised by Ms. Chester, to report any problems to Ms. Law in Mr. Hall's absence. Because of this instruction, case managers who were under Ms. Chester's supervision reported to Ms. Law rather than to Ms. Chester. In the opinion of one case manager, Ms. Law did well while she was in charge. In addition to Ms. Chester's specific concerns related to Ms. Law, related above, Ms. Chester had ongoing concerns related to Ms. Law job performance. Before Ms. Law was promoted to residential services supervisor, Ms. Chester was her supervisor. Ms. Chester complained to Mr. Hall about what she perceived as Ms. Law's insubordination, but, in her opinion, Mr. Hall did not take her concerns seriously. Ms. Chester also felt that Ms. Law was given preferential treatment because Ms. Law received Mr. Hall's approval to place two families in one accommodation, while she was criticized by Mr. Hall for placing two families together. As a general rule, placing two families in the same accommodations was a serious breach of the Outreach Center's rules. Mr. Hall approved Ms. Law's placing a new mother and her infant in accommodations with a family that the new mother had grown close to, so the family could help the new mother with her infant. In an e-mail sent from Mr. Hall to Ms. Chester on August 30, 2006, Mr. Hall asked Ms. Chester to meet with him to discuss complaints he had received from clients that there were substantial delays in meeting their case managers. Mr. Hall considered this a very serious matter that was causing discontent among the Outreach Center's clients, and he approached Ms. Chester about the problem because she was the social services supervisor. In an undated response to Mr. Hall's e-mail, Ms. Chester stated that she was getting complaints that Ms. Law was not meeting the needs of her clients, apparently because Ms. Law had been involved in training other employees. She expressed confidence that, once Ms. Law resumed her regular case management duties, the situation would be resolved, but she alluded to divisions among the Outreach Center's staff. Ms. Chester was very concerned that Ms. Law was not serving her clients appropriately, and Ms. Chester felt obligated to work with Ms. Law's clients. Ms. Chester was, therefore, trying to manage a caseload at the same time she had administrative and supervisory responsibilities. This caused a great deal of stress for Ms. Chester, and she was seen crying in the office on several occasions by one of the case managers she supervised. On or about September 25, 2008, Mr. Hall, Ms. Chester, and Ms. Law met to discuss the problems that had been identified by Mr. Hall in the August 30, 2006, e-mail. The immediate problem between Ms. Chester and Ms. Law was resolved, and Ms. Law left the meeting. Mr. Hall asked Ms. Chester to remain behind because he wanted to discuss a complaint that he had received about her using profanity in the workplace. One of Ms. Chester's case managers went to another supervisor and complained because the case manager did not want to get in trouble. The supervisor reported the complaint to Mr. Hall. When Mr. Hall told Ms. Chester about the complaint, Ms. Chester denied using profanity. Mr. Hall assured her that this was not a disciplinary matter and that, if she did not use profanity, he should forget about the complaint. Ms. Chester insisted on an investigation and on confronting the person who had lodged the complaint. Eventually, the supervisor who had received the complaint in confidence and reported it to Mr. Hall, a woman named Lolita Suarez, came forward, and Ms. Suarez and Ms. Chester discussed the matter and came to a resolution. On September 26, 2006, however, the day after the meeting, Ms. Chester wrote an e-mail to Mr. Brummitt in which she stated that she considered the complaint a personal attack, made without justification, because she "had concerns with a certain employee," apparently referring to Ms. Law. Ms. Chester described the complaint as "'tit for tat'" behavior, and she described the work environment as one that interfered with her ability to carry out her responsibilities. Ms. Chester further stated that Mr. Hall refused to divulge the name of the person complaining about her use of profanity, and she requested Mr. Brummitt's intervention to "provide clarity with this situation."2 Ms. Chester sent a copy of the e-mail to Mr. Brummitt to Mr. Hall. In an e-mail dated October 16, 2006, Mr. Hall wrote to Ms. Chester that he had just discovered the e-mail to Mr. Brummitt. Mr. Hall stated that the e-mail to Mr. Brummitt was inappropriate because it broke the "chain of command" set out in Section 2.1 of the Employee Handbook and that, if Ms. Chester wanted a meeting with Mr. Brummitt, she was to request it through him, Mr. Hall. Mr. Hall emphasized that Ms. Chester had not been disciplined as a result of the complaint, nor had there been any other consequences. Mr. Hall further stated that Ms. Chester's circumvention of the chain of command created a problem for Ms. Chester and Mr. Hall and that it would be necessary for them to meet to resolve the matter and, possibly, to include Mr. Brummitt. Ms. Chester wanted to meet with Mr. Brummitt to discuss the manner in which Mr. Hall talked to and related to employees. She also wanted to speak with Mr. Brummitt because she had brought problems and issues to Mr. Hall's attention, but, in her opinion, Mr. Hall refused to address the problems or deal with them because, Ms. Chester surmised, he was uncomfortable with the matters she brought to his attention. Ms. Chester wanted Mr. Brummitt to intervene and resolve the growing tension between her and Mr. Hall. Ms. Chester made several requests to meet with Mr. Brummitt on her own. Although Mr. Brummitt did not respond directly to Ms. Chester's requests for a meeting, he talked with her at one point and told her to follow the procedures in the employees manual and go through the system if she had any complaints or concerns. According to the Employee's Manual, an employee was to go first to his or her immediate supervisor to resolve a problem; if the employee was not satisfied with the response of his or her immediate supervisor, the employee was to go to the Human Relations Director, Ms. Ayerdis, and she would discuss the problem and request a meeting with the Executive Director, Mr. Brummitt, if appropriate. By October 2006, Mr. Hall had observed a number of problems with the case management and the team supervised by Ms. Chester. He was also receiving verbal complaints about Ms. Chester from other supervisors. He became concerned and asked Ms. Chester to meet with him to discuss a number of issues. Among other things, Mr. Hall intended to ask Ms. Chester to transfer any cases she was managing at the time and spend her time doing the administrative duties required of the social services supervisor. He believed that Ms. Chester was overwhelmed and experiencing a lot of stress on the job, and he wanted to make it easier for her to perform her managerial and administrative responsibilities. Mr. Hall and Ms. Chester met on or about October 15, 2006. Mr. Hall felt that Ms. Chester had become increasingly defensive whenever he brought any issues to her attention, and, at the October 15, 2006, meeting she become noticeably upset and then somewhat belligerent. As the meeting progressed, Ms. Chester become increasingly belligerent, and Mr. Hall became angry and told Ms. Chester to leave his office. Mr. Hall did not give Ms. Chester any indication that her employment was terminated and took no action to terminate her. Nonetheless, when Mr. Hall told Ms. Chester to leave his office, she left the Outreach Center's office and filed an unemployment compensation claim effective October 15, 2006. Ms. Chester did not report for work on October 16, 2006, but she subsequently continued working, and Mr. Hall was not aware that she had filed an unemployment compensation claim until Ms. Ayerdis told him that she had received notice that the claim had been filed. The claim was denied on November 6, 2006, on the grounds that Ms. Chester was fully employed and not eligible for unemployment benefits. After Ms. Chester's promotion on July 1, 2006, Mr. Hall continued to prepare the quarterly reports, and he trained her to prepare these reports. Ms. Chester's only responsibility with regard to the quarterly reports was to ensure that the required data from client files and the persons- served worksheet was entered into the client-tracking database system so that Mr. Hall could pull this information to include in the quarterly reports. Ms. Chester submitted the July 2006, August 2006, and September 2006 monthly reports on time. Mr. Hall wrote e-mails complimenting her and thanking her for getting the September 2006 in early. Mr. Hall did not check the data and documentation backing-up the July and August reports, but, when he began to prepare the quarterly report that was due on October 15, 2006, he noticed that the data in the client- tracking database system did not match the information Ms. Chester had included in the monthly reports. The monthly report was basically spreadsheet containing the accumulated data that had been entered into the client-tracking database system throughout the month, and the information in the database should have been reflected in each monthly report. The missing data related to intakes, discharges, and referrals to transitional housing, and the discrepancies between the data in the database and the data included in the monthly reports prepared by Ms. Chester were significant. It was very important that the reports submitted to Broward County were accurate because the Outreach Center's funding was dependent on the information included in the reports. Mr. Hall sent Ms. Chester several e-mails on October 16 and 18, 2006, advising Ms. Chester of the missing data and asking that she provide the backup documentation for her monthly reports and account for the discrepancies. Mr. Hall suspected that Ms. Chester was pulling the data for the monthly reports from the client files themselves and that she was not inputting the data into the client-tracking database system. All of the information included in the monthly reports had to go into the database so that reports could be generated from the database, and Ms. Chester had been trained by Mr. Hall on inputting the data into the database. Ms. Chester never responded to the e-mails Mr. Hall sent on October 16 and 18, 2006, and she did not provide him with the backup documentation that he had requested. Ms. Chester's 90-day review of her performance was due on or about October 1, 2006. Because of what he perceived as problems with Ms. Chester's job performance, especially after the September 25, 2006, meeting when he brought up the complaint about her use of profanity, Mr. Hall decided to delay the review for 30 days to allow Ms. Chester additional time to improve her performance. Mr. Hall completed the review, and it was not favorable to Ms. Chester. Mr. Hall rated Ms. Chester below average in a number of categories, including quality of work, quantity of work, dependability, and customer contact. He rated Ms. Chester both below average and average on cooperation, noting that this had improved slightly. Mr. Hall rated Ms. Chester above average in attitude and average in ability to learn new duties. In the narrative portion of the review, Mr. Hall noted Ms. Chester's strengths as building strong and trusting relationships with the case managers she supervises, strong communication skills, and genuine compassion toward the homeless and dedication to helping them. Mr. Hall also observed that Ms. Chester was well-like by some of her coworkers and fellow supervisors. Mr. Hall made the following assessments of the weak points in Ms. Chester's job performance: In the areas of performance and follow-through, Mr. Hall stated that Ms. Chester had difficulties getting along with supervisors of other departments; was "visibly and emotionally very defensive" when concerns were brought to her attention and when she was given constructive criticism and correction of her performance; did not follow through with instructions or respond to e-mails; failed to respond to e-mails sent in October 2006 asking about missing data; failed to provide requested back-up documentation for data included in her monthly reports; despite having been reminded several times, failed to devise a work schedule for case managers so that all shifts during the week were covered; and failed to conduct regular crisis assessment team meetings. In the area of program outcomes, Mr. Hall stated that the data missing from the client-tracking database caused the Outreach Center to fall short of the outcomes required by its contract with the county; that the quarterly satisfaction survey of the Outreach Center's clients reflected the lowest percentage of satisfaction with case management services since the Outreach Center had been open; that, when Ms. Chester was told of the low survey results and asked how it could be improved, she stated that nothing could be done that had not been done already; and that Ms. Chester did not work out solutions for transfer of clients in emergency shelter to transitional shelter or independent living arrangements but offered extension of time to the clients, which had a negative effect on the outcomes required by the county. In the area of interviews, Mr. Hall stated that Ms. Chester was not able to build a solid and professional staff of case managers because she was unable to assess the strengths and weaknesses of persons interviewing for jobs. In Mr. Hall's view, Ms. Chester made decisions based on her emotions rather than on the candidate's qualifications and experience. In the area of decision-making and judgment calls, Mr. Hall stated that some of Ms. Chester's decisions put the Outreach Center and its clients at risk. He specifically noted that Ms. Chester had agreed to allow a single woman client to take another family's children to a medical appointment; had placed two families in one family unit; and had placed a single father with two sons, 16 and 13 years of age, in the women and children's center. Mr. Hall stated that Ms. Chester went outside the chain of command by sending an e-mail to Mr. Brummitt without Mr. Hall's approval and without notifying him, as required by the employee handbook; that she enabled poor performance by the case managers under her supervision; and that her excessive absences had placed the Outreach Center and the case management team in a difficult position. Finally, Mr. Hall stated that he had attempted to help Ms. Chester improve her job performance by meeting with her weekly and sometimes daily to provide instruction on the particulars of her job. He stated, however, that communication between him and Ms. Chester had broken down "on her end" shortly after the meeting in which he had spoken with her about the complaint that she had used profanity in the workplace.3 Mr. Hall arranged to meet with Ms. Chester on November 3, 2006, to discuss the 90-day review. Prior to the meeting, Mr. Hall gave Ms. Chester the review and told her to read it over. He knew she would have problems with the review because of the negative assessment of her performance, and he anticipated that their meeting would be lengthy because there were a great many concerns to discuss. In addition to discussing Ms. Chester's weaknesses, Mr. Hall also expected to discuss the adjustments that could be made to improve her performance and help her move into her administrative role. Ms. Chester did not show up for the meeting with Mr. Hall. Instead, she refused to discuss the review with Mr. Hall and requested a meeting with Mr. Brummitt. The meeting was scheduled for November 7, 2006. In spite of the negative 90-day review he had given Ms. Chester, Mr. Hall considered her an excellent candidate for a supervisor's position even though they no longer had the close working relationship they once shared. Mr. Hall was concerned, however, about Ms. Chester's ability to transition from being a case manager to being a supervisor because she seemed unable to supervise the members of the case management team. In addition, from Mr. Hall's perspective, Ms. Chester was communicating with him less and less frequently, and he found that she was becoming more and more resistant to instruction. Mr. Hall did not doubt Ms. Chester's ability to do the job of social services supervisor, but he took into consideration the fact that Ms. Chester was handling a client caseload and taking classes to further her education at the same time that she was learning to be a social services supervisor. Mr. Hall believed that Ms. Chester was overwhelmed in the position of social services supervisor, and she appeared to be stressed all of the time. Mr. Hall became convinced that Ms. Chester needed to work closely with a supervisor before she could successfully function as a supervisor, and he intended to remove her from the supervisory position for her own benefit and phase her back into that position. Prior to the November 7, 2006, meeting, Mr. Brummitt, Mr. Hall, and Ms. Ayerdis discussed the situation with Ms. Chester. After receiving input from Mr. Hall, Mr. Brummitt concluded that Ms. Chester was a valuable employee that he wanted to retain, and he decided to offer Ms. Chester the choice of remaining in the social services supervisor position or of returning to her former position as lead case manager, but at the same salary she was receiving as social services supervisor. At the meeting held on November 7, 2006, which was attended by Mr. Brummitt, Mr. Hall, and Ms. Ayerdis, Mr. Brummitt made his offer to Ms. Chester. Ms. Chester became upset because she considered the offer to return to her former position of lead case manager to be a demotion and to be disrespectful to her. Ms. Chester also took the offer to return to her former position at the same salary to be an indication that she was being underpaid as a supervisor. Ms. Chester attributed the poor 90-day performance review to retaliation by Mr. Hall for her e-mail and request to meet with Mr. Brummitt in September 2006. In Ms. Chester's view, her performance had been satisfactory and any problems she had were the result of lack of support from Mr. Hall and lack of training. Ms. Chester believed that black supervisors were not given the same level of support, training, and assistance that was given to white supervisors. Ms. Chester rejected Mr. Brummitt's offer to return to her former position as lead case manager, and she chose to remain in the position of social services supervisor and gave Mr. Brummitt and Mr. Hall assurances that she could do the job. Mr. Brummitt warned Ms. Chester that the offer to return to her former position was a one-time offer and that her performance as social services supervisor must improve or she would be terminated from her employment with the Outreach Center. Ms. Chester indicated that she understood. Communication between Mr. Hall and Ms. Chester improved for a few weeks after the November 7, 2006, meeting, but Ms. Chester's job performance did not improve, in Mr. Hall's estimation: Ms. Chester failed to register the case managers under her supervision for a scheduled training session. She nonetheless took them to the training location, where they were turned away and had to return to the Outreach Center. When Ms. Chester turned over her client case files after the November 7, 2006, meeting, Mr. Hall found that there was a great deal of information missing from the files, especially care plans for the clients, which Mr. Hall considered an extremely serious offense that impacted the Outreach Center's ability to serve its clients. On November 14, 2006, Mr. Hall asked Ms. Chester to attend a mandatory meeting regarding referrals to a Broward County agency that assisted the chronically homeless to obtain permanent housing. This was a very important meeting, but Ms. Chester forgot about the meeting and did not attend, with the result that the Outreach Center did not have a representative at the meeting. On November 24, 2006, Mr. Hall wrote an e-mail to Ms. Chester discussing the failure of one of the case managers under her supervision to write case notes and place them in clients' files. This case manager had not prepared any case notes for approximately a year, and Mr. Hall considered this a very serious offense that jeopardized the Outreach Center's county funding. Mr. Hall told Ms. Chester to write a Disciplinary Action Report on this case manager, but she resisted doing so. On December 7, 2006, Mr. Hall wrote an e- mail to Ms. Chester directing her to prepare the report, and she did so on December 8. 2006. She noted, however, that Mr. Hall had not allowed her to write a Disciplinary Action Report on Ms. Law. Ms. Chester was absent on Monday, December 3, 2006, because of a family emergency. As noted above, she advised Mr. Hall that she would work the following Saturday, but she did not do so. At a Crisis Assessment Team meeting led by Ms. Chester on or about December 6, 2006, Roberta Geist, the Outreach Center's lead therapist/counselor, was discussing the repeated failure of the case management team, which was multi-ethnic, to follow procedures with regard to clients who had relapsed. Ms. Geist was frustrated at the lack of compliance with procedures and, intending to address the entire case management team, she referred to "you people." Paulette Williams Shepherd, a case manager who had been hired by Ms. Chester in mid- November 2006, took offense, construing the comment as referring to the African-Americans who were attending the meeting, and she immediately left the meeting. Persons who attended the meeting reported to Mr. Hall that Ms. Chester became irate and also left the meeting, although she returned a few minutes later, acting as though nothing had happened. Ms. Chester contacted the Human Relations Department about the incident, and she also told Mr. Hall that she intended to file a formal complaint against Ms. Geist with her supervisor. In a Disciplinary Action Report dated December 14, 2006, Mr. Hall charged Ms. Chester with violations related to attendance, carelessness, and work quality. In the body of the report, he discussed three specific offenses: Ms. Chester's failure to include the proper documentation in the case files she had handled prior to November 7, 2006; her failure to attend the November 27, 2006, meeting; and her failure to report for work on Saturday, December 8, 2006, as promised, and to complete documentation for staff files for an audit conducted Monday, December 10, 2006.4 Mr. Hall wrote the Disciplinary Action Report in lieu of writing a review of Ms. Chester's performance subsequent to the her 90-day performance review, and he recommended that Ms. Chester be demoted to case manager effective December 18, 2006, or that she be terminated if she rejected the demotion. A meeting was arranged for December 18, 2006, with Mr. Hall, Ms. Ayerdis, and Ms. Chester. Mr. Hall anticipated that they would discuss the contents of the Disciplinary Action Report, including performance issues; Ms. Chester's falsification of her timesheet for the week of December 2, 2006; and Ms. Geist's remark at the December 6, 2006, Crisis Assessment Team meeting, as well as Ms. Chester's response to the remark. The meeting lasted less than five minutes, however. Mr. Hall began the meeting by asking Ms. Chester about the December 2, 2006, timesheet; Ms. Chester immediately accused Mr. Hall of being a racist and demanded an investigation into his discriminatory conduct towards her. Ms. Ayerdis agreed that she would conduct an investigation into Ms. Chester's allegation of discrimination against Mr. Hall. She told Ms. Chester to take a leave of absence with pay during the investigation. Ms. Ayerdis then closed the meeting. Ms. Ayerdis scheduled a meeting with Ms. Chester on December 21, 2006. She had completed the investigation into Ms. Chester's allegation of racism and found no evidence that Mr. Hall had discriminated against Ms. Chester on the basis of her race. A revised Disciplinary Action Report was prepared and dated December 21, 2006, in which Mr. Hall recommended that Ms. Chester's employment be terminated effective December 21, 2006. Mr. Hall based his recommendation that Ms. Chester be terminated on her failure to perform up to expectations and her failure to correct the performance deficiencies identified in the 90-day performance review. Mr. Brummitt, who had the ultimate authority to terminate employees at the Outreach Center, and Ms. Ayerdis concurred with Mr. Hall's recommendation, and, at the December 21, 2006, meeting, Ms. Ayerdis advised Ms. Chester that the investigation of Ms. Chester's discrimination claims against Mr. Hall turned up no evidence to support her allegation that he was a racist. Finally, Ms. Ayerdis notified Ms. Chester that her employment with the Outreach Center was terminated, effective immediately. Mr. Brummitt was aware that Ms. Chester and Ms. Ayerdis were meeting on December 21, 2006, and that Ms. Ayerdis would advise Ms. Chester of her termination at the meeting. It was close to Christmas, when the Outreach Center's employees received their bonuses, and Mr. Brummitt was concerned about Ms. Chester's not receiving her bonus. Mr. Brummitt decided that it was not fair to deny Ms. Chester the bonus, and he telephoned Ms. Ayerdis several times during her meeting with Ms. Chester to tell Ms. Ayerdis that Ms. Chester would receive the bonus and to confirm the amount of the bonus. Summary of factual findings The evidence presented by Ms. Chester is not sufficient to establish that she was the subject of unlawful discrimination or that she was terminated in retaliation for protected conduct. It is uncontroverted that Ms. Chester is a member of a protected class of persons, but she did not present sufficient persuasive evidence to establish that any similarly- situated employee of the Outreach Center was treated more favorably in any respect than Ms. Chester was treated. Ms. Chester failed to produce any evidence establishing that Ms. Law received more training or support from Mr. Hall than he provided Ms. Chester, nor does the evidence establish that Mr. Hall failed to discipline Ms. Law for the same or similar conduct for which Ms. Chester was disciplined. Rather, the evidence affirmatively establishes that Ms. Chester was terminated because of her unsatisfactory performance of the responsibilities of a social services supervisor. Ms. Chester likewise failed to present sufficient evidence to establish that she was discriminated against in the form of a hostile work environment. Although she alleged that she was subjected to constant harassment because of her race, that she was intimidated by the work environment at the Outreach Center, and that she was ridiculed for problems that she did not create, Ms. Chester failed to present any persuasive evidence to support these allegations. In addition, Ms. Chester did not present sufficient persuasive evidence to establish that she was terminated in retaliation for engaging in protected conduct. Ms. Chester did not present any evidence that she filed a discrimination complaint on account of Ms. Geist's reference to "you people," either with the Human Relations Department or with Ms. Geist's supervisor. Furthermore, the evidence affirmatively establishes that Mr. Brummitt warned Ms. Chester on November 7, 2006, when she refused to accept his offer to return to her position as lead case management, that she would be terminated if her job performance did not improve, and the proximity in time of her discrimination complaint against Mr. Hall and her termination is not sufficient to establish that her termination was in retaliation for the complaint. Ms. Chester likewise failed to present any evidence beyond her conclusory statements to support her allegations that her difficulties with Mr. Hall arose as a result of her attempts to meet with Mr. Brummitt and that she was ultimately terminated in retaliation for telling the truth about what she considered bad working conditions and "things that were not right."5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Peggy Chester against the Broward Outreach Center/Miami Rescue Mission be dismissed. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 March, 2009.
The Issue The issue is whether Petitioner's Petition for Relief should be dismissed for failing to plead a factual or legal basis for relief from the determination by the Florida Commission on Human Relations (FCHR) that it lacks jurisdiction.
Findings Of Fact 1. Petitioner's Response to Order to Show Cause dated July 15, 2003, establishes the following facts: (a) the Florida Department of Education is not a proper party to this proceeding; (b) Sarah McCauley, a "student mentor" has no legal authority to file pleadings on Petitioner's behalf; (c) the Petition for Relief should contain additional ultimate facts supporting the claim for relief; (da) the request for class action status should be stricken; and (£) Petitioner is not seeking attorney's fees. 2. Petitioner's Response to Order to Show Cause argues that "while (Workforce Florida, Inc.] may not be the employer of Petitioner, [Workforce Florida, Inc.] is an entity which procures opportunities for persons to work for an employer, either directly or through its agents and service providers." Petitioner's response cites Section 760.02(8) for this proposition. 3. During the telephone conference on July 16, 2003, Petitioner's counsel confirmed the facts set forth in paragraph one above. Petitioner's counsel requested leave to amend the Petition for Relief to identify the proper respondent (s) and to allege facts sufficient to establish FCHR's jurisdiction. 4. The July 16, 2003, Order Granting Continuance and Placing Case in Abeyance directed Petitioner to file an amended petition on or before August 15, 2003, and a joint status report on or before September 2, 2003. Petitioner has not complied with the order in either respect. Accordingly, Petitioner may no longer advance his claim for relief.
Conclusions For Petitioner: Carroll McCauley, Esquire 36 Oak Avenue Panama City, Florida 32401 For Respondent: Jay O. Barber, Esquire Workforce Florida, Inc. 1974 Commonwealth Lane Tallahassee, Florida 32303
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED : That FCHR enter a final order dismissing the Petition for Relief. a DONE AND ENTERED this 25th day of September, 2003, in Tallahassee, Leon County, Florida.
