The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2007),2 by discriminating against Petitioner based on her national origin.
Findings Of Fact The Omni, advertised as "Omni Orlando Resort at ChampionsGate," is a golf resort located in the Orlando tourist corridor near Walt Disney World. The Omni is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner, Suhra Merdanovic, is a Bosnian female, and her first language is Bosnian. She speaks and understands English, but is more fluent and comfortable using her native language. Ms. Merdanovic was employed by the Omni from approximately August 22, 2006, to October 9, 2006. Ms. Merdanovic worked in the kitchen of the Broadway Deli, a sandwich shop located in the resort. The Broadway Deli was one of several restaurants in the Omni complex. During the brief period of Ms. Merdanovic's employment, the Broadway Deli did not have a full-time manager. Ms. Merdanovic reported to Silvio Rosalen, the sous chef at Teri's Restaurant, near the Broadway Deli in the Omni complex. Mr. Rosalen reported to Robert Fohr, the assistant food and beverage manager for the Omni. The Omni has established a policy that prohibits harassment in the workplace. The policy defines harassment as: ny unwelcome verbal, non-verbal, physical or other conduct or behavior relating to an individual's race, religion, color, sex, national origin, age, disability or any other categories protected by state, federal or local law, that is made a term or condition of employment, is used as the basis for employment or advancement decisions, or has the purpose or effect of unreasonably interfering with work or creating an intimidating, hostile or offensive work environment. The policy "strictly prohibit[s]" employees, supervisors, and members of management from harassing other employees, supervisors, or members of management. The policy directs an employee who has a complaint of harassment to report that complaint to any manager or supervisor, the human resources director, the general manager, or the regional vice president of operations. The complaint triggers a formal investigation, usually conducted by the human resources director. The Omni's harassment and equal employment opportunity policies are set forth in the Omni's Associate Handbook, which is provided to all employees. The handbook is reviewed during an orientation session that all newly hired Omni employees must attend. Ms. Merdanovic attended an orientation session on August 26, 2006, and testified that she was familiar with the harassment policy. The Omni calls the first 90 days of employment an "introductory period." The Associate Handbook describes the introductory period as follows: During this time you will have a chance to see whether you like your job and Omni Hotels will have an opportunity to evaluate your performance and suitability for your position. If Omni Hotels concludes that your job performance and/or suitability have been unsatisfactory, you may be dismissed at any time during the introductory period at Omni Hotels' complete discretion. You may also be dismissed at any time after the introductory period at the sole discretion of Omni Hotels. Both during and after the introductory period, all associates are associates at will. If an employee's manager determines within the first 90 days of employment that an employee's job performance and/or "suitability" is unsatisfactory, the manager will meet with the employee to review the manager's concerns. After this meeting, the employee's job status is "suspended pending investigation" while the manager confers with the human resources department to review the issues. If the manager and the human resources department agree that the employee should be terminated, then human resources will advise the employee of the decision. Ms. Merdanovic testified that two Hispanic co-workers, Erica Torres and Charlotte Ruiz, harassed her because of her nationality. Ms. Torres asked her what she was doing in America and refused to go into the kitchen with her. Both women made jokes and laughed about Ms. Merdanovic being from Bosnia. Ms. Merdanovic testified that her co-workers also disliked her, because she refused to give them free food from the Broadway Deli's kitchen. Ms. Merdanovic did not complain to a manager, supervisor, or any other Omni employee about the harassment she claimed to have experienced. Mr. Rosalen testified that he received numerous complaints about Ms. Merdanovic's job performance from her co- workers. The co-workers told him that Ms. Merdanovic failed to follow instructions, argued with guests and co-workers, interrupted co-workers who were trying to explain how to complete job tasks, gave guests the wrong order at least twice, and failed to comply with the posted work schedule. Mr. Rosalen personally observed Ms. Merdanovic's performance deficiencies on several occasions. The guest complaints were most significant to Mr. Rosalen. On one occasion, the guest had ordered a turkey sandwich, but was served a pastrami sandwich by Ms. Merdanovic. Rather than correcting the order immediately, Ms. Merdanovic attempted to convince the guest to keep the pastrami sandwich by telling him it was good and he would like it. On a second occasion, a guest ordered a milkshake and was served iced coffee.3 At the hearing, Ms. Merdanovic testified that she was unaware of any complaints about sandwiches. She stated that she has worked in kitchens for years and understands how to make sandwiches in a deli. She did complain that she was never trained to operate the "front of the store" equipment such as the milkshake machine or coffee machine, yet was expected to somehow be able to operate them. Mr. Rosalen orally counseled Ms. Merdanovic on multiple occasions regarding her performance deficiencies, but he never observed any improvement. Pursuant to the process for terminating employees during their introductory period, Mr. Rosalen and Mr. Fohr decided to meet with Ms. Merdanovic to discuss her performance deficiencies and to advise her not to return to work until she heard from human resources. After this meeting, Mr. Rosalen and Mr. Fohr would meet with the human resources director to discuss whether to terminate Ms. Merdanovic's employment. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution Notice" form, dated October 2, 2006, that set out the performance deficiencies and possible corrective actions for Ms. Merdanovic. This notice was intended to be the outline for discussion during the meeting with Ms. Merdanovic. Under the heading "Specific Nature of Problem" were various categories, including absenteeism, tardiness, violation of company policies, and unsafe actions. Ms. Merdanovic's problem was categorized as "Performance Below Standards." The specific performance problems were set out as follows: There have been numerous complaints about Suhra Merdanovic's job performance from several of her co-workers. These complaints include: Does not follow training of food preparation techniques and quantities. Does not follow food, coffee and drink recipes. Does not know what all the ingredients are to be able to make recipe. Looses [sic] tickets for orders. Has become argumentative with employees and guests when told that the product is wrong. Has tried to convince guests that mistakenly prepared food is good and tried to get them to take it. Does not understand the schedule after repeatedly having it explained. Interrupts employees and does not let people finish talking when trying to explain how a task needs to be completed. Is not a team player. The notice set forth the following under the heading, "Expected performance or conduct/corrective action required": Suhra must adhere to the following guidelines: Must be receptive to and accept training in all facets of Broadway Deli culinary operations with a positive attitude. Must follow all standard recipes without deviation to achieve a consistent product. Must produce orders in timely fashion in accordance to [sic] the guest's specifications. Must never become argumentative with a guest and try to force a guest to take a product they do not want. Must get along with and assist teammates with all guest needs. The notice concluded that the "disciplinary action taken" would be "Suspension/Termination." On October 2, 2006, Mr. Rosalen and Mr. Fohr met with Ms. Merdanovic in Mr. Fohr's office to review the contents of the Problem/Solution Notice. When her supervisors began reviewing her performance deficiencies, Ms. Merdanovic interrupted to argue with them. Mr. Fohr pointed out that this was the same sort of conduct that led to this counseling session in the first place. Before Mr. Rosalen and Mr. Fohr could present her with the notice and commence the formal suspension/termination process, Ms. Merdanovic began to cry in a way that Mr. Rosalen described as "almost hysterical" for several minutes. Ms. Merdanovic then walked to the kitchen of the Broadway Deli. Mr. Rosalen followed her, both to make sure she was all right and to escort her off the Omni property. Ms. Merdanovic again began crying and saying that she could not breathe. She described her condition as "couldn't breathe, couldn't think, couldn't stay." Mr. Rosalen called in the Omni's security team, which also acts as the resort's first responder in medical emergencies. The entry of the security guards threw Ms. Merdanovic into a greater panic. Eventually, at Ms. Merdanovic's request, the Omni called an ambulance service, which transported her to Florida Hospital in Orlando. Ms. Merdanovic was diagnosed with high blood pressure and discharged after an overnight stay in the hospital.4 After the incident leading to Ms. Merdanovic's hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde- Christie, the Omni's human resources manager, to discuss their meeting with Ms. Merdanovic, the complaints about her from guests and co-workers, and Mr. Rosalen's observations of her performance deficiencies and his previous attempts to correct them. Ms. Borde-Christie agreed that Ms. Merdanovic was not meeting the Omni's performance expectations for her position. In light of Ms. Merdanovic's failure to improve her performance despite Mr. Rosalen's several attempts at verbal counseling, Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was unlikely that Ms. Merdanovic's performance would improve in the future. They decided to terminate her employment. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen met with Ms. Merdanovic to tell her that her employment was terminated and to review the performance deficiencies that caused her termination. When Ms. Borde-Christie attempted to review the performance issues, Ms. Merdanovic became argumentative, stating that these issues were all lies and that her co-workers did not like her. Ms. Borde-Christie testified that Ms. Merdanovic said nothing about her national origin being an issue in the workplace. Ms. Merdanovic produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. The Omni's management did not become aware of her allegations of harassment due to her national origin by her co-workers until Ms. Merdanovic filed her Employment Complaint of Discrimination, more than two months after her dismissal. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination all related to her job performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Omni Hotel Resort did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2008.
The Issue The issue to be resolved in this proceeding concern whether the Petitioner's decedent, Barbara J. Taylor, was discriminated against in an employment decision (termination) by the Respondent based upon her gender and alleged disability.
Findings Of Fact The Petitioner, James Saemenes, is the Personal Representative of the Estate of Barbara J. Taylor. Barbara J. Taylor was the Petitioner's sister. Ms. Taylor, at times pertinent to the facts in this case, had been an employee of the Utilities Department of the City of Fort Walton Beach, working in the Utility Wastewater Treatment Facility Laboratory as Laboratory Manager. The Petitioner, Mr. Saemenes, did not participate in the hearing. The City of Fort Walton Beach provides public utilities to its citizens including wasterwater operations. Mr. John Hofstad is employed as the utilities director for the city, and oversees the city's wastewater operation. Mr. Hofstad was Ms. Taylor's supervisor at times pertinent to this case. The wastewater operation is responsible for collection and treatment of raw waste to suitable discharge standards. There are 13 individuals employed at the wastewater treatment facility. The positions consist of one plant supervisor, eight licensed wastewater treatment plant operators, one pre-treatment coordinator, two maintenance employees, and one laboratory manager. Ms. Taylor was the laboratory manager at times pertinent to this case and her immediate supervisor, Mr. Hofstad was responsible for evaluating her work and initiating any discipline against her, if necessary. Her duties included managing the day-to-day activities of the laboratory, collecting samples throughout the facility, analyzing samples, managing the quality assurance and quality control plan required by the State of Florida and associated daily paperwork. Her duties required effective cooperative interaction with other employees of the facility and the city on a daily basis. Over a substantial period of time, Mr. Hofstad received numerous complaints and expressions of concern from almost every employee regarding the appropriateness of Ms. Taylor's conduct while at work. Employees complained that she was intimidating and abrasive toward them. She demeaned fellow members of the staff based upon their educational background or their level of knowledge about the operations and their jobs. Mr. Hofstad counseled Ms. Taylor on a number of occasions regarding her co-workers' concerns. Mr. Hofstad witnessed Ms. Taylor harassing Mr. McDowell, the Pre-treatment Coordinator, while working in his office. Specifically, she physically placed an object in Mr. McDowell's pocket despite his previous request for her to refrain from distracting him. Mr. McDowell became visibly upset when Ms. Taylor thereafter made an obscene gesture towards him as she left the office area. Mr. Hofstad drafted a memorandum on December 6, 1996, pertaining to the aforementioned incident and provided a written disciplinary action form to Ms. Taylor because of it. Mr. Hofstad executed a personnel evaluation regarding Ms. Taylor on December 9, 1996. She received an unsatisfactory rating in the area of cooperation with fellow employees and team-work. Mr. Hofstad gave Ms. Taylor that rating due to numerous employee complaints indicating that Ms. Taylor had initiated confrontations. Thereafter on March 6, 1998, Mr. Hofstad drafted a memorandum regarding a confrontation which had occurred the day before between Ms. Taylor and Mr. James Whitley. Without authorization Ms. Taylor directed Mr. Whitley to stop conducting certain tests because they would interfere with her job. Ms. Taylor possessed no supervisory authority over Mr. Whitley. When Mr. Hofstad intervened in the situation Ms. Taylor spoke to him in a insubordinate loud and hostile fashion. She raised her voice at Mr. Hofstad and stated that he did not know how to do his job much like the other individuals employed by him. Mr. Hofstad considered her tone and manner to be inappropriate and insubordinate. He executed a Notice of Disciplinary Action based on Ms. Taylor's actions and demeanor and gave her a copy. Thereafter on or about May 14, 1998, Mr. Hofstad was again verbally assaulted by Ms. Taylor. She spoke in an enraged, loud, and abusive manner in the presence of several subordinate employees. Ms. Taylor stated that Mr. Hofstad had no control over the laboratory. Following this incident which he also considered insubordination, Mr. Hofstad spoke to the Public Works Director his superior, Mr. Mark Tate, regarding Ms. Taylor's conduct. Mr. Tate reviewed Ms. Taylor's disciplinary history and in conjunction with Mr. Hofstad determined that the best course of action, after having tried graduated discipline was to terminate her employment. Mr. Hofstad and Mr. Tate spoke with the Human Resources Department Director regarding Ms. Taylor's behavior and potential termination. The Director of Human Resources agreed that Ms. Taylor's termination was appropriate considering her history of progressive discipline and current misconduct amounting to repeated insubordination. Thus Ms. Taylor's employment was terminated. Her termination was not based upon her gender. In fact, she was replaced in her position with another female, Ms. Harriett Holloway. The current laboratory manager, Melissa Woodall, is a female. Mr. Hofstad never discouraged Ms. Taylor from filling out complaint forms during the course of her employment. In fact, he provided such forms to Ms. Taylor in the event that she had a complaint. Her termination was not related to any complaint filed by her, or for engaging in any other protected activity such as applying for vocation rehabilitation benefits or assistance. Further, her termination was not related to any health conditions she possessed. Mr. Hofstad at the time was unaware of any disability or health condition endured by Ms. Taylor. He did not perceive her as disabled. She was fully capable of performing the duties of her job in terms of her physical abilities and would have continued to be employed but for the misconduct referenced above. She never requested any accommodations for any disability or impairment in the workplace from Mr. Hofstad or others in a supervisory role. Neither Mr. Hofstad, nor any other witness, described any occasion where Ms. Taylor was harassed by operations staff. According to unrefuted evidence of record, Ms. Taylor was always the harasser of other employees. Moreover, when Ms. Taylor sought assistance from Mr. Hofstad, he promptly addressed her concerns in a reasonable, unbiased way. The Petitioner never testified in this proceeding.
Conclusions Petitioner: No Appearance Respondent: Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2007. COPIES FURNISHED: Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James P. Saemenes, Personal Representative 46 Higgins Road Brighton, Tennessee 38011-3602
The Issue What is the amount of reasonable attorney's fees and costs incurred by Steven B. Feren and the City of Sunrise in connection with the appeal in The Fourth District Court of Appeal Case Number 94-03008, including services rendered in connection with motions for rehearing.
Findings Of Fact On October 18, 1995, The District Court of Appeal, Fourth District, entered an order granting Petitioners, City of Sunrise and Steven B. Feren's, motion for attorney's fees in Case No. 94-03008. A scrivener's error in the order was corrected by order dated November 9, 1995. The corrected order stated: ORDERED that the motion for attorney's fees filed by Stuart Michelson, counsel for appellees, is hereby granted, and pursuant to Fla. R. App. P. 9.400(b), upon remand of this cause the amount thereof shall be assessed by the trial court upon due notice and hearing, subject to review by this court under Fla. R. App. P. 9.400(c). If a motion for rehearing is filed in this court, then services rendered in connection therewith, including but not limited to preparation of a responsive pleading, shall be taken into account in computing the amount of the fee; . . . . Attorney Samuel Goren (Goren) was retained by the Petitioners to testify at the final hearing on the reasonable amount of attorney's fees incurred by Petitioners. Without objection, Goren was qualified and accepted as an expert on the subject of determining reasonable attorney's fees. Prior to rendering an opinion on the reasonable amount of attorney's fees incurred by Petitioners, Goren reviewed the following documents relating to these proceedings: two volumes of pleadings, Stuart Michelson's correspondence file, unfinished drafts of Stuart Michelson's brief, and eight statements from Stuart Michelson (Michelson) for legal services rendered. Goren is familiar with the case of Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) and Florida Bar Rule 4-1.5. Goren also interviewed Michelson regarding the work he performed. Based on the foregoing, Goren rendered an opinion on the reasonable hourly rate and the reasonable numbers of hours for the work performed and, consequently, a reasonable legal fee for the services rendered. Michelson charged an hourly rate of $125.00 for his services and $40.00 for the services of paralegals. Goren opined that based on Michelson's skill, experience and reputation, that the hourly rates for attorney's services were very reasonable for the community. Additionally, Goren opined that the rate of $40.00 per hour for paralegal services was also reasonable for the community. I hereby find that the hourly rate of $125.00 for Michelson's services and the hourly rate of $40.00 for the services of a paralegal are reasonable. The services of the Michelson law firm relating to the appeal to the Fourth District Court of Appeal and the motion for rehearing were performed from October 17, 1994, through November 13, 1995. The reasonable amount of attorney hours for the appeal of the final order of the Ethics Commission to the Fourth District Court of Appeal, including services in connection with Colon's motion for rehearing is 88.2. At $125.00 per hour, this amounts to a reasonable fee of $11,025.00. The reasonable amount of paralegal hours for the appeal of the final order of the Ethics Commission to the Fourth District Court of Appeal, including services in connection with Colon's motion for rehearing is 15.45. At $40.00 per hour, this amounts to a reasonable fee of $618.00. The services of the Michelson law firm relating to the determination of the amount of the fees was performed from December 18, 1995 through the date of the final hearing. In addition there will be additional time which will be necessary to bring the proceeding to a Final Order. Michelson submitted invoices to Petitioners dated February 9, 1996 and May 16, 1996. A review of the invoices indicates that some of the services provided did not relate to the fee hearing but to other matters including a lien. Based on the invoices the following dates appear to be for services related to the fee hearing: December 18, 19, 21, and 30, 1995; January 10, 18, 19, and 25, 1996; May 6, 7, 10, 11, 14, 15, and 16, 1996; and May 8 and 9, 1996, excluding lien services. Based on these invoices the reasonable amount of attorney hours for the determination of the amount of fees through May 16, 1996 was 12.5, which equates to $1,562.50. Goren opined that an additional 20 to 25 attorney hours will be needed to bring this case to final conclusion with a final order being entered by the Ethics Commission. A reasonable number of attorney hours necessary to bring this case to final conclusion from the date of the final hearing to the entry of a final order by the Ethics Commission is 25 hours and a reasonable rate for the attorney's time is $125 per hour. The reasonable amount of fees that would be incurred from the final hearing to the entry of a final order by the Ethics Commission is $3,125.00 The attorney and paralegal services and costs contained in the December 8, 1995, statement from the Michelson law firm deal with a petition for certiorari and are not within the scope of the order by the Fourth District Court of Appeal. The amount of reasonable costs incurred by Petitioners in this proceeding and the appeal to the Fourth District Court of Appeal is $896.70. Goren charged the Petitioners $350 for services as an expert witness in connection with these proceedings from October, 1995 through April 30, 1996. Goren spent an additional 9.7 hours on this matter through the final hearing. Goren's hourly rate of $125 is reasonable. The number of hours spent by Goren is reasonable. Goren's fee of $1,562.50 is a reasonable fee for an expert witness in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED a final order be entered awarding Petitioners, Steven B. Feren and the City of Sunrise $18,789.70 for reasonable attorney's fees and costs. DONE AND ENTERED this 29th day of May, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 29th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-6181FE To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-3: Accepted. Paragraphs 4-6: Rejected as not supported by the evidence. Paragraphs 7-8: Accepted. Respondent's Proposed Findings of Fact. The Respondent's Recommended Order did not contain findings of fact. COPIES FURNISHED: Stuart R. Michelson, Esquire 1111 Kane Concourse, Suite 517 Bay Harbor Islands, Florida 33154 Mr. Bill Colon 11640 Northwest 30th Place Sunrise, Florida 33323 Carrie Stillman, Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issues for consideration in this hearing are whether the Respondent discriminated against the Petitioner in employment because of his national origin, and whether Respondent unlawfully retaliated against Petitioner by discharging him from employment.
Findings Of Fact At all times pertinent to the issues herein, Respondent, CCCS, was a nonprofit charitable corporation engaged in providing personal financial and credit counseling in Tampa, affiliated with the United Way. It is an employer within the meaning of the Human Rights Act of 1977 and Title 7 of the Civil Rights Act of 1964, as amended. CCCS has adopted, and had in effect at all times pertinent herein, a written policy of equal employment opportunity and affirmative action. This policy is outlined in a personnel policy manual prepared by CCCS which is provided to all employees and which was provided to Petitioner. In August, 1991, CCCS management decided to hire an individual to fill the vacant accounts manager position. Initial screening of applicants was conducted by Gloria Jackson who interviewed several candidates, including Petitioner, and recommended three of these to the President, Diane Trithart. Petitioner, Emmanuel Ebeh, was one of the three recommended and was the successful candidate selected by Ms. Trithart. At the time, Petitioner, who is black and a native of Nigeria, was residing, with his family, at Metropolitan Ministries because he was unable to provide housing and sustenance for his family without employment. He had no experience in either personal financial management or employee supervision. Up until that time, he had worked as a cook, a kitchen helper, a mail room clerk, and a pipe-fitter's helper. However, even with his lack of supervisory experience and an absence of supervisory training, Ms. Trithart felt he should be afforded this opportunity. Petitioner's immediate supervisor was Ms. Jackson. She assisted Petitioner and his family in their move into government assisted housing, even to the extent of having her husband rent a truck to help move Petitioner's personal belongings and the furniture donated by Metropolitan Ministries to their new home. Once installed in the job, Petitioner was provided with a six weeks training program, including a syllabus, to assist him in making the transition into his new position. Nonetheless, it appears that during his training period, Petitioner had difficulties accomplishing his job tasks. Within six weeks, Ms. Jackson met with him to discuss errors made in client deposit entries and at that time, provided him with written procedures to follow. She gave him a two week warning confirmed in a written memorandum dated September 17, 1991, the date of the counseling. On September 26, 1991, Ms. Jackson followed up the two week warning period with another memorandum which noted the continuation of existing problems in Petitioner's department and which extended the warning period to October 4, 1991. Mr. Ebeh continued to experience job difficulties. At first, one of his employees, Ms. Warhul, tried to cover for him, but was unable to continue to do both her own job and his. As a result, she contacted Ms. Jackson and described the situation as she saw it. Ms. Jackson then tried to discuss the matter with Mr. Ebeh. However, whenever she did, he would insist on speaking with Ms. Trithart about the issues, claiming he felt it necessary to resist Ms. Jackson's directions. Ms. Trithart promptly and explicitly explained to Mr. Ebeh that his unjustified resistance of Ms. Jackson's direction constituted insubordination and would not be tolerated. Nonetheless, he continued to resist any guidance from Ms. Jackson, whether in the form of direction or constructive correction, becoming defensive and contending that his intentions were good and he was being misunderstood. He claims that Ms. Jackson was always on his back. Petitioner's performance problems were not isolated however, nor were they restricted to incidents with Ms. Warhul. He frequently had problems with misplaced files, posting entries to wrong accounts and other errors of a similar nature which were observed by other CCCS employees. On one occasions, Ms. Jackson asked Petitioner to prepare a letter to creditors who had worked with CCCS in the past but who were not currently participating in their program. She specifically requested that Petitioner let her review a draft of the letter before it was dispatched. Notwithstanding that direction, Petitioner prepared a letter, dated March 4, 1992, which contained a number of grammatical errors and misstatements of procedure and policy, and dispatched it to approximately 2,500 creditors without allowing Ms. Jackson or anyone else in authority to review or approve it. He thereafter left a note on the desk of Mary Jennus, CCCS' education coordinator, advising her that Ms. Jackson and Ms. Trithart wanted her to make changes in the letter and enclosures. This was not so. On March 19, 1992, Ms. Trithart called a meeting with Petitioner, Ms. Jackson and Ms. Jennus to discuss this letter, and at which she orally reprimanded Petitioner both for sending it out without authority and for the inappropriate use of her name in giving false instructions to Ms. Jennus. This meeting was subsequently memorialized by memorandum. Though management contended Petitioner's letter adversely impacted on the agency's image, he asserts it had good results in that some income was realized. On March 30, 1992, Ms. Jackson prepared a written evaluation covering Petitioner's performance for the prior six months. This report indicated Petitioner had continuing problems in the performance of his duties and in his supervision skills. It also called for a further review in 90 days to assess his progress in meeting the requirements of his job. Petitioner refused to sign this evaluation and requested a meeting with Ms. Trithart. Though a note by Ms. Jackson on the evaluation indicates she would arrange that meeting, it cannot be determined if, in fact, such a meeting took place. However, on April 13, 1992, Petitioner prepared a memorandum to operations personnel in which he alludes to "miserable and harsh treatment from management and especially our boss." He also noted the possibility his employees might not be satisfied with his treatment of them and solicited their comments and complaints to him or to the assistant director. This memo discomfited at least one of his employees, Ms. Warhul, who took exception to it in writing. Ms. Mosley also disagreed with his conclusions regarding a harsh working environment and thought it inappropriate for him to send out such a memo without consulting the other employees in the department. He was the department head, however, and his memo, though it might be considered ill advised and somewhat inflammatory, was from him to the people in his department. He did not claim his conclusions were theirs nor did his comments accuse them of misconduct. A meeting of all operations personnel was called by Ms. Trithart for April 13, 1992, the date of that memo. All employees were given the opportunity to express their concerns and it became apparent that not all operations personnel agreed with Petitioner in his characterization of their work environment. The memorandum of that meeting indicates his subordinates see Petitioner as an individual who broods over situations and lets things build up to a point where he writes a memo rather than discussing the problem. An example of this is Petitioner's note on a memo dated April 13, 1992 encouraging all employees to take their lunch break and reminding them that only time before and after normal duty hours may be considered for compensatory time off. Petitioner describes this memo as "inconsiderate treatment" and concludes it was directed at him because he was not taking lunch breaks because he "was sad and depressed because of how [he] was constantly humiliated." After the meeting on April 13, 1992, Ms. Trithart again reviewed Petitioner's file and determined that in light of his most recent infractions, including the unauthorized creditors letter and the false instructions to Ms. Jennus, and his continuing performance mistakes, it would be best to terminate his employment. Her rationale was that he could not be an effective supervisor if he felt, as he clearly did, that he did not have the support of either his employees or his supervisors, and this was compounded by his insubordination which, she believed, undermined the morale in his department and Ms. Jackson's authority as his supervisor. He was, therefore, discharged on April 13, 1992. None of the employees who testified indicated, nor was there any other independent evidence to establish, that Petitioner had been treated any differently while employed by CCCS than any other employee. By the same token, save the personal impressions testified to by Petitioner, there was no indication that either race or national origin played any part in the decision to terminate his employment and it is found they did not. To the contrary, the evidence is clear that the decision to terminate Petitioner's employment with CCCS was based on his failure to meet required standards in the performance of his duties and nothing more. The same is true regarding his claim that his discharge was in retaliation to his complaint in his April 13, 1992 memo regarding what he perceived as the harsh working environment both he and his subordinates had to endure. In that regard, it is found that the memo in question is, in itself, insubordination and evidence of the improper work climate created by the Petitioner rather than his employers. Had he truly felt the treatment given him was harsh, miserable and unfair, the grievance procedures outlined in the personnel manual he had been given would have provided an appropriate avenue for adjustment as opposed to the inflammatory and insubordinate action he took. Petitioner claims his supervisors did not uniformly apply company standards. He asserts he has been treated differently from white employees who were treated with kindness and politeness and when found to have committed errors in their performance, were given time to improve. For example, he cites the case of a Ms. Sweeny who refused to sign an acknowledgment of error and who was merely demoted instead of discharged. In his case, he notes, he met with hostility. He claims no concern was given to the legal issues involved in his situation and he was discharged right away. This is, however, not the case. The evidence is quite clear that Petitioner was counselled on several occasions and evaluated formally during his period of employment with no discipline taken against him. Only when he published the insubordinate memo of April 13, 1993 was action taken. On the basis of that memo and the record of his substandard prior performance, Ms. Trithart decided to discharge him. Petitioner also claims that Ms. Warhul and others who testified against him were engaged in a conspiracy to hide the unhealthy atmosphere which existed. He asserts he was told by Ms. Warhul she would not support him when he wrote his memo because she was afraid of losing her job. It is his contention that she and he were previously close. In actuality, though she was under his supervision, she gave him much of the training he received. He believes that she and many other employees do not like Ms. Jackson but are afraid to say so. Petitioner offered no independent proof of this contention, however, and it is found to be unsupported. Petitioner also takes exception to the claim by CCCS's management that his English was hard to understand. He claims that during the entire 8 months he worked there, his English was never criticized until such time as the decision was made to discharge him. At that time, he contends, he was told that he did not project the proper image the company desired. Mr. Ebeh also notes that he was constantly confronted with a situation where his immediate supervisor would approve something he did and then deny it. Ms. Jackson would approve in advance something his department proposed and then, when it was not well received, deny approving it. Petitioner claims that because of the actions of CCCS's management, he has undergone great stress. When he applied for the position with the firm he and his family were homeless and he admits he was helped considerably by the job and the company personnel. However, he claims he did not get all the help for free and asserts he has paid back for what he received during those first few weeks. He also claims that he has been maligned by company personnel who reported to his job service counsellor that he was soliciting money from coworkers and that he had a bad body odor. These comments humiliated him and he notes that they did not come about until after he complained to Ms. Trithart. Petitioner has no job now and no income and claims to be suffering from health problems. As of April, 1993, a Department of Health and Rehabilitative Services physician noted that he is suffering from raised cholesterol which interferes with his employment "for the present." His total monthly income for himself, his wife and his four sons is $600.00, out of which he must pay approximately $300.00 in rent and $113.00 for utilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that a Final Order be entered dismissing Emmanuel Ebeh's Petition for Relief from the alleged unlawful employment practices of discrimination based on race or national origin, and of retaliation filed against the Respondent CCCS. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1993. COPIES FURNISHED: Emmanuel B. Ebeh 4002 East Pocahontas, #110 Tampa, Florida 33610 James R. Freeman, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 E. Kennedy Blvd., Suite 1000 Tampa, Florida 33602 Sharon Moultry, Clerk Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
Findings Of Fact Prior to March 9, 1983, Petitioner had been employed by Respondent for a period of approximately 13 years. On March 9, 1983, Petitioner was serving as Superintendent of Respondent's West Palm Beach Field Station, a position which required that he supervise some 88 of Respondent's employees. By memorandum dated March 9, 1983, Petitioner was terminated from his position with Respondent by virtue of Respondent's contention that he discharged his responsibilities in an unsatisfactory manner. In the memorandum of March 9, 1983, Petitioner was advised that he had been advised of the shortcomings leading to his discharge in performance reviews conducted pursuant to Respondent's Merit Review Program from as early as April 1977, through October of 1982. Respondent's Merit Review Program, which was in effect at the time of Petitioner's termination, "...establishes policies and procedures for evaluating and recognizing employee performance This policy....applies to all District employees filling a permanent position The program establishes a procedure whereby Respondent's employees are evaluated twice yearly to determine their level of performance and to make salary adjustments. There is no provision in the Merit Review Program for either disciplining or discharging a District employee as a result of performance reviews conducted pursuant to the policy. The Merit Review Program establishes six types of merit reviews, which include normal, interim, initial probation, proportional, positional probation, and special probation. Supervisory personnel conducting reviews are required to follow specific procedures within each of these categories. In addition to the six categories of merit reviews, the Merit Review Program establishes a complex and mandatory evaluation procedure for supervisors conducting reviews. The program also establishes a mandatory appeal procedure should an employee disagree with his rating. Evaluation factors utilized in the program are defined and established from "outstanding" performance to "unacceptable" performance. The program establishes specific performance categories including planning, organization, coordination, administration, control, human relations, knowledge of work, leadership, dependability, communications skills, efficiency, judgment, performance skills, initiative, cooperation, and job knowledge. Effective July 18, 1982, Respondent effectuated a Corrective Action Policy for resolving performance problems and violation of Respondent's rules of conduct. This policy categorizes unsatisfactory behavior, divides disciplinary action into four categories according to the Seriousness of the offense, and establishes penalties ranging from verbal warnings for less serious offenses to termination of employment for more serious violations. This policy is not challenged in this proceeding. The Merit Review Program, which is the subject matter of this proceeding, provides a procedure whereby employees may appeal the result of a merit review within five days of receipt of their copy of the Merit Review Form should they disagree with the contents of that review. Although Petitioner had received merit review ratings for at least seven years prior to the date of final hearing in this cause, there is no evidence that he ever appealed any such evaluation. Although it is undisputed that Respondent did not comply with the rulemaking procedures established In Section 120.54, Florida Statutes, prior to adoption of the Merit Review Program, it is equally clear that results from the Merit Review Program in this case were used solely to document Petitioners performance problems for purposes of applying Respondent's Corrective Action Policy, thereby resulting in Petitioner's discharge from employment
The Issue The issue is whether Respondent should be terminated from employment with the City of Clearwater (City) for falsifying his pre-employment medical application, as alleged in the City's Termination and Dismissal Notice (Notice) dated July 7, 2014.
Findings Of Fact From 1995 until early 1999, Respondent was employed by Pinellas County (County) as a Maintenance Worker II. See Ex. A, p. 5. In April 1998, he suffered a knee injury during a County- sponsored softball game. Due to the injury, he was dismissed from employment with the County on February 25, 1999, on the ground he was incapable of performing the essential functions of his job classification, even with a reasonable accommodation.1/ See Ex. I, p. 6. At that time, Respondent was determined to have reached maximum medical improvement with a permanent impairment rating of 36 percent. See Ex. I, p. 7. This meant that he could only perform his job duties at a 64 percent level. In return for releasing all claims, in 2005 he received a payment from the County in the amount of $100,000.00 as settlement for his on-the-job injury. See Ex. I, pp. 28-31. In October 2011, Respondent applied for a position with the City.2/ See Ex. A. As a part of the employment process, an applicant is required to complete an Application for Employment (Application). The Application required Respondent to certify that "the information contained in this application is correct and complete to the best of my knowledge" and that "any false information provided by [him] to the City may constitute grounds for immediate discharge regardless of when the information is discovered by the City." Id. at p. 4. If the City decides to hire an applicant, he must then complete and submit a Medical History Questionnaire (Questionnaire). Respondent completed and filed the Questionnaire on November 21, 2011. See Ex. C. Based upon his Application and Questionnaire, Respondent was offered a position as a Park Service Technician I, a "basic manual, landscape" entry-level position in the Parks and Recreation Department. He began working in December 2011. In January 2013, he was reclassified as a Park Service Technician II. Both positions are labor-intensive and required Respondent to lift, push, or pull items weighing up to 75 pounds. See Ex. B., p. 2. In short, the job involves physical work 100 percent of the time and is considered "one of the [City's] heaviest positions, in terms of the physical labor requirements." Because of the nature of the work, the City will not hire any applicant with an existing medical disability for these positions. The City has adopted a Performance and Behavior Management Program manual that applies to all employees and contains Citywide, Integrity, and Departmental standards of conduct. Also, pursuant to the Code of Ordinances (Code), the Civil Service Board has adopted a set of rules and regulations that apply to all positions in the civil service, including Respondent's position. Among other things, those regulations set forth additional grounds for disciplining an employee. Question 2.10 of the Questionnaire asks if the applicant has "[a]ny permanent physical condition which received an impairment rating?" Respondent answered no. In response to question 2.11, he denied having any health-related reason that might affect his ability to work as a park service technician. In response to question 2.6, he denied having any injury, operation, disease, or disability not covered by previous questions. In response to question 2.10, he denied having any physical conditions which received an impairment rating. Each of these responses was not true. He also failed to answer questions asking if he had ever filed an injury report with a previous employer (question 2.5) or had ever received a settlement for inability to work (question 2.9). In the comments section of the Questionnaire, Respondent stated that he twisted his knee in 1998, he had arthroscopy on the knee (a minimally invasive surgical procedure), but he had no existing problems. For unexplained reasons, the City either failed to notice that questions 2.5 and 2.9 were not answered, or it did not ask Respondent to complete the form. Respondent had two injuries on the job while working with the City, both of which resulted in him filing workers' compensation claims. When the second injury was being processed by the insurance carrier in May 2014, it noted that Respondent had previously filed a claim with the County in 1998 and instructed the City's Risk Department to contact the County.3/ The City then learned for the first time that Respondent had a permanent disability rating of 36 percent assigned in 1998 and that, in 2005, he had received a $100,000.00 settlement for his injury. Apparently for the first time, the City also noticed that Respondent had not answered questions 2.5 and 2.9 on his Questionnaire. After discovering this information, the Parks and Recreation Department Director recommended that Respondent be terminated for violating City rules and standards. The Director testified at hearing that had this information been initially disclosed, he would not have hired Respondent due to the labor- intensive nature of the work. Civil Service Board regulations allow an employee to present the circumstances which led to his dismissal and other mitigating evidence. See ch. 13, § 8, Rules and Regs. Pursuant to that regulation, Respondent requested a disciplinary determination meeting with the Department of Human Resources, which was conducted on July 1, 2014. Respondent was represented at the meeting by the president of his union. After considering Respondent's explanation, on July 2, 2014, the Parks and Recreation Department again recommended that Respondent be terminated. On July 7, 2014, the City Manager notified Respondent that he was being terminated effective the following day, July 8, 2014. Respondent timely requested a review of that decision by a hearing officer (administrative law judge). The record does not disclose why the case was not referred to DOAH for almost one year. The evidence shows that Respondent knew, or should have known, that by disclosing that he had a permanent disability rating, he received a settlement from the County for an injury on-the-job, and he was discharged by the County because of a disability, he would not have been hired by the City. The failure to disclose that information is contrary to City policies, standards, and regulations. Respondent testified that he probably answered the medical questions incorrectly because he failed to pay close attention to the information being requested and he filled out the form quickly. He further explained that he was always under the impression that the County did not discharge him in 1999 because of a disability, but rather because it could not hold his position open for more than ten months. The evidence, however, shows otherwise. See Endnote 1. He had no explanation for failing to answer questions 2.5 and 2.9, except that he may have overlooked those items. Had he completed the Questionnaire accurately and completely, he would not have been hired. At hearing, Respondent testified that the investigation which led to his dismissal was triggered by bad relations with his landscape manager, who became upset when he observed Respondent using a handicapped license plate to park his car in a handicapped space and did not believe Respondent was disabled. Respondent suggested that this led to the City's examination of his Application and Questionnaire, and his ultimate dismissal. Respondent obtained the special license plate in 1999 when he was given a disability rating by the County, and he continued to renew the tag for around 15 years. However, the issue concerning the license plate played no role in the City's decision to terminate Respondent. Respondent had a blemish-free record while working with the City. He testified without dispute that even with a disability rating and a brace on his left leg, he performed every assigned task and was always given good evaluations by his supervisors. He wants to continue working for the City in order to support his wife and seven children. While termination may be a harsh penalty, the City has ample authority under its Code to take that action. Whether Respondent is eligible to be hired in another position that requires no physical labor is not of record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Notice are sustained, and that Respondent be terminated as a Park Service Technician II. DONE AND ENTERED this 13th day of October, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2015.
The Issue Whether Respondent, First Coast Technical College (Respondent) retaliated against Petitioner, Gregory R. Lulkoski (Petitioner) in violation of the Florida Civil Rights Act of 1992 (FCRA), section 760.01-760.11, Florida Statutes?1/ Secondary issues raised by Respondent are whether the St. Johns County School Board (School Board) is immune from Petitioner’s allegations, and, if not, whether the School Board was Petitioner’s employer during the relevant period.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the School Board by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). A charter technical school is a creature of Florida statute, distinct from school boards and districts, including those school districts in which they are located, which act as the sponsor of the school. FCTI and the School Board entered into a charter which governed the operating relationship between them. The last operative charter between FCTI and the School Board became effective July 1, 2013. The School Board was the sponsoring entity of FCTC under the charter. The School Board had no involvement in the day to day operations of FCTC when it was operated by FCTI. FCTI had its own management team and board of directors. FCTI had its own articles of incorporation, employment handbook, organizational structure, management plan, human relations (HR) director and department, and its own legal counsel. FCTC’s president, Sandra Raburn-Fortner, entered into a contract of employment with FCTI. No one from the School District is on FCTI’s organizational chart. FCTI and FCTC management, and not the School Board, were responsible for the daily operations of FCTC and all personnel matters of FCTC employees. FCTI had its own procedure in its employee handbook for reporting discrimination and harassment. FCTC employees were designated as School Board employees solely for wage payments, benefits, and collective bargaining purposes under the charter. For this reason, FCTC employees received checks and tax documents from the School Board and the School Board remitted contributions to the Florida Retirement system on their behalf. FCTI reimbursed the School Board for these pass-through expenditures, and the School Board charged FCTI a fee for this service. The School Board’s only involvement in personnel- related decisions of FCTC was the ministerial act of the School Board superintendent signing off on employment decisions made by FCTI officials, which were then placed on the consent agenda of the School Board to be approved at its next meeting. This process--which was necessary given the fact that FCTC employees were designated as School Board employees under the charter for wage payment, benefits, and collective bargaining purposes-- involved ensuring the statutory requirements to take an employment action were met, but did not involve second-guessing the merits of the personnel decisions made by FCTI. Indeed, the charter expressly provides that the School Board assigns and FCTI assumes and retains all responsibility for FCTC employees, including responsibility for the selection and discipline of employees, and all other aspects of the terms and conditions of employment at FCTC. Petitioner submitted his application for employment to FCTC. Petitioner had an FCTC e-mail address and not a school district e-mail address. The School Board was the signatory to some grant applications for funding to be expended at FCTC, however, FCTI was responsible for fulfilling the obligations relating to the grant awards, and appropriately utilizing those funds at FCTC. The School Board was not involved in the day to day administration of programs funded by those grants at FCTC. During the spring of 2016, district personnel became aware of financial irregularities at FCTC through its monitoring of FCTI’s unaudited financial statements. Under state statute, the School Board was required to take certain actions as the sponsor of FCTC when put on notice that FCTC might be in a deteriorating financial condition. The School Board investigated those irregularities and found significant financial mismanagement and budgetary shortfalls at FCTC under FCTI’s administration. On May 3, 2016, the School Board declared that the school was in a deteriorating financial condition. This declaration triggered statutory obligations on the part of the School Board and FCTC to develop a corrective action plan to address these issues. On May 26, 2016, the School Board served a notice of financial emergency stating that it had reason to believe that there was a financial emergency at FCTC and that there was no way to save FCTC other than to terminate the charter and begin operating the programs at FCTC itself. The School Board Superintendent sent a letter to FCTI’s board on June 8, 2016, detailing the findings of the School Board’s investigation into FCTC and the financial issues plaguing the school. On June 14, 2016, FCTI’s board voted to terminate the charter with the School Board and cease operating the programs at FCTC, effective June 31, 2016. On June 15, 2016, the School Board voted to approve an agreement to terminate the charter with FCTI and to take over the programs at FCTC effective July 1, 2016. As part of this transition of the responsibility for operating FCTC, the School Board and FCTI entered into an agreement specifically stating that any liabilities of FCTC arising prior to July 1, 2016, would not be assumed by the School Board. Just before the School Board began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed his Complaint with FCHR. In that Complaint he alleges that he was retaliated against for engaging in protected activity. Petitioner specifically listed two discrete instances of alleged protected activity in his Complaint: I am being discriminated against on the basis of retaliation by my employer. I began employment with Respondent on 11/7/2007, as a Case Manager and most recently as a Grant Writer. On 5/21/2015, I filed a formal grievance due to harassment and nepotism; creating a hostile work environment. This grievance was investigated internally but I never received a response. On 6/30/2015, I filed a second grievance after experiencing retaliation by my Supervisor, Renee Stauffacher. Up to date, both grievances remain unanswered and I continue to experience harassment and retaliation. Petitioner’s claim of discrimination was based solely upon a charge of retaliation. Petitioner did not allege that he was discriminated against based upon race, religion, age, marital status, or any other protected class. Petitioner filed the first grievance referenced in the FCHR Complaint on May 21, 2015, alleging that FCTC’s then- president, Sandra Raburn-Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and over e-mail. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner does not allege in this grievance that he was mistreated by any School Board employee, and he did not direct the grievance to anyone at the School Board. Petitioner filed this grievance with FCTC’s human resources office. In his second grievance, filed June 26, 2015, Petitioner alleges that Renee Stauffacher, his supervisor at the time, retaliated against him for naming her in his May 21, 2015, grievance by giving him an evaluation on June 26, 2015, that contained some information or statements with which he disagreed, even though he thought the evaluation itself was good and that he was given high numbers. No one from the School Board was involved in this evaluation. When Ms. Stauffacher gave Petitioner this evaluation, she was an employee of FCTC and not the School Board. Petitioner alleges that Sandra Raburn-Fortner retaliated against him for his first two grievances by giving him another position. That change, from “Career Pathways Supervisor” to “Grant Writer” occurred on or about August 4, 2015. Petitioner’s salary did not change. At this time, Ms. Raburn-Fortner, who had a contract with FCTI, was an FCTC employee, and not an employee of the School Board. Later, in the Spring of 2016, Petitioner submitted numerous other grievances, a total of nine more, to FCTC officials and FCTI’s board. Petitioner only introduced his ninth and tenth grievances into evidence at the final hearing. Both are similar. Those grievances, both filed on June 13, 2016, allege that Ms. Raburn-Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s human resources director, and Ms. Stauffacher, were complicit in that nepotism. Both grievances state that Petitioner believed he was disclosing violations of equal employment opportunity law. During the time that Petitioner submitted these additional grievances, the School Board was in the process of investigating the financial irregularities at FCTC. Petitioner submitted some of these grievances to School Board officials, who told him he needed to take his concerns to the FCTI Board who was still operating FCTC at the time pursuant to the charter. None of Petitioner’s complaints, including those relayed to the School Board and its officials, concerned complaints of discrimination based on a protected class, or retaliation for complaining about discrimination based on a protected class. Petitioner stated he believed he was reporting equal employment opportunity violations in alleging Ms. Raburn-Fortner was hiring or favoring friends and family, because this action prohibited members of many different protected classes from getting a fair shot at positions that would go to family, friends, or associates of Ms. Raburn-Fortner. Petitioner admits all protected classes were treated similarly in this regard and that all protected classes lacked equal access to positions if they were not friends or family of Ms. Raburn-Fortner. While Petitioner does not allege any discrete instances of retaliation that occurred after his title change, Petitioner also contends that he was harassed, including that he felt harassed about how data at the school was handled, the pressure put on him by financial difficulties brought about by the administration of FCTI, and that he was given the cold shoulder by peers. By May 2016, Ms. Raburn-Fortner was no longer working at FCTC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 5th day of September, 2018, 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 5th day of September, 2018.
