The Issue The issue in the case is whether the Petitioner violated the Civil Service Act and the rules and regulations of the Pinellas County Sheriff's Office by allegedly failing to perform assigned duties and other responsibilities and by insubordination towards a superior officer.
Findings Of Fact From August 1999 to August 21, 2003, Pinellas County Sheriff Everett S. Rice (Respondent) employed Richard Reed (Petitioner) as a detention deputy at the Pinellas County Jail. The Petitioner was a member of the Special Operations Division at the jail. The usual practice at the jail was for deputies to receive their daily work assignments at a morning "read off," where information was read to employees by superior officers. At the May 30, 2003, read off, the Petitioner was assigned to the male "Marchman" unit. The Marchman unit is the section of the jail where persons under the influence of alcohol or other substances are held in protective custody until the influence has subsided. There are separate Marchman unit sections for males and females. Because of the nature of the persons held in the Marchman unit and the potential for self-injury, the Marchman unit is considered a high liability area. Deputies assigned to Marchman duty are expected to report to and inspect the unit immediately following the read off, account for all persons being held in the unit, account for the unit's keys and equipment, and relieve the person assigned to the unit during the previous shift. When there are persons present in the Marchman unit, the assigned deputy remains in the unit. When the Marchman unit is unoccupied, the deputy is re-assigned to other duty, generally to assist in the processing area of the jail. On May 30, 2003, there were no male detainees in the Marchman unit. Whether or not there are detainees in the unit, the inspection must be conducted and then logged into a book maintained at the unit. The assigned deputy is also responsible for having the Marchman unit cleaned during the deputy's shift. On May 30, 2003, the Petitioner failed to go to the Marchman unit. He did not inspect the unit. He made no notations in the logbook. He failed to have the unit cleaned. The Petitioner testified that he completed the inspection, and because there were no detainees present, he went to the processing area and merely forgot to note his inspection in the logbook. The Petitioner's testimony lacked credibility. In addition to failing to perform his Marchman unit responsibilities, the Petitioner misinformed a superior officer about the status of the unit. At some point during the day on May 30, 2003, Corporal John A. Squillante asked the Petitioner about the status of the Marchman unit, and the Petitioner told Corporal Squillante that it had been "taken care of." Because May 30, 2003, was a busy day at the jail, the processing area was very active and there were persons waiting to be processed and admitted into the detention facility. Sergeant Loren Jones sought the assistance of additional nursing staff to perform routine examinations on the waiting detainees so that a backlog of persons awaiting admission to the facility could be cleared. Nurse Black responded to the sergeant's request. Upon arrival at the processing area, Nurse Black asked for a chair to sit on while she worked. Sergeant Loren Jones, III, entered his own office and found the Petitioner sitting there. It was not unusual for detention officers to use the sergeant's office while on break or at lunchtime. Sergeant Jones requested the Petitioner to get a chair for Nurse Black. The Petitioner replied to Sergeant Jones, "Fuck you, I'm not doing it." Sergeant Jones repeated the request and the Respondent then complied. Later in the day, the Petitioner, after becoming aware that Sergeant Jones had reacted negatively to the remark, attempted to explain to Sergeant Jones that the remark was made in jest. Sergeant Jones was busy and refused to talk to the Petitioner about the incident. The evidence fails to establish that Sergeant Jones had any reason to believe at the time the Petitioner made the remark that the Petitioner was joking. The statement was not made in a joking manner, and the Petitioner did not have the kind of relationship with Sergeant Jones that would have permitted such a response. Towards the end of the shift on May 30, 2003, the female Marchman unit logbook was determined to be missing. An attempt to locate the missing book was initiated, and both the Petitioner and Deputy Jasmina Buric, the detention deputy who had been assigned to the female Marchman unit duty at the morning read off, were called on their radios to assist in the search. Deputy Buric responded to the radio call. The Petitioner did not respond to the radio call. On her way to assist in the search, Deputy Buric saw the Petitioner and told him that they had been directed to assist in the search. The Petitioner replied to Deputy Buric, "Fuck that, I'm going home." The Petitioner did not return to assist in the search for the female Marchman unit logbook. The Petitioner asserts that he did not respond to the radio call because he did not hear it. He testified that his radio battery was discharged. The evidence establishes that there were additional batteries available to the Petitioner and that it is the Petitioner's responsibility to assure that his equipment is operational. In any event, the Petitioner was aware of the radio call because Deputy Buric informed him of it. When the female Marchman unit logbook was located, the male Marchman unit logbook was examined at which time the Petitioner's failure to make an entry in the logbook was discovered. Upon further investigation, the Respondent became aware that the Petitioner had not performed an inspection of the Marchman unit earlier in the day. Based on the events of May 30, 2003, a complaint was made against the Petitioner by his supervisor, and an investigation resulted. Following the investigation, the Administrative Review Board determined that the Petitioner had violated the Respondent's rules and regulations and that the Petitioner's employment should be terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of Pinellas County Sheriff's Office enter a final order finding Richard Reed guilty of violating the rules and regulations of the Pinellas County Sheriff's Office as set forth herein and terminating his employment as a deputy with the Pinellas County Sheriff's Office. DONE AND ENTERED this 2nd day of January, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 2004. COPIES FURNISHED: William M. Laubach, Esquire Pinellas County Police Benevolent Association 14450 46th Street, North, Suite 115 Clearwater, Florida 33762 Keith C. Tischler, Esquire Allen, Norton & Blue, P.A. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Jean H. Kwall, General Counsel Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500
Findings Of Fact David M. Blackketter is a Career Service Employee with appellate rights who was suspended for two days by the Department of Transportation and who filed a timely appeal of said suspension to the Career Service Commission. David M. Blackketter was employed by the Department of Transportation in June 1976 as a Highway Technician III with duties as a crew foreman for the Department of Transportation. On June 28, 1976, T. C. Bradford, District Maintenance Engineer, was in his office at the Department of Transportation maintenance facility and from the window of said office observed what appeared to him to be a fight. (T-7) He observed John Knight, a Highway Technician II, swinging his fist at the Appellant, David M. Blackketter. Blackketter was several feet from Knight and was moving toward Knight. (See T-8) Bradford did not see Blackketter strike at Knight, although he saw Blackketter move toward Knight with his hands in front of him. (T-10,11) Bradford directed Angel Alvarez, his Maintenance Supervisor, who was present in Bradford's office, to go out into the yard and stop the men and have them report to Bradford that afternoon. (T-7) Angel Alverez left Bradford's office and went to where the men were. When he left Bradford's office, he observed the Appellant Blackketter moving towards John Knight and Knight taking off his cap and sun glasses, throwing them to the ground, and moving toward Blackketter. (T-21,23) The men immediately thereafter adopted a boxing-type combative stance several feet from one another. At this point Alvarez observed that Blackketter was cut above the eye and on the mouth in such a manner that it appeared to him that Blackketter had been struck in the face. He saw no marks on Knight. (T-24) He did not observe either man strike at the other. (T-22) At that point, Alvarez directed them to stop, at which point both Blackketter and Knight stopped. Alvarez directed both men to report to Bradford that afternoon. That afternoon, Blackketter stated that Knight had hit him unexpectedly while the men were engaged in an argument, which is consistent with the injuries Alvarez observed. Having presented the foregoing testimony, the Department of Transportation rested its case and the Appellant moved for a directed verdict.
Recommendation The Hearing Officer having considered the facts and reached the foregoing Conclusions of Law recommends to the Career Service Commission that the Agency's action be reversed, and the two-day suspension be set aside. DONE and ORDERED this 31st day of January, 1977 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Ephraim Collins, Esquire Atlantic Plaza 6856 West Atlantic Boulevard Margate, Florida 33063 Mrs. Dorothy Roberts Appeals Coordinator Career Service Commission Room 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact Respondent was employed by Petitioner for approximately thirteen (13) years from 1981 until May 5, 1994. At the time of her discharge, she was an Accounting Clerk II in the gas department. Prior to 1991, Respondent's employment history with the Petitioner was, with minor exceptions, satisfactory. When she transferred to the gas division as an Accounting Clerk II, her work records indicated she had some shortcomings relating to her organizational skills and her inability to prioritize her work schedule. As an Accounting Clerk II in the gas division, Respondent was responsible for computing the payroll for all of the employees (approximately 69-73) in the gas department. In addition, Respondent was responsible for preparing purchase orders, paying invoices, making "Candy calls" (a procedure wherein Petitioner advises residents of a given area that there will be excavating and other repairs around their property); tracking the hours of part- time guards to make sure that they are evaluated when they reach the level of 2,080 hours of work; and receiving the incoming inventory of materials and supplies. Additionally, in 1991, Respondent volunteered to fill in as a dispatcher, as needed, for the gas division. At that time, the dispatch employees worked part-time. Respondent worked as a dispatcher when the dispatch employees were on sick and vacation leave, lunch time and on weekends. So did other employees. Notwithstanding subsequent allegations by Respondent that her efforts to cease doing dispatch work were rejected, the overwhelming evidence is clear that dispatch duties for Respondent and other non-dispatch personnel were not mandatory. Ms. Perkins, who was a periodic dispatcher volunteer, indicated that she successfully resisted pulling dispatch duties when her normal work precluded it. She indicated, however, that even though respondent had work piled up, she would do dispatch duties when asked. In fact, according to Perkins, dispatching became "kind of, like part of [the] job" for Respondent. During October, 1993, Nancy Scott was employed in the gas department as a Staff Assistant II. When Scott was hired by administrators Neenan and Lewin, because it was seen that Respondent was falling somewhat behind in her work, she was told to provide assistance to Respondent. In this regard, Scott assisted Respondent in reorganizing her files which were disorganized, and she continued to do so until she transferred to another department in March of 1994. Scott also worked with the contracts, the RPO's and personnel files, all of which were within Respondent's area of responsibility. Scott assisted Respondent when she completed her own daily work, from about 2:00 PM to 4:30 PM, when Respondent got off work. According to Scott, Respondent was the slowest of the accounting clerks. Scott was aware that Respondent had "a substantially greater" volume of work to do than any other accounting clerk" and was slower as well. Respondent appeared overwhelmed by the job and the work, and Scott suggested that Respondent's work load be distributed "a little bit more evenly to someone else". In this regard, Scott suggested to supervisors Neenan and Lewin that Respondent's job was "too much for one individual to handle". There is some evidence that on one occasion, Respondent spoke to an industrial counselor about her work load and was told to discuss the matter with her supervisor. Respondent did not consider that to be a viable suggestion since, she claimed, she had been subjected to discipline more severe than originally offered on the one previous occasion that she protested her assignments. During April 1994, Respondent was asked to track the hours of the remaining property guards who had not reached 2,080 hours of employment during that year. When Respondent did not immediately provide the information to her supervisor, Sandy Harringer, before April 15, 1994, Harriger compiled the hours for those employees; Bob Brown, Don Henry and Pat Lafferty. When Harriger compiled the information, she discovered that Robert Brown was due a raise and related benefits since December, 1993. Respondent's failure to keep track of the hours for the property guards resulted in a late review for Robert Brown and, as a result, Petitioner owed Brown a significant amount of back pay. Pursuant to Petitioner's disciplinary guidelines, employees are subject to discipline when they accumulate 60 disciplinary action points within a specified period. When Petitioner discharged Respondent on May 2, 1994 (effective May 5, 1994), she had accumulated more than 100 points. The points were assessed as follows: On January 13, 1993, Respondent received a letter of reprimand; On November 17, 1993 she received a two day suspension for failure to track the hours of part time property guards and the new full time guards, as instructed by her supervisor; On January 3, 1994, she received a five (5) day suspension for failing to prepare seven per- formance reviews on time; On April 7, 1994, she received a seven (7) day suspension for not performing up to standards in that she had a large number of invoices payable that were not paid for several months. These prior offenses accounted for 100 disciplinary action points. The current offense on May 2, 1994, accounted for 40 more points for a total of 140 disciplinary action points. During the period leading up to the imposition of the last disciplinary action, Mr. Neenan, at the time in issue a supervisor in the Gas Division, was responsible for evaluating Respondent's performance. Reviewing Respondent's personnel records, he found that from 1988, before she came to the gas Department, Respondent's employment reviews showed areas needing improvement even on overall satisfactory reports. She was noted to require improvement in those areas dealing with the accuracy of her work, her planning and organization, and excessive sick leave. From then on, up to the time of her discharge, these same areas of concern were almost consistently marked as needing improvement. When these areas began to be noted, Respondent was counseled in an effort to try to get her up to speed and to let her know what was important in her job. These efforts did not seem to have any salutary effect. In her 1992 - 1993 report, her overall rating was "needs improvement", and the 1993 - 1994 report was unsatisfactory. In both cases her ability to plan and organize work, her conformity with instructions, and her ability to cooperate with coworkers to get department work done correctly and on time were specifically noted as below standard. Ms. Shelton was repeatedly advised that her unwillingness or inability to establish appropriate work priorities was her problem. Apparently, she could not decide which was the most important job and get that done. This was explained to her by her immediate supervisor, Ms. Harriger, and by Mr. Lewin. As early as 1991 it was determined that Ms. Shelton was not performing properly, and Mr. Lewin counselled her and gave her tips on how to more adequately perform her tasks. She was given assistance by other clerical staff and more than one memo was created to prompt her as to when reviews were due. Notwithstanding these efforts, she continued to have difficulty with late evaluations. Ms. Harriger offered Respondent training courses to help enhance her skills, some of which she took advantage and others which she declined. Mr. Lewin discussed with Respondent on several occasions her responsibilities as to paying invoices which came in on purchases made by the Department as well as on setting up a workable filing system. In that regard, Respondent claims there was nothing wrong with the filing system she used, and as she describes it, this seems to be true. Respondent repeatedly advised her supervisors that the dispatch work she was doing took time away from her clerical work and she was, reportedly, consistently directed to put her clerical work first. She saw payroll as her number one priority. In addition, her supervisors took immediate action to cut down her hours and exposure to the radio room and even assigned other clerical people to be backup for the radio so Respondent would not be asked to do it so much. In short, dispatch duties for Respondent was put back to a last resort. Many of these clerical individuals were not able to handle the dispatch duties, however; and though there can be little doubt that Respondent knew her clerical duties were of paramount priority, she continued to do dispatch, claiming that unless she did help out, there would be no one in the dispatch office. She felt it an imperative she be there. It was during these years when Respondent got all the prior disciplinary actions. On March 29, 1994, Respondent was sent a certified letter advising that she would be terminated if her performance did not improve. Notwithstanding this, by early May, 1994, she had again failed to complete reviews on time; and on May 2, 1994, she was discharged for allegedly engaging in "insubordination by refusal to perform work assigned or by failure to comply with written or verbal instructions of the supervisory force". Nancy L. Tobin, now a retiree, formerly assisted Respondent in filling in as a dispatcher when she wasn't doing her regular Accounting Clerk II duties. Tobin, who was familiar with the work load in the gas division, witnessed Respondent's regular duties escalate as the gas department grew. Respondent often volunteered to help her coworkers when they were "stuck" and Tobin would do the same. Respondent claims she was required to do dispatching as a matter of necessity. She asserts that when, during late 1992, she attempted to turn down the dispatching duties when asked to do so by her supervisor, Harriger, she was told, "if you don't do it - you'll be written up for insubordination". This statement was allegedly made to Respondent in the presence of another employee, but the latter individual was not present to testify, and Ms. Harriger categorically denies it. However, from that point forward, Respondent claims, she gave up on trying to get out of the dispatching duties and did those duties as well as all of the other duties to which she was assigned. On one occasion, Respondent claims, when she was being issued a reprimand respecting her failure to timely report the guards' hours, she was asked her to promise that would not recur. When Respondent attempted to explain that she could not do so (in view of her work load), the reprimand was withdrawn and Respondent was issued a five (5) day suspension. As noted, the previous disciplinary actions taken against Respondent related, to a great extent, to problems with the dispatching and the tracking of hours for the part-time guards which interfered with her regular duties. Her regular duties were "too much" for her to handle, along with the dispatch duties, and Respondent asserts they were more than those of any of the other Accounting Clerk II's employed in her department. There is no evidence to support this, however. The City has hired another accounting clerk to replace Respondent. This individual's duties are similar to those done by Respondent, except for the dispatch function she performed, the evaluation of part-time guards, and for the "candy calls" which are now done by someone else. The compilation of the hours for the part-time guards required a lot of effort and was a tedious, labor intensive task. It required that Respondent track all of the part-time hours on a ledger and report that tabulation of hours to Harriger as soon as the part-time guards received the 2080 hours. Unlike the full-time employees, these guards worked erratic hours and compiling their hours was difficult. In addition to Respondent's other duties, she was also doing the dispatching which required a total effort and which interfered with her regular duties. Respondent sincerely tried to perform all the functions of her job while continuing to cover the dispatch. In this regard, she often carried work home and tried to catch up on her regular duties while she performed dispatch duties on weekends, when the service lines were not as busy as during the weekdays. Nonetheless, at no time did she ever go to Ms. Harriger, Mr. Neenan or Mr. Lewin to point out the difficulty she was having and ask for help, nor did she ever appeal any of the prior disciplinary actions taken against her which resulted in suspension.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order discharging Respondent from employment with the City of Clearwater. DONE and ORDERED this 28th day of June, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. Accepted and incorporated herein. & 5. More a Conclusion of Law than a Finding of Fact. Accepted and incorporated herein. Accepted and incorporated herein. Not a proper Finding of Fact but more a comment on the evidence. - 15. Accepted and incorporated herein. 16. Accepted and incorporated herein as a summary of the substance of Respondent's position. FOR THE RESPONDENT: 1. & 2. Accepted. 3. More a restatement of the substance of the witness' testimony. 4. Accepted. 5. - 7. Accepted and incorporated herein. 8. Accepted and incorporated herein, except for the alleged response of Ms. Harriger, which she denies. - 11. Accepted and incorporated herein. Accepted as fact but not as an excuse for Respondent's failure to properly perform. Accepted. COPIES FURNISHED: J. Robert McCormack, Esquire Wiggins and McCormack 3040 Gulf-to-Bay Boulevard Clearwater, Florida 34619 Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Michael Laursen, Secretary City of Clearwater Civil Service Board Post Office Box 4748 Clearwater, Florida 34618-4748 Cynthia Goudeau City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748
The Issue Whether Petitioner was the subject of an unlawful employment practice in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Katrina Morgan, is a female who was employed by Respondent as a probationary Correctional Officer at the Columbia County Sheriff’s Office. Petitioner first worked for the Columbia County Sheriff’s Office from January 2001, through April 1, 2001, as a Correctional Officer. At the time, Petitioner was aware that the Columbia County Sheriff’s Office had a policy that required a Correctional Officer to personally call his or her immediate supervisor at least one hour before the scheduled start of the shift if he or she is unable to report for duty. The policy requires the officer to personally call so that inquiry can be made into how sick he or she is and when the officer might return. The information is necessary so that appropriate numbers of staff can be scheduled and planned for. Unfortunately, Petitioner’s son was involved in a serious traffic accident that resulted in serious injuries to him. As a result of her son’s injuries, Petitioner had many days of absence from her employment. She frequently failed to notify her supervisor when she was unable to report for duty. Such failure violated the Columbia County Sheriff’s Office policy regarding notification in such circumstances. As a result of the policy violations by Petitioner, she received several written warnings from her shift supervisor, then Sergeant Donald Little. In addition to written warnings, Sergeant Little spoke with Petitioner on the telephone about the proper utilization of the Columbia County Sheriff’s Office call- in policy. Eventually, after several such absences, Lieutenant Johnson contacted Petitioner to tell her that he could not permit Petitioner to stay employed with the Columbia County Sheriff’s Office and offered her an opportunity to resign. Petitioner verbally resigned her position with the Sheriff’s Office on March 21, 2001, and later faxed her written resignation to the Sheriff’s Office on March 22, 2001. After she left Columbia County, Petitioner was employed by the Florida Department of Corrections where she had, also, been previously employed. She worked for a period of approximately five to six months with the Department of Corrections and decided to return to the Columbia County Sheriff’s Office because it would give her better working hours for her family needs. On April 28, 2003, Petitioner reapplied for employment as a Corrections Officer with the Columbia County Sheriff’s Office. Knowing her past performance would be an issue and that attendance was an important issue at the jail, Petitioner stated on her April 28. 2003, application as follows: Was forced to give up my position with the Columbia County Jail back in 2001. If given the opportunity I will do whatever it takes to be sure the Columbia County Jail can depend on me. I will make sure I will report to my shift on time, no matter what the circumstances are, I hope you will give me a second chance to prove you can count on me. In the process of reviewing Petitioner’s background summary the Columbia County Sheriff’s Office became aware of some serious areas of concern in her employment history. Specifically, that she had been terminated from the Department of Corrections (DOC) New River Correctional Institute for attendance problems, and that she had poor work performance and problems with calling in at S&S Food Store. This history caused an initial recommendation against rehiring Petitioner. However, the Columbia County Sheriff’s Office was experiencing a severe staff shortage and as a result was desperately in need of new Correctional Officer. Because of the shortage, Petitioner was offered employment with the Sheriff’s Office. Petitioner was sworn in by the Sheriff as a Correctional Officer on November 6, 2003, and given a second chance to prove she was dependable. At this ceremony, the Sheriff personally spoke with Petitioner about attendance issues and that she was being given a second chance. In response, Petitioner gave the Sheriff assurances that this time she would comply with policies. The Sheriff told Petitioner that any further attendance problems would be cause for termination. On November 7, 2003, Petitioner began working in the Respondent’s field training program under the direction of Field Training Officer Howard. Beginning on November 19, she was placed on the night shift and assigned Officer Siraq as her field training officer. The field training program uses daily observation reports (DORs) to evaluate new officers through the field training process. The program is a multi-week training program that trains a new officer while on the job. Eventually, the new officer will work all three shifts at the prison. On November 19, 2003, Officer Siraq was not at work due to illness. Therefore, Petitioner was assigned Officer Chad Sessions as her field training officer. Petitioner was working in the control room at the Columbia County Jail with Officer Sessions, who engaged in a series of very explicit phone calls in Petitioner’s presence. In his telephone conversations he made a number of sexually explict statements, including stating he was going to fuck the girl he was speaking about; that he was “the candy man” and that he was coming to have sex with the girl and that he would do so from behind. Petitioner told Officer Sessions several times that she did not want to hear the sexual comments, but he nonetheless continued in his conversation. Officer Sessions engaged in three such phone calls lasting about 20 minutes. After repeating that she did not wish to have to deal with these types of comments, Petitioner left the control room approximately four times so that she did not have to listen to Officer Sessions conversations. On the daily observation report completed by Officer Sessions for that date, Officer Sessions wrote that Petitioner had engaged in several phone calls and breaks and that she needed to improve on staying at her assigned post without as many distractions. Petitioner spoke to Officer Sessions about his comments on the Daily Observation Report and told him that she did not agree with his statements and refused to sign the document because of her disagreement with him. Officer Sessions took the DOR to Corporal Barcia and informed Barcia that Petitioner would not sign the agreement. He thereafter came back to Petitioner and told her that Barcia had ordered the Petitioner to sign the DOR. Petitioner signed the DOR, but did not put any comments on the DOR in the “Trainee’s Comments” Section regarding her disagreement with Officer Sessions or the reason she left her post in the control room. At the end of the shift on the morning of November 20, 2003, Petitioner drafted a memorandum to now Lieutenant Little requesting time off from work. Petitioner did not mention the incidents with Officer Sessions that had occurred on her shift. In the memorandum, Petitioner stated that she had spoken with Beverly Jackson during her swearing-in ceremony regarding specific days off, and that Ms. Jackson had approved the time off. Also, Petitioner spoke to Officer Howard about the incident on the morning after her shift that ended on November 20, 2003. Petitioner told Officer Howard about Officer Sessions’ remarks and the fact that she initially refused to sign the DOR and Corporal Barcia’s orders to sign the DOR. Officer Howard was concerned when Petitioner gave him this information and told her that he would speak with Lieutenant Little. Officer Howard contacted Lieutenant Little to report the information given to him by Petitioner. Lieutenant Little was on vacation and received the call at home. Officer Howard stated that he needed to report this complaint because Petitioner stated she was uncomfortable with the language used by Officer Sessions in the control room. Lieutenant Little advised Officer Howard that the issue would be addressed upon his return from vacation. Upon returning to work on November 24, 2003, Lieutenant Little called a meeting to discuss Petitioner’s complaints about Officer Sessions’ DOR and phone calls. Petitioner attended the meeting, along with Officer Howard and Corporal Barcia. At this meeting, Petitioner stated that she disagreed with the DOR that Officer Sessions had issued her for November 19, 2003. Specifically, she disagreed with the ratings she received on the DOR. Petitioner was asked why she had not included her disagreements in the “Trainee’s Comments” Section of the DOR. After receiving no reply, Lieutenant Little instructed her that she could make those comments on the DOR, but that they would need to be initialed and dated accordingly. In the comments Section, Petitioner wrote: I had three phone calls, each one was no longer than three-four minutes. The phone calls were in regards to my children. (Staying in assigned post) Ofc[.] Sessions had me escorting I/M’s back and forth and taking paperwork to Ms. Morgan and other sections. When Ofc[.] Sessions was on the phone I would exit the main control room because I didn’t want to hear about his personal business. [Initialed: KM and dated 11-24-03] With regard to her complaints regarding Officer Sessions’ personal phone conversations, Petitioner was very vague in her recount at the meeting. Lieutenant Little asked Petitioner to state with particularity her complaint. She was asked to reduce her complaints to writing and to be as factual and detailed as she could so that Lieutenat Little could properly investigate the matter. Petitioner claims that Lieutenant Little instructed her not to be detailed about the incident. However, Petitioner’s recollection is not given any weight. He instructed her to write the incident report at a sergeant’s desk that was available to write her report. Corporal Barcia sat in the room with Petitioner while she wrote the report since the office was also used by him. Petitioner claimed she felt intimidated by the presence of Corporal Barcia. However, Corporal Barcia did nothing to intimidate her. He did not ask questions about her report or read her report. Petitioner’s testimony regarding her feelings of intimidation is not credible. Lieutenant Little forwarded the report up the chain of command to Captain Smithey. Officer Sessions was disciplined for his conduct and reprimanded in writing regarding his unprofessional phone conversations of November 19, 2003. Officer Sessions was also required to write a letter of apology to Petitioner. The letter of apology was also placed in Officer Sessions’ personnel file. Petitioner testified she never received Officer Sessions’ letter of apology. At some point after his return from vacation, Lieutenant Little received Petitioner’s memo requesting leave from work. After he reviewed the memo and noted Petitioner’s statements regarding Ms. Jackson’s approval, Lieutenant Little contacted Ms. Jackson regarding Petitioner’s claim. Ms. Jackson told Lieutenant Little that she had not given any such approval and would not have done so since she did not have the authority to grant leave. Based on the information from Ms. Jackson and the fact that Ms. Jackson has no authority to approve leave requests for any Columbia County Sheriff’s Office employees, Lieutenant Little concluded that Petitioner was untruthful in her statements in the memorandum about time off. Such untruthfulness was a serious matter regarding Petitioner’s appropriateness to remain employed with the Sheriff’s Office. Lieutenant Little was also very concerned with the fact that Petitioner was already requesting time off since her attendance had been an issue in the past and she was being given a second chance for employment. In the meantime, as part of the field training program, Petitioner was assigned Officer Harris as her field training officer for a different shift. On November 28, 2003, only eight working days after being sworn in by the Sheriff, Petitioner became ill with a flu- type illness. There was no credible evidence that she was incapacitated by this illness to the point that she could not personally call her supervisor as the policy required. As in the past, Petitioner failed to report for duty and failed to properly call-in to her supervisor. This failure violated the Columbia County Sheriff’s Office policy for such absences. On November 29, 2003, Officer Harris, noted on Petitioner’s DOR that she exhibited unacceptable performance with regard to Columbia County Sheriff’s Office policies and procedures; namely, Petitioner needed to utilize the proper chain of command when calling-in. Petitioner wished to explain why she did not follow the call-in policy. Below Officer Howard’s comments, Petitioner inserted comments in a section of the DOR designated for field training officers’ use. Because her comments were in the inappropriate Section Petitioner was instructed to white-out the comments and to place them in the proper section titled, “Trainee’s Comments.” The original, whited-out statement read: The morning I called in Officer Howard was contacted first when I called main control. Mrs. Harris wasn't in yet and didn't have her number. When I called back at the main control, I was directed to speak with Corporal Green. The comments that Petitioner rewrote in the “Trainee’s Comments” Section on the same date were significantly changed by Petitioner to read as follows: The morning I was unable to come to work my husband contacted Ofc[.] Howard [and] was instructed to call Mrs. Harris[.] [W}hen he called Mrs. Harris wasn’t in yet so he was instructed to call back in 20 min[utes]. He was told to relay the message to me, for me to call Cpl. Green. I did so at 1:30 p.m. According to this account by Petitioner, she only made one phone call at 1:30 p.m. to her supervisor well-after the start of her shift and in violation of the Sheriff’s Office policy. Petitioner’s phone records reveal that five telephone calls were made on November 28, 2003, with four of them to the Columbia County Sheriff’s Office Jail. Petitioner testified that her husband, Ralph Morgan, made the first three telephone calls, between the times of 5:39 a.m. and 6:02 p.m. Contray to her comments written on her November 29, 2003, DOR, the Petitioner testified that she telephoned the Jail two times that day, once at 6:24 a.m. and again at 1:20 p.m. However, Petitioner’s memory of the calls she made is not credible, given the more credible written statement she made on the DOR shortly after her absence occurred. Petitioner admits that none of the phone calls, either from Petitioner’s husband or herself complied with the Columbia County Sheriff’s Office policy regarding sick leave. On December 2, 2003, Lieutenant Little sent a memorandum to Captain Smithey recommending that the Petitioner be considered for termination. Lieutenant Little formulated his opinion based upon: Petitioner’s past attendance problems with the Columbia County Sheriff’s Office; her most recent failure to follow Columbia County Sheriff’s Office policy with regard to calling-in and attendance; and her untruthfulness with regard to her request for days off. As a result, and based upon the Sheriff’s recent imposition of strict probationary guidelines on Petitioner’s recent hiring Captain Smithey concurred in the recommendation. There was no evidence that either Little’s or Smithey’s actions were related to any complaint Petitioner had made regarding Officer Sessions. Captain Smithey forwarded the recommendation to the Sheriff. The Sheriff consulted with members of his command staff and reviewed Petitioner’s performance during her probationary period. The Sheriff determined that Petitioner had not satisfied the agency’s standards for the probationary period and had failed in the second chance he had given her. On December 3, 2003, the Sheriff withdrew the Petitioner’s appointment as a probationary Corrections Officer. At hearing, Petitioner admitted that the Sheriff’s decision to terminate her had nothing to do with her complaints to Lieutenant Little about Officer Sessions, but was rather based upon Petitioner’s failure to follow Columbia County Sheriff’s Office call-in procedure. She felt that it was Lieutenant Little and other Officers who had conspired against her to get her terminated. However, there was no credible evidence to demonstrate that such a conspiracy existed. After Petitioner’s termination she contacted the Sheriff to schedule a meeting to discuss her termination. At that meeting, Petitioner spoke with the Sheriff about her complaints regarding Officer Sessions and the issues she had with her DORs. The Sheriff was unaware of the issues she had with Sessions. Specifically, Petitioner claimed that her DOR had been altered or whited-out because she had made complaints to her supervisor in it. Petitioner brought with her to the meeting correct DORs from Officer Sirak as well as the November 29, 2003, DORs. Petitioner told the Sheriff that she believed her DORs were altered in retaliation for a complaint she had made to one of her supervisors. The Sheriff testified that Petitioner did not talk to him about anything with regard to Officer Sessions or sexual harassment during the post-termination meeting. The Sheriff explained to Petitioner that his decision to terminate her was based upon her failure to follow Columbia County Sheriff’s Office procedures. With regard to Petitioner’s DORs, the Sheriff made copies and told her that he would look into her concerns. The Sheriff investigated Petitioner’s concerns, but discovered that all of the DORs that had been changed were changed in order to correct errors made on them. There was no credible evidence to the contrary regarding these DORs. The Sheriff did not discover any reason to change his decision regarding Petitioner’s termination. During discovery, Petitioner originally claimed that it was her November 19, 2003, DOR that had been whited-out, and that she had physically witnessed Officer Howard white it out in his office. Petitioner later recanted her testimony and stated that it was in fact her November 29, 2003, DOR which had been whited-out. With regard to her November 29, 2003, DOR being whited-out, Petitioner changed her testimony to reflect that she witnessed Officer Howard white-out the DOR on November 29, 2003. Despite Petitioner’s numerous attempts to explain her version of the facts with regard to who did what and when to her DORs, even her modified testimony is inconsistent with the facts on record. The record reflects that Officer Howard was not on duty on November 29, 2003. He was off for the holiday beginning on November 27, 2003. His time card reflects that he was on annual leave for the Thanksgiving holiday starting on November 27, 2003, and that he did not return to work until the following, Monday, December 1, 2003. The 29th was a Saturday and Officer Howard worked weekdays and did not go to the jail on the 29th. Regardless of the fact that Petitioner could not have seen Officer Howard white-out her DOR because he was not at work on the day she specified, Petitioner’s testimony with regard to the DORs themselves also proved to be inconsistent with the facts. Petitioner asserted that the reason her DOR was whited- out was that she had included comments regarding sexual language she had overheard Officer Sessions use on the night of November 19th. However, upon examination of the November 29th DOR in question, it was discovered that Petitioner did not mention anything at all with regard to sexual comments or Officer Sessions, but that the comments she had inserted were actually her attempts at justifying why she had failed to properly call-in to her supervisor the day before. As indicated earlier, the reason the comments were whited-out was that Petitioner had inserted them in a Section designated for field training officer use only. As a result, Petitioner was required to move them to the appropriate Section designated as “Trainee’s Comments.” At hearing, Petitioner produced, after her deposition had already been taken, a new DOR allegedly drafted on November 28, 2003, by Officer Harris. This DOR was not contained in Petitioner’s personnel file and it is not known where the newly discovered DOR came from. There is no record evidence, other than Petitioner’s own assertions, that Petitioner’s November 28th DOR is authentic. Suspiciously, Petitioner did not produce this document in response to Respondent’s Request for Production. Nor did Petitioner mention it in her Answers to Interrogatories. She testified that she did not find it in all her papers until after her deposition. Petitioner’s testimony regarding this newly discovered DOR is not credible. Finally, Petitioner offered evidence regarding purportedly similary-situated employees. These employees were Charles Bailey, Thomas Daughtrey and Chad Sessions. Officer Charles Bailey had been employed with Columbia County Sheriff’s Office two times in his career. During his first employment, Officer Bailey was terminated for attendance problems similar to the problems Petitioner experienced in her employment with Columbia County Sheriff’s Office. When Officer Bailey was hired back, he was given strict probationary terms to abide by, including that he: be on time for all scheduled tours of duty; follow all Columbia County Sheriff’s Office call-in procedures; and to generally abide by all Columbia County Sheriff’s Office policies and procedures. During his second- chance employment Officer Bailey abided by all of the conditions set out for him. He did not abuse sick leave and he called-in properly pursuant to Columbia County Sheriff’s Office policy when he needed to take leave. Officer Bailey left the Columbia County Sheriff’s Office on good terms after his second employment. Officer Bailey is not similarly situated in any relevant aspects to Petitioner. Unlike Petitioner, Officer Bailey abided by all of his conditions upon rehire and properly followed Columbia County Sheriff’s Office call-in policy when he missed time. Officer Thomas Daughtry was a new employee and in the field officer training program. He was not a second-chance employee. During his training he missed several days, however, despite the fact that Officer Daughtrey missed some days during his training, Officer Daughtrey followed Columbia County Sheriff’s Office call-in policy every time he requested time off. Nevertheless, because he did in fact miss days during his training, Officer Daughtrey was given unsatisfactory reviews and was required to re-do part of his training. Because he properly called in and he was not a second-chance employee, Officer Daughtrey is not similarly situated to Petitioner in any relevant aspects. Officer Chad Sessions was employed two times with Columbia County Sheriff’s Office. Both times Officer Sessions resigned under good terms. Petitioner has attempted to compare his second employment with that of her second, probationary employment, specifically with regard to a written reprimand Officer Sessions received for failure to follow call-in policy on September 10, 2004. When Officer Chad Sessions was given a reprimand for failing to call-in properly on September 10, 2004, he was not a probationary trainee. Rather, Officer Sessions was a Field Training Officer, and the reason he was unable to phone the jail was due to the phone outages caused by Hurricane Frances. Officer Sessions could not phone the jail and he could not be reached because of the high winds and heavy rain produced by Hurricane Frances. Because Officer Sessions was not a probationary employee, and taking into consideration the extenuating circumstances surrounding the incident, Lieutenant Little decided to issue him a written reprimand. Furthermore, there is no record evidence that Officer Sessions came to the Sheriff’s Office with a prior termination and a poor employment history similar to that of Petitioner. As a result, Officer Sessions is not similarly situated to Petitioner in all relevant aspects.
Recommendation Based on upon the above findings of fact and conclusions of law, it is RECOMMENDED that the Petition For Relief should be dismissed. DONE AND ENTERED this 8th day of November, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 8th day of November, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katrina R. Morgan 4777 Shavesbluff Road Macclenny, Florida 32063 T.A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Leonard J. Dietzen, III, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
The Issue The issue in this case is whether, pursuant to section 112.3172, Florida Statutes, the pension rights and privileges of Petitioner, Joseph Anthony Fuller, in the City of Jacksonville Retirement System should be forfeited.
Findings Of Fact Petitioner, Joseph Anthony Fuller, was employed by the JEA as a Senior Vehicle Coordinator in the Fleet Services Department. Mr. Fuller worked for the JEA for approximately 20 years. In 2013, the JEA received reports from fellow employees that Mr. Fuller was stealing gasoline from JEA fleet pumps. Mark Beebe was a JSO detective assigned as full-time liaison to the JEA. Pursuant to a contract between JSO and the JEA, Det. Beebe investigated all criminal allegations related to the JEA. Most of his investigations involved customer theft of electricity, but he also investigated allegations of theft by JEA employees. Det. Beebe investigated the allegations against Mr. Fuller. During his investigation, Det. Beebe found evidence that Mr. Fuller had stolen from the JEA spools of copper wire and other items that he then sold to metal recyclers. These thefts began in 2012 and carried on until late 2013. After he was satisfied that he had proof sufficient to establish Mr. Fuller’s guilt, Det. Beebe interviewed Mr. Fuller on January 21, 2014. Det. Beebe gave Mr. Fuller his Miranda warnings. Mr. Fuller signed a waiver and voluntarily submitted to the interview. During the interview, Mr. Fuller denied stealing gas but admitted to taking and reselling the recyclable items. Mr. Fuller denied taking the recyclable items from anywhere other than the “trash pile,” “the big dumpsters,” and the recycling bins. Det. Beebe was understandably skeptical that such a large quantity of unused copper wire and electrical items could have been retrieved from the trash and the recycling bins at JEA. After the interview, Det. Beebe placed Mr. Fuller under arrest and charged him with grand theft in violation of section 812.014(2)(c)2., Florida Statutes, a third-degree felony; giving false verification of ownership of pawned items in violation of section 539.001(8)(b)8.a., Florida Statutes, a third-degree felony; and dealing in stolen property in violation of section 812.019(1), Florida Statutes, a second-degree felony. Det. Beebe’s arrest report noted that Mr. Fuller received $3,097.10 for all of his illegal transactions, but that the replacement cost of the lost items to JEA was $6,082.21. The replacement cost was Det. Beebe’s estimate, based on information provided by JEA. Thomas Wigand is a Labor Relations Specialist with the JEA. Mr. Wigand is responsible for JEA’s relations with unionized employees, including civil service and disciplinary matters. Mr. Wigand is the JEA’s primary contact with the International Brotherhood of Electrical Workers (“IBEW”), Local 2358, of which Mr. Fuller was a member during his employment with the JEA. IBEW Local 2358 and JEA have entered into a collective bargaining agreement (the “Agreement”).1/ Under the Agreement, Mr. Fuller had collective bargaining rights and was subject to the Agreement’s rules on discipline, which provided that union member employees could be disciplined only for “just cause.” As an employee of the JEA, Mr. Fuller was governed by the City of Jacksonville’s Civil Service System, including the City of Jacksonville’s Civil Service and Personnel Rules and Regulations (“Civil Service Rules”). Chapter Nine of the Civil Service Rules covers disciplinary actions, grievances, and appeals. Rule 9.05 provides that an employee with permanent status in the Civil Service may only be dismissed “for cause.” “Cause” includes, among other things, “willful violation of the provisions of law or department rules,” “conduct unbecoming a public employee which would affect the employee’s ability to perform the duties and responsibilities of the employee’s job,” and “willful falsification of records.” An employee facing disciplinary action is entitled to a hearing before the Civil Service Board. Petitioner was also subject to the JEA’s company-wide guidelines for disciplinary action, which generally prescribed progressive discipline. However, the guidelines also provided that theft is a ground for immediate termination. After Det. Beebe submitted his investigative report to the JEA, Mr. Wigand convened a fact-finding meeting on January 29, 2014. Mr. Wigand testified that such a meeting was standard procedure under the JEA’s disciplinary process and was designed to allow Mr. Fuller an opportunity to dispute the report or explain his actions. Mr. Wigand explained that, given the “compelling nature” of Det. Beebe’s report, it seemed likely that the JEA would be seeking immediate termination of Mr. Fuller’s employment after the fact-finding meeting, unless Mr. Fuller came forward with “exonerating evidence.” Prior to the fact-finding meeting, Mr. Wigand prepared a “notice of dismissal and immediate suspension” and a “letter of intent to discipline” Mr. Fuller. The letter of intent to discipline Mr. Fuller did not specify the nature of the discipline being sought by the JEA. Mr. Wigand presented this letter to Mr. Fuller for his signature at the outset of the fact-finding meeting, in compliance with the Agreement. The notice of dismissal and immediate suspension was more forthright, commencing with the statement “Your conduct as an employee of JEA has been unacceptable and requires terminal disciplinary action” before reciting the specific factual allegations and rule violations forming the basis of the termination. There was no evidence indicating that Mr. Fuller was shown this notice at the meeting. The fact-finding meeting was attended by Mr. Wigand, Mr. Fuller, two IBEW union representatives, and JEA audit manager Linda Schlager, who kept detailed notes of the meeting. During the fact-finding portion of the meeting, Mr. Fuller initially denied remembering much about his interview with Det. Beebe. When he was specifically asked about the copper and other materials allegedly sold to the scrap recycler, Mr. Fuller continued to insist that he took the metal from a JEA dumpster. He denied taking it from either the JEA’s recycling areas or from JEA trucks. He conceded only that he engaged in “dumpster diving” while on the clock for JEA. At this point, Mr. Wigand began showing Mr. Fuller photos of specific items sold to the recycler.2/ Mr. Wigand also stated that it is not JEA’s practice to throw new spools of copper wire into the dumpster. After viewing some of these photos, Mr. Fuller requested a private conference with his union representatives. Mr. Wigand and Ms. Schlager stepped out of the conference room. After approximately 15 minutes, one of the union representatives emerged from the conference room and made a proposition to Mr. Wigand to resolve the matter. Mr. Fuller would be willing to resign and use his accumulated annual leave to pay restitution to the JEA, in return for JEA’s agreement not to prosecute. After some internal caucusing, the JEA agreed to allow Mr. Fuller to resign, contingent on his making full restitution to the JEA and providing an accurate account of how he stole JEA property. If Mr. Fuller complied with these conditions, the JEA would inform the state attorney that it had been made whole by Mr. Fuller and did not wish to prosecute. Mr. Wigand made it clear to Mr. Fuller that the JEA could not control whether the state attorney decided to go forward with the case. One of the union representatives asked about the post- resignation status of Mr. Fuller’s pension. Mr. Wigand stated that the JEA does not control the pension or make pension decisions. Mr. Fuller agreed to the conditions and then admitted the thefts. He detailed where and how he stole the materials, and satisfied the JEA that he acted alone. He admitted to stealing gas on several occasions. At the JEA representatives’ request, Mr. Fuller even offered advice on how the JEA could improve controls in order to prevent such thefts in the future. At the conclusion of Mr. Fuller’s statement, the union representatives, Mr. Fuller, and Mr. Wigand agreed that the effective date and time of Mr. Fuller’s resignation was the current date, January 29, 2014, at 1:00 p.m. An irrevocable letter of resignation was submitted by Mr. Fuller on the following day. The letter stated the date and time of his resignation and his agreement to reimburse the JEA in the amount of $6,248.00. The letter also stated that the JEA “has agreed to accept this resignation in lieu of proceeding with disciplinary action.” On a date unspecified in the record, the state attorney declined to prosecute that case against Mr. Fuller, in part due to the JEA’s notice that it had received restitution and did not wish for the matter to proceed. On January 24, 2014, Mr. Fuller had submitted a “Retirement Information Request” to the City of Jacksonville Retirement System, asking for a computation of the benefits he would receive if he retired on that date. Counsel for Mr. Fuller argues that this document establishes that Mr. Fuller resigned on January 24, five days prior to the fact-finding meeting. The document is not a resignation letter under any common understanding of that term. As titled, the document is an information request. The Board argues, for reasons explained in the following Conclusions of Law, that Mr. Fuller’s resignation was in fact a constructive discharge. The Board contends that the JEA would have proceeded to terminate Mr. Fuller’s employment if the allegations against him were proven, and therefore that his resignation under pressure was the functional equivalent of termination. Central to the Board’s argument is the assertion that Mr. Fuller “voluntarily admitted” to Det. Beebe that he had stolen materials from the JEA, and that an evidentiary finding of theft was thus a foregone conclusion. The evidence of this “admission” is ambiguous at best. The interview with Det. Beebe consisted mostly of long monologues by the detective followed by monosyllabic responses by Mr. Fuller. In his own words, Mr. Fuller admitted only to taking materials from the “trash pile,” “the bin,” and the “big dumpsters.” He described his takings as “stuff they throw away over there.” Mr. Fuller’s counsel pointed out that there was no evidence establishing that materials contained in the recycling bins or trash dumpsters of the JEA remained the property of the JEA or retained any value for the JEA. Even assuming that the JEA could have established the value of the items and that Mr. Fuller could not have obtained them from the trash, there was no guarantee that a hearing before the Civil Service Board would have inevitably led to Mr. Fuller’s termination. Mr. Wigand conceded under cross-examination that the outcome might have been some lesser form of discipline such as suspension. It is clear that as of January 29, 2014, the JEA entertained doubts about its chances of success in a termination hearing, else it would not have allowed Mr. Fuller to resign. The only full and unambiguous admission of guilt made by Mr. Fuller was pursuant to the resignation deal brokered by his union representatives on January 29, 2014. Mr. Fuller did not resign his position as the result of an admitted commission of a specified felony; rather, he admitted the thefts only after the JEA agreed to allow him to resign. The resignation letter itself, which the January 29 meeting notes indicate was at least partially drafted by the JEA, states that the JEA “has agreed to accept this resignation in lieu of proceeding with disciplinary action.” Even accepting that Mr. Fuller’s statements to Det. Beebe were not credible and that the JEA would likely have prevailed at an evidentiary hearing before the Civil Service Board to terminate Mr. Fuller’s employment on the ground of theft, there remains the problem of the quid pro quo that was part of the resignation agreement. By accepting Mr. Fuller’s resignation, the JEA was spared the time and expense of litigating his termination and was afforded the certainty of Mr. Fuller’s immediate and permanent removal from the workplace. Mr. Fuller was not the only party to benefit from the agreement that the Board now seeks to nullify. It appears to the undersigned that if the Board were to be allowed to effectively rescind Mr. Fuller’s letter of resignation and treat him as a terminated employee, then Mr. Fuller should be entitled to go back to square one and invoke his right to challenge that termination before the Civil Service Board. It is doubtful that anyone involved in these events would desire such an outcome. The Board’s position that Mr. Fuller’s resignation from the JEA was tantamount to termination is implausible on its face and lacks record support. The JEA was under no pressure to settle the case with Mr. Fuller. It presumably made the deal with its eyes open and aware of all the possible ramifications. The JEA allowed Mr. Fuller to retain his accumulated annual leave despite the fact that section 11.6 of the Agreement calls for forfeiture of unused annual leave by employees “who are discharged for stealing.” The JEA plainly did not consider Mr. Fuller to have been “discharged” or “terminated.” Though Mr. Wigand told the union representative that the JEA does not make pension decisions, the JEA in fact made such a decision when it allowed Mr. Fuller to resign. The JEA benefitted from making a deal with Mr. Fuller. The Board should not be permitted to step in and rewrite the deal after Mr. Fuller has given up his hearing rights and fully performed his end of the bargain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the City of Jacksonville Retirement System enter a final order withdrawing the Notice of Proposed Final Agency Action. DONE AND ENTERED this 19th day of November, 2014, 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 19th day of November, 2014.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Health and Rehabilitative Services, operated the Joyce Ely Health Clinic in Ruskin, Florida, through the Hillsborough County Public Health Unit. Ms. DeLeon, a Hispanic female of Mexican-American heritage, was employed at the Clinic. Petitioner was on maternity leave in early 1991. When she returned to her job in May, 1991, she found that Teri Hudson, a coworker, had been promoted to the position of Senior Clerical Supervisor, and Petitioner was to work in the position of Clerk Specialist under Ms. Hudson's supervision. At the time of Ms. DeLeon's return, a position of Clerk Typist Specialist, higher in rating than that of Clerk Specialist, was vacant, but this vacancy was frozen because of funding constraints. Ms. DeLeon advised Ms. Hudson that she would be applying for that position when the vacancy was advertised. However, Ms. Hudson requested that Ms. DeLeon not do that and, instead, assume the duties of the Clerk Typist Specialist in an out of title capacity, (OOT), until it could be filled. Ms. Hudson indicated to Ms. DeLeon that she was anticipating a vacancy for a higher level Senior Clerk position to open when the incumbent, Ms. Snead, retired, and that she would not consider Petitioner for that position if she applied for and secured the Clerk Typist Specialist position in title and full time. Relying on Ms. Hudson's comments, Ms. DeLeon did not apply for the Clerk Typist Specialist position but, instead, filled that job in OOT status from May, 1991 until July 19, 1991. On that date, Ms. Hudson appointed a white female, Cindy Morrow, to fill the Clerk Typist Specialist position which Ms. DeLeon wanted but for which she was discouraged from applying. Ms. Hudson admits Ms. Morrow was the only person she had hired at the Clinic. However, Ms. Morrow did not stay with the position. Toward the end of 1991, she ceased coming to work and, counter to the wishes of Ms. Hudson, was determined to have abandoned her position and was terminated. When this happened, Ms. Hudson again asked Petitioner to temporarily assume the Clerk Typist Specialist duties, which Ms. DeLeon did, and on January 15, 1992, after having been filling the position for approximately 20 days, applied for OOT pay as provided for in the Department's Operating Procedure 60-3 and in Article 21 of the collective bargaining agreement. In response, Ms. Hudson advised Petitioner that due to budgetary constraints, she could not receive the OOT pay, a representation which Ms. DeLeon accepted. When, however, she began to see a pattern in Ms. Hudson's actions, she concluded that she was being misled. This feeling was confirmed that same month when Ms. DeLeon learned that Respondent was reassigning two employees from other facilities to the clinic to fill two Senior Clerk vacancies which existed due to the retirement of Jewell Snead and the promotion of Gisselle Roque, who had been processing the Presumptive Eligibility for Pregnant Women (PEPW) applications for the clinic. Ms. DeLeon had assumed that the adversely affected employees mentioned above would be given these vacant positions. Ms. Hudson told her, however, that she had been authorized by the Department's personnel office to utilize Ms. DeLeon in one of the vacancies in an out of title status until her position could be upgraded and reclassified. Ms. Hudson verified this with the Clinic Administrator, Mr. Shewmaker, who indicated he would upgrade/reclassify Ms. DeLeon's position as soon as possible. In the interim, that same month, Petitioner applied for a partial promotion into the vacant WIC cashier position rather than waiting for the Senior Clerk position she felt she had been promised. She did this because she believed that Ms. Hudson had misled her twice before and she was not satisfied she would get that promotion. During her February, 1992 interview with Mr. Haese, the WIC hiring official, she was led to believe he felt she was the best qualified applicant and wanted her for the position. It appears, however, that Mr. Haese was not given the discretion to hire the applicant he wanted. Somehow, Petitioner's rating was lowered to reflect that she had achieved a lower score than the individual who was ultimately picked for the position, Ms. Meeker. Ms. Meeker, who all involved thought was a white female, was actually Hispanic and married to a white non- Hispanic man. The racial designation of "W" which appeared by her name on the original rating list, (Form 900), in October, 1992, was corrected to reflect "H" on the final Form 900. On or about March 12,1992, Ms. DeLeon was advised by Ms. Hudson that she would not be upgraded or reclassified into a Senior Clerk position even though the PEPW work she was doing was normally a Senior Clerk position. This was contrary to what she had been promised previously by both Ms. Hudson and Mr. Shewmaker. However, because the accomplishment of those duties was essential to the operation of the facility, Ms. Hudson put Ms. DeLeon in the position out of title and assigned her to the Senior Clerk position, temporarily, on March 13, 1992. According to the personnel and pay rules, the occupant of an out of title position, performing those duties for more than 21 days, would be entitled to OOT pay. Among the individuals under Ms. Hudson's supervision at the Ely Clinic was Marion Schweda. Ms. Schweda was the only white female in that category. Now deceased, Ms. Schweda had a well recognized problem with alcohol and evidenced a mean, bigoted approach toward her minority coworkers. Among other things, she repeatedly accused her minority coworkers of mistreating her in reports to Ms. Hudson. Notwithstanding the accepted fact that Ms. Schweda frequently was intoxicated while on duty at the clinic, and frequently uttered racially derogatory comments to and about her minority coworkers, Ms. Hudson never took any apparent corrective or disciplinary action against her. Instead, Ms. Hudson often chastised the minority employees on the basis of Ms. Schweda's complaints. On April 28, 1992, Ms. Schweda accused Ms. DeLeon of leaving the clinic safe unlocked. As a result of this allegation, Ms. Hudson conducted a cursory investigation into the situation and subsequently issued Ms. DeLeon a reprimand for the incident. Ms. DeLeon thereafter filed a grievance as a result of the discipline. Ms. Hudson objected to any modification of the grievance, but ultimately the reprimand was reduced to a documented counseling, which, though less severe than a reprimand, nonetheless itself constitutes discipline. Though not dispositive of any issue currently under consideration, it should be noted that evidence produced at the instant hearing regarding the allegation of misconduct against Ms. DeLeon does not establish her guilt of the offense alleged. This "discipline" was the first disciplinary action taken against Ms. DeLeon in the more than twelve years she had been employed by the State. She has had none since leaving Ms. Hudson's supervision. In any event, Ms. DeLeon continued to work out-of -title in the PEPW Senior Clerk position. On April 13, 1992, Ms. Hudson assigned her the additional duties of county screening in addition to her other duties. Just about that same time, Petitioner again requested OOT pay. The personnel manager, Ms. Freeman, indicated to Petitioner and to the EEO investigator, Ms. Coton, as well as testifying at hearing that she was prepared to give Ms. DeLeon OOT pay as soon as she was given a starting date by Ms. Hudson. This date should have been March 13, 1992. Ms. DeLeon performed PEPW Senior Clerk duties and the additional public assistance duties without interruption until June 17, 1992. On that date she was given a memo from Ms. Hudson advising her that effective June 22, 1992, Petitioner was being relieved of the PEPW OOT Senior Clerk position and returned to the Clerk Specialist position she had previously occupied. Ms. Hudson insisted this action was not to be viewed as discipline or punishment, but Petitioner saw it as such. She believed she had done a quality job in the PEPW slot, and there is no evidence to indicate she had not. However, she had not received any additional OOT pay for her period of service in that capacity since March 13, 1992, though she had expected it. Further, Ms. Schweda was assigned to the PEPW position. Though she had occupied the PEPW slot for the required period, she was denied the extra pay on the evaluation of Ms. Hudson whose personal audit of her performance concluded Petitioner had not performed the majority of the PEPW duties for the required period so as to merit OOT pay. Petitioner believed this was a contrived excuse because Hudson had never articulated that conclusion to her. Ms. Hudson also conducted an audit? of Petitioner's work production at PEPW which she showed to Mr. Shewmaker to demonstrate that Petitioner had not performed sufficiently to earn OOT pay. Evidence introduced at hearing indicates otherwise, however. Hudson did not inform either Petitioner or the union representative that she had prepared the "audit". Neither did she show it to Ms. Coton while the latter was conducting the EEO investigation. Only when Ms. Hudson was deposed as a part of this action, some two years later, did Ms. DeLeon find out about the audit and the other "notes" Ms. Hudson had kept unofficially on her subordinates and had forwarded to the personnel office. When, through her attorney, she asked to see them, as they pertained to her, she was advised by personnel they could not be located. The personnel officer indicated that since they were not official, they had most likely been destroyed. The notes in question were subsequently discovered in the supervisory file which Ms. Hudson, and now Mr. Riggs, kept on Petitioner. Mr. Riggs freely allowed Petitioner to look through the file and they were there. Petitioner copied them. A review of the "audit" documents prepared by Ms. Hudson reveals the most minimal of handwritten notes which are, by themselves, insufficient to support her claim that Petitioner did not work the majority of her time in PEPW in Senior Clerk duties. Ms. Hudson's testimony to that effect and to that no funds were available, at hearing, lent little credence to her claim. Petitioner was upset by the denial of pay to her but was also chagrined to see that Ms. Schweda was given the PEPW slot and retroactive OOT pay because she sincerely believed that an unbiased comparison of her performance with that of Ms. Schweda would show that Ms. Schweda's performance warranted neither the assignment nor the OOT pay she received therefor. Shortly after Ms. DeLeon was relieved of the PEPW duties, she received another "documented oral counselling", dated June 22, 1992, from Ms. Hudson alleging excessive absence. Petitioner contested this action on the basis that all of her time off had been approved by Ms. Hudson who was aware of the need for the time off and the legitimacy thereof which related to Petitioner's young family and pregnancy. Notwithstanding that Petitioner's absences were normally either early or late in the work day, and were not shown to have adversely impacted the operation of the clinic in general or Petitioner's section in particular, the action remained in her file. Shortly thereafter, on June 25, 1992, Ms. Hudson issued an "oral reprimand" to Ms. DeLeon for alleged "disruptive conduct." The incident in question occurred when Ms. Schweda reportedly stated to Ms. Hudson that she was "sick of all the shit from the niggers and spics." Though this comment was overheard by the clinic's chief nurse, Ms. Bartholomew, no corrective action was taken by Ms. Hudson. In addition, there was some evidence that Ms. Hudson had made ethnic jokes or comments in the clinic break room. Though she denied it, Ms. Hudson's testimony is barely credible. Throughout her testimony, she repeatedly claimed to be unable to remember any of the incidents which, if established, would place her in an unfavorable light. In any event, when Ms. DeLeon spoke with Ms. Hudson about Ms. Schweda's offensive statement, and Ms. Hudson angrily demurred, Ms. Delon walked away from her, notwithstanding Ms. Hudson's demand that she stay. This was the "disruptive conduct" which formed the basis for the disciplinary action. In addition to the allegation of inappropriate ethnic jokes and comments by both Ms. Hudson and Ms. Schweda, there is some evidence in the form of the testimony of Ms. Baham, that Ms. Hudson often falsely accused Petitioner of "things" and threatened non-white employees with discipline if they did not treat Ms. Schweda as Ms. Hudson wanted. This was offensive to Ms. Baham since, in her opinion, it was Schweda who needed counselling on the treatment of coworkers. Sometime later, Ms. Hudson was replaced as supervisor by Ed Riggs. On one occasion, Ms. Schweda improperly interrupted a meeting being conducted by Mr. Riggs which prompted him to recommend she be disciplined. The discipline form was executed by Mr. Riggs, and the personnel officer recalls having seen something about it, but the document has disappeared from Ms. Schweda's official and unofficial personnel file. Petitioner urges that this is evidence of disparate treatment. Taken by itself, that does not follow, but if taken in concert with other similar incidents, it might. Among such incidents could be included a conversation between Ms. Schweda and a Ms. McCalla in which Ms. Schweda referred to Ms. McCalla as "a black SOB." Ms. McCalla retaliated by slapping Ms. Schweda but whereas Ms. McCalla was administered written discipline, Ms. Schweda received no discipline at all, notwithstanding Ms. Hudson's representation that she would. Examination of Ms. Schweda's personnel file reveals no disciplinary action at any time during her term of employment at the clinic. Petitioner filed a charge of discrimination with the EEOC and the Commission on July 13, 1992. This complaint was referred to the Department's Office of Civil Rights for investigation. Millie Coton, a long time employee and member of the District's EEO Committee, was appointed to conduct the investigation. On or about August 18, 1992, when it became known that an investigation was forthcoming, Ms. Hudson called two of her subordinates, Ms. Baham and Ms. McCalla, into her office and, according to Ms. Baham, advised them they did not have to answer any questions asked by the investigator. Neither employee indicates Ms. Hudson told them what to say or not to say. Ms. Coton conducted her investigation into Petitioner's allegations and submitted her report and recommendation to her supervisor, the district EEO Coordinator, Mr. McNair, in mid-October, 1992. The conclusions drawn by Ms. Coton were that reasonable cause existed to believe Teri Hudson had created an environment of discrimination toward minority personnel, especially the Petitioner. Ms. Coton's analyses, findings and recommendation were approved by Mr. McNair, by the District Legal Counsel, and by the District VI Administrator. The investigation, the report and recommendations, and the coordination sheet indicating agreement was forwarded to the Department's Office of Civil Rights in Tallahassee where it was forwarded to Terry Runkle, a subordinate of Melvin Herring, the Department's Assistant Staff director for Civil Rights. Mr. Runkle contacted Moira Freeman, the local personnel manager, requesting additional information concerning the investigation. No inquiry was made of Petitioner, Ms. Hudson, or anyone else with firsthand knowledge of the allegations nor, inconceivably, was any contact or request for further investigation made with or to Ms. Coton, notwithstanding the requirement therefor in HRSM 220-1. Relying on the information reported in Ms. Freeman's reply to Mr. Runkle's inquiry, the Office of Civil Rights disagreed with Ms. Coton's approved report and recommendation and, as is its responsibility, recommended only a finding of "No Cause" to the Department's Deputy Secretary for Administration, (DSA), for determination. The DSA, Mr. Moody, on November 16, 1992 approved the determination of "No Cause" and returned the file to the Office of Civil Rights for preparation of the agency position statement. The Department's formal Position Statement, amended only as to style and format, was thereafter forwarded to the Commission. The Commission's subsequent determination of "No Cause", when transmitted to Petitioner, resulted in the filing of her Petition for Relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Commission, finding that cause exists to believe that an unlawful employment practice has occurred in (1) the failure to promote Ms. DeLeon to the position of Clerk Specialist; (2) the failure to pay her out of title pay during the period she worked as Clerk Typist Specialist in the PEPW section; (3) the failure to promote her to the position of WIC cashier; (4) the administration of unjustified discipline for the unproven offense of leaving the safe open, and (5) the failure to take appropriate corrective action against Ms. Schweda for the racially bigoted remarks and slurs she made, while disciplining and chastising Petitioner and other minority employees who did not treat Ms. Schweda as the supervisor felt she should be treated. No recommendation is made as to affirmative relief as insufficient evidence was introduced to do the calculations in support of such relief. RECOMMENDED this 30th day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5811 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted. Accepted and incorporated herein. - 8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. Accepted and incorporated as to the fact that the form was changed. & 21. Accepted and incorporated herein. 22. - 25. Accepted and incorporated herein. Accepted and incorporated herein. & 28. Accepted. 29. - 32. Accepted. 33. Accepted. 34. & 35. Accepted and incorporated herein. 36. - 38. Accepted and incorporated herein. 39. & 40. Accepted and incorporated herein. 41. & 42. Accepted. 43. First sentence accepted and incorporated herein. Balance speculation and argument by Petitioner. 44. Accepted and incorporated herein. 45. Accepted. 46. - 49. Accepted. 50. Accepted. 51. Not a Finding of Fact but a restatement of testimony. 52. & 53. Accepted. 54. - 56. Argument. 57. Restatement of testimony. 58. Accepted and incorporated herein. 59. & 60. Accepted. 61. & 62. Substance accepted. Characterization of testimony rejected as immaterial. 63. Accepted and incorporated herein. 64. Rejected as contra to the evidence. 65. Pendency of disciplinary action accepted. Motivation unprov 66. - 68. Accepted and incorporated herein. 69. Not a proper Finding of Fact but more a legal discussion on the standard of evidence. 70. - 72. Accepted and incorporated herein. 73. Not a proper Finding of Fact. 74. & 75. Accepted. 76. & 77. A restatement of testimony. Accepted. Rejected as a position statement and argument, not a Finding of Fact. & 81. A restatement of witness testimony. 82. & 83. Accepted. A restatement of witness testimony. & 86. Accepted. FOR THE RESPONDENT: None submitted. COPIES FURNISHED: Robert A. Miles, Esquire 7402 North 56th Street Suite 475 Tampa, Florida 33617 Peter Fleitman, Esquire Office of the Attorney General The Capitol Tallahassee, Florida 32399-1050 Sharon Moultry Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of age and/or disability, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10 et seq., Florida Statutes (2008).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: Mr. Brown was born on November 26, 1932. At the times material to this proceeding, he was licensed in Florida as a security guard. Mr. Brown was hired as a security guard by SSA Security in November 1998, when he was 65 years of age, by Robert Chambers. At the times material to this proceeding, Mr. Chambers was SSA Security's district manager for Broward County and Miami-Dade County, Florida. Mr. Brown resigned his employment with SSA Security in December 2000 and began working for Avis Rent-A-Car. He left his position with SSA Security because it did not pay any benefits; he received full benefits as an employee of Avis Rent- A-Car. In or around December 2000, Mr. Brown was fitted with a pacemaker because of a heart condition.4 When Mr. Brown lost his job with Avis Rent-A-Car, he applied to SSA Security for employment, and Mr. Chambers re-hired him as a security guard in January 2003. At the time, of his re-employment by SSA Security, Mr. Brown was 70 years of age. Even though Mr. Brown had a pacemaker to regulate his heartbeat in 2003, he was at all times capable of performing all of the essential functions of a security guard and, in fact, wanted to return to employment as a security guard because he could do the job notwithstanding his heart condition. At the times pertinent to this proceeding, Mr. Brown's direct supervisor was Owen James, the area manager with SSA Security, who reported to Mr. Chambers. Mr. Brown also was supervised by SSA Security's on-duty road supervisors during the time he was actually working. On October 3, 2004, Mr. Brown signed an Application for Employment with SSA Security, and he was provided with a copy of the SSA Security Employee Rules and Regulations. He acknowledged receipt of the rules and regulations and of the Security Officers Handbook with his signature, dated October 3, 2004.5 The introductory paragraph of the Employee Rules and Regulations stated that SSA Security employees were to carry a copy of the Security Officers Handbook with him or her when on duty and advised the employees that they "could be subject to discipline, suspension or discharge" if he or she violated any of the employee rules.6 The first rule included in the Employee Rules and Regulations prohibited "[l]eaving a posted duty prior to being properly relieved." It is Mr. Chambers's policy to terminate the employment of persons who abandon their posts, that is, who leave their posts without being properly relieved, and he terminated at least 10 employees for abandoning their posts between 2007 and 2009. At the times material to this proceeding, SSA Security provided security services at several United Parcel Service facilities, including the United Parcel Service Sheridan ("UPS Sheridan") facility and at the United Parcel Service Davie ("UPS Davie") facility. At the times material to this proceeding, the UPS Sheridan facility was a "UPS hub" that operated 24 hours a day, and SSA Security provided security for the facility 24 hours per day. The UPS Sheridan facility is categorized as a "soft target" because, if anyone got into the facility, he or she could steal UPS uniforms and trucks and could, thereby, gain access to many businesses and residences. The UPS Davie facility housed employees working in customer service and administration, and the facility closed every day. At one time, Mr. Brown was assigned to both the UPS Sheridan facility and the UPS Davie facility. He worked at the UPS Sheridan facility from 10:00 p.m. until 3:30 a.m., when he left and went to the UPS Davie facility, where he worked from 4:00 a.m. until approximately 5:30 a.m. During his time at the UPS Davie facility, Mr. Brown escorted the employees working at the facility to their vehicles, and, when the last employee was escorted to his or her vehicle, Mr. Brown was free to go home. Mr. Brown was not relieved by another security guard at the UPS Davie facility. In or about January 2007, the UPS Davie facility was closed, and Mr. Brown was assigned to work at the UPS Sheridan facility from 12:00 a.m. until 4:00 a.m.7 His duties at the UPS Sheridan facility after his work hours changed, and specifically in June 2008, were to patrol the perimeter of the facility and ensure that the facility was not breached. Mr. Brown did not enter the building as part of his duties because, prior to 4:00 a.m., the building was locked. At 4:00 a.m., a UPS supervisor would unlock the building and another SSA Security security guard was scheduled to come on duty. This security guard’s duties were to secure an entryway into the building and scan employees coming in and out of the facility as they passed through a metal detector. SSA Security’s procedure at the UPS Sheridan facility required Mr. Brown to wait at his post at the facility until the security guard assigned the 4:00 a.m.-to-8:00 a.m. shift arrived. According to procedure, if this security guard was late, Mr. Brown was to call either SSA Security's 24-hour dispatch, which was reached by calling the local SSA Security office, or the local on-duty road supervisor and a relief officer would be sent to the UPS Sheridan facility to take over the post. Mr. Brown was trained in this procedure by the road supervisor on duty at the time Mr. Brown began working the 12:00 a.m.-to-4:00 a.m. shift at the UPS Sheridan facility. On May 27, 2008, Mr. Brown had a routine doctor's appointment. The doctor told Mr. Brown after the examination that he needed to go to the hospital that night because of his heart condition. Mr. Brown called the SSA Security office at approximately 4:50 p.m. on May 27, 2008, and spoke with Jeanine Williams, who was a receptionist. Mr. Brown explained to Ms. Williams that he was being hospitalized and could not report to work because of his "regular heart condition."8 This telephone conversation lasted approximately three minutes. Mr. Brown did not speak with Mr. Chambers or with his direct supervisor, Mr. James, on May 27, 2008, and he did not inform either of them of his heart condition in June 2008. He did not do so because he believed he had advised Mr. Chambers of his heart condition in 2000, when he was fitted with the pacemaker. Mr. Chambers has no recollection of Mr. Brown having told him of a heart condition in 2000, and Mr. Chambers was not able to locate anything in Mr. Brown's personnel file related to such a medical condition. Mr. Brown was discharged from the hospital on June 2, 2008. He did not submit any documentation of his hospitalization to SSA Security or provide Mr. Chambers with any explanation of the reason for his absence from work. Upon his discharge from the hospital, Mr. Brown had minimal temporary restrictions on his activities as a result of his heart condition. The primary restriction, as described by Mr. Brown, was that he was unable to do any lifting. He was, however, able to perform the essential functions of his job as a security guard. Mr. Brown reported to his post at the UPS Sheridan facility on the morning of June 4, 2008, at his normal time of 12:00 a.m. His shift ended at 4:00 a.m., at which time the SSA Security security guard who manned the post inside the facility was to report for work. Mr. Brown knew that another security guard was to begin work at the UPS Sheridan facility at 4:00 a.m., but, when the security guard had not arrived by approximately 4:10 a.m., Mr. Brown left the facility and went home. Mr. Brown had the telephone numbers of both the SSA Security 24-hour dispatch service and the SSA Security on-duty road supervisor, but he did not notify anyone at SSA Security that he was leaving or that the new security guard had not reported for duty at the UPS Sheridan facility. Mr. Brown also did not notify anyone at the UPS Sheridan facility that he was leaving the facility unguarded because the security guard assigned to work the 4:00 a.m. shift had not yet arrived. At approximately 7:30 a.m., Mr. Brown received a call from Captain Linda Webb, the SSA Security road supervisor responsible for the UPS Sheridan facility on the morning of June 4, 2008, and Mr. Brown's immediate supervisor during his shift on June 4, 2008. Captain Webb asked Mr. Brown where he was, and he replied that he was at home. Captain Webb asked Mr. Brown if he left his post before the other security guard had arrived,9 and Mr. Brown responded that it was his understanding that he did not need to be relieved at his post at the UPS Sheridan facility and that had never been relieved at that post. Although Mr. Brown had been told by a supervisor that he could leave his post at the UPS Davie facility without being relieved, no one in a supervisory position with SSA Security told Mr. Brown that he could leave his post at the UPS Sheridan facility at 4:00 a.m., regardless of whether the security guard assigned to work the 4:00 a.m. shift had arrived at the facility.10 Captain Webb wrote a Personnel Action Form summarizing the incident, which was categorized as Mr. Brown's having "abandoning the post." At approximately 2:30 p.m. on June 4, 2008, Mr. James called Mr. Brown and asked why he had left his post at the UPS Sheridan facility without being relieved by the guard who was assigned to the post inside the building. Mr. Brown stated that he was never relieved at his post at the UPS Sheridan facility. Mr. James told Mr. Brown not to return to the post at the UPS Sheridan facility but to come into the SSA Security office. Mr. Brown believed that Mr. James wanted to "get rid" of him.11 Mr. Brown spoke with Mr. Chambers on the telephone on June 4, 2008, and Mr. Chambers told him that, in directing Mr. Brown not to return to his post at the UPS Sheridan facility, Mr. James was following the instructions given to him by Mr. Chambers. Mr. Chambers met with Mr. Brown on June 5, 2008, at his office, and they discussed the incident that occurred on June 4, 2008. Mr. Chambers asked him why he left his post at the UPS Sheridan facility, and Mr. Brown answered that he had a doctor's appointment at 9:00 a.m. on June 4, 2008. Mr. Chambers asked if Mr. Brown had called a supervisor or the dispatch number before he left, and Mr. Brown stated that he had not. Mr. Chambers then advised Mr. Brown that he was terminating his employment with SSA Security. Mr. Chambers's decision to terminate Mr. Brown is memorialized on the Personnel Action Form prepared on June 4, 2008, by Captain Webb, which Mr. Chambers signed and dated June 5, 2008. When Mr. Brown turned in his uniform, Mr. James gave him a copy of the Personnel Action Report prepared by Captain Webb, and Mr. James asked Mr. Brown if he had anything to add. Mr. Brown responded that he did not, and he left the SSA Security office. Mr. Brown was replaced by a person who was 53 years of age. Summary The evidence presented by Mr. Brown is not sufficient to establish that he was the subject of discrimination on the basis of age when he was terminated from his employment at SSA Security. Not only did the evidence fail to establish that age was the motivating factor in his termination, the evidence failed to establish that age was even a consideration when he was terminated. The evidence presented by Mr. Brown is likewise not sufficient to establish that he was the subject of discrimination on the basis of disability. The evidence presented by Mr. Brown did not establish that he was disabled because the evidence failed to establish that he was substantially impaired in any major activity of daily life, that he had a record of an impairment, or that he was regarded by Mr. Chambers as having an impairment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Alfred S. Brown. DONE AND ENTERED this 27th day of May, 2010, 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 27th day of May, 2010.
Findings Of Fact The Petitioner, Ralph L. Leighton, age 41, holds a Class A license issued by the Department of State, authorizing him to engage in the business of operating a private investigative agency. He has also been licensed in Tennessee, and has never been convicted of a crime. The bulk of the Petitioner's investigative work has been in the area of domestic disputes. During the course of this domestic investigative work, the Petitioner was hired to do surveillance of a wife in connection with the husband's suit for divorce. Some of the facts surrounding the Petitioner's work on this case were related by a Family Conciliation Counselor for the Palm Beach County Juvenile Court, and by the wife's attorney. These facts were corroborated by the findings of the circuit court judge as recited in the final judgment of dissolution, a certified copy of which was received in evidence in this proceeding. Specifically, the court found that the Petitioner's testimony at the divorce trial was totally discredited, and that the Petitioner gave "false and misleading information" to the juvenile counselor "in an attempt to discredit the wife" whom the Petitioner had under surveillance. Subsequently, the Petitioner placed an ad in a newspaper for full time and part time investigators. One of the persons who responded to this ad and was hired, testified in this proceeding. The Petitioner provided a uniform, a badge, and the work assigned was as a security guard at a local shopping mall. There were no investigative duties involved; instead, a routine patrol of the mall area was to be performed. The Petitioner himself paid the wages for the first four weeks, then another individual made the payments. Another former employee of the Petitioner testified. This individual performed security guard and patrol work for the Petitioner at a local residential area. Although not uniformed, a full 100 percent of the duties assigned was spent patrolling the area, and a badge was provided by the Petitioner, as well as an identification card. Both of these individuals were initially hired by the Petitioner, paid by the Petitioner, assigned security guard or patrol duties by the Petitioner, issued badges and in one case a uniform by the Petitioner. Since no investigative duties were assigned or performed, and the wearing of a uniform is inconsistent with the normal work of an investigator, but routine for a security guard or patrolman, there is sufficient evidence to support a finding that the Petitioner was engaged in the business of providing security guards. This is not authorized by a Class A license. The Petitioner presented numerous character witnesses who testified generally that he is of good moral character, and other witnesses who had hired him as a private investigator and were satisfied with his work. The Petitioner himself denies that he has engaged in any work not authorized by his Class A license. However, this evidence is not sufficient to overcome the specific testimony of the Petitioner's two former employees, and the findings of the circuit court judge as recited in the divorce judgment.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of Ralph L. Leighton for a Class B Private Guard or Patrol Agency license, be denied. THIS RECOMMENDED ORDER entered on this 6 day of November, 1981, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6 day of November, 1981. COPIES FURNISHED: Earl R. Boyce, Esquire 120 South Alive Avenue West Palm Beach, Florida 33401 James V. Antista, Esquire Room 106, R.A. Gray Building Tallahassee, Florida 32301
