Findings Of Fact The parties stipulated that respondent, Lavern W. Burroughs, began work with the Department of Health and Rehabilitative Services (HRS) on July 1, 1987, and that she was not present for work on July 22, 25, or 26 of 1988. Between March 3, 1988, and July 7, 1988, Ms. Burroughs, a clerk typist, was absent on fourteen occasions. Each time "LW" was entered beside her name on an attendance and leave sheet. "LW" is used when an employee has used up all sick and annual leave, but is nevertheless authorized to take leave. The designation LW means leave without pay, but it does not indicate whether leave was authorized or unauthorized. In December of 1987, Ms. Burroughs had received a "conference letter," HRS' Exhibit No. 1, after discussing her attendance problems with Mr. Weston and his immediate supervisor, Mr. Mathis. On April 15, 1988, Mr. Weston sent her a letter in 4 which he reprimanded her for being absent without leave. HRS' Exhibit No. 2. The letter stated: It is hoped that you will view this disciplinary measure in a constructive manner and there will not be a recurrence of this nature. However, you are cautioned that further offenses of this standard will result in more stringent disciplinary measure of a ten (10) days suspension without pay up to dismissal. Mr. Mathis testified that the ordinary practice, if petitioner's absenteeism had been handled as a career service matter, would have seen a ten (10) day suspension as HRS' next response, in the event of another unauthorized absence; and that dismissal would not have occurred, unless the ten (10) day suspension failed to cure the problem. On Thursday, July 14, 1988, Ms. Burroughs went to work, as it turned out, for the last time. The next morning she called in, shortly after 9:00 o'clock, to report that she had received notice of judicial proceedings designed to foreclose on her house. Unable to reach Mr. Weston, she asked for his supervisor, Mr. Mathis. Unable to reach him, she spoke to Ms. Evan Gibson, Mr. Mathis' secretary, and told her that she would not be coming to work. Ms. Gibson said she would relay the message. Ms. Burroughs left for Georgia in an effort to obtain money from a cousin with which to retain a lawyer to represent her in the foreclosure proceedings. The next Monday, July 18, 1988, Ms. Burroughs' daughter, Sheronda, telephoned HRS' Jacksonville offices. Apparently she spoke to Mr. Weston when she reported that Ms. Burroughs had trouble with her eye. On July 20, 1988, Ms. Burroughs telephoned herself. Again unable to reach Mr. Weston, she ended up telling Ms. Gibson that her eye was running and painful. Also on July 20, 1988, she visited the Riverside Clinic, received a prescription for erythromycin, and filled it that day. A nurse filled out a form employee's medical excuse saying that Ms. Burroughs had been under the care of a doctor at the clinic "and may return to work on 7/21/88." Joint Exhibit No. 1. Mr. Weston has never denied an employee's request for sick leave. Ms. Burroughs had been granted sick leave on more than three occasions and had produced a doctor's statement on each occasion. On Thursday, July 21, 1988, Ms. Burroughs called and spoke to Mr. Weston. In a telephone conversation that lasted perhaps two minutes, she told him about the problem with her eye, and also spoke to him about the threatened foreclosure. She did not say when she would return to work, but it was clear that she was not coming in that day. After Mr. Weston responded, "Okay," his only contribution to the conversation, Ms. Burroughs said goodbye and hung up. She did not explicitly ask for leave, even as she had never done before. Her eye stopped running on July 25, 1988, a Monday. On July 26, 1988, Ms. Burroughs set out for work, having spent, she testified, all her money, except for a quarter she had with her, on gasoline, for transportation to and from work that week. When her car overheated on 1-495 she was obliged to cut her journey short. She used her only quarter to telephone her brother's house, where a sister also lived. She asked this sister to call work to tell them what had happened. Instead, a friend, Wanda Stewart, learned the circumstances from Ms. Burroughs' sister, and made the telephone call to report why petitioner would not be in that day. Anna Williams, who worked in Mr. Weston's unit last summer, took the call. Because he was not in the office, she relayed the message to Mr. Mathis' secretary. When Ms. Burroughs' called herself, on July 27, 1988, she was informed she no longer had a job.
The Issue What amount of legal fees and costs should be awarded to Petitioner pursuant to Section 120.569(2)(e) or 57.105(5), Florida Statutes, for Respondent’s erroneous classification of Petitioner’s position and subsequent failure to correct that error and reclassify Petitioner’s position back to career service as requested by her in Georgalis v. F.D.O.T., DOAH Case No. 03-4665SED.
Findings Of Fact On April 1, 2002, Petitioner was discharged from her position with the Department without stated cause or hearing. See Petitioner’s Ex. 1-2, Dep’t of Transportation v. FCHR, 842 So. 2d 253, 256 (Fla. 1st DCA 2003). On June 11, 2003, Petitioner was temporarily reinstated by order of the Circuit Court to her position with the Department pursuant to section 112.3187(9)(f). Petitioner’s Ex. 1-3. The administrative case underlying this request for fees and costs was initiated by Petitioner through the filing of a Petition for Formal Administrative Hearing on August 15, 2002. Petitioner’s Ex. 1-4. In that Petition, Petitioner demonstrated, through reference to the position description provided to her by the Department, that she did not fit within any of the categories of employees exempted from career service by Section 110.205(2)(x), Florida Statutes. Petitioner’s Ex. 1-4, paragraph 7. Petitioner also put the Department on notice that she believed the Department’s action in reclassifying her was “frivolous and was done for an improper purpose,” since it was contradicted by the Department’s own documents. Petitioner’s Ex. 1-4, paragraph 12. She also requested that she be awarded appropriate attorneys’ fees and costs. Id. After nearly four months, the Department forwarded the Petition to the Division of Administrative Hearings for a formal administrative hearing regarding whether its decision to reclassify Petitioner was proper. Petitioner’s Ex. 1-5. By this letter, which was filed with the Division of Administrative Hearings on December 10, 2003, the Department requested a formal administrative hearing and manifested its opposition to the relief requested by Petitioner in her Petition. A hearing was held in DOAH Case No. 03-4665SED on April 15, 2004. Following the preparation of a transcript, the parties submitted Proposed Recommended Orders. Petitioner filed a Motion to Strike portions of the Department’s Proposed Recommended Order because it improperly raised an argument that Petitioner could properly be exempted from career service because she was an “administrator.” Petitioner’s Ex. 1-6. That Motion was granted. Petitioner’s Ex. 1-7.1/ On July 2, 2004, the undersigned entered a Recommended Order concluding that Petitioner was improperly reclassified into Select Exempt Service. Petitioner’s Ex. 1-8, p. 12. On September 1, 2005, the Department entered a Final Order adopting the Recommended Order entered in DOAH Case No. 03-4665SED.2/ Petitioner’s Ex. 1-11. Paragraph 13 of the fully-adopted Recommended Order states that: based on the duties and responsibilities contained in Petitioner’s position description and the actual duties she performed, there is no basis for concluding that Petitioner was subject to exemption from career service as concluded by Respondent in July 2001. Petitioner’s Ex. 1-8, paragraph 13. In paragraph 19 of the fully-adopted Recommended Order, the undersigned concluded that: [t]he suggestion of the Respondent’s witness that the exemption should apply if a state employee is assigned to work with anyone retained or commissioned by Respondent to perform services for Respondent, however menial the task, simply misconstrues the statutory exemption: the relevant issue for the purposes of the exemption is whether such persons are department “employees,” not whether a department has contracted or engaged their services as independent technical consultants. Such contract administration is not relevant to the issue of whether Petitioner could properly be classified as a selected exempt employee. Petitioner’s Ex. 1-8, paragraph 19. Following entry of the Recommended Order, Petitioner filed her two (2) Motions for Attorneys’ Fees. Petitioner’s Ex. 1-12 and 1-13. These motions seek an award of attorney’s fees and costs based on the lack of factual or legal support for the Department’s opposition to Petitioner’s request that the Department correct its error in reclassifying her position to Select Exempt Service. Id. Petitioner submitted an affidavit and itemized statement of the requested hours, a summary of hours by the attorney, and a summary of costs incurred in this matter. Petitioner’s Ex. 1-14. Petitioner also submitted the testimony of J. Steven Menton, Esquire, who corroborated the reasonableness of the services and time expended by Petitioner’s counsel and also confirmed the reasonableness of the fees charged and costs incurred by Petitioner’s counsel for those services. The Department did not contest the number of hours sought by Petitioner’s counsel. Respondent did offer the testimony of Michael Mattimore, Esquire, who was also counsel of record for the Department in this case, suggesting that the rates charged by Petitioner’s counsel exceeded those which are normally charged by similar attorneys in the community. Mattimore’s testimony related to fees charged in “employment” law cases in which he has been involved during his career and did not focus on administrative litigation challenging the actions of a governmental agency, such as the present case which involved more than merely examining the factual circumstances surrounding a discharge or other adverse employment action. Confirming the complexity of the underlying case was Mattimore’s testimony regarding the outcome in other reclassification cases. The great majority of reclassification challenges (more than 95 percent of them) have been resolved in favor of the governmental agency or have not been pursued by the impacted employee. Id. The outcome obtained by attorneys for Petitioner in the underlying case is suggestive of fees toward the high end of the range. Petitioner reported the following hours and rates (Petitioner’s Ex. 1-14): LAWYERS: Hours Rate Amount M. Stephen Turner, P.A. 44.40 $400 $17,760.00 David K. Miller, P. A. 1.00 $300 $ 300.00 Martin A. Fitzpatrick 228.50 $250 $57,125.00 Brooke Lewis .90 $200 $ 80.00 TOTAL ATTORNEY HOURS 274.80 $75,365.00 Paralegals: Theresa J. Everhart Hours 1.90 Rate $80 Amount $152.00 Trishia Finkey 1.00 $80 80.00 TOTAL PARALEGAL HOURS 2.90 $ 232.00 TOTAL LEGAL FEES: $75.597.00 The hours and rates requested are found to be reasonable in view of the novelty and complexity of the issues, level of legal skills required, and the result obtained for the Petitioner. The rates sought are in line with fees charged by similarly-situated attorneys for similar work in the community. The amount requested is reasonable and justified under the circumstances. Moreover, the costs and expenses for which reimbursement is sought ($1,523.25) and the expert witness fees of $1400 ($280 /hour for 5 hours) are also reasonable and are of a kind typically billed to clients in addition to the hourly rate charged.
The Issue Petitioner's charge of discrimination dated April 13, 1995, alleges that the Orange County Public Library discriminated against her on account of her race and disability: by terminating her for tardiness, by refusing to accommodate her disability but accommodating other employees, and by more closely monitoring and scrutinizing her. The issues for resolution in this case are whether the alleged discrimination occurred and if so, what relief is appropriate.
Findings Of Fact Petitioner, Aundra Jones (Ms. Jones), was hired by the Orange County Public Library in December 1990. Her primary duty as a circulation clerk was shelving books. At the time that she was hired, Ms. Jones completed a medical history form that revealed no medical problems and no limitations to her normal functions. Ms. Jones received her first personnel rating on March 6, 1991. On a scale of 1-9, with 9 being the top rank, she received a score of 5 in all areas except interpersonal relations, in which she received a score of 6. Ms. Jones's next rating was March 12, 1992. She received mostly 5's, two 4's, and a 1 (the lowest score possible) in attendance. Her supervisor noted that Ms. Jones's attendance record was poor and needed improvement as she had missed 132.5 hours in a 12-month period. Nevertheless, she was recommended for, and received, a one-step merit increase in salary. On December 13, 1992, the library initiated a punctuality policy for all employees. This policy provided that each employee was required to be at his or her work station without delay at the scheduled time. Any delay that was not approved in advance was considered a "tardy." Even though some tardiness might be understood, a record of eight or more tardies, regardless of duration or cause, within an annual merit review cycle, would result in a written warning and may result in a final warning or termination. In January 1993, Ms. Jones took a second job as a reservationist at Steiganberg Reservation Services. Her shift began at 6:00 p.m. and she was scheduled to work there approximately 25 hours a week. In February 1993, Ms. Jones sustained some unspecified job injury and was required to stay home for several weeks to recover. She was told by her doctor to lift no more than five pounds and, since that would be virtually impossible at the library, she and the library staff agreed that she should recover at home from what was classified as a temporary condition. On April 6, 1993, Ms. Jones received her annual personnel rating summarized as "needs improvement." She was rated "1" in attendance and punctuality, and her supervisor noted that she used 112 hours of sick leave in 1992 and was tardy ten times between March 1992 and March 1993. On November 17, 1993, Ms. Jones's supervisor met with her and gave her a verbal warning with regard to her punctuality. By this time she had received eight tardies in the first six months of her annual review period. One of the tardies was a "scheduled" absence for a doctor's appointment, however, and this occasion was not a basis for later discipline of Ms. Jones. A special evaluation in March 1994 noted continued attendance problems, requiring leave without pay when all accrued vacation, sick, and floating holiday time had been exhausted. On April 25, 1994, Ms. Jones received her annual personnel rating, an "unsatisfactory," with scores of "1" in performance, attendance, and punctuality. Prior to this rating the library had placed Ms. Jones on Family Medical Leave on several occasions. It also attempted to adjust Ms. Jones's scheduled days so that she could go to the doctor on her days off, but she said she needed time with her family and preferred to have weekends off. A change in job assignment at the library was offered, but the hours conflicted with Ms. Jones's night job, and she refused the change. On May 12, 1994, Ms. Jones's doctor, a rheumatologist, diagnosed her condition as fibromyalgia and noted on her work status form that Ms. Jones should have light duty for two weeks and that the restriction would be temporary. The library accommodated this and other temporary restrictions, including restrictions on lifting, standing, and full-time shifts, over the next several months. The library terminated Ms. Jones on January 16, 1995. By that time she had been late to work eight times in the first eight and a half months of her annual review cycle. The library did not penalize Ms. Jones for her appointed medical absences, but rather applied its policy described in paragraph 4, above, to her chronic tardiness. There is no credible evidence that the library singled out Ms. Jones based on her race or physical condition. Between November 1994 and April 1998, the library terminated nine employees who were not African-Americans for violations of its punctuality policy. During her employment with the library, Ms. Jones applied for, but was denied, transfer to several positions. In no case was she denied the transfer because of her race or physical condition. In fact, as found above, she was offered and she refused a transfer to a less physically-demanding position at the circulation desk. Ms. Jones auditioned with other candidates for a position as storyteller. Her audition was unsuccessful as she was nervous and forgot the story at various times. Ms. Jones was also interviewed for other promotions. In one case another African-American employee received the promotion, and in the other cases, the library presented unrefuted evidence that more qualified candidates were hired. Ms. Jones felt that her physical condition should have warranted her being given a parking space in the library garage. However, the spaces there were assigned according to seniority and there were no spaces available for her. For a temporary period she had a handicapped parking sticker but this was withdrawn by her physician when she no longer met the guidelines. Ms. Jones alleged that the head of circulation, Wendi Jo Bost, harassed and belittled her on account of her race and physical condition. Ms. Bost was involved with Ms. Jones's immediate supervisors and Ms. Jones in attempting to remediate the persistent attendance problems. After Ms. Jones did not respond to a request for suggestions on accommodating the need to schedule doctors' appointments, Ms. Bost changed her days off. When Ms. Jones complained that she wanted Saturdays to spend with her family, Ms. Bost accommodated that request. Ms. Bost was a well-trained, experienced, and competent professional librarian. She routinely hired and promoted African-Americans. Her no-nonsense style of management extended to all employees, without consideration for race or physical condition; she was criticized at times by employees, including whites and non-disabled employees, for her strict management style. There is scant evidence in the record of this proceeding of Ms. Jones's disability. A monograph on fibromyalgia syndrome, received in evidence without objection, reflects that the pain and fatigue of the disease tends to come and go. It is a chronic condition, but neither fatal nor crippling. Ms. Jones sought medical treatment from a series of different health care providers and sought relief in a variety of treatments. She plainly became frustrated at her inability to obtain lasting relief. While she missed work frequently on account of her condition, she concedes that most of her tardiness was not the result of her illness. Moreover, Ms. Jones considered herself able to perform her duties at the library while at work there and maintained a series of part-time jobs as well as her full-time library employment. She is, and was, able to perform normal household chores. At hearing, Ms. Jones did not identify any specific limitations of activity based on her diagnoses of fibromyalgia, except an inability to be out in the sun.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: the Florida Commission on Human Relations enter its Final Order dismissing the Charge of Discrimination or Petition for Relief by Aundra Jones against the Orange County Public Library. DONE AND ENTERED this 18th day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1998. COPIES FURNISHED: Aundra Jones, pro se 510 Auburn Avenue Altamonte Springs, Florida 32714 Mary Wills, Esquire 255 South Orange Avenue Suite 801 Orlando, Florida 32801-3452 Susan K. McKenna, Esquire Garwood, McKenna, McKenna & Wolf, P.A. 31 North Garland Avenue Orlando, Florida 32801 Dana Baird, Esquire Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308-7082 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308-7082
The Issue Whether Petitioner, Willie Foster, Jr., was discriminated against because of his race, age, and sex by Respondent, Pepsi-Cola Bottling Company, when Respondent failed to hire him, in violation of Subsection 760.10(1)(a), Florida Statutes (2004).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Responding to an advertisement, Petitioner and Jennifer Daniels traveled together to Respondent's Orlando location and applied for employment as merchandisers on August 1, 2003. Petitioner is a black male, who was 45 years old at the time of his application. Daniels is a white female, who was 25 years old during that same time. After Petitioner and Daniels completed their application forms and filled out other pre-hire paperwork, Petitioner and Daniels left Respondent's premises. Respondent later contacted each of them and asked them to appear to take a written employment test. Petitioner and Daniels took the same test on August 7, 2003. In August 2003, Respondent utilized a pre-employment written test devised by an independent company, Saville and Holdsworth, Ltd. This independent company was solely responsible for scoring the tests and compiling the test results. Respondent played no role in either of these tasks. Respondent's Human Resources Department merely administered the test, but did not possess the answer key to the test. Merchandiser applicants, such as Petitioner, take a two-part written test. The first portion of the test entitled, "Working with Words," was a timed reading comprehension test. The second portion was entitled, "Work Styles Questionnaire," and was a tool designed to determine whether the applicant was suitable to the position. Respondent uses a standard procedure in its hiring process, including the administration of the pre-employment test. First, only those applicants who satisfy established criteria, such as a stable work history, are offered the opportunity to take the written test. Second, only those applicants who pass the written test are allowed to progress to the next step of the hiring process, which is participating in an interview. No applicant who has failed the written test has ever been allowed to progress to the interview phase, nor has been hired by Respondent despite failing the test. However, applicants who fail the test are allowed to reapply and take the test again after six months. Respondent has hired individuals who, after failing the initial written test, reapplied after six months and then passed the test. Petitioner failed the written test he took on August 7, 2003. On that same date, Respondent notified Petitioner by letter that he failed the selection test, but could reapply and take the test again after six months. Petitioner never reapplied for employment at Respondent. The test administration, scoring, and notification process used by Respondent with respect to Petitioner's application was consistent with its standard procedures. Petitioner's answer sheets were faxed to Saville and Holdsworth, Ltd., on the day he took the test, August 7, 2003. Respondent received the test results from the independent company by fax on that same day. Also, on that same date Respondent forwarded a form letter to Petitioner notifying him that he failed the test. This sequence of events is not unusual in that Seville and Holdsworth, Ltd., sometimes scored the tests and provided the results to Respondent as quickly as five minutes after receiving the faxed answer sheets from Respondent. Daniels passed the written test. On the same day she took the test, Respondent notified Daniels by telephone that she had passed and scheduled her for an interview. The fact that Respondent's Human Resources coordinator apprised Daniels of her test results by telephone on the very day she took the test is not unusual. Respondent's testing procedures were audited by the Office of Federal Contract Compliance Programs, which found no discrimination with respect to the company's merchandiser group. At least 50 percent of Respondent's merchandisers are minorities. Of those applicants who applied for merchandiser positions in August 2003, the individuals whom Respondent screened-out initially and who were not allowed to take the written test included three blacks, three whites, one Hispanic, and one applicant whose minority status was unknown. The individuals hired as merchandisers from August 2003 to January 2005 included 20 whites, 11 blacks, and 13 Hispanics or other minority classifications. From June 1, 2003, through November 30, 2003, Respondent hired six whites, four blacks, four Hispanics, and one other employee. It is rare for a female to apply for a merchandiser position with Respondent. Similarly, merchandiser applicants typically are younger, rather than older individuals. From August 2003 to January 2005, Respondent hired one female and five age-protected (over the age of 40) individuals. Every merchandiser hired by Respondent during the relevant time period passed the written test; no applicant who failed the test has been hired. In addition, on his application form, Petitioner indicated the reason he left the employment of the Orange County Library was a "labor dispute." He also indicated his reason for leaving Universal Studios' employment was that his "contract ended." It was later determined that, in fact, both the Orange County Library and Universal Studios terminated Petitioner for insubordination. The employment application Petitioner signed included the language, "I understand that the information I provide in this application must be complete and accurate to the best of my knowledge. I realize that falsification and/or incomplete information may result in my employment being terminated now or at any time in the future." At the time of the hearing, Respondent considered Petitioner's statements of why he left his previous jobs as falsifications of the application. Respondent did not discover Petitioner's falsifications during the hiring process. Consistent with its policy, had Respondent discovered that Petitioner falsified his employment application during the hiring process, the application would not have been considered further. Similarly, if Respondent had hired Petitioner and discovered the falsification later, Respondent would have terminated Petitioner. Petitioner failed to prove that Respondent engaged in discriminatory hiring practices when Respondent failed to hire him in August 2003.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which denies the Petition for Relief. DONE AND ENTERED this 7th day of October, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Willie Foster, Jr. 5542 South Rio Grande Avenue Orlando, Florida 32839 Susan K. McKenna, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Department of Professional Regulation, Board of Psychological Examiners initiated an Administrative Complaint in Department of Professional Regulation Case No. 81809, DOAH Case No. 89-0599, against Petitioner, Frank A. Brown, Ph.D., on January 13, 1989. Petitioner is the owner and proprietor of a professional service business engaged in the practice of psychology. At the time of the filing of the Administrative Complaint, Petitioner's business employed less than twenty- five (25) full-time employees and had a net worth under two million dollars. Additionally, Petitioner's residence, business domicile, and principal office were located in Florida, and have been so located since 1976. The Administrative Complaint alleged that the Petitioner was guilty of sexual misconduct in the practice of psychology, that the Petitioner failed to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, and that Petitioner was unable to practice the profession for which he is licensed under Chapter 490, Florida Statutes, with reasonable skill or competence as a result of impairment due to a mental or physical condition or by reason of illness, drunkenness, or excessive use of drugs, narcotics, chemicals or any other substance, pursuant to Florida Statutes, 1981-1987. On August 24, 1989, an Amended Administrative Complaint was filed alleging the same violations pursuant to Florida Statutes, 1981-1986. Petitioner disputed these allegations and requested a formal administrative hearing. Prior to hearing in the underlying proceeding, DOAH Case Number 89- 0599, Petitioner moved for dismissal of the Amended Administrative Complaint. Petitioner's motion was denied by the Hearing Officer. A formal hearing was held in this matter on September 12-13, 1989. At the hearing and after presentation of a portion of the testimony, the Department voluntarily dismissed its allegation of sexual misconduct in the practice of psychology. The hearing proceeded on the remaining two charges in the Amended Administrative Complaint. After the close of the evidence and submission of Proposed Recommended Orders by both parties, the Hearing Officer, on May 14, 1990, filed a Recommended Order recommending dismissal of the Amended Administrative Complaint against the Petitioner. On July 2, 1990, the Department of Professional Regulation, Board of Psychological Examiners, filed a Final Order adopting the Recommended Order and dismissed the case consistent with the Hearing Officer's Recommended Order. Therefore, Petitioner became the prevailing party in the underlying action. The allegations against Petitioner contained in the Administrative Complaint resulted from a complaint received in 1987 from R.B. and D.B. concerning the care and treatment R.B. received from Petitioner in his capacity as a psychologist which centered on the illicit 7-year love affair between R.B. & Petitioner. It was the turmoil caused by the discovery of this affair by D.B., R.B.'s husband, that caused Petitioner, in April, 1987, to be examined and treated at CPC Parkwood Hospital in Atlanta, Georgia by Psychiatrist Warren A. Hinson, M.D. The Petitioner was advised of the complaint made by R.B. and D.B. around April 14, 1987. Petitioner responded through his attorney on at least two separate occasions with factual and legal arguments regarding the complaint lodged by R.B. and D.B. On November 9, 1987, a Probable Cause Panel of the Board of Psychological Examiners met to review the investigative report and responses from Petitioner. The investigative report consisted of several statements from R.B. and D.B., the responses from Petitioner, an interview with a Dr. Trotter, who had rendered psychological services to both R.B. and Petitioner, together and separately, and various documentary evidence. The investigative report was submitted to the Probable Cause Panel of the Board of Psychological Examiners by the Chief Attorney for Allied Health Services of the Department of Professional Regulation under cover of a memorandum dated October 27, 1987. The memorandum states that the case was being submitted without a recommendation for an administrative complaint or closing order in Petitioner's case. The memorandum states: The attached case is being submitted without a recommended A/C or C/O. There are legal problems with charging sexual misconduct, although a strong argument could be made to support a finding that the subject failed to meet minimum standards of professional per- formance. Another issue, is the subject's fitness to practice by reason of emotional problems. Dr. Brown's attorney has suggested that the probable cause decision be deferred to allow Petitioner to enroll in the Impaired Practitioner's Program. Although there is no statutory provision for a psychologist to participate in the IPP, I see no reason why if couldn't be accomplished (by mutual agreement). The Chief Attorney realized that there was a problem with the allegations against Dr. Brown, in light of the retroactive application of a recent rule of the Board of Psychological Examiners defining the psychologist/client relationship as continuing in perpetuity for purposes of sexual misconduct allegations and in light of the fact that Dr. Brown's conduct could be construed to have occurred after the termination of the professional relationship between Petitioner and R.B. The legal problem created by the fact that Dr. Brown's conduct could be construed to have occurred during a time when the practice of psychology was not regulated did not occur to the Chief Attorney at the time of the 1987 meeting. However, as indicated by both the memorandum and transcript of the comments made at the probable cause meeting there were legal arguments which could be legitimately made which might overcome the problems with this case. 1/ These arguments also could be applied to the legal problem caused by the absence of a statute regulating the practice of psychology. The Probable Cause Panel, in the course of their review, considered the suggestion from Petitioner that a determination of probable cause be deferred pending the entry of the Petitioner into a program for impaired practitioners similar to the Impaired Practitioners Program utilized by other professions regulated by DPR. At that meeting, the Probable Cause Panel of the Board of Psychological Examiners, after reviewing the investigative report and attachments, believed there was sufficient evidence to find probable cause. However, in light of the problems with this case and Petitioner's request to attempt to enter an impaired practitioners program (IPP), the Probable Cause Panel agreed to defer a finding of probable cause on condition that Petitioner develop and present to the Probable Cause Panel a comprehensive treatment and practice plan and possibly undergo a psychological/psychiatric evaluation. Around November 10, 1987, the Chief Attorney for the Department of Professional Regulation, Allied Health Services, notified the Petitioner that the Probable Cause Panel of the Board of Psychology voted to "defer the probable cause decision", and requested that Petitioner initiate action to be accepted into an IPP and further, that Petitioner provide a comprehensive practice and treatment plan for the Probable Cause Panel's consideration at its next meeting. The Chief Attorney also requested that Petitioner's attorney contact the Department when he had the requested documentation prepared. Importantly, neither the transcript nor the letter from the Department's Chief Attorney indicates what the Board or the Probable Cause Panel might do after the deferral period. At best, from a reading of the transcript, it appears that the Panel intended to leave its options open as to whether the Panel might later find probable cause even if Petitioner complied with the Panel's instructions. Clearly, both attorney's involved in the matter hoped the case would be settled. However, such attorney's hopes do not translate into a Board or Panel promise or settlement agreement to forgo action against Petitioner should he comply with the Panel's instructions. Given the transcript of the probable cause panels meeting, deferring a decision cannot be translated into an agreement to not take any action by the Panel. 2/ In any event, the Petitioner initiated action to enroll in an IPP. Around January 1988, Dr. Goetz, Director of the Physician Recovery Network accepted Petitioner into the IPP program. Dr. Brown began participation in the Impaired Practitioners' Program by undergoing a five day inpatient evaluation in Atlanta. There was no judgment reached from this five day review that Petitioner was either incompetent or that he could not return to practice. Since there was no actual impairment of Dr. Brown, he returned to Pensacola to continue quarterly evaluations by psychiatrist Lawrence E. Mobley, M.D., and Pat O'Connell, M.D., and psychotherapy supervision with psychologist Jack Keller, Ph.D. The Department received several generalized reports of Petitioner's status and progress with the IPP program. The reports were dated July 29, August 18, August 16, November 10, and December 1, 1988. The Department also received at least two status reports from Petitioner's attorney. Around October 6, 1988, the Petitioner's attorney requested from the IPP program the information necessary to develop a comprehensive practice and treatment plan as requested by the November, 1987, Probable Cause Panel. The Respondent was never provided a comprehensive treatment and practice plan which was satisfactory to it. However, the Petitioner did make attempts to comply with this requirement. 3/ Believing Petitioner had complied with the Board's instructions, sometime around October 6, 1988, Petitioner's attorney informed the Department the Petitioner was established with an IPP program and that the matter was now ready for the Board's consideration. On December 4, 1988, the Probable Cause Panel reviewed the investigative report which included, in part, the diagnosis and report of Dr. Hinson relating to the Petitioner and his hospitalization at CPC Parkwood, in Atlanta, Georgia; the Petitioner's responses and arguments as presented by his attorney's correspondence with DPR; the Petitioner's letter to R.B., returning professional fees previously collected during treatment; the August 5, November 10, and December 1, 1988, reports from the IPP program regarding Petitioner; the opinions of Patrick Cook, Ph.D., and Deborah Frank, R.N. Ph.D., L.M.F.T.; the interviews of R.B. and D.B.; additional sworn statements of R.B. and D.B., and various documentary evidence associated with the underlying case. Neither Dr. Brown nor his attorney were permitted to attend this Probable Cause Panel's meeting. On the same date, the Probable Cause Panel after reviewing the investigative report, discussing the allegations, and consulting with legal counsel for the Board, Mr. Allen Grossman, Assistant Attorney General, by unanimous vote determined the existence of probable cause and directed the issuance of an Administrative Complaint as outlined in paragraph 3 above. At the time a finding of probable cause was made by the Board, at least two factual issues were considered by the Probable Cause Panel. Those issues were whether the Petitioner built his intimate relationship with R.B. upon an existing professional relationship interrelated with whether there had been a termination of that professional relationship and whether Petitioner's romantic involvement with R.B. occurred during a time when the practice of psychology was a regulated profession. The Probable Cause Panel relied upon the interviews of R.B. and her additional sworn statements regarding her romantic and professional relationship with the Petitioner. These statements as well as other evidence in the investigative file supported a finding of probable cause of sexual misconduct with a patient. Additionally, the Probable Cause Panel reasonably relied upon the statements of R.B. and D.B. and Petitioner's responses to DPR, regarding his relationship with R.B. and her family in finding probable cause of practicing below the prevailing standard for practice. On both these issues, the relevant time periods involved in this case were unclear from the information the Probable Cause Panel had before it. However, there was enough evidence in the investigative file for the Board to reasonably conclude that Petitioner had engaged in actions which would subject him to discipline during a time when the practice of psychology was regulated or cause his later behavior to relate back to a time when the practice of psychology was regulated. Additionally, as noted with the 1987 Probable Cause Panel, there were legitimate legal arguments which could be made in an attempt to overcome the problems due to a lack of rules or statutes incurred in the underlying action. Therefore, given the fact that the Board had a reasonable basis in law and fact to find probable cause against Petitioner for violation of Chapter 490, Florida Statutes, Petitioner is not entitled to an award of attorney's fees. The Probable Cause Panel also, considered the issue of Petitioner's mental health vis a vis Petitioner's ability to safely practice psychology. This latter issue and the resultant charge in the Administrative Complaint appears to be a "throw in" charge for which the Panel had no reasonable legal or factual basis to find probable cause. However, the issue of Petitioner's mental health was never seriously prosecuted by the Department and did not play a significant role in the litigation or the fees expended in the litigation. Additionally, the evidence did not demonstrate what portion of the Petitioner's attorney's fees and costs could be attributed to this single issue. Therefore, Petitioner is not entitled to an apportionment of attorney's fees and costs based on this issue.
Findings Of Fact On July 7, 1978, Petitioner, Amelia M. Park (Park), was hired as District VI Legal Counsel of Respondent, Department of Health and Rehabilitative Services (Department). The position was included in the Florida Career Service System, and Park obtained permanent status in the position in January 1979. The Legislature exempted the position from the Career Service System and made it a Senior Management Service position on November 12, 1981. On the morning of November 9, 1984, Park was in Bradenton to attend a hearing for the Department in Manatee County Court. She had scheduled a meeting with Bill Presmeyer at the Manatee Health Department, but the meeting was cancelled at the last minute. Because Park had pre-approved annual leave for the afternoon, she went to her vacation home located in Holmes Beach on Anna Maria Island. Late in the morning, Park received a telephone call from her secretary, Muriel Pages, who informed Park that Assistant District Legal Counsel, Dennis Palso, who had been on the job only one week, and District Program Manager, Stephanie Watson Judd, wanted to talk to her. Park knew or should have known that the matter to be discussed was considered important by the Department staff or they would not have telephoned her at her home. Judd told Park that the Department had received a court order committing a juvenile to the Department but that they were not sure what the Department properly should do in response to the Order. Palso, who only had been on the job for one week, pointed out internal inconsistencies in the Order. The Order found the juvenile both incompetent to stand trial and not guilty by reason of insanity. The Order also cited the rules of criminal procedure instead of the rules of juvenile procedure. At the request of Carl Neill, the Department's District Administrator, Park's immediate supervisor, Judd and Palso relayed this information to Park and sought her advice on several questions: (1) whether the Order was legal; (2) whether the juvenile could be placed in a mental health facility based on the Order alone without bringing a Baker Act proceeding; and (3) whether and how the Department should take the child into custody. Park responded that the Order was sufficient for the Department to take the juvenile into custody and place him in a mental health facility. Notwithstanding the questions Park was being asked, she assumed that the juvenile was in custody because she would not have expected the judge to release such a juvenile into the community. Park told Palso that he or she would be able to clear up the internal inconsistencies and problems in the Order the following week by filing a motion in court. Park recommended that the Department's staff telephone "central admissions" in Tallahassee since Park believed that office of the Department had experience with similar orders and would know how to proceed. After talking to Park, Judd telephoned Sam Ashdown in Tallahassee to discuss the case and receive advice on how to proceed. In the course of their discussion, Judd read the Order to Ashdown over the telephone and, to her surprise, Ashdown took the position that the Order was illegal and that the Department could not act upon it. Judd informed Ashdown that Park, as District VI's legal counsel, had given the District VI staff a contrary opinion and suggested that Ashdown talk directly with Park, giving him the telephone number at Park's vacation house. Later in the afternoon of November 9, Judd telephoned Park again to inform her about Judd's conversation with Ashdown and to prepare her to receive a telephone call from Ashdown. Park became angry at Judd for having given Ashdown her telephone number. She denied ever having given a legal opinion that the Order was legal, but told Judd that there was nothing that could be done about it by the end of Friday afternoon. Park told Judd to call Ashdown back and tell him not to telephone Park about the matter. In the face of Park's tirade, Judd informed Carl Neill of what Park had said and telephoned Ashdown to relay Park's message and tell him not to call Park. Neill became very concerned about the manner in which Park handled the matter earlier in the afternoon of November 9, 1984. Although Park was a knowledgeable lawyer and able advocate for the Department, she had a history of difficulty working, relating, and communicating with certain members of the Department's District VI staff. This history included several occasions in which Park's personal relationships with Department staff deteriorated to the point of affecting Park's ability to work with or even talk to staff. Neill suspected that a recent deterioration in the personal relationship between Judd and Park may have been partially responsible for the manner in which Park handled the juvenile matter on November 9. Park's work relationship with each of the two assistant attorneys working under her before Palso had deteriorated to the point that Park could communicate with them only in writing and not very well. Park's personality and deficient interpersonal skills was at least partially responsible for those problems in District VI's legal office. Park also had a deserved reputation among District VI's staff for being unpredictable. For no apparent reason, Park would sometimes be unreasonably irritable and rude. For example: Park has chastised Joseph Tagliarini in front of other staff for operational (not legal) difficulties in dealing with the local Sheriff's Office. This rebuff was hostile and angry, inappropriate and unwarranted. On another occasion, Park refused to dis- cuss a personnel matter with Allen Mundy and William Stanley, became rude and directed them to leave her office. Personnel officer, David Stoops, had asked Mundy and Stanley to discuss the matter with Park. At a training session she was giving on child support enforcement, Park became angered by questions being asked by one of the partici- pants, became progressively more hostile and angry, and ended up yelling at the employee from the podium in the middle of the training session. James Freyfogel, one of Park's own wit- nesses, was unfairly accused by Park with having concealed information material to a real estate transaction entered into by the Depart- ment. Because of Park's conduct, Freyfogel tried to avoid any contact with her for about a year and a half. Another of Park's witnesses, Judy Wichter- man, testified that Park was "a nasty person" and that she and other counselors avoided con- tact with Park whenever possible. Park was not even aware of the effect of her personality on Freyfogel and Wichterman. The strained work relationships described in paragraph 9 above (and others) do not typify all of Park's relationships with members of the staff of the Department's District VI. Park had many good days and many positive working relationships. However, Neill was aware that Park's personality had caused several problems in work relationships at District VI and that it was not a matter of one or two isolated incidents. At least part of the blame for these problems rests with Park's personality. Problems caused by Park's personality were not limited to lower staff members whom Park intimidated. For example: Neill also was aware that Park had unknow- ingly offended Larry Overton, then Deputy As- sistant Secretary For Operations for the De- partment in Tallahassee. Overton related to Neill that Park had become hysterical during a meeting he had with her concerning problems with a nursing home in District VI. In the fall of 1984, Park insisted on be- ginning a letter to a private attorney with whom she was dealing on behalf of the Depart- ment by stating that she was "outraged" at some of the attorney's tactics and conduct. Neill had specifically requested that Park, as representative of a State agency, not express "outrage." Neill told Park that he thought this form of expression was inappropriate, and he directed that the letter be reworded. Despite Neill's direct request, Park sent the letter as originally written with the justifi- cation that she was indeed "outraged." Park also angered two judges before whom she appeared as attorney for the Department, a Judge Pope and a Judge Calhoun. In compliance with Neill's suggestion and request, Park wrote a letter of apology to Judge Pope. When Park returned to work after the weekend and Monday holiday on Tuesday, November 13, 1984, Neill asked her into his office to discuss the events of November 9. During the discussion, Neill referred to the events of November 9 as an emergency, and Park attempted without success to learn from Neill why it was an emergency. Neill explained his position that it is unacceptable for senior managers on leave to refuse to permit HRS staff to contact them to discuss matters staff believes need to be discussed. Neill stated that senior managers must be available in such circumstances. Park became very angry and upset at having been accused of less than satisfactory performance. She lost her temper in front of Neill. She stated that she was incensed that Judd had given her home telephone number to Ashdown and stated that, in the future, she would avoid this situation by not leaving a telephone number where she could be reached. Park then stormed out of Neill's office. As a result of all of the events referred to in these Findings of Fact, including Neill's meeting with Park on November 13, 1984, Neill's confidence and trust in Park was shaken. Neill did not believe he could continue to function with Park as his legal counsel. Neill did not think he could count on Park to make herself available to Neill and his staff when needed. Neill also believed he could retain competent legal counsel who would be able to get along better with a larger part of Neill's staff so that Neill's staff could function more smoothly and effectively as a whole. Neill telephoned HRS supervisors in Tallahassee for advice and was told that he had authority to terminate Park in his discretion. After spending the rest of the day and evening of November 13 making up his mind, Neill decided to terminate Park as his legal counsel. On November 14, 1984, Neill again met with Park and informed her that he intended to make a change in the position of legal counsel and asked for Park's assistance in making the transition smooth. Park interpreted Neill's comment as a request for Park's resignation, and Park responded that she could not agree to resign without giving the matter further thought and discussing it with her husband, Park's counsel in this case. Because of Park's work schedule she requested until Monday, November 19, 1984, to give Neill an answer, and Neill agreed. On November 19, 1984, Park and her husband met with Neill as scheduled at 8:30 in the morning. Neill handed Mr. Park a letter informing Park of Neill's intent to terminate Park's employment effective November 27, 1984. Mr. Park asked if the meeting was a pre-termination conference. Neill stated that he did not believe a pre-termination conference was required for senior management but that he was willing to treat the meeting as a pre-termination conference and would consider anything Mr. or Mrs. Park had to say about the matter. Mr. Park suggested to Neill that Neill was exposing himself to possible personal liability by terminating Mrs. Park but had nothing else to say about the matter. The Parks stated that they had all they needed and left Neill's office. Towards the end of the final hearing, Park stipulated that she was not dismissed for political reasons.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Health and Rehabilitative Services, enter a Final Order consistent with the previous exercise of its discretion to terminate Petitioner, Amelia M. Park, from her Senior Management Service position. RECOMMENDED this 15th day of November, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4443 Rulings on Petitioner's Proposed Findings of Fact Adopted. See Finding 1. Rejected as unnecessary, irrelevant and subordinate. As reflected in the Conclusions Of Law, the ultimate issues of fact are narrower than Petitioner perceives. Unless the subordinate facts in proposed Finding 2 persuade the finder of fact that the alleged legitimate reasons for termination of Petitioner's employment were mere fabrications, they are unnecessary and irrelevant. In any event, they are subordinate. Covered by Findings 2 through 6. Covered by Finding 12. Covered by Finding 14. Covered by Finding 15. See Paragraph 1 above. See Paragraph 1 above. Also covered in part by Findings 9 and 10. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. Covered by Findings 2 through 4. See Paragraph 8 above. Also covered in part by Findings 2 through 6. Rulings on Respondent's Proposed Findings Of Fact Covered by Finding 1. Rejected in part as being subordinate. Also covered in part by Finding 11(a). Covered by Finding 9(a).* Covered by Finding 9(b). Covered by Finding 9(c). Rejected in part as subordinate or cumulative. Covered in part by Finding 8. See Paragraph 6 above. See Paragraph 6 above. Covered by Finding 11(b). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 9. Covered by Finding 8. Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 8. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. Also covered in part by Finding 7. Rejected in part as subordinate. Covered in part by Finding 11(c). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Findings 8 thorough 11. See Paragraph 20 above. Covered by Finding 9(d). Rejected in part as subordinate and cumulative. Covered in part by Finding 9. See Paragraph 23 above. Covered by Finding 9(e). Rejected as subordinate, unnecessary, and argumentative. Rejected in part as subordinate, cumulative, unnecessary, and argumentative. Covered in part by Finding 10. Covered by Findings 7 through 10. Rejected as subordinate and unnecessary. 30-35 Covered b Findings 2 through 6. Covered by Finding 12. Rejected in part because Rule SM-1.09, Florida Administrative Code, is a conclusion of law, not a finding of fact. Rejected in part because there was no evidence of HRS Regulation 60-49. In part covered by the Findings 2 through 6. Covered by Finding 14. Covered by Finding 15. Covered by Finding 15. Rejected as subordinate and unnecessary. Covered by Finding 16. *It should be noted that parts of this proposed finding of fact and many others have been rejected to the extent that they contain excessive argument. COPIES FURNISHED: William M. Park, Esquire Building 501, Suite A 8001 N. Dale Mabry Tampa, Florida 33614 Jay Adams, Esquire Deputy General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Petitioner, Cassondra Davis, suffered an adverse employment action as a result of unlawful discrimination.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made. Petitioner, Cassondra Davis, is a female African- American. At all times material, Petitioner was employed by Respondent, Department of Corrections, at Brevard Correctional Institution (Department). Petitioner's last day of actual work at the Department was April 10, 1996. Susan Blais, Personnel Manager at Brevard Correction Institution during the relevant time frame, testified that because of medical problems, Petitioner was unable to return to work after April 10, 1996, until her physician released her to return to work. Petitioner never presented a medical return-to-work release. Instead, she utilized her entitlement to Family Medical Leave Act leave. Once this leave was exhausted, rather than terminate Petitioner, the Department wrote to her physician, Dr. F. F. Matuk, on September 16, 1996, requesting a diagnosis of Davis' condition, as well as an opinion as to whether she could perform the duties of a correctional officer as outlined in a job description enclosed with the request for opinion. (Respondent's Exhibit 1) Dr. Matuk responded to the Department by letter dated September 20, 1996, stating that Petitioner had several work restrictions, including no weight manipulation over 20 to 30 pounds, avoidance of driving over 30 to 40 minutes, avoidance of neck extension, and allowances for extended periods of rest. He did not believe that Petitioner was able to perform the duties of a correctional officer but stated that she would most likely be able to perform a sedentary desk job. (Respondent's Exhibit 2) Susan Blais testified that no such desk jobs were available at that time. Petitioner submitted a letter of resignation to the Department in July 1997, wherein she attributed the resignation to medical reasons. (Respondent's Exhibit 3)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cassondra A. Davis 1009 Cannes Drive Poinciana, Florida 34759-3918 Cassondra A. Davis 1216 Pua Lane, No. 107 Honolulu, Hawaii 96817-3821 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent failed or refused to provide the legal representation to which Petitioner was entitled because of Petitioner’s race or in retaliation for Petitioner’s prior charges against Respondent.
Findings Of Fact At all times relevant to this proceeding, Petitioner, a black male, was employed by Miami-Dade County as a correctional officer. At all times relevant to this proceeding, Respondent was a public employees bargaining unit established pursuant Chapter 447, Florida Statutes (2004).1 At all times relevant to this proceeding, Petitioner was a dues-paying member of Respondent and was entitled to all rights and benefits of such membership. Prior to March 1, 2002, Petitioner filed a complaint with the EEOC alleging that Respondent had discriminated against him in an unrelated matter. That complaint was resolved in Respondent’s favor. Petitioner was notified by his employer on March 1, 2002, that his employment was being terminated for reasons that are irrelevant to this proceeding. Petitioner immediately requested legal representation from Respondent. On March 4, 2002, Respondent, through Tyrone W. Williams (Respondent’s then general counsel), advised Petitioner as follows: We have completed our review of your request for legal assistance of March 4, 2002. Based upon the information provided, it has been determined that a conflict in representation has arisen. Accordingly, this matter has been assigned to the Law Offices of Slesnick & Casey. . . . . We have provided the Law Office of Slesnick & Casey with a copy of your file for their immediate reference. Please contact the Law Office of Slesnick & Casey upon receipt of this correspondence. At the times relevant to this proceeding, the Law Offices of Slesnick & Casey was a private law firm that had contracted with Respondent to provide conflict representation to its members. Thereafter, the Law Office of Slesnick & Casey undertook Petitioner’s representation at Respondent’s expense. The procedures followed by Respondent in determining that a conflict existed and in assigning the Law Office of Slesnick & Casey to this representation were consistent with Respondent’s bylaws and written policies. Petitioner was not satisfied with the representation of Slesnick & Casey and asked Respondent for other counsel. On June 24, 2002, Blanca Greenwood (Respondent’s then general counsel) notified Petitioner that if he did not want the assigned representation, Respondent would give him $500.00 towards his legal fees and he could retain any lawyer he wished. Petitioner was also told he would have to absolve Respondent of any liability regarding his representation by private counsel, which Petitioner refused to do. Petitioner thereafter filed the complaint with EEOC and, following its dismissal, the Petition for Relief that underpins this proceeding. The evidence presented by Petitioner failed to establish that Respondent discriminated against him by assigning the Law Office of Slesnick & Casey to represent him or by offering to pay $500.00 towards his legal fees for a private lawyer. There was no evidence that Mr. Williams (who is a black male) or any other representative of Respondent discriminated against Petitioner on the basis of his race. There was no evidence that Mr. Williams or any other representative of Respondent discriminated against Petitioner because he had filed an unrelated EEOC against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of February, 2005.
The Issue Whether the Petitioner should be disqualified to work in a position of special trust.
Findings Of Fact The Department disqualified the Petitioner to work in a position of special trust and denied the Petitioner an exemption from that denial. Subsequently, the Petitioner timely challenged the agency's decision. The Petitioner is employed by Eckerd Youth Alternatives, Inc. (EYA) an entity that operates the Eckerd Youth Development Center at Okeechobee, Florida. He has worked as a youth counselor at that facility since 1993. EYA contracts with the state of Florida to provide facilities for the juvenile justice system and, as such, must comply with employment qualifications for persons working with the juveniles assigned to the facility. The screening of EYA employees must be updated every five years. As part of the background screening process, EYA submitted paperwork for the Petitioner in 1998. The Department did not issue its disqualification decision until February 25, 2000. Thereafter, the Petitioner sought an exemption from the disqualification decision which was also denied by the Department on April 7, 2000. The delays in the re-screening decisions were not attributable to the Petitioner. The Department based its disqualification of the Petitioner and denial of the exemption on the criminal history set forth below. In 1995, the Petitioner entered a plea of nolo contendere to the possession of a weapon charge. Adjudication of guilt on this charge was withheld by the court. Based upon the plea on the weapon charge, the Petitioner received a two-year probation, the weapon was forfeited, and he was ordered to pay court costs and fees. He successfully completed all aspects of the sentence. In 1994, the Petitioner entered a plea of nolo contendere to a charge of domestic violence, a misdemeanor. The Petitioner was adjudicated guilty on this charge and sentenced to one year of probation. He successfully completed all aspects of the sentence on this case. The Department contends that domestic battery/violence is a disqualifying offense which precludes the Petitioner's employment in a position of special trust at the Eckerd Youth Development Center. At all times during his employment by EYA, the Petitioner has served as an outstanding employee. EYA timely filed all the necessary paperwork to have the Petitioner re-screened for employment purposes. At all times during his employment by EYA, the Petitioner has been an excellent role model. He has not exhibited any conduct that would suggest minors would be placed at risk of physical harm if placed in his care. According to Mr. Timko, the Petitioner is "probably one of the most mild- mannered, positive role models that we have out there." The Petitioner's explanations regarding his criminal record have been deemed sufficient and persuasive as to the facts of the underlying incidents. In particular as to the domestic battery/violence incident, it is found that the Petitioner did not harm the alleged victim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order either granting the Petitioner the exemption sought or finding that he has not committed an act of domestic violence such that he must be disqualified from employment in a position of special trust. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 9th day of November, 2000. COPIES FURNISHED: Johnny R. Jenkins 3745 Northwest 27th Avenue Okeechobee, Florida 34972 Lynne T. Winston, Esquire Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100
