The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin, race, and perceived disability in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that Mr. Pierre is a male and Black and that his national origin is Haitian. No dispute exists that he is a member of the protected class as it relates to discrimination. No dispute exists that, at all times material hereto, the School Board was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Mr. Pierre began his employment with the School Board in 1996. For nine (9) years, he worked in the Maintenance Department and was promoted three times. His various supervisors rated his work as excellent. At all times material hereto, Mr. Pierre’s co-workers were of various ethnic groups—Haitian, Hispanic, Black/African American, Caucasian, etc. For approximately seven years, Mr. Pierre was under the supervision of Foreman John Bateman. Mr. Bateman considered Mr. Pierre to be a “fabulous” worker and recommended Mr. Pierre for promotion. Subsequent thereto, Mr. Bateman observed a change in Mr. Pierre’s behavior and attitude. Mr. Bateman discussed the changes in Mr. Pierre’s behavior and attitude with his (Mr. Bateman’s) supervisor, James Bass. Such a change in behavior and attitude was exhibited on April 27, 2004. On that date, Mr. Pierre refused to take orders from a temporary leadman, Joe Williams, in the absence of the leadman, Joe Pierrot. Mr. Bass was called to the work-site, and he spoke to Mr. Pierre regarding his refusal to follow the directives of Mr. Williams. After the discussion, Mr. Pierre agreed to follow the directives of Mr. Williams. Mr. Bass memorialized the incident in a memorandum “For the Record” dated the same day. Mr. Bass testified as to the incident and noted, among other things, in the memorandum that Mr. Pierre had become “very disruptive, creating a hostile environment;” that, after the discussion, Mr. Pierre “returned to his duties without incident;” and that Mr. Pierre was “a very hard worker, but he appears to have ‘fits’ at times . . . seems to intimidate his co-workers with his attitude and overly-aggressive behavior . . . has a tendency to accuse his co-workers of not liking him because of his nationality (Haitian).” Mr. Pierre testified that he did not look at the memorandum and refused to sign it; and that he informed Mr. Bass that he (Mr. Pierre) did not have a “fight” with anyone. Another incident occurred on July 9, 2004. Mr. Bass memorialized the incident in a memorandum “For the Record” dated the same day of the incident. A worker, Mike Walters, had placed a bottle of water in a refrigerator over night, and the next day, the bottle of water was missing. As Mr. Pierre was walking past Mr. Walters, he (Mr. Walters) commented that someone had taken his bottle of water. Mr. Pierre immediately took offense, became agitated, and refused to calm down, even after Mr. Walters explained to Mr. Pierre that he was making a general statement, not directed at Mr. Pierre. Only after the leadman, Mr. Pierrot, interceded did Mr. Pierre calm down. Mr. Bass included in the memorandum that Mr. Pierre appeared to believe that “everyone was out to get him”; that Mr. Pierre’s co-workers expressed being fearful of him; that Mr. Pierre was advised that such behavior was not acceptable; and that further such behavior would lead to disciplinary action up to and including termination. Mr. Bass signed the memorandum, but Mr. Pierre refused to sign it. Mr. Pierre testified at hearing that the Mr. Walters accused him of “stealing” the water but that he knew nothing about it. The undersigned finds Mr. Pierre’s testimony credible that he (Mr. Pierre) believed that he was being accused of stealing the water but that he knew nothing about the water being stolen. An inference is drawn and a finding of fact is made that Mr. Pierre became upset because of this belief. Mr. Pierre was counseled regarding his behavior. Mr. Bass and the District Maintenance Manager, Mark Dorsett, decided that a re-assignment might benefit Mr. Pierre and his co-workers. As a result, on July 20, 2004, Mr. Pierre was re- assigned from a team of workers, i.e., a crew, responsible for cleaning air conditioning coils to a crew responsible for preventative maintenance tasks. The re-assignment was memorialized in a memorandum dated July 20, 2004. The memorandum provided, among other things, that Mr. Pierre would be monitored for six months and, if the re-assignment did not improve Mr. Pierre’s relationship with his co-workers, “progressive disciplinary action” would be invoked; and that the re-assignment would hopefully improve the relationships. The memorandum was copied to Mr. Pierre. Approximately three months later, however, on October 20, 2004, another incident occurred. The incident was memorialized in a memorandum “For the Record” dated October 25, 2004. According to the memorandum, Mr. Pierre had an argument with Sammie Riviera, Mr. Pierre’s work-partner, regarding Mr. Pierre’s tools, which “escalated to a verbal altercation.” Also, the memorandum indicated that, when Mr. Pierre returned to work, after the incident, he began accusing his co-workers of taking his missing tools, which he was unable to locate. Further, the memorandum indicated that the foreman, Jose Martell, advised Mr. Pierre that his behavior would have to “cease immediately.” Moreover, the memorandum indicated that Mr. Martell and Mr. Martell’s supervisor, Diane Caulfield, determined that Mr. Pierre would benefit from the School Board’s Employees Assistance Program (EAP). Mr. Martell and Ms. Caulfield signed the memorandum, but Mr. Pierre did not. Mr. Riviera did not testify at hearing. Mr. Pierre testified that, contrary to what others thought that he believed, he did not believe that Mr. Riviera stole his tools. Mr. Pierre testified that Mr. Riviera used his tools and dropped them on the floor; that he (Mr. Pierre) picked-up the tools and placed them in the truck; that Mr. Riviera attempted to talk to him (Mr. Pierre) but that he (Mr. Pierre) refused to talk to Mr. Riviera. In his testimony, Mr. Pierre did not deny that he and Mr. Riviera argued. On October 26, 2004, Ms. Caulfield presented Mr. Pierre with an EAP Referral Form, which stated the reason for the referral as “Anger Management – no one wanting to work with him.” Ms. Caulfield signed the EAP Referral Form, but Mr. Pierre refused to sign it. At hearing, Mr. Pierre testified that he did not recall Ms. Caulfield’s request for him to attend the EAP. The undersigned finds Mr. Pierre’s testimony to be credible, but such finding does not change or affect the undersigned’s finding that Ms. Caulfield requested Mr. Pierre to attend the EAP. Approximately 20 days later, on November 15, 2004, another incident occurred. The incident was memorialized in a memorandum “For the Record” dated November 16, 2004. Mr. Pierre’s work-partner, Mr. Riviera, observed Mr. Pierre handling a device that he (Mr. Pierre) should not have been handling, and Mr. Riviera so advised Mr. Pierre, who became “very agitated” and was “yelling” at Mr. Riviera. Additionally, the memorandum indicated that Mr. Riviera had observed, on occasion, Mr. Pierre mumbling to himself “excessively” and “banging himself against a wall.” Further, Mr. Riviera indicated that such behavior by Mr. Pierre, together with Mr. Pierre’s exhibited temper, caused Mr. Riviera to be “fearful of his personal well-being” while working with Mr. Pierre. Mr. Martell signed the memorandum, but Mr. Pierre did not sign it. Approximately, nine months later, in August 2005, Mr. Pierre visited the Director of Maintenance, Sylvester Davis. Mr. Davis had known Mr. Pierre since Mr. Pierre began working with the School Board and had always encouraged Mr. Pierre to visit him. Mr. Davis observed that Mr. Pierre was upset about something, but Mr. Pierre was unable to explain to Mr. Davis what was happening to him (Mr. Pierre), so Mr. Davis decided to talk to Ms. Caulfield. Mr. Pierre testified that he went to talk to Mr. Davis because he (Mr. Pierre) was not feeling safe at work, believed that he (Mr. Pierre) was being “persecuted,” and believed that Mr. Davis could help. Mr. Davis met with Ms. Caulfield and expressed his concern regarding Mr. Pierre. She explained what had been happening with Mr. Pierre and showed Mr. Davis the memoranda that had accumulated regarding Mr. Pierre’s behavior. Mr. Davis suggested the EAP, and Ms. Caulfield advised him that Mr. Pierre had already been referred to the EAP. After his meeting with Ms. Caulfield, Mr. Davis became concerned regarding the safety of Mr. Pierre and the other workers. Mr. Davis determined that a Fit-For-Duty examination was appropriate. In a memorandum dated September 19, 2005, directed to the School Board’s Special Investigative Unit (SIU), which is within the School Board’s Office of Professional Standards (OPS), Mr. Davis, among other things, provided the SIU with information in order for it to conduct a Fit-For-Duty examination of Mr. Pierre. In the memorandum, Mr. Davis indicated, among other things, that Mr. Pierre’s behavior had gotten progressively worse; that a safety problem had arisen since Mr. Pierre’s work assignments required assistance, but his co-workers were refusing to work with him because of their fear of his reactions; that Mr. Pierre’s co-workers were concerned about him, had respect for him, and viewed him as an excellent worker; and that Mr. Pierre’s co-workers just wanted him to get help. Further, in the memorandum, Mr. Davis requested that a person who could speak Creole be present when the SIU spoke with Mr. Pierre. Moreover, at hearing, Mr. Davis testified that, at no time did he want Mr. Pierre to be terminated, only for him to get the help that he needed to continue to work for the School Board. Mr. Davis viewed the Fit-For-Duty examination as a way to help Mr. Pierre. Mr. Davis’ testimony is found to be credible. The Fit-For-Duty evaluation is a non-disciplinary process wherein the School Board is attempting to help an employee. School Board Policy 4004 provides in pertinent part: RULES Fit for Duty Determination Procedures (emphasis in original) The Executive Director of Professional Standards & Special Investigative Unit (SIU) receives request from a Principal/Administrator (includes District Administrators) or Superintendent/Designee. (Supporting Documents) SIU notifies employee via certified mail that he/she must undergo a physical and/or psychological examination. A reassignment letter is prepared directing employee to remain at home with pay, pending the outcome of the examination. (Letter 1) The affected employee shall select the name of a medical doctor, psychologist or psychiatrist from a list maintained by the Executive Director of Professional Standards & Special Investigative Unit, within 48 hours. (See Attachment to Letter 1) SIU Administrator schedules within ten working days a medical appointment and follows-up in writing to the doctor’s office and to the employee of appointment confirmation. Note: This is a mandatory appointment and failure to attend can result in termination of employment for failure to comply with School Board Policy 4004. (Letters 2 & 3) (emphasis in original) * * * 6. The doctor as delineated in the policy will conduct Pre-evaluation at District expense. Note: a 2nd Opinion will be at the employees expense if requested, with the employee selecting from the School Board approved list as delineated in the policy. (emphasis in original) * * * If employee fails to attend any mandatory appointment with the assigned doctor of the designee assigned to handle the Fitness for Duty Evaluation Case per School Board Policy 4004, then a pre- disciplinary meeting is arranged and employee is notified in writing. (Letter 7) If applicable a recommendation for termination is sent to the School Board of Broward County based on just cause, for insubordination, failure to comply with School Board Policy 4004. (Letter 8) By letter dated September 27, 2005, which was hand- delivered to Mr. Pierre, the Executive Director of OPS, SIU, Joe Melita, notified Mr. Pierre that Mr. Davis had requested a Fit- For-Duty Assessment, pursuant to School Board Policy 4004, and that Mr. Pierre was required to submit to a psychological examination at School Board expense. Mr. Melita provided further in the letter that Mr. Pierre was directed to choose a doctor from a list of doctors, which was attached to the letter, indicating his (Mr. Pierre’s) first and second choice, within two days of receipt of the letter; that the OPS Administrator, Richard Mijon, would schedule the appointment with the physician chosen; and that Mr. Pierre was to not return to work, but remain at home with pay pending the determination of the examination. The letter was addressed to Mr. Pierre at 2450 SW 7th Street, Fort Lauderdale, Florida 33312. An inference is drawn and a finding of fact is made that a perception existed that Mr. Pierre may have been experiencing psychological problems. Additionally, on September 27, 2005, Mr. Mijon met with Mr. Pierre and two of Mr. Pierre’s line supervisors in Mr. Mijon’s office. The line supervisors requested that a Creole-speaking individual also attend to assist Mr. Pierre in communicating only. Mr. Mijon complied with the request and obtained the services of one of his officers, Marc Elias, who was born in Haiti and who spoke Creole, for interpretation purposes only. The aforementioned letter dated September 27, 2005, was hand-delivered to Mr. Pierre at this meeting, and Mr. Mijon reviewed the contents of the letter with Mr. Pierre, who signed the letter and dated his signature (September 27, 2005). The list of physicians attached to the letter included physicians from the counties of Dade [sic], Broward, and Palm Beach. Mr. Pierre testified at hearing that he did not know any of the doctors on the list and, therefore, Mr. Elias circled three of the doctors and marked the order of preference (first, second, and third) for him. Mr. Pierre’s testimony is found to be credible, but also an inference is drawn and a finding is made that the choices were made after consulting with Mr. Pierre. Additionally, on the list, Mr. Pierre provided his contact telephone numbers (home and cell). Mr. Mijon reviewed with Mr. Pierre the choice of doctors, with preferences, and his (Mr. Pierre’s) telephone numbers. Also, Mr. Pierre’s address on the letter dated September 27, 2005, was taken from the School Board’s records. At the meeting, Mr. Pierre did not indicate that his mailing address was incorrect. At the conclusion of the meeting, Mr. Pierre requested that a Creole-speaking doctor perform the Fit-For-Duty examination. Mr. Mijon considered Mr. Pierre’s request reasonable, knew that none of the physicians on list spoke Creole, and indicated to Mr. Pierre that he would hold the list of physicians in abeyance and locate a Creole-speaking doctor through the EAP. On or about October 3, 2005, Mr. Mijon received a list of Creole-speaking psychiatrists and/or psychologists from the EAP. On that same day, Mr. Mijon again obtained the services of Mr. Elias and directed Mr. Elias to contact Mr. Pierre by telephone. Mr. Elias complied and contacted Mr. Pierre by telephone, activating the speakerphone. Mr. Elias participation in the entire telephone conversation was for translation purposes only. Mr. Mijon informed Mr. Pierre that a list of Creole-speaking doctors had been obtained and that Mr. Pierre needed to come to Mr. Mijon’s office on October 5, 2005, to do as he had done previously—choose three doctors, identifying his preferences (one through three), and sign and date the document. Mr. Pierre indicated, during the telephone conversation, that he would not come into Mr. Mijon’s office to do anything, indicating, among other things, that he (Mr. Pierre) was being persecuted. Mr. Mijon informed Mr. Pierre that, if he did not come into his (Mr. Mijon’s) office on October 5, 2005, that he (Mr. Pierre) would be considered to have waived his right to choose from the second list of doctors, and that he (Mr. Mijon) would have no choice but to use the original list chosen by Mr. Pierre, which contained no Creole-speaking doctors, contact Mr. Pierre’s first choice, and schedule an appointment with the first doctor from the original list. On October 5, 2005, Mr. Pierre failed to appear at Mr. Mijon’s office. Mr. Mijon proceeded to schedule an appointment with the doctor from the original list, Laura Hohnecker, Ph.D., who was indicated as Mr. Pierre’s first choice. The appointment was set for October 12, 2005, at Dr. Hohnecker’s office, 1:00 p.m. to 4:30 p.m. On October 6, 2005, Mr. Mijon contacted Mr. Pierre by telephone and again obtained the services of Mr. Elias for translation purposes only. Again, the telephone was placed on speakerphone. Mr. Mijon advised Mr. Pierre that an appointment had been scheduled with Dr. Hohnecker, Mr. Pierre’s first choice from the original list, for the Fit-For-Duty examination, and provided Mr. Pierre with the date, time, address, and telephone number of Dr. Hohnecker. Further, Mr. Mijon informed Mr. Pierre that the appointment was mandatory and that, if he (Mr. Pierre) failed to attend the appointment, disciplinary action may result. In addition to the telephone conversation, Mr. Mijon sent a letter, dated October 6, 2005, by certified and regular U.S. mail to Mr. Pierre, containing the same information that was discussed during the telephone conversation. The letter was addressed to Mr. Pierre at the same address that was used by Mr. Mijon on the letter dated September 27, 2005. The certified letter was returned but not for being unclaimed. Mr. Pierre failed to appear at Dr. Hohnecker’s office on October 12, 2005, for his appointment for a Fit-For-Duty examination. Due to Mr. Pierre’s failure to appear for his appointment, by letter dated October 14, 2005, Mr. Melita directed Mr. Pierre to appear at his (Mr. Melita’s) office on Tuesday, October 25, 2005, at 9:00 a.m. to meet with Mr. Mijon for a pre-disciplinary meeting, indicating that the purpose of the pre-disciplinary meeting was Mr. Pierre’s insubordination/noncompliance with School Board Policy 4004. The letter further indicated, among other things, that Mr. Pierre had failed to attend the mandatory appointment, as directed, with Dr. Hohnecker for his Fit-For-Duty examination. Moreover, the letter advised Mr. Pierre that his failure to attend the meeting on October 25, 2005, would result in his (Mr. Pierre’s) name being forwarded to the School Board for “termination” of employment. The letter was addressed to Mr. Pierre at the same address that was used by Mr. Mijon on the letter dated September 27, 2005, and was sent to Mr. Pierre by certified and regular U.S. mail. The certified letter was returned but not for being unclaimed. Subsequently, by letter dated November 7, 2005, Mr. Melita informed Mr. Pierre that, due to a hurricane, the meeting scheduled for October 25, 2005 was re-scheduled for Monday, November 14, 2005, at 9:00 a.m., restating the purpose for the meeting and the same information contained in the letter dated October 14, 2005. The letter was sent to Mr. Pierre by certified and regular U.S. mail, at the same address that was used by Mr. Mijon on the letter dated September 27, 2005. Mr. Pierre, accompanied by his counsel, attended the meeting on November 14, 2005. Mr. Elias was also present at the meeting for interpretation purposes only. At the meeting, Mr. Pierre denied that he had received a telephone call on October 3, 2005, regarding Mr. Mijon obtaining a list of Creole- speaking doctors for the Fit-For-Duty evaluation and the consequences for him (Mr. Pierre) not attending the meeting scheduled for October 5, 2005, with Mr. Mijon. At hearing, Mr. Pierre also testified that he did not receive the telephone call on October 3, 2005, regarding the meeting on October 5, 2005, and the consequences for his failure to attend. The undersigned does not find Mr. Pierre’s testimony to be credible. The undersigned makes a finding of fact that Mr. Pierre received the telephone call on October 3, 2005, regarding the meeting on October 25, 2005, and the consequences for his failure to attend. Also, at hearing, Mr. Pierre testified that he did not speak on the telephone with Mr. Mijon and Mr. Elias on October 6, 2005, regarding the appointment with Dr. Hohnecker on October 12, 2005, and the consequences for his failure to attend. The undersigned does not find Mr. Pierre’s testimony to be credible. A finding of fact is made that Mr. Pierre received the aforementioned telephone call on October 6, 2005, regarding the appointment with Dr. Hohnecker on October 12, 2005, and the consequences for his failure to attend. At the meeting on November 14, 2005, Mr. Melita determined that Mr. Pierre had presented no justifiable explanation for his (Mr. Pierre’s) failure to attend the appointment with Dr. Hohnecker on October 12, 2005, for the Fit- For-Duty examination. Mr. Melita recommended termination of Mr. Pierre’s employment with the School Board due to insubordination and non-compliance with School Board Policy 4004. By letter dated November 30, 2005, sent by certified and regular U.S. mail, Mr. Melita notified Mr. Pierre, among other things, of the recommendation, the basis for the recommendation, and the date (December 13, 2005) that the recommendation would be submitted to the School Board for approval. Mr. Pierre testified that he did not receive the letter dated November 30, 2005. Regarding Mr. Pierre’s address on the letters from the School Board sent by certified and regular U.S. mail, at hearing, Mr. Pierre testified that, in 2004, he had moved from the address reflected on the letters; that, after he was sent home in September 2005, he was receiving his paychecks from the School Board in the mail at his new 2004 address; and that, around December 2005, he moved to Sarasota, Florida. The evidence demonstrates that the certified letters were returned but fails to demonstrate whether the letters sent by regular U.S. mail were returned or not returned. Furthermore, the evidence demonstrates and Mr. Pierre admits that he and his counsel attended the re-scheduled pre-disciplinary meeting on November 14, 2005, regarding Mr. Pierre’s insubordination/noncompliance with School Board policy 4004, as to Mr. Pierre’s failure to attend the mandatory appointment with Dr. Hohnecker for his Fit-For-Duty examination. Mr. Pierre testified that he and his counsel became aware of the meeting on November 14, 2005, as a result of his counsel contacting Mr. Melita, attempting to discover what issue the School Board had with Mr. Pierre. The undersigned finds Mr. Pierre’s testimony credible regarding his addresses for 2004 and 2005. However, the undersigned further finds that the failure of Mr. Pierre to advise Mr. Mijon of his (Mr. Pierre’s) correct address at the meeting on September 27, 2005 was unreasonable. Mr. Pierre has not been employed since his termination from the School Board. Mr. Pierre has been consistently seeking employment since his termination from the School Board. At the time of the hearing, Mr. Pierre was suffering from hypertension and depression for which is taking medication for both. The evidence fails to demonstrate that Mr. Pierre was suffering from these illnesses or taking medication for them at the time that he was employed with the School Board. The evidence fails to demonstrate that similarly situated employees of the School Board were treated differently or more favorably.
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 discrimination complaint of Antoine Daniel Pierre against the Broward County School Board. DONE AND ENTERED this 31st day of July, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2008.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Family Dollar operates a large distribution center immediately south of Marianna, Florida. The center supports the retail activities of Family Dollar. Mr. Roulhac is an African-American male. He was first employed by Family Dollar at its distribution center on September 26, 2005. His job title was "bulk order filler." On that date he signed a New Associate Orientation Checklist, indicating that he understood his conditions of employment. On September 26, 2005, he also signed a statement that he had reviewed and understood Family Dollar's Statement of Major Company Policies. Included on that form was a direction on how to report misconduct, including discrimination. On September 26, 2005, Mr. Roulhac also signed a document acknowledging that he had read and that he understood Family Dollar's Policy on Harassment in the Workplace. This document informed him that Family Dollar did not tolerate, among other things, discrimination based on race or a hostile work environment that might be created on account of race. In bold letters the document informed as to how complaints regarding instances of discrimination based on race or a hostile work environment could be reported. A "bulk order filler" is responsible for pulling merchandise and filling orders, labeling the orders, and placing the orders on conveyor belts for loading on board Family Dollar trucks, so that they may be delivered to its stores. Mr. Roulhac received an evaluation for the period from September 26, 2005, his inception date, and December 26, 2005. This evaluation noted that he had an outstanding attitude, that he exceeded expectations, and that he worked well with little supervision. By August 2006, Mr. Roulhac had entered into a downward performance spiral. He was counseled by his manager, Matt Johnson, who noted that he was failing to meet "Argent" standards. "Argent" standards are production standards required by Family Dollar. This was memorialized in an Associate Corrective Action Review prepared on September 5, 2006, and signed by Mr. Roulhac on September 11, 2006. He was advised that he could seek additional training if he wished. In an Associate Corrective Action Review dated November 1, 2006, Mr. Roulhac received another written counseling from manager Matt Johnson that noted that he had only reached 75.9 percent of standards when he should have attained 90 percent. He was advised that he could seek additional training if he wished. In an Associate Corrective Action Review dated December 27, 2006, Mr. Roulhac received another written counseling that noted that he had only reached 76.5 percent of standards when he should have attained 90 percent. The form notes that he "failed to sign." Manager Matt Johnson also failed to sign the form. Mr. Roulhac was again advised that he could seek additional training if he wished. In an Associate Corrective Action Review dated April 11, 2007, Mr. Roulhac received another written counseling that noted that he had only attained 73 percent of standards when he should have attained 90 percent. This was signed by manager Matt Johnson. This written counseling contained the following comment: "Please notify me if you feel you need additional training to perform the duties and responsibilities of your position. It is critical that you increase your production to meet the minimum engineered standard. Failure to improve your job performance could result in further disciplinary action, including a possible suspension or discharge." This was signed by manager Matt Johnson. In an Associate Corrective Action Review dated May 3, 2007, Mr. Roulhac received another written counseling for "work habits-insubordination." The counseling noted that, "It is the responsibility of each associate to follow the instructions given to them by management and to follow all company policies and procedures. Failure to follow these instructions may result in corrective action and possible discharge." This counseling resulted from Mr. Roulhac's failure to attend a "start-up meeting, failure to clean the "Mod," and leaving his assigned area without authorization. This was signed by manager Matt Johnson. In an Associate Corrective Action Review dated May 21, 2007, Mr. Roulhac received another written counseling for "Work Habits-Failure to Comply with Job Responsibilities." This review noted that he failed to go where he was told and that his failure impeded production and caused unnecessary downtime. It had the following comment: "Please notify me if you feel you need additional training to perform the duties and responsibilities of your position. Failure to improve your job performance or compliance with Family Dollar policies and procedures could result in further disciplinary action, including a possible suspension or termination." This was signed by Christopher Miller. Mr. Roulhac refused to sign this counseling memorandum. In an Associate Corrective Action Review dated May 31, 2007, Mr. Roulhac received another written counseling for "Safety-Unsafe Act." This counseling occurred because he operated the Tugger 409 without authority. It advised him that, "Failure to perform your job in exact conformance with all safety requirements will result in corrective action up to and including termination of employment. Michael Shutes signed this counseling. The form noted that Mr. Roulhac refused to sign. In an Associate Corrective Action Review, also dated May 31, 2007, Mr. Roulhac received another written counseling for a "work habit/time clock" infraction. The counseling noted that, "You have received three time clock infractions within a 60-day period. April 17th, May 29th, and May 30th, 2007." This counseling was given by Michael Shutes. In an Associate Corrective Action Review dated June 13, 2007, Mr. Roulhac received another written counseling from Christopher Miller for failure to comply with job responsibilities. This review noted that he had failed to attend the "start up meeting." The form noted that, "Failure to improve your job performance or compliance with Family Dollar policies and procedures could result in further disciplinary action, including a possible suspension or termination." In an Associate Corrective Action Review dated June 14, 2007, Mr. Roulhac received another written counseling from Christopher Miller for "work habits/failure to comply with job responsibilities." This counseling addressed another failure to attend the "start up meetings." It noted: "Final Written Counseling (Active 1 Year.)" On July 10, 2007, Mr. Roulhac received another written counseling from Christopher Miller for reporting that at 1:59 p.m. that he, Mr. Roulhac, had completed his labels, and noted that, "You failed to call and open up new labels until 2:55 p.m. There is no record of work being performed during this time." This counseling asserted that Mr. Roulhac was terminated. However, a hand-written note on the form related that, "After discussing with Darrell, we have decided to give him an opportunity to correct his behavior." This was signed by Jeff Diamond on July 12, 2007. There is no evidence of record that Mr. Roulhac ever availed himself of the opportunity to receive the additional training offered in each Associate Corrective Action Review. On July 13, 2007, Mr. Roulhac asserts that he was called a "monkey" and a "boy" by Mr. Miller. This assertion was not rebutted. No evidence was offered that might illuminate the context in which these words were said. On July 14 and 16, 2007, Mr. Roulhac was late to "start up" meetings. On July 17, 2007, Mr. Miller told him to report to Mr. Johnson. At a meeting attended by Mr. Johnson, Mr. Roulhac, Mr. Miller, and Mr. Diamond, Mr. Roulhac was informed that he was terminated. The discharge was approved by Craig Moore, an African-American, who was the regional vice- president at the Marianna facility. Mr. Roulhac was paid $11.23 per hour while working for Family Dollar. About three days from the date of his termination, he went to work for a funeral parlor making the same hourly wage. No evidence whatsoever was introduced that indicated a racially offensive working environment. No evidence was provided that indicated that Mr. Roulhac was treated differently from any other employee. In fact, the evidence demonstrates that, considering the number of adverse counselings he received, Family Dollar exhibited remarkable forbearance in retaining him despite his inability to meet standards.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Mr. Roulhac's Petition for Relief. DONE AND ENTERED this 30th day of September, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 30th day of September, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Darrell Roulhac 652 Pecan Street Chipley, Florida 32428 W. Edward Singletary, Esquire Family Dollar Services, Inc. Post Office Box 1017 Charlotte, North Carolina 28201 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, the Dade County Police Benevolent Association (Respondent) was the collective bargaining agent for the bargaining unit of the City of Hialeah Police Department (CHPD). Warren D. Brown (Petitioner) is a black male. At all times material hereto Petitioner was a law enforcement officer with the CHPD, a member of the bargaining unit and a dues paying member of the Respondent. On or about May 11, 1992, Petitioner was attempting to exit a secured and locked double doorway located on the east side of the CHPD's building. Upon pushing a switch, a lock mechanism releases the lock, and a door can be opened. However, at this particular time, the lock was not immediately released. Petitioner applied greater force to the door, which caused it to swing open forcefully (when the lock did release) and strike another officer who was attempting to enter the building through the same door. Petitioner was heard to chuckle after exiting the door. Approximately two to three days later (May 13 or 14, 1992), the officer who was struck by the door filed an internal complaint against Petitioner. The officer had discussed the incident with a CHPD sergeant who had had problems with the Petitioner in the past and who had filed several internal complaints against Petitioner. The officer alleged in his complaint that Petitioner intentionally hit him with the door. The internal complaint was referred to CHPD's Internal Affairs for investigation. The investigation included taking statements from Petitioner, the officer and any witnesses. When the internal complaint was filed against Petitioner, he contacted Respondent for assistance, and Respondent's Senior Attorney, James Casey, represented Petitioner. Casey was present with and represented Petitioner at the initial questioning by Internal Affairs. On or about June 16, 1992, Internal Affairs issued its findings to CHPD's Chief of Police (Chief). The Internal Affairs investigator concluded that Petitioner had intentionally hit the officer with the door. On July 7, 1992, the Chief issued a disposition of the complaint. The Chief determined that the complaint against Petitioner was sustained and that the appropriate discipline was a 10-hour suspension without pay. Further, the Chief scheduled a pre-disciplinary hearing for July 21, 1992. On or about July 13, 1992, the Chief had prepared a recommendation to the Mayor of the City of Hialeah that Petitioner be suspended without pay for 10 working hours from the CHPD. The letter included a summary of the incident, the rules and regulations violated by Petitioner and the disciplinary action for such violations. However, the recommendation was never forwarded to the Mayor for his approval. 1/ The pre-disciplinary hearing was held and, as a result of that hearing, a CHPD Captain was requested to view the photographs of the door which were taken at the time the incident occurred and to examine the door itself. On August 3, 1992, in a memorandum to the Chief, the Captain indicated that it was possible that the door did stick and that Petitioner was not aware of the officer's presence. Furthermore, the Captain recommended that one of the doors be labeled for entering and the other for exiting and that a caution zone be established to alert individuals that they should use caution when opening the doors. Casey was also present with and represented Petitioner at the pre- disciplinary hearing. After the pre-disciplinary hearing, Petitioner contacted Respondent almost on a weekly basis inquiring about the status of his case. Each time Respondent had nothing to relate to Petitioner indicating that nothing had been done by the CHPD and the Mayor. In August 1992, Casey terminated his employment with Respondent. He was replaced by Michael Braverman. Petitioner continued his weekly inquiry to Braverman and received the same response as before. On or about October 20, 1992, the Chief changed the discipline to a written reprimand. However, again, this disciplinary recommendation was not forwarded to the Mayor for his approval. On or about November 19, 1992, Braverman recommended to Petitioner that he accept oral counseling, or an oral reprimand, and end the matter. Petitioner refused. Finally, on or about December 6, 1992, Petitioner forwarded an internal memorandum to the Chief inquiring about his case, reminding him that, according to the collective bargaining agreement, the complaint should have been resolved within 60 days and allowing him five working days to resolve the complaint before he appealed to the next level. On or about December 11, 1992, the Chief informed Petitioner that the complaint was sustained for violation of courtesy conduct but that the disciplinary action (a written reprimand) was rescinded due to "unreasonable delay in imposing the written reprimand." Even though the written reprimand was rescinded, the Chief recommended to the Mayor that Petitioner receive oral counseling which was in essence the same as an oral reprimand. The Mayor approved the oral counseling. Petitioner contacted the Mayor who confirmed that the sanction was oral counseling. Article 26, entitled "Disciplinary Review Procedures," Section 2 of the collective bargaining agreement entered into between the City of Hialeah (City) and Respondent 2/ provides in pertinent part: k. The employee who is the subject of a complaint or allegation shall be promptly notified of the disposition upon the conclusion of the investigation. In any investigation in which the charges against the officer cannot be substantiated, the officer shall be deemed to have been exonerated of any charges. * * * o. Any internal investigation, except where criminal charges are being investi gated, shall be completed within sixty (60) days from the date the officer is informed of the initial complaint. No officer may be subjected to any disciplinary action as a result of any investigation not completed within that time period. Oral counseling is not considered by Respondent or the City as discipline. As a consequence, there is no appeal of such an action against an employee of the City who is also a member of the bargaining unit represented by Respondent. However, oral counseling is considered "progressive discipline" which means, in essence, that CHPD can consider it if another complaint against Petitioner is sustained involving a violation of courtesy conduct and impose a sanction which is considered disciplinary. Because of this possibility of a disciplinary sanction being imposed in the future, Petitioner objected to the oral counseling. Petitioner contacted Respondent to appeal the oral counseling. Petitioner discussed the situation with Braverman, Respondent's attorney. Braverman informed Petitioner that there was nothing to appeal since oral counseling was not discipline but that, pursuant to the collective bargaining agreement, Petitioner could respond in writing to the oral counseling and have the response placed in his personnel file. Consequently, Braverman informed Petitioner that Respondent could provide no representation. Article 44 of the collective bargaining agreement, entitled "Personnel Records," provides: Section 1. Each bargaining unit employee shall have the right to respond, in writing, to any and all derogatory material placed in their personnel file and have that response placed in their personnel file. Section 2. Employees who complete two (2) years of discipline free service shall have all counseling and/or written reprimands removed from their personnel files pursuant to State of Florida Department of Archives guidelines. This complaint against Petitioner was not the first complaint against him but was one of many. The Chief and certain uniformed supervisors of the CHPD have a history of filing complaints for internal investigation against Petitioner. 3/ Respondent was well aware of that history and has, in fact, represented Petitioner in many of the complaints. Historically, Respondent has not been free of discriminatory practices toward black officers. In 1972 a federal court held that the Miami PBA 4/ had discriminated against black officers by not permitting them to become members of the PBA, but permitting white officers to become members. The federal court ordered the Miami PBA to allow black officers to become members and to offer them the same benefits as white officers. Adams v. Miami Police Benevolent Association, 454 F.2d 1315 (5th Cir. 1972), cert. denied, 409 U.S. 843 (1972). However, since that federal case, there has been no legal showing of discrimination by Respondent. Contrastingly, through court action, Respondent eliminated a discriminatory practice by the City that benefited a black officer. Sometime in 1980, 5/ several white officers and one black officer 6/ were denied the opportunity to take the examination for police chief by the City. They contacted the Respondent for legal assistance,which represented the officers in a court action against the City. The court ordered the City to administer the exam to the officers. Notwithstanding, the City permitted the white officers, but not the black officer, to take the police chief exam. The black officer again approached Respondent for legal assistance. Respondent denied him such assistance. Respondent's position was that, even though the court had ordered the City to permit him to take the police chief examination, at that point in time the City had already appointed the police chief. Furthermore, Respondent indicated that to pursue the matter further would provide no meaningful redress. Respondent's Policy No. 84-2, entitled "Request For Legal Assistance" (Legal Assistance Policy), controls the Respondent's legal representation of its members. The Legal Assistance Policy defines legal assistance as "the representation of Association members at administrative and disciplinary hearings as well as taking judicial action on behalf of Association members, in accordance with the provisions of this policy." Under this Policy, a member of the Respondent is eligible for legal assistance "if the matter arises out of the scope of the member's employment" and the member was in "good standing" 7/ at the time of the incident and remained in good standing throughout the course of any legal action pertaining to the matter. Also, pursuant to the Legal Assistance Policy, a member who is approved for legal assistance must accept Respondent's attorney for representation. Other counsel may be used only when the Respondent's attorney has a conflict and when approved by the Legal Assistance Coordinator or the Board of Directors. Furthermore, benefits provided pursuant to the Legal Assistance Policy are applicable only to administrative and trial level actions and may be applicable to appellate level actions under certain specific situations. The Legal Assistance Policy also defines "Legal Defense Benefit" as Respondent's Policy No. 3-80 which provides "coverage for members, in good standing, for incidents within the scope of employment resulting in criminal or civil prosecution." Policy No. 3-80 (Legal Defense Benefit Policy) provides that Respondent will provide its members with this benefit "only in those cases where a lawsuit or criminal indictment results from professional acts or omissions which arise out of and in the scope of their duties as a law enforcement officer." Further, it provides that the benefit consists of Respondent paying "attorney's fees and directly related Court costs." Petitioner never requested the Respondent to file an action against the City or the CHPD on the grounds of racial discrimination in the CHPD's disciplinary action(s) against him. Petitioner believed that he was not required to make such a request because it was obvious what the City or CHPD was doing and that the Respondent should have taken the initiative and filed a discrimination action. Even though the Respondent's action of allowing the CHPD to continue the investigation of the complaint against Petitioner for several months beyond the 60-day limitation is suspect, there was insufficient evidence of any disparity presented at hearing to conclude that the Respondent had acted any differently when dealing with the same or similar complaints against white officers who were members of the Respondent. Moreover, there was no evidence presented that the Respondent acted any differently with white officers who had been given oral counseling as a result of a complaint against them. There was no evidence that the Respondent failed to appeal Petitioner's oral counseling because of race, and there was insufficient evidence of any conduct by Respondent from which it can be inferred that the actions of Respondent were based on race. The Respondent's failure to insist upon no disciplinary action against the Petitioner at the expiration of the 60-day investigation limitation was nondiscriminatory. Moreover, the Respondent's failure to appeal Petitioner's oral counseling was legitimate and nondiscriminatory and its denial to appeal was without discriminatory motivation.
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 in Tallahassee, Leon County, Florida, this 7th day of April 1994. ERROL H. POWELL 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 7th day of April 1994.
The Issue The issue in this limited proceeding is whether the issuance of the Order Finding Probable Cause against Respondent affects his substantial interests and was based on an unadopted rule,1 as contemplated in Subsection 120.57(1)(e)1., Florida Statutes (2006).2
Findings Of Fact At all times material hereto, Respondent has been employed by and continuously served as the Sheriff of Orange County, Florida, since taking office in January 1993, having been elected to four successive terms. In the aftermath of the September 11, 2001, terrorist attacks, the Governor by Executive Order, later codified by the Florida Legislature, created seven Regional Domestic Security Task Forces (Task Forces) mirroring the seven FDLE geographical regions throughout the state. Members of the Task Forces were appointed by the Commissioner of FDLE. As a representative of local law enforcement, Respondent qualified, by law, for appointment as a member of one of the Task Forces created by Section 943.0312.3 Co-chairs of the Task Forces were also appointed directly by the Commissioner of FDLE. The law required that one co-chair be the FDLE special agent in charge of the operational region, the other a local sheriff or chief of police from within the operational region. The co-chairs of the Task Forces were appointed directly by the Commissioner of FDLE.4 Respondent, as Sheriff of Orange County, was appointed co-chair of Region 5 Task Force with that region's FDLE special agent in charge. Task Forces are advisory bodies to FDLE. The Task Forces also provided operational support to FDLE in its performance of functions pertaining to domestic security.5 On or about August 5, 2005, the Commission received a Complaint designated as Complaint 05-105. Complaint 05-105 was filed against Respondent in his capacity as "Sheriff of Orange County." The executive director of the Commission found that based on the information provided in the Complaint, the allegations contained therein were sufficient to warrant a preliminary investigation. An investigation was conducted by Investigator Ronald D. Moalli of the Commission, and a Report of Investigation was released on the investigation on September 5, 2006. On November 22, 2006, Respondent filed a written Response to the Report of Investigation with the Commission. Respondent's Response to the Investigation cited a number of Commission opinions ("CEOs") in support of an argument that Respondent did not have a contractual or employment relationship subject to the prohibitions of Subsection 112.313(7)(a). The response also contained a number of legal and factual arguments contending that the Report of Investigation did not support a finding of probable cause as to the allegations against Respondent. On December 19, 2006, the Advocate's Recommendation was filed with the Commission. The Advocate's Recommendation stated that based on evidence before the Commission, the Advocate recommended that there was probable cause to believe that Respondent violated five provisions of the Code of Ethics for Public Officers and Employees ("Code of Ethics"), including violations of Subsections 112.313(3) and 112.313(7)(a). The Advocate's Recommendation does not reference CEO 99-2, nor does it reference any statements contained in that advisory opinion. On January 9, 2007, Respondent filed a written Response to the Advocate's Recommendation. On January 26, 2007, during its executive session, the Commission conducted a hearing to determine probable cause in this case. Probable cause hearings before the Commission are not conducted ex parte as in some agencies. Rather, in addition to materials submitted by the parties, oral argument is permitted. However, the Commission does not give Respondents notice of Chapter 120 rights, and due process rights do not attach until after probable cause is found. § 112.324(3), Fla. Stat. At the probable cause hearing, the Commission had before them the Complaint, the Report of Investigation, Respondent's Response to the Report of Investigation, the Advocate's Recommendation, and Respondent's Response to the Advocate's Recommendation. Fla. Admin. Code R. 34-5.006(5). In addition to the foregoing, the Advocate and counsel for Respondent made oral arguments at the probable cause hearing. The Advocate argued: There's a suggestion in the response [of Respondent] that this wasn't his agency, that his only agency was the sheriff's office. I've got some materials. I've spoken to Mr. Herron about this, and I believe he would concur, that for purposes. . . . I am citing CEO 99-2. For the purposes of these two provisions, and they're talking about subsection (3), the doing business with prohibition, and subsection (7), the contractual conflict prohibition. The Commission has said for purposes of these two provisions, we must determine the agency of the advisory board members. And then they speak of two other opinions. We reiterated our view that in determining an individual's agency for purposes of the Code of Ethics, an advisory board to a governing body is part of that body. So, being on the task force, [Respondent's] agency was FDLE. That's the point. At the probable cause hearing, following the argument of the Advocate and counsel for Respondent, the Commission voted to accept the recommendation of the Commission's Advocate with respect to four of the five violations of the Code of Ethics. On January 31, 2007, the Commission issued the Order Finding Probable Cause to believe that Respondent violated four provisions of the Code of Ethics. Respondent alleges the Commission relied on and based the findings of probable cause to believe that Respondent violated Subsections 112.313(3) and (7)(a) on the following statement in CEO 99-2. [I]n determining an individual's "agency" for purposes of the Code of Ethics, an advisory board to a governing board is part of that body. Under existing law, CEO 99-2 is not binding on Respondent.6 Arguments of counsel are not binding on the Commission. Moreover, the Advocate's arguments to the Commission are not rules. None of the written documents before and available to the Commission at the probable cause hearing, refer to or mention CEO 99-2 or the application of that advisory opinion. In its Order Finding Probable Cause, the Commission ordered, in accordance with Chapter 120 that a public hearing be held on the allegations set forth in the Order Finding Probable Cause. On or about April 19, 2007, the Commission referred Complaint 05-105 to DOAH and requested a formal administrative hearing and to enter a recommended order regarding whether Respondent violated the Code of Ethics as alleged by the Order Finding Probable Cause. Two of the four allegations set forth in the Order Finding Probable Cause material to this segment of the proceeding state that Respondent violated: Section 112.313(3), Florida Statutes, by doing business with his own agency. Section 112.313(7)(a), Florida Statutes, by having employment or contractual relationship with a business entity or entities doing business with Respondent's agency . . . . As of the date of this proceeding, the public hearing on the Complaint had been stayed pending the outcome of this proceeding and of an appeal of a discovery matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered on this part of the proceedings only, finding that: (1) Respondent, Kevin Beary, failed to show that the issuance of the Order of Probable Cause against him affects his substantial interests and was based on an unadopted rule, as contemplated by Subsection 120.57(1)(e)1.; and (2) dismissing Respondent's Amended Motion to Invalidate Agency Action Based on Unpromulgated Rule. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2008.
The Issue Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, whose correct name is AIG Marketing, Inc. is a subsidiary of American International Group, Inc. ("AIG"). Respondent supplies marketing services for AIG. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003). Petitioner is an African-American female. She began working for Respondent as an "insurance consultant" on April 22, 2003. Petitioner resigned her employment by letter dated February 17, 2004. Petitioner's last day at work for Respondent was March 2, 2004. Petitioner worked at Respondent's facility in Seminole County, Florida. An insurance consultant's primary job responsibility is to answer incoming telephone calls from prospective customers seeking information concerning automobile insurance. Respondent has an anti-discrimination and anti- retaliation policy. Respondent has a published policy specifically prohibiting discrimination and retaliation. The policy states that discrimination, including that based upon race and color "is strictly prohibited." The policy states that any employee found to have engaged in any form of discriminatory harassment will be subject to appropriate disciplinary action, up to and including termination. The policy states that Respondent will not tolerate any retaliation against any employee for making a complaint, bringing inappropriate conduct to the Respondent's attention, or for participating in an investigation of an alleged act of harassment. Respondent's management employees support and enforce its policies against discrimination and retaliation. After she was hired in April 2003, Petitioner received training for a period of approximately 10 weeks. Thereafter, on approximately July 1, 2003, she was placed on a "team" with other insurance consultants. The Petitioner's immediate supervisor was Melody Garcia-Muniz. While on Ms. Garcia-Muniz' team, Petitioner also received instruction, also called "coaching," from Nirmala Sookram. Ms. Garcia-Muniz is an Asian female. Ms. Sookram is an Indian female. Approximately one month after she was placed on Ms. Garcia-Muniz' team, on or about August 2, 2003, Petitioner had a confrontation with Ms. Sookram. Thereafter, by correspondence dated August 2, 2003, Petitioner wrote Respondent's Human Resources Office and Ms. Garcia-Muniz complaining of "the work condition, I have been experiencing with team leader Nirmala Sookram." As a result of Petitioner's August 2, 2003, letter, Respondent replaced Ms. Sookram as the team coach with another coach. Respondent also immediately investigated the allegations contained in Petitioner’s August 2, 2003, correspondence. This investigation was conducted by Ms. Garcia-Muniz and another management employee Dawn Bronwnlie. No evidence of discrimination was revealed. In approximately September or October 2003, Petitioner was transferred from Ms. Garcia-Muniz' team to a team supervised by Beverly Swanson. Ms. Swanson is a Caucasian female. This transfer was done pursuant to a reorganization of Respondent's shifts. Respondent had two business practices which are relevant to this matter and which are acknowledged by Petitioner. First, Respondent requires that its insurance consultants respond to in-bound calls from customers as soon as possible. Respondent has a policy prohibiting insurance consultants from making out-bound calls if there are in-bound calls waiting. Out-bound calls would typically be follow-up calls between an insurance consultant and a prospective customer. Second, Respondent has a policy prohibiting one insurance consultant from accessing an insurance quote being worked on by another insurance consultant. This policy is intended to prevent one insurance consultant from "stealing" a customer from another insurance consultant. Petitioner consistently violated Respondent's policy against making out-bound calls when in-bound calls were waiting. She was counseled with respect to this policy on August 5, 2003. Petitioner continued to violate this policy and received a verbal warning on September 19, 2003. The verbal warning confirmed Petitioner had been counseled in August with respect to this policy. The verbal warning confirms that for a 14-day period Petitioner made 649 out-bound calls while only receiving 444 in-bound calls. The verbal warning stated that at no time should Petitioner's out-bound calls exceed her in-bound calls. With respect to Respondent's policy prohibiting one insurance consultant from accessing a quote for a customer of another insurance consultant, Petitioner was advised on November 7, 2003, about the proper procedures to handle such situations. Though Petitioner claimed that she did not know accessing a quote for another insurance consultant's customer was inappropriate until November 7, 2003, she admits that on that date she was so advised and from that date forward knew that it was a violation of Respondent's policies. Nonetheless, on December 10, 2003, Petitioner's then supervisor Ms. Swanson was advised that Petitioner had accessed a quote for another insurance consultant's customer in violation of Respondent's policies. This occurred on December 9, 2003. Two days later on December 12, 2003, another insurance consultant, Steve Mintz advised Ms. Swanson that Petitioner had also accessed one of his insurance quotes. Ms. Swanson investigated and determined that Petitioner had, in fact, violated Respondent's policies by accessing the quote of another insurance consultant's customers. As part of that investigation, Ms. Swanson interviewed Petitioner and reviewed reports. Petitioner's statements were inconsistent with the reports, and Ms. Swanson ultimately determined that Petitioner had been untruthful with her during the investigation. As a result of Petitioner's violation of the policy, on December 16, 2003, Ms. Swanson issued Petitioner a written warning for inappropriate sales conduct. The written warning noted that Ms. Swanson had thoroughly investigated "several" complaints about Petitioner's sales conduct and confirmed that Petitioner had processed sales incorrectly despite several discussions with other supervisors as well as Ms. Swanson. The written warning also confirmed that Petitioner had been untruthful with Ms. Swanson during Ms. Swanson's investigation into this matter. As a result, Ms. Swanson placed Petitioner on a written warning which advised her that should her practices continue, her employment would be terminated. In accordance with Respondent's policies, Petitioner was ineligible to post for a position, switch shifts, or work overtime. Immediately after the December 16, 2003, meeting during which Ms. Swanson issued the written warning, Petitioner contacted Respondent's Human Resources department. As a result, Louisa Hewitt, Respondent's Human Resources professional, undertook an independent investigation to determine the accuracy or inaccuracy of Ms. Swanson's findings which formed the basis for the written warning. Ms. Hewitt is a Hispanic female. Ms. Hewitt's independent investigation determined that Petitioner had, in fact, improperly processed sales and inappropriately accessed quotes. Accordingly, Ms. Hewitt met with Petitioner on December 31, 2003. In attendance was another of Respondent's managers Patricia Brosious. During this meeting, Ms. Hewitt advised Petitioner that the written warning was appropriate. Despite the fact that the December 16, 2003, written warning prohibited Petitioner from switching shifts, Respondent allowed Petitioner to switch shifts in order to allow her to care for an ill relative. This request was received on or about December 21, 2003, and granted on December 22, 2003. Dawn Bronwnlie (one of the Respondent's assistant managers who investigated Petitioner's August 2003 complaint) requested the accommodation on Petitioner's behalf by e-mail dated December 21, 2003, sent to, among others, Petitioner's immediate supervisor Ms. Swanson. Petitioner and Respondent management employee Patricia Brosious were copied on the e-mail. Approximately one month later, Petitioner again requested a shift change. By e-mail dated January 26, 2004, Respondent's management employee Patricia Brosious informed Petitioner of all of the shifts that were open at that time to which a transfer was possible. Ms. Brosious copied Ms. Hewitt and Timothy Fenu on this e-mail. Mr. Fenu is the manager of Respondent's facility in Lake Mary, Florida, and the highest- ranking employee of Respondent at that facility. On January 27, 2004, Petitioner responded to Ms. Brosious' e-mail, which had advised Petitioner of the shifts that were available. In response, Mr. Fenu sent an e-mail to Petitioner advising her that the shifts offered to her were based on business need and current unit sizes. Mr. Fenu advised Petitioner that her response was inappropriate and requested her to advise Respondent if she desired to change shifts. After initially scheduling a meeting with Mr. Fenu, Petitioner canceled the meeting by e-mail dated February 10, 2004. Petitioner resigned her employment February 17, 2004. Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S 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 12th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia McGee Post Office Box 550423 Orlando, Florida 32855 Daniel C. Johnson, Esquire Carlton Fields, P.A. Post Office Box 1171 Orlando, Florida 32802 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (''FCHR''), and, if so, what relief should be granted.
Findings Of Fact Petitioner is an African-American female. Petitioner began working for Respondent as a part-time Self-Checkout Host on February 1, 2017. Upon hiring, her initial rate of pay was $9.00 per hour. After three months of employment, Petitioner’s pay was increased to $10.00 per hour in May of 2017. Subsequently, Petitioner received pay increases raising her hourly rate to $11.00, and then $11.50. In April of 2018, Petitioner was promoted to the full-time position of Customer Service Manager (''CSM''). Along with the promotion, Petitioner also received a raise, bringing her rate of pay to $13.65 per hour. In April of 2019, Respondent gave Petitioner another raise, resulting in hourly pay of $13.90. Respondent maintained a Statement of Ethics, of which Petitioner was aware. The Statement of Ethics explained that Respondent’s overall operations were guided by four core Beliefs, which were: Respect for the Individual; Service to our Customers; Striving for Excellence; and Act with Integrity. Based on what she heard from her coworkers, Petitioner believed that she was entitled to a market-adjustment pay increase in April of 2019. She sought information about the pay increase from her store manager and others. Petitioner reported her belief that she was entitled to a pay increase, which she had not received, to Respondent’s Associate Relations Department (''Department''). After what was described as a thorough review of Petitioner’s concerns, the Department closed the matter. Petitioner testified that a white male named Chance was making more money than she, based on conversations between Petitioner and Chance. Chance worked as a Money Manager Associate, a position that Petitioner never held during her employment with Respondent. Ms. Durocher testified that Chance was not paid more than Petitioner. In 2019, there were ten individuals who held the position of CSM at the store where Petitioner worked. In addition to Petitioner, those who worked in CSM positions included multiple African-American females and one African-American male. Petitioner did not present any evidence to suggest or establish that any male, or non-African-American, employee was paid more than she was for performing similar work. On October 26, 2019, Petitioner discussed the problem she perceived with her rate of pay with Ms. Durocher. During their conversation, Petitioner raised her voice and the interaction escalated to the point that another employee went to enlist the assistance of the Store Manager. When the Store Manager arrived, he joined the conversation with Petitioner and Ms. Durocher. Ms. Durocher expressed to Petitioner that she believed that Petitioner was being paid commensurate with her skills and duties; and that her rate of pay had been investigated and was determined to be appropriate. Throughout the conversation, Ms. Durocher perceived Respondent’s conduct to be disrespectful. Ms. Durocher and the Store Manager repeatedly encouraged Petitioner to calm down, but their attempts were unsuccessful. On the same day, Petitioner’s employment was terminated by Respondent for violating the core Belief of Respect for the Individual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2021. Jamie Rotteveel, Esquire Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Jeruscha Toussaint 5835 Northwest Lomb Court Port St. Lucie, Florida 34986 Allison Wiggins, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Littler Mendelson, P.C. 2301 McGee Street, 8th Floor Kansas City, Missouri 64108 Kimberly Doud, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Nancy A. Johnson, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801
The Issue Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and, whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, Progress Energy Corporation, is a public utility which provides electrical power. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003). Petitioner is an African-American female. She began working for Respondent in October 1980. Petitioner was finally discharged from her employment on December 12, 2003. During her period of employment, she received various promotions and eventually became a service coordinator. She worked at the Jamestown Operations Center and was responsible for designing electrical power services and customer coordination. In 1992, Petitioner was terminated and re-hired at a lower position as discussed hereinafter. Steven McKinnie became Petitioner's supervisor in March 2002. While Petitioner's performance was adequate, Mr. McKinnie received complaints from both co-employees and customers about Petitioner's work performance. As a result, he engaged in private counseling sessions with Petitioner as he did with other employees. Concerned about Petitioner's performance, Mr. McKinnie consulted with Respondent's Department of Human Resources regarding the advisability of employing a "360 survey" as a tool for improving Petitioner's performance. A "360 survey" provides an employee with confidential assessments made by co-employees as a tool for self-improvement. A "360 survey" is not a disciplinary tool, nor does it effect an employees status. After receiving Petitioner's approval to conduct the "360 survey," on March 6, 2003, Mr. McKinnie distributed the survey questionnaire to Petitioner's co-employees. On the evening of March 6, 2003, Petitioner e-mailed Mr. McKinnie objecting to the "360 survey." The following day, March 7, 2003, the Jamestown Operations Center staff, including Petitioner and Mr. McKinnie, were in Deland, Florida, for a "two c's" (compliments and concerns) meeting. This is another human resources' tool. This gives employees the opportunity to express their concerns and for management to respond to those concerns. During the "c and c" meeting, Petitioner voiced her complaint about the "360 survey." This was Mr. McKinnie's first notice of her objection. She also complained that Mr. McKinnie treated employees as if they were in high school and intimidated them (or words to that effect). No mention was made of racial or sexual discrimination. The results of the "360 survey" were offered to Petitioner as a self-improvement tool. The survey was not included in her performance evaluation nor did it effect her pay. In early December 2003, Respondent's management received a complaint from a co-employee that Petitioner was using Respondent's postage machine for personal use. Shortly thereafter, Sandra Shields, conducted an investigation of the alleged impropriety. Respondent's postage machines and the cost of mailing are to be used for Respondent's business purposes only, not for personal use. During the investigation, Petitioner asserted that other employees similarly used the postage machine for personal use. She declined to identify any employees. The investigation failed to corroborated Petitioner's assertion. Petitioner had two employment-related incidents of theft. In 1990, she was arrested during her lunch period and incarcerated for retail theft. The company vehicle she was driving was impounded. She entered a pre-trial diversion program and admitted the theft. Her arrest and record of pre-trail diversion was made a part of her employment record. On a second occasion, in June 1992, Petitioner received a letter of reprimand because she "misused her position as an Engineering Technician for personal gain." She had produced and submitted engineering drawings for underground cable installation at the residence of a family member. The letter of reprimand noted: "This type of action cannot be tolerated. Further violations of this nature will result in disciplinary action, up to and including termination." As noted on the letter of reprimand, Petitioner did not agree with it (the letter). Incidental to this incident, Petitioner was terminated. She grieved her termination and was rehired at a lower paid position. The letter of reprimand was placed in her employment record. As a result of Petitioner's misuse of the postage meter, aggravated by the two previous incidents of theft, Petitioner was terminated. Subsequent to her termination, Petitioner complained to the Respondent's "Ethics Line" and invoked Respondent's dispute resolution process to contest her termination. Additional investigations did not change the facts or the outcome. At the hearing, Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S 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 12th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas Martin Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33601 Curtis B. Lee, Esquire 37 North Orange Avenue, Suite 500 Post Office Box 3412 Orlando, Florida 32802 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner's Petition for Relief from an Unlawful Employment Practice (Petition for Relief) filed against Respondent should be granted by the Florida Commission on Human Relations (Commission).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Marriott Forum at Deercreek (hereinafter referred to as the "Facility"), a "senior living community, nursing home." Petitioner was employed as a Certified Nursing Assistant (hereinafter referred to as "CNA") at the Facility from 1992 or 1993, until July of 1998, when she was terminated. Petitioner is black. At the time of Petitioner's termination, all of the CNAs, and all but one of the nurses, at the Facility were black. At the time of Petitioner's termination, the chain of command leading down to Petitioner was as follows: the General Manager, Joanna Littlefield; the Health Care Administrator, Sheila Wiggins, and the Interim Director of Nursing, Michelle Borland. The Director of Human Resources was Meg McKaon. Ms. Littlefield had the ultimate authority to terminate employees working at the Facility. Ms. Wiggins, Ms. Borland, and Ms. McKaon had the authority to make termination recommendations to Ms. Littlefield, but not to take such action themselves. In July of 1998, F. S., an elderly woman in, or approaching, her 90's, was a resident at the Facility. On or about July 9, 1998, Petitioner was involved in a scuffle with F. S. while giving F. S. a shower. Joyce Montero, a social worker at the Facility, was nearby in the hallway and heard the "commotion." When F. S. came out of the shower, Ms. Montero spoke to her. F. S. appeared to be "very upset." She was screaming to Ms. Montero, "Get her away from me; she hit me," referring to Petitioner. Ms. Montero noticed that F. S. "had blood [streaming] from her nostril to at least the top of her lip." The nursing staff then "took over" and "cleaned up [F. S.'s] blood" with a towel. Ms. McKaon was contacted and informed that there was a CNA who had "had an altercation with a resident." Ms. McKaon went to the scene "right away" to investigate. When Ms. McKaon arrived, F. S. was still "visibly shaken and upset." Ms. McKaon saw the "bloody towel" that had been used to clean F. S.'s face "there next to [F. S.]." F. S. told Ms. McKaon that she was "afraid [of Petitioner] and that she [had been] punched in the nose" by Petitioner. In accordance with Facility policy, Petitioner was suspended for three days pending the completion of an investigation of F. S.'s allegation that Petitioner had "punched" her. Ms. Wiggins and Ms. McKaon presented Petitioner with a written notice of her suspension, which read as follows: Description of employee's behavior . . . . On July 9, 1998, one of our residents [F. S.] was being given a shower by [Petitioner]. [F. S.] stated that [Petitioner] punched her in the nose. (She was crying and bleeding: witnessed by Joyce Montero). Suspension For Investigation To provide time for a thorough investigation of all the facts before a final determination is made, you are being suspended for a period of 3 days. Guarantee Of Fair Treatment Acknowledgement I understand that my manager has recommended the termination of my employment for the reasons described above and that I have been suspended for 3 days while a decision regarding my employment status is made. I understand that the final decision regarding my employment status will be made by the General Manager. The suspension period will provide time for an investigation of all facts that led to this recommendation. I understand that the General Manager will be conducting this investigation. I further understand that if I feel I have information which will influence the decision, I have a right to and should discuss it with the General Manager. I am to report to my manager on July 13, 1998 at 10:00 a.m. Petitioner was asked to sign the foregoing notice, but refused to do so. Ms. McKaon conducted a thorough investigation into the incident. Following her investigation, she came to the conclusion that there was "enough evidence to terminate" Petitioner. As a result, she recommended that Ms. Littlefield take such action, the same recommendation made by Ms. Wiggins. After receiving Ms. McKaon's and Ms. Wiggins' recommendations, Ms. Littlefield decided to terminate Petitioner's employment. The termination action was taken on or about July 23, 1998. At this time, the Facility was on "moratorium" status (that is, "not allowed to accept any more patients") as a result of action taken against it by the Agency for Health Care Administration because of the "many" complaints of mistreatment that had been made by residents of the Facility. Ms. Wiggins was given the responsibility of personally informing Petitioner of Ms. Littlefield's decision. After telling Petitioner that her employment at the Facility had been terminated, Ms. Wiggins escorted Petitioner out of the building and to the parking lot. In the parking lot, Ms. Wiggins said to Petitioner something to the effect that, she, Ms. Wiggins, was "going to take all of the black nurses in the Facility." (What Ms. Wiggins meant is not at all clear from the evidentiary record.) Following Petitioner's termination, the racial composition of the CNA staff at the Facility remained the same: all-black, as a black CNA filled Petitioner's position. There has been no persuasive showing made that Petitioner's race played any role in Ms. Littlefield's decision to terminate Petitioner's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondent is not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's Petition for Relief based on such finding. DONE AND ENTERED this 20th day of June, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 20th day of June, 2003.
The Issue Whether this action is barred by the four-year statute of limitations. § 95.11(3)(f), Fla. Stat.
Findings Of Fact After review of the file, the pleadings and relevant statutory and case law it is clear that Petitioner was terminated from his employment with North Florida Evaluation and Treatment Center on April 27, 2000, for alleged excessive absences. Petitioner’s termination was the last adverse employment action taken by his employer that could possibly give rise to any cause of action for employment discrimination based on race, disability or retaliation. Section 95.11(3)(f), Florida Statutes, bars a cause of action based on a statutory right if an action on that cause has not been brought within four years of the date the last action occurred that gave rise to the cause of action. As indicated above, the last employment action taken by Petitioner’s employer occurred on April 27, 2000. Four years from that date was April 26, 2004. Petitioner filed his Charge of Discrimination with FCHR on May 31, 2000. 180 days elapsed with no determination on Petitioner’s charge being made by FCHR. On May 6, 2005, four years after Petitioner’s termination, FCHR entered a Notice of Determination: No Cause and advised Petitioner of his right to file a Petition For Relief within 35 days pursuant to Section 760.11, Florida Statutes. Petitioner filed his Petition for Relief on or around May 11, 2005, within the 35-day period, but well after the Four-year statute of limitations had expired. Since over four years have passed since Petitioner’s termination, Petitioner’s cause of action is barred by Section 95.11, Florida Statutes, and should be dismissed.
Recommendation Based upon the 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 5th day of August, 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 5th day of August, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 William H. Mack, Jr. Post Office Box 1373 High Springs, Florida 32643 Dennis M. Flath, Esquire 1200 Northeast 55th Boulevard Gainesville, Florida 32641-2759
Findings Of Fact Prior to March 9, 1983, Petitioner had been employed by Respondent for a period of approximately 13 years. On March 9, 1983, Petitioner was serving as Superintendent of Respondent's West Palm Beach Field Station, a position which required that he supervise some 88 of Respondent's employees. By memorandum dated March 9, 1983, Petitioner was terminated from his position with Respondent by virtue of Respondent's contention that he discharged his responsibilities in an unsatisfactory manner. In the memorandum of March 9, 1983, Petitioner was advised that he had been advised of the shortcomings leading to his discharge in performance reviews conducted pursuant to Respondent's Merit Review Program from as early as April 1977, through October of 1982. Respondent's Merit Review Program, which was in effect at the time of Petitioner's termination, "...establishes policies and procedures for evaluating and recognizing employee performance This policy....applies to all District employees filling a permanent position The program establishes a procedure whereby Respondent's employees are evaluated twice yearly to determine their level of performance and to make salary adjustments. There is no provision in the Merit Review Program for either disciplining or discharging a District employee as a result of performance reviews conducted pursuant to the policy. The Merit Review Program establishes six types of merit reviews, which include normal, interim, initial probation, proportional, positional probation, and special probation. Supervisory personnel conducting reviews are required to follow specific procedures within each of these categories. In addition to the six categories of merit reviews, the Merit Review Program establishes a complex and mandatory evaluation procedure for supervisors conducting reviews. The program also establishes a mandatory appeal procedure should an employee disagree with his rating. Evaluation factors utilized in the program are defined and established from "outstanding" performance to "unacceptable" performance. The program establishes specific performance categories including planning, organization, coordination, administration, control, human relations, knowledge of work, leadership, dependability, communications skills, efficiency, judgment, performance skills, initiative, cooperation, and job knowledge. Effective July 18, 1982, Respondent effectuated a Corrective Action Policy for resolving performance problems and violation of Respondent's rules of conduct. This policy categorizes unsatisfactory behavior, divides disciplinary action into four categories according to the Seriousness of the offense, and establishes penalties ranging from verbal warnings for less serious offenses to termination of employment for more serious violations. This policy is not challenged in this proceeding. The Merit Review Program, which is the subject matter of this proceeding, provides a procedure whereby employees may appeal the result of a merit review within five days of receipt of their copy of the Merit Review Form should they disagree with the contents of that review. Although Petitioner had received merit review ratings for at least seven years prior to the date of final hearing in this cause, there is no evidence that he ever appealed any such evaluation. Although it is undisputed that Respondent did not comply with the rulemaking procedures established In Section 120.54, Florida Statutes, prior to adoption of the Merit Review Program, it is equally clear that results from the Merit Review Program in this case were used solely to document Petitioners performance problems for purposes of applying Respondent's Corrective Action Policy, thereby resulting in Petitioner's discharge from employment
