The Issue The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact Petitioner, Mary Parker-Abernathy, has been employed as a Guidance Counselor by the Escambia County School Board for approximately 20 years. In that capacity she is a certified guidance counselor. She also is certified in school psychology. In October 1988, Robert Lindner became Director of the George Stone Vocational Technical Center in Escambia County. The Center serves both high school students and post-secondary (adult) students. George Stone Vocational Technical Center was the school at which Petitioner performed her guidance counselling duties. Prior to August 14, 1989, Petitioner was assigned certain students to counsel. The students she was assigned consisted of a mixture of high school and adult education students. Additionally, prior to 1989, Petitioner was responsible for administering and scoring various educational tests in the assessment center when Charlene McArthur, 1/ the person ordinarily responsible for the assessment center testing was absent. When Mr. Lindner began as the Director of the Vocational Center, he was unhappy with the assessment center's performance and wanted to improve and enhance the assessment center's professionaliam and testing. Mr. Lindner felt that the assessment center's testing was becoming more and more important in demonstrating various accountability and performance standards which were increasingly being required by both the state and federal government. Mr. Lindner also wanted to discover whether there were other testing instruments which might also be appropriate for use in the assessment center in determining the various students' needs. Mr. Lindner wanted to place one of his certified counselors in the assessment center in order to begin the process of enhancing the assessment center's performance. Mr. Lindner felt that Petitioner was the best able candidate to play that role and desired for her to exercise some creativity in the assessment center, especially in discovering how the assessment center could be improved. Petitioner was informed of Mr. Lindner's decision on August 14, 1989, when she returned from summer vacation. Petitioner absolutely did not want to move into the assessment center and felt very strongly that there was not a need for two people in the assessment center. Because of Petitioner's attitude towards her move to the assessment center instead of being a creative employee in her new role and utilizing her skill and expertise in that role, Petitioner became a minimal performance employee. Because Petitioner was not performing in her new position in the manner Mr. Lindner desired he sought out another counselor to take over that role. At the end of the school year, in May of 1990, Petitioner was again given her old duties of counseling students and was removed from the duties she had been performing in the assessment center. The transfer, either to the assessment center or back to counseling, did not involve any loss of pay, loss of status, or loss of benefits in Petitioner's employment. Currently, under Ms. Parker-Abernathy's replacment, the assessment center is housed in a separate "department" along with several other combined functions for meeting various student needs. The center has been recognized for its performance and is considered a model program for the State. The evidence was abundantly clear that Ms. Parker-Abernathy suspected that her race (Black) was the basis of her changed counselor duties. She based her assumption on the fact that she had not been consulted by Mr. Lindner prior to her change in duties. There was no evidence submitted that demonstrated race as being the motivation for Petitioner's change of duties. Likewise, there was no evidence that the change in duties had any adverse impact on Petitioner's employment. What was abundantly clear from the evidence was that Petitioner was unhappy with her new assignment and that that was the sole basis for her view of the position she was in, the performance of her duties in that position, and her eventual filing of this petition for relief. Given the facts of this case, Petitioner has failed to establish a prima facie case of discrimination and the petition for relief should be dismissed.
Recommendation It is accordingly, recommended, based on the foregoing Findings of Fact and Conclusions of Law, that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner's complaint. RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of February, 1992. DIANE CLEAVINGER 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 10th day of February 1992. COPIES FURNISHED: Mary Parker-Abernathy, pro se 1116 North Alcaniz Street Pensacola, Florida 32503 Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Dana Baird, General Counsel Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road, Building F (Suite 240) Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue in this case is whether the termination of Respondent's employment by Petitioner is justified and consistent with the requirements of the Collective Bargaining Agreement between Petitioner and the Sarasota Classified/Teachers Association (of which Respondent is a member).
Findings Of Fact Petitioner is the Sarasota County School Board, the entity responsible for operating, monitoring, staffing, and maintaining the public schools of Sarasota County. The School is a public high school established in 2001. It is located at 6400 West Price Boulevard, North Port, Florida. The school had a student body in excess of 2,600 students at the beginning of the current (2008-2009) school year, but that has declined to 2,500 as of the date of the final hearing in this matter. Respondent, Ronald Davenport, was employed at the School as a campus security monitor (also known as a security aide) from 1988 until December 5, 2008. Respondent is an African-American male. Respondent is a "classified" employee under the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and the District (the "Collective Bargaining Agreement"). On December 5, 2008, Respondent was reassigned or transferred from the School to McIntosh. The reasons for the transfer will be more fully discussed below. During Respondent's tenure as a security monitor at the School, he received a number of written disciplinary letters or memoranda. Under the District disciplinary policies, written reprimands are issued only after verbal reprimands have been issued and proven ineffective. Respondent's discipline to-date has included the following: On November 22, 2004, Respondent was given a Record of Verbal Reprimand concerning his failure to responsibly monitor students while on duty. A written reprimand was given to Respondent on January 4, 2005, concerning improper contact with students and work performance. In April 2005, Respondent was suspended without pay for a period of three days. The basis of the suspension was Respondent's insubordination to superiors. In January 2006, Respondent was again suspended without pay, this time for a period of ten working days. This suspension was based on Respondent's failure to perform his work responsibly, use of school computers for personal reasons, and insubordination. A letter of instruction (which is not technically a disciplinary action) was given to Respondent on April 12, 2007, concerning his actions while driving on campus. Respondent received other verbal reprimands and letters (memoranda) of instruction in addition to those set forth above. It is noted that two suspensions for a single employee is very unusual; grounds for a second suspension would normally warrant termination of employment. However, Principal Kenney stated that at the time of the second suspension, he wanted to give Respondent another opportunity, even though dismissal was probably warranted. (Likewise, the aforementioned transfer from the School to McIntosh was another effort by Kenney to sanction Respondent without resorting to termination of employment.) In the Fall of 2008, a student at the School spat water on Respondent. The student received a three-day suspension and a deferred expulsion1 for his actions. A few weeks later, a different student spat water on a Caucasian security monitor. That student received a five-day suspension and a deferred expulsion for the remainder of the year. The student in the second incident, however, had a disciplinary history while the student who spat on Respondent did not. That is the reason for the slight disparity in punishment. Respondent was unhappy about the second student being treated more harshly and surmised that the reason for the difference in punishment was that he (Respondent) was African- American while the other security monitor was Caucasian. That being the case, Respondent contacted Mr. Trevor Harvey, president of the local NAACP chapter, to complain. Harvey contacted Principal Kenney, and the two agreed to meet at Kenney's office on December 5, 2008, to discuss possible racial issues at the School. On December 4, 2008, Respondent was observed handing out a note or flyer to students. The flyer, which was copied from a handwritten original, included the following bullet points: An instruction asking the reader to make a copy and tell a friend about the contents of the flyer. A request to have parents and students call various news agencies (whose telephone numbers were listed at the bottom of the flyer) and request that reporters be sent to the School the following day (December 5) to attend an NAACP meeting at the School. A statement of the writer's belief that the District and the School promote intolerance, bias, and double standards concerning people of color. A statement specifically addressing Respondent's confrontation with a student earlier in the year. Another statement urging the reader to submit their own concerns to administration that day or early on the following day. Respondent denies writing the flyer or having anything to do with its distribution to students. However, he does admit distributing copies of the flyer to other employees at the school, including Jacqueline Pollard, a teacher, and Wesley Johnson, the senior head custodian at the School. Both Pollard and Johnson are African-Americans. Other employees, including Mr. Johnson, saw Respondent handing out a sheet of paper to students on December 4, 2008, which they presumed to be copies of the flyer. The flyer had been discovered by administrative staff at the School on December 4, 2008, after an altercation between some girls on campus. While the girls were being questioned in the administrative offices, one of them provided staff with a copy of the flyer. The student did not know from whom she had received the flyer, but said it was being distributed around campus. At least one teacher told the administrative office that a student in her class received the flyer from Respondent. Respondent was seen distributing an unidentified sheet of white paper to students on the afternoon of December 4, 2008, and the morning of December 5, 2008. Respondent maintains that all he gave students was a handwritten Christmas greeting which said, "Happy Holidays and [peace sign] on Earth. God bless Obama & God bless the U.S.A. Mr. Ron, Security." On the morning of December 5, 2008, Respondent was observed by Assistant Principal Wilks talking to a group of students. Wilks heard Respondent tell the students to go to the Performing Arts Center ("PAC") for the purpose of attending the NAACP meeting. Many of the students then headed toward the PAC. Wilks then redirected the students toward their assigned classrooms. Respondent denies he told students to go to the PAC for a meeting; he says he directed them all to return to class. Based on Wilks' interaction with students shortly thereafter in the area of the PAC, her testimony on this point is more credible. After hearing Respondent talking to the students, Wilks went to the PAC, which is located at the front of the campus. Several groups of students showed up at the PAC and said they wanted to attend the NAACP meeting. They were told that there was no meeting at the PAC that day in which students were authorized to attend. One of the students advised Wilks that her "uncle" had told her to go to the PAC for the meeting. Respondent concedes that the student was referring to him (although she is not actually his niece). Respondent denies telling her to go to the PAC for a meeting. There was in fact a meeting at the School on December 5, 2008, between the principal, Dr. Kenney, and the NAACP representative, Mr. Harvey. However, that meeting was held in the principal's office, not at the PAC. The meeting went well and Mr. Harvey left the campus seemingly in agreement with how the School was handling interactions between racial groups.2 It was determined by the School administration that Respondent's apparent involvement in the effort to disrupt the NAACP meeting made his continued employment at the School impractical. However, rather than seeking to terminate Respondent, it was decided that he could be transferred to McIntosh to serve as a security monitor at that school.3 On the evening of December 5, 2008, after school hours, Respondent was called at home and told that he was being reassigned. On December 6, 2008, Respondent came to the School to empty out his employee locker and retrieve his personal items. He asked that this process be supervised and/or taped, so there were persons observing him as he did so. Respondent then reported to McIntosh for duty. Employees are not allowed to use school copying machines for personal use (without prior approval from administration). Each employee is assigned a code to use when making copies so that the School can monitor the use of copy machines. On the Monday following Respondent's reassignment to McIntosh, a media specialist printed out a "user chart" for one of the school copy machines located in the mailroom. The user chart showed that Respondent had made 465 copies on that machine since the beginning of the 2008-2009 school year. Principal Kenney could not think of any justification for Respondent making that many copies. Respondent does not remember what he copied, but notes that another security monitor made many more copies than Respondent did. Respondent did not deny making the copies, but was unaware of the requirement to get permission first. Just three weeks before the NAACP meeting incident, while Respondent was still working at the School, his supervisor was looking for him on campus. Respondent did not respond to calls over the walkie-talkie (radio) system used for communication purposes. Respondent had not signed out in accordance with the well-known policy to do so, but was observed off-campus at a gas station. The failure to sign out is an actionable violation of Respondent's employment. On December 18, 2008,4 Larry Leon (chief of school police and director of safety and security) and Sam Wilson went to McIntosh to provide Respondent a sealed envelope. The envelope contained a notice concerning an upcoming meeting. After Respondent failed to answer numerous radio calls from Wilson, Wilson asked McIntosh's assistant principal, Hazuda, to make an attempt to call Respondent. Hazuda called Respondent, who showed up at Hazuda's office in a matter of minutes. Upon seeing Wilson in the office, Respondent was visibly upset. He said something to Hazuda about being "set up" and that he was being harassed. Respondent refused to accept the envelope, said he was sick, and left Hazuda's office to go to the school clinic where he signed out for the day. When Wilson tried to talk to him, Respondent simply raised his hands above his head and walked away. Hazuda's efforts to make Respondent remain at the school and go back to work were not successful. Hazuda's testimony on this point is extremely credible. As Respondent was leaving the clinic, Leon called out to him. Respondent ignored Leon and continued to leave the building. Leon followed and called out loudly to Respondent, asking him to stop. Respondent swore at Leon, saying "F**k you" and continued to walk toward his car. At no time did Respondent turn around and engage in face-to-face conversation with Leon.5 On January 5, 2009, Police Chief Leon and Wilson returned to McIntosh with another written notice to be delivered to Respondent. Letters had been sent to Respondent about the upcoming meeting, but no response had been received. (Respondent had signed one copy of a notice, but left it on the counter in the administration offices rather than returning it as asked.) So, Wilson and Leon again tried to hand-deliver a copy of the notice to Respondent. Numerous attempts to contact Respondent via radio on January 5, 2009, were unsuccessful. Finally, someone who had heard the radio calls advised Respondent that he was being summoned to the front office. Respondent surmises that his radio might not have been functioning properly at that time, so he didn't hear the calls. When Respondent got to the office, he decided to check out for the day because he was feeling ill. He left without accepting delivery of the written notice. Subsequently, on January 15, 2009, a Weingarten hearing was conducted on the issues relating to the December 5, 2008, NAACP meeting at the School and the two incidents at McIntosh. Respondent attended the hearing and presented responses to the allegations of misbehavior. Based upon the information gathered at the Weingarten hearing, the District decided that termination of Respondent's employment was warranted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Sarasota County School Board terminating the employment of Respondent effective February 18, 2009. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2009.
Findings Of Fact Ozzie Thompson is a licensed vending facility operator and holds License Number 493 issued by the Division of Blind Services on May 10, 1982. In June of 1983, Mr. Thompson became the vending manager and operator of the snack bar located in the Alachua County Judicial Building. This facility is leased by the Board of County Commissioners to the Division of Blind Services. Paragraph 4 of the Lease agreement provides, in part, that "....The Grantee (Division of Blind Services) may appoint a blind agent and sighted assistants to conduct the business and shall have the right to supervise the business and to replace the agent or employees at will. The Grantor (Board of County Commissioners) agrees to notify the Grantee immediately of any mismanagement by the agent which may come to the Grantor's attention. The Grantee will immediately remove the agent or employee who is unsuitable or unsatisfactory to carry on the business." Almost immediately after Mr. Thompson assumed the position of manager of the Alachua County Judicial Building vending facility, the vending facility specialist in charge of supervising that facility began receiving complaints. The nature of these complaints were the quality of service, sanitation and the presence of derelicts within the facility for long periods of time. The supervisor also received complaints from female employees at the Judicial Building that Mr. Thompson had a tendency to "bump into" them and make "suggestive" remarks to them. The Office of the Clerk, the security officer and the building superintendent at the Judicial Building likewise received complaints regarding the lingering presence of derelicts or "street people" within the vending facility and comments of a sexual nature from either Mr. Thompson, the derelicts or Mr. Thompson's assistants. The female employees complained that they did not feel comfortable going into the vending facility. While no one actually saw Mr. Thompson drink alcoholic beverages while he was working, he was observed on several occasions to be groggy and appeared to be in an intoxicated condition. Mr. Thompson does take pills for asthma, and the medication makes him drowsy. A vending facility operator at the Federal Building in Gainesville has observed Mr. Thompson to be in an intoxicated condition on two occasions. These occurred in the morning hours, at approximately 9:30 a.m., when Mr. Thompson visited his facility on his way to his own facility located about two blocks away. On these occasions, the odor of alcohol was present and Mr. Thompson's speech was impaired. As a result of the complaints received by employees at the Judicial Building, the observations of the Clerk, the security officer and the building superintendent and the continued, lingering presence of derelicts within the facility, the County Administrator requested the Division of Blind Services to immediately relieve Mr. Thompson from employment at the snack bar. At approximately 9:30 or 10:00 a.m. on June 15, 1984, the day that Mr. Thompson was to be removed and a final inventory taken, Mr. Thompson was not in the snack bar. When he later came into the facility, the odor of alcohol was detected and his speech was impaired. Mr. Thompson explained that he had been at home awaiting a telephone call regarding a recent death of a relative, and admitted that he had had "a little" beer before arriving at the facility.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the license of Ozzie Thompson to operate a vending facility be suspended for a period of two years and that, at the expiration of two years, he be required to complete the vending facility training program as set forth in Rule 6A-18.05, Florida Administrative Code, or its successor, prior to issuance of a license. Respectfully submitted and entered this 20th day of September, 1985, in Tallahassee, Florida. DIANE D. TREMOR 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 20th day of September, 1985. COPIES FURNISHED: Herbert Sikes, Esquire Office of General Counsel Knott Building Tallahassee, Florida 32301 Ozzie Thompson D706-100 Memorial Parkway Palatka, Florida 32077 Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “Board”), had just cause to discipline Respondent for misconduct as alleged in the Administrative Complaint (“Complaint”) dated March 10, 2020.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. At the time of the alleged incident, Respondent was employed as a testing coordinator at Dunnellon Middle, pursuant to a professional services contract with the Board. During the 2018-2019 school year, Respondent served as a dean of discipline at Dunnellon Middle. As dean, she had dealt with discipline of students possessing drugs on campus, as well as students suspected of smoking marijuana either on a school bus or at the school bus stop. Leah Grace is a guidance counselor at Dunnellon Middle. Michelle Reese is the guidance office clerk. On January 30, 2020, student L.L. came to the guidance office and told Ms. Reese he wanted to speak with Ms. Grace about enrollment in a magnet program for the following school year. However, when L.L. entered Ms. Grace’s office, he sat down and began crying. L.L. confided in Ms. Grace that he “had something he was not supposed to have at school.” L.L. stated that he did not know who to trust. L.L. was distraught and Ms. Grace was unable to calm him. She decided to contact his mother to pick him up from school. Aware that L.L.’s mother does not speak English, Ms. Grace sought help from someone at the school who spoke Spanish. Respondent speaks Spanish. Ms. Grace contacted Respondent and asked her to come to the guidance office to help her with a student. When Respondent arrived at Ms. Grace’s office, she observed L.L. visibly upset, sobbing with his face in his hands, rocking back and forth. Ms. Grace relayed to Respondent what L.L. had shared with her—that he “had something he was not supposed to have at school.” Respondent recognized L.L. and asked him three questions in quick succession: Do you have a weapon? L.L. shook his head “no” in response; Do you plan to hurt yourself or someone else? L.L. shook his head “no” in response; and Do you have weed? L.L. nodded his head in response to the third question, indicating that he did have marijuana. L.L. confided that another student, D.G., had given the marijuana to L.L. in the cafeteria that morning to “hold on to” for him. L.L. had grown anxious during the school day about having the drugs in his possession and had come to the guidance office for help. When L.L. nodded in the affirmative that he had weed on him, Respondent stated something to the effect of “that is no reason to go home.” Respondent suggested L.L. just flush the marijuana down the toilet. L.L. promptly went into a small restroom attached to Ms. Grace’s office, flushed the toilet, washed his face, and began to compose himself. Afterward, Respondent told L.L. he needed to find better friends. As Respondent was no longer needed for translation, she left the guidance office and returned to her duties in the testing lab. Ms. Grace allowed L.L. to go to his next class, a grade-recovery course for which he was already late. Julia Roof teaches the class and had been concerned that L.L. was not in class on time. L.L. arrived at the classroom toward the end of the class period, and Ms. Roof observed that L.L. was upset. L.L. initially insisted that he was “fine,” but Ms. Roof pressed him because he was visibly upset. L.L. confided in Ms. Roof about the incident. He admitted that he had marijuana in his possession at school that day, that another student had asked him to hold it, and that he had been to the guidance office where the marijuana had been “flushed.” Neither Ms. Grace nor Respondent reported the incident to the school resource officer or anyone in school administration. Nor did either of them notify L.L.’s mother. Ms. Roof reported the incident to Delbert Smallridge, principal at Dunnellon Middle, at the end of the school day. Principal Smallridge’s Investigation Mr. Smallridge has served as principal at Dunnellon Middle for nine years, and has worked in the Marion County school system in various positions for 31 years. Ms. Roof reported the incident to Mr. Smallridge after school at car pickup. Before he left the school for the day, Mr. Smallridge contacted the school resource officer to notify him that there was a situation with drugs on the school campus that day. He also notified Brent Carson, director of professional practices (i.e., human resources) for the Marion County School District (“the District”), with the limited information he had obtained. The following morning, Friday, January 31, 2020, Mr. Smallridge began an internal investigation into the incident. He first interviewed L.L., in the presence of Ms. Roof; took notes of the events L.L. related; reviewed the notes verbally with L.L.; as well as having L.L. read them to himself. Afterward, he asked L.L. to sign his name at the bottom of the page as his statement of the incident. The next person he interviewed, Ms. Reese, came to him directly. She reported to Mr. Smallridge that she had information she felt he should know. She told Mr. Smallridge that Ms. Grace had confided in her that morning that she had allowed a student to flush marijuana in plastic bags down the toilet in her office the prior day, and that she was concerned that they may come back up or otherwise cause a plumbing problem. Ms. Reese provided and signed a written statement to that effect. Mr. Smallridge also interviewed, and took a written statement from, Ms. Roof regarding the incident. Before the school day ended, he also spoke to Mr. Carson, who instructed him to complete the school-level investigation by interviewing and getting written statements from Respondent and all witnesses, and do his best to determine what had happened. Mr. Smallridge interviewed Ms. Grace the following Monday, February 3, 2020, in the presence of his confidential secretary. Mr. Smallridge took notes of his interview with Ms. Grace, and Ms. Grace provided a written statement of her own. During his interview with Ms. Grace, Mr. Smallridge noted that “both [Ms. Grace and Respondent] were aware [L.L.] had drugs.” In Ms. Grace’s written statement, she stated that she “couldn’t remember” whether it was she or Respondent who told L.L. to flush the marijuana, “but I think it was me.” She stated that L.L. went to the small bathroom attached to her office, “then came out and told me he flushed it, bag and all.” Ms. Grace’s statement also confirmed that both she and Respondent were in her office when L.L. went to the bathroom. Ms. Grace later resigned from Dunnellon Middle. On August 26, 2020, after her resignation, she gave a second written statement regarding the incident. In that statement, Ms. Grace claimed responsibility for telling L.L. to flush the marijuana and called it a “momentary lapse in judgement.” She felt sorry for L.L. and did not want him to get in trouble, either with the school or with law enforcement. Mr. Smallridge also interviewed Respondent, who stated that, when L.L. nodded his head in response to her question, “Do you have weed,” she understood L.L. to mean that he had marijuana in his system, not on his person. Further, she claimed to have left Ms. Grace’s office shortly after she asked those questions and was not aware that L.L. had drugs on his person or that he flushed drugs in Ms. Grace’s office. Respondent also gave Mr. Smallridge a written statement. In her written statement, Respondent described the events of January 31, 2020. She said that when she first observed L.L. in Ms. Grace’s office, “The kid seemed sick, rocking, sobbing and not speaking.” She continued, “I thought he might be intoxicated as to why he would want to go home and not to the nurse. I asked him if he had weed as if in smoked it, had it in his system. He nodded and continued to cry. I said, that is no reason to go home.” Mr. Smallridge gathered all the statements and notes from his investigation, scanned and sent them to Mr. Carson. Jaycee Oliver is the executive director of employee relations for the District and is responsible for disciplinary issues with District employees, including hearings, grievances, mediations, and arbitrations. Ms. Oliver reviewed the documents from Mr. Smallridge, and discussed the incident with Mr. Carson and Mr. Smallridge. Ms. Oliver determined that the incident warranted a District-level investigation. District Investigation and Discipline The District investigation was conducted by Dawana Gary, director of equities and ethics, who worked with Tyson Collins, an investigator in her department. Ms. Gary was present for the interviews of both Ms. Grace and Respondent. Mr. Collins interviewed the remaining witnesses. Their interviews were recorded. Following the investigation, Ms. Gary prepared an investigative report containing written findings and conclusions. Based on the investigation, Ms. Gary concluded that both Respondent and Ms. Grace violated Florida Administrative Code Rule 6A-10.081(2)(a)1., which provides that the educator’s obligation to the student requires that the educator “[s]hall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” She also concluded that both Respondent and Ms. Grace violated School Board Policy 6.27 I., which requires school board employees to comply with rule 6A-10.081. Ms. Gary sent her investigative report to Ms. Oliver, along with a recommendation that both Ms. Grace and Respondent receive a written reprimand, three-day suspension without pay, and mandatory training. Ms. Oliver reviewed the report and recommendation, and was surprised the recommendation was so lenient. Ms. Oliver characterized the violations as “egregious” and recommended to the superintendent that both Respondent and Ms. Grace be terminated. At the final hearing, Ms. Oliver testified that Respondent’s behavior was egregious because, not only did she fail to report the incident or take other measures to protect L.L., but also that allowing the student to dispose of the drugs prevented a proper investigation into distribution of drugs on campus. She maintained that Respondent’s behavior allowed both D.G., who was allegedly selling drugs on campus, and students who may purchase or otherwise obtain drugs from him, to remain in harm’s way. Without the drugs themselves as evidence, any potential investigation was jeopardized. Ms. Oliver discussed the recommendations for discipline at length with the superintendent. The superintendent made the final decision to impose a written reprimand and a five-day suspension, and require Respondent to take a course on “Reasonable Suspicion Drug Training” upon her return to work. L.L.’s statement that Respondent told him to flush the drugs is the only credible evidence on which to base a finding that Respondent did in fact do so.1 Respondent attempted to discredit L.L.’s testimony by introducing evidence (all of which was hearsay) that L.L. had previously been untruthful to teachers and had a penchant for drama. This evidence was neither credible nor reliable. L.L.’s testimony was clear: he acknowledged he had “weed;” he showed Respondent and Ms. Grace the weed; Respondent instructed him to 1 L.L.’s statement is an exception to the hearsay rule as an admission of a party opponent. See § 90.803(18), Fla. Stat. flush the weed; and he flushed the weed down the toilet in Ms. Grace’s private restroom. Ms. Grace’s testimony that she was the one who instructed L.L. to flush the marijuana is also not accepted as credible. Ms. Grace’s original statement to Mr. Smallridge (repeated in her first written statement) that she could not remember whether it was she or Respondent who told L.L. to flush the marijuana, was simply not credible. A middle school guidance counselor in her situation would have a clear memory of instructing a student to flush drugs down the toilet. Likewise, her memory that a teacher instructed the student to do so in her presence would likewise be significant enough to remember clearly. Further, Ms. Grace and Respondent were close colleagues, frequently having lunch together, and socializing outside of school on at least one occasion. Ms. Grace’s subsequent statement accepting responsibility for telling L.L. to flush the drugs was likely an attempt to protect Respondent. When she gave her second statement, Ms. Grace had already resigned from Dunnellon Middle; therefore, she could not be disciplined for falsely accepting responsibility for instructing L.L. to flush the marijuana. Finally, Ms. Grace’s testimony at the final hearing was too well- rehearsed to be credible. Notably, Ms. Grace had a well-rehearsed explanation for why Respondent would not have heard her tell L.L. to flush the drugs while they were sitting in her very small office, and she inserted that explanation in answer to a wholly-unrelated question. She attempted to explain Respondent’s state of mind, which she could not have known. In sum, Ms. Grace’s testimony was unreliable and was insufficient to establish that she, rather than Respondent, instructed L.L. to flush the marijuana down the toilet. Respondent’s testimony that she understood L.L. to mean he had marijuana in his system, rather than on his person, was not credible. L.L. had stated that he “had something he wasn’t supposed to have at school.” Respondent asked him if he “had weed” after asking him if he “had a weapon,” clearly seeking knowledge of what he possessed at school that he knew was off limits. Further, L.L.’s testimony that he showed Ms. Grace and Respondent the weed is accepted as true. Even if Respondent’s testimony that she understood L.L. to mean that he had marijuana in his system was accepted as true, that fact, coupled with her description of him as appearing ill, and possibly intoxicated,2 created a responsibility to take some step to protect the student’s health and well- being. If she understood L.L. to mean that he had ingested marijuana, and he appeared to her to be ill, her statement “that is no reason to go home,” was completely unprofessional. L.L.’s mother should have been contacted to pick him up from school, and administration should have been notified so that the situation could be avoided in the future to secure L.L.’s health and safety, as well as other students potentially involved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order upholding both the charges and the discipline imposed against Respondent, Maria Acosta. DONE AND ENTERED this 18th day of November, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2020. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Eric J. Lindstrom, Esquire Egan, Lev, Lindstrom & Siwica, P.A. Post Office Box 5276 Gainesville, Florida 32627 (eServed) Heidi S. Parker, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 2nd Floor 231 East Colonial Drive Orlando, Florida 32801 (eServed) Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast 3rd Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue presented is whether Respondent should have been suspended and should be dismissed from his employment with the Dade County School Board for the reasons set forth in the Notice of Specific Charges filed in this cause.
Findings Of Fact Respondent was employed by the School Board of Dade County, Florida, in February 1968 and continuously worked for Petitioner until May 25, 1994, when he was suspended from his employment. On the date of his suspension and for years prior thereto, Respondent worked as a Materials Handler in Petitioner's Department of Stores & Mail Distribution-the School Board's warehouse. In that position, Respondent pulled items from the shelves, opened boxes, packed orders, sealed boxes, and put them on pallets to be shipped to the ordering site. Petitioner issues to Materials Handlers for their use in carrying out their duties box cutters, a four-inch long instrument with a retractable razor blade. At the time of the incident in question, Respondent was assigned to the commodities section of the warehouse where all types and sizes of knives, including carving knives and butcher knives, are stored until they are issued to school cafeterias. Prior to the incident in question, Respondent and Darren Forbes were not only coworkers, they were friends. They carpooled to and from work together and played racquetball, and Forbes had been to Respondent's home to eat dinner with Respondent's family. Respondent kept a pocket knife at the warehouse which he used on occasion, when he had misplaced or someone had taken Respondent's box cutter, to open boxes and to cut food items when he ate his lunch at the worksite. He did not carry or wear the pocket knife but rather kept it in a small box in which he kept other personal items like his car keys, and which box he left stored at his work area. His coworkers knew that he kept the pocket knife in that box and on occasion borrowed it to open boxes or cut their food, returning it to the little box where it was stored. Unlike Respondent, some of the other employees at the warehouse wore their pocket knives in holsters on their belts. Over the years supervisory personnel at the warehouse would tell their subordinates that knives were forbidden on School Board property, and sometimes a notice to that effect was posted on the bulletin board at the warehouse. For example, on August 12, 1991, supervisor Breiner posted a memorandum noting that several employees were carrying knives which had been carelessly and dangerously displayed and advising that Petitioner's rules prohibited employees from possessing weapons. That particular memorandum quoted only a portion of the rule in question, which does prohibit weapons, but the memorandum omitted the portion of the rule that pertains to the possession of pocket knives. Respondent was aware of the School Board policy but believed he was not violating the policy. He knew that weapons were prohibited, but he did not consider the pocket knife he used in his job duties and to cut food to be a weapon. He considered it a tool, not unlike the box cutter issued to him by Petitioner to carry out his duties. He also knew that other employees wore pocket knives and used them to cut open boxes. From time to time another memorandum was posted on the bulletin board entitled "Vandalism." That memorandum advised that some employees' practical jokes had reached the level of malicious vandalism and constituted safety hazards, and directed that damage to School Board equipment and employees' personal property cease. Respondent was aware of the directive prohibiting vandalism. On November 9, 1987, Respondent received a memorandum from his supervisor noting that Respondent had one day of unauthorized leave without pay during the month of October, noting that the referenced day was Respondent's first unauthorized absence for the fiscal year, and quoting the provision in the union contract that ten or more work days of unauthorized absences during a twelve-month period is considered excessive absenteeism. The memorandum further advised that all employees in the department are monitored for attendance and unauthorized leave without pay, and that the supervisor was "prepared to follow- through with any necessary action . . . as the situation merits" in order to improve attendance. The memorandum did not state that it constituted a written reprimand. On December 8, 1988, Respondent received a memorandum from his supervisor noting that on December 2, Respondent had left the grounds without "clocking out." The memorandum specifically advised him that if that conduct occurred again, Respondent would be in violation of a School Board rule and would be "severely reprimanded." That memorandum did not suggest that it constituted a written reprimand. On July 25, 1989, Respondent was given a memorandum from his supervisor noting that Respondent had one day of unauthorized leave without pay during the month of June. The memorandum is a form, and, therefore, provided the same information as the November 1987 memorandum. Again, this memorandum did not say that it constituted a reprimand. On November 10, 1993, Respondent was referred to the Employee Assistance Program. A Confidential Dade County Public Schools Supervisory Referral contains checkmarks in several of the items listed as possible reasons for referral. The items checked on the form are excessive absences, excessive tardiness, unauthorized absences, altercations-staff, marked changes in mood, and assignment failures. The Comments section carries the following explanation "Mr. Collins said he was having financial problems. However, he was detained on 10/22/93. See SIU case #9304005." At hearing, no details, no dates, and no documentation to support the reasons listed for the referral were offered. Respondent did attend the appointment scheduled for him. However, by Confidential Memorandum dated February 11, 1994, Respondent's supervisor was notified that Respondent had "not yet followed through with referral or engaged in the program" and that his case was being closed. On January 20, 1994, Respondent and his coworker and friend Darren Forbes carpooled to work together. Respondent had not shaved that day. When they got to work, and prior to the beginning of the work day, Respondent and Forbes began arguing with each other in a teasing manner about each other's appearances. At the time, Respondent was slicing a tomato with the pocket knife he kept at work. During the banter, Forbes grabbed Respondent and then let him go. They began teasing each other about street fighting, and Respondent told Forbes that Respondent had his pocket knife and he could show Forbes some street fighting. Forbes got a towel and told Respondent that he could "pop" the pocket knife out of Respondent's hand. Forbes "faked" at Respondent, swinging the towel at Respondent's pocket knife, and Respondent swung the knife several times. Other coworkers, waiting for the work day to begin and reading the newspaper, observed the friends teasing with each other and thought nothing of it. One of the supervisors happened to walk out, observed the two men, and told Respondent to put away his pocket knife. Respondent did so. Neither Forbes nor Respondent intended to threaten, intimidate, or injure each other. Forbes did not feel threatened. The observing supervisor reported the incident to his supervisor who reported to his supervisor that Respondent had drawn a knife on another employee. That supervisor reported the matter, and an investigation ensued. The investigating detective came to the work site and talked with Respondent. He then went to Respondent's work station and confiscated Respondent's pocket knife, taking it out of Respondent's tool box where it was normally kept. The knife was a pocket knife approximately four inches long when folded, with a blade approximately that long. On May 25, 1994, Respondent was suspended from his employment for the pocket knife incident in January, and this proceeding ensued. Prior to May 25, 1994, Respondent was never suspended by the School Board, and no disciplinary action had been taken against him. The memoranda given him in 1987, 1988, and 1989 were not written reprimands; rather, they were documents memorializing certain conduct and warning him that repetition of that conduct would be followed by a reprimand. Further, a referral to the Employee Assistance Program is not considered by Petitioner to constitute disciplinary action. Respondent is an employee in the American Federation of State, County, and Municipal Employees, Local 1184 bargaining unit, and his employment is covered by a collective bargaining agreement between that Union and the School Board. That contract requires the School Board to follow the concept of progressive or corrective discipline and provides that "in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense, and the employee's record." Article XI also provides that persons employed by the School Board for longer than seven years may only be discharged for just cause. The progressive discipline followed by the School Board starts with oral reprimands, moves into written reprimands, moves into suspensions, and eventually results in dismissal. The School Board does not have a policy prohibiting practical jokes. The School Board does not have a policy prohibiting horseplay or joking. The School Board does have a policy prohibiting weapons on School Board property which defines weapons to include knives. The School Board policy, however, does not prohibit the possession of pocket knives on School Board property. Some School Board employees do possess pocket knives while on school property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered reinstating Respondent to his position of employment and awarding him back pay and the benefits that he would have received had he not been suspended on May 25, 1994. DONE and ENTERED this 6th day of July, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 6th day of July, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 3, 4, 6, 8-10, 12, 15, 16, 36, and 38 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 1, 20, and 22 have been rejected as not constituting findings of fact but rather as constituting conclusions of law and recitation of the testimony. Petitioner's proposed findings of fact numbered 2, 18, 21, 29, 32, and 40 have been rejected as being subordinate to the issues herein. Petitioner's proposed findings of fact numbered 5, 7, 11, 13, 14, 17, 19, 23-28, 30, 33-35, 37, 39, and 41 have been rejected as not being supported by the weight of the credible and competent evidence in this cause. Petitioner's proposed finding of fact numbered 31 has been rejected as being irrelevant to the issues being determined in this cause. Respondent's proposed findings of fact numbered 1-9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 10 and 11 have been rejected as not constituting findings of fact but rather as constituting conclusions of law. COPIES FURNISHED: Gerald A. Williams, Esquire Mack, Williams, Haygood & McLean, P.A. 1415 Northeast 2nd Avenue, Suite 562 Miami, Florida 33132 Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Tallahassee, Florida 32315 Octavio J. Visiedo Superintendent of Schools School Board Administration Building 1450 Northeast Second Avenue Suite 562 Miami, Florida 33132
Findings Of Fact Leo Willie Johnson commenced work as a custodian at Citizens Field on September 23, 1985, under inauspicious circumstances. For reasons not germane to this proceeding he had been discharged as a school bus driver and was reinstated by the Superintendent. As part of the reinstatement he was transferred from the Transportation Department to a custodial position. Since he didn't want a full-time position and the Citizen's Field assignment was part- time, he was assigned to that site. (tr-16, 127, Exhibit #R-2) Citizen's Field is a football stadium owned by the City of Gainesville and leased by the Alachua County School Board (SBAC). There are two concrete bleachers, an east side and a west side, accommodating a total of 6500 persons. The fall months are extremely busy with frequent football games and some use of the field by the City of Gainesville. (tr-16, 39, 70, 73) On Mr. Johnson's first day of work he was given a brief orientation to the job by his immediate supervisor, Dave Waters, who has been in charge of maintenance of Citizens Field for 26 years. He was also given a "pep" talk by Kirby Stewart, who is Mr. Waters' supervisor and the individual in charge of health education, drivers education and athletics for the SBAC. Mr. Stewart told Willie Johnson the work would be hard but rewarding, since parents, students and administrators are quick to acknowledge how great the field looks. (tr-16, 17, 69, 70) Mr. Johnson's assigned work day was from 8:00 a.m. until 1:00 p.m. Monday through Friday, with a 10-minute break at 10:00 a.m. His duties included general cleaning and field maintenance: using a blower to remove papers and trash from the bleachers, sweeping the restrooms and walks, removing paper from the ground, raking, and similar functions. None of the duties required training or preparation on the part of the worker. (tr- 17, 38, 48) From the first day on the job, Leo Johnson's performance was substandard, and by his words and actions he made it clear that he was not remotely interested in fulfilling his duties. On September 23, 1986, he spent his entire work day using the blower to clean the east bleachers. He accomplished in five hours what an experienced worker could do in forty-five minutes and an inexperienced worker could do in two hours. (tr- 17-18, 71, Exhibit #P-1) On September 24, 1986, he spent five hours cleaning the restrooms, a concession stand and one locker room. In Dave Waters' opinion, based upon twenty-six years experience and the supervision of many different workers, these tasks should take a new man approximately two hours. (tr-18) On the third day, Leo Johnson spent four hours washing out two bathrooms and one locker room. He then sprayed out one restroom with a waterhose. At 12:30 Dave Waters gave him a short, fifteen minute assignment, but he laid down his tools and walked away. He returned after about fifteen minutes and Dave Waters told him that he must keep working until his work time was up. Mr. Johnson responded that there was too much work to do, that he didn't think the job would work out for him and that he would talk to Mr. Griffin in personnel about another assignment. He then left the work site. (tr-18-20, Exhibit #P-1) Tile next two days, Mr. Johnson was cut on sick leave. He came to work on Monday, September 30th, but left after two hours. He was out then until Monday, October 14th and worked four full days Friday, the 18th was a Homecoming holiday. He was not very productive that week as he had a portable radio plugged into his ears. Dave Waters asked him to remove the earphone so that he could give him instructions, but he replaced it later. (tr-21-23) Because of the concerns expressed by both Dave Waters and the employee, Wilfred Griffin (Career Service Specialist, and the School Board Superintendent met with Mr. Johnson on October 2, 1985. Mr. Johnson was told again the duties of his job and was told that he was expected to carry out those duties. Mr. Johnson complained about having problems with his feet due to having to stand in water. Later, when Mr. Griffin had the safety officer investigate to see if boots should be purchased, the report back to him was that the field had good drainage and there was no standing water. In addition, boots had already been made available to the workers. (tr-l28-129) At Mr. Griffin's direction, On October 7, 1985, Kirby Stewart asked Mr. Johnson to bring in a note from his doctor. Mr. Johnson replied that it would be "no problem". Thereafter, Kirby Stewart repeated the request on several occasions. The only thing he received was a note from the A.C.O.R.N. Clinic secretary that Leo Johnson was examined on October 8, 1985. (tr-74, Exhibit #P-7, and #P-17) On Monday, October 21, 1985, Mr. Johnson worked four and a half hours. He left the work site without permission for 30 minutes. When he returned and was told by Dave Waters that he was not to leave without permission, he replied that he would leave and sign out whenever he wanted and would not change his work pace for anyone. Later that same day, Kirby Stewart came to the work site since Dave Waters had called to tell him that Leo Johnson left. Mr. Stewart reminded Mr. Johnson about the doctor's note and he wanted to leave immediately to go get it. He and Mr. Stewart walked the grounds while Mr. Stewart pointed out areas where his work was not satisfactory. Leo Johnson replied in a loud and abusive manner that "I beat the transportation department, and now ... [he didn't finish the sentence]" (tr-25,26,27, 113-115, 118, Exhibits #P-7 and P-13) Mr. Johnson did not return to work until December 12, 1985. In the meantime he called in sick every day. He was reminded several times that a doctor's note was required and he responded that the doctor would call. The doctor did not call. He complained of headaches, backaches and swollen feet. Yet on payday, November 27th, he was observed by Mr. Stewart jogging into the Administration building to get his paycheck. (tr-27, 28, 82, Exhibits #P-7, P- 15) When Mr. Johnson appeared for work on December 12, 1985, Mr. Waters gave him the message that he must go see Kirby Stewart. He called Kirby Stewart instead, and was told that since he missed so many days Kirby Stewart needed to talk with him about whether he was physically able to work. Leo Johnson did not go to see Kirby Stewart. Mr. Stewart wrote a memo to Wilfred Griffin detailing the call from Leo Johnson and expressing his need for a resolution of the problems. (Exhibit #P-9) By January 6, 1986, after the holiday break, Mr. Johnson had the impression that he was dismissed. While the record is not at all clear who told him that, Kirby Stewart also thought that Leo Johnson was dismissed as of December 20, 1985 (tr.100, Exhibit #R-6(e)) On January 6, 1986, Leo Johnson called School Board member, Charles Chestnut III, to complain that he was discharged. Charles Chestnut called the School superintendent, Dr. MaGann, who said that It must be a mistake because he didn't know anything about it. Charles Chestnut had been involved in the earlier disciplinary action that the superintendent corrected regarding Leo Johnson. Mr. Chestnut had no personal knowledge regarding Leo Johnson's performance. (tr-174-177) Leo Johnson returned to work at Citizen's Field on January 13, 1986. He took numerous breaks and left in his car at one point during the work day. He was absent for approximately 20 minutes. When he was told to hoe the grass under the bleachers he dragged an iron rake around the area with the teeth up. He put away his tools early and left before 1:00 p.m.. (tr. 30-34) On Tuesday, January 14, 1986, Leo Johnson was also at work but took breaks frequently all day. (tr.34-36) On Wednesday, January 15, 1986, Leo Johnson came to work at 8:00 a.m. Between 8:00 and 10:27, he worked 92 minutes and took breaks totaling 55 minutes. He left at 10:27 after telling Dave Waters that he had a headache. (tr-37) Kirby Stewart saw him at the County Office around 11:00 a.m. and asked why he was there. He replied that the had come to see Wil Griffin because his feet were too swollen to work. (tr.89) On January 17th, Kirby Stewart wrote a memo to his supervisor, Jack Christian reiterating the numerous problems with Leo Johnson and stating that had Mr. Johnson returned to work that morning, he would have officially reprimanded him. (Exhibit #R-10) Leo Johnson never returned to Citizens Field, and on January 21, 1986 he was suspended pending a hearing on his termination. (Exhibit #P-14) Between September 23, 1985 and January 21, 1986, there were a total of 73 school board work days. Leo Johnson was at work for 8 full days, was present for 4 partial days and was absent for 61 full days. (tr. 90-91, Exhibit #P-15) Mr. Johnson was a regular, part-time career service employee of SBAC while he was assigned to citizen's Field. Wilfred Griffin, a Career Service Specialist had the authority to interview, recruit, hire, fire and counsel career service employees. While Dave Waters was responsible for directing Johnson's work in the field and Kirby Stewart was Mr. Johnson's supervisor for administrative purposes, Wilfred: Griffin had the most substantial authority over this employee. As revealed by the record, both Superintendent MaGann and a school board member, Charles Chestnut III, had hand in dealing with Leo Johnson. This complicated hierarchy contributed to confusion and delays but did not prejudice or result in detriment to Mr. Johnson. He used the 57 sick days he transferred from the Department of Transportation, plus the days he earned on the payroll for his time assigned at Citizen's Field and ended with a full paycheck for the month of January. Despite repeated requests by Kirby Stewart and Wilford Griffin, Leo Johnson never produced a doctor's statement explaining his protracted absences. At the hearing he produced a photocopy of an "Illness-in-line-of-duty-leave" form with two lines completed by a Dr. Guido, whom Mr. Johnson contended was a foot doctor. The form is dated and signed by Leo Johnson on January 15, 1986, but the form is incomplete and there is no evidence that anyone at the school board has ever seen it. (tr- 212, 213) Further, the almost illegible statement by the doctor appears to be a diagnosis with nothing about Mr. Johnson's ability to work. (Exhibit #R-9) The verification of his visits to A.C.O.R.N. Clinic provide no information about his ability to work. By letter dated February 25, 1986, Bonnie Coats, RN, the clinic coordinator, responded to Mr. Johnson's request for the dates and reasons for his clinic visits. They are as follows: 08/23/83 Physical Exam for Work 08/07/84 Physical Exam for Work 10/08/85 1. Dizziness Calluses of feet Muscle Spasm 08/22/85 Blood Pressure evaluation 11/19/85 Blood Pressure evaluation 11/26/85 Blood Pressure evaluation 12/10/85 Blood Pressure evaluation (Exhibit #R-5(b)) Leo Johnson had ample notice of his deficient performance, although none in the supervisory chain wrote up a Job Performance Warning Record. Dave Waters did not because Mr. Johnson simply was not on the job enough. (tr-58) Kirby Stewart intended to formalize his complaints in an official reprimand, but Mr. Johnson failed to return to work again. (Exhibit #P-13) Wilfred Griffin orally warned Mr. Johnson about his job performance, leaving the job, excessive breaks and absenteeism. He met with Mr. Johnson on six or seven occasions and shared with him the detailed written memos about his work from Dave Waters and Kirby Stewart. (tr-129, 130, 154, 155) As a career service employee Leo Johnson was subject to the rights and responsibilities found in the SBAC Career Service Employee Handbook. (Exhibit #P-18) Leo Johnson was thoroughly familiar with the provisions of the handbook.
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.
The Issue Whether Respondent employer is guilty of an unlawful employment practice against Petitioner based upon mental disability.
Findings Of Fact The final disputed-fact hearing began on time. Petitioner was present, as was the attorney for Respondent. Petitioner appeared pro se and responded clearly and affirmatively to the undersigned's questions, stating that she knew that she could be represented by an attorney but for reasons of her own she chose to represent herself. After explaining the duty to go forward, the burden of proof, and the order of proof, the undersigned inquired of both parties whether any further explanation was necessary; whether they had any questions; and whether the undersigned could do anything to make the process easier on either of them. At that point, Petitioner gestured to a piece of paper and requested to meet with Respondent's counsel for purposes of negotiating a settlement. A brief recess was granted for that purpose, and the undersigned left the hearing room. Upon returning to the hearing room, the undersigned inquired whether a settlement had been reached and was informed that one had not been reached. Petitioner then announced that, "Since they won't settle, I have no more to say." The undersigned inquired at length to be certain Petitioner understood that: she could call witnesses; she could testify on her own behalf; and she could present documents, either through her own testimony or that of others. Petitioner stated that she understood but did not want to call witnesses or testify. She gestured at what appeared to be her proposed settlement document, but which could have been something else, stating that she only had a document. The undersigned explained that very few documents could be called "self-authenticating" and gave a brief explanation of what type of testimony is necessary to lay a predicate to put any document into evidence. Petitioner said she did not wish to testify. She did not offer her piece of paper. The undersigned explained that if Petitioner did not testify and did not offer her single document, she could not prevail, and that based upon the allegation in her Petition that she has a "mental disability/handicap," the undersigned needed to be assured that Petitioner understood that unless she testified to something, called witnesses to testify, or offered some exhibits, the undersigned would have no choice but to enter a recommended order of dismissal. Petitioner assured the undersigned that she understood and refused to proceed.
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 dismissing the Complaint of Discrimination and the Petition for Relief herein. DONE AND ENTERED this 1st day of August, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michele B. Brown, pro se 2634 North Point Circle, Apt. B Tallahassee, Florida 32308 Rhonda S. Bennett, Esquire Brooks, LeBoeuf, Bennett Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301
Findings Of Fact Respondent, James "Jimmy" Bilbo (Bilbo) was at all times material to this proceeding a member of the Liberty County School Board. On July 22, 1993, Complainant, Jeremiah "Jerry" Anders (Anders), a former employee of the Liberty County School Board, filed Complaint No. 93-98 with the State of Florida Commission on Ethics (Commission) against Bilbo. Specifically Anders alleged the following: I feel Jimmy Bilbo has violated Sec. 112.313(6) of the Florida Statutes. Please see the attached descriptions of possible violations. * * * * During the spring of 1993 Jimmy Bilbo instructed the following work be done on his friend, Laban Bontrager's bulldozer at the bus shop: Grease job Rake installed Filled with county diesel This was done on school time with school materials. Clay Evans and Lester Bramblett witnessed this. The Commission ordered a preliminary investigation. On December 7, 1993, the Commission filed a Public Report, finding there was no probable cause to believe Bilbo violated Section 112.313(6), Florida Statutes and dismissing the complaint. On January 13, 1994, Bilbo filed his Amended Petition for Costs and Attorney's Fees and Request for Hearing. Shortly after Bilbo was elected, the school board, on Bilbo's motion, voted to refer some allegations of impropriety at the school bus barn to the state attorney's office for investigation. Some ethics complaints were also filed relating to the same incidents, but Bilbo played no part in the initiation of the ethics complaints. During these investigations Mr. Anders had been questioned. Anders harbored some resentment towards Bilbo for his part in the referral of the matter to the state attorney's office. Mr. Anders was employed with the Liberty County School System until June 30, 1993, when his contract was not renewed. In April, 1993, Bilbo loaned a tractor (bulldozer) to the school system for use in filling in holes at the school maintenance garage that resulted from the removal of fuel tanks at the maintenance garage and in spreading dirt for a parking area. The tractor was also to be used to clear out and dress up a holding pond adjacent to the garage in order to accommodate runoff water. Although the tractor was owned by Laban Bontrager, a friend of Bilbo's, Bilbo had authorization to loan the tractor. Bilbo and Lester Bramlett, the school maintenance foreman, went to Bilbo's home, loaded the tractor which had a root rake attached to the front end and a full tank of gas, and carried the tractor to the maintenance garage for Mr. Bramblett to use for county work. In order for the tractor to be used to spread dirt for the parking area, Mr. Bramlett and Bilbo removed the root rake. The tractor remained on county property until approximately mid-May, 1993. During this time the tractor was used only for county work. While Mr. Bramblett was using the tractor, he added fuel as necessary and kept the blade and tracks greased for effective operation of the machine. After Mr. Bramblett finished using the tractor, he put fuel in the tank. When Bilbo came for the return of the tractor, Bilbo mounted the root rake on the tractor and loaded the tractor on his trailer. Bilbo did not charge anyone for the use of the tractor. In his complaint, Anders listed Clay Evans and Lester Bramlett as witnessing the work being done on the tractor on school time and with school materials in violation of Section 112.313(6), Florida Statutes. Mr. Anders was not present at the alleged incident. Bramblett denied that Bilbo instructed him to grease the tractor, put a rake on it, and fill it with fuel. Both Messrs Bramblett and Evans testified that the tractor was used for county work at no charge to the county. Diane Lindsey testified that she heard Bramblett say that Bilbo told him to gas and service the tractor and put the root rake on it. Having judged the credibility of the witnesses, I find that Bilbo did not instruct Mr. Bramblett to gas, service, or attach the root rake to the tractor. The tractor was loaned to the school system containing a full tank of gas and it was returned to Bilbo with a full tank of gas. It was necessary to grease the tractor while in use to keep it running properly, and Bilbo put the rake on the tractor prior to loading the tractor for the return trip to Bilbo's house. There was no personal benefit to Bilbo or to Mr. Bontrager. After Anders' contract was not renewed, Anders told George Sanders, a friend of Anders and Bilbo, to tell three friends, Mr. Johnson, Mr. Wilbanks and Bilbo, that "he [Anders] had him [Bilbo] and was going to get him." Anders told Mr. Bramblett after the investigation by the Commission of Anders' complaint, that he wanted "Bilbo to feel the same kind of pain that he had."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying James "Jimmy" Bilbo's Amended Petition for Attorney's Fees and Costs. DONE AND ENTERED this 28th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1994. APPENDIX TO FINAL ORDER, CASE NO. 94-337FE To comply with the requirements of Section 120.59(2), Florida Statutes, (1993), the following rulings are made on Respondent's proposed findings of fact Respondent's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraph 6: Accepted in substance except the Report on Investigation was not entered into evidence. Paragraphs 7-8: Accepted in substance. Paragraph 9: Accepted in substance. Paragraphs 10-14: Rejected as unnecessary detail. Paragraph 15: Accepted in substance. Paragraph 16: The first sentence is accepted in substance. The second sentence is rejected as not supported by the evidence. Paragraph 17: Accepted in substance except the portion "to teach him a lesson" which is rejected as not supported by the evidence. Paragraph 18: Rejected as not supported by competent substantial evidence. COPIES FURNISHED: James W. Bilbo Route One, Box 80 Bristol, Florida 32321 Jerry Anders Route 1, Box 151 Bristol, Florida 32321 Carrie Stillman Complaint Coordinator Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams Executive Director Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
