The Issue Whether Respondent committed the violation alleged in the Administrative Complaint. If so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, the holder of a Class "D" security guard license (license number D94-13786). He has been licensed since November 16, 1994. From April 3, 1996, through and including November 24, 1996, Respondent was employed as security guard by Delta Force Security (Delta), a business which provides security services. Ermelindo Onativia is now, and was at all times material to the instant case, the owner and manager of Delta. Among Delta's clients during the period of Respondent's employment was Motor World, an automobile dealership in Plantation, Florida. On the weekend of November 23 and 24, 1996, Respondent's assignment was to provide security services at Motor World. His shift was to begin at 7:00 p.m. on Saturday, November 23, 1996, and end at 5:00 a.m. on Sunday, November 24, 1996. Onativia met Respondent at Motor World at the beginning of Respondent's shift on November 23, 1996, and reminded Respondent to "punch the time clock" when he made his rounds at the dealership. After conversing with Respondent, Onativia left the dealership. Onativia returned to Motor World at 2:00 a.m. on November 24, 1996, to check on Respondent. Respondent, however, was not there. He had left his assigned post without obtaining Onativia's permission to do so. Onativia remained at the dealership until 5:00 a.m. At no time during the period that he was at the dealership did he see or hear from Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of the violation of Section 493.6118(1)(f), Florida Statutes, alleged in the Administrative Complaint and disciplining him therefor by fining him in the amount of $1,000.00 and placing him on probation for a period of one year, subject to such conditions as the Department may specify. DONE AND ENTERED this 18th day of February, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1998.
The Issue Whether Petitioner may proceed in this forum without receiving a Determination by the Florida Commission on Human Relations; and, if so, Whether Respondent committed an unlawful employment practice against Petitioner upon the basis of handicap.
Findings Of Fact Paragraphs 1-3 of the Preliminary Statement are adopted as Findings of Fact. Respondent is an "employer" within the definition of Section 760.02(7), Florida Statutes. Petitioner was hired in January 1996, as a Code Enforcement Officer. His job description entailed inspecting property within Nassau County, writing up inspection reports, and assisting in the prosecution of violations, as follows: MAJOR JOB DUTIES: Inspects residential and non-residential properties to determine whether properties are in compliance with County zoning code, sign ordinance, litter ordinance, 911 house numbering, and other codes and ordinances. Inspects active construction sites for compliance with building permits and contractor licensing requirements. Inspects buildings for unsafe conditions and initiates abatement actions on emergency conditions. May be required to offer testimony in Court regarding condition of persons and/or properties which have been found to be in violation of applicable County codes or ordinances. Prepares records and reports on observed violations and identifies improvements needed or conditions requiring correction. Performs re-inspections; prepares necessary records and reports regarding re-inspections. Maintains a current knowledge of all codes, ordinances, procedures and techniques involved in the field of code enforcement. Counsels with contractors and property owners and participates in meetings and events to promote citizen understanding of County ordinances and codes. (The Major Job Duties are not a complete statement of all duties required of the job. Incumbents will be required to perform such other related job duties as may be assigned or required.) (P-1) Once a Code complaint was determined by inspection to be "founded," a 30-day warning was issued to the offender, and a recheck inspection was made on the 30-day deadline. Depending upon extensions and cleanup progress, a citation to appear in court or before the County Code Enforcement Board was issued. (P-15) Petitioner was hired with the understanding that he had one year in which to earn either a Level II Florida Code Enforcement Officer Certification or a Level II Florida Law Enforcement Officer Certification. He did not timely meet either requirement. Respondent had to prompt him, as described below. In February 1997, Petitioner was hospitalized for two weeks and diagnosed as having "bi-polar disorder." Upon competent medical testimony, it is found that: Bi-polar disorder is a lifelong mental condition which impairs one's ability to concentrate and which can substantially limit one's major life activities. People with bi-polar disorder are more susceptible to stress than people who do not suffer from that condition. Petitioner was prescribed medications for his bi-polar disorder, the side-effects of which also include impairment of concentration. In Petitioner's case, his bi-polar disorder, or the medicines prescribed to treat it, or a combination of both, manifested as mild paranoia and a lack of focus. According to his psychiatrist, Petitioner's perceptions, particularly of others' motivations, may not be entirely accurate, and he can be distracted from his work by "thoughts of special meaning." Petitioner would benefit from structure in his daily work. The amount of structure Petitioner needs depends upon his medical condition at any given time. However, with proper medication to stabilize his condition, medical personnel felt Petitioner was capable, upon release in 1997 and at the date of hearing, of performing the duties of a Code Enforcement Officer as described above. As of the date of hearing, Petitioner was employed by a medical transport company as a driver. He picks up people at their homes and drives them to various hospitals and doctors' offices for medical appointments throughout three counties. He does this 40 hours per week plus 30-35 hours of overtime every three weeks.1 His employer provides him with a "manifest," listing the names and addresses for pickup, with the pickup time and destination for medical care. He repeats trips to many locations, and he uses a map for unfamiliar locations. He considers this manifest to be the only type of "agenda" he needs to do his current job. Petitioner's problems with daily living, due to his bi-polar disorder, include significant weight gain, needing his wife to set out his morning medications, and an inability to maintain his train of thought in daily life as well as in his professional life. When stabilized and released from the hospital in 1997, Petitioner returned to work. Respondent's Risk Management (insurance) and Human Resources Offices knew that he had some mental condition. His secretary, Aimee Steele, knew he had suffered a "nervous breakdown," Petitioner's term. Jack D'Amato, Chief of Public Works, knew that Petitioner's hospitalization had been "stress-related." However, Petitioner did not disclose his condition or request any special accommodation of his bi-polar condition from his superiors at that time. Petitioner was Respondent's sole Code Enforcement Officer from January 29, 1996, to March 1, 2000. During this period, his daily work was largely unsupervised. Until February 2000, Petitioner clocked in and out with a card in a time clock, and there was little or no oversight by his superiors of his arrival and departure times. Aimee Steele was hired as secretary for the Code Enforcement Office two weeks before Petitioner's 1997 hospitalization. In effect, this meant she acted as Petitioner's private secretary from that date until March 1, 2000, when Brenda Rothwell was hired as a second Code Enforcement Officer. Ms. Steele quit approximately two weeks after Brenda Rothwell was promoted to Code Enforcement Manager. However, while Ms. Steele was employed in the Code Enforcement Office, she and Petitioner were good friends. After she left Respondent's employ, Ms. Steele married one of Petitioner's in-laws. She remains Petitioner's good friend. It was always Petitioner's responsibility to select appropriate continuing education courses, get prior approval from his superiors, and submit reimbursement claims through Office Manager Sue Abels. While Ms. Steele was employed, she typed all the paperwork and Petitioner relied on her to do everything necessary except select his courses. Petitioner got his job assignments from a file basket with his name on it into which complaints taken by telephone and other forms were placed. Apparently, while she was employed Ms. Steele wrote-up many of the telephone complaints, went into the filing cabinet to get out forms relative to 30-day rechecks, and put this information in Petitioner's file basket. Petitioner agreed that, regardless of his bi-polar diagnosis, these materials were sufficient to direct him to various inspection sites without any further directions. On August 15, 1997, Mr. D'Amato sent Petitioner a memorandum which reflected that repeated oral requests for Petitioner to provide a written, updated report on his office activities had gone unheeded. Mr. D'Amato required that Petitioner schedule a meeting with him and bring a written report every two weeks. At all times material, Ms. Abels monitored all bookkeeping records and time records for Mr. D'Amato. On August 23, 1997, Ms. Abels circled Petitioner's arrival time on his timecard as "late." In October 1997, Petitioner was provided Respondent's non-discrimination policy in its Policies and Procedures Manual, which also contained personnel rules and grievance procedures. (R-6b-c). While this document is not an example of clarity, the undersigned is satisfied that Petitioner was not misled by it. He testified that he never read it; merely signed for it; and also received, in his words, "almost weekly bulletins" on the subjects contained therein, including the accommodation rights of a disabled or handicapped person.2 During a regular review of invoices, Petitioner was notified on March 19, 1998, that the cell-phone he had been issued for business had been used after business hours for non- job-related calls, totaling $128.40 in charges through March 10, 1998. Petitioner acknowledged that the calls had been personal calls made by his son. Petitioner was given a written warning that if it happened again, he would be dismissed. He was also required to turn in his cell-phone at the end of each work day and pay back the cost of the calls. It was not until April 3, 1998, that Petitioner reimbursed $77.07, against the total owed. On April 9, 1998, Petitioner was advised of more improper cell- phone charges going back to October 14, 1997. As of April 28, 1998, Petitioner still owed Respondent Employer $56.73 for improper calls, although he ultimately paid back the entire amount owed. On June 16, 1998, Mr. D'Amato took the phone away from Petitioner because he had "shown an inability to follow instructions regarding the use of the cellular phone," and due to further abuse of Petitioner's cell-phone privileges, he was provided a radio in his truck which would reach a dispatcher in the main office. (P-13 and R-4c.) Petitioner attempted to show that he had received disparate treatment because of the March 19, 1998, written warning to him and not to others who had also abused the phone policy, but he was only able to demonstrate that one other employee took 19 days to pay $6.44 for personal calls made on his business phone over a two month period. Petitioner did not demonstrate that this employee used a cell-phone or was otherwise "similarly situated" to himself.3 (P-14.) By an April 24, 1998 memorandum, Senior Planner Douglas Correia, a middle management supervisor of Petitioner, advised Mr. D'Amato that Petitioner's productivity had decreased because, on his 8:00 a.m. to 5:00 p.m. shift, Petitioner did not leave his office to begin inspections until 9:30 a.m. and returned to the office between 3:15 and 3:30 p.m., and because Petitioner spent most of his time in the office socializing with Ms. Steele. The memorandum further stated that henceforth, to prevent Petitioner "conning" him, Mr. Correia would require Ms. Steele to provide Petitioner with a daily itinerary, placing new complaints, re- visits, citations, and other matters geographically east and west of I-95, and Mr. Correia would then require Petitioner to follow the itinerary which would alternate inspection days for locations on the east or west sides of I-95. (P-10 and R-6c) Based on the foregoing memorandum, it is found that the practice of having Ms. Steele provide an itinerary or agenda for Petitioner began April 24, 1998, for the reasons stated in the memorandum, and did not originate in February 1997 to assist Petitioner with his lack of focus. The December 16, 1998, "roster," offered as representative of the "itineraries" Ms. Steele prepared for Petitioner, only constituted a list by names of the persons cited and an indication these were rechecks on the east side of I-95. (P-11). Within Exhibit P-15, is a "roster" for court appearances and rechecks on August 17, 1998, which is similarly without any complaint numbers or addresses, and a "roster" for court appearances and complaints for December 21, 1998, which provided addresses and a brief description of the nature of the problem only for new complaints. It is therefore found that Ms. Steele's "rosters," hereafter referred to as "agendas," never provided Petitioner with property addresses, citation numbers, dates of previous inspection, or any other information beyond the name of the property owner, except for new complaints, for which an address and description of the problem was given. Petitioner testified he got all information not on the agendas from his file basket. On or about April 28, 1998, as part of the cell-phone investigation, Mr. D'Amato discovered that Petitioner still did not hold the necessary certifications he should have gotten by January 1997 (See Finding of Fact 14.) Mr. D'Amato issued a memorandum giving Petitioner six months from April 28, 1998, to get either a Florida Level II Code Enforcement Officer Certificate or a Level II Florida Law Enforcement Officer Certificate on his own time and at his own expense. Mr. D'Amato also provided extensive information, calendars, and course descriptions of when and how Petitioner could attend the correct continuing education courses and take the test in time to meet the extended qualification date. (R-4b) Petitioner was ultimately certified July 31, 1998. On or about October 28, 1999, Petitioner was hospitalized for surgery on the atrium ring of his heart and installation of a pacemaker. Petitioner was prescribed medicine and released to return to work with no medical restrictions. Mr. D'Amato and all co-employees knew the nature of this hospitalization. Petitioner requested no accommodation from the Employer at that time. The heart condition and its medicines have contributed to Petitioner's weight gain. They also have resulted in a need to use the restroom frequently and a need to move about after a period of sitting. In February 2000, the Code Enforcement Office was physically relocated, and Petitioner was required to fill out timesheets. This was an honor system, but as of the March 27, 2000, promotion of Brenda Rothwell to Code Enforcement Manager, she began to scrutinize Petitioner's arrivals and departures. On March 1, 2000, after competitive interviews, Brenda Rothwell was hired as a second Code Enforcement Officer of equal rank with Petitioner. Ms. Steele and others were her unsuccessful competitors for the second Code Enforcement Officer position. Ms. Rothwell was fully certified when hired. She got her assignments from a file basket with her name on it, like Petitioner's basket. On March 27, 2000, Ms. Rothwell was promoted, with no increase in pay, to Code Enforcement Manager. As such, she became Petitioner's and Ms. Steele's immediate supervisor. At that time, Ms. Rothwell had fourteen and a half years' experience as Code Enforcement Officer of Fernandina Beach compared to Petitioner's four years' experience with Respondent. Petitioner attributes his troubles with the Employer to Ms. Rothwell's "being hired (or promoted) to get rid of me," but it is noted that if his superiors had wanted to, they could have legitimately terminated him any time between January 1997, and the April 1998, letter giving him a six months' extension in which to obtain his minimum certification. Someone noted on Petitioner's timesheet for March 29, 2000, that Petitioner had signed in earlier than his actual arrival time of 8:20 a.m. Ms. Rothwell denied making the notation. Once promoted to manager, Ms. Rothwell set out to professionalize the Code Enforcement Office. It is possible that she sometimes introduced new methods prior to obtaining formal approval from her own superiors or the Code Enforcement Board. However, there is no doubt that as of March 27, 2000, she had de facto authority from her superiors, and by June 2000, when her managerial status was confirmed by the Board, she had full, formal authority to manage the Code Enforcement Office. In one instance, she was not aware of a method of reporting citation case data Petitioner had used (P-15) before she instituted a different one. Petitioner claimed she did not explain the changes or go over new procedures with him. However, Petitioner never raised these issues with their mutual superiors or filed a grievance concerning them. Rather, to every innovation Ms. Rothwell instituted, Petitioner replied something to the effect of "we don't do it that way." Petitioner and Ms. Steele did not get along well with Ms. Rothwell, nor she with them. Ms. Steele testified that she quit two weeks after Ms. Rothwell's promotion to manager due to a "hostile work environment," but Ms. Steele failed to explain exactly what that phrase might describe, other than that she did not like Ms. Rothwell's extensive changes aimed at accountability of personnel. Ms. Steele also failed to file a grievance. In April 2000, a third Code Enforcement Officer was hired on an equal footing with Petitioner. He also got a file basket with his name on it. Thereafter, Ms. Rothwell divided the inspections among the two officers and herself by placing the appropriate forms in their respective file baskets. She also tried to keep Petitioner on the side of the I-95 axis with which he was most familiar. Petitioner testified that after Ms. Steele left, he personally had to take 30-day recheck forms out of the file cabinet and put them in his file basket and he no longer received his daily agenda of which forms from his file basket to process. Ms. Rothwell also imposed the new requirement that, in addition to a timesheet, each inspector had to fill out a daily log showing all the calls he or she made, the complaint number for each call, how much time was spent at each location, whether each property was in compliance or not in compliance, specific remarks about the condition of each property, and when the inspector signed in and out for lunch and breaks. These logs were to be turned in at the office at the end of each day. (R-5) On April 5, 2000, Petitioner told Ms. Rothwell that he would be attending a continuing education course in Jacksonville the next day from 8:00 a.m. to 5:00 p.m., She considered this inappropriately short notice, but at that time, Ms. Rothwell believed Petitioner had been pre-approved by their superiors for the April 6, 2000, class, as he previously had been approved for a March 2000, course through paperwork done by Ms. Steele. Petitioner came to the Code Enforcement Office at 8:15 a.m. on April 6, 2000, to pick up one of the Employer's trucks to go to the class. He made out his timesheet showing he worked 8:00 a.m. to 5:00 p.m. Ms. Rothwell marked his timesheet as showing he came in later than the time he signed in. (P-9) He attended the class and received a certificate of completion. (R-3c). When he was in class, he was supposed to show that fact on his timesheet, instead of showing that he was working. He was not docked any pay as a result of this state of affairs, but it impacted a later decision to discipline him. On April 25, 2000, Mr. D'Amato, in the presence of Ms. Abels, discussed Petitioner's timesheets with him. Mr. D'Amato then gave Petitioner an oral reprimand for falsification of written records, on the basis of an investigation/audit performed by Ms. Abels. (R-4d). Mr. D'Amato relied on Ms. Abels' investigation to invoke the discipline. Ms. Abels relied, in part, on input from Ms. Rothwell and others. Not every underlying detail of these records was recreated by Ms. Abels or Ms. Rothwell at hearing, but Ms. Rothwell could specifically recall the April 6, 2000, incident. Ms. Abels' investigation/audit showed four late morning arrivals, for which Petitioner wrote down a more favorable arrival time. Only one of the four dates was the April 6, 2000, continuing education date described above. The investigation/audit also showed Petitioner took a short lunch, without Ms. Rothwell's approval, to compensate for his late arrival that morning, and three lunch breaks for which Petitioner wrote in a more favorable length of time than that actually taken. The single April 6, 2000, component of the disciplinary action may have been unfair to Petitioner, but it does not constitute a conspiracy. Ms. Abels is a very credible witness that no conspiracy existed. There also is no evidence that the falsification of record charges related to Petitioner's mental or physical condition. Petitioner asserted that prior to Ms. Rothwell's employment he had understood that he could round the times on his timesheets into 15 minute increments. The Policies and Procedure Manual does not support him. By a memorandum on or about August 9, 2000, Ms. Rothwell suspended Petitioner for five days without pay, from August 10 through August 15. He was to report back to work on August 17, 2000. This was discipline for "falsification of written records" (R-3a, R-5) due to 12 dates in July when she considered his logs to be incomplete and because she believed that on July 24, 2000, he called in from lunch, requesting the dispatcher to clock him in 21 minutes earlier than his call. The logs for the days listed in the August 9, 2000, disciplinary action generally support a finding that Petitioner did not complete all of the columns on each one, usually failing to put in the complaint number and/or a complete address. Without complaint numbers, rechecks may go undone, prosecution of citations is hampered, and consistency of statistics is impaired. Ms. Rothwell testified that she accepted an oral report from someone in the main office, probably the dispatcher, that Petitioner had requested the dispatcher to falsify his sign-in time from lunch on July 24, 2000. Ms. Rothwell could not recall for sure who told her. As of the August 9, 2000, discipline, Petitioner did not deny her construction of events. At hearing, Petitioner did not deny asking the dispatcher to sign him in, or that he was twenty-one minutes late in calling in from lunch on July 24, 2000, but he testified that when he made his explanation of the delay, the dispatcher said, "I'll take care of it." Petitioner's explanation for his lateness on July 24, 2000, was that his truck's two-way radio had not worked; that someone was on the pay phone nearest his lunch break; and that he had to drive to a second pay phone to call in. It is noted that he personally stated on his log for that day that he took only an hour for lunch. (R-3a, R-5). Because of the August 9, 2000, suspension, Petitioner consulted the Center for Independent Living of Jacksonville, an organization which assists disabled persons. One of its Coordinators wrote a letter to Mr. D'Amato on August 15, 2000, asking for "reasonable accommodations" of Petitioner's health conditions and medication problems, pursuant to the ADA. Bi-polarity is not named in the letter; it is referred to as a "medical condition." The letter does disclose Petitioner's heart condition. (P-2) The accommodations requested were flexibility in Petitioner's lunch hour and his 15 minute breaks each morning and afternoon; the opportunity to walk around after every 30-40 minutes of sitting; and reinstating the agendas of the past to help him focus and to ensure he and his immediate supervisor were not miscommunicating priorities. (P-2) Mr. D'Amato requested that Petitioner provide medical verification of his need for accommodations. On August 16, 2000, Dr. Twiggs, a Family Practice Physician, sent a letter stating that to the best of his knowledge, Petitioner could perform the duties of a Code Enforcement Officer. (P-3) On August 23, 2000, Dr. Twiggs sent another letter saying that Petitioner was medically stable and able to perform the duties of a Code Enforcement Officer. He did not mention bi- polarity but went on to say that: As a result of his medication, I agree that there is a need for frequent water and restroom breaks which should be a reasonable request for accommodation and flexibility in lunch, morning, and afternoon breaks. Because of a heart condition, it is advisable that after 30-40 minutes of sitting, he should stand and walk around for a few minutes to help improve circulation. As he sometimes has difficulty focusing initially in the morning after taking his medication, I agree that a daily or weekly agenda and good communication with his immediate supervisor should help with his focusing on priorities and details of his duties. (P-4) On August 11, 2000, Ms. Rothwell had sent Petitioner a speed memo telling him to proceed with a new case number and a weekly status report on code violations of a certain property location and its owner. Petitioner was on suspension August 10- 15, 2000. Presumably, he reported for work on August 17, 2000. Petitioner failed to report to Ms. Rothwell on the named property on August 25, 2000, as required by her prior speed memo. Ms. Rothwell brought this to his attention by an August 28, 2000, formal memorandum. However, Petitioner had written a speed memo to Ms. Rothwell, dated August 22, 2000, stating that he had done all he could and "why don't you go give him a citation (repeat offense) and bring him before the Board." Ms. Rothwell, not unreasonably, construed his reply as telling her to "go do it yourself," which she received August 29, 2000. On that date, she cited Petitioner with insubordination, warning him that any future incidents of the same nature would result in his termination. (R-3b) On August 31, 2000, the Employer agreed, in writing, to all of Petitioner's requests for accommodation. Ms. Rothwell and Mr. D'Amato were copied with this memorandum. (P-5) Sometime thereafter, there was a reorganization which placed the Code Enforcement Office under the supervision of Mr. Whitey Moran of the Building Department, rather than Mr. D'Amato of the Public Works Department. Ms. Rothwell bought a two-gallon water cooler, which Petitioner was permitted to fill with the Employer's water and ice and carry in his truck. He was permitted to take stretch breaks every 30 to 40 minutes and to take restroom breaks as necessary. He got a 15-minute break in the morning, an hour for lunch, and a 15-minute break in the afternoon. The Employer initially requested that he radio in whenever he left and returned to his truck for these breaks and for inspections, so that the Employer could be sure he had not collapsed and was not in need of help due to his disclosed medical conditions, but that request was rescinded within a few days. Petitioner testified that Ms. Rothwell told him she would never provide him with an agenda. Their conflicting accounts of what was said amounts to a "he said/she said" situation dependent more upon their respective viewpoints than accuracy, and constitutes an equipoise of evidence. Ms. Rothwell testified that the complaints all had a complaint number in their upper right-hand corner and she regularly attached all the complaints from Petitioner's file basket to a two-part speed memo upon which she had written the numbers of the attached complaints, but she could produce none of these "packaged agendas" at hearing and none were produced in response to an appropriate discovery request. Petitioner testified that he wanted Ms. Rothwell to provide him with the Aimee Steele-type of agenda described above at Finding of Fact 34, but she never did. Upon the credible evidence and testimony as a whole, it is found that Ms. Rothwell did not provide any list/agenda of locations. Having determined as fact that the Employer did not provide a daily agenda, listing each day's inspections by name of property owner and whether they were rechecks or something else and whether they were on one side of I-95 or the other, it is significant to note Petitioner's view of what such an agenda purportedly would have done. Petitioner testified that he knew how to do his job and that he only needed an agenda to avoid Ms. Rothwell's accusing him each time he returned to the office of not doing an assignment or asking why he had followed up on one complaint and not another. Also, Petitioner never told Ms. Rothwell or anyone that he could not do his job as structured without an agenda after August 31, 2000. He never raised the absence of an agenda with Mr. D'Amato, Mr. Moran, the County Coordinator, or the Human Resources Office, and he never filed a grievance. Petitioner's explanation as to why he never filed a grievance against Ms. Rothwell or anyone else was that Mr. D'Amato had intimidated him during the 1998 investigation of Petitioner's cell-phone calls by saying something about "the buck stops here," and "you should not go against the chain of command." Assuming arguendo that Mr. D'Amato made such comments in 1998, and Mr. D'Amato denied that he did, it is illogical to assume the comments were designed to deter Petitioner from filing a legitimate grievance with Mr. Moran against Ms. Rothwell in 2000, especially since Petitioner agreed his cell-phone had been misused when Mr. D'Amato's comments were allegedly made. On or about October 9, 2000, it was discovered that Petitioner had attended an approved continuing education course in March 2000, but that on April 6, 2000 and in May 2000, he had attended courses without pre-approval, and had thereby obligated the Employer to pay $383 directly to the university hosting the classes. This violation of the Employer's Policies and Procedure Manual added to the April 24, 1998, memorandum on poor productivity (Finding of Fact 32), the April 25, 2000, oral reprimand for falsification of records (Finding of Fact 51), the August 9, 2000, suspension for falsification of records (Finding of Facts 53-55), and the August 29, 2000, written warning for insubordination (Finding of Fact 61), resulted in Ms. Rothwell suspending Petitioner without pay for five days, on October 12, 13, 16, 17, and 18, 2000. (R-3c) Petitioner testified that he perceived Ms. Rothwell as "out to get him," either because she gave him three-day suspensions on Fridays or gave him three suspensions on Fridays, intimating that his work schedule could cause him to suffer greater punishment if he were suspended on a Friday than some other day, although how is unclear. There is no evidence of Petitioner's being suspended for three days. There is no evidence of Ms. Rothwell suspending him three times for five days. Therefore, his testimony on this issue is not persuasive. It is also notable that Petitioner did not file a grievance against Ms. Rothwell for improperly or unfairly suspending him either of the two times she suspended him. By December 2000, each of the three Code Enforcement Officers were required to do 20-30 inspections per day. Petitioner's logs (R-5) showed far less than that number were being done by him. On December 14, 2000, a complaint was received by Ms. Rothwell because Petitioner investigated a location he erroneously got out of the file cabinet himself. On December 15, 2000, Ms. Rothwell, with the concurrence of Mr. Moran and the Human Resources Coordinator, terminated Petitioner, effective January 3, 2001, for offenses against the Policies and Procedure Manual. The termination memorandum cited the April 24, 1998, productivity memorandum; April 25, 2000, oral warning; an allegation that on June 13, 2000, Petitioner had placed a citation warning in a residential mail box, contrary to the Code requirement of mailing it; the August 9, 2000, five-day suspension; the August 29, 2000, warning; and the October 9, 2000, five-day suspension. It also listed eleven citizen complaints of Petitioner's failure to perform his duties or poor performance which Ms. Rothwell characterized as "selective" or "improper" Code enforcement. The nature of the complaints synopsized in Ms. Rothwell's December 15, 2000, memorandum are varied. A tortured construction of several of them might lead to conjecture that Petitioner went to the wrong address and cited the wrong property on one or more occasions. However, many involved Petitioner's not going to the correct location at all or going to the location of an alleged citation and then turning in inspection remarks stating that the alleged Code violation was non-existent or resolved. Thereafter, subsequent inspections by Ms. Rothwell and/or the other Code Enforcement Officer revealed no improvement or a worsening of the violation originally reported. For instance, Petitioner noted conditions that did not exist (trailer present after it was removed) or that the issue had been referred to a person (Mr. Larson) who no longer worked for the Employer at the time Petitioner claimed he had referred the matter to him. These situations amount to either falsification of records or selective enforcement by Petitioner. In one instance, he refused to speak to a citizen he had cited. Petitioner had seen the memorandum, but claimed never to have seen the complaints underlying Ms. Rothwell's synopses. He did not refute each complaint synopsis at hearing.
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 and Charge of Discrimination. DONE AND ENTERED this 16th day of July, 2002, in Tallahassee, Leon County, Florida. ______ 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 16th day of July 2002.
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Ms. Bagley, an African-American, was employed by the City from 1987 until her termination on July 9, 2004. At the time of her termination, she was employed as a Code Enforcement Officer II. On Monday, March 15, 2004,1 Ms. Bagley called her supervisor, Larry Canelejo (Mr. Canelejo), and advised him that she would be late to work because she had to assist her mother. Mr. Canelejo approved her absence. Ms. Bagley's normal work hours on March 15, 2004, were 8 a.m. to 5 p.m., Monday through Friday. On March 15, 2004, she arrived to work at 11 a.m. She did not work through her lunch on that day or stay later to make up the time that she was late. On Thursday, March 18, 2004, Ms. Bagley turned in a time and attendance sheet showing that she had worked from 8 a.m. to 5 p.m. on March 15, 2004. Mr. Canelejo verbally asked Ms. Bagley to turn in a leave slip for the time that she was absent on March 15, 2004. Ms. Bagley did not turn in a leave slip, and Mr. Canelejo sent an e-mail to Ms. Bagley on March 18, 2004, requesting that she do so and indicating that disciplinary action would result for her failure to do so. Instead of turning in a leave slip for her three-hour absence, Ms. Bagley wrote a memorandum to Darrell Smith, Chief of Staff, complaining that she had been requested to submit a leave request for time she was absent from work when other workers who were absent were not required to submit a leave request for their absence. On the morning of Friday, March 19, 2004, Mr. Canelejo sent another e-mail to Ms. Bagley requesting that she submit her time card and leave slip by 11:30 a.m. Ms. Bagley retrieved the time card that she had previously submitted and covered her signature with white-out. She did not submit a leave slip as requested by her supervisor. Mr. Canelejo marked on Ms. Bagley's time sheet that she was absent without leave for three hours on March 15, 2004, and submitted a leave slip for Ms. Bagley showing that she was absent without leave for that time. The time card and leave slip was later changed by the City's personnel office to sick leave for others. On March 17, 2004, Mr. Canelejo received a complaint from the general manager of Wendy's Restaurant located on North 15th Street in Tampa, Florida. The general manager advised Mr. Canelejo that Ms. Bagley had come into the restaurant on three separate occasions demanding that she be given free food for food that she had purchased which she felt was bad. Ms. Bagley did not have receipts for the previously-purchased food, and indicated that other managers in the store had told her that she could get free replacements for the bad food. The general manager advised Mr. Canelejo that other managers at Wendy had not given authorization for Ms. Bagley to receive free food. A co-manager at Wendy's also wrote to the City confirming Ms. Bagley's actions in getting free food. The City's Department of Code Enforcement received a letter dated March 31, 2004, from Hazel Hill, who was the sales floor supervisor at Martin's Uniforms Retail Store (Martin's Uniforms). The City had a contract with Martin's Uniforms to supply uniforms and related items to City employees, including code enforcement employees. Ms. Hill related an incident involving Ms. Bagley on March 12, 2004. Ms. Bagley came to the store, requesting to return some shirts and pants, which she claimed to have received from Martin's Uniforms as part of the 2004 uniform allotment. Ms. Hill inspected the garments and determined that the uniforms could not have been received as part of the 2004 order because the shirts were not the same style as those that had been sent. The 2004 shirts were made of gabardine with two new-style patches, one on each arm. The shirts that Ms. Bagley was attempting to return were made of poplin with only one patch, which had been discontinued. The shirts also appeared to have a yellow tint, which could be attributed to age. The pants which Ms. Bagley was attempting to return had been altered in the waist. The pants which had been sent with Ms. Bagley's 2004 uniform order were not altered in the waist. Ms. Hill also advised that the incident concerning the 2004 uniform order was not the first time that Ms. Bagley had attempted to exchange old merchandise. About four months earlier, Ms. Bagley had tried to return an old jacket for a new one, but Ms. Hill refused to make the exchange. The previous year, Ms. Bagley came to exchange a pair of shoes for which she had no receipt and for which no record of the purchase could be found at the store. On July 9, 2004, the City dismissed Ms. Bagley from her employment. The final decision to terminate Ms. Bagley's employment was made by the Director of Code Enforcement, Curtis Lane, who is an African-American. Mr. Lane based his decision on Ms. Bagley's failure to submit a leave request for the three hours that she was absent on March 15, 2004; submission of a time sheet showing that she worked eight hours on March 15, 2004; the complaints from the employees at a Wendy's restaurant that Ms. Bagley had requested free food while she was in a City code enforcement uniform; and the complaint from Martin's Uniforms that Ms. Bagley tried to get new uniforms by falsely claiming that she was not sent the correct uniforms in her 2004 uniform order. The allegations against Ms. Bagley were investigated by City staff, and, based on the results of the investigations, Mr. Lane believed the allegations against Ms. Bagley and felt that Ms. Bagley's actions demonstrated a lack of honesty and integrity, two traits which are essential for a code enforcement officer. At the time of her termination, Ms. Bagley's employment with the City was subject to a collective bargaining agreement between the City and Amalgamated Transit Union. The collective bargaining agreement provided a grievance and arbitration procedure. Ms. Bagley filed a grievance contesting her termination, which she submitted to final arbitration. On February 15, 2005, an evidentiary hearing was held on Ms. Bagley's grievance before arbitrator Genellen Kelly Pike. On June 15, 2005, Ms. Pike denied Ms. Bagley's grievance. On July 26, 2005, Ms. Bagley filed a charge of discrimination with the Commission, claiming that she was terminated from her employment with the City on account of her race. Ms. Bagley claims that she was discriminated against based on her race because other employees of the Code Enforcement Department were allowed to come in late and either to make up the time on their lunch hours or after work or to not have to make up the time at all. Mr. Canelejo did have a practice of allowing employees to make up their time if they were 15 to 30 minutes late for work. The time could be made up during the employee's lunch hour or at the end of the employee's regularly scheduled work day. There was no practice or policy allowing employees to make up absences as long as three hours rather than requiring them to submit leave slips for the missed time. Ms. Bagley claims that both African-American and Caucasian employees were allowed to make up missed work. Not all employees in the Code Enforcement Department had the same work schedule. Some employees worked ten-hour shifts, Sunday through Wednesday; some employees worked 7:30 a.m. to 4:30 p.m., Monday through Friday; and some employees worked 8 a.m. to 5 p.m., Monday through Friday. Some employees were required to attend neighborhood meetings at night after their regularly scheduled hours, and were allowed to adjust their work schedule to avoid overtime as a result of the meetings at night. The code inspectors used City-owned vehicles in making their inspections. The vehicles were parked in a central location, and the employees picked up the City vehicles each day. Sometimes an inspector would schedule an inspection at the beginning of the inspector's shift. The inspector was not required to report into the office prior to making the inspection, but could pick up the City vehicle and leave from the parking lot. Ms. Bagley took it upon herself to begin keeping notes on when the inspectors would arrive at the office. She noted that some of the inspectors, both African-American and Caucasian, did not arrive at the office at the beginning of their regularly scheduled shift. However, Ms. Bagley had no knowledge if these inspectors had attended a night meeting during that week, if the inspectors had gone to an inspection prior to coming to the office, or if the inspectors had made up their tardiness by either working during their lunch hours or after the end of their regularly scheduled shift. Ms. Bagley just assumed that these employees were not putting in 40 hours per week. She produced no evidence at the final hearing that there were other employees who claimed they worked 40 hours per week, when they did not and were allowed to do so without taking leave. She presented no evidence at the final hearing that African-American employees were treated differently than Caucasian employees. In fact, she claims that both African- American and Caucasian employees were allowed to come in late without having to submit a leave slip for the missed time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the petition because the charge of discrimination was not filed timely and because Ms. Bagley failed to establish that the City discriminated against her based on her race. DONE AND ENTERED this 15th day of August, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 15th day of August, 2006.
Findings Of Fact The Respondent filed a license application with the Division of Licensing, Department of State for a Class "D" Unarmed Guard License on January 27, 1983. The Division of Licensing did not approve or deny the license application of Carlos Hernan Garcia within the 90-day period from the date of receipt of the application and, accordingly, by operation of Section 120.60(2), Florida Statutes, the Division issued to Respondent a Class "D" Unarmed Security Guard License which expires on May 14, 1983. But for the operation of the 90-day rule, the Division of Licensing would not have issued the Respondent an Unarmed Security Guard License. On July 17, 1983 the Division of Licensing issued an administrative complaint to revoke the license on grounds that the Respondent willfully misrepresented his criminal record in his application in violation of Section 495.319(1)(a), Florida Statutes, committed an assault and battery other than in self defense and committed criminal acts which directly relate to the business for which the license was sought in violation of Sections 493.319(1)(c) and (j), Florida Statutes. On May 19, 1979, the Respondent (while intoxicated) struck a police officer who was investigating a traffic accident in which the Respondent was involved. The Respondent was convicted of assault and battery upon a police officer and received six months probation and adjudication was withheld. On August 5, 1980, the Respondent was responsible for a fire which occurred in the bathroom of a restaurant during business hours for which he was convicted of criminal mischief. On or about October 29, 1982, the Respondent was carrying a concealed firearm, a 25-caliber pistol, without a license or permit required by Sections 790.05 and 790.06, Florida Statutes (1981). Following an argument which took place outside an apartment house, the Respondent shot and injured another person with the pistol. No criminal charges were brought and there was no prosecution as a result of this incident. The Respondent, who reads and writes English, failed to complete question number 13 on his security guard application, pertaining to past criminal arrests and convictions, by omitting any reference to the assault and battery and criminal mischief convictions, since the Respondent knew that he could be denied a license for having committed such crimes, and knowing that the omission, if discovered, would be grounds for denial of his license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered revoking the Class "D" license of the Respondent Carlos Hernan Garcia. DONE and ENTERED this 15th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/480-9675 Filed with the Clerk of the Division of Administrative Hearings this 15 day of March, 1984. COPIES FURNISHED: James V. Antista, Esquire Department of State The Capitol Tallahassee, Florida 32301 Carlos Hernan Garcia 9380 West Flagler Street, #120 Miami, Florida 33130 George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Mary Gast, Director Division of Licensing The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether the discipline imposed on Respondent, John Enrico (“Enrico”), by Petitioner, City of Cape Coral (the “City”), was appropriate.
Findings Of Fact Based upon the oral testimony and other evidence presented at final hearing, the following findings of fact were made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated thereto. Enrico is employed by the City as an instrumentation supervisor in the Water Reclamation Division of the City’s Utilities Department. He has been employed for an indeterminate number of years, but is a “director level” employee.1/ The City suspended Enrico for one week without pay pursuant to the City of Cape Coral Code of Ordinances, Article III, Division 7, entitled Discipline of Regular Employees. (Pertinent sections of the Code of Ordinances are set forth in the Conclusions of Law, below.) The alleged violation was primarily based on an email Enrico sent on June 7, 2012. The June 7 email was sent to Jeff Pearson and copied to Brian Fenske. The June 7 email states in its substantive body: Jeff and Brian, As a courtesy, I am affording both of you a small glimpse into a potential future. If you decide to discipline me regarding my communications outside of this department, please find below what is just the beginning of the resistance you will meet in public forums and otherwise. As a friend, not as a contemporary [sic], I strongly advise you both not to pursue your current course of action, as it would be embarrassing and detrimental to the cities [sic] interests. Please feel free to call me and discuss the matter. Distinct Regards, There was other information attached to the June 7 email, including some narrative by Enrico concerning his rationale for sending an earlier email, excerpts from OSHA regulations and the City Code, and other legal information about quasi-judicial matters, freedom of speech, and the International Covenant on Civil and Political Rights. It is not clear whether the additional information was supposed to be support for Enrico’s actions, or a description of the “resistance” the email recipients could expect to meet in the future if they decided to discipline Enrico. In order to better understand the June 7 email, some discussion of the background leading up to the email is necessary. Early in calendar year 2012, the City began looking at a product called Multitrode. The product was to be used within the City’s sewage system to, inter alia, control, monitor, or report data regarding usage. The system would have an impact on the equipment and services overseen by Enrico. Enrico was directed by Fenske to install the program via email dated May 18, 2012. Enrico was apparently leaving for a two-week vacation just hours after he received the email. He attempted unsuccessfully to contact his superiors to express some concerns he had about how the Multitrode was going to be implemented. Enrico felt that the system had some potential to do harm to the water reclamation system if installed or used incorrectly. He was not able to reach his superiors. Failing to reach his superiors, Enrico sent an email dated May 23, 2012, to Jody Sorrels, a civil engineer employed by the City.2/ The email was copied to Jeff Pearson, Brian Fenske, Dennis Morgan, Oliver Clark, Michael Hines, and Margaret Krym (the City Manager). Except for Krym, all of the recipients of the email were within Enrico’s chain of command in his area of employment. Krym was intentionally copied on the email by Enrico because he wanted someone outside his chain of command to know about his concerns. The Utilities Department did not report directly to the City Manager. Enrico had been disciplined previously for violating the chain of command protocols. The May 23 email contained Enrico’s reasons for why he did not think the Multitrode should be implemented. He did not believe the program was appropriate or the best use of the City’s money. He was concerned that if implemented improperly, it might even cause significant problems for the wastewater system. The email suggests that it is in response to an earlier telephone conversation between Enrico and Sorrels. Enrico’s supervisors were concerned that Enrico had intentionally chosen to copy the City Manager on the May 23 email. Inasmuch as Krym was not within Enrico’s chain of command and had no direct connection to the utilities department, the supervisors felt like Enrico was again attempting to circumvent protocol and create dissension within the City. As a result, the supervisors began to discuss what sort of discipline should be imposed against Enrico for sending the May 23 email. After various discussions between Enrico and his supervisors, cooler heads prevailed. A meeting was held on June 19, 2012, wherein Enrico retreated from his stance and acknowledged the impropriety of sending an email to the City Manager concerning issues outside her area of concern. During his testimony at final hearing, Enrico denied that he had acknowledged it was wrong to copy Krym on the email. The most persuasive evidence is that he did acknowledge his error. At the conclusion of the June 19 meeting, the participants shook hands and it was decided that no discipline would be imposed against Enrico. Enrico’s acknowledgement of his error was a key reason for his superiors’ decision not to impose discipline. However, before the June 19 meeting, Enrico issued the June 7 email. That email followed a June 6, 2012, email, wherein Enrico notified Jeff Pearson that he needed to talk to Pearson concerning the Multitrode program. The June 6 email ended with Enrico stating, “I need a response (phone call) from you by 9AM EST today to discuss the matter, or I may be forced to escalate the issue appropriately.” The June 7 email appears to be the escalation he warned Pearson about. The June 6 email references “Mr. Sorrels [sic] unwarranted and unprofessional email response.” Sorrels had sent an email to Enrico concerning Enrico’s May 23 email. Sorrels’ email included the statement, “I have neither the time nor inclination to entertain an email chain concerning your [Enrico’s] metathesiophobia or ideophobia.” Metathesiophobia is the fear of moving or making changes. The origin of the word meta is Greek (meaning to change), thes is Latin (meaning setting) and phobia is Greek (meaning fear). Ideophobia is an anxiety disorder characterized by the irrational fear or distrust of ideas or reason. Enrico denied being afflicted with either condition. On June 5, 2012, Enrico had responded to Sorrels, copying Pearson and Fenske on an email accusing Sorrels of libel and defamation. Enrico’s email said that Sorrels’ failure to verbally apologize and write a retraction of his statements by June 8 would result in Enrico referring the matter to the city attorney and his own attorneys to seek unspecified damages. This exchange was followed by the aforementioned June 6 and June 7 emails. The June 7 email was apparently the last straw for Enrico’s supervisors and they decided to impose discipline against him. After discussions with the human resources department and city attorney, the city manager approved a one-week suspension without pay as the appropriate sanction. Enrico denies the June 7 email was intended as a threat, but that is how it was perceived by his superiors. The language in the email about the “beginning of the resistance you will meet,” and telling his superiors that “I strongly advise you not to pursue your current course of action” are both, however, certainly threatening in nature. Though, Enrico said that he did not threaten physical harm, thus there was no threat at all, his testimony is not persuasive. In defense of his actions, Enrico claims the City violated his free speech rights under the United States Constitution, his fair labor practices rights under the State Fair Labor Law, and his rights under the Florida Whistleblower’s Act, among other things. None of those defenses are germane to the issue in this proceeding, nor does DOAH have jurisdiction over those laws. It is clear Enrico knows his area of employment and may have some legitimate concerns about the Multitrode system that was implemented. He may have personal feelings about the fiscal propriety of the City’s use of the Multitrode system. Enrico may not particularly like his superiors. However, those feelings do not justify the use of threats.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On August 28, 1987, Respondent was certified by the Commission as a law enforcement officer and was issued certificate number 19-87-002-04. At all times material to this case, Respondent was employed as a law enforcement officer with the City of Miami Police Department. Respondent was born in Marianna, Florida, but was reared in Miami, Dade County, Florida. Respondent has lived and worked in the Liberty City and Overtown areas of Miami for many years. Prior to becoming employed with the City of Miami Police Department, Respondent was graduated from Florida A & M University with a bachelor's degree in criminal justice. Additionally, he had completed police academy training and had served as a reservist in the U.S. Navy. According to Respondent, he is a natural leader and has acquired discipline from his military experiences. During the early morning hour of September 18, 1988, Respondent was on duty in a marked police vehicle patrolling an area of Miami in the vicinity of 22nd Street and Biscayne Boulevard. Respondent was armed, dressed in his police uniform, and accompanied by another uniformed officer, Efrain Grillo. At approximately 12:00 a.m. on that date, Respondent observed a white female standing in the curb area along Biscayne Boulevard. The Respondent later learned that the female's name was Linda MacArthur. At that time, however, he recognized her from a prior encounter he had had with her in the Overtown area approximately a month before. At that time, Respondent believed Ms. MacArthur to be a prostitute. Officer Grillo pulled the police car over to the curb where Ms. MacArthur was standing. Respondent directed her to enter the back seat of the vehicle and she complied. Prior to being directed to enter the vehicle, Ms. MacArthur was not placed under arrest, was not advised that she was being transported for questioning, and had not committed a criminal offense in the officers' presence. Neither Respondent nor Officer Grillo notified police dispatch that they were transporting a female passenger. Such notification is required by police policy. After Ms. MacArthur entered the police vehicle, the Respondent and Officer Grillo took her to a dead end street located at approximately 23rd Street and 2nd Avenue. Once there, the three individuals exited the police car and walked over to a dumpster that blocked the end of the paved street. After exiting the vehicle, Respondent obtained Ms. MacArthur's purse and went through it. Among the items enclosed in the purse were condoms and a small bottle of perfume. Officer Grillo took the perfume bottle and emptied it over Ms. MacArthur's upper torso. Next, Respondent asked Ms. MacArthur how she used the condoms. While the police officers observed, Ms. MacArthur opened the condom package, placed the condom in her mouth and began a sucking action. After a few seconds, she threw the condom down on the ground. While Officer Grillo spoke with Ms. MacArthur, the Respondent went to the police car and retrieved his flashlight. Officer Grillo asked Ms. MacArthur if she had underwear on. When she replied she did not, Respondent asked her if they (the officers) could see. Ms. MacArthur pulled her pants down to reveal her naked backside. When he returned from the car with the light, Respondent attempted to illuminate Ms. MacArthur's lower body but was unable to do so since the batteries in the flashlight failed. Officer Grillo then went to the police car and obtained a surgical glove which he placed on his hand. With Respondent present, Officer Grillo placed his hand in Ms. MacArthur's vagina and anal areas. Respondent observed Officer Grillo rub his hand in Ms. MacArthur's vagina and anal areas and saw her fidget at one point. Officer Grillo inserted his finger into Ms. MacArthur's vagina and rectum without her consent. The touching that is described in paragraph 10 was not done to effect a cavity search of someone under arrest nor was it performed for a bona fide medical purpose. Following the acts described above, the Respondent and Officer Grillo placed the Respondent into the police car and transported her back to the vicinity of Biscayne Boulevard. Ms. MacArthur then located an undercover police officer and disclosed the activities which had taken place. As part of the follow up investigation performed by the police, the perfume bottle and condom were retrieved from the site. Also in connection with the investigation of the allegation, an investigator went to the location of Respondent's day job and asked him to return to the police station for questioning. Respondent drove himself to the sexual battery office and spoke with Detective Mahon and Sgt. Sparrow. Prior to giving a statement, Respondent was advised of his rights by the officers. Respondent executed a written Miranda warning form. Respondent then gave an account of the activities which had occurred with Ms. MacArthur and Officer Grillo. This statement was given at approximately 3:21 p.m., September 18, 1988. Respondent gave a second statement to an assistant state attorney and Detective Mahon at approximately 5:41 p.m., September 18, 1988. That statement was made under oath and mirrored the one previously given by him. While Respondent did not see penetration of Ms. MacArthur's vagina and anal areas by Officer Grillo's hand, it is undisputed that he observed the gloved hand being placed in those specific areas as described above. The police did not coerce Respondent into making the statements given on September 18, 1988. Respondent was not placed under arrest, was not charged with a criminal offense, and has not been prosecuted for any alleged wrongdoing. Further, there is no evidence that Respondent is likely to be prosecuted for any alleged criminal act. In contrast, Officer Grillo was charged with criminal offenses related to the incident with Ms. MacArthur. Subsequent to the incident described above, Respondent resigned his employment with the City of Miami Police Department. Prior to that action, he had received several commendations for specific acts of excellent service, and had obtained satisfactory or very good performance evaluations for his work as a police officer. All acts which gave rise to the allegations of this case occurred during Respondent's rookie year as a police officer. Prior to being asked to return to the police station to give a statement regarding the allegations of this case, Respondent had not disclosed the acts perpetrated by Officer Grillo to another police officer.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's certification. DONE and ENTERED this 25th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1990. APPENDIX TO CASE NO. 90-0919 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COMMISSION: Paragraphs 1 and 2 are accepted. The first two sentences of paragraph 3 are accepted; the balance is rejected as irrelevant. Paragraphs 4, 5, and 6 are rejected as irrelevant. It is accepted that the Respondent and his partner intimidated the victim, Linda MacArthur and that she was fearful of being arrested. Paragraph 7 is rejected as contrary to the weight of the evidence. The victim complied with Respondent's directive to enter the police vehicle. Paragraphs 8 through 12 are accepted. Paragraph 13 is rejected as contrary to the weight of the evidence. It is accepted that Respondent asked the victim as to how she normally used the condom; it is not accepted that he made her suck it. See finding of fact paragraph 8. Paragraph 14 is rejected as contrary to the weight of the evidence. Respondent did, however, make the request described at a later time (prior to releasing the victim). The second sentence of paragraph 15 is accepted. The balance of that paragraph is rejected as irrelevant. Paragraphs 16, 17, 18, and 19 are rejected as contrary to the weight of the evidence or irrelevant. Paragraph 20 is accepted. Paragraph 21 is accepted. The first sentence of paragraph 22 is accepted; the balance is rejected as contrary to the weight of the evidence. Paragraph 23 is rejected as contrary to the weight of the evidence. Respondent's account (that he did not touch the victim) is accepted. If the flashlight was pressed against the victim, the inference that Officer Grillo did that also is more credible. Paragraph 24 is rejected as contrary to the weight of the evidence. See, however, finding of fact paragraphs 10 and 17. Paragraphs 25 and 26 are rejected as irrelevant. Paragraphs 27 through 32 are accepted. Paragraphs 33 through 36 are rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. Respondent submitted a written closing argument. Copies to: Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rashad El-Amin Attorney at Law 4300 S.W. 92 Davie, Florida 33328
The Issue The issue in this case, as stipulated by the parties, is whether Respondent violated section 112.313(6), Florida Statutes (2010),1/ by attempting to enter into, or by entering into, pre- dated employment agreements, and/or by attempting to destroy or destroying public records and/or evidence of wrongdoing and/or by attempting to enter into or entering into agreements which exceeded the Respondent's purchasing authority.
Findings Of Fact Respondent, Oel Wingo was employed as the city manager for the City of Holly Hill (City) from January 1, 2010, until October 2010. Prior to serving in that capacity, she was the assistant city manager for the City of Palm Coast for ten years, and the assistant city manager for the City of Ocala for five years. Respondent earned a Ph.D. in Education Administration from the University of Florida. At all times material to the allegations herein, the City operated under a commission/city manager form of government. This meant that the commission decided policy, while the city manager was responsible for implementing policy and handling all operational matters, including the hiring and firing of personnel. Respondent's employment as city manager was governed by an employment agreement. The agreement provided for the payment of severance pay to Respondent in the event she was "terminated" by the City. Under section 10 of the agreement, termination could occur under a number of scenarios, including the following: If the Employer reduces the base salary, compensation or any other financial benefit of the Employee, unless it is applied in no greater percentage than the average reduction of all department heads, such action shall constitute a breach of this agreement and will be regarded as a termination. In the event that Respondent was terminated pursuant to the above provision, "[T]he Employer shall provide, initially, a severance payment equal to six months' salary at the current rate of pay " Respondent's employment agreement with the City further provided that she would not be entitled to receive severance benefits in the event she was terminated for cause. At the time she was terminated from her employment as city manager, Respondent’s annual rate of pay was $124,500.00. When Respondent assumed her duties as city manager, the City was experiencing significant budget problems because of declining property values, and the resultant reduction in tax revenues. Faced with a reduced budget, Respondent was nonetheless charged with the duty to maintain the current level of city services. Consequently, Respondent implemented budget cuts, reorganizations, layoffs, and position eliminations within months of her arrival. Understandably, the atmosphere in city commission meetings was, at times, tense and volatile. Similarly, the rapid personnel changes negatively affected employee morale and fostered resistance to many of the changes proposed by Respondent. When Respondent was hired by the City, only one City department head, City Clerk Valerie Manning, had an employment contract. Ms. Manning's contract with the City provided that if the City were to reduce her compensation in a greater percentage than the applicable across-the-board reduction for all City employees, she could elect to resign and “be terminated without cause,” and therefor eligible for full severance benefits. Manning left the employ of the City in April, 2010. In April 2010, Respondent replaced Manning with Joshua Fruecht. Fruecht testified that he requested an employment contract soon after he was hired. Respondent told him she would consider it after he had worked for the City for six months. Early during Respondent's employment with the City she and the City Attorney, Scott Simpson, had conversations about the desirability of the department heads having employment agreements because, as department heads, they had no protection from arbitrary termination. Entering into employment agreements with the department heads would protect them from being terminated by the city commission for personal reasons. By that time Respondent had already been approached by Administrative Services Director Kurt Swarzlander, who was concerned about his position and also wanted an employment agreement. On May 6, 2010, Respondent e-mailed Attorney Simpson with the following inquiry: We recently discussed the need to contract with Department Heads. Previously, the City Clerk had a contract. I am reviewing similar employment contracts from other cities and would like to pursue this for several reasons. My primary question for you is whether these contracts must go before the Commission. My interpretation of the Charter and my hiring and firing capabilities is that they do not, as long as I remain within the adopted job descriptions and pay ranges. Later that day, Simpson responded to Respondent's inquiry as follows: I agree that an employment contract with department heads should be within your authority as the City Manager. However, if severance is going to be provided to the department heads, then I would recommend having the commission approve this change in benefits even if individually the cost would not exceed your spending authority as cumulatively they probably would and it is a new benefit. This should not be an issue as the commission approved this for the City Clerk. Roland Via served on the city commission from November 2005 through November 2010, and was the mayor when Respondent was hired as the city manager. Mr. Via testified that in January 2010, during her first month of employment, Respondent advanced the idea of employment agreements for City department heads. According to Respondent, employment agreements would permit the City to hire the best managerial talent from other cities and provide a benefit to both the City and the employee. In May 2010, Respondent negotiated an employment agreement with Brad Johnson to serve as the public works director. The contract was executed without approval by the City Commission. City Attorney Simpson and Respondent collaborated in the preparation of the contract. Mr. Johnson's agreement provided that if the City were to reduce his financial benefits in a greater percentage than the applicable across-the-board reduction for all City employees, he could resign and be terminated without cause, thus being eligible for full severance benefits. Specifically, section 4(c) of Mr. Johnson’s employment agreement provided as follows: If the City reduces the financial benefits of the Employee in a greater percentage than the applicable across-the-board reduction for all City employees, or if the City refuses, allowing written notice, to comply with any other provision benefitting the Employee as set forth herein, then Employee may, at his/her option, elect to resign and be “terminated without cause” within the meaning of Section 4(a) of the Agreement and shall receive all compensation and benefits in Section (4)(a). Such resignation shall be in writing to the City Manager. In the event there was a termination under the above circumstances, Mr. Johnson’s agreement provided that the City would pay a minimum of four months’ salary and benefits pursuant to the City’s Personnel Policies. Respondent forwarded an e-mail to the members of the City Commission on May 7, 2010, informing them of her decision to enter into an employment agreement with Mr. Johnson based on a similar agreement with the former City Clerk, Ms. Manning. Respondent also informed the commissioners that the “City Attorney has advised that we consider utilizing employment agreements with new Department Heads.” At the time Respondent offered an employment agreement to Mr. Johnson, she elected not to do so for the other department heads. This was because she needed more time to evaluate each department head’s capabilities and determine on a case by case basis whether offering contracts to them would in the best interest of the City. However, the unrebutted testimony established that early in her tenure as city manager Respondent had formulated the intent to enter into employment contracts with qualified department heads at some future time. When Respondent entered into the written agreement with Mr. Johnson she was aware of the potential limitations imposed on her purchasing authority as a result of the severance provisions of the employment agreement. However, at the time that Respondent entered into the agreement with Mr. Johnson, no language was suggested or offered by the city attorney regarding the limitations imposed on the city manager's purchasing authority by virtue of the City’s purchasing code. While Respondent was hired by unanimous vote of the City commission, her relationship with certain commissioners, particularly Commissioner Glass and Commissioner Patton, began to deteriorate within the first months of her employment. This was the result of several actions by Respondent, including challenging Commissioner Glass about directing an employee to expend funds in a manner inconsistent with commission action, and deciding not to authorize the use of City funds to pay for the spouses and children of commissioners to attend the League of Cities convention. As a result of this friction, Respondent testified, she was threatened by Commissioner Glass on more than one occasion. The July 28, 2010, Employment Agreements (Dated May 21, 2010) At a city commission workshop on the evening of July 27, 2010, Commissioner Patton suggested that Respondent take a 20 percent cut in pay, and that salaries of the department heads also be reduced. At the time that Commissioner Patton suggested the pay cuts, the only department head that had an employment agreement was Mr. Johnson. However, no formal motion was made at this meeting to cut Respondent’s or department head pay, and no evidence was introduced that any action was ever taken by the city commission on this suggestion. In the hours immediately following the commission meeting of July 27, 2010, which Respondent and other witnesses characterized as being "vicious, dysfunctional, screaming and yelling," Respondent wrote a resignation letter and prepared a list of things that needed to be done before she left the City. Among the items on Respondent’s “to do” list was to prepare and complete the employment agreements that she and the city attorney had been discussing for department heads. Respondent testified that she had two reasons for implementing employment agreements immediately following the July 27th commission meeting. The first was to protect the department heads from the personal vendettas of the city commission. The second was to ensure that the City had a professional management team in place and continuity of professional management. On the morning of July 28, 2010, Respondent met with all of her department heads at the regularly scheduled weekly executive team meeting. She informed them that she would be working with the human resources director, Diane Cole, to immediately prepare employment agreements for all department heads modeled on the Brad Johnson, May 21, 2010, employment agreement. The reason given by Respondent for the agreements was that the department heads “should all have some protections due to the atmosphere within the city . . . .” During this meeting she also informed her department heads of her intention to resign as city manager. Respondent directed Ms. Cole to use the exact same agreement as had been prepared for Mr. Johnson, and to include the same dates as were included in that agreement. Accordingly, each of the employment agreements was dated as being signed on May 21, 2010, and each contained the same severance pay provision at section 4(c), as did Mr. Johnson’s agreement. Likewise, the effective date of each of the employment agreements was June 7, 2010. On the afternoon of July 28, 2010, each of the department heads, except Police Chief Barker, who was out of town, was presented with and signed their respective employment agreement. Although not present, Chief Barker conferred by telephone with Respondent regarding the employment agreement and advised her that he would not sign a "post-dated" agreement. The July 29, 2010, Agreements Upon further reflection that evening, Respondent became concerned about the “signature date” of May 21, 2010, appearing on contracts actually signed on July 28, 2010. This concern was no doubt fueled by Chief Barker’s comment regarding the “post- dated” nature of the agreements. Accordingly, Respondent decided to have new agreements prepared the following day which would reflect signature dates of July 29, 2010. In addition, both she and Ms. Cole had noted that the some of the agreements signed on July 28, 2010, contained typographical errors that needed to be corrected.2/ On July 29, 2010, Respondent presented a second employment agreement to each of the City department heads for them to sign. Each employment contract was dated as having been executed on July 29, 2010. Each of the employment agreements contained the identical language at section 4(c) as had appeared in the earlier versions signed the previous day. Similarly, the “effective date” of each agreement remained June 7, 2010. Following the execution of the agreements on July 29, 2010, Respondent instructed Ms. Cole to destroy all the agreements dated May 21, 2010. Ms. Cole testified that Respondent directed her to destroy them because they were drafts, they contained typographical errors, and they had been superseded by the July 29, 2010, agreements. Notwithstanding her direction that the hardcopies be destroyed, Respondent testified that she understood that a copy of all of the agreements dated May 21, 2010, remained on the City's computer system, consistent with the City’s record retention procedures. The new agreements tied Respondent's potential severance benefits to base salary reductions of all department heads whose severance benefits were, in turn, tied to reductions in pay and benefits to all City employees.3/ Thus, any potential benefit to Respondent of the new agreements would depend on the type of action taken by the City. At least three scenarios were possible. First, if the City proposed cutting Respondent’s pay and benefits by 20 percent, with no other corresponding reductions to department heads or city personnel, there would be no new benefit to Respondent. She would be entitled to severance as provided in her employment agreement, because her pay and benefits were being cut in a greater percentage than her department heads. Second, if the City reduced salary and benefits paid to department heads or city personnel by 10 percent, but reduced Respondent’s pay and benefits by 20 percent, there would be no new benefit to Respondent. She would be entitled to severance as provided in her employment agreement, because her pay and benefits were being cut in a greater percentage than her department heads. Third, if the City reduced Respondent's salary and benefits by 20 percent and her department heads by 20 percent, and the remaining City employees by five percent, Respondent would receive no new benefit. She would not be entitled to severance as provided in her employment agreement because her pay and benefits were not being cut in a greater percentage than her department heads. Under this scenario, the department heads would be entitled to elect to treat the disproportionate pay and benefit reduction as a “termination without cause,” and while the department heads would benefit, Respondent would not. On or about August 20, 2010, having heard about the employee contracts, City Commissioner Rick Glass telephonically requested a copy of all the employment agreements "from 5/21 to present . . . ." In response, Respondent sent an e-mail to all the City Commissioners, the Executive Team, and to the City Attorney stating, in part: Pursuant to the advice of the City Attorney and based on the fact that the Commissioners previously approved the concept of a Department Head Employment Agreement in 2008, the City Attorney prepared an Employment Agreement in May 2010 for implementation. See Attached. Consistent with the City Manager's approved purchasing authority, all non-union managers were subsequently offered the opportunity to enter into the proposed employment agreement. The Employment Agreement protects the City as well as the professionals. The City is protected by ensuring that we have sufficient lead time, four months, prior to a resignation to ensure we have adequate coverage for a professional position and services can continue uninterrupted. Respondent provided the recipients of the e-mail a copy of "the agreement prepared by the City Attorney." On August 23, 2010, Commissioner Glass sent an e-mail to Respondent requesting a copy of the "first signed copy of the employee agreements predated back to May 2010, that Scott, Brad, Diane, Josh, Oel, Kurt, Ron, and Mark signed! Not the contracts you had them re-sign on July 29th." In response, on August 23, 2010, Respondent wrote: This is a follow-up to Mr. Glass's request for Employment Agreement signed on May 21, 2010. The only Department Head that signed an agreement on that date is Brad Johnson. At that time, I chose not to have the other Department Heads sign Employment Agreements as I felt that I needed more time to determine their capabilities in their jobs and whether an employment agreement which committed the City to those individuals was in the best interest of the City. Subsequently, given the tone of the Commission meetings, the pressure to terminate certain individuals, as well as the pressure to treat those without union contracts differently, I chose to provide those employees with the same agreement that Brad Johnson signed on May 21, 2010. I felt morally and ethically obligated to ensure that those employees had similar protections to those employees with union agreements. These employees signed an agreement on July 28, 2010, which still had the May 21, 2010 date on it. On July 29, 2010, we corrected not only the date to reflect July 29, 2010, but several other errors related to titles and responsibilities within the proposed agreements. It was never my intent to imply that these employees had signed the agreement on May 21, 2010. It was my intent to show that they had the same protective status as Brad Johnson acquired on May 21, 2010, so that all were treated the same. As the date could have reflected a different intent and there were other errors in the intermediate document, I corrected the proposed employment agreement the next day and had the managers sign a new agreement. The documents signed on July 28, 2010, are considered draft or intermediate records which are not in and of themselves considered public records and were disposed of in accordance to state guidelines. In an August 24, 2010, e-mail, Attorney Simpson responded to Ms. Wingo's August 23, 2010, e-mail. He wrote that inasmuch as the documents in question "contained errors that were corrected, including the date, and the revised agreements was [sic] subsequently executed by the City Manager and the employees. Based on these facts the original agreements executed would appear to be drafts or precursors to the final employment agreement." Mr. Simpson concluded, "draft documents are not public records." The August 30, 2010, Agreements On August 30, 2010, yet a third version of the employment agreements was presented to each of the department heads. These agreements were prepared and executed following communications with Attorney Simpson regarding whether the severance pay provisions of the July 30, 2010, agreements potentially exceeded Respondent's purchasing authority of $25,000. At issue was the manner in which Respondent had originally calculated the potential severance benefits available to the department heads under the agreements. In an e-mail dated August 24, 2010, Attorney Simpson expressed his concern that the severance pay provisions in the July 30, 2010, agreements had the potential to exceed $25,000 for all of the department heads, with the exception of Joshua Fruecht. The third and final version of the agreement addressed the limitations in the severance benefits offered as a result of the limits on the city manager’s purchasing authority set forth in the City’s purchasing ordinances. Specifically, section 4(a) of the agreement was amended to provide: In the event the Employee is terminated without cause by the City while the Employee is willing and able to perform the duties of the position as Human Resources Manager, the City agrees, subject to the below conditions, to pay the Employee a minimum of four (4) months of salary and benefits health insurance provided to the Employee pursuant to the City’s Personnel Policies not to exceed the City Manager’s purchasing Authority. Additionally, the City shall be responsible to pay all leave accruals at the Employee’s current rate of pay, consistent with City Personnel Rules and Regulations. (Emphasis in original). Each of the employment agreements signed on August 30, 2010, reflects execution on that date. Other than the signature date and revision to section 4(a), the August 30, 2010, agreements are identical to the July 29, 2010, versions. There is no persuasive evidence in this record that Respondent did not have authority to enter into employment agreements with the City's department heads on behalf of the City. To the contrary, the City's outside labor counsel opined that a strong argument could be made that the city manager possesses the authority to enter into employment contracts, subject to the city manager's purchasing authority. Similarly, Attorney Simpson testified that he believed Respondent had the authority to enter into employment agreements. The only question in his mind was whether the agreements should be presented to the City Commission for review and approval, since in his opinion, offering a severance benefit was a policy issue. There is no question that the City’s department heads received a benefit from having employment agreements with the City. It protected them from arbitrary personnel actions and provided severance benefits under certain circumstances. Specifically, their pay and benefits could not be reduced unless there was a corresponding reduction for all City employees. The evidence adduced at hearing does not clearly and convincingly establish that Respondent acted corruptly in entering into pre-dated employment agreements with her department heads, or in directing that the July 28, 2010, versions of the agreements be destroyed. Rather, the competent substantial evidence established that Respondent believed that she was acting in a manner consistent with the proper performance of her duties as city manager.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission on Ethics issue a Final Order dismissing the Complaint issued against Respondent in the instant case. DONE AND ENTERED this 8th day of August, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2012.
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of age and/or disability, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10 et seq., Florida Statutes (2008).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Brown was born on November 26, 1932. At the times material to this proceeding, he was licensed in Florida as a security guard. Mr. Brown was hired as a security guard by SSA Security in November 1998, when he was 65 years of age, by Robert Chambers. At the times material to this proceeding, Mr. Chambers was SSA Security's district manager for Broward County and Miami-Dade County, Florida. Mr. Brown resigned his employment with SSA Security in December 2000 and began working for Avis Rent-A-Car. He left his position with SSA Security because it did not pay any benefits; he received full benefits as an employee of Avis Rent- A-Car. In or around December 2000, Mr. Brown was fitted with a pacemaker because of a heart condition.4 When Mr. Brown lost his job with Avis Rent-A-Car, he applied to SSA Security for employment, and Mr. Chambers re-hired him as a security guard in January 2003. At the time, of his re-employment by SSA Security, Mr. Brown was 70 years of age. Even though Mr. Brown had a pacemaker to regulate his heartbeat in 2003, he was at all times capable of performing all of the essential functions of a security guard and, in fact, wanted to return to employment as a security guard because he could do the job notwithstanding his heart condition. At the times pertinent to this proceeding, Mr. Brown's direct supervisor was Owen James, the area manager with SSA Security, who reported to Mr. Chambers. Mr. Brown also was supervised by SSA Security's on-duty road supervisors during the time he was actually working. On October 3, 2004, Mr. Brown signed an Application for Employment with SSA Security, and he was provided with a copy of the SSA Security Employee Rules and Regulations. He acknowledged receipt of the rules and regulations and of the Security Officers Handbook with his signature, dated October 3, 2004.5 The introductory paragraph of the Employee Rules and Regulations stated that SSA Security employees were to carry a copy of the Security Officers Handbook with him or her when on duty and advised the employees that they "could be subject to discipline, suspension or discharge" if he or she violated any of the employee rules.6 The first rule included in the Employee Rules and Regulations prohibited "[l]eaving a posted duty prior to being properly relieved." It is Mr. Chambers's policy to terminate the employment of persons who abandon their posts, that is, who leave their posts without being properly relieved, and he terminated at least 10 employees for abandoning their posts between 2007 and 2009. At the times material to this proceeding, SSA Security provided security services at several United Parcel Service facilities, including the United Parcel Service Sheridan ("UPS Sheridan") facility and at the United Parcel Service Davie ("UPS Davie") facility. At the times material to this proceeding, the UPS Sheridan facility was a "UPS hub" that operated 24 hours a day, and SSA Security provided security for the facility 24 hours per day. The UPS Sheridan facility is categorized as a "soft target" because, if anyone got into the facility, he or she could steal UPS uniforms and trucks and could, thereby, gain access to many businesses and residences. The UPS Davie facility housed employees working in customer service and administration, and the facility closed every day. At one time, Mr. Brown was assigned to both the UPS Sheridan facility and the UPS Davie facility. He worked at the UPS Sheridan facility from 10:00 p.m. until 3:30 a.m., when he left and went to the UPS Davie facility, where he worked from 4:00 a.m. until approximately 5:30 a.m. During his time at the UPS Davie facility, Mr. Brown escorted the employees working at the facility to their vehicles, and, when the last employee was escorted to his or her vehicle, Mr. Brown was free to go home. Mr. Brown was not relieved by another security guard at the UPS Davie facility. In or about January 2007, the UPS Davie facility was closed, and Mr. Brown was assigned to work at the UPS Sheridan facility from 12:00 a.m. until 4:00 a.m.7 His duties at the UPS Sheridan facility after his work hours changed, and specifically in June 2008, were to patrol the perimeter of the facility and ensure that the facility was not breached. Mr. Brown did not enter the building as part of his duties because, prior to 4:00 a.m., the building was locked. At 4:00 a.m., a UPS supervisor would unlock the building and another SSA Security security guard was scheduled to come on duty. This security guard’s duties were to secure an entryway into the building and scan employees coming in and out of the facility as they passed through a metal detector. SSA Security’s procedure at the UPS Sheridan facility required Mr. Brown to wait at his post at the facility until the security guard assigned the 4:00 a.m.-to-8:00 a.m. shift arrived. According to procedure, if this security guard was late, Mr. Brown was to call either SSA Security's 24-hour dispatch, which was reached by calling the local SSA Security office, or the local on-duty road supervisor and a relief officer would be sent to the UPS Sheridan facility to take over the post. Mr. Brown was trained in this procedure by the road supervisor on duty at the time Mr. Brown began working the 12:00 a.m.-to-4:00 a.m. shift at the UPS Sheridan facility. On May 27, 2008, Mr. Brown had a routine doctor's appointment. The doctor told Mr. Brown after the examination that he needed to go to the hospital that night because of his heart condition. Mr. Brown called the SSA Security office at approximately 4:50 p.m. on May 27, 2008, and spoke with Jeanine Williams, who was a receptionist. Mr. Brown explained to Ms. Williams that he was being hospitalized and could not report to work because of his "regular heart condition."8 This telephone conversation lasted approximately three minutes. Mr. Brown did not speak with Mr. Chambers or with his direct supervisor, Mr. James, on May 27, 2008, and he did not inform either of them of his heart condition in June 2008. He did not do so because he believed he had advised Mr. Chambers of his heart condition in 2000, when he was fitted with the pacemaker. Mr. Chambers has no recollection of Mr. Brown having told him of a heart condition in 2000, and Mr. Chambers was not able to locate anything in Mr. Brown's personnel file related to such a medical condition. Mr. Brown was discharged from the hospital on June 2, 2008. He did not submit any documentation of his hospitalization to SSA Security or provide Mr. Chambers with any explanation of the reason for his absence from work. Upon his discharge from the hospital, Mr. Brown had minimal temporary restrictions on his activities as a result of his heart condition. The primary restriction, as described by Mr. Brown, was that he was unable to do any lifting. He was, however, able to perform the essential functions of his job as a security guard. Mr. Brown reported to his post at the UPS Sheridan facility on the morning of June 4, 2008, at his normal time of 12:00 a.m. His shift ended at 4:00 a.m., at which time the SSA Security security guard who manned the post inside the facility was to report for work. Mr. Brown knew that another security guard was to begin work at the UPS Sheridan facility at 4:00 a.m., but, when the security guard had not arrived by approximately 4:10 a.m., Mr. Brown left the facility and went home. Mr. Brown had the telephone numbers of both the SSA Security 24-hour dispatch service and the SSA Security on-duty road supervisor, but he did not notify anyone at SSA Security that he was leaving or that the new security guard had not reported for duty at the UPS Sheridan facility. Mr. Brown also did not notify anyone at the UPS Sheridan facility that he was leaving the facility unguarded because the security guard assigned to work the 4:00 a.m. shift had not yet arrived. At approximately 7:30 a.m., Mr. Brown received a call from Captain Linda Webb, the SSA Security road supervisor responsible for the UPS Sheridan facility on the morning of June 4, 2008, and Mr. Brown's immediate supervisor during his shift on June 4, 2008. Captain Webb asked Mr. Brown where he was, and he replied that he was at home. Captain Webb asked Mr. Brown if he left his post before the other security guard had arrived,9 and Mr. Brown responded that it was his understanding that he did not need to be relieved at his post at the UPS Sheridan facility and that had never been relieved at that post. Although Mr. Brown had been told by a supervisor that he could leave his post at the UPS Davie facility without being relieved, no one in a supervisory position with SSA Security told Mr. Brown that he could leave his post at the UPS Sheridan facility at 4:00 a.m., regardless of whether the security guard assigned to work the 4:00 a.m. shift had arrived at the facility.10 Captain Webb wrote a Personnel Action Form summarizing the incident, which was categorized as Mr. Brown's having "abandoning the post." At approximately 2:30 p.m. on June 4, 2008, Mr. James called Mr. Brown and asked why he had left his post at the UPS Sheridan facility without being relieved by the guard who was assigned to the post inside the building. Mr. Brown stated that he was never relieved at his post at the UPS Sheridan facility. Mr. James told Mr. Brown not to return to the post at the UPS Sheridan facility but to come into the SSA Security office. Mr. Brown believed that Mr. James wanted to "get rid" of him.11 Mr. Brown spoke with Mr. Chambers on the telephone on June 4, 2008, and Mr. Chambers told him that, in directing Mr. Brown not to return to his post at the UPS Sheridan facility, Mr. James was following the instructions given to him by Mr. Chambers. Mr. Chambers met with Mr. Brown on June 5, 2008, at his office, and they discussed the incident that occurred on June 4, 2008. Mr. Chambers asked him why he left his post at the UPS Sheridan facility, and Mr. Brown answered that he had a doctor's appointment at 9:00 a.m. on June 4, 2008. Mr. Chambers asked if Mr. Brown had called a supervisor or the dispatch number before he left, and Mr. Brown stated that he had not. Mr. Chambers then advised Mr. Brown that he was terminating his employment with SSA Security. Mr. Chambers's decision to terminate Mr. Brown is memorialized on the Personnel Action Form prepared on June 4, 2008, by Captain Webb, which Mr. Chambers signed and dated June 5, 2008. When Mr. Brown turned in his uniform, Mr. James gave him a copy of the Personnel Action Report prepared by Captain Webb, and Mr. James asked Mr. Brown if he had anything to add. Mr. Brown responded that he did not, and he left the SSA Security office. Mr. Brown was replaced by a person who was 53 years of age. Summary The evidence presented by Mr. Brown is not sufficient to establish that he was the subject of discrimination on the basis of age when he was terminated from his employment at SSA Security. Not only did the evidence fail to establish that age was the motivating factor in his termination, the evidence failed to establish that age was even a consideration when he was terminated. The evidence presented by Mr. Brown is likewise not sufficient to establish that he was the subject of discrimination on the basis of disability. The evidence presented by Mr. Brown did not establish that he was disabled because the evidence failed to establish that he was substantially impaired in any major activity of daily life, that he had a record of an impairment, or that he was regarded by Mr. Chambers as having an impairment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Alfred S. Brown. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2010.
The Issue The issue in this case is whether the discipline imposed on Petitioner, Alisha Fessel, by Respondent, City of Cape Coral (the "City"), was appropriate.
Findings Of Fact Based on the Stipulated Record, the following Findings of Fact are made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated under the Charter. Ms. Fessel was employed by the City as an administrative secretary in the City's Police Department, and she was a member of the Union. Ms. Fessel had been counseled and disciplined on several occasions regarding her work performance and behavior pursuant to the City's personal rules and regulations as codified in the City of Cape Coral Code of Ordinances and the Cape Coral Police Department General Orders. All disciplinary proceedings against Ms. Fessel were initiated under the City of Cape Coral Code of Ordinances, Chapter 2, Article III, Division 7, entitled, Discipline of Regular Employees, and pursuant to the collective bargaining agreement between the City and the Union. On September 30, 2011, Ms. Fessel was placed on a 120-day performance improvement plan. On November 2, 2012, Ms. Fessel was suspended for 40 hours. On March 7, 2013, Ms. Fessel was placed on administrative leave with pay. On March 12, 2013, Ms. Fessel remained on paid administrative leave while the City conducted a pre-disciplinary hearing. On April 18, 2013, Ms. Fessel's employment with the City was terminated. The parties have stipulated: The underlying discipline is not being challenged; rather, Petitioner [Ms. Fessel] contends that the suspension with pay during the period March 7, 2013[,] up to and including April 18, 2013, constituted disciplinary action barring any further discipline (i.e., Fessel's termination on or about April 18, 2013) for the same actions.
Findings Of Fact The Petitioner, Judge L. Williams, age 58, has been a resident of Florida for approximately 40 years, except for employment related intervals. He has a high school education, received an honorable discharge from the U.S. Navy after more than three years of service, was employed in the merchant marine service for approximately 11 years, and retired from Exxon Company, U.S.A., after almost 20 years. Since the Petitioner retired in 1975, he has held various jobs in Jacksonville. Some of his employers have been Southland Corporation (7-11 Stores), Oxford Security, and Pinkertons of Florida. The Petitioner admits having an arrest record going back to the year 1949, and continuing to June of 1979, for various charges, but he has never been convicted of a felony. He has never been arrested for an offense involving the use of a firearm, or for a crime relating to property such as burglary or larceny, and he has never lost his civil rights. However, the Petitioner has had a sexual problem. In 1951 be was arrested in Los Angeles, California, for sex perversion involving a minor, and convicted on his guilty plea. He served 30 days, after which his mother convinced him to be hospitalized to treat his sexual problem. Nevertheless, in 1954 the Petitioner was arrested in Las Vegas, Nevada, on a charge of sodomy, and paid a fine. Again, in 1956, the Petitioner was arrested in Jacksonville, Florida, on a charge of molesting minors, and convicted. He served 30 days. Finally the Petitioner's record of sex related offenses concluded in Norfolk, Virginia, in 1971 when he was arrested on a charge of soliciting for immoral purposes. He posted bond which was forfeited when he failed to appear for trial. The Petitioner also has had a problem with alcohol, stemming back to 1949 when he was arrested for driving while intoxicated in San Francisco, California. Other alcohol related offenses occurred in 1956 in Las Vegas, and in Jacksonville, Florida, in 1958, 1962, 1968, and as recently as 1979 when he was arrested on a driving while intoxicated charge. The Petitioner admits to having been affected by a social problem which he describes as drinking too much. However, he asserts that this problem, as well as his former sexual problem, are not present in his life now. The Division of Licensing has issued a Class D Unarmed Security Guard License to the Petitioner, which permits him to secure employment as an unarmed guard. The Petitioner, however, contends that even with the problems be has had in the past, and in spite of his arrest record, there is nothing in his background to demonstrate violence, and he is completely rehabilitated now from both sexual and alcohol problems. Without a gun permit, he contends that employment as a security guard is difficult to find, hard to keep, and pays less than an armed guard., The only evidence presented by the Petitioner was his own self-serving testimony, and two letters relating to his character. This is insufficient and unconvincing proof of rehabilitation from his admitted problems related to sex and alcohol, in view of the recentness of the recurrence of these problems. The charge in 1971 in Norfolk is 10 years old, but some 15 years elapsed between the sex related arrest in 1956 and the 1971 occurrence. The 1979 arrest for driving while intoxicated is only 2 years old. The totality of the evidence does not support the Petitioner's uncorroborated assertion that he is now fully rehabilitated, and does not support a finding that the Petitioner is of good moral character, or that he is fit to be licensed to carry a firearm.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Judge L. Williams for a Class G security Guard License, be denied. THIS RECOMMENDED ORDER entered on this 13th day of August, 1981, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1981. COPIES FURNISHED: Stephen O. Parker, Esquire 607 Florida Theatre Building 129 East Forsyth Street Jacksonville, Florida 32202 James V. Antista, Esquire Room 1501 The Capitol Tallahassee, Florida 32301
