Findings Of Fact John R. Sutton (Sutton) has been an employee of the Seminole County School Board (School Board) for approximately ten years. At the time of his suspension, he was working as an electrician's helper. Sutton's work hours were seven to three-thirty, including summers when school was not in session. Generally, his duties did not bring him into contact with students. To the extent possible, repairs and wiring work were done when the students were not around. Sutton lives in his own home with his two children, ages three and five, his sixty-eight-year-old mother, and his fifty-year-old mentally retarded sister, whom he takes care of. He needs his job. (Petitioner's exhibit 1, p.9) Sutton's property borders on a tree farm owned by Miami Land Division. On August 10, 1993, around five-thirty p.m., Sutton was in the woods behind his house examining three small marijuana plants when he was arrested by officers of the Florida Game and Fresh Water Fish Commission. He gave permission for them to search his home and they found some baggies of marijuana. Sutton was charged with cultivation of marijuana and possession of greater than 20 grams, a felony. He admits the charges. Sutton was not prosecuted, but rather was referred to the pretrial intervention program conducted by the State's Attorney. Under his pretrial intervention contract, he was required to be supervised for twelve months, submit to random drug testing, complete fifty hours of community service, and pay certain costs of investigation and supervision. He was also required to attend Narcotics Anonymous meetings. He has satisfied all of the conditions except for the full twelve months of supervision, which have not expired. After successful completion of his contract, the charges will be dismissed. On August 12, 1993, Sutton's charge of cultivation of marijuana appeared in the "News of Record" section of the Daytona Beach News-Journal, in small print, with the usual notices of criminal charges, suits filed, divorces, births and hospital admissions occurring recently in Volusia County. John Reichert performs duties of the personnel director for the Seminole County School District. He doesn't read the News-Journal, but his counterpart in Volusia County read it and told him of Sutton's arrest. Reichert obtained information about the arrest and presented the findings to the School Board's professional standards committee. The committee recommended that Sutton be terminated. He was placed on leave without pay, pending the outcome of this proceeding on the superintendent's recommendation to the School Board. Discipline of non-instructional personnel of the School Board is governed by the collective bargaining agreement dated July 1, 1992-June 30, 1995. This agreement provides, in pertinent part: REGULAR EMPLOYEES Section 4. * * * B. An employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. [reduction in force] The decision not to renew the employee for the ensuring year shall be for just cause. * * * DISCIPLINE AND TERMINATION Section 5. A. Regular employees who have been hired for a minimum of three (3) of the last five (5) years (without a break in service) shall not be disciplined (which shall include repri mands), suspended or terminated except for just cause. * * * An employee may be suspended without pay or discharged for reasons including the following (or substantially similar offenses) providing just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in. Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. (Petitioner's Exhibit 2, emphasis added) Counsel for the School Board stipulated at hearing that Sutton's termination is not based on any of the twelve items in paragraph Section 5, C., above. Rather, the School Board's position is that "just cause" is not limited to those items. The School Board has adopted a drug free work place policy, prohibiting possession, use, sale, distribution or being under the influence of alcohol or narcotic drug, marijuana or other controlled substance, before, during or after school hours, at school or in any other school district location. The record does not reflect when the policy was adopted; Sutton has never seen the policy. Further, it does not address Sutton's offense. Sutton knows of other non-instructional employees who have been arrested for felony offenses and are still employed. On the other hand, the School Board has disciplined other employees (teachers and non-instructional employees) for drug offenses committed off of school premises and off hours. However, the School Board did not, in this proceeding, establish its policy with regard to employees, such as Sutton, who are not teachers, who are arrested after their employment, and who are not convicted of a felony or are not guilty of any of the enumerated offenses in the collective bargaining agreement. Sutton has never been disciplined before. His supervisor considers him a "[d]ecent worker, maybe not the best, but definitely a good worker." (Transcript, p.28) His attendance record is fine or average; he has not been observed arriving to work or during work, "stoned" or otherwise intoxicated or impaired. Sutton freely admits that he owned the three plants and the marijuana found in his house. He smoked infrequently and did not sell or distribute the marijuana.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the School Board of Seminole County enter its final order rejecting the recommendation for termination of John Sutton, removing him from suspension, and restoring back pay. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of May 1994. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in Paragraph 1. 3 & 4. Adopted in Paragraph 8. 5 & 6. Adopted in Paragraph 4. 7. Adopted by implication in Paragraph 2. But the more specific finding is that such contact was merely incidental, and not direct. 8-11. Addressed in Preliminary Statement as background of the proceeding. Respondent's Proposed Findings Respondent's "Findings of Fact" comprise a single paragraph outlining the background of this proceeding and stating his position, which position is generally accepted in the recommendation, above. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772-4848 Thomas C. Greene, Esquire Post Office Box 695 Sanford, Florida 32772-0695 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a black male, was hired by Respondent on February 11, 1985. Petitioner was employed as a wet mill laborer at Respondent's Florida Plant located in Bradford County, Florida. Petitioner's primary duties consisted of washing spirals and performing general housekeeping. Petitioner, like all newly hired employees, was hired subject to a ninety (90) day probationary period. Petitioner was provided an orientation period, given training, and was informed verbally during his employment about the importance of good job performance during his probation period. Petitioner was terminated by Respondent on April 1, 1985 during Petitioner's probationary period. Petitioner reported to four (4) first-line supervisors during his short period of employment which was the result of Petitioner being primarily on the day shift while the supervisors worked on a rotating shift basis. Petitioner's supervisors and the dates under each supervisor are as follows: C. A. Baldree during the weeks ending February 17, 1985 and March 17, 1985; J. W. Sherrill during the weeks ending February 24, 1985 and March 31, 1985; D. W. Baldree during the weeks ending March 3, 1985 and March 24, 1985 and; W. J. Frick during the week ending March 10, 1985. Although Petitioner's testimony conflicted with all three (3) first- line supervisors who testified concerning the fact surrounding the incidents which eventually gave rise to Petitioner's termination, the more credible evidence shows: During the week ending March 17, 1985, Supervisor C. A. Baldree instructed Petitioner and another employee to clean handrails in a specific area where a management visitation group would be observing. Petitioner proceeded to clean handrails in an area other than the one specified by the supervisor and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner became abusive toward the supervisor and argued that he was following instructions. The Area Supervisor Gilberto Valazquez observed the incident and tried to resolve the matter with a meeting between Petitioner and Supervisor C. A. Baldree but Petitioner declined, commenting that he was afraid of losing his job. During the week ending March 24, 1985, Supervisor D. W. Baldree assigned Petitioner and another employee to wash some spirals in a specific area where visiting management would be observing. Again, Petitioner took it upon himself to clean spirals in a different area and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner responded that he felt that where he had started was as good as any place to start, notwithstanding that Petitioner was aware of the reason for starting where the supervisor had instructed him to start cleaning. Also, during the week ending March 24, 1985, Supervisor D. W. Baldree repeatedly instructed Petitioner concerning the replacement of hoses and cutters that may be disconnected during the washing of the spirals. However, on several occasions Petitioner failed to replace the hoses and cutters that were disconnected during the washing process as instructed. During the week ending March 31, 1985, Supervisor J. W. Sherrill instructed Petitioner to clean out a tail box that was plugged with sand and adversely affecting production. When the supervisor returned in approximately 20-30 minutes he found the tail box still plugged. When the supervisor attempted to inform Petitioner of his failure to unplug the tail box, Petitioner became argumentative and pointed out that he had unplugged the tail box and that it was only water from a clear water hose that was dripping, notwithstanding the fact that a large amount of sand had accumulated and that muddy water rather than clean water was running from the tail box. At the end of the work week ending March 31, 1985, Supervisor Valazquez met with Petitioner and Supervisor Sherrill concerning an alleged promise made by Supervisor Sherrill to allow Petitioner to leave work early which Petitioner felt Supervisor Sherrill had reneged on, notwithstanding that supervisor had explained to Petitioner why he could not leave early. During the course of the discussion, Petitioner became very belligerent towards Supervisor Sherrill which prompted Supervisor Valazquez to review Petitioner's overall employment record to determine whether Petitioner should continue in the employment of Respondent. Supervisor Valazquez, in investigating Petitioner's overall performance, discussed Petitioner's employment record with all of Petitioner's first-line supervisors and also asked each of them for written comments. Based upon his own observations of Petitioner's job performance and his attitude toward supervision, the supervisors' comments, and the fact that as a short service probationary employee Petitioner was making no effort to improve his job performance or his attitude toward supervision, Supervisor Valazquez felt that Petitioner may not be salvageable as an employee and questioned Petitioner's continued employment with Respondent. Supervisor Valazquez reviewed Petitioner's performance record with his superiors and the site's Employee Relations Supervisor L. H. Wood, who was the site's Affirmative Action Officer. Wood found no evidence of discriminatory motivation. Valazquez's superiors concurred in the discharge recommendation. On April 1, 1985, Valazquez met with Petitioner to discuss the potential discharge action but approached the meeting with the view that should Petitioner show a change in his attitude in regard to his job performance and in accepting supervision, then Valazquez would change his mind and give the Petitioner another chance. When Valazquez attempted to review Petitioner's poor job performance and attitude problems with Petitioner, Petitioner again became very defensive and argumentative. As a result of Petitioner's attitude in this meeting, Valazquez proceeded with the discharge action that had been approved by management. Although the record reflects that Petitioner did not receive any written or verbal warnings from any of his shift- supervisors that his performance was so unsatisfactory that if improvement was not made he would be terminated, Petitioner was made aware, by his shift-supervisors and area supervisor that poor job performance was a basis for termination, particularly during his probationary period. There was at least one (1) occasion, the incident which occurred during the week ending February 17, 1985 with C. A. Baldree, where Petitioner commented about the possibility of losing his job and Valazquez advised him that he would not lose his job so long as he performed properly and showed respect for his supervisors. On three (3) other occasions, his supervisors made the Petitioner aware of his poor job performance and poor attitude. Petitioner was not advised of any written memorandums concerning his job performance or possible termination had been prepared until April 1, 1985, the date Petitioner had a conference with Valazquez and, due to his defensive and argumentative attitude, was not allowed further opportunity to improve his job performance or his attitude and was terminated. No formal employee/supervisor conferences were held with Petitioner until April 1, 985, the date Petitioner was terminated. On the same date that Petitioner was hired, Robert McGee, a white male, was hired by Respondent as a laborer. McGee was assigned to a field laborer position, reporting almost exclusively to one (1) supervisor, Doris Cole. Field laborers work in an area separate and apart from the wet mill and report to different first-line supervisors than the wet mill laborers. On April 25, 1985, within McGee's probationary period, McGee received a formal employee/supervisor conference concerning his unsatisfactory job performance and his damaging of company equipment, warned that definite improvement in his job performance was expected or probation or possibly termination could be expected. On July 3, 1985, McGee received another employee/supervisor conference which involved McGee, Doris Cole and Valazquez and McGee was informed that his performance had improved slightly but significant improvement was expected in the next two (2) weeks or he could expect termination. McGee was placed on probation at this time. On August 2, 1985, another formal employee/supervisor conference was held with McGee wherein it was noted that McGee had demonstrated that- he could perform at a satisfactory level but that continued improvement was expected and that McGee would remain on probation until October 3, 1985. The final employee/supervisor conference record dated October 4, 1985 concluded that McGee could not consistently perform satisfactorily, therefore termination was recommended. McGee did not attend this conference but resigned by telephone on that date in lieu of being terminated. McGee reviewed each of the employee/supervisor conference reports with the exception of the one on October 4, 1985 and each of the reports were included in his personnel file, including the one for October 4, 1985. McGee was a marginal employee who tried to perform his job properly and was receptive to constructive criticism; however, he was unable to improve his performance to a point that was acceptable to Respondent's management. McGee worked on the wet mill for brief periods without incident. McGee had no history of refusing to follow instructions of his supervisor or of being argumentative with the supervisors. The Respondent had no stated policy that required written warnings of poor job performance to employees by their respective supervisors. It was the general policy of the -shift supervisors that during the probationary period, especially during the early part of the probationary period, warnings of poor job performance were given verbally to the employee and that a formal employee/supervisor conference was reserved for more severe matters such as violation of safety rules. However, the manner in which a supervisor handled a particular warning of poor job performance during an employee's probationary period was left to the discretion of the individual supervisor. The record reflects only two (2) other incidents where an employee/supervisor conference was held with an employee during the employee's initial probationary period: Kathy D. Sanders, a black female, on June 5, 1985 and; Bernard Brown, a black male, on March 27, 1984. C. A. Baldree, D. W. Baldree and J. W. Sherrill, three (3) of Petitioner's shift supervisors, were all white as were the supervisors of McGee. Respondent has, and had during Petitioner's employment, an aggressive Affirmative Action program which applied to all aspects of the employment environment. Respondent has in the past received national and local recognition for its Affirmative Action efforts. Respondent's employment of minorities has exceeded the availability of minorities in the labor supply area. Although the local availability of minorities was fifteen percent (15 percent), twenty to twenty-one percent (20-21 percent) of employees at the site were minorities. Of the forty three (43) individuals hired, closely related in time to Petitioner's dates of employment, ten (10) or twenty-three percent (23 percent) were black. Although at the time of Petitioner's initial employment, Respondent had some misgivings about Petitioner's failure to disclose certain information on his employment application, Respondent decided to hire Petitioner anyway because of its Affirmative Action efforts and Petitioner's tests results. The clear weight of the evidence shows that Respondent's reasons for discharging Petitioner was his poor job performance and his argumentative and abusive behavior towards the supervisors when instructed to correct a situation where Petitioner had failed to follow instructions, either intentionally or because he had misunderstood the instructions. The clear weight of the evidence establishes that Petitioner was treated in a dissimilar manner from the white employee, but the disparity of treatment resulted from a dissimilar attitude toward job performance and supervision rather than racial motivation. Area Supervisor Valazquez, the supervisor primarily involved in the decision to discharge Petitioner, is Hispanic.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Milton Baker, was not discharged due to his race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed. Respectfully submitted and entered this 16th day of March, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3623 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-3. Adopted in Finding of Fact 1. The first sentence adopted in Finding of Fact 4. The second sentence rejected as immaterial and irrelevant. Adopted in Finding of Fact 3. 6.(a-c) Adopted in Finding of Fact 5 (a-d) but clarified. Adopted in Finding of Fact 10 but clarified. Adopted in Findings of Fact 6 through 9 and 27. Adopted in Finding of Fact 12. Rejected as not supported by substantial competent in the record. Adopted in Finding of Fact 12. Adopted in Findings of Fact 2, 13, 14 and 17. Adopted in Findings of Fact 15 and 18. Adopted in Findings of Fact 16 and 18. Adopted in Finding of Fact 17. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 22. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Rejected as immaterial and irrelevant. Respondent had no Finding of Fact 3. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5(a) but modified. Adopted in Finding of Fact 5(b) but modified. Adopted in Finding of Fact 5(c) but modified. Adopted in Finding of Fact 5(d) but modified. Adopted in Finding of Fact 6 but modified. Adopted in Finding of Fact 7 but modified. Adopted in Finding of Fact 8 but modified. Adopted in Finding of Fact 9. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Facts 17 and 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Findings of Fact 10, 11 and 12. Adopted in Findings of Fact 14, 15 and 16. Adopted in Finding of Fact 21. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25 but clarified. COPIES FURNISHED: John F. MacLennan, Esquire Kattman, Eshelman & MacLennan 1920 San Marco Boulevard Jacksonville, Florida 32207 Jerry H. Brenner, Esquire Legal Department E. I. du Point de Nemours and Company 100 West 10th Street Wilmington, DE 19898 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Petitioner has cause to terminate Respondent's employment as a school custodian.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by Petitioner as a school custodian. In the fall of 1994, the Respondent was arrested and charged with the offense of theft. The property in question was a Green Machine weed eater that was owned by the Petitioner. Petitioner assigned John Bell, an investigator employed by the Petitioner's police department, to investigate the alleged theft. Respondent admitted to Mr. Bell that he had possession of the piece of equipment, he knew that it was valued at approximately $300.00, but he asserted that he bought the machine for $100.00 cash from an unknown person Respondent said was a school board employee. Respondent did not have a receipt for the purchase or any other evidence to substantiate his explanation as to how he came into possession of the stolen property. In December 1994, Respondent was found guilty of theft following a bench trial in the criminal proceeding. Adjudication of guilt was withheld and he was fined $105.00 in court costs. He was ordered to pay restitution to the School Board in the amount of $160.82 for the cost of its investigation. The School Board has the authority to terminate Respondent's employment for cause. The School Board's Policy 3.27 pertains to suspension and dismissal of employees. If the Superintendent finds probable cause to recommend to the School Board that a member of the non-instructional staff be suspended without pay and subsequently dismissed, the Superintendent is required to notify the employee in writing. The policy also contains provisions for the information that must be included in the notice to the employee. By letter dated February 9, 1995, the Superintendent advised Respondent that cause existed to terminate his employment on the grounds of theft of school property and misconduct in office. On February 21, 1995, the School Board, based on the Superintendent's recommendation, suspended Respondent's employment without pay pending this termination proceeding. The Superintendent and the School Board followed the pertinent policies in suspending the Respondent's employment without pay pending this dismissal proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates Respondent's employment as a school custodian. DONE AND ENTERED this 21st day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1995. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Mr. Noyland Francis 7326 Willow Spring Circle Lantana, Florida 33463 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Ms. Williams has been employed by the School Board for 15 years and is currently a 12-month custodian at Longwood Elementary School (School), located in Seminole County, Florida. As a 12-month custodian, Ms. Williams is allowed sick and annual leave. Ms. Williams requested leave beginning July 7, 2010, to September 29, 2010, for back surgery. On August 10, 2010, the School received a letter dated July 8, 2010, from Ms. Williams's physician, advising that Ms. Williams had undergone surgery for a spinal disorder on July 7, 2010, and would need 12 weeks to recover prior to returning to work. On October 1, 2010, Ms. Williams called the School and advised that she was not able to return to work and requested leave from September 30, 2010, through October 28, 2010. Her physician sent a letter dated September 30, 2010, to the School, advising that Ms. Williams would need an additional four weeks for recovery. By this time, Ms. Williams had exhausted all her paid leave and was on leave without pay. Ms. Williams was unable to come to the School to sign the application for leave; however, the leave was approved by the principal of the School, Virginia Fisher (Ms. Fisher), who was Ms. Williams's direct supervisor. By November 2, 2010, Ms. Williams was still unable to return to work, and her physician sent another letter to the School, advising that Ms. Williams would need an additional four weeks for recovery. Ms. Williams requested leave from November 2, 2010, to November 30, 2010. Again, Ms. Williams was unable to come to the School to sign the application for leave, but it was approved by Ms. Fisher. By December 1, 2010, Ms. Williams was still unable to return to work and requested leave from December 1, 2010, through January 3, 2011. Her physician sent a letter to the School, stating that Ms. Williams needed an additional four weeks for recovery. Ms. Williams was unable to come to the School to sign the application, and the leave request was approved by Ms. Fisher. Ms. Williams's physician sent a letter dated December 27, 2010, to the School, stating that Ms. Williams had not quite reached maximum medical improvement with respect to her recovery and that he would need to see her in four weeks for reevaluation. Ms. Williams signed and submitted an application for leave for January 4, 2011, through January 24, 2011. The leave was approved. Ms. Williams's physician submitted a Return to Work/School Certificate dated January 21, 2011, to the School, stating that Ms. Williams would be able to return to work on January 24, 2011, with the following restrictions: "light duty with no repetitive lifting over her head, lifting restriction of = 30 lbs." Ms. Williams discussed the issue of light duty with Steve Bouzianis (Mr. Bouzianis), director of Human Resources, Staffing and Operations for the School Board. She told him that she had been advised by staff at the School that she needed to come back to work or submit a request for additional leave. Mr. Bouzianis informed her that she could not do the custodial job with the restrictions set by her physician. Ms. Williams was advised to submit a request for leave and was told that it would be approved. By February 18, 2011, Ms. Williams had not submitted a request for leave or submitted a letter from her physician stating that she needed to be absent from work due to an illness. By letter dated February 18, 2011, Ms. Fisher enclosed a leave request form and directed Ms. Williams to complete the form and return it to her, along with a physician's statement substantiating Ms. Williams's need for her absences no later than February 23, 2011. Ms. Fisher further advised that, if Ms. Williams could not obtain a physician's statement, Ms. Fisher would approve the leave for the remainder of the year as personal leave without pay. Ms. Fisher advised in the letter of the consequences for failure to request leave and stated: Should you fail to return to me your signed request for leave form and the supporting physician's statement (if applicable) by the date identified above [February 23, 2011], you will be considered as absent from duty without approved leave, and in violation of adopted School Board policy. In that event, the Superintendent of Schools will recommend to the School Board that you be suspended from your duties and further that your employment with the School Board of Seminole County, Florida[,] be terminated. The School received a letter dated February 22, 2011, from Ms. Williams's physician, who stated that Ms. Williams could return to work on January 24, 2011, with the same restrictions previously listed on the Return to Work/School Certificate. On February 23, 2011, Cynthia Frye (Ms. Frye), who is Ms. Fisher's assistant, attempted to call Ms. Williams at her sister's telephone number, which is the number that Ms. Williams had given the School to contact in case of an emergency. At the time, Ms. Williams was living with her sister and staying some of the time with her son. Ms. Frye called at 2:37 p.m., and got no answer, and called again at 3:15 p.m., at which time she spoke to Ms. Williams's sister. Ms. Frye told the sister that it was important that Ms. Williams call Ms. Frye. Ms. Williams had not called Ms. Frye by the morning of February 24, 2011. Ms. Frye attempted to call Ms. Williams twice during the morning of February 24, 2011, and three times during the afternoon. On the last call, she left a message with Ms. Williams's sister that it was imperative that Ms. Williams call Ms. Frye that night or Ms. Frye could not help Ms. Williams. By March 4, 2011, the School still had not heard from Ms. Williams. Ms. Fisher sent Ms. Williams a letter dated March 4, 2011, stating that, because Ms. Williams had not contacted the School to request leave, Ms. Williams's absences since January 25, 2011, were considered as absences from duty without approved leave. Ms. Fisher advised Ms. Williams that, based on Ms. Williams's third and continuing absences, Ms. Fisher would recommend to the superintendent of schools that Ms. Williams's employment with the Seminole County Public Schools be terminated. When questioned at the final hearing concerning her reasoning for not requesting leave, Ms. Williams indicated that she wanted to work, but the School would not let her come back to work with light duty restrictions. She contacted her attorney and, based on his advice, did not request leave. Ms. Williams's employment is governed by the Official Agreement between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc., and the School Board (Agreement). Article VII of the Agreement provides: Section 4. * * * B. A regular employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. * * * Section 5. A. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following provided that just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employees leaves the work site after the equipment, if applicable, has been checked in Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools, or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. * * * Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. * * * Section 15. Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension without pay. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommendation for termination. Each day that an employee is AWOL shall be considered a separate offense. However, any documentation of offenses in this section shall be maintained in the employee's personnel file.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Ms. Williams's employment with the School Board. DONE AND ENTERED this 28th day of July, 2011, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race or sex.
Findings Of Fact Petitioner is Valerie Miller-Moskowitz. She was employed by Respondent from August 4, 1987 until termination of her employment on September 9, 1987. Respondent is the Tom James Company, an interstate mail order clothing business based in Brentwood, Tennessee with an area sales office in Tampa, Florida. Respondent sells garments through its salespersons as opposed to operation of a retail store. These salespersons, including the office manager, are generally in the office only in the late afternoon in order to make telephonecalls and arrange appointments with customers for the following day. The manager of Respondent's Tampa office, with authority to fire, hire and impose disciplinary actions upon employees at all times pertinent to these proceedings, was Mark Dunphy. Through a process of interviews, Petitioner became a finalist for Respondent's vacant position of "operations manager" in the Tampa office. In the final interview, Petitioner went to Dunphy's home where he and his wife observed Petitioner's operation of a personal computer. Skill in the usage of the personal computer was important to Dunphy since he expected the new operations manager to prepare letters for mass mailing to potential customers through the use of a software program on the computer. The letters, extolling the company's products, would be mailed to potential customers after preparation by the operations manager. Following completion of all interviews, including a psychological evaluation of Petitioner conducted over the telephone with Petitioner by an individual hired by Respondent for that purpose, Dunphy formally hired Petitioner. This occurred sometime around the first of August of 1987. Petitioner's duties as operations manager consisted of being a "jack of all trades" with responsibility for typing, telephone answering and meeting with customers in the absence of salespersons in the office. She was also expected to operate the computer, now moved to the office from Dunphy's home, and to prepare mass mailings. Petitioner initially reported for work on August 4, 1987. At the conclusion of Petitioner's first day on the job, Dunphy went by Petitioner's home at her request. Petitioner was upset as the result of a telephone call from her husband and talked with Dunphy regarding her martial problems. After some discussion, Dunphy, who was growing hungry, asked Petitioner to have a drink and dinner at a local Mexican restaurant. Petitioner consented. The two went to the restaurant, had dinner and continued to discuss their personal backgrounds and experiences. Petitioner, who is black, related her disappointment with her present separation from her husband, who is white. Dunphy is also white. At the conclusion of the dinner, both left for their respective homes in their separate automobiles. As her employment progressed in the following days, Petitioner experienced some difficulty operating the personal computer at the office and called Dunphy's wife on several occasions for guidance in the effective use of the machine. While she managed accounting matters in the office quite well, Petitioner was unable at any time during her brief employment to produce mass mailing letters in a quantity sufficient to meet Dunphy's expectations. Although he was becoming aware that Petitioner's computer skills were not as proficient as he desired, Dunphy continued an amicable relationship with Petitioner. On August 6, 1987, he again invited Petitioner to go out for drinks, but she refused. There were subsequent invitations from Dunphy during thenext week to go out for drinks, to go jogging, and to go dancing. Petitioner declined all these invitations from Dunphy. Approximately two weeks after beginning her employment, Petitioner went to Jacksonville, Florida, for a job related training session sponsored by Respondent. Upon conclusion of the training session on or about August 14, 1987, she and Dunphy agreed in the course of a telephone conversation that Dunphy would meet her at the airport and give her a ride to her home. Dunphy complied and upon arriving at Petitioner's residence, Dunphy escorted her inside where he attempted to embrace and kiss her. Petitioner told him "you shouldn't do this to your wife." Dunphy did not attempt to press his affections further and left Petitioner's home. One day during the next week, in the course of conversation, Petitioner told Dunphy that the day, August 18, 1987, was her birthday. Dunphy proceeded to give her a birthday card in which he inscribed the following: Happy B. Day Val- you inspire me with your attitude toward life, and what life throws at us from time to time. Your[sic] tough in your determination to make a success of your self even in tough personal times. I know you will help me in achieveing[sic] my goals while we are associated together. I know I will be helpful to you in achieveing[sic] your dreams & goals. --This good for one marguerita. Mark In the ensuing days, Petitioner began to be late for work at various times, although Dunphy did not formally document this deterioration of Petitioner's attendance in any time records. Petitioner's car was burglarized during the week of August 24, 1987, and she took time from work to replace her driver's license, credit cards and other documents that were stolen from the vehicle. Dunphy became concerned about Petitioner's attendance at work and the two of them quarreled. Petitioner's husband contacted her in the early part of September, 1987. He was ready to conclude their separation and needed her to come to New York and assist in his move to Florida. Petitioner met with Dunphy on the morning of September 9, 1987, and informed him of her intention to take the following two work days (Thursday and Friday) off in order to go to New York to deal with family business matters. When Dunphy expressed reluctance to authorize the time off for Petitioner, she became angry and declared that she would be taking the time off anyway because her "family came first." Dunphy, already disappointed with Petitioner's failure to meet expectations regarding operation of the personal computer and preparation of mass mailing materials, also became angry and told Petitioner to leave since she was going anyway. Petitioner took Dunphy's response to mean that she was fired and left the business premises. Later in the day, Petitioner contacted an accountant in the company's home office for assistance in persuading Dunphy to reconsider and continue her employment. Those efforts were unsuccessful. After conclusion of her trip to New York, Petitioner wrote to Respondent's president at the company's home office on September 16, 1987, and complained of Dunphy's verbal abuse and unprofessional displays of anger. In the letter, she opined that Dunphy was a good salesman, but needed additional training in order to become a "people oriented supervisor." Notably, she made no specific reference to racial discrimination or sexual harassment in the letter, although she noted Dunphy's attempts "to pressure the Operations Manager into going out for drinks, when both parties are married."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 10th day of April, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1990. APPENDIX The following constitutes my ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Rejected, not supported by the weight of the evidence. Adopted in substance, though not verbatim. Rejected, a mere restatement of Petitioner's position. To the extent that this proposed finding seeks to establish that Petitioner rejected advances of Mark Dunphy, the proposed finding has been substantially adopted with regard to one occasion, but not verbatim. Adopted in substance. Rejected, argumentative as to legal conclusion regarding burden of proof rather than proposed finding of fact. 6 Rejected, not supported by the weight of the evidence. Rejected, relevancy, conclusion of law. Adopted in substance as to firing and date of same. Rejected, not supported by weight of the evidence. Rejected, not supported by the weight of the evidence, legal conclusion and argumentative. Rejected, not supported by weight of the evidence. Rejected, not supported by the weight of the evidence. Respondent's Proposed Findings 1.-3. Rejected, unnecessary. Modified to extent that Dunphy operated Respondent's Tampa office. Addressed in substance as to Respondent Tom James Company. 6.-10. Adopted in substance, but not verbatim. Petitioner's hiring found to have occurred on August 4, 1987, otherwise this proposed finding is adopted in substance. Adopted by reference. Not supported by weight of the evidence with regard to lack of capability of Petitioner, adopted in substance with regard to Dunphy's disappointment with her performance abilities. Adopted in substance. Petitioner's version that August 4, 1987, was her first day of work is adopted on the basis of the witness' credibility as opposed to Dunphy's testimony on this point. 16.-19. Adopted in substance. 20. Rejected, relevancy. 21.-23. Rejected, relevancy. 24. Adopted by reference. 26. Rejected, relevancy and cumulative. 27.-28. Adopted in substance. 29.-30. Rejected, relevancy. Rejected, cumulative. Rejected, cumulative. 33.-34. Rejected, unnecessary. Adopted in substance. Rejected as to Dunphy's version of these events on the basis of the comparative creditability of the witnesses on this particular point. Adopted in substance, though not verbatim. 38.-41. Adopted in substance, though not verbatim. 42.-44. Rejected, not supported by the weight of the evidence. 45.-48. Rejected, unnecessary. 49.-66. Rejected as argumentative of proposed findings postulated by Petitioner. COPIES FURNISHED: Donald A. Griffin Executi
The Issue The issue is whether Respondent, Michael’s Store, Inc. (“Michael’s”), committed an unlawful employment practice against Petitioner (“Mr. Hughes”) by discharging him.
Findings Of Fact Michael’s operates a store in Clermont, Florida. During all times relevant to the instant case, Amy Wsol was the manager of the Clermont store. Mr. Hughes was the Clermont store’s operations manager and subordinate to Ms. Wsol. Elisa Griffin was a cashier at the Clermont store. In April of 2015,1/ Ms. Griffin notified Michael’s human resources department that Ms. Wsol was not enforcing or not complying with Michael’s procedures regarding e-mail captures and other cashier practices.2/ Michael’s conducted an investigation during the summer of 2015 and concluded in August or September of 2015 that no action would be taken. Michael’s notified all employees interviewed during the course of the investigation that there would be no retaliation against Ms. Griffin. Nevertheless, immediately after the investigation’s conclusion, Ms. Wsol mandated that the other managers in the Clermont store document all of their interactions with Ms. Griffin and place those documents (“the allegedly retaliatory documents”) in Ms. Griffin’s personnel file. Mr. Hughes had the additional task of using an in-store surveillance system to monitor Ms. Griffin during her shifts. Mr. Hughes felt that Ms. Wsol’s orders regarding the monitoring of Ms. Griffin were contrary to Michael’s directive that Ms. Griffin was to suffer no retaliation because of the investigation. Mr. Hughes also felt that Ms. Wsol’s orders were immoral and unethical. The stress associated with complying with those orders had an adverse effect on Mr. Hughes’ health. Mr. Hughes is an insulin dependent diabetic, and his blood sugars became unmanageable. At one point, his endocrinologist advised him that hospitalization may be necessary if his condition did not improve. In December of 2015 or January of 2016, Mr. Hughes applied for an assistant manager position at a store that Michael’s was about to open in Orlando, Florida. While the position in the Orlando store would have been a lateral move for Mr. Hughes, it appealed to him because the Orlando position would be salaried, and Mr. Hughes was an hourly employee at the Clermont store. In January of 2016, Mr. Hughes reported Ms. Wsol’s orders regarding the allegedly retaliatory documents to Michael’s Human Resources Department. At this time, he also made copies of the documents so that he would have evidence that Ms. Wsol violated the directive that Ms. Griffin was to suffer no retaliation. Mr. Hughes did not have any authorization from Michael’s to copy the contents of Ms. Griffin’s personnel file. In February of 2016, Mr. Hughes met at the Clermont store with Dennis Bailey, one of Michael’s district managers, regarding Mr. Hughes’ allegations about Ms. Wsol. Mr. Bailey told Mr. Hughes that his allegations were being investigated. As for his request to be transferred, Mr. Bailey told Mr. Hughes that he would not be forced by a complaint to transfer Mr. Hughes to a different location. While Mr. Bailey did not completely rule out the possibility of transfer, he stated that Mr. Hughes would probably have to accept a demotion and a loss of benefits. In March of 2016, Ms. Wsol went on medical leave, and Mr. Hughes ran the Clermont store until April Skidmore arrived in April of 2016 to serve as acting store manager. At the end of May 2016, Ms. Griffin asked Mr. Hughes how she could obtain a copy of her personnel file. Mr. Hughes told her that she could request a copy from Ms. Skidmore or from Michael’s Human Resources Department. On June 14, 2016, Mr. Hughes received a call from Leah Frye, who worked in the Human Resources Department. Ms. Frye asked Mr. Hughes if Ms. Griffin had approached him about obtaining a copy of her personnel file. Mr. Hughes responded affirmatively and relayed that he had instructed Ms. Griffin on how she could obtain a copy of her personnel file. Mr. Hughes did not tell Ms. Frye that he had made a copy of the allegedly retaliatory documents in January of 2016. After Ms. Griffin received a copy of her personnel file, she stated to Mr. Hughes on June 15 or 16, 2016, that certain documents were missing. Ms. Griffin made that statement because she had expected to see documentation of compliments paid to her by customers. Ms. Griffin was also expecting to see documentation regarding the investigation of Ms. Wsol. However, none of those documents were in her personnel file. Mr. Hughes then examined Ms. Griffin’s personnel file, and discovered that the allegedly retaliatory documents were not there. Mr. Hughes then told Ms. Griffin about the missing documents and stated that he would transmit a copy of them to her upon receiving a request from her attorney. Mr. Hughes received such a request on June 17, 2016. At that point, Mr. Hughes elected to make a copy of his own personnel file because he was worried that its contents would be altered in an effort to retaliate against him. Accordingly, Mr. Hughes asked Mary Pearman, one of the other assistant managers at the Clermont store, to watch him copy his personnel file and sign a statement indicating that the documents he copied represented its complete contents. On June 29, 2016, Mr. Hughes received a call from Chad Romoser, the Director of Michael’s Human Resources Department. Mr. Romoser asked Mr. Hughes if he had made a copy of his personnel file and if he had asked a coworker to witness him doing so. Mr. Hughes responded affirmatively and stated that he copied the contents of his personnel file because the allegedly retaliatory documents had disappeared from Ms. Griffin’s file. Mr. Hughes then asked Mr. Romoser why the allegedly retaliatory documents were not transmitted to Ms. Griffin after she requested a copy of her personnel file. Mr. Romoser responded by stating that Michael’s Human Resources Department had no knowledge of the documents. Mr. Hughes then inquired about the status of the investigation pertaining to his report about the allegedly retaliatory documents. Mr. Romoser stated that after Mr. Bailey had met with Mr. Hughes in February of 2016, Mr. Bailey reported that Mr. Hughes was a “whiny individual” attempting to force Michael’s to give him a promotion. On June 29, 2016, Michael’s initiated an investigation of Mr. Hughes. Mr. Hughes was suspended with pay and required to relinquish his keys to the Clermont store. On July 6, 2016, Michael’s discharged Mr. Hughes. Mr. Hughes learned through a telephone conversation with Mr. Romoser that he had been discharged from Michael’s for intimidating Ms. Pearman3/ and for lying to the Human Resources Department. Mr. Hughes did not learn until filing his Charge of Discrimination with the Commission that Michael’s also discharged him for releasing personal and confidential information. Mr. Hughes was a credible witness. The undersigned finds that his testimony reflected his best recollection of the events pertinent to this case. However and as discussed below, even if all of Mr. Hughes’ testimony were to be accepted as true, Mr. Hughes has failed to present a prima facie case of retaliation under the Florida Civil Rights Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Thomas C. Hughes’ Petition for Relief from an unlawful employment practice.5/ DONE AND ENTERED this 19th day of October, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 19th day of October, 2017.
The Issue The issue for determination at the final hearing was whether the Respondent, City of Largo, as employer of Petitioner, Cleareather B. Gross, committed an unlawful employment practice by discriminating against Petitioner on the basis of race.
Findings Of Fact Based upon the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, a black female, was hired as a Clerical Assistant I for the City of Largo's City Clerk's Office on September 21, 1981 and was assigned to the mail room. The Petitioner was hired for the position by City Clerk Kay Klinsport, a white female. The interview went well and, although there were other candidates for the position, the Petitioner was hired. Shortly after commencing work with the City Clerk's Office, the relationship between the Petitioner and her supervisor, Kay Klinsport, began to turn sour. Ms. Klinsport utilized very strict management and supervisory techniques and was not considered a very good personnel manager by many of her subordinates. The Petitioner is an extremely assertive person and takes pride in her willingness to "speak her mind" in all situations. Ms. Darlene Trowell, a white female, worked as a secretary in the City Clerk's Department during the time in question. Ms. Trowell also had trouble with Ms. Klinsport's management and supervisory techniques, but decided that the best way to deal with her was by keeping quiet and having limited contact. Ms. Klinsport antagonized several of her subordinates, both white and black. Ms. Klinsport decided that the Petitioner should be watched especially close and asked Ms. Trowell to "keep an eye on her (Petitioner)." This occurred as a result of Ms. Klinsport's management techniques, the Petitioner's overall assertive attitude and several complaints that were received regarding the Petitioner. Ms. Klinsport no longer works for the City of Largo. Darlene Trowell frequently complained to the City Manager regarding Ms. Klinsport's managerial techniques. The City of Largo has written guidelines governing employee conduct and discipline; those guidelines are titled "Code of Conduct and Disciplinary Measures" and a copy is provided to all employees. The guidelines require that supervisors pursue a philosophy of "progressive discipline" by administering gradually increasing disciplinary actions for each successive instance of employee misconduct. Possible disciplinary actions include oral reprimand, written reprimand, suspension, and ultimately, dismissal. Kay Klinsport received several complaints regarding the Petitioner, at least one of these complaints came from the Fire Chief and one complaint came from an employee of the Police Department. In her position with the City Clerk's Office, the Petitioner had occasion to come into contact with employees of the Police and Fire Departments. One of the complaints about Petitioner came from a black employee of the Police Department. On December 3, 1981, J. G. Knight, Fire Chief, sent an interoffice memorandum to Kay Klinsport complaining of the Petitioner's behavior. Specifically, the complaint alleged that Mr. Knight had received numerous verbal complaints and at least two written complaints of confrontations and harrassments by the Petitioner when it becomes necessary for fire department clerical employees to conduct business in or around the mail room. In addition, the complaint alleged that the Petitioner wrongfully opened a sealed envelope addressed to an employee of the fire department concerning the death of a member of his immediate family. On January 29, 1982 Kay Klinsport, City Clerk, issued the Petitioner a written reprimand. The reprimand specifically addressed friction between the Petitioner and other employees and noted the following: 11-16-81 - Failure to complete a project from personnel; 12-1-81 - A confrontation with Becky from the Fire Department; 12-10-81 - A confrontation with Barbara from Public Works Department Refusal to stamp signatures on annexation notices; A confrontation with Bonnie concerning Vivian and Marlene; Problem involving mail from P. O. Box 137 and directions given from Lynn in Finance; A confrontation with Charlotte regarding mail pick-up during distribution; 1-25-82 - Compensatory time confrontation as to date used; 1-26-82 - Attitude involved throughout day and into next.' The written reprimand stated that if Petitioner received another reprimand for the same reason, she would be suspended without pay for five days in accordance with personnel rules and regulations. On February 16, 1982 Kay Klinsport, City Clerk, issued a written reprimand to the Petitioner. This reprimand involved a complaint that Ms. Klinsport had received from the Police Department concerning the Petitioner's use (or rather misuse) of the microfilming equipment. The Police Department allows the City Clerk's Office to use certain camera equipment for microfilming records. Specifically, the reprimand alleged that the Petitioner continued to run documents through the machine without proper preparation (i.e., removing staples and paperclips) despite being instructed as to the proper use of the equipment. Improper use of the machine by failing to remove staples and paperclips can cause the machine to malfunction because the staples and paperclips accumulate in the bottom of the machine. The written reprimand warned Petitioner that if she continued to misuse the camera equipment at the Police Department, she would be suspended for three days. On October 8, 1982 Kay Klinsport, City Clerk, issued a written reprimand to the Petitioner. The written reprimand cited the following: 10-1-82 - Incident involving Lynn McKenzle, Finance Department, in failure to readily relinquish use of the computer; 10-6-82 - Copy paper incident with Brenda stemming from incorrect certificate of indebtedness turned into supervisor, department head; and Verbal complaints from several other employees. On the basis of this written reprimand, the Petitioner was suspended for five days without pay. The Petitioner was warned that should her attitude continue to interfere with subordinate and/or fellow employee relationships, she would be dismissed. On November 12, 1982, the Petitioner filed a charge of discrimination against the City of Largo with the Equal Opportunity Commission (case #025830181). On November 30, 1982 Kay Klinsport issued a written reprimand to Petitioner, Specifically, the reprimand addressed the Petitioner's poor attitude and ability to deal with subordinates and/or fellow employees and noted a confrontation between the Petitioner and "Kay and Leah." On the basis of this written reprimand, the Petitioner was suspended without pay for five days, with termination of employment to take effect on December 7, 1982. Effective July 4, 1982, the Petitioner was moved from Clerical Assistant I to Acting Clerical Assistant II. On September 29, 1982, the Petitioner sent a memo to Kay Klinsport indicating her desire to apply for the permanent position of Clerical Assistant II. On November 21, 1982, the Petitioner was returned to her permanent position of Clerical Assistant I. Lynn McKenzie, a white female, was hired to fill the Clerical Assistant II position. The Petitioner performed poorly on the Clerical Assistant II written test and was not hired for the vacant position. Of the five people that took the examination, the Petitioner placed last; however, Ms. McKenzie did not make the highest score. On March 21, 1982, the Petitioner's probationary appraisal was made by Kay Klinsport. In the evaluation, the Petitioner was rated "satisfactory" on overall performance. With the exception of "attitude," all factors were rated "satisfactory;" attitude was indicated as "generally neutral; disposition and outlook varied with mood." On September 21, 1982, the Petitioner received her "anniversary performance appraisal" which was completed by Kay Klinsport. The Petitioner's overall performance was rated as "satisfactory." Ms. Klinsport did, however, mention that the Petitioner's attitude varied with her mood. The Petitioner appealed her discharge and on September 19, 1983, an order of the Federal Mediation and Faciliation Service was issued directing that the City of Largo reinstate the Petitioner without any back pay to the position held by her on the date of her discharge. The Mediation order found that the Petitioner's conduct warranted a disciplinary penalty short of discharge. The Petitioner returned to work on October 5, 1983. However, the Petitioner resigned on February 4, 1984.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's Petition for Relief be denied in that no unlawful employment practice has been shown. DONE AND ORDERED this 31st day of December 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December 1985. COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Aurelio Durana, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Ms. Patricia Catalano Personnel Analyst City of Largo Post Office Box 296 Largo, FL 33540 Ms. Cleareather B. Gross 915 North Garden Avenue Clearwater, FL 33515 Thomas M. Gonzalez, Esq. P. O. Box 639 201 E. Kennedy Blvd. Suite 838 Tampa, FL 33601
Findings Of Fact During early 1993, the St. Petersburg's Times (the Times), a local newspaper, conducted an investigation of the Pinellas County school board's personnel including compiling arrest records of all its employees. Included in the Times' compilation of arrest records was a record involving Respondent which indicates that on September 27, 1978, Respondent pled guilty to the offense of indecent exposure for which he successfully completed a term of six (6) months probation. Respondent also was obliged, as part of his probation, to serve approximately seven (7) hours of community service at the Salvation Army. Respondent satisfied the community service obligation. Respondent has been employed by the Pinellas County School Board in excess of twenty (20) years. His on the job performance has been satisfactory, having been disciplined only on one occasion for being asleep while on duty. Respondent is, and has been since his early childhood, mentally retarded and he suffers from a severe speech impediment. Respondent was arrested when he relieved himself (urinated) in the presence of three or four minor children. A review of the arrest records and the statements of the arresting officers in the case reveal that Respondent was educably handicapped to the point wherein he had little, if any, understanding of the arrest or the reasons for which he was arrested. The officers questioned whether Respondent understood the Miranda rights read to him when he was arrested. Respondent's difficulty stemmed from his learning disability. Respondent was employed as a custodian with the school board. In performing his duties as a custodian, Respondent's contact with students and other personnel is minimal. Other than the subject incident, Respondent has no prior arrest record nor has there been any subsequent arrest record involving Respondent. Petitioner's administrator, James Barker, who recommended Respondent's dismissal, relates that Petitioner's policy for discipline of support service employees is contained in its Rule 6GX52-7.12 entitled Work Performance and Discharge - Support Service Personnel. Administrator Barker admits that Petitioner's policy allows the Superintendent to impose discipline in a less severe manner than Respondent was disciplined, i.e., a reprimand or suspension. Petitioner's policy calls for progressive discipline. Administrator Barker has also reviewed Respondent's personnel file which indicates that Respondent has been a satisfactory employee throughout his tenure with Petitioner. Respondent's mother, Maggie Jordan, had little recall of the 1978 incident other than the fact that Respondent entered a "plea of convenience". Ms. Johnson noted that Respondent, while a student, was classified as being educably handicapped and was educated with students with special learning disabilities (SLD). Respondent takes his job seriously and would like to return to work for Petitioner as a custodian.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order reinstating Respondent to a position of Plant Operator (Custodian). DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1993.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Joe Raymond Johnson was employed as a plant operator (janitor), at St. Petersburg High School. His employment was subject to labor conditions outlined in an agreement between the School Board of Pinellas County and the International Brotherhood of Firemen and Oilers, AFL-CIO, Local 1221. He has worked at the school since December, 1980. Respondent's immediate supervisor was Dennis N. Nelson, the night foreman who supervises the night crew of 10 plant operators (janitors). The night crew duty hours were from 2:30 - 11:00 p.m., Monday through Friday. At all times material hereto, Respondent was assigned to the night crew. The plant operators, of whom Respondent is one, are advised at periodic meetings of their duty hours, reporting times, break times, and lunch times, and other facets of their employment. In addition, this same information is posted on the bulletin board in the maintenance office. As a part of their employment orientation, the plant operators, including Respondent, were told how to make arrangements for excused absences and tardiness. They were advised to call in, in advance, and advise Mr. Jones, the Head Plant operator, that they would be late or absent and why. If Mr. Jones is not available, the worker is to leave a message for him with either a secretary in the administrative office or a student working in that office, who is to place the message in Mr. Jones' box for subsequent pick-up. Respondent was personally advised of this procedure by Mr. Nelson, his immediate supervisor. On July 5, 1987, Respondent signed a Stipulation of Agreement with the School Board whereby he was suspended without pay for three days because of a continuing history of unexcused tardiness up to that time. The Stipulation was signed by School Board officials on August 11 and August 26, 1987. On August 27, 1987, the Director of Personnel Services, Pinellas County Schools, advised Respondent by letter that the suspension had been approved and cautioning him that future infractions might lead to further disciplinary action, to include dismissal. Subsequent to July 13, 1987, even after signing the Stipulation relating to his prior tardiness, and accepting punishment therefor, Respondent continued to be tardy without excuse or prior notice as called for in the school procedure. Specifically, he was late as follows: July 13, 1987 - 3 minutes late August 13, 1987 - 8 minutes late August 17, 1987 - 2 minutes late August 26, 1987 - 5 minutes late September 24, 1987 - 42 minutes late September 30, 1987 - 1 minute late October 10, 1987 - 4 minutes October 16, 1987 - 32 minutes late November 4, 1987 - 1 minute late November 11, 1987 - 13 minutes late December 3, 1987 - 4 minutes late from lunch December 8, 1987 - 13 minutes late from lunch February 21, 1988 - 21 minutes late As a result of this continuing tardiness, on October 19, 1987, Respondent was called to a conference with the Principal, Mr. Grey, who advised him of the continuing problem. Respondent professed to be unaware of the problem and claimed discrimination by his supervisors. Nonetheless, Mr. Grey advised Respondent to be punctual in the future upon pain of further disciplinary action. When asked to sign a copy of the memorandum memorializing this conference, Respondent refused to do so. On December 16, 1987, Mr. Jones, the Head Plant operator, wrote to Mr. Johnson outlining a series of unexcused tardies and absences in early December, 1987 and indicating he was referring the matter to the Principal for action. Respondent, again, refused to acknowledge this communication. On January 21, 1988, Mr. Jones again wrote to Respondent noting a thirteen minute tardiness that day and again referring the matter to the Principal. As was the case with previous communications, Respondent refused to sign in acknowledgement. According to Mr. Nelson, Respondent failed to call in on any one of the above-mentioned tardiness in advance as was required. He admits that Respondent is generally a good worker but was the subject of some other, unidentified disciplinary problems during the period of his employment. These not being further identified or supported, they are hereby disregarded. Mr. Grey, the Principal, personally spoke with Respondent about his lateness on several occasions. Initially Respondent offered no explanation for his tardiness but with regard to the last two incidents, indicated he had physical problems. Respondent also, on one occasion, indicated to Mr. Grey that the plant operator, Mr. Jones, was prejudiced against him. Mr. Grey did not believe Respondent's representations to him that he had tried to call in to say he would be late. After the last referral from Mr. Jones, Mr. Grey decided that more stringent disciplinary action was appropriate and recommended to the Superintendent of Schools that Respondent be dismissed. This recommendation was based upon his own interviews with the Respondent and the reports of Respondent's supervisors. While admittedly other janitorial personnel have been tardy without a recommendation for dismissal, their records are not as aggravated as that of Respondent who continued his tardiness regardless of repeated counselings and warnings. Even though Respondent has not been late since February, 1988, Mr. Grey still feels he should be dismissed because regardless of the counselings, Respondent was repeatedly tardy until this present dismissal action was initiated. Mr. Johnson, who is fifty-one years old, has worked for the School Board continuously since December, 1980, and this job is his sole source of income. He admits that there was justification for the three day suspension imposed on him previously but contends that as to the latter incidents being used to support the current action, he called in in advance on most - at least those of significance. He does not consider one or two minutes beyond the starting time as being late, however. That much time could be expended waiting in line to clock in. As to these short periods, he asserts he was there on time but had to wait to sign in and by the time it was his turn, he was late by one or two minutes. What Respondent overlooks, however, is that the sign in clock was purposely set between two and three minutes slow for just that purpose. Consequently, if the clock showed Respondent to be two minutes late, he was, in reality, between four and five minutes late - well beyond the delay time. Respondent also contends without any evidence to support his contention, that the clock was ordinarily inaccurate and was adjusted purposely to entrap employees. Evidence introduced by Petitioner, however, indicates the clock was periodically checked and found to be accurate, except in times of power outages not pertinent here, until it was replaced when it broke down for a week. During that period, however, Respondent was not late. As stated above, Respondent claims that he did call in when he would be significantly late and leave a message with the student who answered. To support his claim, he asserts that neither Nelson nor Jones ever complained to him on those occasions. When he would see them after arrival, they would acknowledge his presence and say they were glad he had made it. On one of these occasions, September 30, 1987, on which date he was forty-two minutes late, he had car trouble and told Mr. Jones about it, when he arrived. During this same period from July, 1987 to January, 1988, he was having physical problems and was under a doctor's care; a fact which he made known to both Jones and Nelson. At one point, he brought in a doctor's certificate which he discussed with the Assistant Principal who told him to leave it in the Principal's box. The Principal denied receiving it, however. These assertions do not, however, establish that Respondent followed the school rules and called in in advance when he was going to be late. Respondent claims that though the school administration is claiming his tardiness as the basis for this dismissal action, in reality it is because of an altercation he had with Mr. Jones over a period of sick leave. In the incident in reference, Respondent had been to the doctor and upon his return to school, signed an application for sick leave furnished to him by Mr. Jones who had indicated it would be approved. When he saw it later, he noted that sick leave had been disapproved. When he spoke with Mr. Jones about this, Jones allegedly told him he didn't have any sick leave accrued. Respondent called the district payroll office and reportedly was told he did have sick leave available, but when Respondent reported this to Jones, Jones supposedly said it didn't matter, he wasn't going to get it. When Respondent complained to the Assistant Principal, the matter was referred back to Jones for resolution. Respondent was counseled about this incident in writing by the Principal and believes it is the real basis for the disciplinary action. Both Grey and Jones deny this, however, and in light of the Respondent's repeated lateness, it is found that the basis for this action is the lateness and not the other matter. Mr. Grey admits that Respondent's tardiness was documented with a view toward disciplinary action but not because of this incident. The documentation was begun before the incident in question and relates solely to the continuing tardiness. Respondent has not been late since January 21, 1988, because he fears the separation action. He made up his mind to be on time and he has been on time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Joe Raymond Johnson be suspended without pay from employment with the School Board of Pinellas County for thirty days. RECOMMENDED this 7th day of June, 1988, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1370 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner NONE By the Respondent 1 - 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. 8 - 10. Accepted and incorporated herein. 11 - 14. Accepted and incorporated herein. Rejected as not entirely supported by of record. Accepted and incorporated herein. 17 - 18. Accepted and incorporated herein. 19. Accepted. 20 - 21. Accepted and incorporated herein. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Clearwater, Florida 34624 B. Edwin Johnson, Esquire 1433 South Ft. Harrison Avenue Suite C Clearwater, Florida 34616 Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Scott N. Rose, Ed.D. Superintendent School Board of Pinellas County 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618-4688
Findings Of Fact Respondent, Otis Ward Carroll held a Florida Teacher's Certificate No. 169701, which was valid from July 1, 1972 until June 30, 1982. As a certificate holder Respondent was disciplined on August 7, 1979, when the State Board of Education entered an Order adopting a set of stipulated Findings of Fact and Conclusions of Law. The Board's Order suspended Mr. Carroll's license to teach for sixty (60) days beginning on June 15, 1979. This discipline resulted from Mr. Carroll's numerous absences from school due to his drinking alcohol. The stipulation recited several arrests and numerous admissions to the Detox (detoxication) Center for disorderly intoxication. These instances occurred between 1976 and 1978. According to the stipulation Mr. Carroll voluntarily entered an alcoholic treatment program on December 4, 1978 for a period of six (6) months. During all times pertinent to the Amended Administrative Complaint Mr. Carroll was employed as a full-time science teacher by the School Board of Duval County at Fletcher Senior High School. On May 18, 1979, the Assistant Superintendent for Personnel of the School Board of Duval County, Florida, sent a letter to Mr. Carroll informing him that he would be employed for the next school year, but he was warned that, Any further indiscretion, however, such as public drunkeness or drinking while on the job will be reported to the Professional Practices Council and could result in a recommendation for your dismissal in accor- dance with the Duval County Teacher Tenure Act. May 1980 Absence During the 1979-80 school year, Mr. Carroll was absent from his teaching duties without prior approval for approximately one week in May, 1980. Before and during his absence Mr. Carroll failed to give notice of his absence as required by school policy. Upon his failure to appear for teaching as scheduled his principal, Dr. Knight, became concerned about his welfare and sent Mr. Daugherty, his administrative assistant, to look for Mr. Carroll. Mr. Carroll could not be found during the school day, but after work Mr. Daugherty, who was going to the grocery store with his wife, saw Mr. Carroll walking down the street. He was "in real bad shape" and was redolent of alcohol. When Mr. Carroll was offered a ride home he declined stating, "No, I want to go to the lounge." Mr. Daugherty then took Mr. Carroll to the Jax Liquor Store Lounge and promptly found a police officer. Mr. Daugherty explained his concern about Mr. Carroll to the officer. The officer picked Mr. Carroll up from the lounge and transported him to the Detox Center. Mr. Daugherty, who is now a school principal in Okeechobee, Florida, would not, if requested, hire Mr. Carroll as a teacher in his school. He believes that due to Mr. Carroll's drinking problem he could not be relied upon to appear as scheduled for teaching his classes. Dr. Knight has the same opinion. April 14, 1981 Arrest During the afternoon of April 14, 1981, a passing motorist notified Officer Russell of the Duval County Sheriff's Department that a man was staggering down the middle of East Point Road in Jacksonville, Florida. The patrolman went to the location described, and observed Mr. Carroll walking down the centerline of the street. Mr. Carroll smelled of alcohol and was unsteady on his feet. Because of his condition he was transported by Officer Russell to the Detox Center where he was later arrested. July 21, 1981 Arrest At approximately 1:15 a.m. on July 21, 1981, Officer Nixon, a patrolman with the Duval County Sheriff's Department, received a complaint from Mr. Carroll's sister that he was creating a disturbance in her home. She reported that Mr. Carroll was drunk and she wanted him to remain in the house because she thought his condition was too dangerous for him to be out in public. Upon his arrival the police officer attempted to talk with Mr. Carroll but he refused to respond at all. He was quite intoxicated and had to be physically assisted out of the house and into the patrol car. Mr. Carroll was charged with disorderly intoxication and taken to the Detox Centers. Spring 1981 Absences According to Fletcher High School policy teachers were required to either give advance notice of their absences or if such notice was not possible to call the school secretary before 7:00 a.m. of the date on which they would be absent. This notice was required because substitute teachers needed to be obtained as rapidly as possible. If a teacher is too late in giving notice of his absence, it is impossible to obtain a substitute. Other teachers are then required to cover for the absent teacher with the consequential disruption of their omen teaching schedules. During the months of February and March, 1981, there were numerous times when Mr. Carroll did not report his absence as required. He either gave no notice or the notice he gave came after 7:00 o'clock. As a result of his unauthorized absences it was discovered that Mr. Carroll left either inadequate lesson plans or no lesson plans at all for the substitutes who appeared to instruct his class. The failure of Mr. Carroll to timely submit his lesson plans substantially interfered with the ability of the substitutes to teach the appropriate subject material. During one of his absences due to drinking student grades for the third nine-week period were due. Mr. Carroll did not leave any grades with the school administration to be given in his absence. Initially, the administration was unable to obtain the grades from Mr. Carroll. When it appeared that no grades would be available, students were told that they would receive an "I" (Incomplete) grade. This possibility caused much confusion and consternation among the students' parents. It resulted in numerous explanations to them by Mr. Carroll's principal. At the very last moment Mr. Carroll's mother delivered his grade book to the school. The "I's" which were previously placed on the students' report cards had to be removed and the correct grades were then posted. Respondent's unauthorized absences were the result of his being an alcoholic. Frequently Mr. Carroll was unable to go to school because he was in the Detox Center. Finally Mr. Carroll was given a leave of absence beginning on April 21, 1981 in order to seek treatment for his problem. Effectiveness Mr. Carroll's effectiveness as a teacher has been seriously reduced by his alcoholism. He cannot be depended upon to appear at the required time for the instruction of his classes. In two instances he appeared at school with the odor of alcohol on his breath. 1/ Knowledge of and rumors about his alcoholism have reduced the respect accorded him by students at Fletcher High School. On March 12, 1981 Mr. Carroll received an official reprimand from his principal, Dr. Jim Ragans. The reprimand noted that Mr. Carroll had been delinquent in giving notice of his absences to the school administration. The reprimand also noted deficiencies in Mr. Carroll's lesson plans and his completion of the student attendance register. He was warned that any reoccurrences of the enumerated delinquencies would result in a recommendation for his dismissal from teaching.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission enter a Final Order revoking the teaching certificate 2/ of Otis Ward Carroll for a period of two years pursuant to Section 231.28, Florida Statutes, and that once the revocation period has expired he be recertified only upon an affirmative demonstration that he is rehabilitated from alcoholism. DONE and RECOMMENDED this 3rd day of September, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 3rd day of September, 1982.
