Findings Of Fact During the time in question, Respondent was employed by Petitioner as a school bus driver. She had become a bus driver in October or September, 1991. On August 17, 1993, Petitioner suspended Respondent without pay as a result of the incidents that are the subject of the above-styled proceeding. On April 25, 1993, while driving an empty school bus to Tampa to pick up students on a field trip, Respondent stopped at a gas station for fuel. Hungry, she found that she had not brought any money with her. She appropriately charged the fuel on the school credit card. But, contrary to Petitioner's policy, she charged a soda and a bag of chips on the same card. When she returned to Ft. Myers and submitted her charge slip, she forgot to mention the personal items. She did not offer to reimburse Petitioner for the personal charges, which totalled $1.69, until demand was made for this amount. While returning from Tampa on the same day driving the loaded school bus, Respondent was proceeding west on Tucker Grade Road approaching the intersection with US 41. Failing to notice a marked railroad crossing, Respondent drove the bus over the crossing without stopping, opening the door, and looking and listening for a train, as required to do by Petitioner's policy. A train was in fact approaching, although some distance away. Evidence offered by Petitioner that Respondent operated her loaded bus at an unsafe speed on three consecutive days in May, 1993, is discredited. Petitioner's sole witness on this matter had repeated clashes with Respondent, for which Petitioner's witness bears at least an equal share of the responsibility. Moreover, Petitioner's witness admitted to changing lanes more than once while operating a loaded school bus to block Respondent's bus from passing when Respondent was trying to service her longer, crosstown route. Petitioner's witness was uncertain as to their relative speeds and only vaguely recalled the incidents allegedly taking place in May. On March 26, 1993, Respondent received an evaluation for the 1992-93 school year. The evaluation indicated that she had reached an "effective" level of performance for a wide variety of responsibilities. This is the lower of the two possible marks that are satisfactory. Two other marks are available to designate unsatisfactory performance; the better of these is that the task is "inconsistently practiced." Respondent's evaluation during the 1991-92 school year was about the same, although she received "inconsistently practiced" for attitude and appearance (the latter for failing to wear her uniform). During the 1991-92 school year, Respondent received two evaluations. The first was dated November 15, 1991. She received "inconsistently practiced" for adhering to driving laws and for a safe driving record. The notes mention a "preventable accident" on October 11, 1991, and that Respondent had exceeded the speed limit by 10 miles per hour at one location at an unspecified time. The remaining marks were "effective." Another evaluation for the 1991-92 school year, which was dated December 13, 1991, contained all "effective" marks. The charging of a bag of chips and soda has already received more attention than the act and omission merit. Failing to stop, look, and listen for a train, while operating a loaded school bus, is a very serious offense. Failing even to notice the crossing is not a defense; rather, such an admission raises a question of Respondent's fitness as a school bus driver. This seriousness of this offense is aggravated by Respondent's record. In a brief career operating a school bus for Petitioner, Respondent has already been involved in a "preventable accident" and has been detected operating her bus at an excess speed.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a final order terminating Respondent's employment contract. ENTERED on March 15, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on March 15, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance. 4-5: rejected as unnecessary. 6: adopted or adopted in substance. 7-8: rejected as subordinate. 9-14: adopted or adopted in substance. 15-16: rejected as subordinate. 17: rejected as repetitious. 18: rejected as unnecessary. 19-20: rejected as subordinate. 21-22: adopted or adopted in substance. 23-26: rejected as unsupported by the appropriate weight of the evidence. 27: rejected as irrelevant. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as unsupported by the appropriate weight of the evidence. 4-5: adopted or adopted in substance. 6-7: rejected as unnecessary. 8-10: adopted or adopted in substance. 11-12: rejected as subordinate and irrelevant. 13: rejected as irrelevant. 14-15: adopted or adopted in substance. 16-18: rejected as subordinate. 19: adopted or adopted in substance. 20: rejected as unnecessary. COPIES FURNISHED: Acting Superintendent Lee County School Board 2055 Central Ave. Ft. Myers, FL 33901-3916 Hon. Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Daniel H. Kunkel Kunkel Miller & Hament Suite 785, 1800 Second St. Sarasota, FL 34236 Robert J. Coleman 2300 McGregor Blvd. P.O. Box 2089 Ft. Myers, FL 33902
The Issue The issue in this proceeding is whether Respondent's termination should be upheld.
Findings Of Fact At all times relevant to this proceeding, Respondent was employed as a Bus Driver and/or Bus Aide for the Escambia School District. As a school bus operator Respondent worked approximately seven hours per day, including about three to four hours driving a large school bus. The school buses that Respondent drove had automatic transmissions and push-button doors. However, they did require more effort to drive than either a small school bus or a regular passenger vehicle. Prior to September 2005, Respondent had experienced chronic foot pain in the ball and on the top of her foot. The pain was not enough for her to seek medical treatment and she was able to perform her job duties. In early September 2005, Respondent broke the third toe on her right foot in an accident unrelated to her employment. On September 9, 2005, approximately one week after breaking her toe Respondent sought treatment for her toe at an Urgent Care facility in Pensacola, Florida. The Urgent Care Center X-rayed her foot and diagnosed a broken toe and taped her toes together. About a month later, on October 13, 2005, Respondent sought treatment for right foot pain from Dr. Mark Lambert of the Pensacola Foot and Ankle Center. This pain was in the ball of her right foot. Respondent did not associate the foot pain with her previously broken toe because the pain was not associated with her toe and she had experienced the pain prior to breaking her toe. However, the pain in her foot was worse. Dr. Lambert’s notes state that Respondent “stumped toe” about 3-4 weeks ago. The notes further state that Respondent was diagnosed by the Urgent Care Facility to have fractured the third toe of her right foot. Her toes were still taped together at the time of her visit with Dr. Lambert. She also reported to Dr. Lambert she had worked a week before she was seen for the injury to her right toe and that she drove a school bus. She reported that it hurt her to drive the bus. Dr. Lambert’s assessment was "trauma/Joint Arthralgia/Bursitis/Neuroma.” Dr. Lambert wrote a note requesting that Respondent be released from work for one week because of foot pain. Dr Lambert's office also gave Respondent a pamphlet discussing foot pain and its possible causes. One of the potential causes for such pain was repetitive stress to the foot due to driving. Dr. Lambert saw Respondent again on October 25, 2005, for treatment under the same diagnosis and again on January 30, 2006. After the January visit Dr. Lambert declined to give Respondent a release from work. On January 31, 2006, Respondent saw Dr. Brown, her primary treating physician, for the pain in her foot. Dr. Brown gave her a release from work. From October through January, Respondent was able to intermittently return to work. However, she did miss some work due to foot pain. Respondent discussed her foot problems and pain with her supervisors, although she was not detailed in those discussions. Respondent felt she could not continue to drive and wanted to transfer to another position. At some point because of continued foot pain Respondent, scheduled an appointment for February 8, 2006, with a Dr. Corbett, an orthopedic physician, in Daphne, Georgia. She learned of Dr. Corbett from a relative. On February 7, 2006, Ms. Fowler met with Jerry Caine, the Manager of Educational Support Personnel, to discuss potential jobs that she might be able to perform with her medical condition. Potential jobs discussed were a Bus Aide, which, at the time, had no openings and a teacher’s assistant for which there were openings at Escambia Westgate Center, a special education center with a large population of profoundly handicapped children. During the discussion Respondent mentioned that she thought her foot pain was due to driving a bus for many years. Mr. Caine advised Respondent that if “she felt” that her medical problems were job related that she should file a workers’ compensation claim. Ms. Fowler informed Mr. Caine that she did not want to file a workers’ compensation claim, but wanted to transfer to a different position. Also, on February 7, 2006, after meeting with Mr. Caine, Respondent went to Dr. Lambert’s office to pick up X-rays to take with her to Dr. Corbett. On February 8, 2006, she also requested that the office fax her records to Dr. Corbett’s office. Sometime after meeting with Mr. Caine, Respondent met with Susan Berry, the principal at the Escambia Westgate Center, to discuss the teacher’s aide position. They discussed the job duties and responsibilities, the physical requirements and Respondent’s medical condition. Ms. Berry also advised Respondent that if she felt her medical problems were job related that she should file a workers’ compensation claim. Respondent did not take the position at the Escambia Westgate Center. She did not feel that she could do the work because of her foot problems. On February 8, 2006, at Dr. Corbett’s office, Respondent filled out the New Patient Information Sheet and the Medical History Questionnaire. The questionnaire asked what part of the body was to be checked. Respondent indicated the right foot. The questionnaire then asked if the condition was the result of an injury and Respondent checked “No.” The history reported by Dr. Corbett was that of a 49-year-old female with right foot pain with “no known trauma for the past seven to eight months.” Respondent did not indicate on the initial paperwork that she was seeking treatment for her earlier broken toe since the pain she had in her foot was in the ball of her foot. She had not injured the ball of her foot. Her toe did not hurt. During the initial visit, Respondent also completed an authorization for Dr. Corbett to obtain Dr. Lambert’s medical records that contained his treatment and diagnosis of Respondent's condition and also contained her treatment and diagnosis by the Sacred Heart Urgent Care Facility. The medical release was immediately faxed to Dr. Lambert whose office faxed the records that day and again on February 13 and 16, 2006, to Dr. Corbett's office. Respondent advised Dr. Corbett of her previous broken toe and treatment with Dr. Lambert. Indeed, the fact that she had had previous injuries to her toes was apparent from the crooked appearance of her toes, the X-rays she had brought with her to Dr. Corbett's office and the X-rays taken by Dr. Corbett. Clearly, some mention of Dr. Lambert's treatment was made since Dr. Corbett's office requested Respondent's records from Dr. Lambert. The evidence did not show that Respondent withheld any information from Dr. Corbett in an attempt to gain a work- related diagnosis. Dr. Corbett did not review Respondent’s medical records until October of 2006. Dr. Corbett testified that the information regarding Ms. Fowler’s broken toe was not material to his treatment of her foot pain. During the months of February and March 2006, Ms. Fowler was sometimes able to drive the bus. She missed several days of work due to her foot pain. On March 9, 2006, about six months after she broke her toe, Respondent discussed the filing of a workers’ compensation claim with Jean Bradish, a workers’ compensation claims adjuster for the District. Respondent told Ms. Bradish that she wanted to file a workers’ compensation claim, mentioning she might need surgery on her foot. Respondent handed Ms. Bradish a prescription pad note, dated March 8, 2006, from Dr. Corbett. The note stated: To Whom It May Concern I am the treating physician for Jackie Fowler. Ms. Fowler has fairly marked right- sided foot pain that I have been treating since February 8, 2006. She said prior to my evaluation that she has been having pain for the previous seven to eight months. I understand that she is now trying to file a Workers’ Compensation claim stating that the symptoms were brought on by her occupational requirements as a school bus driver. I would just like to add that she has consistently indicated that school bus driving requirements made her symptoms worse. She denies any other history or any type of trauma that caused these symptoms and thus far is failing to respond to conservative care. Ms. Bradish was concerned about the note because it indicated that Respondent felt the pain was related to her work as distinguished from the doctor’s offering his opinion that the condition was work related. Because the claim had not been officially filed, Ms. Bradish did not have Respondent sign a worker's compensation fraud statement, nor did she discuss the statement with Ms. Fowler. Ms. Bradish did not inquire as to Ms. Fowler’s medical history or as to her treating physicians. Ms. Bradish again advised Respondent that if she felt that her medical condition was job related to file a workers’ compensation claim and that a claim must first be reported to Corvel, the District’s reporting agency. Ms. Fowler signed a medical authorization form which permitted Ms. Bradish to obtain her medical records. On March 9, 2006, Respondent contacted Corvel and filed a workers’ compensation claim for right foot pain. As the cause of the condition, she indicated that it was caused by 20 years of driving a bus. The claim lists Dr. Corbett as the doctor treating her foot pain. The form does not inquire as to medical history or ask a claimant to provide the names of other treating physicians. Ms. Bradish obtained Respondent's medical records from Dr. Bradish, Dr. Lambert, Sacred Heart Urgent Care and Dr. Corbett. Per her claim adjustment duties, Ms. Bradish obtained these records to make a determination whether Respondent's reported foot pain was a covered condition or injury under the Workers’ Compensation Act or, alternatively, a non-covered, non-work related condition or injury. Also, pursuant to her job duties, Ms. Bradish completed a workers’ compensation required form known as the “First Report of Injury” that included Respondent’s description of her work injury/condition. In the report Ms. Bradish stated: Progressive injury. She states she is having foot surgery on April 4, 2006, by Dr. George Corbett. Has had 20 years of damages to right foot from pushing gas pedal. Pain on top of foot and the ball of the foot. On March 10, 2006, Respondent took a voluntary demotion to a Teacher Assistant Special Bus Aide which resulted in a three pay grade decrease. Her reason for taking the demotion was because of her right foot pain and her inability to continue to regularly drive a bus. The demotion was unrelated to the filing of her workers’ compensation claim. On or about March 20, 2006, the District denied Respondent’s workers’ compensation claim. Respondent did not file a petition to contest the denial of her claim for workers’ compensation benefits or otherwise pursue additional benefits. As far as she was concerned, the denial was the end of her claim. She continued to be treated for her foot pain. Respondent also continued her employment as a bus aide for the remainder of the school year without incident. On or about July 28, 2006, Respondent was notified of a disciplinary conference based on the allegations that she filed a fraudulent workers’ compensation claim. At the conference, Respondent tried to explain that she felt the condition was job related and that she notified Dr. Corbett of the prior injury. She further indicated that she did not seek treatment from either Dr. Corbett or Dr. Lambert, for her broken toe, but for right foot pain to the “ball” of her foot. Her explanations were either not understood or not accepted and, by letter dated September 14, 2006, she was advised that she was being recommended for termination based on the “falsification and misrepresentation of medical conditions to unlawfully obtain workers’ compensation benefits.” The letter stated: You claimed an on-the-job injury to your right foot through repetitive use while operating a school bus and willfully declined to disclose to treating physicians and others as appropriate a non-work related foot injury. You sought treatment for a condition claiming it was a work injury when you knew it was not. However, the evidence demonstrates that Respondent had a genuine belief that her foot pain was not caused by the toe she broke in September, 2005. The pain was not in her toes, but another part of her foot and she had experienced the pain prior to her injury in September, 2005. She did feel that her broken toe may have made the pain worse as indicated by Dr. Corbett's note. Indeed, Dr. Corbett testified in his deposition that Respondent’s pain and discomfort would not be associated with “micro-trauma” or a single impact trauma, but that it was from repetitive small traumas. He stated that there was no definitive association between the “stubbed toe” injury and the pain Respondent was experiencing. Given this genuine belief and Dr. Corbett's testimony, the evidence does not demonstrate that Respondent intentionally filed a fraudulent workers compensation claim or failed to disclose any treatment or injury to Dr. Corbett. Therefore, Respondent's termination cannot be sustained.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that a Final Order be entered reinstating Respondent to her position of employment and awarding her full back pay and benefits. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2007. COPIES FURNISHED: Jim Paul, Superintendent Escambia County School District 215 West Garden Street Pensacola, Florida 32502 Ellen Odom, General Counsel Escambia County School District 215 West Garden Street Pensacola, Florida 32502 Joseph L. Hammons, Esquire Hammons, Longoria and Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 H. B. Stivers, Esquire Levine & Stivers 245 East Virginia Street Tallahassee, Florida 32301
The Issue The basic issue in this case is whether the Respondent engaged in an unlawful employment practice within the meaning of Section 760.10, Florida Statutes, by not hiring the Petitioner.
Findings Of Fact The Respondent's Policies 3.10 and 3.11 set forth conditions of employment and requirements for pre-employment medical examinations which must be complied with by "all applicants who are recommended for employment" by the Respondent School Board. The Petitioner was initially employed by the Palm Beach County School Board as a probationary bus driver effective November 3, 1981. On August 18, 1986, the Petitioner submitted his resignation from that position effective June 11, 1986. On September 16, 1988, the Petitioner submitted a new application for employment with the Respondent in the position of school bus driver. Pursuant to School Board policy, the Petitioner was referred to the Occupational Health Clinic for his pre-employment physical examination. The Respondent's application process, which is governed by School Board Policies 3.10 and 3.11, requires that all applicants for employment sign a form which informs the applicants of the employment practice. The information sheet, which the Petitioner executed, has a section wherein the applicants acknowledge that they "must successfully pass health screening administered by the District's Occupational Health Clinic" to be considered for employment. The Manager of the Respondent's Occupational Health Clinic is Ms. Linda Cherryholmes-Perkins. She has held that position since January of 1987. Ms. Cherryholmes-Perkins has a Bachelor's Degree in Nursing, a Master's Degree in Nursing, and is licensed as an Advanced Registered Nurse Practitioner. As Manager of the Occupational Health Clinic, Ms. Cherryholmes-Perkins oversees the pre-employment process, which all applicants for full-time employment must satisfy. During the Petitioner's pre-employment physical examination, he was tested to insure that he met both the Florida Department of Education Standards and the Respondent's Bus Driver Standards. The Respondent's Bus Driver Standards have been approved by the Department of Education, Division of Public Schools, School Transportation Management Section. An applicant who fails to meet both the Florida Departinent of Education Standards and the Respondent's Bus Driver Standards is ineligible to drive a school bus for the Respondent. The Petitioner knew he had to satisfactorily complete the pre- employment process to be eligible for employment. When the Petitioner was examined in connection with his 1988 application for employment, he was found to be suffering from uncontrolled diabetes, uncontrolled hypertension, and gross or morbid obesity. Because the Petitioner had not been previously diagnosed as having diabetes, he was assigned to and was allowed to perform twenty-one hours of probationary services before the Respondent discovered that the Petitioner was not qualified to be a school bus driver. When it was discovered that the Petitioner did not meet the school bus driver requirements, he was placed in a "medical hold" status by the Occupational Health Clinic. The "medical hold" status was for thirty days. During the "medical hold" period the Petitioner was given an opportunity to demonstrate compliance with the State of Florida Standards and with the Respondent's Bus Driver Standards. The Respondent accommodated the Petitioner in this regard by providing him with free follow-up testing during the "medical hold" period. At the end of the "medical hold" period, the Petitioner still failed to meet the State and School Board employment standards. During that period the Petitioner also failed to follow his physician's medical prescription. At the conclusion of the "medical hold" period the Petitioner was given a medical denial for the position of school bus driver. The primary reason for the medical denial was the Petitioner's diabetes, which was still uncontrolled. Secondary reasons were the additional health complications resulting from the Petitioner's hypertension and obesity. As a result of the uncontrolled diabetes alone, it was unsafe for the Petitioner to drive a school bus, because patients with that condition are at risk of having cognitive problems. The Petitioner's other problems made it even more unsafe for him to drive a school bus because patients with uncontrolled hypertension are at greater risk of stroke, heart attack, and similar cardiovascular incidents, and the Petitioner's obesity caused him to have a limited range of motion in his spine.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing the Petition For Relief and denying all relief sought by the Petitioner. DONE AND ENTERED at Tallahassee, Leon, County, Florida, this 26th day of July, 1991. MICHAEL M. PARRISH, 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 Divsion of Administrative Hearings this 26th day of July, 1991. COPIES FURNISHED: Michael L. Cohen, Esquire Barristers Building 1615 Forum Place, Suite 1-B West Palm Beach, FL 33401 Hazel L. Lucas, Esquire School Board of Palm Beach County 3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, FL 33410 Mr. Ronald M. McElrath, Executive Director Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Ms. Margaret Jones, Clerk Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Leo Willie Johnson commenced work as a custodian at Citizens Field on September 23, 1985, under inauspicious circumstances. For reasons not germane to this proceeding he had been discharged as a school bus driver and was reinstated by the Superintendent. As part of the reinstatement he was transferred from the Transportation Department to a custodial position. Since he didn't want a full-time position and the Citizen's Field assignment was part- time, he was assigned to that site. (tr-16, 127, Exhibit #R-2) Citizen's Field is a football stadium owned by the City of Gainesville and leased by the Alachua County School Board (SBAC). There are two concrete bleachers, an east side and a west side, accommodating a total of 6500 persons. The fall months are extremely busy with frequent football games and some use of the field by the City of Gainesville. (tr-16, 39, 70, 73) On Mr. Johnson's first day of work he was given a brief orientation to the job by his immediate supervisor, Dave Waters, who has been in charge of maintenance of Citizens Field for 26 years. He was also given a "pep" talk by Kirby Stewart, who is Mr. Waters' supervisor and the individual in charge of health education, drivers education and athletics for the SBAC. Mr. Stewart told Willie Johnson the work would be hard but rewarding, since parents, students and administrators are quick to acknowledge how great the field looks. (tr-16, 17, 69, 70) Mr. Johnson's assigned work day was from 8:00 a.m. until 1:00 p.m. Monday through Friday, with a 10-minute break at 10:00 a.m. His duties included general cleaning and field maintenance: using a blower to remove papers and trash from the bleachers, sweeping the restrooms and walks, removing paper from the ground, raking, and similar functions. None of the duties required training or preparation on the part of the worker. (tr- 17, 38, 48) From the first day on the job, Leo Johnson's performance was substandard, and by his words and actions he made it clear that he was not remotely interested in fulfilling his duties. On September 23, 1986, he spent his entire work day using the blower to clean the east bleachers. He accomplished in five hours what an experienced worker could do in forty-five minutes and an inexperienced worker could do in two hours. (tr- 17-18, 71, Exhibit #P-1) On September 24, 1986, he spent five hours cleaning the restrooms, a concession stand and one locker room. In Dave Waters' opinion, based upon twenty-six years experience and the supervision of many different workers, these tasks should take a new man approximately two hours. (tr-18) On the third day, Leo Johnson spent four hours washing out two bathrooms and one locker room. He then sprayed out one restroom with a waterhose. At 12:30 Dave Waters gave him a short, fifteen minute assignment, but he laid down his tools and walked away. He returned after about fifteen minutes and Dave Waters told him that he must keep working until his work time was up. Mr. Johnson responded that there was too much work to do, that he didn't think the job would work out for him and that he would talk to Mr. Griffin in personnel about another assignment. He then left the work site. (tr-18-20, Exhibit #P-1) Tile next two days, Mr. Johnson was cut on sick leave. He came to work on Monday, September 30th, but left after two hours. He was out then until Monday, October 14th and worked four full days Friday, the 18th was a Homecoming holiday. He was not very productive that week as he had a portable radio plugged into his ears. Dave Waters asked him to remove the earphone so that he could give him instructions, but he replaced it later. (tr-21-23) Because of the concerns expressed by both Dave Waters and the employee, Wilfred Griffin (Career Service Specialist, and the School Board Superintendent met with Mr. Johnson on October 2, 1985. Mr. Johnson was told again the duties of his job and was told that he was expected to carry out those duties. Mr. Johnson complained about having problems with his feet due to having to stand in water. Later, when Mr. Griffin had the safety officer investigate to see if boots should be purchased, the report back to him was that the field had good drainage and there was no standing water. In addition, boots had already been made available to the workers. (tr-l28-129) At Mr. Griffin's direction, On October 7, 1985, Kirby Stewart asked Mr. Johnson to bring in a note from his doctor. Mr. Johnson replied that it would be "no problem". Thereafter, Kirby Stewart repeated the request on several occasions. The only thing he received was a note from the A.C.O.R.N. Clinic secretary that Leo Johnson was examined on October 8, 1985. (tr-74, Exhibit #P-7, and #P-17) On Monday, October 21, 1985, Mr. Johnson worked four and a half hours. He left the work site without permission for 30 minutes. When he returned and was told by Dave Waters that he was not to leave without permission, he replied that he would leave and sign out whenever he wanted and would not change his work pace for anyone. Later that same day, Kirby Stewart came to the work site since Dave Waters had called to tell him that Leo Johnson left. Mr. Stewart reminded Mr. Johnson about the doctor's note and he wanted to leave immediately to go get it. He and Mr. Stewart walked the grounds while Mr. Stewart pointed out areas where his work was not satisfactory. Leo Johnson replied in a loud and abusive manner that "I beat the transportation department, and now ... [he didn't finish the sentence]" (tr-25,26,27, 113-115, 118, Exhibits #P-7 and P-13) Mr. Johnson did not return to work until December 12, 1985. In the meantime he called in sick every day. He was reminded several times that a doctor's note was required and he responded that the doctor would call. The doctor did not call. He complained of headaches, backaches and swollen feet. Yet on payday, November 27th, he was observed by Mr. Stewart jogging into the Administration building to get his paycheck. (tr-27, 28, 82, Exhibits #P-7, P- 15) When Mr. Johnson appeared for work on December 12, 1985, Mr. Waters gave him the message that he must go see Kirby Stewart. He called Kirby Stewart instead, and was told that since he missed so many days Kirby Stewart needed to talk with him about whether he was physically able to work. Leo Johnson did not go to see Kirby Stewart. Mr. Stewart wrote a memo to Wilfred Griffin detailing the call from Leo Johnson and expressing his need for a resolution of the problems. (Exhibit #P-9) By January 6, 1986, after the holiday break, Mr. Johnson had the impression that he was dismissed. While the record is not at all clear who told him that, Kirby Stewart also thought that Leo Johnson was dismissed as of December 20, 1985 (tr.100, Exhibit #R-6(e)) On January 6, 1986, Leo Johnson called School Board member, Charles Chestnut III, to complain that he was discharged. Charles Chestnut called the School superintendent, Dr. MaGann, who said that It must be a mistake because he didn't know anything about it. Charles Chestnut had been involved in the earlier disciplinary action that the superintendent corrected regarding Leo Johnson. Mr. Chestnut had no personal knowledge regarding Leo Johnson's performance. (tr-174-177) Leo Johnson returned to work at Citizen's Field on January 13, 1986. He took numerous breaks and left in his car at one point during the work day. He was absent for approximately 20 minutes. When he was told to hoe the grass under the bleachers he dragged an iron rake around the area with the teeth up. He put away his tools early and left before 1:00 p.m.. (tr. 30-34) On Tuesday, January 14, 1986, Leo Johnson was also at work but took breaks frequently all day. (tr.34-36) On Wednesday, January 15, 1986, Leo Johnson came to work at 8:00 a.m. Between 8:00 and 10:27, he worked 92 minutes and took breaks totaling 55 minutes. He left at 10:27 after telling Dave Waters that he had a headache. (tr-37) Kirby Stewart saw him at the County Office around 11:00 a.m. and asked why he was there. He replied that the had come to see Wil Griffin because his feet were too swollen to work. (tr.89) On January 17th, Kirby Stewart wrote a memo to his supervisor, Jack Christian reiterating the numerous problems with Leo Johnson and stating that had Mr. Johnson returned to work that morning, he would have officially reprimanded him. (Exhibit #R-10) Leo Johnson never returned to Citizens Field, and on January 21, 1986 he was suspended pending a hearing on his termination. (Exhibit #P-14) Between September 23, 1985 and January 21, 1986, there were a total of 73 school board work days. Leo Johnson was at work for 8 full days, was present for 4 partial days and was absent for 61 full days. (tr. 90-91, Exhibit #P-15) Mr. Johnson was a regular, part-time career service employee of SBAC while he was assigned to citizen's Field. Wilfred Griffin, a Career Service Specialist had the authority to interview, recruit, hire, fire and counsel career service employees. While Dave Waters was responsible for directing Johnson's work in the field and Kirby Stewart was Mr. Johnson's supervisor for administrative purposes, Wilfred: Griffin had the most substantial authority over this employee. As revealed by the record, both Superintendent MaGann and a school board member, Charles Chestnut III, had hand in dealing with Leo Johnson. This complicated hierarchy contributed to confusion and delays but did not prejudice or result in detriment to Mr. Johnson. He used the 57 sick days he transferred from the Department of Transportation, plus the days he earned on the payroll for his time assigned at Citizen's Field and ended with a full paycheck for the month of January. Despite repeated requests by Kirby Stewart and Wilford Griffin, Leo Johnson never produced a doctor's statement explaining his protracted absences. At the hearing he produced a photocopy of an "Illness-in-line-of-duty-leave" form with two lines completed by a Dr. Guido, whom Mr. Johnson contended was a foot doctor. The form is dated and signed by Leo Johnson on January 15, 1986, but the form is incomplete and there is no evidence that anyone at the school board has ever seen it. (tr- 212, 213) Further, the almost illegible statement by the doctor appears to be a diagnosis with nothing about Mr. Johnson's ability to work. (Exhibit #R-9) The verification of his visits to A.C.O.R.N. Clinic provide no information about his ability to work. By letter dated February 25, 1986, Bonnie Coats, RN, the clinic coordinator, responded to Mr. Johnson's request for the dates and reasons for his clinic visits. They are as follows: 08/23/83 Physical Exam for Work 08/07/84 Physical Exam for Work 10/08/85 1. Dizziness Calluses of feet Muscle Spasm 08/22/85 Blood Pressure evaluation 11/19/85 Blood Pressure evaluation 11/26/85 Blood Pressure evaluation 12/10/85 Blood Pressure evaluation (Exhibit #R-5(b)) Leo Johnson had ample notice of his deficient performance, although none in the supervisory chain wrote up a Job Performance Warning Record. Dave Waters did not because Mr. Johnson simply was not on the job enough. (tr-58) Kirby Stewart intended to formalize his complaints in an official reprimand, but Mr. Johnson failed to return to work again. (Exhibit #P-13) Wilfred Griffin orally warned Mr. Johnson about his job performance, leaving the job, excessive breaks and absenteeism. He met with Mr. Johnson on six or seven occasions and shared with him the detailed written memos about his work from Dave Waters and Kirby Stewart. (tr-129, 130, 154, 155) As a career service employee Leo Johnson was subject to the rights and responsibilities found in the SBAC Career Service Employee Handbook. (Exhibit #P-18) Leo Johnson was thoroughly familiar with the provisions of the handbook.
The Issue Whether Petitioner established “just cause” to terminate Respondent's employment as a school bus driver.
Findings Of Fact Mr. Moore has been a school bus driver in Seminole County since 2009. The operative facts are not in dispute. On October 24, 2012, Mr. Moore was beginning his morning school bus route. After picking up two students, Mr. Moore, at approximately 6:45 a.m., pulled into a parking lot of a local doughnut shop and parked the bus. Mr. Moore exited the bus, left the school bus door open with the motor idling. Mr. Moore returned within three minutes with a bagel and a soft-drink. All of these events were captured on video, and Mr. Moore does not dispute that this early morning breakfast stop occurred. Mr. Moore's only explanation is that he was not thinking, and had been under a lot of personal stress at the time. The School Board has a specific policy that requires a school bus driver to operate the bus with "maximum regard for the safety of students and due consideration for the protection of health of all students . . . ." School Board Policy 8.31. Moreover, a bus driver is prohibited from using the bus for personal business, and prohibited from leaving the bus' motor unnecessarily idling while in the vicinity of students. School Board Policies 8.48, and 6.22(J). In addition to the School Board Policies, the School Board bus drivers are required to follow the procedures set out in the School Bus Operations Handbook (Handbook). Seminole County Public Schools, Transportation Services, School Bus Operations Handbook, (amended July 2012). Importantly, for this case, the Handbook expressly provides that a driver shall never leave students unattended on the school bus. School Bus Operations Handbook at 247. Further, the Handbook provides that in the event a driver must leave the bus, the driver must set the parking brake and remove the bus keys from the ignition. Id. A school bus driver is then directed to keep the keys in his or her possession. Id. Finally, the Handbook clearly states that the school bus driver is not to leave the approved bus route without permission. Id. Mr. Moore received extensive training in the School Board's policies concerning the safe operation of the school bus and the School Board's expectations for its school bus drivers found in the Handbook. Mr. Moore is sincere in his testimony that he loves his job, and forthright in his admission that he made a mistake in stopping for his morning breakfast while on his bus route.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board terminate Mr. Moore's employment. DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 14th day of February, 2013.
The Issue Whether Petitioner properly imposed an administrative fine against the Respondent for allowing one of its vehicles to be operated in violation of a posted load limit.
Findings Of Fact On May 2, 1992, at approximately 7:00 a.m., Petitioner, by its inspection and compliance officer, Rebecca Stalnaker, stopped the Respondent's driver, Jeffrey Leo Speak (Speak) who was operating one of Respondent's vehicles on Lumsden Road in the City of Brandon, Hillsborough County, Florida. Lumsden Road in Brandon, where Respondent's vehicle was stopped, is a low load limit roadway and signs designating the roadway as such, were properly posted. The low load limit posting is relatively new in the area. Petitioner began issuing traffic citations to the vehicular traffic on Lumsden Road for violating the posted load limits during 1992. Petitioner's weight and safety officers began enforcing the posted limits after receiving numerous complaints from residents in the neighboring area around Lumsden Road about non-compliance with the posted weight limits. Petitioner issued a series of warnings to vehicular traffic during early 1992 for vehicles which were traversing the road weighing more than the posted load limits. Those motorists were warned that after April 30, 1992, administrative fines would be imposed against vehicles which exceeded the posted load limits. Speak was unaware that Lumsden Road was a low load limit roadway and he advised Petitioners agent, Rebecca Stalnaker, of his lack of knowledge. This was so, despite the fact that agent Stalnaker followed him past one of the posted load limit signs. There are alternate routes for vehicular traffic to travel in the area of Lumsden Road including a main thoroughfare one mile to the North, i.e., State Road 60. The posted and legal weight limit for Lumsden Road is 5 tons (10,000 pounds). Respondent's vehicle had a gross weight of 50,250 pounds or 40,250 pounds over the posted limit. As a result, agent Stalnaker imposed an administrative fine of .05 per pound for each pound that Respondent's vehicle exceeded the posted limit or $2,012.50. Agent Stalnaker weighed Respondent's vehicle alongside the roadway using authorized portable scales. She followed Petitioner's usual and approved procedures for weighing vehicles. During times material, the Board has considered and ruled on eleven cases similar to the instant case. Of the eleven cases, seven drivers/owners were afforded relief in the form of waiving all fines except the minimum of $500.00 for driving vehicles with loads that exceeded the posted limits. After April 30, 1992, the Board adopted a policy indicating that no relief would be given to vehicular traffic traversing the area of Lumsden Road as the "window of opportunity" had passed for vehicular traffic to be informed of the low load limit designation on Lumsden Road. The Board has discretion to waive, modify or cancel the imposition of administrative fines levied against vehicles for exceeding the posted load limits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,006.25. 1/ DONE and ENTERED this 13th day of January, 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 13th day of January, 1993.
The Issue Whether Pinellas County School Board (Petitioner or School Board) has "just cause" to terminate Respondent's employment as a bus driver, due to violation of School Board Policies: 4140(A)(19), "Failure to Correct Performance Deficiencies"; 4140(A)(21), "Conduct unbecoming a board employee that brings the district disrepute or disrupts the orderly processes of the District"; and (3) 4140(A)(23), "Failure to comply with Board Policy, State law, or appropriate contractual agreement."
Findings Of Fact Petitioner is responsible for operating the public schools in Pinellas County School District and for hiring, firing, and overseeing both instructional and non-instructional "educational support" employees. Respondent has been employed by Petitioner as a regular bus driver and educational support employee, since April 1989. On the morning of January 15, 2010, Respondent commenced her morning elementary school route by picking up students to transport them to Eisenhower Elementary School. After completing the run to Eisenhower Elementary School, Respondent did not conduct an interior inspection of the bus, as required. As a result, a six-year-old child was left sleeping on the bus after Respondent left the school. While waiting to depart from the school grounds, the bus engine was not turned off, but, rather, it was left to idle. Respondent was in a hurry to leave Eisenhower Elementary School because she wanted to use the restroom. Although bus drivers are encouraged to use the restroom at the school, and it is considered a "best practice" to do so, Respondent thought she could cut some time off of her run and preferred to drive to the Mobile service station located at the corner of U.S. 19 North and Route 590 rather than use the restroom at the school. Once at the Mobile service station, Respondent stopped the bus parallel to Route 590 and went into the store. The restroom was occupied at the time, requiring her to wait. She testified that while she was waiting, she went out to the bus to close a window and then returned to the service station to use the restroom. Throughout this time period, the child was left unattended on the school bus. The bus was left positioned near a heavily-traveled area of Pinellas County during rush hour traffic, and the bus was left idling. Respondent denies that the bus was left idling while the child was unattended. Her denial, however, is not credible. If the engine, in fact, had been turned off as she claims, then the Child Reminder System would have caused the horn to blow, which she admits did not occur. According to Respondent, the reason that the horn did not blow when she turned off the engine was because she was "not 100 percent sure that it worked . . . during the run . . . [because she] could have hit a bump or something like that " Since 2005, all Pinellas County school buses are equipped with a device called a Child Reminder System. It is a safety device intended to enforce the bus driver's obligation to inspect his or her bus after each run. Once a bus driver turns off the engine, the horn is activated within 10-15 seconds, which forces the bus driver to walk to the back of the bus and hit a latch to de-activate the noise. Respondent acknowledged that checking the Child Reminder System is required as part of the pre-trip inspection. Respondent did not report any malfunction the morning of January 15, 2010. She stated that the Child Reminder System worked in the morning. In an effort to support her theory that the Child Reminder System may have been broken by 8:30 a.m. that same morning, Respondent claims that she has "over and over" turned in notes to the transportation department that the Child Reminder System was broken. The records from the transportation department do not support her claim. Rather, it is unrefuted that her bus--bus number 20909--was a brand new bus and never once, from the beginning of the 2009 school year through January 15, 2010, did Respondent file a request to repair or otherwise provide notification to the transportation maintenance department that the Child Reminder System was not working. The greater weight of credible evidence finds that Respondent left her bus idling at the school and at the Mobile service station. As a result, the Child Reminder System was never activated, causing additional danger to the sleeping child who remained undercover on the bus. After Respondent left the store, Respondent resumed her route and picked up several middle-school students. The sleeping child was discovered by a middle-school student, who notified Respondent. After several minutes, Respondent called the dispatcher to notify her of the situation. Respondent used her cell phone to call the dispatcher. The dispatcher directed Respondent to return to Eisenhower Elementary School with the child. Respondent denied that she used her cell phone, instead of the two-way radio, in an effort to avoid publicly broadcasting her error over the radio system. Respondent admitted that she is well aware that the use of a cell phone while driving a bus violates School Board policy and Florida law. Respondent stated that the use of her cell phone "would be easier," because the two-way radio was being used by other callers to report an accident. Respondent implied that its use was safe, because she was not actually driving on U.S. 19, but, rather, a service road adjacent to U.S. 19. Respondent subsequently changed her story, stating that she was not driving, but had pulled her bus to the side of the road. Respondent's rendition of the facts on this point is also not credible. The Digital Video Recorder (DVR) clearly showed that the bus was moving while Respondent was speaking with dispatch on her cell phone. It is also evident from the DVR recording that the radio transmission was not in use by speakers discussing an accident as claimed by Respondent. Respondent's employment is governed by the agreement (2008-2011) between the School Board and SEIU/Florida Public Services Union, Local 1220, an affiliate of Service Employee International Union (AFL/CIO) (hereinafter Agreement). The Pinellas County Transportation Department produces a "School Bus Driver Handbook” (hereinafter "Bus Driver Handbook"), which describes policies and procedures to be followed by all bus drivers. Respondent received a copy of the Bus Driver Handbook and acknowledged that she received and read it.
Recommendation Based upon the forgoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Pinellas County School Board enter a final order holding that "just cause" exists for the termination of the employment of Respondent for violation of School Board Policy 4140(A)(19), (20), and (24) and the Agreement, as well as state law, and that Respondent should be dismissed from her position as a bus driver with the School District of Pinellas County. DONE AND ENTERED this 22nd day of November, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 2010.
The Issue Whether the Petitioner was subject to an unlawful employment practice by Respondent, JC Penney, on account of his religion, or as retaliation for engaging in protected activities in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter an employee of Respondent, JC Penney, is of the Hindu faith. Respondent operates a JC Penney retail department store in Clermont, Florida. The store employs between 125 and 130 full-time sales associates at any given time. Petitioner was initially employed at Respondent?s Clermont store in January, 2009. In September, 2009, Petitioner requested and was granted leave to travel. He thereupon travelled to Guyana, entering that country on September 25, 2009, and departing on October 2, 2009. On October 15, 2009, Petitioner was “auto-terminated” from employment with Respondent, an act that typically occurs when an employee has not worked for 30 days. At the time, Petitioner was working a second job at AutoZone. The record is unclear as to the reason for the auto-termination, but Petitioner admitted that he believed he was terminated due to his holding a second job, and not due to his religious beliefs. The auto-termination occurred more than 365 days prior to the December 14, 2011, filing of his Employment Claim of Discrimination with the Florida Commission on Human Relations, and is therefore not a subject for determination in this proceeding. See § 760.11(1), Fla. Stat. On October 21, 2009, Petitioner was rehired by Respondent as a seasonal employee in the Clermont store. He was still employed at his second job at AutoZone. On December 27, 2009, Petitioner?s seasonal employment with Respondent was terminated. As a result, he did not receive a store bonus. Other seasonal employees were also let go after the holidays. Petitioner testified that he believed he was again terminated due to his employment at AutoZone, and not due to his religious beliefs. Petitioner?s termination as a seasonal employee occurred more than 365 days prior to the December 14, 2011, filing of his Employment Claim of Discrimination with the Florida Commission on Human Relations, and is therefore not a subject for determination in this proceeding. See § 760.11(1), Fla. Stat. In April, 2010, Petitioner reapplied for employment with Respondent. He had, by that time, quit his job with AutoZone because of his dissatisfaction with the commuting distance to and from that job. Petitioner was hired as a sales associate at the Clermont store, and was subsequently assigned to work in the shoe department. The shoe department was typically staffed by six sales associates. The sales associates received a modest hourly salary, and otherwise worked on commission. In April 2011, Mr. Northrop was assigned as store manager for the Clermont store. When he was hired, Indra Kasoon was the supervisor of the shoe department. She was only there for two to three weeks before leaving to take a position at another department store. After Ms. Kasoon left, and before a new shoe department supervisor was hired, Mr. Northrop or another supervisory employee made the employee schedules and generally handled the duties of the shoe department supervisor. In June 2011, Jimmy Doralus was hired as the supervisor of the family shoe department. Mr. Doralus was previously employed by Respondent as the “lead expert” in the men?s department. Petitioner?s Requests for Time Off On May 17, 2010, Petitioner requested five days off, from June 10 through June 14, 2010, to attend to a court proceeding to which he was a party in New York. He also requested that he not be scheduled for work on Sunday, May 30, 2010, and Sunday, June 5, 2010, because “I would like to attend church in Tampa on these two Sundays before heading to NY.” Those requests were approved. On June 1, 2010, Petitioner noted that his request for time off to travel to New York was not reflected in his schedule for the week of June 13, 2010. The schedule was rearranged, and Petitioner was not required to work on June 13 and 14, 2010, per his request. On July 1, 2011, Petitioner requested, among other things, “Sundays as one of my days off for the next 3 Sundays . . . I have religious functions to take care of.” His request for time off on the three Sundays was approved. The three-week schedule issued for June 26, 2011 through July 16, 2011, showed that Petitioner requested and was approved for time off on July 7-8, 2011. The reason for the request was so that Petitioner could attend to a court matter in New York. The schedule was subsequently changed to place Petitioner on the schedule for July 7 to accommodate a conflicting request from another employee. Petitioner notified management, and the schedule was rearranged. Petitioner was not required to work on July 7, 2011. At some time in June, 2011, Petitioner requested and was approved for time off on September 4-5, 2011, “for religious function.” In August, 2011, a new employee, Benjamin Schlesinger, was hired for the shoe department. At the time he was hired, Mr. Schlesinger requested to be off on September 2-4, 2011, for a previously planned anniversary weekend. The request was granted, and Petitioner?s schedule was modified to have him work from 2:30 p.m. to 8:30 p.m. on September 4, 2011, a date for which his previous leave request had been approved. Mr. Northrop was not aware of the reason for Petitioner?s September 4, 2011, time off request when he changed the schedule for that date. Mr. Northrop rarely, if ever, made personal inquiry as to the reason for a request. Petitioner?s initial request for time off included the reason for the request, i.e. “for religious function,” but the weekly posted schedule -- which included working hours, available hours, and time off -- did not. Mr. Northrop?s testimony that he did not know Petitioner?s September 4, 2011, request was for a “religious function” when he made the change was credible, and is accepted. Mr. Northrop testified that there were other instances when time off for employees was approved, and then changed in order to accommodate conflicting requests. He indicated that it was not common, but with 130+/- employees, it would happen. The process by which Petitioner?s schedule for September 4 was modified was not dissimilar to that applied to other employees. Although Petitioner brought the matter to the attention of Mr. Doralus, there was no evidence that Petitioner sought to have the schedule changed (as happened when his July 7, 2011, schedule was changed), or attempted to switch shifts with another employee. Petitioner was able to attend to his religious function on September 4, 2011, despite his having to work later in the day.1/ The September 4, 2011, schedule change is the only instance in which any request for time off by Petitioner was not met. Petitioner?s Complaints On May 7, 2011, shortly after Mr. Northrop was assigned as store manager for the Clermont store, Petitioner wrote a letter to Mr. Northrop cataloging his complaints with shoe department employees. His general complaints centered on his being cheated of commission sales, that “I have been ganged up on with lies,” and that someone had “marked up” his picture. Petitioner did not identify his religious affiliation, nor did he suggest that any of the alleged actions were the result of his religious faith. On May 21, 2011, Petitioner sent an e-mail to Mr. Northrop in response to a May 17, 2011, disciplinary warning (see discussion below). The e-mail again complained of “untrue allegations,” that he “was ganged up on,” that his picture was “marked up,” and that a shoe department employee told another employee that “I hate all you bitches.” Petitioner stated that “I do not like to complain, but I can relate the truth always.” The e-mail contained no suggestion that any of the alleged actions were the result of his religious faith. On August 10, 2011, Petitioner complained to Mr. Doralus that he had been scheduled for the closing shift three times during the week of August 14, 2011. At the hearing, in support of his assertion that his schedule was unfair, Petitioner submitted weekly shoe department schedules for 10 weeks, from July 3, 2011 through September 10, 2011. On five of those weeks, including the week of August 14, 2011, the shoe department was down to five sales associates, rather than the normal six. On three of the ten weeks for which schedules were provided -- including two of the five weeks that the shoe department was short-staffed -- Petitioner was assigned to close on three nights. Over that ten week period, Petitioner worked the closing shift a total of 18 times. During that same ten- week period, Robert Ridge was assigned three closing shifts in two weeks, and worked the closing shift a total of 19 times. Elena Barruelo Gonzalez was assigned three closing shifts in one week, and worked the closing shift a total of 17 times. In short, everyone was required to take closing shifts, and it was not uncommon to have to take as many as three closing shifts in a week. Petitioner?s schedule was not dissimilar from those of other employees of the shoe department, and does not support a finding that persons who were not members of Petitioner?s protected class were treated differently under similar circumstances. There is nothing in the record of this proceeding to support even an inference that Petitioner?s schedule was developed or assigned with any consideration given to his religious faith, or that the schedule was set as retaliation for his opposition to any practice which would be considered to be an unlawful employment practice under the Florida Civil Rights Act. Petitioner complained that he was assigned to clean a disproportionately large area of the shoe department. The record is not clear as to whether the area assigned to Petitioner was 50 percent of the total area of the shoe department as alleged by Petitioner, or closer to 30 percent as stated by Mr. Doralus, nor is the record clear as to whether Petitioner was to split the duties of cleaning the walls and the tables within the assigned area with another employee. Furthermore, although cleaning and stocking were among the normal and routine duties of sales associates, the record was not clear as to whether the cleaning to which Petitioner objected was part of a “white-glove” contest done in preparation of a visit by Respondent?s district manager. Regardless, there is nothing in the record of this proceeding to suggest that Petitioner?s cleaning duties were assigned with any consideration given to his religious faith. Petitioner also complained generally of poor treatment at the hands of Mr. Northrop and Mr. Doralus, which complaints included being chastised for Petitioner resolving a scheduling issue with Mr. Northrop instead of Mr. Doralus, and their failure to address problems with the procedures for getting credit for commissions when shoes were paid for in other departments. The worst that can be inferred from Petitioner?s complaints, assuming each of them were true and accurate depictions of the working conditions at the Clermont store, is that Mr. Northrop and Mr. Doralus were tough and demanding task- masters. What cannot be inferred is that any of their actions were the result of discrimination against Petitioner based on his religious faith, or retaliation for some protected activity. Doralus?s Alleged Statement When Petitioner made his July 1, 2011, request to have three consecutive Sundays off for “religious functions” -- a request that was approved -- Petitioner testified that he advised Mr. Doralus that he fasted on Sundays. In his Petition for Relief, Petitioner alleged that when so advised, Mr. Doralus “responded with a stray remark that „God did not tell us to starve to death.?” By the time Petitioner testified at the hearing, Petitioner?s description of Mr. Doralus?s reaction escalated to his laughing in Petitioner?s face as he uttered the phrase. Mr. Doralus denied having ever uttered the statement attributed to him by Petitioner. He denied having any knowledge of or interest in Petitioner?s religious faith. Even if the statement was made, it was directed towards a practice, rather than a particular religion. Fasting is performed, to one extent or another, by adherents of many of the world?s major religions. A commentary on the practice of fasting does not, in and of itself, constitute the sort of direct and blatant remark that would constitute evidence of intent to discriminate against a person on the basis of his or her religion. Furthermore, it is clear, from Petitioner?s own description, that the alleged remark was, at most, an offhand and isolated remark. It is not sufficient evidence upon which to base a finding that Petitioner?s religious faith played any role in Respondent?s employment decision to terminate Petitioner, or take any other action towards him. It is significant, in determining whether Mr. Doralus made the statement attributed to him, that no contemporaneous document among those authored by Petitioner during and immediately after his employment mentions the alleged statement. In his October 12, 2011, letter to Respondent?s CEO (discussed below), Petitioner set forth in detail a litany of Mr. Doralus?s allegedly abusive acts. Even then, when he was “able to send without any fear because I am no longer working there,” Petitioner offered no suggestion of Mr. Doralus having uttered the statement that “God did not tell us to starve to death,” nor did he suggest in any way that Mr. Doralus otherwise knew of or acted on Petitioner?s religious faith. There is not sufficient evidence upon which to base a finding that Mr. Doralus ever made any statement commenting upon, indicating knowledge of, or taking action based on Petitioner?s religion. Disciplinary Actions Respondent has a policy of progressive discipline that calls for an employee to receive a verbal warning for a first incident of unsuitable conduct, followed by a written warning for a second incident, and more severe discipline, including termination, for subsequent incidents. On May 17, 2011, Mr. Northrop was approached by a customer complaining of Petitioner?s behavior towards her in the store. The customer had shopped for and selected a pair of shoes. She took the shoes and continued shopping, intending to pay for her purchases at one time. She completed her shopping, and paid for her merchandise at the Sephora cosmetics shop located near the front of the store. The Sephora shop was not visible from the shoe department. After paying for her merchandise, she was confronted by Petitioner and asked to produce her store receipt for his examination. Although Petitioner made it clear that he wanted the receipt to confirm credit for his commission, the customer was offended and upset by the incident. Soon thereafter, Mr. Northrop discussed the incident with Petitioner, and provided him with a verbal warning that he was not to approach customers asking to see their receipts. In late July, 2011, Mr. Doralus was approached by a customer who complained that Petitioner followed her from the shoe department to the children?s wear department and asked her to show him the store receipt for her shoe purchase. He testified that the customer was upset, and that she felt harassed and uncomfortable, as though she was being accused of stealing. Mr. Doralus spoke with Petitioner about the incident, and sent him home for the rest of the day. When Petitioner returned to work, Mr. Doralus discussed the matter with him, relying on handwritten notes that he had prepared, and advised him that his conduct was not acceptable. Mr. Doralus prepared a draft written policy violation warning, which he provided to Mr. Northrop on or about August 2, 2011. Mr. Northrop made a minor change to the warning, and returned it to Mr. Doralus for finalization. In accordance with the store?s policy on progressive discipline, the memorandum was to be placed in Petitioner?s file as a written notice of the incident. Although the final warning was not signed until August 29, 2011, the evidence demonstrates that it had been discussed with Petitioner and finalized prior to that date. The August 28, 2011 Incident On the morning of August 29, 2011, Mr. Northrop arrived to open the store at approximately 10:00 a.m. A customer, Junior Hernandez, was waiting at the front door, angry and upset. Mr. Northrop invited Mr. Hernandez inside. Mr. Northrop was advised that on the afternoon of August 28, 2011, Mr. Hernandez and his wife purchased shoes, along with other items, and left the store. Petitioner followed them from the store, and approached them as they stood talking with family outside. Petitioner asked to see their store receipt, and told the customers that he wanted to verify credit for his commission on the sale. Mr. Hernandez was very agitated throughout his conversation with Mr. Northrop, and Mr. Northrop understood Mr. Hernandez to have been embarrassed and made to feel like a shoplifter as a result of Petitioner?s actions. At the hearing, Petitioner painted a very different picture of his encounter with Mr. and Mrs. Hernandez. Petitioner testified that Mr. Hernandez tried to use his daughter?s JC Penney associate card to receive a discount for his shoe purchase. Petitioner would not allow him to do so, which caused Mr. Hernandez to become angry. Rather than wait for a supervisor to resolve the matter, Mr. Hernandez called his daughter, who came to the store and completed the transaction with another staff person. Later, Petitioner claimed to have been standing outside of the store while on break when Mr. Hernandez and his wife came out. He testified that he asked the family if they found everything OK, and they said yes. He further testified that Mrs. Hernandez removed an item from her bag because she wanted to show Petitioner something she had purchased that she had not intended to buy when she went into the store. Petitioner testified that they “were all smiles.” To get an accurate understanding of the incident, Mr. Northrop retrieved the front door surveillance video for the approximate time of the incident identified by Mr. Hernandez. The video showed Mr. and Mrs. Hernandez leaving the store and joining other family members outside. After about one minute, Petitioner is seen walking out of the store, approaching the Hernandez family, and engaging them in conversation. Mr. Hernandez started to walk away, but turned back and spoke to Petitioner. Petitioner is then seen returning to the store. Petitioner?s description of the event is not consistent with the surveillance video of the encounter, and is not credited. The surveillance video is entirely consistent with Mr. Northrop?s understanding, as related to him by Mr. Hernandez, that Petitioner followed the couple from the store and approached them, asking to see their store receipt, as they stood with family on the sidewalk outside of the store. The Decision to Terminate Petitioner Mr. Northrop spoke with Petitioner about the August 28, 2011, incident on Petitioner?s next day at work. He testified that Petitioner admitted to asking for the store receipt, indicated that Mr. Hernandez got mad, and that he apologized to Mr. Hernandez before reentering the store. Mr. Northrop did not recall any mention of Mr. Hernandez?s attempted use of his daughter?s employee discount card. Mr. Northrop reported the August 28, 2011, incident to corporate headquarters. As a result of the repeated instances in which Petitioner approached customers contrary to store policy, and Petitioner?s disregard for the multiple warnings against such conduct, Mr. Northrop decided to terminate Petitioner from employment. The decision was made and memorialized on September 3, 2011. On September 6, 2011, Mr. Northrop, Mr. Doralus, and Petitioner met at the Clermont store, at which time Petitioner was terminated. Mr. Doralus walked with Petitioner out of the store. Petitioner testified that he was “escorted” from the store, while Mr. Doralus testified that he merely walked out with Petitioner. The circumstances surrounding Petitioner?s departure have no bearing on this matter. Petitioner further testified that he waited outside on September 6, 2011, until the store closed, at which time he asked Mr. Northrop for copies of his pay stubs. Petitioner testified that Mr. Northrop said he would mail them to Petitioner, but that he never did. Mr. Northrop had no recollection of the conversation, but testified that if he said he would mail the stubs, it must have merely slipped his mind. The circumstances surrounding the pay stubs have no bearing on this matter. Mr. Northrop testified that his decision to terminate Petitioner was based solely on what he considered to be repeated breaches of store policy in the face of multiple warnings. He testified that he did not initiate or take any action based on Petitioner?s religion, and that he did not know Petitioner was of the Hindu faith. Petitioner testified that Mr. Northrop never disparaged his religion. There is nothing in the record of this proceeding prior to the December 14, 2011, Charge of Discrimination from which Petitioner?s faith could be inferred. His requests to “attend church” and to take care of “religious functions” provide no indication of Petitioner?s faith except in the most general terms. Mr. Northrop?s testimony as to the lack of religious motivation for his decision to terminate Petitioner was credible, clear, and convincing, and is accepted by the undersigned. Petitioner?s Post-termination Letter On or about October 12, 2011, after having been terminated by Mr. Northrop, Petitioner sent a three-page letter to Mike Ulman, Respondent?s CEO. In his letter, Petitioner went into great detail regarding the long list of slights, threats, and unfair acts to which he had allegedly been subjected. However, what is missing is even the slightest hint that any of the issues complained of were the result of religious discrimination. In addition, despite lengthy discussions of Mr. Doralus?s unfair and abusive acts towards Petitioner and others in the shoe department, there is no suggestion of Mr. Doralus having uttered the statement that “God did not tell us to starve to death.” Petitioner closed his letter with the following: I sincerely hope that you can get to the bottom of this so that hard working employees can be treated fairly and have the comfortable feeling of JC Penney and not Dillards that Jimmy and Ken Northrop want to implement. They both thrive in driving fear into employees. I think you can guess what my next step will be. The only conclusion to be drawn from Petitioner?s letter, including the final paragraph, is that Petitioner believed that Mr. Northrop and Mr. Doralus treated all “hard working employees” with an equal degree of harshness and disdain unbefitting the JC Penney corporate image. Petitioner?s cryptic final comment was not explained. Comparators There was no evidence of other JC Penney employees who were in “comparable” circumstances, but who were treated differently than Petitioner. There was no evidence that any other JC Penney employees ever approached customers demanding to see their store receipts. Thus, there is no indication that persons who were not members of Petitioner?s protected class were treated differently under similar circumstances. Petitioner testified that Mr. Doralus “forced people to work when they didn?t want to.” Scheduling conflicts were not frequent, but were generally resolved, either by management or by the employees, who were authorized to make shift changes among themselves. Shift changes did not concern management, as long as the shifts were covered. However, as to whether such scheduling issues were “discrimination,” Petitioner admitted that scheduling mistakes were done to “others in the shoe department as well.” For example, on or about July 4, 2011, Chelsea Hunt requested a two-week vacation. A mistake in the schedule had her working on one or more of those days. When notified, management distributed her hours to the other employees in the department, and the issue was resolved. As another example identified by Petitioner, one of the employees in the department, who was Russian, took English classes on Saturdays. Mr. Doralus occasionally assigned her to work on Saturdays. The scheduling conflicts were resolved amongst the employees. In short, the scheduling problems that Petitioner complained about were not unique to him, and there is no indication of any kind that persons who were not members of Petitioner?s protected class were treated differently under similar circumstances. Ultimate Findings of Fact In this case, Mr. Northrop?s decision to take disciplinary action against Petitioner was based entirely on Petitioner?s repeated instances of approaching customers and demanding to see their store receipts, actions that are inherently intimidating, accusatory, and insulting. The fact that Petitioner had been warned not to do so, both verbally and in writing, was sufficient to warrant Mr. Northrop?s, and thereby Respondent?s, decision to terminate Petitioner?s employment with Respondent. There was no competent, substantial evidence adduced at the hearing that any persons who were not members of the Petitioner?s protected class, i.e., Hindu, were treated differently from Petitioner, or were not subject to similar adverse employment actions under similar circumstances. There was not a scintilla of evidence introduced at the hearing that Petitioner?s religious faith had anything to do with his being terminated by Respondent, and it is expressly found that his religious beliefs formed no basis for Petitioner?s termination.
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 finding that Respondent, JC Penney, did not commit any unlawful employment practice as to Petitioner, Richard Singh, and dismissing the Petition for Relief filed in FCHR No. 2012-00865. DONE AND ENTERED this 15th day of August, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 15th day of August, 2012.
