The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that Mr. Duverglas is a male and Black and that his national origin is Haitian. No dispute exists that he is a member of the protected class as it relates to discrimination. No dispute exists that, at all times material hereto, the City was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Mr. Duverglas began his employment with the City in 1996 as a Park Ranger. An inference is drawn and a finding is made that Mr. Duverglas wore a uniform type of clothing for his position. In 2002, some employees complained, among other things, that the vehicles that Mr. Duverglas drove and in which he rode often were left reeking of urine. On December 17, 2002, a counseling session was held with Mr. Duverglas by his supervisor, Kelton Wayns, regarding, among other things, Mr. Duverglas’ personal hygiene and cleanliness of vehicles. In 2003, a complaint was received by Mr. Wyans regarding Mr. Duverglas urinating in a drain on the floor in a bathroom, instead of a urinal. Mr. Wyans investigated the complaint, and the investigative report was reviewed by the Park Ranger Supervisor and Foreman, Earnest Jones. Mr. Jones concluded that the allegation could not be substantiated, but he did counsel Mr. Duverglas that, as an employee of the City, he (Mr. Duverglas) must conduct himself professionally, at all times, and that any unsanitary behavior would not be tolerated. Performance evaluations of Mr. Duvergals were conducted. The categories for the rating of the evaluations were unsatisfactory, marginal, satisfactory, above satisfactory, and outstanding. At the review ending date of April 29, 2001, he received a satisfactory rating; and at the review ending dates of October 29, 2001, October 27, 2002, and October 27, 2003, he received an above satisfactory rating. In February 2004, due to workforce reductions, Mr. Duverglas was bumped and reassigned to the Grounds Maintenance Division as an Apprentice Maintenance Worker. In that position, Mr. Duverglas was assigned to a roving-crew of three to four workers who picked-up litter in a quadrant of the City. An inference is drawn and a finding is made that he wore a uniform type of clothing for his position. Also, around November 2004, Mr. Duverglas was hired as a part-time Park Ranger. Any problems, regarding Mr. Duverglas in this position, were directly dealt with by Mr. Jones. On December 9, 2004, Mr. Duverglas, as a maintenance worker, had a problem arriving at work timely. On December 15, 2004, he was given a letter of reprimand by his supervisor, John Neal, for arriving to work late and for failing to call-in regarding his tardiness. Additionally, the reprimand indicated that future occurrences could result in more severe disciplinary action up to and including dismissal. In January 2005, Mr. Neal, advised Mr. Duverglas that he was spending too much time on his (Mr. Duverglas’) cell phone. At that time, Mr. Duverglas informed Mr. Neal that a co- worker, L. C. Orr, had made offensive comments about Haitians. Mr. Neal had no knowledge of Mr. Orr’s alleged comments before being informed of them by Mr. Duverglas. Mr. Orr was aware of Mr. Duverglas’ Haitian ancestry. However, Mr. Neal was not until he was informed of Mr. Orr’s alleged comments. After that meeting and also in January 2005, Mr. Duvergals made a complaint with the City’s Office of Professional Standards (OPS) against Mr. Orr. Mr. Duverglas complained that Mr. Orr had made offensive comments about Haitians and that the offensive comments had contributed to a hostile work environment. After making the complaint with OPS, Mr. Duverglas was counseled by Mr. Neal regarding his (Mr. Duverglas’) poor work performance. At that time, Mr. Duverglas informed Mr. Neal that he had made a complaint against Mr. Orr with OPS. Mr. Neal had no knowledge of the OPS complaint before being informed of it by Mr. Duvergals. Mr. Duvergals also complained to OPS that Mr. Neal had retaliated against him when Mr. Neal met with him to counsel him about his performance deficiencies after his (Mr. Duverglas’) OPS complaint. Mr. Duverglas informed Mr. Neal, during the meeting, that he (Mr. Duverglas) had made a complaint to OPS against Mr. Orr regarding Mr. Orr’s derogatory comments about Haitians. Mr. Neal was not aware of Mr. Duverglas’ complaint against Mr. Orr until Mr. Duverglas informed him (Mr. Neal) of it. OPS investigated the complaint. OPS was unable to question Mr. Orr because he had retired from the City. Following an investigation, OPS determined that the allegations were unfounded and without merit. During his work as a maintenance worker and his part- time work as a Park Ranger, complaints regarding Mr. Duverglas’ personal hygiene occurred in both positions. Complaints were made regarding his clothing and body having the odor of urine and his trousers being wet in the front, and regarding the odor of urine being left in vehicles and lingering in the Park’s office. Mr. Duverglas was counseled on several occasions regarding these issues and notified that, if the problems continued, stronger action, than counseling, would be taken to address the problems. When Mr. Duverglas was a part-time Park Ranger, only one Park Ranger, Alan Brown, did not complain about Mr. Duverglas smelling of urine, wetting the front of his trousers, or leaving the smell of urine in vehicles. The evidence demonstrates that Mr. Jones, Mr. Duverglas’ supervisor as a Park Ranger, was aware of Mr. Duverglas’ Haitian ancestry. The evidence fails to demonstrate that any of Mr. Jones’ actions were taken because of Mr. Duverglas’ Haitian ancestry. In March 2005, Mr. Duverglas, as a maintenance worker, was sent by the City for a Fit-For-Duty evaluation, which was a medical evaluation to determine his fitness for duty. On March 22, 2005, a Fit-For-Duty evaluation was performed. The report by the examining physician indicates, among other things, that a prior evaluation was performed on March 11, 2005, and Mr. Duverglas was found fit for duty; that another evaluation was requested due to continued concerns regarding his “cleanliness” at work; that a concern existed as to whether he was suffering from incontinence; that he refused to allow the physician to perform an abdominal and genital exam; that his personal physician wrote a note to the examining physician that Mr. Duverglas did not suffer from incontinence and was fit to return to work with no restrictions; and that, based upon the representations by Mr. Duverglas’ personal physician, the examining physician had no choice but to find Mr. Duverglas fit for duty and clear him to return to work. Mr. Duverglas denied, and continues to deny, that he suffered or suffers from a medical condition, i.e., incontinence. The evidence is insufficient to demonstrate that Mr. Duverglas suffered or suffers from incontinence. The evidence demonstrates that Mr. Duverglas was fit- for-duty. In April 2005, Teresa “Terry” Reynard, Assistant Director of Parks and Recreation, who had the responsibility for park maintenance, transferred Mr. Duverglas, in his position as a maintenance worker, from one location to another location, Carter Park. Ms. Reynard’s intent was to accommodate what she perceived to be a problem with Mr. Duverglas’ personal hygiene by placing him in a park, Carter Park, in which several restrooms were available and accessible. However, the complaints continued at both of Mr. Duverglas’ jobs with the City. Mr. Duverglas’ supervisors counseled him on several occasions regarding his hygiene, the smell of urine, and trousers being wet in the front. At one point, Mr. Duverglas, as a maintenance worker, was notified that he should bring a change of clothing to work in an effort to eliminate the odor and smell of urine. Mr. Duverglas admits that he may have urinated on himself maybe once or twice but nothing extraordinary. Also, complaints were made regarding Mr. Duverglas’ excessive cell phone use, instead of working, inadequately performing his work, and unauthorized breaks. Mr. Duverglas admits that he was disciplined for excessive cell use. Mr. Duverglas admits that, on April 14, 2005, he was issued a reprimand for arriving at work late and that was his second violation in six months. Further, he admits that he was notified that the continuation of such conduct could be a basis for termination. On June 13, 2005, Mr. Duverglas was issued a letter of reprimand by Ms. Reynard for lack of productivity. Furthermore, the letter of reprimand notified Mr. Duverglas that his failure to be productive in his work could result in further disciplinary action including termination. On June 15, 2005, Mr. Duverglas was again issued a letter of reprimand by Ms. Reynard for lack of productivity. The letter of reprimand indicated, among other things, that Mr. Duverglas had violated the following General Employees’ Work Rules: Minor Rule 3 – Failure to observe department work schedules (starting time, quitting time, and meal periods). Minor Rule 6: - Unsatisfactory work performance, inefficiency. Minor Rule 7 – Loafing or other abuse of time during assigned working hours. Major Rule 6 – Leaving City premises during working hours without permission of supervisor. Further, the letter of reprimand notified Mr. Duverglas that, among other things, “future occurrences of the same or similar nature will result in more severe disciplinary action up to and including dismissal.” Mr. Duverglas refused to sign the letter of reprimand, but was provided a copy of it. On June 22, 2005, Ms. Reynard issued Mr. Duverglas an “Informational Letter” regarding his personal hygiene, i.e., urinating in his trousers. The Informational Letter provided, among other things, that, despite prior conversations and counseling, he (Mr. Duverglas) continued to have the personal hygiene problems; that his situation was a serious health risk; that, if he soiled his uniform in the future, he would be asked to change his uniform, and, if he failed to have a change of uniform with him at the time, he would be asked to leave work on his own time and not return until he had changed his uniform; and that, if his problem was caused by a medical condition and he wished to request an accommodation, he should do so. On June 24, 2005, Mr. Duverglas was issued a letter of counseling by Ms. Reynard regarding his (Mr. Duverglas’) personal hygiene. The letter of counseling provided, among other things, that Mr. Duverglas had been spoken to and counseled in the past months regarding his personal hygiene, but that the problem had persisted; and that Ms. Reynard had observed, the day before, that Mr. Duverglas’ trousers were wet. Further, the letter of counseling reminded Mr. Duverglas what he was directed to do if he wet his trousers. Moreover, the letter of counseling provided that future occurrences would result in disciplinary action, including dismissal. Mr. Duverglas contends that he was not protected from a threat of violence made by a co-worker Wilmar “Slim” Alexander. On June 29, 2005, Mr. Alexander threatened physical violence against Mr. Duverglas if Mr. Duverglas approached him (Mr. Alexander) in an aggressive manner. On July 5, 2005, Ms. Reynard issued a letter of reprimand against Mr. Alexander for “an inappropriate remark to a coworker.” Further, the letter of reprimand provided, among other things, that the behavior exemplified by Mr. Alexander would not be tolerated and that future occurrences would result in severe disciplinary action including dismissal. The evidence failed to demonstrate that Mr. Alexander exhibited any further violent behavior towards Mr. Duverglas. The evidence failed to demonstrate that the letter of reprimand was not the appropriate punishment for Mr. Alexander’s behavior. The evidence is insufficient to demonstrate that Mr. Alexander exhibited any violent behavior towards Mr. Duvergals prior to Mr. Alexander’s threat. The evidence failed to demonstrate that the City failed to protect Mr. Duverglas from the threat made by Mr. Alexander. On June 30, 2005, Mr. Duverglas was placed on administrative leave with pay pending the City’s investigation that he “may have violated City rules and regulations.” On July 27, 2005, after notice, an informational meeting was held with Mr. Duverglas. Based on the informational meeting, on July 28, 2005, Ms. Reynard issued a written recommendation to Phil Thornburg, Director of the City, regarding Mr. Duverglas. The recommendation provided, among other things, that the persons in attendance at the informational meeting included Ms. Reynard, Mr. Duverglas, and a union representative; that the meeting was held to address several issues including Mr. Duverglas’ personal hygiene, complaints regarding the smell of urine, his performance deficiencies and general loafing, and the report of his urinating in public; and that Mr. Duverglas denied all allegations. Further, the recommendation determined that Mr. Duverglas’ denials, explanations and responses were “incredible and unworthy of belief” and that he had engaged in severe conduct. Ms. Reynard recommended the termination of Mr. Duverglas. Around May 2005, a self-employed painter, Samuel Mitchell, was performing contract work at Carter Park. Mr. Mitchell observed whom he recognized as Mr. Duverglas leaning against a concrete pole with his (Mr. Duverglas’) trousers around his (Mr. Duverglas’) knees, appearing to be urinating, but Mr. Mitchell did not observe a stream of liquid. The area in which Mr. Duverglas was observed was near a residential area, was an area that the general public frequents, and was an area used by school children. Mr. Mitchell perceived the conduct to be inappropriate. Mr. Mitchell spoke with Mr. Duverglas, and Mr. Duverglas vehemently denied that he was the person whom Mr. Mitchell observed. Mr. Mitchell did not wish to report what he observed to the City, but wanted Mr. Duverglas to change the behavior that he (Mr. Mitchell) observed; however, because of the way Mr. Duverglas reacted to his (Mr. Mitchell’s) talking with him (Mr. Duverglas), Mr. Mitchell reported the incident to the City. Mr. Mitchell testified at hearing, and his testimony is found to be credible. Mr. Duverglas denied that he was the person observed by Mr. Mitchell. Mr. Mitchell’s testimony is found to be more credible than Mr. Duverglas’ testimony. Also, at the time of the incident, another person, who was a non-employee of the City, reported the same observation to the City. That person did not testify at hearing. A finding is made that Mr. Duverglas was the person observed by Mr. Mitchell and was the person engaged in the conduct observed by Mr. Mitchell. Further, even though Mr. Mitchell did not observe a stream of liquid, an inference is drawn and a finding is made that, based upon the prior conduct, actions, and behavior of Mr. Duverglas, regarding his personal hygiene and the wetting of the front of his trousers, Mr. Duverglas was urinating. Moreover, a finding is made that the City was reasonable in making a determination that Mr. Duverglas was urinating. The evidence demonstrated that Ms. Reynard was aware of Mr. Duverglas’ Haitian descent. However, the evidence failed to demonstrate that any of her actions were motivated by Mr. Duverglas’ Haitian descent. Mr. Thornburg had the final authority in disciplinary matters regarding the Parks and Recreation Department. By letter dated August 5, 2005, Mr. Thornburg notified Mr. Duverglas that he (Mr. Duverglas) was being suspended, without pay, for 20 days, effectively immediately, and was being dismissed from the City as an Apprentice Maintenance Worker, effective September 2, 2005. The letter was hand-delivered to Mr. Duverglas. The letter provided, among other things, that the action was being taken for continued deficiencies in performance and conduct, setting forth the deficiencies, which were: Despite prior counseling, a transfer to another facility with better access to bathroom facilities and other accommodations, you continued to disregard your personal hygiene and appearance as a representative of the City by urinating in your trousers in public and disregard of proper safety practices and precautions. Your failure to conform your behavior to civilized standards has been the subject of complaints by your co-workers over having to work in offensive, unsanitary and unhealthy conditions and cannot be tolerated. You continued to demonstrate deficiencies in performance of assigned duties by taking unauthorized breaks, excessive use of your personal cell phone in the field during working hours and general loafing. Employees of two City contractors have witnessed you urinating in a public place although restroom facilities were available. City Ordinance 16-75(a)(5) – Public Indecency. Additionally, the letter set forth General Employees’ Work Rules that Mr. Duverglas violated, which were: Major Rule 1 – Any act which might endanger the safety or lives of other [sic]. Major Rule 2 – Refusal to perform work properly assigned by a supervisor. Major Rule 3 – Willful, deliberate or repeated violation of City safety rules, including instances where there is evidence of willful disregard of proper safety practices and precautions while operating City equipment. Major Rule 7 – Deliberately abusing [sic] destroying, damaging or defacing City property, tools, equipment or the property of others on City premises. Major Rule 21 – Neglect of duty. Major Rule 24 – Conduct, either while on or off duty, which tends to reflect discredit upon the City. Major Rule 25 – Employee harassment, abusive conduct towards an employee or a member of the general public. Major Rule 26 – Violation of City Charter, ordinances, or administrative rules and regulations, specifically City Ordinance 16- 75(a)(5) – Public Indecency. Furthermore, the letter provided that Mr. Duverglas had the opportunity to request a hearing, setting forth the procedure for such a request, and indicated the consequences for his failure to request a hearing. City Ordinance 16-75(a)(5) – Public Indecency provides in pertinent part: Offense. It shall be unlawful for any person to commit public indecency. A person commits public indecency when he performs any of the following acts in a public place: * * * (5) Urinates . . . in other than a toilet or washroom . . . . Definitions. “Public place,” for purposes of this section, means any place where the conduct may reasonably be expected to be viewed by others. Penalties. Any person convicted of violating this section shall be deemed guilty of the offense of public decency and upon conviction shall be punished as provided in section 1-6 of this Code. Section 1-6, titled “Penalty for violations,” provides in pertinent part: In this section “violation of this Code” means: Doing an act that is prohibited or made or declared unlawful or an offense by ordinance or by rule or regulation authorized by ordinance . . . . * * * Except as otherwise provided herein, a person convicted of a violation of this Code, shall be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment for a term not to exceed sixty (60) days or by both such fine and imprisonment. . . . The imposition of a penalty does not prevent revocation or suspension of a license, permit or franchise or the imposition of civil fines, civil penalties or administrative sanctions. Administrative sanctions could be imposed for a violation of City Ordinance Section 16-75(5). Mr. Duverglas admits that a violation of City Ordinance Section 16-75(5) is just cause for suspension and dismissal. The ground of public indecency was sufficient, in and of itself, to dismiss Mr. Duverglas from employment. The evidence demonstrated that he committed the act of public indecency as defined in City Ordinance Section 16-75(5). The evidence fails to demonstrate that Mr. Thornburg had any knowledge of Mr. Duverglas’ Haitian ancestry prior to the disciplinary action. Mr. Duverglas requested a hearing from the City. The hearing was held on September 6, 2005. By letter dated September 7, 2005, the City Manager, George Gretsas, notified Mr. Duverglas that, after a review of all the available and relevant information, including that presented at the hearing, the suspension and dismissal was upheld. A grievance under the union contract was filed. On November 21, 2005, the City’s Employee Relations Director issued a “Fourth Step Response Teamster Grievance,” providing, among other things, that a hearing was held on November 9, 2005, in accordance with the grievance, that no evidence was presented to cause the City to modify its decision, and that, therefore, the grievance was denied. An inference is drawn and a finding is made that an arbitration hearing was held on or about May 18, 2006, regarding Mr. Duverglas’ suspension and dismissal. The evidence was insufficient to demonstrate the outcome of the arbitration proceedings, but an inference is drawn and a finding is made that the arbitration decision was not favorable to Mr. Duverglas. On July 24, 2006, Mr. Duverglas filed a Charge of Discrimination with the Broward County Civil Rights Division and the EEOC against the City alleging that the City discriminated against him on the basis of national origin (Haitian) and retaliation in violation of the Florida Civil Rights Act of 1992, as amended. The Broward County Civil Rights Division waived investigation of the charge. The matter was investigated by the FCHR. On January 19, 2007, the FCHR issued a Determination of No Cause and a Notice of Determination of No Cause. Mr. Duverglas timely filed a Petition for Relief with the FCHR against the City.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Donald Duverglas against the City of Fort Lauderdale. DONE AND ENTERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2008.
The Issue Did Respondent, Universal City Development Partners (Universal), discharge Petitioner, Kevin D. Fischer, because of his age? Did Respondent, Universal City Development Partners (Universal), discharge Petitioner, Kevin D. Fischer, because of a handicap or a perception that he had a handicap?
Findings Of Fact Universal operates a theme park in Orlando, Florida. Universal employed Mr. Fischer as an Industrial Automation Technician (Electrical) for approximately 20 years. From May 27, 2011, until June 15, 2011, Mr. Fischer was on approved medical leave. After that, he returned to work with no activity restrictions. Mr. Fischer's date of birth is July 2, 1960. Universal discharged Mr. Fischer on July 11, 2011. Universal discharged Mr. Fischer for failure to properly clean a bilge pump on June 26, 2011, and for falsely certifying that he had cleaned the pump. Cleaning the pump was a preventative maintenance procedure that Mr. Fischer had performed for most of his career with Universal. The pumps are in the bilge or bottom of the boats used in Universal's Jaws ride. Each boat carries approximately 48 passengers around an artificial island in a man-made lagoon. The ride simulates the experience passengers might have boating in the waters depicted in the movies "Jaws" while the shark swam the waters. The boats ride on rails and are moved about by hydraulic arms. The bilge pumps are important protection for the $8,500.00, engines in the boats. If the pumps fail, water accumulates in the bilge and can cause very costly damage to the engines. On June 26, 2011, Mr. Fischer worked from 6:00 a.m. until 2:30 p.m. His duties that day included cleaning and servicing three bilge pumps. Mr. Fischer completed Universal's standard preventive maintenance form confirming he had cleaned and serviced the pumps. Mr. Christopher Cole, a former supervisor, examined the pumps after Mr. Fischer's shift ended. They had not been properly cleaned. The float switches were caked with sludge. If properly cleaned, they would not have been. The float switch is critical to operation of the pump. It turns the pump on when water reaches an unacceptable level in the bilge. Ricky Stienker, Mr. Fischer's supervisor at the time, terminated Mr. Fischer on July 11, 2011, for failure to properly clean the pumps and falsely representing that he had cleaned them. In 2008 and 2009, Mr. Fischer's annual reviews rated him as less effective. Then in 2010, the review rated Mr. Fischer as highly valued. But during his career, Mr. Fischer had received eight different counselings for poor performance. Mr. Fischer used Universal's appeal process to contest his discharge. David Winslow, senior vice president of the Technical Services Division, denied his appeal. There is no credible evidence of offenses committed by other employees of any age or physical condition that were similar to Mr. Fischer's failure to properly clean the pumps and his misrepresentation that he had cleaned them. Universal's employee handbook includes a clear policy requiring employees to be honest and trustworthy in all of their business activities and relationships. It also, clearly states that acts of dishonesty are grounds for immediate discharge. Mr. Fischer received the employee handbook when he began employment with Universal. Mr. Fischer has diabetes. His previous supervisor, Mr. Cole, knew this because he had observed Mr. Fischer taking medication that Mr. Cole also took. Mr. Cole also has diabetes and has had it for approximately 25 years. Mr. Cole did not perceive having diabetes as a handicap. There is no evidence that Mr. Stienker, who made the decision to discharge Mr. Fischer, knew Mr. Fischer had diabetes. There is no persuasive, credible evidence that Mr. Fischer had a handicap or that his supervisors or any management employee of Universal perceived Mr. Fischer as having a handicap. Consequently, there is no persuasive, credible evidence that a handicap or perception of handicap was a factor in Universal's discharge of Mr. Fischer. There is no evidence establishing who filled Mr. Fischer's position or the age of that person. There is no persuasive, credible evidence that Mr. Fischer's age was a factor in Universal's decision to discharge him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Fischer's Petition for Relief. DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 17th day of August, 2012.
The Issue Whether Petitioner was wrongfully terminated from his position at the City because of his physical handicap, diabetes, in violation of Section 760.10(1(a), Florida Statutes. Whether Petitioner could be reasonably accommodated to perform the essential functions of his duties as an Engineer I position with the City Sewer Department.
Findings Of Fact Petitioner is a 40 year old male. Petitioner was diagnosed with Diabetes Mellitus in 1979. This is a Type I Classification of diabetes which required that Petitioner must take insulin from its onset. Petitioner is further classified as a "brittle" diabetic, which is a type that is difficult to control. Additionally, Petitioner has hypothyroidism (underactive thyroid) and an adrenal insufficiency. This combination is rare. Petitioner is a handicapped person. Petitioner worked steadily at a variety of jobs in the engineering construction field from 1979 to the time he was hired by the City of Tampa on December 12, 1990. Petitioner's diabetic condition did not place any restrictions on his ability to fulfill his job responsibilities at any of his places of employment between 1979 and December 12, 1990. Petitioner was hired by the City of Tampa, an employer, as an Engineer Tech 2 on December 12, 1990. As an Engineer Tech 2, Petitioner was responsible for monitoring the electrical and instrumentation construction at a sanitary sewage treatment plant, and for sewage pumping stations throughout the city. He was essentially an inspector. Prior to accepting employment with the City, Petitioner talked with his prospective supervisors, Jack Kulik and Jeff Taylor, about his diabetic condition. During the period Petitioner was employed as an Engineer Tech 2, he had some insulin reactions on the job in the office. Those reactions were caused by a lowering of Petitioner's blood sugar level. When these reactions occurred, office personnel would assist Petitioner by encouraging him to eat a food product containing sugar. The episodes would take 15-30 minutes to subside. During the period Petitioner was employed as an Engineer Tech 2, he drove a City car alone while at work, and drove his personal car to and from work. When at a construction site, Petitioner went near high voltage panels, into manholes, and also into open pits with open wells on a regular basis. The supervisor, Jack Kulik, did not have any concerns about Petitioner's ability to drive a car. Petitioner received a good performance evaluation for his work as an Engineer Tech 2 on June 12, 1990. He was rated as either "Excellent" or "Fully meets Expectations" in all 13 rating categories. Petitioner's diabetes did not prevent him from performing the essential functions of his job. Petitioner was promoted to an Engineer I position in August 1990. From August 1990 through early February 1991, Petitioner worked half- days at the Hookers Point facility, and then commuted to downtown Tampa to work a half-day. The Engineer I position was primarily an office job, with 80% of the responsibilities in-office and 20% at various job sites. During the period between August 1990 and February 1991, Petitioner had several insulin reactions in the office of the Engineer I position. His new supervisor Korchak did not recognize the symptoms of Petitioner's reaction. He characterized Petitioner as being "asleep" on the job on three occasions, and was impaired on numerous other occasions. Due to his physical handicap, Korchak lost confidence in Petitioner's ability as an engineer. Petitioner ate food to counteract the reactions, which took 20 to 30 minutes to subside. In August 1990, shortly after Petitioner was promoted to an Engineer I position, he was involved in an automobile accident, while driving his personal car. The accident resulted from a diabetic reaction. When he was able, Petitioner called his supervisor, Mr. Korchak, and reported the accident. Mr. Korchak relayed the information about the accident to Andy Cronberg, a deputy director, second in command of the department, who was in an office adjacent to Mr. Korchak when he received the call from Petitioner. Mr. Cronberg made a decision, at that moment, in August 1990, based solely on his conversation with Mr. Korchak, to revoke petitioner's privilege to drive a City car. The decision to revoke Petitioner's driving privileges was made in accordance with a general policy of the City, and not on individualized analysis of Petitioner's condition. The decision to restrict Petitioner's driving privileges was not communicated to Petitioner until a performance review on February 8, 1991. In addition, during this same period, Korchek began tailoring and limiting Petitioner's position to in-office functions only, based on what Korchek believed Petitioner could accomplish safely, and downgraded his evaluation when he rated him on his performance review. Prior to the implementation of the decision to restrict Petitioner's driving privileges on February 8, 1991, the City's representatives did not speak to Petitioner about his driving abilities; they did not speak or consult in any way with Petitioner's doctors; nor did they speak with Petitioner's previous supervisor with the City, Jack Kulik. The first contact the City had with Petitioner's doctor was a response to a questionnaire sent to Dr. Sumesh Chandra and, received by the City on February 27, 1991, wherein Dr. Chandra indicated that Petitioner could safely and effectively operate an automobile. The City's representative Mr. Rice indicated that Dr. Chandra's response raised more questions than it answered, and the City did not restore Petitioner's driving privileges. Neither Mr. Rice, nor any other City employee ever consulted with Dr. Chandra to clear up the confusion they had over Dr. Chandra's statement that Petitioner could safely and effectively drive a car. Petitioner is licensed to drive by the State of Florida. His license has never been revoked, either in Florida or any other state. Dr. Chandra stated that, in his opinion, Petitioner could safely and effectively operate an automobile because, "He's capable, dexterous, and coordinated. He's like any normal individual except that he is unfortunately diabetic. So for routine capacity his skills are like any other normal individual." Twenty percent of the Engineer I position required travel to various job sites. Because Petitioner was not allowed to drive an automobile on city time, and was restricted in in-office functions while performing his Engineer I position, he was not able to fulfill the essential functions of the Engineer I position. Following a request by Phil Rice of the Sewer Department, the City received a letter from Dr. Jai H. Cho, a physician on May 15, 1991, that Petitioner had seen for a short period of time. Dr. Cho's letter indicated, among other things, ". . . it is inevitable, that he will develop hypoglycemia with loss of consciousness in the future because of his concurrent illness with diabetes and adrenal insufficiency." Dr. Cho never specifically addressed the issue of whether Petitioner could safely drive an automobile or work alone at job sites, either in writing or in phone conversations with Mr. Rice. No City representatives ever discussed Petitioner's ability to drive a car or work alone on a job site with Petitioner, Dr. Chandra, Dr. Cho, Petitioner's previous supervisors with the City, or Petitioner's previous supervisors with other employers. On May 20, 1991, the City terminated Petitioner's employment. Petitioner was informed of his termination by Mr. Korchak, Mr. Hoel, and Mr. Rice. Mr. Rice told Petitioner that the reason for the termination was the City's concern about its potential liability. Following his termination, Petitioner was unemployed for nine months. Petitioner was then hired in September, 1992, by Omega Tech in Hardee County, Florida, to work at the Hardee Power Station, performing the same duties as he performed as an Engineer Tech 2 for the City of Tampa. Petitioner commutes the 68 miles each way from Tampa to Hardee County every day in his own car. At the Hardee Power Plant, Petitioner is exposed to the same conditions to which he was exposed while working for the City of Tampa. During the 13 years since Petitioner was diagnosed with diabetes, he has never injured any other person as a result of his diabetes, nor received any serious injury to himself. At the present time, the position of Engineer I with the City of Tampa has been eliminated, and has been replaced by a person holding a contractors license. If Petitioner had remained employed with the City of Tampa, he would have earned $36,294.44 from the period June 20, 1991, through September 18, 1992, exclusive of health benefits.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A Final Order be entered that Petitioner was discriminated against on the basis of his handicap when his employment was terminated; The Petitioner receive back pay and health benefits in accordance with applicable law; and The Petitioner be awarded the attorney's fees and costs incurred as a result of this action. DONE and ENTERED this 28th day of December, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39(in part), 40, 41, 42, 43 Rejected as against the greater weight of evidence: paragraph 15, 39 (Petitioners was hired by Omega Tech) Rejected as hearsay: paragraph 33 Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1,2,3,4,5,6,7,10,11(in part), 12,13,14(in part),15,17,18,19,20(in part),22(in part),23,25,26,30,31 Rejected as irrelevant or immaterial or argument: paragraphs 8,9,11(in part),14(in part), 20(Petitioner's written comment),21,24(in part),27,28,29 Rejected as hearsay: paragraphs 16,22(in part),24(in part) COPIES FURNISHED: Mark Herdman, Esquire KELLY, McKEE, HERDMAN & RAMUS, P.A. 1724 E. Seventh Avenue Tampa, Florida 323605 Margaret A. Jones, Clerk Commission On Human Relations 325 John Knox Rd. Building F Suite 240 Tallahassee, Florida 32303-4113 Mr. Kenneth C. Perry City of Tampa 306 East Jackson Street 7N Tampa, Florida 33602 Dana Baird, Esquire Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
Findings Of Fact The Respondent, Emil Danciu (Danciu), served as Mayor of the City of Boca Raton (City) from March 1987 until March 1993. During the time that Danciu served as Mayor, the Mayor was a voting member of the City Council and acted with authority equal to that of the other council members. The Boca Raton Community Development Agency (CRA) is an agency established to revitalize and redevelop the downtown area of Boca Raton. The CRA is governed by a five member board of commissioners which, as of February 4, 1991, includes the five members of the Boca Raton City Council. As Mayor, Danciu was also a member of the CRA Board of Commissioners. In April, 1992, the majority of the members of the CRA voted to accept a proposal from Crocker Mizner Park III, LTD. (Crocker) to lease and construct a department store on property located in Mizner Park which had been designated for cultural use in the community redevelopment plan. Danciu, as Mayor and as a member of the board of the CRA, objected to the proposed lease to Crocker. Danciu felt that the CRA's action to enter into the lease was in violation of Chapter 163, Florida Statutes, because the community redevelopment plan had not been modified as required by Chapter 163. Danciu went to see Robert Sweetapple, an attorney, concerning the actions to lease land to Crocker. Mr. Sweetapple agreed with Danciu's analysis. Danciu advised Mr. Sweetapple that he wanted a lawsuit filed so that the circuit court could determine the legality of the actions relating to the lease. Mr. Sweetapple agreed to represent Danciu in the matter and filed a Petition for Declaratory Judgement and Injunction against the City and the CRA in April, 1992. The suit was filed on Danciu's behalf as the Mayor of the City and as a member of the CRA. Neither the City Council nor the CRA took action by resolution, ordinance, vote, or any other means to request that Danciu file the lawsuit. On April 16, 1992, a special meeting of the CRA was held concerning Mizner Park. The CRA voted to employ legal counsel to defend the CRA against the lawsuit filed by Danciu. On April 16, 1992, a special meeting of the Boca Raton City Council was held concerning the lawsuit that had been filed by Danciu. The City Council voted to retain an attorney to represent the City in the lawsuit. Separate attorneys were hired for the CRA and for the City in the defense of the lawsuit filed by Danciu. The City and the CRA filed a Motion to Dismiss the lawsuit, challenging Danciu's authority to sue in his official capacity. After Mr. Sweetapple filed the lawsuit, he went on vacation. While he was on vacation, Danciu and the City and the CRA were able to negotiate a settlement of the lawsuit. The lawsuit was settled prior to a ruling on the Motion to Dismiss. On his return from vacation, Mr. Sweetapple drafted the settlement agreement. At the April 28, 1992 meeting of the City Council, where the settlement offer was accepted, the issue of attorney's fees was discussed. The City had incurred approximately $1,600 in fees and the CRA had incurred approximately $12,500. Mr. Crocker offered to pay the $12,500 incurred by the CRA and the $1,600 incurred by the City. His offer was accepted. On April 30, 1992, the court dismissed the lawsuit with prejudice based on the stipulation of the parties. The parties were to bear their own costs and attorney's fees. Mr. Sweetapple's legal services relating to the lawsuit was valued at $700. On October 19, 1992, Danciu filed a Quarterly Gift Disclosure, Form 9, with the Florida Department of State, reporting Mr. Sweetapple's legal services as a gift. Although Danciu did not originally intend to file such a disclosure, he made the filing after the City Attorney advised him to do so. The City has no system for registration or designation of lobbyists. In 1989 the CRA instituted an eminent domain action against James Batmasian. Mr. Sweetapple was retained as Mr. Batmasian's attorney. Mr. Sweetapple's representation of Mr. Batmasian included advancing his client's position at a meeting, and in telephone conversations, with City Council member Albert Travasos. Mr. Sweetapple also appeared before the CRA on behalf of Mr. Batmasian within the twelve months preceding the filing of the Petition for Declaratory Judgement and Injunction which is the subject of the instant Complaint. The City negotiated a settlement with Mr. Sweetapple regarding the fees to be paid him in the eminent domain suit involving Mr. Batmasian.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Emil Danciu violated Section 112.3148(4), Florida Statutes, and that a civil penalty of $1000 be imposed. DONE AND ENTERED this 15th day of November, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2641EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Rejected as unnecessary. Paragraph 3: Accepted. Paragraph 4: Accepted in substance. Paragraph 5: Accepted. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as subordinate to the facts actually found. Paragraph 8: Accepted in substance. Paragraph 9: The last sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance. Paragraph 10: Rejected as unnecessary. Paragraph 11: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 12: Accepted in substance. Paragraph 13: Rejected as subordinate to the facts actually found. Paragraphs 14-15: Accepted in substance. Paragraph 16: The first three sentences are rejected as unnecessary. The remainder is rejected as constituting argument. Paragraphs 17-19: Accepted in substance. Paragraph 20: The first two sentences are accepted in substance. The remainder is rejected as recitation of testimony. Paragraphs 21-25: Accepted in substance. Paragraphs 26-27: Rejected as constituting argument. Paragraph 28: Accepted in substance. Paragraphs 29-30: Rejected as constituting argument. Paragraph 31: Rejected as unnecessary. Paragraph 32: Accepted in substance. Paragraph 33: Rejected as unnecessary. Paragraphs 34-35: Accepted in substance. Paragraphs 36-40: Rejected as unnecessary. Paragraph 41: Rejected as constituting argument. Respondent's Proposed Findings of Fact. Respondent did not designate which portion of the proposed recommended order constituted findings of fact or conclusions of law; thus, I cannot address Respondent's findings of fact. COPIES FURNISHED: Virlindia Doss, Esquire Advocate For the Florida Commission on Ethics Alexander Building, Suite 208 Koger Executive Center Tallahassee, Florida 32399-1050 Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Jeff Brown, Esquire Sanctuary Centre, Suite D300 4800 North Federal Highway Post Office Box 3004 Boca Raton, Florida 33431-5178 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Respondent, Lori Goldston, was employed by the Petitioner, City of Clearwater, for approximately seven and one-half years as a Building Construction Inspector II. On April 13, 1994, Respondent was placed on administrative leave and on April 21, 1994, she was terminated and all pay and other benefits were terminated as of 4:00 p.m. on April 21, 1994. Specifically, Respondent was terminated for alleged violations of Rule 14, Sections 1(b), (d), (k), and (1) of the Civil Service Rules and Regulations of Respondent, to-wit: (b) Is incompetent in the performance of the specific duties of [her] position. (d) Has been careless or negligent in the care of the property of the City; or has participated in the unauthorized use thereof. Has been . . . guilty of conduct un- becoming a City employee defined as scandalous or disgraceful conduct while on or off duty where such conduct tends to embarrass the City or bring its service into public disrepute. Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given . . . by [her] superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or the public. During the week of April 4, 1994, Tom Chaplinsky received two complaints that a City vehicle was observed leaving the city limits with a magnetic sign covering the City seal. The complainants related that the driver appeared to be Respondent and that the vehicle was heading north on alternate route 19 when it was so observed. Vick Chadora, assistant central planning director, requested that Chaplinsky investigate the complaints. Chaplinsky along with Kevin Garriot, a building code analyst, initiated an investigation to check Respondent's inspection schedule and job sites for the day of April 11, 1994. Chadora and Chaplinsky reviewed Respondent's inspection schedules and job sites on April 11, 1994, and discovered that most of Respondent's inspections were completed by mid-morning. Chadora then instructed Chaplinsky to check Respondent's residence which is located north of Palm Harbor, approximately 8 to 10 miles outside of the city limits. During mid-morning on April 11, 1994, Chaplinsky parked near the end of the dead end street on which Respondent's residence is located. He saw what appeared to be her city vehicle but was unable to make a positive identification. On Tuesday, April 12, 1994, Chaplinsky again found that a majority of Respondent's inspections had been completed by mid-morning. Chaplinsky contacted her by radio at approximately 11:00 a.m., to determine her location and she replied that she was in Clearwater Beach. Chadora drove to the beach area while Chaplinsky and Garriot drove to Respondent's residence between 11:00 and 11:15 a.m. Messrs. Chaplinsky and Garriot parked at the entrance to the dead end street where Respondent resides and waited. At approximately 11:45 a.m., Chaplinsky and another staff assistant began trying to reach Respondent by radio. At approximately 12:55 p.m., Respondent answered her radio. At that time, Respondent was asked to investigate a complaint on the beach. At approximately 1:20 p.m., Messrs. Chaplinsky and Garriot observed Respondent in her city vehicle, with the City seal covered, leaving her neighborhood. They lost Respondent in traffic but later caught up with her at the site of the complaint. At that time, the City seal on her vehicle was no longer covered. On April 13, 1994, Messrs. Chaplinsky and Garriot again drove to Respondent's residence during mid-morning and waited at the entrance to her street. Respondent was observed leaving the City in the city vehicle with the City seal covered. At approximately 2:55 p.m. on April 13, 1994, with Messrs. Chaplinsky and Garriot present, Respondent was advised by Chadora that two people had complained that she was using her city vehicle with the City seal covered while leaving the city limits. Before Chadora could complete his inquiry, Respondent immediately denied that it was her. Upon Respondent's repeated and adamant denial, Chadora told her that he and Garriot has observed her leaving her residence on Tuesday, April 12 and Wednesday, April 13 in the City vehicle. Upon being confronted with that information, Respondent admitted that they had caught her in a lie and she admitted that she did leave the city limits in the city vehicle. Respondent indicated that she was trying to complete a construction project at home in order to re-finance and satisfy a balloon note which was coming due and the lender was insisting that certain renovations be completed prior to closing. During 1990, Respondent was disciplined for leaving the city limits and going to her home. At that time she was specifically advised that she should not leave the city limits to return home in the city vehicle without first obtaining permission from her supervisor. For that offense, Respondent was suspended for four days. Petitioner has a system of progressive discipline in effect which is utilized to discipline employees who engage in conduct contrary to the City's rules and regulations. An employee who violates the rules accumulates points under the disciplinary system. An employee who receives up to 60 points within a specified period (24 months), can be subjected to discharge. Respondent accumulated 140 points for the alleged infractions that she received for leaving the City limits during the days April 11-13, 1994. Petitioner also has a liberal sick leave policy which employees may avail by demonstrating need to use sick leave. Respondent did not advise Petitioner that she was suffering from any medical disability or other infirmity which would warrant the utilization of sick leave prior to her discharge. Respondent maintained that she failed to advise Petitioner of her need for sick leave -- she suffers from severe depression which is prompted by a chemical imbalance in her brain -- because she did not want other employees to know about her problems as she feared it would be common knowledge among her colleagues. Respondent attempted to show that she was being treated unfairly and more harshly than other employees had been treated for similar misconduct. Specifically, Respondent related an incident wherein an employee threw a temper tantrum during a grievance meeting, tossed a beeper against a bookcase and was generally insubordinate when he was questioned about an infraction. Petitioner explained that that employee "blew up" when he was confronted about a simple rule infraction and that employee was suspended as was Respondent when she was first disciplined for leaving the City in a vehicle without authorization in 1990. Respondent failed to show that she was treated more harshly or that she was the recipient of disparate treatment by Petitioner. Respondent demonstrated that the other employee was similarly treated when Petitioner was disciplined in 1990. Moreover, that employee was subjected to discharge when he later violated the city's rules and regulations (a drug offense-employee failed a urinalysis screen). Petitioner had no way of knowing prior to April 21, 1994, that Respondent requested or was otherwise in need of "an accommodation" due to her health in April of 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order dismissing Respondent from her position of a Building Construction Inspector II effective April 21, 1994. DONE AND ENTERED this 28th day of February 1995 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 28th day of February 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1, adopted as modified, paragraphs 2, 18, and 19, Recommended Order. Paragraph 3, rejected, unnecessary. Paragraph 4, adopted as modified, paragraph 18, Recommended Order. Paragraph 7, rejected, irrelevant. Paragraph 8, conclusionary and argument. Paragraph 11, adopted as modified, paragraph 22, Recommended Order. Respondent's Proposed Findings of Fact. Paragraph 5, rejected, contrary to the greater weight of evidence, paragraph 16, Recommended Order. Paragraph 8, rejected, irrelevant. Paragraph 11, rejected, contrary to the greater weight of evidence, paragraphs 2, 14, and 19, Recommended Order. Paragraph 13, rejected, contrary to the greater weight of evidence. Paragraphs 15 and 16, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraph 17, adopted as modified, paragraphs 17-20, Recommended Order. Paragraph 18, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraphs 19-22, rejected, irrelevant and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Robert McCormack, Esquire Prestige Professional Park 2655 McCormick Drive Clearwater, Florida 34619 Karleen DeBlaker City Clerk City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
