The Issue The issue in this case is whether the discipline imposed on Respondent, John Enrico (“Enrico”), by Petitioner, City of Cape Coral (the “City”), was appropriate.
Findings Of Fact Based upon the oral testimony and other evidence presented at final hearing, the following findings of fact were made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated thereto. Enrico is employed by the City as an instrumentation supervisor in the Water Reclamation Division of the City’s Utilities Department. He has been employed for an indeterminate number of years, but is a “director level” employee.1/ The City suspended Enrico for one week without pay pursuant to the City of Cape Coral Code of Ordinances, Article III, Division 7, entitled Discipline of Regular Employees. (Pertinent sections of the Code of Ordinances are set forth in the Conclusions of Law, below.) The alleged violation was primarily based on an email Enrico sent on June 7, 2012. The June 7 email was sent to Jeff Pearson and copied to Brian Fenske. The June 7 email states in its substantive body: Jeff and Brian, As a courtesy, I am affording both of you a small glimpse into a potential future. If you decide to discipline me regarding my communications outside of this department, please find below what is just the beginning of the resistance you will meet in public forums and otherwise. As a friend, not as a contemporary [sic], I strongly advise you both not to pursue your current course of action, as it would be embarrassing and detrimental to the cities [sic] interests. Please feel free to call me and discuss the matter. Distinct Regards, There was other information attached to the June 7 email, including some narrative by Enrico concerning his rationale for sending an earlier email, excerpts from OSHA regulations and the City Code, and other legal information about quasi-judicial matters, freedom of speech, and the International Covenant on Civil and Political Rights. It is not clear whether the additional information was supposed to be support for Enrico’s actions, or a description of the “resistance” the email recipients could expect to meet in the future if they decided to discipline Enrico. In order to better understand the June 7 email, some discussion of the background leading up to the email is necessary. Early in calendar year 2012, the City began looking at a product called Multitrode. The product was to be used within the City’s sewage system to, inter alia, control, monitor, or report data regarding usage. The system would have an impact on the equipment and services overseen by Enrico. Enrico was directed by Fenske to install the program via email dated May 18, 2012. Enrico was apparently leaving for a two-week vacation just hours after he received the email. He attempted unsuccessfully to contact his superiors to express some concerns he had about how the Multitrode was going to be implemented. Enrico felt that the system had some potential to do harm to the water reclamation system if installed or used incorrectly. He was not able to reach his superiors. Failing to reach his superiors, Enrico sent an email dated May 23, 2012, to Jody Sorrels, a civil engineer employed by the City.2/ The email was copied to Jeff Pearson, Brian Fenske, Dennis Morgan, Oliver Clark, Michael Hines, and Margaret Krym (the City Manager). Except for Krym, all of the recipients of the email were within Enrico’s chain of command in his area of employment. Krym was intentionally copied on the email by Enrico because he wanted someone outside his chain of command to know about his concerns. The Utilities Department did not report directly to the City Manager. Enrico had been disciplined previously for violating the chain of command protocols. The May 23 email contained Enrico’s reasons for why he did not think the Multitrode should be implemented. He did not believe the program was appropriate or the best use of the City’s money. He was concerned that if implemented improperly, it might even cause significant problems for the wastewater system. The email suggests that it is in response to an earlier telephone conversation between Enrico and Sorrels. Enrico’s supervisors were concerned that Enrico had intentionally chosen to copy the City Manager on the May 23 email. Inasmuch as Krym was not within Enrico’s chain of command and had no direct connection to the utilities department, the supervisors felt like Enrico was again attempting to circumvent protocol and create dissension within the City. As a result, the supervisors began to discuss what sort of discipline should be imposed against Enrico for sending the May 23 email. After various discussions between Enrico and his supervisors, cooler heads prevailed. A meeting was held on June 19, 2012, wherein Enrico retreated from his stance and acknowledged the impropriety of sending an email to the City Manager concerning issues outside her area of concern. During his testimony at final hearing, Enrico denied that he had acknowledged it was wrong to copy Krym on the email. The most persuasive evidence is that he did acknowledge his error. At the conclusion of the June 19 meeting, the participants shook hands and it was decided that no discipline would be imposed against Enrico. Enrico’s acknowledgement of his error was a key reason for his superiors’ decision not to impose discipline. However, before the June 19 meeting, Enrico issued the June 7 email. That email followed a June 6, 2012, email, wherein Enrico notified Jeff Pearson that he needed to talk to Pearson concerning the Multitrode program. The June 6 email ended with Enrico stating, “I need a response (phone call) from you by 9AM EST today to discuss the matter, or I may be forced to escalate the issue appropriately.” The June 7 email appears to be the escalation he warned Pearson about. The June 6 email references “Mr. Sorrels [sic] unwarranted and unprofessional email response.” Sorrels had sent an email to Enrico concerning Enrico’s May 23 email. Sorrels’ email included the statement, “I have neither the time nor inclination to entertain an email chain concerning your [Enrico’s] metathesiophobia or ideophobia.” Metathesiophobia is the fear of moving or making changes. The origin of the word meta is Greek (meaning to change), thes is Latin (meaning setting) and phobia is Greek (meaning fear). Ideophobia is an anxiety disorder characterized by the irrational fear or distrust of ideas or reason. Enrico denied being afflicted with either condition. On June 5, 2012, Enrico had responded to Sorrels, copying Pearson and Fenske on an email accusing Sorrels of libel and defamation. Enrico’s email said that Sorrels’ failure to verbally apologize and write a retraction of his statements by June 8 would result in Enrico referring the matter to the city attorney and his own attorneys to seek unspecified damages. This exchange was followed by the aforementioned June 6 and June 7 emails. The June 7 email was apparently the last straw for Enrico’s supervisors and they decided to impose discipline against him. After discussions with the human resources department and city attorney, the city manager approved a one-week suspension without pay as the appropriate sanction. Enrico denies the June 7 email was intended as a threat, but that is how it was perceived by his superiors. The language in the email about the “beginning of the resistance you will meet,” and telling his superiors that “I strongly advise you not to pursue your current course of action” are both, however, certainly threatening in nature. Though, Enrico said that he did not threaten physical harm, thus there was no threat at all, his testimony is not persuasive. In defense of his actions, Enrico claims the City violated his free speech rights under the United States Constitution, his fair labor practices rights under the State Fair Labor Law, and his rights under the Florida Whistleblower’s Act, among other things. None of those defenses are germane to the issue in this proceeding, nor does DOAH have jurisdiction over those laws. It is clear Enrico knows his area of employment and may have some legitimate concerns about the Multitrode system that was implemented. He may have personal feelings about the fiscal propriety of the City’s use of the Multitrode system. Enrico may not particularly like his superiors. However, those feelings do not justify the use of threats.
The Issue Whether Petitioner was discriminated against based upon race?
Findings Of Fact Respondent, Deland Housing Authority (the Authority), provides subsidized housing to low-income families in Deland, Florida. Linda McDonnell has been the Executive Director of the Authority since approximately 1990. Petitioner, Marjorie R. Ross, a black female, was employed by the Authority as a Project Management Aide, beginning on or about June 14, 1993. At the time of Petitioner's hire, Greg Norton, the Public Housing Manager, was her immediate supervisor. Petitioner's job duties included, among others, maintaining residents' records and files, computing and inputting utility charges, preparing and issuing monthly rent statements to residents, and preparing 14-day notices (late rent notices). Petitioner's performance evaluation, for the period August 21 to December 21, 1993, rated her overall performance as "needs improvement." In comments attached to the evaluation, it was noted that Petitioner "tried to do too many things at once," causing decreases in her productivity. The comments also stated Petitioner "needs to make an effort to straighten her office each day" and that her "greatest shortfall as an employee is the manner in which she relates to the other employees." From the date of this evaluation, tension existed between Petitioner and McDonnell. For example, McDonnell cautioned Petitioner about speaking to persons outside the organization without permission. On September 26, 1994, McDonnell approached Petitioner to introduce a visiting HUD representative to Petitioner. Petitioner did not speak with the representative, despite McDonnell's repeated requests, because of McDonnell's previous instructions not to speak without permission. Petitioner received a written reprimand for her conduct. On July 25, 1995, McDonnell gave Petitioner a memo that documented Petitioner's habit of promising to create certain projects and failing to complete them. At the end of July 1995, Norton resigned from the Authority. On July 31, 1995, McDonnell conducted a staff meeting relating to Norton's resignation. During the meeting, McDonnell instructed Petitioner to only write receipts for rent checks, but to refrain from entering the receipts into the computer. Despite this instruction, Petitioner subsequently removed rent receipts from McDonnell's secretary's desk and entered them into the computer. As a result, Petitioner received a reprimand and was given a day off without pay. Petitioner received another written reprimand on September 27, 1995, for failing to follow established Authority policy regarding reporting absences. Authority policy required employees to complete an absentee report upon returning to work from an unscheduled absence. Petitioner failed to complete an absentee report upon returning from an unscheduled absence on September 25, 1995, and was not given pay for the absence. Petitioner applied for the position vacated by Norton as Public Housing Manager. The Authority hired Connie Grobstein, a white female, in September 1995. The stated reason for hiring Grobstein was her experience in grant writing; McDonnell stated that writing grants was an important part of the job. Grobstein had little if any experience with public housing. Grobstein became Petitioner's direct supervisor and Petitioner was asked to teach her the day-to-day operations of the office. During September 1995, Grobstein wrote several memos to McDonnell regarding Petitioner's work performance and attitude. On December 21, 1995, Petitioner received a written reprimand from Grobstein for, among other infractions, failing to timely issue 14-day notices. The reprimand stated, "any additional violations of Authority procedures will lead to further disciplinary actions up to and including termination." On February 6, 1996, Grobstein and Petitioner had a confrontation in front of a tenant regarding the start date of a lease. Even though her office was several doors away, McDonnell could hear Grobstein and Petitioner arguing about the lease. As a result of the incident, McDonnell terminated Grobstein.1/ Petitioner was suspended for one day as a result of the argument with Grobstein. While Petitioner was absent, McDonnell discovered that several resident files, which Petitioner was responsible for maintaining, were missing necessary documentation. McDonnell contacted the Authority's attorney, who advised McDonnell that she had no choice but to terminate Petitioner's employment. On February 12, 1996, Petitioner's employment was terminated. The stated reasons for her termination were: consistent problems with her work performance; the incident with Grobstein on February 6, 1996; refusing to follow instructions; giving out rent credits/reductions without approval; attempting to undermine McDonnell and the Authority; demonstrating a poor attitude and an unwillingness to cooperate with others; and failing to complete her work in a timely manner. Respondent maintains a disciplinary policy for Authority employees. Pursuant to this policy, employees may be discharged for, among other reasons, insolence or insubordination; failure to obey legitimate orders from a supervisor; mistreatment (verbal, psychological or physical) of a client or fellow employee; and neglect or willful disregard of the responsibilities, duties and work rules of a position.
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 Petitioner's Petition for Relief. DONE AND ENTERED this 17th day of October, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 17th day of October, 2003.
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Ms. Bagley, an African-American, was employed by the City from 1987 until her termination on July 9, 2004. At the time of her termination, she was employed as a Code Enforcement Officer II. On Monday, March 15, 2004,1 Ms. Bagley called her supervisor, Larry Canelejo (Mr. Canelejo), and advised him that she would be late to work because she had to assist her mother. Mr. Canelejo approved her absence. Ms. Bagley's normal work hours on March 15, 2004, were 8 a.m. to 5 p.m., Monday through Friday. On March 15, 2004, she arrived to work at 11 a.m. She did not work through her lunch on that day or stay later to make up the time that she was late. On Thursday, March 18, 2004, Ms. Bagley turned in a time and attendance sheet showing that she had worked from 8 a.m. to 5 p.m. on March 15, 2004. Mr. Canelejo verbally asked Ms. Bagley to turn in a leave slip for the time that she was absent on March 15, 2004. Ms. Bagley did not turn in a leave slip, and Mr. Canelejo sent an e-mail to Ms. Bagley on March 18, 2004, requesting that she do so and indicating that disciplinary action would result for her failure to do so. Instead of turning in a leave slip for her three-hour absence, Ms. Bagley wrote a memorandum to Darrell Smith, Chief of Staff, complaining that she had been requested to submit a leave request for time she was absent from work when other workers who were absent were not required to submit a leave request for their absence. On the morning of Friday, March 19, 2004, Mr. Canelejo sent another e-mail to Ms. Bagley requesting that she submit her time card and leave slip by 11:30 a.m. Ms. Bagley retrieved the time card that she had previously submitted and covered her signature with white-out. She did not submit a leave slip as requested by her supervisor. Mr. Canelejo marked on Ms. Bagley's time sheet that she was absent without leave for three hours on March 15, 2004, and submitted a leave slip for Ms. Bagley showing that she was absent without leave for that time. The time card and leave slip was later changed by the City's personnel office to sick leave for others. On March 17, 2004, Mr. Canelejo received a complaint from the general manager of Wendy's Restaurant located on North 15th Street in Tampa, Florida. The general manager advised Mr. Canelejo that Ms. Bagley had come into the restaurant on three separate occasions demanding that she be given free food for food that she had purchased which she felt was bad. Ms. Bagley did not have receipts for the previously-purchased food, and indicated that other managers in the store had told her that she could get free replacements for the bad food. The general manager advised Mr. Canelejo that other managers at Wendy had not given authorization for Ms. Bagley to receive free food. A co-manager at Wendy's also wrote to the City confirming Ms. Bagley's actions in getting free food. The City's Department of Code Enforcement received a letter dated March 31, 2004, from Hazel Hill, who was the sales floor supervisor at Martin's Uniforms Retail Store (Martin's Uniforms). The City had a contract with Martin's Uniforms to supply uniforms and related items to City employees, including code enforcement employees. Ms. Hill related an incident involving Ms. Bagley on March 12, 2004. Ms. Bagley came to the store, requesting to return some shirts and pants, which she claimed to have received from Martin's Uniforms as part of the 2004 uniform allotment. Ms. Hill inspected the garments and determined that the uniforms could not have been received as part of the 2004 order because the shirts were not the same style as those that had been sent. The 2004 shirts were made of gabardine with two new-style patches, one on each arm. The shirts that Ms. Bagley was attempting to return were made of poplin with only one patch, which had been discontinued. The shirts also appeared to have a yellow tint, which could be attributed to age. The pants which Ms. Bagley was attempting to return had been altered in the waist. The pants which had been sent with Ms. Bagley's 2004 uniform order were not altered in the waist. Ms. Hill also advised that the incident concerning the 2004 uniform order was not the first time that Ms. Bagley had attempted to exchange old merchandise. About four months earlier, Ms. Bagley had tried to return an old jacket for a new one, but Ms. Hill refused to make the exchange. The previous year, Ms. Bagley came to exchange a pair of shoes for which she had no receipt and for which no record of the purchase could be found at the store. On July 9, 2004, the City dismissed Ms. Bagley from her employment. The final decision to terminate Ms. Bagley's employment was made by the Director of Code Enforcement, Curtis Lane, who is an African-American. Mr. Lane based his decision on Ms. Bagley's failure to submit a leave request for the three hours that she was absent on March 15, 2004; submission of a time sheet showing that she worked eight hours on March 15, 2004; the complaints from the employees at a Wendy's restaurant that Ms. Bagley had requested free food while she was in a City code enforcement uniform; and the complaint from Martin's Uniforms that Ms. Bagley tried to get new uniforms by falsely claiming that she was not sent the correct uniforms in her 2004 uniform order. The allegations against Ms. Bagley were investigated by City staff, and, based on the results of the investigations, Mr. Lane believed the allegations against Ms. Bagley and felt that Ms. Bagley's actions demonstrated a lack of honesty and integrity, two traits which are essential for a code enforcement officer. At the time of her termination, Ms. Bagley's employment with the City was subject to a collective bargaining agreement between the City and Amalgamated Transit Union. The collective bargaining agreement provided a grievance and arbitration procedure. Ms. Bagley filed a grievance contesting her termination, which she submitted to final arbitration. On February 15, 2005, an evidentiary hearing was held on Ms. Bagley's grievance before arbitrator Genellen Kelly Pike. On June 15, 2005, Ms. Pike denied Ms. Bagley's grievance. On July 26, 2005, Ms. Bagley filed a charge of discrimination with the Commission, claiming that she was terminated from her employment with the City on account of her race. Ms. Bagley claims that she was discriminated against based on her race because other employees of the Code Enforcement Department were allowed to come in late and either to make up the time on their lunch hours or after work or to not have to make up the time at all. Mr. Canelejo did have a practice of allowing employees to make up their time if they were 15 to 30 minutes late for work. The time could be made up during the employee's lunch hour or at the end of the employee's regularly scheduled work day. There was no practice or policy allowing employees to make up absences as long as three hours rather than requiring them to submit leave slips for the missed time. Ms. Bagley claims that both African-American and Caucasian employees were allowed to make up missed work. Not all employees in the Code Enforcement Department had the same work schedule. Some employees worked ten-hour shifts, Sunday through Wednesday; some employees worked 7:30 a.m. to 4:30 p.m., Monday through Friday; and some employees worked 8 a.m. to 5 p.m., Monday through Friday. Some employees were required to attend neighborhood meetings at night after their regularly scheduled hours, and were allowed to adjust their work schedule to avoid overtime as a result of the meetings at night. The code inspectors used City-owned vehicles in making their inspections. The vehicles were parked in a central location, and the employees picked up the City vehicles each day. Sometimes an inspector would schedule an inspection at the beginning of the inspector's shift. The inspector was not required to report into the office prior to making the inspection, but could pick up the City vehicle and leave from the parking lot. Ms. Bagley took it upon herself to begin keeping notes on when the inspectors would arrive at the office. She noted that some of the inspectors, both African-American and Caucasian, did not arrive at the office at the beginning of their regularly scheduled shift. However, Ms. Bagley had no knowledge if these inspectors had attended a night meeting during that week, if the inspectors had gone to an inspection prior to coming to the office, or if the inspectors had made up their tardiness by either working during their lunch hours or after the end of their regularly scheduled shift. Ms. Bagley just assumed that these employees were not putting in 40 hours per week. She produced no evidence at the final hearing that there were other employees who claimed they worked 40 hours per week, when they did not and were allowed to do so without taking leave. She presented no evidence at the final hearing that African-American employees were treated differently than Caucasian employees. In fact, she claims that both African- American and Caucasian employees were allowed to come in late without having to submit a leave slip for the missed time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the petition because the charge of discrimination was not filed timely and because Ms. Bagley failed to establish that the City discriminated against her based on her race. DONE AND ENTERED this 15th day of August, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2006.
Findings Of Fact At all times material hereto, the Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Edward E. Smith (Respondent) has a Bachelor's of Science in Accounting and Management Science and a Master's degree in International Business and Accounting. Respondent is a member of the Institute of Administrative Accountants, which membership requires testing, and as a member, he is authorized to practice accounting in the British Commonwealth as a fellow of the Institute of Administrative Accounting which is the equivalent to the Certified Public Accountant (CPA) in the United States. At all times material hereto, Respondent was employed by Petitioner as an accountant, holding the positions of Coordinator I or II, Operating Budgets, which are non-instructional administrative positions and assigned to the Office of Facilities Management. He was employed under an annual contract (twelve month employee) and has been continuously employed by the School Board for approximately 11 years. As an administrator, Respondent's minimum work day was from 7:00 A. M. to 3:30 P.M. For administrators, no standard workday exists in the form of a rule with specific starting or departing time. Also, Respondent took the benefit of a 15 minute break in the morning and one in the afternoon provided for Petitoner's employees. There is no rule prohibiting administrators from using the breaks. Respondent's salary remained the same regardless of the hours worked. If he performed his employment duties before 7:00 A.M. or beyond 3:30 P.M., Respondent received the same compensation. Respondent's lunch time was one (1) hour and could be taken anytime between the hours of 11:30 A.M. and 1:30 P.M. He could request an extension of his lunch hour but never made such a request. INVOLVEMENT WITH TRI-CITY COMMUNITY ASSOCIATION,INC. In 1989, Respondent became a member of the Board of Directors for Tri- City Community Association, Inc. (Tri-City). Sometime later, he became its secretary, then treasurer, and in 1991, Respondent became Tri-City's president. As president, he was also chairperson of the board. In or around February 1994, Respondent's association with Tri-City ended. Respondent did not inform Petitioner of his involvement with Tri-City. There was no need or requirement for him to do so. Tri-City is a nonprofit organization which provides services for low income neighborhoods, primarily minority neighborhoods, by repairing the homes of targeted individuals in the neighborhoods, and which provides training for disadvantaged youths by having the youths perform the repairs and providing the youths with marketable skills. Most of Tri-City's funding is from the City of Miami and Dade County, and in the past, some funding has come from Petitioner. Members of Tri-City's board of directors are volunteers and are not compensated for their service or participation. Contrastly, the staff of Tri- City consists of paid employees. Most of the board members are employed. In order to accommodate the employed board members' work schedules, board and committee meetings, including executive committee, full board, program committee, fund-raising committee, and personnel committee, were generally scheduled for an hour, but may exceed an hour, during the lunch period between 11:00 A.M. and 2:00 P.M. The meetings usually began between 11:30 A.M. and 12 Noon. As president of Tri-City's board of directors, Respondent's responsibility, among other things, was to attend full board meetings, which were held every quarter, and to attend executive board meetings, which were held once a month. Also, as president, he was an ex-officio member of all committees. Respondent, as president, changed the format of the executive board meetings so that each meeting could be completed in approximately one (1) hour. He also changed the meeting times so that the meetings would accommodate his lunch time and other working members. If a meeting was not completed within an hour, Respondent would leave early so that he could return to work in a timely fashion. Board members could vote by proxy. On occasion when Respondent was not present, another board member would cast proxy votes for Respondent. The agenda for Tri-City board and committee meetings is not reliable for determining the actual starting time of the meetings. The agenda indicates the scheduled time only. The minutes of Tri-City board and committee meetings are not reliable as to the starting and ending time of meetings or when a member arrived or departed. The meetings were tape recorded but were later transcribed anywhere from days to weeks after the meetings by Tri-City's secretary, a paid employee, who was not present at the meetings. The secretary used the starting time on the agenda as the starting time in the minutes. No ending time was listed in the minutes. More times than not, the minutes contained omissions and inaccuracies. Members who voted by proxy or who contacted a committee by telephone to vote were listed as being present. If Respondent departed a meeting before it concluded, the minutes would not reflect his departure. Tri-City's monthly executive committee meetings and quarterly full board meetings were held in a conference room in the building where Tri-City's office is located. Board members accessed the conference room by elevator without going through, to, or near Tri-City's office. Furthermore, the members were not required to sign-in at the Tri-City office. Consequently, the board members could attend the meetings without Tri-City staff knowing it. Respondent's place of employment was located approximately five (5) minutes, and no more than ten (10) minutes, from Tri-City's office. CONDUCTING TRI-CITY BUSINESS ON PETITIONER'S TIME Respondent attended Tri-City board and committee meetings during his lunch time. Tri-City's executive director generally attends full board executive committee meetings; however, the executive director may be requested to leave during an executive board meeting by the members. No executive director had a reliable or credible recollection of the span of time Respondent attended the meetings, i.e., when Respondent arrived and when he departed. However, on two different occasions at Tri-City committee meetings, Respondent was present beyond the scheduled block of time in which he has to take his one (1) hour lunch which ends at 1:30 P. M. On October 29, 1992 at a full board meeting, Respondent was in attendance at the meeting beyond 1:45 P. M. On August 26, 1993 at a call executive committee meeting, Respondent was in attendence at the meeting until around 1:30 P.M. or 1:45 P.M. when the meeting adjourned. But no evidence was presented to show when Respondent arrived or when he departed either of the two meetings. Both days were a work day for which Respondent was paid by Petitioner. At times, Respondent would visit Tri-City work sites. These visits were made during Respondent's lunch hour. On or about May 11, 1993, Respondent left work around 2:30 P. M., before the end of his work day, to attend a court proceeding involving Tri-City. Respondent worked through his lunch hour that day in anticipation of attending the court proceeding. This day was a work day for which Respondent was paid by Petitioner. On one occasion, Respondent visited the Tri-City office to investigate a personnel matter. On August 16, 1993, Respondent was at Tri-City's office for at least 30 minutes from approximately 8:30 A.M. to approximately 9:00 A.M. This day was also a work day for Respondent for which he was paid by Petitioner. USING PETITIONER'S EQUIPMENT, PERSONNEL, AND OFFICE From around February 1990 to around February 1993, Respondent supervised an employee who on several occasions performed tasks for Respondent involving or associated with Tri-City. Respondent requested the employee to perform the tasks and did not require her to do so as her supervisor or promise her anything in return. These tasks were performed on Petitioner's time using Petitioner's equipment. Over this period of time, the employee typed approximately 20 to 30 documents with each taking no more than five (5) to ten (10) minutes and copied the documents that were typed. If Respondent provided envelopes, which were not Petitioner's envelopes, the employee stuffed the envelopes with the documents. Also, the employee sent from 20 to 30 faxes related to or associated with Tri-city for Respondent over this period of time. The tasks that the employee performed for Respondent involving Tri- City did not interfere with her duties or responsibilities that she was required to perform for Petitioner, her employer. The employee performed the tasks for Respondent only if she had the time to do them. When this employee began her employment with Petitioner, which was under Respondent's supervision, Respondent was doing things associated with Tri- City at his place of employment. It was never indicated that Respondent should not engage in the activities, so the employee believed Respondent's activities associated with Tri-City to be normal practice in the office. It was common practice for Petitioner's employees who worked with Respondent to use Petitioner's equipment for their own personal use. Computers were used for personal typing. The xerox machine was used for personal copying. The fax machine was used to fax personal items. No one was disciplined for using the equipment for personal reasons. Respondent, himself, faxed items to Tri-City or on behalf of Tri-City from Petitioner's fax machine in his office. Also, he received approximately 20 to 30 faxes at his workplace from Tri-City or associated with Tri-City. During the period from around February 1990 to around February 1993, Respondent used Petitioner's computer for Tri-City business. Respondent had a personal computer, provided by Petitioner, in his office. Respondent neither shared his office nor his computer with anyone else in his workplace. There is no evidence that such personal use of Petitioner's equipment at the request of Respondent or by Respondent caused any negative impact upon the equipment. From around February 1990 to around February 1993, individuals associated with Tri-City visited Respondent at his place of employment. Tri- City employees would visit Respondent once or twice monthly bringing Tri-City employee checks or various documents for Respondent to sign. These visits would involve a span of time anywhere from a few minutes to 40 minutes, but mostly a few minutes. Respondent and one member of Tri-City's board were also friends. The board member would visit Respondent once or twice monthly. Also, Respondent would at times go to Tri-City to sign the employee checks. Such visits to Tri-City would occur during Respondent's scheduled block of time for lunch. Most of the time Respondent would not eat lunch but would work through lunch. It was generally accepted that Petitioner's employees would receive personal visitors at their workplace. No rule or policy existed prohibiting personal visitors. From around February 1990 to around February 1993, Respondent received numerous telephone calls which were Tri-City related (either from Tri-City individuals or regarding Tri-City business). From around February 1990 until Winter 1991, three-quarters of Respondent's telephone calls received in a day were Tri-City related. There is no credible evidence as to the length of time of the telephone calls. After winter 1991, there is no credible evidence to show the number of telephone calls Respondent received which were Tri-City related, since his calls went directly to his office instead of through another person first. From 1992 to around February 1993, the board member who was also Respondent's friend called Respondent two or three times a week. Respondent also called Tri-City from his office telephone. There is no credible evidence as to the frequency or length of time of the telephone calls. Sometime in 1993, Respondent requested Tri-City staff to contact him through his beeper, instead of calling him at his office. Respondent's beeper was issued to him by Petitioner. There is no evidence to indicate the number of times Respondent was contacted by Tri-City staff through his beeper. There was an expectation in Respondent's workplace that use of Petitioner's telephone for personal, non-Petitioner related matters was acceptable, as long as the use was not excessive. There is no credible evidence that Respondent's personal use, either by himself or at his request, of Petitioner's xerox machine and fax machine far exceeded the personal use of the other employees in Respondent's workplace to the point of being excessive. Nor is there credible evidence that Respondent's personal telephone calls were excessive as compared to the employees. During the course of one day in either Winter 1991 or Spring 1992, Respondent conducted interviews for a position with Tri-City in his office at his workplace. This day was a work day for Respondent for which he was paid by Petitioner. In addition, the week prior to this day Respondent's workplace received several telephone calls regarding the position and the interview process, which reduced the amount of time the employees at Respondent's workplace expended on Petitioner's business. One day in the month of either March, or April, or May 1992 Respondent had a meeting in his office with individuals associated with Tri-City. The meeting began at around 5:00 P.M. and lasted a few minutes. Even though the meeting began after Respondent's work day ended at 3:30 P. M., individuals associated with Tri-City began arriving before 1:00 P. M., and went directly to Respondent's office. This day was a work day for Respondent for which he was paid by Petitioner. At some point Respondent instructed Tri-City staff to transfer information from the hard drive of their computer to diskettes. He would access the information on the diskette using his personal computer in his office. Also, Respondent stored the material from the diskette on his office computer. There is no evidence that such use and storing by Respondent affected the performance of Respondent's computer or impaired the ability of the computer to save and store Petitioner's data. RESPONDENT'S OFFICE SITUATION Respondent worked in Petitioner's central maintenance compound (compound) which contained several buildings, including the building where Respondent's office was located. The compound covered several blocks. Respondent was able to perform some of his work prior to 7:00 A.M. and after 3:30 P.M. He had access to data and a personal computer provided by Petitioner. Additionally, Respondent had access to a lap top computer, issued by Petitioner, which he used at home. In 1991, Maria Davis became Executive Director of Maintenance and Capital Projects and became Respondent's supervisor. In 1993, Ms. Davis became an Assistant Superintendent for Petitioner and was in charge of the Office of Facilities and Operations. In 1991, a sign-in and sign-out procedure was instituted for administrators. Sign-in and sign-out sheets were provided in the areas under Ms. Davis' supervision. When signing-out, there was no requirement to indicate on the sign-out sheet where one was going and no one did. Also, there was no requirement to verbally inform someone where one was going. At least from in or around February 1990, Respondent would be in his individual office working before the beginning of a work day at 7:00 A. M. and after the end of a work day at 3:30 P.M. After Respondent and other employees in his office moved into a new building, called the "White House," within the compound in the Winter 1991, Respondent would be in his office about 50 percent of the time by 7:00 A.M. and almost always after 3:30 P.M. If he left the office before the end of the work day and had to go to another location on Petitioner related business, Respondent would sign-out using the time that he expected to leave the other location. As part of his duties and responsibilities, Respondent was required to visit Petitioner's satellite offices. When Respondent was in the White House, he would open the door to his individual office when he arrived in the mornings and close his office door at the end of the day when he left. Although on some mornings he was not physically in his office at the beginning of his work day, which began at 7:00 A.M., Respondent had already been in his office on those mornings because his office door was open. Respondent was issued a beeper by Petitioner. When he was away from the compound, his office could reach him through his beeper. Most of the time, Respondent's office did not know his whereabouts when he left the office, so they either paged him or beeped him. When his office paged or beeped him, Respondent promptly responded. At times, from around 1991 to around February 1993, when Respondent was not in his office and his supervisor, Maria Davis, or later his immediate supervisor Berny Blanco, called asking for him, Respondent's office beeped him, entering the caller's telephone number in the message. Neither Ms. Davis nor Mr. Blanco would call back, indicating that Respondent had contacted them. Only on one or two occasions did Ms. Davis or Mr. Blanco call a second time asking for Respondent. For the 1991-92 school year, after Ms. Davis became Respondent's supervisor, his performance evaluation declined from "exceeding performance expectations" to "meeting performance expectations." Respondent's decline was based upon Ms. Davis determining, among other things, that Respondent was not producing his work in a timely fashion, that at times he could not be located, and that he was tardy in the mornings. At or around the same time that Respondent became involved with Tri- City, he had marital problems. Respondent became less focused on his office work and responsibilities. There is no evidence to show that Respondent's involvement with Tri-City was the cause of him being less focused. Respondent's performance is not an issue in this proceeding. By memorandum dated May 23, 1991 to Respondent and three other administrators, Ms. Davis expressed her concern about them not being in their respective offices at the beginning of the work day (7:00 A. M.) and advised them to adhere to the working hours. Further, Ms. Davis advised them to notify either her or one of the other supervisors if they had to leave early or if they had to leave the compound for meetings or personal business and to wear their beepers during work hours. By memorandum dated August 29, 1991, Ms. Davis notified all employees under her supervision regarding, among other things, the work day consisting of eight hours, which included two 15 minute break periods, and not engaging in unauthorized activities, including shortening their work day by returning to the compound without good reason. In late 1991 or early 1992, Ms. Davis transferred supervision of Respondent to Berny Blanco. Ms. Davis did this because she felt that she was devoting too much time to the budget area and that Respondent needed closer monitoring. By memorandum dated February 7, 1992, Ms. Davis notified Respondent regarding, among other things, the minimum work hours of 7:00 A.M. to 3:30 P.M., noting that she had been unable to reach him on occasion near the end of the work day and that he was arriving late for work. Further, Ms. Davis advised Respondent, among other things, to notify her office when he arrived late or departed early and when he needed to visit another work site during the work day. On or about July 20, 1993, Respondent was given a prescription for improving his performance which was considered by Mr. Blanco and Ms. Davis to be below expectations. Of importance, in the prescription Respondent was noted as having failed to regularly inform his supervisor or staff of his whereabouts and having failed to be regularly available or responsive to questions regarding office functions. The prescription did not indicate any problem with Respondent's work attendance, lunch hour or personal use of Petitioner's equipment. On or about July 19, 1993, Mr. Blanco, while at the fax machine in Respondent's workplace, intercepted a fax from Tri-City to Respondent. Mr. Blanco did not mention or give the fax to Respondent. At no time, after intercepting the fax, did Mr. Blanco discuss Tri- City with Respondent. Nor did Mr. Blanco discuss with Respondent the use of Petitioner's equipment to receive non-Petitioner related items. On or about August 16, 1993, a former employee of Tri-City, Wanda Armstrong, telephoned Mr. Blanco to inform him of Respondent's volunteer, non- Petitioner related activities with Tri-City. Mr. Blanco reported the telephone call to Ms. Davis. Ms. Davis contacted the director of the Dade County School Police (School Police) for her region and requested a personnel investigation regarding Respondent's activities with Tri-City. Also, she requested the director to be personally involved in the investigation. Sometime between August 16, 1993 and September 3, 1993, Mr. Blanco accessed Respondent's office personal computer and obtained Tri-City documents from Respondent's hard drive. Mr. Blanco transferred the documents from Respondent's hard drive to a portable computer and printed the documents. 1/ Mr. Blanco performed this act without Respondent's knowledge and after Respondent had left his office for the day. Also, Mr. Blanco performed this act at the request of the School Police. On or about September 3, 1993, Jolita Dorsett telephoned Mr. Blanco complaining about Respondent engaging in Tri-City business during the time Respondent was supposed to be performing his duties and responsibilities as Petitioner's employee. Ms. Dorsett was the former executive director of Tri- City and had been terminated by Respondent pursuant to a directive from the Tri- City board of directors. Mr. Blanco reported the telephone call to Ms. Davis who directed him to contact the School Police. Mr. Blanco complied with the directive. Regarding the handling of complaints against salaried administrators, Mr. Blanco, as Respondent's supervisor, was obligated to follow the procedures in the Manual of Administrative Personnel Procedures (MAPP). The provisions of MAPP contemplate that a complaint would be the preliminary step prior to an investigation of an administrator and, in turn, require that all complaints against such an employee, as well as the identity of the complaintant, be made known to the employee. Mr. Blanco did not make a determination as to whether either Ms. Armstrong's or Ms. Dorsett's telephone calls were complaints. Neither did Mr. Blanco meet with Respondent, in accordance with MAPP procedures, to discuss the telephone calls. Once an investigation, including a personnel investigation, is initiated by the School Police, it is the School Police which determines and directs the scope and conduct of the investigation. The School Police's personnel investigation of Respondent did not follow the usual procedures or process even though it was not an unusual case. The case was assigned to an investigator without the usual paperwork preceding an assignment; the executive director/chief of the School Police participated directly in the investigation which is not the norm; the investigator reported directly to the chief instead of reporting to his (investigator's) coordinating supervisor; the chain of command was by-passed in the investigation in that the director of the School Police was by-passed in the reporting process which is not the normal procedure. Further, at the onset of the investigation, Ms. Davis, Mr. Blanco, and the chief, coordinating supervisor and investigator of the School Police met with Ms. Dorsett on or about September 13, 1993. At the meeting, Ms. Dorsett provided copies of minutes of Tri-City meetings and discussed the minutes with them. At no time during the meeting was Ms. Dorsett questioned by members of the School Police who were in attendance. It is unusual for the chief of the School Police to meet at the beginning of an investigation with the administrators and a potential witness. Additionally, it is unusual for an investigator to not question a witness and for the supervisor of an employee being investigated to be present at such a meeting. On or about September 28, 1993 the chief of the School Police and Ms. Davis met with Respondent and Respondent's representative from the Dade County School Administrator Association (representative) of which Respondent is a member. Prior to this meeting, Respondent had not been made aware that allegations had been made against him or the nature of the allegations or that there was an investigation, or of the identity of his accusers. Usually, the School Police's investigator makes contact with the person being investigated (subject) and reveals to the subject the aforementioned. At this meeting, these things were not revealed to Respondent. On the advice of Respondent's representative, after the chief of the School's Police refused to make the revelations, Respondent did not say anything. On or about September 24, 1993, Respondent had received written communication regarding the meeting, which notified him that he was being investigated concerning his relationship with Tri-City. The written communication did not specify the allegations or identify the accusers. The investigation was completed relying solely on statements from Ms. Dorsett, Ms. Hicks (Tri-City employee and present executive director), Ms. Davis and Mr. Blanco, the copies of the Tri-City minutes provided by Ms. Dorsett, copies of Respondent's time sheets which were compared to the dates and times of Tri-City meetings contained in the minutes, and a copy of the items from Respondent's office personal computer obtained by Mr. Blanco. 2/ The investigation was reduced to a written report, with attachments. Usually, an investigative report is reviewed and signed by at least three individuals in the School Police: the investigating officer, the investigating officer's immediate supervisor who is usually the coordinating officer, and the division director. However, this procedure was not followed with Respondent's investigation. Only one person reviewed the report and signed for all the others and that person was the acting coordinator; not even the investigator reviewed the report after it was prepared. In late October 1993, Respondent and his representative received a copy of the investigative report which failed to have any attachments even though the report referred to a list of attachments. Not until January 1994, did Petitioner provide the attachments. After the meeting held on September 28, 1993, and on that same day, Respondent was "re-deployed" (moved) from his office to another location. The locks on his former office were changed. In the haste of the move, Respondent left some personal items in his office. At the time of the formal hearing, Respondent had not been returned his personal items. Included in his personal items was non-Petitioner related personal mail, which was clearly addressed to Respondent. Some of this personal mail was opened and reviewed by Respondent's supervisor. At his new location, Respondent's access to information, via his computer, that he needed to perform his duties and responsibilities was terminated. Mr. Blanco ceased being Respondent's supervisor and Respondent was placed under the supervision of someone else. At Respondent's new location, he was also given new and different duties and responsibilities even though his job description did not change. Respondent's prescription was not altered to coincide with his new duties and responsibilities. Also, at his new location, Respondent received Tri-City visitors. There is no credible evidence that these visits did not occur during Respondent's lunch hour. SUSPENSION/DISMISSAL On March 23, 1994, Petitioner suspended Respondent and initiated dismissal proceedings against him. Petitioner's action was based upon the recommendation of Dr. Patrick Gray, which was based upon the School Police's investigative report, with attachments, his (Dr. Gray's) own investigation which included discussions with Ms. Davis and Mr. Blanco, and Respondent's work performance. Respondent's name was not included on a list of individuals on whom Petitioner voted for reappointment for the 1994-95 school year. As a result, Respondent's contract was not renewed after June 30, 1994, when his then current contract expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Dade County School Board enter a final order revoking the suspension and reinstating Edward E. Smith under such terms and conditions as are appropriate. DONE AND ENTERED this 21st day of August, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1995.
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes.
Findings Of Fact Respondent, Michael Jones (Jones), was Assistant City Manager for the City of Opa-Locka, Florida (City), from October 1995 to May 1997. As part of his duties, Mr. Jones was in charge of public works, which included the motor pool, where repairs were made to city vehicles. On November 1, 1995, while on the way to a Rotary Club banquet which Ms. Griffin was required to attend as part of her job with the City, Ms. Griffin had an automobile accident, damaging the bumper on her car. She drove the damaged vehicle to the banquet. After the banquet, Ms. Griffin told Mr. Jones that her car had been damaged, and Mr. Jones saw the bumper lying on the ground. Ms. Griffin drove her vehicle to the police station and left it there overnight. The next day, Ms. Griffin picked up her car at the police station and took it to the public works building. She met Mr. Jones who told her that she could wait in his office area while her car was being repaired. Mr. Jones told Jesus Corrales, a City employee, to fix the bumper which had fallen off Ms. Griffin's car. At the time Mr. Corrales worked on the automobile he did not know that Ms. Griffin was the owner of the car. He put the bumper back on Ms. Griffin's car. The job took between two to three hours. Ms. Griffin's car was a white Honda. Ms. Griffin's car was the only white Honda that Mr. Jones ever asked Mr. Corrales to repair. When the repairs were completed, Ms. Griffin offered to pay Mr. Corrales, but Mr. Corrales would not accept any payment. The repairs were made during work hours and using city resources. Mr. Jones knew that it was improper to have cars, other than cars owned by the City, repaired at the City Public Works Department using City employees and City equipment. Ms. Griffin benefited by having her car repaired for free by employees of the City during working hours.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent, Michael Jones, violated Section 112.313(6), Florida Statutes, imposing a civil penalty of $1,000 and issuing a public censure and reprimand. DONE AND ENTERED this 9th day of October, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1998. COPIES FURNISHED: Bonnie Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Advocate Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 David Nevel, Esquire Law Offices of Ronald Lowy 420 Lincoln Road Penthouse Seventh Floor Miami Beach, Florida 33139 Kerrie J. Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue application from Sydney McCray on the basis of race or national
Findings Of Fact The City is an employer under the Florida Civil Rights Act. Mr. McCray is a male African-American, and he is a member of a protected class. In his complaint, Mr. McCray claims that on April 4, 1994, the City discriminated against him by failing to hire him for the position of laborer (maintenance worker). Specifically, Mr. McCray alleged that in response to a newspaper advertisement for a laborer’s position, he and his sister, Alice Larkins, contacted the City Manager’s office for the purpose of submitting their employment applications. Both Mr. McCray and Ms. Larkins asserted that they arrived at the office of Mr. Whitson, the City Manager, at the appointed time, and that they waited over an hour to see Mr. Whitson. After waiting an hour, both Mr. McCray and Ms. Larkins left without ever meeting Mr. Whitson. Mr. McCray asserts that Mr. Whitson failed to meet with him or receive his employment application because of his race. The City disputes Mr. McCray’s claims for several reasons. First, the City provided evidence to contradict Mr. McCray’s position that he first learned of the laborer position through an advertisement. Several city employees testified that the City only advertises skilled positions and that the unskilled positions, such as maintenance positions, are handled through the Public Works Department without advertisement. With regard to the Public Works Department, testimony was also received that indicated the process for receiving applications for laborer positions. In particular, it was stated that applications for laborer positions are processed by the Public Works Department and that once the applicant has been interviewed, all qualified applicants are placed on a list for future vacancies. The record is clear that Mr. McCray never applied for a laborer position through the established procedure. Second, even if the position was advertised as stated by Mr. McCray, the City disputes that Mr. Whitson’s office would have ever made an appointment for Mr. McCray. As indicated above, the prospective laborers are processed by the Public Works Department. Mr. Whitson testified that he plays no role in screening laborer applicants and that he is purposefully insulated from the hiring process. Therefore, it makes no sense that his office would have arranged an interview as asserted by Mr. McCray. Third, in addition to Mr. Whitson’s lack of involvement in the employment process for prospective laborers, all the testimony received at the hearing supports a finding that Mr. McCray did not have an appointment with the City manager. Specifically, several City employees, including Mr. Whitson’s personal secretary, testified that neither Mr. McCray nor his sister ever had an appointment with Mr. Whitson. They also testified that neither person appeared at Mr. Whitson’s office on April 4, 1994. When pressed on the date and time of the alleged appointment with Mr. Whitson, Mr. McCray was unable to articulate consistently when the meeting was to take place. Mr. McCray appeared confused and his answers varied from his earlier deposition testimony and the testimony of his sister. Furthermore, based on the records maintained by the City of Milton, Mr. McCray never submitted an application for the position of “Laborer” with the Public Works Department of the City of Milton. Mr. McCray attempts to supplement his claim of discrimination by establishing that the City of Milton has systematically discriminated against him by failing on more than one occasion to hire him. Specifically, Mr. McCray stated that prior to April 4, 1994, he applied for other positions with the City of Milton, and he was denied such positions. In particular, Mr. McCray stated that he applied for the position of mechanic and technician. In both instances raised by Mr. McCray, however, it appears, based on the record, that he either failed to adequately complete his job application or he failed to possess the minimum qualifications for the positions sought. As further evidence supporting his claim, Mr. McCray offered the testimony of his sister, Alicia Larkin. Ms. Larkin testified that she, like her brother, was the subject of discrimination by the City. The undersigned dismissed her testimony as lacking relevancy and more importantly lacking credibility. First, Ms. Larkin has a claim pending against the City alleging similar discriminatory practices and she appears to have a bias against the City. Second, Ms. Larkin’s testimony lacked consistency and lacked credibility. No evidence was presented to indicate that the City of Milton discriminated in its employment practices. Furthermore, the City presented testimony that it has and continues to develop fair employment practices relating to minorities. Specifically, the City of Milton, through Mr. Whitson, has met with the NAACP for the purpose of continuing to improve race relations between the City and the African-American community in Milton. In summary, the City has effectively rebutted the allegations raised by Mr. McCray. The City offered a series of witnesses that had personal knowledge of the employment policies and hiring practices of the City and each corroborated the other. Those witnesses collectively support a finding that the City did not discriminate against Mr. McCray.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this claim with prejudice. DONE and ENTERED this 22nd day of April, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997. COPIES FURNISHED: Bruce Committee, Esquire 8870 Thunderbird Drive Pensacola, FL 32514-5661 Post Office Box 586 Milton, FL 32572 Human Relations Commission Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, Esquire Building F, Suite 240 325 John Knox Road
The Issue The issue is whether Respondent, Scott Rhodes, should be terminated from employment with Petitioner, City of Clearwater (City), for violating City policies as alleged in the City's Termination and Dismissal Notice dated February 16, 2018.
Findings Of Fact Parties and Jurisdiction The City is a government employer governed by a City Council. A City Manager oversees the City’s operations. Pursuant to the Code of Ordinances of the City of Clearwater (City Code), the Clearwater Civil Service Board has adopted policies and rules regulating all aspects of the civil service employee positions within the City.1/ Mr. Rhodes began his employment with the City as a Solid Waste worker on September 6, 2004. He worked in the same position until his termination effective February 20, 2018. Approximately 85 percent of the current Solid Waste staff is African-American. Mr. Rhodes describes himself as “white” and “not black.” At all times relevant, Mr. Rhodes’ supervisor was Joseph Farrar, who is Caucasian. Mr. Farrar’s ultimate supervisor is Earl Gloster, an African-American. Mr. Gloster is the department head of Solid Waste and reports directly to the City Manager. Mr. Rhodes’ Disciplinary History Prior to his termination, Mr. Rhodes had been involved in a number of incidents with co-workers requiring counseling or discipline. In late November 2011 and early 2012, Mr. Rhodes reported he was being harassed by a co-worker in Solid Waste, Feth Benbelgacem. His complaint was investigated by the City’s HR Department and a report was issued. Although the City found Mr. Benbelgacem had violated the City’s Workplace Violence Policy, the report concluded: No one was able to corroborate the specific claim that Mr. Rhodes made that Mr. Benbelgacem [threatened him]. A number of those interviewed feel that Mr. Rhodes has animosity because Mr. Benbelgacem is permitted to operate the equipment which causes Mr. Rhodes to “nitpick” Mr. Benbelgacem’s work performance, thereby instigating their interaction. This behavior on the part of Mr. Rhodes has been reported to the supervisors and although Mr. Rhodes has been directed to cease the behavior and worry about himself, the behavior allegedly continues. * * * Although Mr. Rhodes has been instructed by his supervisors to stop delegating and criticizing tasks relating to Mr. Benbelgacem, the behavior seems to continue and should it not stop, the supervisor should address it through the Performance and Behavior Process. In November 2016, Mr. Farrar issued Respondent a coaching and counseling form for “violence in the workplace” based on a verbal altercation Mr. Rhodes had with an African-American co-worker. The form signed by Mr. Rhodes states: Outcome of Meeting: Mr. Rhodes understands that verbal misconduct is as serious as physical conduct. Verbal attacks can lead to physical confrontations just as this situation did. In the future, verbal attacks on a co-worker’s family or loved ones will not be tolerated. At some point after the November 2016 counseling, when someone did something he did not like, Mr. Rhodes would either tell that person that he was going to give that person a specific number of lashes or he would direct a co-worker to distribute a specific number of lashes to that person. Mr. Rhodes also told his co-workers to “kiss the ring,” implying they were subservient to him. Mr. Rhodes would talk about certain co-workers being on his “hit list.” When asked who was on his “hit list,” Mr. Rhodes named the same African-American co-worker involved in the November 2016 incident. In early 2017, Mr. Farrar overheard Mr. Rhodes saying he would give certain co-workers lashes. Mr. Farrar believed these comments were inappropriate and could have been interpreted as racially offensive. He also overheard Mr. Rhodes talking about his “list.” As a result, Mr. Farrar met with Mr. Rhodes and instructed him to stop making such remarks. Although Mr. Farrar did not specifically tell Mr. Rhodes these comments violated any specific policy, he did tell Mr. Rhodes “that he needed to watch what he was saying around newer people because they might not know how to take it the way people that had been around him do.” At the final hearing, Mr. Rhodes admitted he told other employees he would give them lashes, they were on his hit list, and they should kiss the ring, but claimed he was joking. In April 2017, Mr. Farrar placed Mr. Rhodes on a “Development Plan” after repeatedly being warned by Mr. Farrar about failing to properly clock in and out, and accruing unauthorized overtime. The Development Plan was to remain in effect from April 28 to October 28, 2017, and required Mr. Rhodes to meet personally with Mr. Farrar on “Payday” Fridays and comply with the City’s timeclock regulations. Mr. Rhodes defied orders to meet with Mr. Farrar and otherwise failed to adhere to the Development Plan. As a result, Mr. Rhodes received a one-day suspension (referred to as a “decision-making leave day”) and was referred to the Employee Assistance Program. The Development Plan was also revised and extended to remain in effect until March 2018. Meanwhile, Mr. Rhodes continued to make the same type of inappropriate remarks referring to “lashes” and the “hit list.” In October or November 2017, Mr. Farrar had a second meeting with Mr. Rhodes and again instructed him to stop making these types of remarks. The Terminating Incident On January 17, 2018, Mr. Farrar received a complaint from Allan Craig, an African-American Solid Waste worker, that Mr. Rhodes claimed he was the “emperor of all black people.” According to Mr. Farrar, Mr. Craig reported the incident just after it was made and was visibly shocked. Mr. Farrar referred the incident to the City’s Office of Diversity and Equity Services (“ODES”), a division within the HR department tasked with handling and investigating complaints of the City’s anti-discrimination policies, as well as potential employee violations of state and federal employment laws. Mr. Craig testified that on the day in question, Mr. Rhodes did not like something an African-American co-worker said. In turn, Mr. Rhodes told Mr. Craig to give this co-worker “50 lashes,” which Mr. Craig understood to be a whipping. Mr. Craig, said, “no, we [have] to stick together.” It is unclear to whom Mr. Craig is referring when he said “we”--“Solid Waste workers” or “African-Americans.” Regardless, in response, Mr. Rhodes made the statement, “I’m the emperor of black people.” Mr. Craig did not respond, but instead immediately left the worksite to report the comment to Mr. Farrar. Although Mr. Rhodes corroborates Mr. Craig’s version of events, he disputes saying “I’m the emperor of black people.” Instead he claims he told Mr. Craig “I am the emperor of Solid Waste”; and after Mr. Craig said, “no, we [have] to stick together,” Mr. Rhodes replied, “Allan, even black people have to answer to somebody.” Mr. Rhodes saying, “I’m the emperor of black people” is more believable than him saying “Allan, even black people have to answer to somebody.” The undersigned rejects Mr. Rhodes’ version of events for a number of reasons.2/ First, Mr. Rhodes statements do not seem to flow naturally. Second, Mr. Craig’s demeanor was more credible, and his version of the facts leading up to the “emperor” statement was consistent with the testimony of the other witnesses. Moreover, Mr. Deris, the ODES investigator, testified that Mr. Rhodes admitted to making the statement, “I am the emperor of black people” when questioned during the investigation. Mr. Gloster testified that during the pre-termination meeting he had with Mr. Rhodes, “I asked him specifically as to the comment that was made . . . that he was the emperor over all black people, and he said, yes, that he said it.” Even assuming Mr. Rhodes’ version is correct, it is equally offensive; it still implies African-Americans at Solid Waste need to answer to him. Based on the competent and credible evidence, the undersigned finds that Mr. Rhodes made the statement, “I am the emperor of black people,” and this statement was reasonably offensive to Mr. Craig. Grounds for Dismissal Based on the ODES investigation and after meeting with Mr. Rhodes, Mr. Gloster made the decision to terminate Petitioner. Thereafter, the City issued the Dismissal Notice citing numerous violations of City policy and regulations: City Policy 3201.2, Equal Employment Opportunity Policies (EEO); City Policy 3704.1, Workplace Violence Prevention Policy; and Relevant portions of the City’s Performance and Behavior Management Program Manual (PBMP), which set standards for City workers in the areas of personal responsibility, excellence, and integrity. Chapter 13, section 3, of the Civil Service Board Rules and Regulations outlines the grounds for discipline, including terminations. That section provides in pertinent part: Reasons for Suspension, Demotion, and Dismissal--Whenever practical, employees will be given reasonable opportunity to bring their performance and/or behavior up to acceptable standards pursuant to the procedures and rules of the City’s performance and behavior management programs. However, employees may be subject to disciplinary action up to and including immediate dismissal for the following acts, including but not limited to specifically cited examples: * * * (e) Commitment of a flagrant offense, including harassment or discrimination or abusive conduct or language toward coworkers, City officers, or the public. * * * (l) Failure to conform to the dictates of corrective action, including but not limited to failure or inability to comply with an agreed-upon “development plan,” or when the City believes that an employee is willful in refusing to adhere to establish rules, regulations, or guidelines. (emphasis added). Violation of EEO Policy The City’s EEO policy states in relevant part: It is the policy of the City of Clearwater that no person shall be unlawfully discriminated against with regard to recruitment, selection, appointment, training, promotion, retention, discipline or other aspects of employment because of any consideration of race, color, religion, national origin, age, disability, marital status, or gender (including conditions of pregnancy and sexual harassment), or genetic or family medical history information as defined by the Genetic Information Nondiscrimination Act. Mr. Rhodes’ “lashes” comments could reasonably be interpreted as a reference to slavery, and be racially offensive to African-American (and other) employees. As such, Mr. Rhodes continued references to “lashes,” even after being warned, violated the City’s EEO policy. Mr. Rhodes statement that he, a white person, was the “emperor of black people” clearly violates the City’s EEO policy. Violation of the City’s Workplace Violence Prevention Policy The City’s Workplace Violence Prevention Policy states in relevant part: Policy: The City of Clearwater will not tolerate violence, threats, harassment, intimidation, and other disruptive behavior in our workplace [.] All reports of incidents will be taken seriously and will be dealt with appropriately. Individuals who commit such acts may be removed from the premises and may be subject to disciplinary action, criminal penalties, or both. Definitions: Workplace violence is any physical assault, threatening behavior, or verbal abuse occurring in the workplace. Such behavior can include oral or written statements, gestures, or expressions that communicate a direct or indirect threat of physical harm. Although there was no evidence anyone believed Mr. Rhodes’ “lashes” or “hit-list” statements were real threats of violence, these statements could be considered a form of intimidation, disruptive behavior, and verbal abuse under the policy. These comments, however, when taken in the context of Respondent’s history of verbal altercations with co-workers, and coupled with the fact he was told that these statements may be misinterpreted, constitute violations of the City’s Workplace Violence Prevention Policy. Violation of the City’s Employee Standards The PBMP contains the following relevant standards and instructions: INTEGRITY STANDARDS The following standards represent Integrity issues of such a serious nature that immediate formal discipline, up to and including termination, may be recommended. Violation of the City Workplace Violence Policy. Violation of the City Equal Employment Opportunity (EEO) Policy. * * * EXCELLENCE STANDARDS We will present a professional image through actions, dress, speech and behavior. We will strive for excellence and continuously learn and make improvements. We will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes. Again, Mr. Rhodes’ statements described above when considered cumulatively and in context clearly violate the standards for employee integrity. Mr. Rhodes’ continued use of these comments, even after being repeatedly counseled, violates the standards for professional image through actions and speech; continuously learning and improving; and modifying behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Dismissal Notice are sustained, and that Respondent be terminated as a City employee. DONE AND ENTERED this 6th day of September, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 6th day of September, 2018.
The Issue Whether Petitioner is entitled to licensure as a Class "D" Security Officer.
Findings Of Fact Respondent is the agency of the State of Florida charged with the licensing of Class "D" Security Officers. On November 6, 1991, Respondent received Petitioner's application for a Class "D" Security Officer License. By letter dated March 3, 1992, Respondent advised Petitioner that it was denying his application for two reasons. The first reason alleged that Petitioner had made a fraudulent or wilful misrepresentation in applying for his license and that the denial was pursuant to the provisions of Section 493.6118(1)(a), Florida Statutes. 1/ The second reason alleged that Petitioner had been guilty of the commission of an assault or battery or the use of force except in the lawful protection of one's self or another from physical harm and that the denial was pursuant to the provisions of Section 493.6118(1)(j), Florida Statutes. On August 15, 1992, Officer Phillip Frazin of the Metro Dade Police Department was dispatched to Petitioner's home in Dade County, Florida, on a priority call. When Officer Frazin arrived at Petitioner's home, he observed that Petitioner's wife appeared shaken and that she had sustained a lacerated and swollen lip. Officer Frazin also observed that Petitioner had been drinking alcohol and was verbally abusive to his wife and uncooperative. Petitioner's wife told Officer Frazin that she had been struck, pushed, kicked, slapped, and punched in the face by Petitioner. Petitioner's wife also testified that she was afraid that Petitioner would shoot her. Consequently, Officer Frazin took into custody a firearm that Petitioner kept in his house in a locked briefcase. 2/ Petitioner testified at the formal hearing that he had pushed his wife, but denied that she had sustained a lacerated and swollen lip. Petitioner also asserted that he does not drink alcohol. The conflict in the testimony of Officer Frazin and Petitioner is resolved by finding that Officer Frazin is the more credible witness. Consequently, it is concluded that Petitioner had been drinking on the night in question and that he had battered his wife and caused her to sustain a lacerated lip. On November 20, 1991, Petitioner was found guilty by Dade County Judge Cindy S. Ledderman of the charge of battery on his spouse following a bench trial. Adjudication of guilt was withheld and Petitioner was fined and placed on probation for a period of six months. Petitioner successfully completed his term of probation on May 11, 1992.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Petitioner's application to be licensed as a Class "D" Security Officer. DONE AND ORDERED this 18th day of August, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1992.
