The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At the times pertinent to this proceeding, Respondent was an owner and operator of Myrliflore Hair and Nail Design, which is a beauty salon. Her first location of this establishment was at 2471 Pembroke Road, Hollywood, Florida. She later closed the shop on Pembroke Road and reopened her shop at 730 N.E. Hallandale Beach Boulevard, Hallandale, Florida. At the time of the formal hearing, Respondent was operating her beauty salon at the Hallandale location. On September 8, 1990, and on February 13, 1991, Leonard Baldwin, an inspector for the Department of Professional Regulation inspected Respondent's shop at 2471 Pembroke Road, Hollywood. Respondent's shop was open for business and was doing business at the time of Mr. Baldwin's visits. Respondent had failed to obtain a license for her beauty salon from Petitioner prior to engaging in business. Respondent does not dispute that she operated her beauty salon in Hollywood without a license for the shop. Respondent testified that she had not secured a salon license for her location in Hollywood because she had only recently come to the United States from Haiti and she had not known that a license was required. Between February 13, 1991, and March 22, 1991, Respondent closed her beauty salon located at 2471 Pembroke Road, Hollywood, and reopened her beauty salon at 730 N.E. Hallandale Beach Boulevard, Hallandale, Florida. On March 22, 1991, Mr. Baldwin inspected Respondent's beauty salon at the Hallandale address and found several violations of sanitation standards that had been established by rule. At the time of Mr. Baldwin's inspection, the implements for the nail station did not appear to have been sanitized, the equipment on the hair dresser's station was not clean and sanitized, instruments stored in a closed cabinet were not clean and sanitized, and the sanitation rules were not displayed. Respondent denied that her shop failed to meet sanitation standards as related by Mr. Baldwin. The conflict in the testimony is resolved by finding that the greater weight of the evidence establishes the sanitation violations to which Mr. Baldwin testified. It is found that on March 22, 1991, the implements for the nail station had not been sanitized, the equipment on the hair dresser's station was not clean or sanitized, instruments stored in a closed cabinet were not clean or sanitized, and the sanitation rules were not displayed. Respondent promptly corrected all sanitation deficiencies noted by Mr. Baldwin following the inspection of March 22, 1991.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered a Final Order be entered that finds the Respondent guilty of the violations alleged in Counts I and II of the Administrative Complaint and which assesses against Respondent an administrative fine in the amount of $750.00. DONE AND ORDERED this 29th day of July, 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 29th day of July, 1992. Copies furnished: Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kaye Howerton, Executive Director Board of Cosmetology Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Roberta L. Fenner, Esquire Department of Professional Regulation Northwood Centre, Suite 60 Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0792 Myrliflore DeJean, pro se 730 N.E. Hallandale Beach Boulevard Hallandale, Florida 33009
The Issue Whether Respondent Department of Corrections (Respondent or the Department) constructively discharged Petitioner Lou Armentrout (Petitioner) in violation of the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by subjecting Petitioner to a hostile work environment because of Petitioner’s race, age, or gender.
Findings Of Fact Petitioner is an Asian female born February 25, 1970. Petitioner speaks Chinese and English. Petitioner speaks with a Chinese accent. She does not speak or understand Spanish. Respondent is a state agency responsible for “the incarceration and supervision of offenders through the application of work, programs, and services." See § 20.315(1), Fla. Stat. At all material times, Respondent employed more than 15 persons. Petitioner was employed by Respondent at its Lake Correctional Institution (Institution) from September 16, 2011, until October 12, 2012, as a Senior Registered Nursing Supervisor. Petitioner's duties as a Senior Registered Nursing Supervisor included the supervision of approximately 80 nurses at the Institution. While employed at the Institution, Petitioner worked directly under the supervision of the Institution's Chief Health Officer. When Petitioner was hired, the Chief Health Officer was Dr. Moreno. Dr. Moreno’s annual performance evaluation of Petitioner for the period ending February 29, 2012, gave Petitioner an overall 3.51 performance rating score, indicating that Petitioner “consistently meets and may occasionally exceed the performance expectation of the position.” Petitioner never received an evaluation score below a 3, indicating that the employee at least “meets expectation,” on any written evaluation of her performance while she was employed by the Institution. After Dr. Moreno resigned in April or May 2012, Dr. Virginia Mesa was hired as Chief Health Officer of the Institution in May of 2012. Dr. Mesa is Hispanic. Dr. Mesa’s supervision was often harsh. Dr. Mesa had a bad temper and would raise her voice and reprimand employees in the presence of others, including inmates. Dr. Mesa described her supervisory style as the “team approach.” She advised that, instead of meeting with employees individually, she would meet them as a “team.” She would meet every morning with the nurses in the medical unit and once a week in the psych unit. Petitioner attended these meetings. During the meetings, Dr. Mesa would often address the group, many of whom were Hispanic, in Spanish instead of English. Many of the discussions were regarding Dr. Mesa’s medical direction and discussion about patients’ cases. Dr. Mesa knew that Petitioner did not speak Spanish. On more than one occasion, Petitioner asked Dr. Mesa what was being said, and Dr. Mesa would reply, “Ask one of the nurses.” Although Dr. Mesa never specifically mentioned Petitioner’s race, age, or gender, she treated Petitioner harshly and made fun of Petitioner’s Asian accent behind her back. On one occasion, while Petitioner was not present, Dr. Mesa made a joke of Petitioner’s pronunciation of a word by substituting Petitioner’s mispronunciation with a vulgar term, repeating the word a number of times in the presence of other employees and laughing with those employees while poking fun at Petitioner. While not mentioning Petitioner’s race, it is evident that the joke was designed to ridicule Petitioner on account of Petitioner’s race.2/ Petitioner was made aware by others that Dr. Mesa belittled her behind her back. Dr. Mesa’s contempt for Petitioner was overt. Dr. Mesa would raise her voice and glare at her, and challenge Petitioner’s competence as a supervisor and medical professional in front of others in a bullying way. Dr. Mesa would humiliate Petitioner by testing Petitioner’s bedside nursing skills in front of other nurses and inmates, knowing that Petitioner had not been working as a nurse for a number of years, primarily because Petitioner had been working in an administrative position. Feeling as though her authority was being undermined by Dr. Mesa, and wanting to improve her business relationship and obtain some direction from Dr. Mesa, Petitioner asked for private meetings with Dr. Mesa on numerous occasions. Dr. Mesa refused. In addition, despite Petitioner’s continued requests that she use English, Dr. Mesa continued to address Hispanic staff in Spanish during morning staff meetings. Dr. Mesa did, however, meet privately with Gary Assante, a white male, who, although not licensed in a medical profession, was an administrator with the Institution with lateral authority to that of Petitioner. Instead of giving directions directly to Petitioner, Dr. Mesa would give directions through Mr. Assante to Petitioner. Some of the directions were of a medical nature. Dr. Mesa would also use nurses supervised by Petitioner to deliver directions to Petitioner. Dr. Mesa’s tactics undermined Petitioner’s supervisory authority. Petitioner became frustrated because Dr. Mesa’s tactics were interfering with Petitioner’s ability to do her job. Petitioner complained to the assistant warden of the Institution, Assistant Warden Young, of Dr. Mesa’s intimidation and behavior. In particular, Petitioner complained that, in addition to her intimidation of Petitioner, Dr. Mesa threatened nursing staff members with termination on several occasions. Assistant Warden Young set up a meeting between Petitioner, Mr. Assante, and Dr. Mesa to discuss the issues in July 2012. During the meeting, Dr. Mesa stated that she is paid too much to listen to the allegations. Despite Petitioner’s complaints, Dr. Mesa’s intimidating behavior continued. On August 22, 2012, without any prior warning of disciplinary action, Dr. Mesa brought Michelle Hanson to Petitioner’s office. Michelle Hanson was the Regional Nursing Director of the Department’s Region 3 Office, which included the Institution. During the meeting, Dr. Mesa questioned Petitioner’s competency as a nurse and told Petitioner that she wanted to demote her. Petitioner told Dr. Mesa that she did not want a demotion and asked Dr. Mesa to specify the problems with Petitioner’s performance. Dr. Mesa never did. In fact, there is no evidence of verbal counseling or reprimands from Dr. Mesa in Petitioner’s personnel file. Dr. Mesa never provided a written evaluation of Petitioner’s performance while Petitioner was employed by the Institution. Near the end of August or early September, Petitioner verbally complained to the Institution’s warden, Warden Jennifer Folsom, about Dr. Mesa’s behavior. Dr. Mesa’s intimidation continued. On September 16, 2012, Petitioner provided Warden Folsom with a letter explaining how Dr. Mesa’s “workplace bullying” was adversely affecting Petitioner and the workplace environment, asking “higher level management for assistance and to make a reasonable working environment,” and advising that Dr. Mesa had asked Petitioner to take a demotion. Petitioner’s letter explained, in part: I strongly feel workplace bullying is linked to a host of physical, psychological, organizational and social costs. Stress is the most predominant health effect associated with bullying in the workplace. My experience with workplace bullying is developed poor mental health and poor physical health, inability to be productive and loss of memory and fear of making key decisions. Recently, I also turn to other organizations for job opportunities and I have been asked by Dr. Mesa and Mr. Assante where do I go for interview and how long will this last by asking for days and hours for interviewing. My fearful of retaliation even made me so scared to ask for job interviewing. Petitioner met with Warden Folsom the next day, September 17, 2012. During the meeting, Warden Folsom assured Petitioner that Dr. Mesa did not have the authority to demote her, and gave Petitioner someone to contact in Employee Relations regarding her concerns. Warden Folsom followed up the meeting with a letter dated September 17, 2012, stating: It has come to my attention that you have alleged harassment by your supervisor. You are being provided the name and contact number for the Intake Officer at the Regional Service Center. Norma Johnson (407)521-2526 ext. 150 Please be aware the Department does not tolerate inappropriate behavior in the workplace. Your allegations will be looked into and any appropriate action taken. The letter was signed by Warden Folsom and a witness, as well as by Petitioner, acknowledging receipt. It was copied to Norma Johnson, Employee Relations. After that, Petitioner spoke a couple of times by telephone with Norma Johnson. She told her that Dr. Mesa was continuing to harass and bully her in the workplace, and that Dr. Mesa was causing a hostile work environment. Despite Petitioner’s complaints, nothing changed. It is apparent that Petitioner’s complaints were ignored. In fact, Dr. Mesa claimed that she never heard about complaints that she treated individuals that are Hispanic differently than she treated Petitioner, and could not recall if the Warden ever approached her regarding Petitioner’s complaints. Incredibly, Dr. Mesa testified that she was not made aware of Petitioner’s complaint that she was speaking Spanish and Petitioner could not understand until after Petitioner left her employment with the Institution. After Petitioner’s meeting with the Warden and conversations with Norma Johnson, Dr. Mesa continued to speak Spanish at meetings with staff and Petitioner could not understand. Dr. Mesa continued to direct Petitioner through other employees. And Dr. Mesa continued to raise her voice and challenge Petitioner’s competence in front of other employees. The evidence supports Petitioner’s claim that the way she was treated was discrimination, based upon Petitioner’s race. The evidence does not, however, support Petitioner’s claims that she was discriminated against based upon Petitioner’s age or gender. The harsh treatment Petitioner received, based upon her race, undermined Petitioner’s supervisory authority and interfered with Petitioner’s ability to do her job. The discrimination was overt, continuous, and created a hostile work environment that was intolerable. Petitioner, in essence, was forced to leave the employ of the Institution. Approximately two weeks later, on September 28th or 29th, 2012, after deciding that she could no longer endure the situation, Petitioner sent the following letter to Dr. Mesa and Warden Folsom: Dear DOC: Please accept this letter as my formal notice of resignation from Senior Registered Nurse Supervisor effective 10/12/12. This is the most difficult decision I have ever made throughout my career; however, my time here at Lake Correctional Institution has been some of the most rewarding and memorable years of my professional life. I sincerely appreciate the opportunities that I have been given to contribute to the organization’s success, while growing professionally and personally. Sincerely, Lou Armentrout Cc Human Resource: Please leave all my leave times (annual and sick leaves) in people first until receiving notification from me. Thank you for your assistance. In the year following Petitioner’s resignation, the health care services were privatized and provided by Corizon Health, Inc. Most employees kept their jobs that they held prior to privatization. Had Petitioner remained with the Institution, it is likely that she would have transitioned over to an equivalent position with Corizon Health, Inc. After leaving the Institution on October 12, 2012, Petitioner obtained a job with the Department of Health on October 26, 2012. Petitioner suffered a loss of pay in the amount of $2,222.40 during the period of her unemployment between October 12, 2012, and October 26, 2012. Petitioner’s pay at her new job with the Department of Health is $299.32 less per two-week pay period than her job at the Institution. $299.32 per two-week pay period equals $648.53 less each month ($299.32 X 26 weeks = $7,782.32/year ÷ 12 months = $648.53/month ÷ 30 = approximately $21.62/day). The time period between the date Petitioner began her new job with the Department of Health on October 26, 2012, and the final hearing held January 16, 2015, equals 26 months and 21 days. The loss in pay that Petitioner experienced in that time period totals $17,315.80 ((26 month x $648.53/month) + ($21.62/day x 21 days) = $17,315.80). The total loss in pay ($2,222.40 + $17,315.80) that Petitioner experienced from her resignation until the final hearing is $19,538.20. Petitioner also drives 92 miles further each work day to her new position with the Department of Health. The extra cost that Petitioner incurs to get to her new job, calculated at the State rate of $0.445 per mile, equals $40.94 per day. Taking into account 260 work days per year (5 work days per week), from beginning of Petitioner’s new job through the date of the hearing equals a total of $23,663.32 (578 days x $40.94/day), without subtracting State holidays or vacation days. Subtracting nine State holidays and two weeks for vacation each year results in a total of $21,943.84 to reimburse Petitioner for the extra miles driven each work day through the day of the final hearing (536 days x $40.94/day).
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: Finding that the Department constructively discharged Petitioner Lou Armentrout by subjecting her to a hostile work environment on account of Petitioner’s race in violation of the Act; Ordering the Department to pay Petitioner $19,538.20 in back pay through the date of the final hearing, January 16, 2015, plus $21.62 per diem thereafter through the date of the Commission's final order, with interest accruing on the total amount at the applicable statutory rate from the date of the Commission's final order; Ordering the Department to pay Petitioner $23,663.32, as an additional aspect of back pay, for extra daily travel expenses incurred to get to and from her new job through the date of the final hearing, plus $40.94 for each work day thereafter that Petitioner drives to her new job through the date of the Commission's final order, with interest accruing on the total amount at the applicable statutory rate from the date of the Commission's final order; Ordering the Department to make arrangements to reinstate Petitioner to an equivalent position with Corizon Health, Inc., for service at the Institution; Prohibiting any future acts of discrimination by the Department; and Awarding Petitioner her costs incurred in this case. DONE AND ENTERED this 29th day of April, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2015.
The Issue Whether the Respondent committed an unlawful employment practice by terminating the Petitioner’s employment on the basis of handicap.
Findings Of Fact The Petitioner, John Tadlock, (Tadlock) is a white male, age 46, and a resident of Panama City, Bay County, Florida. The Respondent, Westinghouse Electric Company, d/b/a Bay County Energy Systems, Inc. (Energy Systems), was and is a corporation organized and existing under the laws of the State of Florida. Energy Systems maintains a facility that collects garbage and burns it as fuel. The operation serves two basic functions. First, it disposes of unwanted garbage. Second, it produces energy by creating steam that in turn drives a turbine and produces electricity. From January, 1987, until September, 1993, Tadlock was employed by Energy Systems. Tadlock began as a B-class maintenance mechanic and advanced to the position of A-class maintenance mechanic. Subsequently, Tadlock moved to the operations portion of the company where he worked on boilers. Tadlock testified that he suffered injuries while at work during the years 1987, 1991, and 1993. Tadlock further testified that after each injury he recovered fully and resumed work at Energy Systems. As a result of the injuries sustained in his accidents at Energy System, Tadlock never testified that he was informed by any physician that he would have any permanent restrictions. In addition, at no time did Tadlock inform his employer, Energy Systems, that he suffered from any disability or restrictions relating to his ability to perform his job. During the period from October, 1991 through September, 1993, Tadlock had been cited for numerous violations of company policy and provided written warnings or reprimands. The first such violation occurred on October 24, 1991, when Tadlock was cited for violating company policy by failing to wear appropriate safety gear. Specifically, Tadlock failed to wear his indirect venting goggles. The memorandum memorializing the complaint noted that just two days prior to the complaint, Tadlock had received emergency training and, in response to a direct question raised by Tadlock, was informed that he must wear venting goggles. On September 17, 1992, Tadlock was cited for a safety violation for failing to wear appropriate hearing protection devices. As a result of this violation, Tadlock was given an oral warning. On June 3, 1993, Tadlock was cited for failing to wear gloves while on the floor of the facility. As a result of this violation of safety procedure, Tadlock was orally counseled on the correct policy and informed that such departure from set safety procedures would not be acceptable. On June 14, 1993, Tadlock was cited for failing to wear a personal respirator while in specific areas of the facility in violation of published safety procedures. On June 25, 1993, Tadlock received a written warning regarding his “unsatisfactory” safety record. Specifically, Tadlock was informed that he had a total of eleven accidents since his employment and that five of them were reportable to OSHA. The memorandum warned Tadlock that if he failed to show “immediate and sustained” improvement in his accident rate that he would be subject to disciplinary action. On July 30, 1993, Tadlock was verbally warned for failing to properly replace “pig pans” under an air dryer that resulted in oil running into a water drain. On August 31, 1993, Tadlock was verbally warned for failing perform his duties as an outside operator by failing to properly read his turnover log. As a result of his lack of action, Tadlock placed 55 gallons of bleach into a drainage basin. On September 19, 1993, Tadlock was informed, for a second time, that his safety record continued to be unsatisfactory. The letter referenced two accidents that occurred in August, 1993, that could have been avoided by practicing proper safety measures. As a result of those accidents and for his many past safety violations, Tadlock was suspended for three working days. Tadlock was offered employee assistance to help him perform his work in a more satisfactory and safe manner. On September 28, 1993, Tadlock was cited for a safety violation for failing to wear the appropriate shields on his prescription glasses. On October 10, 1993, Tadlock was cited for failing to properly maintain a boiler operator sheet log. This was the second time that Tadlock had been cited for improper maintenance of a log. Tadlock was also informed that if this type of action happened again, it would result in discipline. On October 15, 1993, Tadlock was observed urinating on the Boiler Room floor of the facility. Tadlock was cited for violating several rules of company conduct. A result of violating this company policy, coupled with the countless verbal and written warnings he had received, Tadlock was dismissed for cause. At the hearing, Tadlock admitted that he urinated on the floor of the facility but countered that he had no choice because Energy Systems failed to properly maintain its restroom. Tadlock was unable to support his assertion that there were no operating restroom facilities. First, in spite of every witness called by Tadlock, there was no testimony, even from Tadlock himself, that any of the bathrooms were not in working order.4 Energy Systems maintained that it had operational restroom facilities throughout its facilities. In addition, no competent evidence was presented that indicated that any of the restroom facilities were inoperable thus requiring someone to urinate in the middle of the facility. After being fired for the numerous safety violations and for violating company policy, Tadlock filed a complaint with the Commission on Human Relations alleging that he was discriminated against because of his handicap. Specifically, Tadlock asserted that he had suffered several on-the-job injuries that rendered him disabled and that he was discriminated because of the type injury or the lack of adequate medical treatment that he received. Such allegations were never proven and appear irrelevant to these proceedings. Specifically, any issues relating to his medical treatment and his injuries are more appropriately resolved in a worker’s compensation forum. At no time during his employment with Energy Systems did Tadlock inform his employer that he suffered from a handicap. Furthermore, there is no evidence that Energy Systems was aware that Tadlock suffered a disability or handicap. For example, Mr. James M. Leddy, the plant manager for Energy Systems testified that he was not aware of any condition which prevented Tadlock from functioning in a normal manner. The record is void of any evidence by a physician to indicate that Tadlock was considered disabled or handicapped. Mr. Dale J. McKeand, Manager of Plant Operations for Energy Systems, stated that Tadlock was not disabled and never asked for any accommodation for his “condition.” In addition, Mr. Richard S. Brookins, an industrial hygiene, safety and environmental coordinator for Energy Systems, stated that Tadlock worked full-time with no medical or duty restrictions and that he was terminated for his safety violations including urinating on the boiler room floor. Assuming that Tadlock could prove that he was handicapped, his actions after he was dismissed do not indicate a person with a handicap. Specifically, immediately after Tadlock’s dismissal, Tadlock opened a skinning shop for the purpose of skinning wild game (alligators, etc.). Skinning is a very physical job and it requires an individual to handle large game animals for the purpose of skinning hides from the carcasses of the animals. For the reasons stated above, there is no evidence to support that Tadlock was dismissed for any reason other than cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that this matter be dismissed with prejudice. DONE and ORDERED this 27th day of March, 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 27th day of March, 1997.
Findings Of Fact At all times relevant hereto respondents, Selma Fruman and others, were the owners of a 14-unit apartment complex known as the Greenville Apartments located at 1701 North Treasure Drive North Bay Village Florida. Respondents hold license number 23-8285 issued by petitioner, Department of Business Regulations Division of Hotels and Restaurants (Division), and are subject to that agency's regulatory jurisdiction. On or about September 2D 1985, a Division environmental health specialist conducted a routine inspection of respondents' facility to determine if health and safety standards were being maintained. All such facilities must be inspected at least twice during each fiscal year. The inspection was made in the presence of respondents' representatives. The specialist found the following items to be in noncompliance with Division rules: fire extinguishers were not recharged as required by Rule 7C-1.04(1), Florida Adminis- trative Code, combustible and flammable materials were stored in the electric meter room in viola- tion of Rule 7C-1.03(2), Florida Administra- tive Code, the building had flaking and peeling paint in contravention of Rule 7C-1.03(1), Florida Administrative Code, and trash, debris and junk were lying in the rear of the property in violation of Rule 7C- 1.03(5) and (7), Florida Administrative Code. Through testimony at hearing it was established that the deviations from agency rules constituted a threat to the tenants' healthy safety and welfare. A copy of the report listing the above violations was sent to respondents by certified mail. The report warned that all violations must be corrected within ten days of receipt of the notice. The notice included the name and telephone number of the specialist who conducted the inspection. On October 23, 1985, the Division specialist returned to respondents' facility to ascertain if the deficiencies had been corrected. The specialist found none of the four items had been corrected. A notice to show cause was then issued by the Division on November 1, 1985. However, respondents apparently requested an informal conference to discuss the violations and one was scheduled on a later date. After missing the conference, the manager of respondents' facility (and brother of one of the owners) wrote a letter on December 20, 1985 requesting a second conference and advising that "the four items mentioned to be corrected Items a, b and c, have been done and the building has been scheduled for painting the second week of January, 1986." On January 24, 1986, the specialist made a return visit to the facility and found items a and b had been corrected while the violations in items b and c were unrepaired. At an informal conference held on January 29, 1986, respondents disputed the findings of the Division and requested a formal hearing. That prompted the instant proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED that respondents be found guilty as charged in the notice to show cause, and that a $2,000 civil penalty be imposed to be paid within thirty days from date of the final order entered in this proceeding. DONE and ORDERED this 15th day of May, 1986, in Tallahassee Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986. COPIES FURNISHED: Lynne A. Guimby, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee Florida 32301 Mr. Morris Liebman 1701 N. Treasure Drive North Bay Village, Florida 33141 Mr. R. Hugh Snow, Director Division of Hotels & Restaurants Department of Business Regulation 725 S. Bronough Street Tallahassee Florida 32301
Findings Of Fact At all times relevant hereto, Michael Gieseke was employed by the City of Safety Harbor as a Laborer 3 in the Sanitation Department. He had been so employed for approximately nine months on February 1, 1991. On January 29, 1991, shortly before clocking out time, Gieseke was in the Sanitation Department breakroom with most of his coworkers. People were talking, laughing and, in general, relaxing following the day's work. The breakroom had six picnic-type tables at which the various employees were sitting. Respondent was sitting at one of these tables facing away from the table. Behind Respondent at the same table, Eric Davis was straddling the bench, and was engaged in conversation with Grover Smith, his and Respondent's supervisor. This conversation was fairly loud and punctuated by loud laughter by Davis. For several minutes this loud laughter had persisted very close to Respondent, and on one or more occasions Respondent had requested Davis stop shrieking in his ear. These protests were not honored by Davis. Several witnesses described Davis' laugh as often irritating. Finally, Respondent got up and picked up a broom near the time clock and returned to his seat with the broom handle resting on his shoulder, held in his right hand with the bristle part between him and Davis. Respondent swung the handle of the broom back and forth likewise moving the bristle end. In so doing, the bristle end of the broom struck Davis on the side of the head. As described by Davis, the blow was sufficient to make one aware he had been hit but not hard enough to make one cry. Davis jerked the broom aside and got up and put his hands around Respondent's neck. Realizing that participating in a fight could lead to dismissal, Davis refrained from tightening his grip on Respondent's neck and merely told Respondent not to do that again. During his rounds that day, Respondent had picked up a discarded razor- knife with which he had been cleaning his fingernails since entering the breakroom. This knife consisted of razor-like blades joined lengthwise which are encased in the sheath of the knife and extend from the sheath in a cutting position by pushing a button on the outside of the sheath and pushing the blade outward. This knife was held in Respondent's left hand with the blade extended approximately 1/2 inch. When Davis was hit by the broom and grabbed Respondent around the neck, one supervisor reminded Respondent that [for drawing a knife] a person would be fired, and another supervisor told both parties to knock it off, which they did. During this slight altercation, Respondent made no effort to use the knife or even threaten to use the knife. The following day, one of the supervisors who was in the breakroom when the altercation occurred reported the incident to the Director, Public Works Department, who had the incident investigated by Kurt Peters, Assistant Public Works Director. Peters is not a Division Director, but was authorized to investigate the incident by Wayne Logan, Jr., the Interim City Manager, Safety Harbor, with the authority to take all disciplinary action taken in this case. Following the investigation, Peters concluded that Respondent had been responsible for the incident and reported this to the City Manager who concurred. On Friday, February 1, 1991, with authorization from Logan, Peters told Gieseke that effective immediately he was being placed on unpaid leave for five days. On Monday, February 4, 1991, Gieseke was on unpaid leave, and the decision was made to terminate Gieseke's employment with the City. Accordingly, the letter to Gieseke dated February 4, 1991 (Exhibit 1) so advising him was sent to Gieseke's home address. This registered letter was not received by Gieseke from the post office, and he learned of the letter when he returned to pick up a pay check.
Recommendation It is recommended that Michael Gieseke be found guilty of violating Rule 24, Section C, Items 7 and 16, of the City of Safety Harbor Civil Service Rules, that the five day suspension be approved, that the subsequent dismissal for the same offense be disapproved and that Gieseke be restored to duty by the City of Safety Harbor with back pay for the period commencing at the conclusion of his period of suspension. ENTERED this 20th day of June, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1991. APPENDIX Proposed findings submitted by Petitioner are accepted, except for: Paragraph 5, second sentence that Respondent retracted the blade and lowered the knife. No evidence was presented that the blade was ever extended more than 1/2 inch or that Respondent raised the knife as if to use it against another. Paragraph 6, penultimate sentence, insofar as it intimates the decision of the City Manager to terminate Respondent was made on February 1, 1991. On February 1, 1991, the City Manager authorized the suspension of Gieseke for five days. COPIES FURNISHED TO: THOMAS M. GONZALES, ESQUIRE POST OFFICE BOX 639 TAMPA, FL 33601 JOHN K. FINCH, ESQUIRE WILLIAM WIGGINS, ESQUIRE 323 MAIN STREET SAFETY HARBOR, FL 34695
Findings Of Fact Respondent Tom E. Connelly, operates a restaurant at 3620 South Atlantic Avenue, Daytona Beach, Florida. That restaurant is known as Sally's Donut Shop. Respondent holds a license issued by the State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, license number 74-16O5R. That license on its face indicates that the license is for food service with a seating capacity of eight and a class of service known as ZK. In addition, Respondent holds an occupational license issued by Volusia County, Florida, which indicates that the establishment is a restaurant with zero to thirty seats. Connelly has also been issued a license by the City of Daytona Beach Shores, Florida. In that license the business is described as a coffee shop. It is indicated that the establishment has eight seats. Finally, Respondent has been issued a permit from the Volusia County Health Department to operate the food service establishment in question. Respondent is the most recent proprietor in a series of individuals who have utilized the licensed premises for purposes of operating a restaurant. Quentin Freeman opened the licensed premises in May of 1973 and operated until January 1, 1974. At the time of his ownership the business was primarily involved with serving customers coffee and donuts. The premises had one restroom available for customers and access to that restroom was through the food preparation area. The hand washing facilities for employees of the establishment were found in the bathroom. There was no duplication of hand washing facilities for the benefit of employees in the food preparation area. Mr. Freeman held the necessary permits to operate the restaurant. Tables and chairs were available to the patrons of the restaurant and they were located within the premises proper. There were two tables and four chairs. The patrons used those tables and chairs when consuming the food served at the licensed premises. Those tables and chairs assisted Freeman in his enterprise, in that they were deemed to be of value to his business operation. Freeman also served sandwiches. The sandwiches which were served were not cooked on the licensed premises. An additional feature of the business was a takeout service where patrons would purchase their food and leave the premises before consuming the food purchased. A stove or range which is now present in the licensed premises was not there during Freeman's ownership. A donut machine with hood was located in the premises at the time of Freeman's ownership and at present. At present there are more tables and chairs in the restaurant than was the case when Freeman was the proprietor. There are now four tables in the licensed premises. Freeman was never cited with any form of violation related to licenses issued by the state, county or municipality, pertaining to the operation of his food establishment. Freeman sold the business to Dorothy and Adolf Becker. He has continued to frequent the licensed premises and has observed that tables and chairs have remained in that business premises from the time of his ownership to the present. The business has not significantly changed in that period, in the way of any reconstruction. Alterations that have been made in the licensed premises since the time of the Freeman ownership pertain to the change in location of a counter, the removal of a wall, the addition of tables and chairs, and the inclusion of the range or stove in the food preparation area. Freeman also had an ice cream machine in the licensed premises which has been removed. The Beckers operated the food service establishment from January 1974 through August, 1979. At the time of their operation, the business had only the one restroom in the licensed premises and access to that restroom was through the food preparation area. No hand wash facilities for the benefit of employees, with hot and cold water function, were found in the food preparation area. At the time of the operation by the Beckers, the stove or range which is presently located in the food preparation area was not installed. Becker was inspected during the ownership period by persons within the Volusia County Health Department who were acting in the capacity as representatives of the Petitioner. During the Becker ownership no citations were given by the Petitioner or other regulatory agencies related to deficiencies pertaining to the number of restrooms in the premises; the fact of access to the one restroom in the premises through the food preparation area; the non- existence in the food preparation area of a hand wash facility for the benefit of employees or the operation of the food service establishment without installing an exhaust hood over all the cooking gear, which hood had an automatic fire-extinguisher. Susan Niles purchased the premises from the Beckers. Niles operated the business as a donut and sandwich shop. Her ownership lasted from August 1979 through February 1981, when the business was sold to the Respondent. During her ownership Niles conducted a takeout food service, and served a small breakfast menu, with the food staples being sandwiches and donuts. In the beginning, she had two tables with three to four chairs each. She knocked out a wall and relocated the counter. She also added two or three smaller tables that would accommodate two to three chairs each. When she purchased the business there were some tables and chairs already located there. Those tables and chairs were on the inside of the licensed premises. She found the chairs and tables to be a valuable asset in the operation of the business. She had licenses necessary to conduct her business. Regular inspections were made of her licensed premises on the part of government officials, among them one James E. Jackson, an employee of the Volusia County Health Department, who inspected for the benefit of Petitioner. No citations were given for problems within the licensed premises, during Niles' ownership. During Niles' operation, approximately twenty percent of the business was for customer consumption of food on the premises with the balance being takeout. Niles added a stove or range, which is still in the licensed premises. Most of her cooking was done at home, away from the premises, and the stove was used to boil water for coffee and to cook an egg or prepare bacon. The stove which was added by Niles, did not have a vent system associated with it and still does not. Niles removed the ice cream machine which had been installed by the Freemans and was also operated by the Beckers. When Respondent took over the restaurant in 1981, he operated the business in essentially the same fashion as the prior owner. He sold donuts and sandwiches and served breakfast. The sandwiches were hot and cold sandwiches. The donuts were prepared on the premises. The donut making machine has a vent system associated with it and has had that feature at all relevant points in time. The kitchen stove or range which has been mentioned before has four top burners and it is used by Connelly to boil potatoes, for potato salad, for poaching eggs and frying eggs. In addition there is a microwave oven in the premises which is used for the preparation of bacon and sausage. Finally, the oven is used for cooking turkeys. In using the stove there Is a limited amount of steam and grease associated with its use. Connelly has made no changes to the physical layout of the licensed premises following his purchase of the business. Connelly has not added any tables or chairs subsequent to his purchase. At present there are four tables and eight chairs. When Connelly purchased the premises he verified the existence of necessary licenses and permits for the prior owner, to insure his ability to gain necessary licenses and permits for the prior owner, to insure his ability to gain necessary permission from those regulatory agencies. The licenses and permits issued to the prior owner led Connelly to believe that tables and chairs were associated with the business. He paid the proprietor $9,500.00 in cash and entered into a lease with the building owner. Connelly would not have purchased the business had he not understood that seating capacity for patrons would be made available. During the period of Connelly's ownership periodic inspections have been made of the premises. Prior to April 12, 1984, no citations had been given to Connelly related to the licensed premises. Moreover, and permit renewals have been granted Connelly at appropriate times within his conduct of business at the subject location. In the face of the present charges, Connelly has inquired of contractors on the subject of adding an additional restroom. Those two contractors on the subject of adding an additional restroom. Those two contractors have indicated that this cannot be achieved within the premises now occupied by Respondent. The State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, has a contract with Volusia County Health Department to inspect premises which are licensed by the state agency. In that connection, James E. Jackson and Karen Fisher, employees of Volusia County Health Department have inspected the licensed premises while Respondent has operated the business. Moreover, Jackson inspected the premises when it was owned by other proprietors, who have been previously identified. No citations were given by Jackson, notwithstanding conditions which are similar to what was discovered by Karen Fisher when she took over Jackson's inspection responsibilities for the licensed premises in question. Her responsibility began in February, 1984. After assuming the responsibility for inspecting Connelly's business, Fisher made a routine inspection and no citations were given to Connelly based upon that inspection. Subsequently, based upon remarks made by Connelly against a competitor, to the effect that the competitor was serving meals in the competitor's licensed premises, inappropriately, an inspection was made of that premises leading to the removal of tables and chairs from that premises. In turn, the competitor complained that Connelly was inappropriately providing tables and chairs for food consumption on premises in an establishment which could not allow that circumstance. This caused Fisher to return to the licensed premises on April 12, 1984, and to cite Respondent for violations as reflected in the notice to show cause document. In particular, Fisher noted on that date that the access to the restroom was not possible without crossing the food preparation area. She observed that there was only one restroom available on the licensed premises. She observed that the food preparation area did not have available a hand wash sink with hot and cold feature, which could be used by the employees within the licensed premises. She also noted that the range or stove which had the four burners and oven did not have a vent associated with that apparatus. That ventilation system is also referred to as a hood. Further inspections on April 18 and May 2, 1984, did not indicate a change in circumstance related to the areas identified by Fisher as being problems. Following the issuance of the notice to show cause, by the Petitioner, the items complained of remain in the same status as existed on April 12, 1984. Prior to this charge, Petitioner was unaware of the existence of seating in the licensed premises however, when the management or its designee, i.e., a supervisor within the Volusia County Health Department, learned of the problem of alleged rules violations, Petitioner then placed charges against the Respondent.
The Issue The issue in this case is whether the City of Clearwater properly dismissed Respondent, Diane C. Hashil, from her employment as a Toll Booth Attendant for inefficiency in the performance of duties, in violation of Rule 14, Section 1, paragraph (c), of the Civil Service Rules and Regulations of the City of Clearwater.
Findings Of Fact Respondent, Diane C. Hashil, was employed as a Toll Booth Attendant at the Sand Key Tollbooth by Petitioner, City of Clearwater, (the City), from July of 1992 until May 24, 1995. During the course of Respondent's employment with the City, Respondent has been the subject of numerous disciplinary actions, resulting in counseling, written reprimands, and suspensions. Beginning on December 6, 1993, and continuing through May 24, 1995, twelve disciplinary actions were taken against Respondent for charges including repeated discourtesy to customers, insubordination, failure to comply with verbal instructions, failure to follow policies regarding nonpayment of tolls, and entering the cash drawer of another employee without permission. Respondent's disciplinary action history includes the following actions: 1) On December 7, 1993, Respondent received a written warning for a Level 4, #2 offense (insubordination); 2) On December 21, 1993, Respondent was suspended for two days for a Level 2, #2 offense (discourtesy); 3) On January 26, 1994, Respondent was suspended for three days for a Level 2, #2 offense (discourtesy); 4) On August 10, 1994, Respondent received a letter of reprimand for a Level 1, #1 offense; 5) On January 12, 1995, Respondent received a letter of reprimand for a Level 4, #2 offense (insubordination); 6) On January 17, 1995, Respondent was given a letter of reprimand for a Level 2, #1 offense; 7) On March 9, 1995, Respondent was suspended for two days for a Level 3 offense (productivity); and, 8) On March 15, 1995, Respondent was suspended for five days for a Level 4, #2 offense (insubordination). In April of 1994, Respondent's employment with the City was terminated; however, the City reversed this decision, and Respondent subsequently remained in her position. On November 1, 1994, Respondent received an unsatisfactory performance evaluation. The primary basis for this evaluation was Respondent's continued discourtesy to patrons which had resulted in disciplinary actions against Respondent during the evaluation period. The City's employee performance ratings policy requires that an employee receiving an unsatisfactory rating be reevaluated in three months. On February 13, 1995, at her three-month follow-up reevaluation, Respondent again received an unsatisfactory performance rating. The basis for this evaluation was that Respondent had received repeated reprimands for insubordination, failure to follow rules, and entering the cash drawer of another employee without permission. On March 9, 1995, as a result of her unsatisfactory reevaluation, Respondent received a two-day suspension, and twenty disciplinary points. On March 15, 1995, Respondent was suspended for five days for insubordination. Respondent's appeal of these suspensions was upheld through the City Manager stage. Respondent did not seek further review of these suspensions. On May 5, 1995, at her second follow-up reevaluation, Respondent again received an unsatisfactory performance rating. Under the City's policy this unsatisfactory rating was automatic because Respondent had been suspended for five or more days during the rating period. In addition the second follow-up performance evaluation stated that Respondent filed a false police report alleging a customer had defrauded her, that Respondent entered the cash drawer of another employee without permission, and that Respondent was responsible for low morale of the other employees at the Sand Key Tollbooth. Respondent admits that she entered the cash drawer of another employee without permission, and that she kept a daily log of the activities of other employees which contributed to the low morale at the Sand Key Tollbooth; however, Respondent believed other employees were allowed to violate rules, and that she was being unfairly disciplined because she was female and not a member of the union. The evidence does not support a finding that other employees were allowed to violate rules, nor that Respondent was treated differently than other employees. The evidence does not reflect that Respondent was subjected to disciplinary actions because of her gender or her failure to join a union. During her employment at the Sand Key Tollbooth, Respondent received more complaints from customers and other employees than any other tollbooth attendant. Because Respondent had received two consecutive three-month reevaluations with an unsatisfactory rating, she was subject to termination under the City's policy. In addition, because Respondent had accumulated excessive disciplinary points she was subject to termination under the City's Guidelines for Disciplinary Action. The performance evaluations and the disciplinary actions taken with regard to Respondent were appropriate and consistent with those given other employees. Following her five-day suspension, Respondent filed a report alleging various rule violations of other employees. The City investigated Respondent's allegations and required three employees to attend counseling with regard to cash drawer procedures. The evidence does not support a finding that the City singled out Respondent for disciplinary actions. The City allowed Respondent to serve her five-day suspension over two pay periods to lessen the financial impact of her suspension. The City Harbormaster has employed other females within the department without incident. As of October 1995, the City has eliminated the position of tollbooth attendant because of the construction of a new Sand Key bridge which will, upon completion, be toll free. The City has assisted former tollbooth attendants in attempting to secure other positions of employment with the City. Subsequent to her termination, Respondent applied for a meter reading position with the City, but was not hired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The City of Clearwater Civil Service Board enter a Final Order dismissing Respondent from her position of employment with the City of Clearwater. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of November, 1995. RICHARD HIXSON 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 29th day of November, 1995. APPENDIX As to Petitioner's Proposed Findings: 1 - 12. Accepted and Incorporated. As to Respondent's Proposed Statement of Facts: Accepted, except that unauthorized entry into another employee's cash drawer violated City rules and regulations. Rejected as irrelevant. Rejected as not supported by the evidence. COPIES FURNISHED: Leslie K. Dougall-Sides, Esquire Paul Richard Hull, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Diane C. Hashil 1527 South Prospect Avenue Clearwater, Florida 34616 Ms. Cynthia Goudeau City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748
The Issue The issue is whether the Petitioner's imposition of an administrative fine of $300 upon the Respondent should be upheld.
Findings Of Fact Riverview Rest Home is an adult congregate living facility which is subject to licensing by the Petitioner. This facility was so licensed on the dates in question, and remains licensed to the present time. On July 23, 1980, members of the professional staff of the Petitioner inspected the Respondent. Based upon this inspection the Respondent was issued a list of violations and deficiencies. In addition to those which were subsequently corrected, the violations in issue are: (1) screens in the kitchen area in need of repair, (2) a toilet which could not be flushed, and was full of human waste, (3) dust and dirt accumulated in the bed frames, and window sills cluttered with dust, lint, cigarette butts, paper and cobwebs, and (4) dirt on the floor under beds. A reinspection of Riverview Rest Home was conducted on August 15, 1980, which revealed the following: A toilet accommodating 4 residents was semi-full of toilet paper, human urine and feces, and emitting a strong odor. Two residents were sitting or lying in rooms in close proximity to this toilet. An attempt to flush this toilet disclosed the tank to be empty and the water to have been cut off. When the water was turned on, the toilet began to leak in a large stream. The toilet seat was loose, broken, and not attached to the base. Heavy accumulations of lint, dust and dirt on bed frames, and window sills cluttered with dust, lint, cigarette butts, bits of paper and cobwebs. The outside screen door adjacent to the kitchen area was torn and in need of repair. Dirty and stained mattresses in resident rooms, dirty, urine stained, and soiled sheets on resident beds. Bathroom fixtures were dirty, stained, in need of cleaning, and the floor around toilets was dirty and wet. The table in the cottage where residents eat was dirty, and showed the residue of a previous meal or meals. Other violations or deficiencies were observed during reinspection, but the above are repeat occurrences of those first noticed on July 23, 1980. In addition, a fire marshall of the City of Holly Hills conducted a fire safety inspection of the Respondent facility on August 4, 1980, and found 5 violations of the City Fire Code. A reinspection was done on August 13, 1980, to verify corrections, and the gas hot water heater which had been found improperly vented, had not been corrected. A second reinspection on August 21, 1980, found the gas hot water heater then properly vented, but the emergency lighting system was not working. The Respondent, while not admitting the violations and deficiencies described above, presented no evidence to controvert the testimony of the Petitioners witnesses relative to the results of inspections of the Respondent facility. Essentially, the Respondents position is that all of the alleged deficiencies are first-time violations not subject to fine or penalty. However, there is adequate evidence in the record to support a finding that the violations for which a penalty was assessed were recurring deficiencies not corrected after the Respondent had been advised of their existence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's imposition of an administrative fine in the amount of $300 be upheld. THIS RECOMMENDED ORDER entered on this 12th day of January, 1981. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1981. COPIES FURNISHED: Leo J. Stellwagaen, Esq. Assistant District IV Counsel P.O. Box 2417 F Jacksonville, Florida 32231 Leo Siroky Riverview Rest Home 700 Daytona Avenue Holly Hill, Florida 32017
