The Issue Whether Respondent's refusal to attend an investigatory interview, scheduled for April 17, 2007, is a violation of the Florida Administrative Code Rule and/or School Board policy. Whether Respondent's conduct on April 17, 2007, rises to the level of just cause to terminate Respondent's employment as a teacher with Petitioner.
Findings Of Fact Respondent's employment as a teacher on annual contract with Petitioner began on August 1, 2005. Respondent's contract was renewed for the 2006-2007 school year, and he was assigned to teach at Bayshore High School. On March 14, 2007, Respondent received notification by his principal that he was not being recommended for reappointment for the 2007-2008 school year. Effective May 25, 2007, Respondent's contract with the School District, as a teacher at Bayshore High School, expired. On or about March 27, 2007, Debra Horne (Horne), the investigator for Petitioner's Office of Professional Standards (OPS), became aware of an allegation that Respondent was inappropriately close to a student in one of his classes. The OPS investigator is considered a "caregiver" under Chapter 39, Florida Statutes, and therefore, if she has a suspicion of child abuse, it is her duty to report it to law enforcement. On March 28, 2007, Child Protective Services (CPS) informed Horne that there was an allegation of possible inappropriate interaction against Respondent with a female student at Bayshore High School. The CPS Investigator, Tequila Crenshaw, advised her that she was in the process of conducting a joint investigation into the allegations with Detective McCabe from Crimes Against Children (CAC), a unit of the Manatee County Sheriff's Office. Horne inquired as to whether she could move forward with an OPS investigation. She was told that the CPS and CAC investigations were ongoing. At that point, Horne suspended her investigation. This was consistent with her practice of not moving forward until she got clearance from CPS and CAC. She did not wish to interfere or impede in their investigation in any way. On April 11 and 12, 2007, Horne received clearance from CAC and CPS, respectively. The two agencies informed her that they had concluded their investigations, and no criminal charges would be filed. Horne had continuing concerns about the alleged inappropriate interactions. She determined to go forward and conduct an internal investigation on behalf of the School District. On April 12, 2007, Horne called Respondent, by telephone, and directed him to report to the Office of Professional Standards on the following day, April 13, 2007, so that she could conduct an investigatory interview. Respondent was advised that failure to appear would result in a charge of insubordination. During the telephone conversation with Respondent, he confirmed that he was not a member of the union. Respondent asked if he could have his private attorney present during the investigatory interview. Horne responded that it was not permissible. Prior to their telephone conversation, Horne had received information from the Manatee Education Association (MEA), the teacher's union, that Respondent was not a member of the union. On April 13, 2007, Horne had a telephone message from attorney Melissa Mihok (Mihok), a specialist in labor and school law, stating that Mihok had been retained by Respondent to represent him in allegations of inappropriate interactions with students at Bayshore High School. Mihok asked if the interview scheduled on the 13th could be postponed until the 17th of the month, so that she could meet with Respondent prior to the interview. Soon after retrieving the telephone message from Mihok, Horne was advised that Respondent and a different attorney, James Dirmann, had arrived at the Office of Professional Standards (OPS). After greeting Respondent and his attorney, Horne requested that John Bowen, the Manatee County School Board Attorney, sit in on the discussion, since the employee's attorney was present. Bowen, Dirmann, Raven, and Horne sat at the conference table and discussed whether or not a private attorney would be allowed to sit with Respondent during his interview relating to this matter. During the conversation, Bowen made it clear that the private attorney would not be allowed to be present during Horne's investigatory interview with Respondent. Dirmann then advised Bowen and Horne that Respondent would not be answering any questions because he was being denied representation and, also, that he was invoking his Fifth Amendment privilege against self incrimination. Bowen advised Dirmann to seek the advice of a labor lawyer because his advice to his client, to not answer questions, could result in the termination of Respondent's employment. Melissa Mihok then participated in a subsequent discussion, on the same day, by telephone, which included all of the above participants. Dirmann and Mihok expressed a desire to confer with their client prior to an interview. It was agreed to postpone the investigatory interview until April 17, 2007, at 10:00 a.m., at the OPS office. Thereafter, Respondent received legal advice from Mihok regarding his rights in connection with the investigation by OPS. Respondent remained concerned that any information obtained by Horne, during the interview, would be shared with CAC and/or CPS, to his detriment. On April 17, 2007, Horne received a telephone call from Dirmann who stated that he had spoken with Mihok and they had advised Respondent not to participate in the OPS interview that was scheduled for 10:00 a.m., on April 17, 2007. Subsequently, Horne received a letter by facsimile from Dirmann, which stated in pertinent part: After further thought and consultation with me and with Mrs. Melissa Mihok, Attorney at Law, our client will respectfully decline to answer any questions regarding your current investigation. The letter from Dirmann to Horne, dated April 17, 2007, does not state that the reason Respondent would not submit to an interview was because he was not permitted to have an attorney present. Respondent did not appear at the rescheduled interview on April 17, 2007. Respondent was suspended without pay by the School Board effective April 24, 2007. Petitioner's policy, denying a non-union employee from having a private attorney present during an investigatory interview, had not changed. The School Board's policy regarding representation of School Board employees by private attorneys in investigatory interviews was subsequently delineated in a memorandum to School Board members and the Superintendent from School Board Attorney John Bowen in a memorandum, dated August 20, 2007. In that memorandum, which addressed "employee rights when meeting with the employer," Bowen stated that citizens do not have the right to have an attorney with them at all times. Bowen stated that, in accordance with the Sixth Amendment to the United States Constitution, a citizen has the right "to have the assistance of counsel for his defense," but that right is restricted to criminal prosecutions. Bowen noted that under Subsection 120.57(1)(b), Florida Statutes (2007), a person whose substantial interests are being determined by an agency is entitled to "be represented by counsel or other qualified representative" in a formal hearing, but that right is restricted to the formal hearing itself. It does not extend to meetings between the employee and the employee's supervisor or other administrators that precede the formal hearing. Bowen stated that Subsection 120.62(2), Florida Statutes (2007), provides that any person appearing "before any presiding officer or agency in an investigation or in any agency proceeding" has the right to be accompanied, represented, and advised by counsel or other qualified representative." Bowen pointed out that the right to counsel provided in Subsection 120.62(2), does not extend to meetings with an individual's supervisor or other administrator as they are not a "presiding officer" and they do not constitute an "agency" and such meetings are not an "agency proceeding." Bowen further advised the members of the School Board and the Superintendent that Florida's Public Employees Relations Commission (PERC) has held that a public employee is entitled to union representation, if requested, in any investigatory interview where the employee has a reasonable belief that disciplinary action may result from the interview. Bowen also noted that outside of the "Weingarten right," an employee does not have the right to have any representative at a meeting with the employee's supervisor or other administrator. The memorandum stated as follows: "It is the inherent right of the employer to direct employees. Employees have no right to place conditions on compliance with an employer's lawful directive. It is insubordination to refuse to meet as directed or attempt to impose conditions not agreed to by the employer. Such insubordination subjects the employee to discipline, including termination of employment. An attorney who counsels his or her client to refuse to meet with an employer puts that client in serious peril of termination." It is the practice of the OPS investigator to advise employees, who are not members of the MEA, that she has been informed that the MEA does not represent non-members. Consistent with Bowen's memorandum to the School Board Members and the Superintendent, employees, in the past, have been disciplined by the School Board for refusing to submit to an investigatory interview without their private attorney being present. The OPS investigator has been authorized by the School Board to investigate possible employee misconduct that may lead to disciplinary action more serious than a written reprimand. The Investigator conducts interviews in order to gather information to either clear an individual of the allegations made, or to substantiate the allegations based on the information given to the investigator by the witnesses. The Investigator's direct supervisor is the Staff Attorney with whom she consults on her investigations. After the investigation is completed, the investigator prepares an investigatory report, which is reviewed by the Staff Attorney for editing and addition of the "violations" section, if any. Once the report is complete, the investigator sets a meeting with the individuals in the chain of command of the employee, and a meeting is held during which a recommendation to the Superintendent is formulated. The OPS investigator attends the meeting. Her role is to answer questions about the report that she has prepared and to answer questions about past practices. After the meeting of these individuals, the Assistant Superintendent for the District takes the information to the Superintendent. Other employees of the School Board are also charged with investigating complaints that may lead to discipline, but only actions which may result in an oral or written reprimand. Any allegation that may result in discipline in excess of a written reprimand is only investigated by the OPS investigator. Superintendent Roger Dearing (Dr. Dearing) testified that the factual basis for his recommendation that Respondent be terminated was his refusal to come in and submit to an investigatory interview by the District's Office of Professional Standards. Dr. Dearing testified that Respondent's effectiveness had been impaired in the system as a result of his actions in not submitting to the interview. Allegations were made by peers, in this case, regarding Respondent, this warranted an investigation to make sure the safety and care of students was maintained. Dr. Dearing testified that he believed that Respondent's effectiveness had been impaired by his refusal to cooperate in an investigatory proceeding. This he is required to do under the School Board's rules and policies, and as a part of his professional ethics as a certificated individual. Dr. Dearing testified that Respondent's failure to cooperate left a "cloud of doubt" with the administration and the parents of other children who would be in Respondent's classroom. This impaired his effectiveness. Dr. Dearing also testified that, in his opinion, Respondent's refusal to cooperate constituted a violation of Florida Administrative Code Rule 6B-1.001(3), which provides: [a]ware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. Dr. Dearing also testified that he had a concern about an employee, who was allegedly having inappropriate interactions with a female student and who did not submit to an investigatory interview. This would be a violation of Florida Administrative Code Rule 6B-1.001(3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Manatee County enter a final order finding: Respondent did not violate any of the charges alleged in the charging letter; Reverse Respondent's suspension as a teacher without pay; and Compensate Respondent for the period from April 24, 2007, until the expiration of his contract, May 25, 2007. DONE AND ENTERED this 5th day of February, 2008, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2008.
Findings Of Fact The Business of Respondent The complaint alleges the Respondent admits and I find that the Respondent is a public employer within the meaning of Section 447.203, Florida Statutes. The Labor Organization Involved The Respondent disputes the complaint allegation that the Charging Party is an employee organization with the meaning of Section 447.203(10) of the Act. Evidence adduced during the course of the hearing establishes that the Charging Party is an organizational faculty at Brevard Community College which desires the betterment of teaching conditions at the college. It seeks to represent public employees for purposes of collective bargaining and in other matters relating to their employment relationship with the college. The Charging Party is registered with PERC and has petitioned PERC to determine its status as a bargaining representative. Testimony also indicates that employees are permitted to participate in the organizational affairs and a representation election was held on March 3, 1976, which Involved the Charging Party. Based on this undisputed testimony, I find that the Charging Party is an employee organization within the meaning of Section 447.203(10) of the Act. The Alleged Unfair Labor Practices Background Patrick D. Smith, is employed by Respondent as Director of College Relations and he also serves as the editor of a college communications organ called the Intercom. Smith's immediate superior is Dr. King, the College's President who has the final authority for determining the Intercom's content. The Intercom is distributed to faculty and staff members in their college mailboxes and is published weekly during the school year. The Intercom is printed in and distributed from Smith's office on campus. On January 21, 1976, Lewis Cresse (then the Charging Party's President and a BCC faculty member) called Smith at his office and advised that he (Cresse) would like to announce a meeting that the Charging Party would be having in the Intercom. Approximately one week later, Cresse met President King in the college's parking lot and specifically asked that the BCCFT (the Charging Party) be allowed to use the Intercom. King indicated that he had no intention of allowing the Charging Party to use the Intercom and it suffices to say that Smith denied Cresse the use of it for announcing a meeting that the Charging Party would soon be holding in the Intercom. It is by these acts, that the General Counsel issued his complaint alleging that the Respondent discriminatorily denied the Charging Party the use of the Intercom and the college bulletin boards as a means of communicating the Charging Party's announcements and meetings. In attempting to establish that the above acts constitute violations of Sections 447.501 and 447.301 of the Act, the General Counsel introduced testimony to the effect that the Brevard Vocational Association, an organization whose purpose is to maintain communications for the benefit of all vocational, industrial education instructors in Brevard County had been permitted useage of the Intercom. Evidence also established that individuals were allowed to advertise personal items which they desired to sell in the Intercom and that such useage included advertisements regarding rummage and garage sales and that the Brevard Chapter of Common Cause, an organization which seeks to improve the workings of government by making it more accountable to the citizenry had frequently utilized the college's bulletin system. The Respondent bases its defense on its position that including in the Intercom, a meeting notice for the Charging Party which not only gave the time and place of the meeting but also urged faculty members to attend would have possibly violated the Act, by giving illegal assistance to the union; and that in any event, the college was not required to run the employee organization's notice in a publication such as the Intercom. Smith informed Cresse of Respondent's decision not to permit the employee organization to use the Intercom as a communications organ and thereafter, no other requests to use Intercom was made by the employee organization. Based on Smith's undisputed testimony that he raised the issue with Dr. King, college President, whether the employee organization's request would be granted, and that he (King) raised the question with the college's attorney, I find that the Respondent's denial is an act which is properly chargeable to Respondent. In support of its position that the Respondent discriminatorily denied the Charging Party to utilize the Intercom, the General Counsel introduced the February 19, 1976 issue of Intercom which contained a statement to the effect that Lewis Cresse, a professor at the college, would be speaker at a monthly meeting of the Brevard Vocational Association. Another item included in the Intercom was a meeting notice for the American Welding Society wherein it was announced that Sam Reed was Granted permission to announce a meeting for the society. In both examples, it was noted that the Brevard Vocational Association and the American Welding Society are organizations which the Respondent's administration encouraged faculty and staff members to participate in and for which the college reimbursed employees for expenses resulting from out-of-town meetings. Respondent's position is that it works closely with the society in that it fulfills its educational mission by preparing instructors which ultimately fulfills the college's mission. The remaining complaint allegations concerns the issue of a discriminatory denial to the employee organization of access to the college's bulletin Boards. Evidence reveals that the college has a well established procedure for the approval of documents to be posted on the college's bulletin boards and that such procedures are enforced. Prior to posting, they must be approved by Mike Merchant, Manager of the Student's Center and that approval takes the form of either a rubber stamp which indicates approval which is thereafter initialed by Mr. Merchant, or he writes the work "approved" on the document with his initials and the date. The facts relative to this allegation stems from a request by the Charging Party to post campaign materials on bulletin boards throughout the campus. Dr. Kosiba, provost of the Cocoa Campus informed Mr. Merchant that this request should be denied and it was. This request was also denied based on Respondent's position that it was not obliged to honor union requests to post union meeting notices on its bulletin boards and further that the items requested were "promotional materials" which were in truth "highly controversial campaign literature intended to gain support for the union in the then upcoming election." The items introduced were (1) a bumper sticker which encouraged employees to vote for the union and (2) a red, white and blue document covered with banner, stars and an eagle entitled "working draft of proposed agreement." To sustain the complaint allegations, it must be shown that (1) the Charging Party made a request to use the Respondent's communication facilities which in this case involved the Intercom and its bulletin boards and a denial of such request, (2) that similar requests had been approved of a similar nature and (3) that other alternative means of access were not available to the Charging Party. As to the first point, there is no question but that the Charging Party requested and was denied permission to use the Respondent's bulletin boards and its communications organ, the Intercom. However, the record evidence fails to establish that the Respondent had honored similar requests by other organizations in the past. In fact, all of the evidence tends to establish that with respect to the items here in dispute, Respondent vigorously opposed unionization, as was its right, and to have permitted the Charging Party to use the bulletin boards and its communications organ here would have been tantamount to a passive approval of the very ideas to which it had vigorously objected to. Furthermore, records evidence established that the union had abundant opportunity and did in fact communicate extensively with the employees. Among these other alternative means were: The college permitted the Charging Party to hold campus wide meetings for the faculty and staff on campus during daylight hours. The college provided a bulk distribution table conveniently located near the post office which was regularly visited by faculty and staff members. The college had an established policy which would have permitted the Charging Party to designate a single bulletin board for the posting of announcements. The employee organization was able to communicate extensively with faculty and staff by the circulation of numerous documents that were delivered to staff offices. (See Public Employer's Exhibits #3 - #24). Via the "faculty and staff directory", the employee organization had access to all names, home addresses and phone numbers of all members of the bargaining unit. (See Public Employer's Exhibit #26). The employee organization had available the campus newspaper THE CAPSULE, for meeting notices, announcements, etc. Local newspapers disseminated in the Brevard County area reported extensively on the union's campaign and activities. (See Public Employer's Exhibit #24(a) through (t)). Based thereon, I find that the Charging Party had numerous alternative means to communicate with the employees and the record is void of any circumstantial evidence that the rights of employees were interfered with, restrained or otherwise coerced by the Respondent's conduct as set forth above. I shall therefore recommend that the complaint filed herein be dismissed in its entirety.
The Issue Whether Jupiter Medical Center committed the unlawful employment practices alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is from the Philippines and is a Filipino citizen. He is now, and has been since approximately February 2000, a legal resident of the United States. JMC operates a 156-bed hospital (Hospital) located in Jupiter, Florida, which has a medical laboratory (Laboratory) that is "open twenty-four hours a day, seven days a week." At all times material to the instant case, Kathleen Rogers was the director of the Laboratory and Sherry Miller was the assistant director of the Laboratory. Petitioner was hired by JMC in October 2000, as a medical technologist to work in the Laboratory. He worked in the Laboratory as a medical technologist, under Ms. Rogers' supervision, from October 2000, until his employment was terminated on June 6, 2003 (Employment Period). During the Employment Period, Jeanne Wiley also worked as a medical technologist in the Laboratory under Ms. Rogers' supervision. Ms. Wiley did not exercise any supervisory authority over Petitioner, nor was she part of the JMC management team. Ms. Rogers was responsible for Petitioner's hiring. She "hired him at the maximum [salary] that anybody coming in at th[at] level could be paid" under JMC's race/religion/gender- blind pay scale. Petitioner received pay raises during the time that he worked for JMC. There were other Laboratory employees who were paid less than Petitioner. None of these employees was Asian. John Lambiase was hired by JMC as a medical technologist to work in the Laboratory in 2003, shortly before Petitioner's termination. At the time of his hiring, Mr. Lambiase had less education and experience than did Petitioner. Nonetheless, Mr. Lambiase's starting salary of $17.80 per hour was $0.38 per hour more than Petitioner was making.2 This disparity in pay was the product of market conditions and had nothing to do with either Mr. Lambiase's or Petitioner's race. The position that Mr. Lambiase filled had been vacant for approximately eight months despite JMC's recruiting efforts. "[D]esperate" to fill the vacancy, Ms. Rogers requested and obtained from JMC's human resources department "special permission" to hire Mr. Lambiase at the going market rate. During the Employment Period, JMC had a human resources administrative policy and procedure manual (Manual), which was made available to all employees, including Petitioner. The Manual contained, among other things, an anti-discrimination and anti-harassment policy, a grievance procedure, a "Time and Attendance" policy, and a progressive discipline policy. The progressive discipline policy stated, in pertinent part, substantially the following with respect to "Verbal Warning[s]," "Written Conference Records," and terminations: Verbal Warning: "Informal counseling" will be regarded as a daily on-going process through which management may communicate necessary information to his/her staff. Such information may include both positive comments and/or areas in need of improvement. In either case, management may wish to utilize "Employee Action Assessment" for the following purposes: To justify pay for performance adjustment decisions and to confirm performance appraisal accuracy. To document excellence for promotional opportunities. To document "reoccurring" performance/behavior/work habit problems that individually do[] not yet require formal documentation, (i.e.) "Written Conference Record." Employee Action Assessment entries will be shared with the employee within a reasonable time of management's observation or date of discovery. Employee Action Assessments need not be shared with Human Resources but rather maintained by the appropriate manager to be used as outlined above. Written Conference Records: Unless immediate suspension pending investigation or termination is necessary, an employee will receive a documented "Written Conference Record" which will delineate steps toward correction of the problem. The completed Written Conference Record process should take place within (3) three business days of the date of discovery, unless the employee has been temporarily suspended pending investigation or if interrupted by a Medical Center holiday. In the case of the latter, the process should be completed by the next business day. The Chief Human Resource Officer or Assistant Director of Human Resources will review and approve all "Written Conference Records" prior to management meeting with the employee. All employee "Written Conference Records" shall be documented on a Jupiter Medical Center "Conference Record" form and ultimately filed in the Human Resources Department. The employee is encouraged to review and record personal comments and sign the form. While employees are encouraged to respond [to] and sign the form, responding to, or signing the form merely indicates that the action was discussed with the employee, not that the employee agrees or disagrees with the corrective action. All completed "Written Conference Record" forms should be received by the Human Resources Department within (3) business days. A completed "Written Conference Record" form will be appropriately signed and dated by the manager, employee, if agreeable, and a managerial witness from the same department. A witness's signature will acknowledge that the information was thoroughly discussed with the employee in an appropriate manner. Any combination of three appropriately documented "Written Conference Records" within an eighteen-month (18) period will constitute grounds for termination unless otherwise noted on the "Written Conference Record." In such instances, fewer than (3) repetitions of some violations may [warrant] termination. . . . No department, other than the Human Resources Department will maintain formal "Written Conference Records" in their files. Informal documentation such as "employee action assessments" and/or employee attendance record may be kept within individual department files. A "Written Conference Record" should be available to support any performance appraisal standard scored as "needs improvement." Suspension and Termination: * * * 5. Terminations reviewed and approved by the Senior Manger will be forwarded to the Chief Human Resource Officer or the Assistant Director of Human Resources for review and final approval. A letter of termination must be coordinated through the Asst. Dir. of Human Resource[s] outlining all documentation used to justify the termination and to act as a notice to the terminated employee regarding [his or her] grievance rights and need to return certain Medical Center property. * * * Petitioner's employment with JMC was terminated, consistent with the above-referenced progressive discipline policy, because, in less than 18 months, he had accumulated three "Written Conference Records" (all of which were given to him by Ms. Rogers and, before becoming a part of Petitioner's permanent record, were reviewed and approved by JMC's human resources department). Petitioner's race played no role whatsoever in his receiving these three "Written Conference Records"3 or in his being terminated. There has been no showing that any other employee at the Hospital received three "Written Conference Records" within an 18-month period and remained employed. Petitioner received the first of these three "Written Conference Records" in September 2002. It read as follows: REASON FOR CONFERENCE: . . . . On August 23, 2002, Ramuriel reported out a 7.3mmol/L potassium result.[4] Ramuriel did not meet laboratory competency standards because he did not follow the attached laboratory procedure: NOTIFICATION OF LABORATORY VALUES. Procedures specifically not followed are: -2.1.1 "Verify the quality of the specimen" and "Recollect specimens immediately if specimen is suspect" 2.1.3 "Notify the physician/patient care personnel when patient is outside the hospital." Ramuriel failed to meet Human Resources 6.7a, a Class II violation, "Performance of duties below standard that continue after a reasonable period of appraisal and training." ACTION PLAN FOR IMPROVEMENT: . . . Ramuriel will immediately improve his technical skills and follow all laboratory policies, especially G.4.2 "Notification of Laboratory Values." Failure to meet JMC standards of competency will lead to further disciplinary action, up to and including termination. Ms. Rogers learned of the violation cited in this "Written Conference Record" as a result of a "physician complaint" (and not from Ms. Wiley).5 In giving Petitioner this "Written Conference Record," she did not treat him any differently than she treated other medical technologists who committed similar violations. Petitioner did not grieve his receipt of this "Written Conference Record," nor did he write anything on this "Written Conference Record" in the space provided for "[e]mployee [c]omments." The next "Written Conference Record" Petitioner received concerned an on-duty verbal altercation Petitioner had in January 2003, with another medical technologist working in the Laboratory, Susan Goldstein. Ms. Goldstein also received a "Written Conference Record" from Ms. Rogers for her participation in the altercation. Petitioner's "Written Conference Record" read as follows: REASON FOR CONFERENCE: . . . . On January 17, 2003, Ariel requested another employee to work in the coagulation section. The fellow employee stated she was busy helping a new employee with chemistry. The workload did not justify his request (see attached report). The coworker stated Ariel called her lazy when she refused to leave chemistry. Coworkers and supervisors do not feel Ariel is a patient focused team player and are unable to discuss workflow and cooperation with him. It is the policy of the Laboratory and Jupiter Medical Center to complete all tasks and work as a team to the benefit of our patients. Ariel violated Personnel Policy 6.7 group II.y "Other actions determined by management to not be in the best interest of the Medical Center." ACTION PLAN FOR IMPROVEMENT: . . . Ariel will immediately put the patient first, and remain focused on patient testing. The evening shift must work together as a team, and Ariel needs to be a member of this team. Petitioner grieved his receipt of this "Written Conference Record." Petitioner's grievance was ultimately presented to JMC's Chief Operating Officer, who reached the following "conclusion," which she reduced to writing on March 25, 2003: This investigation has revealed substantial agreement about the facts of the incident itself by all parties. The facts regarding the incident do merit a Written Record of Conference in accordance with Jupiter Medical Center Policy. The Record should be amended to show that the lack of teamwork referenced was agreed by the Department Man[a]ger to be primarily limited to the one employee involved in this incident and does not extend to the entire Department. With the amendment, the Written Record of Conference should be a permanent part of the employment file of Mr. Orlino. Following his receipt of the Chief Operating Officer's written "conclusion," Petitioner took no action to "continue with [his] grievance." As a result, pursuant to the grievance procedure set forth in the Manual, the Chief Operating Officer's written "conclusion" became the final resolution of Petitioner's grievance. The last of the "Written Conference Records" Petitioner received was for repeatedly violating, after being warned on "multiple occasions" to stop,6 that portion of JMC's "Time and Attendance" policy, which provided that "employees will not badge in more than seven minutes prior to the start of their shift." This "Written Conference Record," which was given to Petitioner on June 6, 2003, read as follows: REASON FOR CONFERENCE: . . . . See attached list of dates and times of Ramuriel's timeclock punches. Beginning on March 17, 2003 through May 24, 2003, Ramuriel has failed to badge in at the correct time. Ramuriel is establishing an unacceptable pattern of badging in for work early and leaving early. Ramuriel has violated Human Resources Policy 6.7.a, "Insubordination- refusal or failure to follow instruction or established practices of the Medical Center," a Class I violation. Ramuriel was informed of the correct badging practice verbally on March 3, 2003 and by mailbox on March 17, 2003. Again the policy was reviewed at the April 2, 2003 general laboratory meeting, which Ramuriel attended, and [he] reviewed and initialed the minutes which included the time clock policy. ACTION PLAN FOR IMPROVEMENT: . . . See associated letter. There has been no showing that any other Laboratory employee engaged in similar insubordinate conduct and did not receive a "Written Conference Record." Petitioner did not grieve his receipt of this "Written Conference Record" because he knew that he was in the wrong; nor did he write anything on this "Written Conference Record" in the space provided for "[e]mployee [c]omments." The "associated letter" in the "Written Conference Record" was a June 6, 2003, letter to Petitioner from Ms. Rogers, advising Petitioner of his termination. It read as follows: On August 23, 2002, you failed to meet laboratory competency standards or follow laboratory procedure. This is a Class II violation of Human Resources Policy 6.7- Discipline (a) "Performance of duties below standard that continue[s] after a reasonable period of appraisal and training." On October 23, 2002, you failed to meet laboratory competency standards or follow laboratory procedure. This is a Class II violation of Human Resources Policy 6.7- Discipline (a) "Performance of duties below standard that continue[s] after a reasonable period of appraisal and training."[7] On January 17, 2003, you failed to work as part of a team. This is a Class II violation of Human Resources Policy 6.7- Discipline (y) "Other actions determined by management to not be in the best interest of the Medical Center." Beginning on March 17, 2003 through May 24, 2003, you failed to badge in at your scheduled time, which is a violation of Human Resources Policy 6.7- Discipline, "Insubordination - refusal or failure to follow instructions or established practices of the Medical Center." Mr. Orlino, as a result of your actions, as denoted above, Jupiter Medical Center is terminating your employment effective immediately. You have the prerogative to utilize Jupiter Medical Center's grievance procedure; human resource policy 4.1, if you feel your termination is unjust. If you decide to grieve such a decision should be made within five (5) business days of June 6, 2003. In your absence, Jupiter Medical Center has elected to hand deliver this correspondence to ensure your complete understanding of the above events. Any compensation that you are eligible to receive will be paid to you on the hospital's next regularly scheduled payday. Please be aware that any hospital property, such as your ID badge, employee handbook, keys, uniform, etc. should be returned to the Human Resources Department. The final decision to terminate Petitioner was made, in accordance with JMC policy, by JMC's human resources department. Ms. Wiley did not provide any input in the making of this decision. Petitioner did not grieve his termination. At no time during the Employment Period did Petitioner ever utilize the procedures available to him under the Manual to complain that he was being discriminated against or harassed on the basis of his race; and there is no indication in the evidentiary record that, as a JMC employee, he was ever the victim of race-based discrimination or harassment.8 On May 24, 2005, almost a year after his termination, Petitioner filed an employment discrimination charge with the FCHR, alleging for the first time that he was the victim of anti-Asian discrimination. There are currently three or four Asian employees working in the Laboratory. They were all hired by Ms. Rogers following Petitioner's termination. None of these employees has received a "Written Conference Record."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding JMC not guilty of the unlawful employment practices alleged by Petitioner and dismissing his employment discrimination charge. DONE AND ENTERED this 14th day of August, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 14th day of August, 2006.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discriminating in its failure to promote Petitioner on the basis of her race.
Findings Of Fact Based upon my review of the entire record, including the Transcript of the proceedings and the documentary evidence, the following findings of fact are made: Petitioner, Laura Lucas, is an African-American female, who has been employed by the Department's Orlando office since about November 1995. At all times relevant to this proceeding, Petitioner was employed by the Department as a Human Services Program Specialist. Prior to that time, from November 1995 until about November 2000, Petitioner was employed by the Department's Orlando office as a Human Services Counselor II. In or about August 2003, the Department had a vacant position for a Government Operations Consultant II, which is also referred to as a contract manager or a management analyst. The position was advertised through a contract provider, People First. All applications for the position were electronically filed with and received by People First, which then forwarded the applications to the Department. The Department received approximately 50 applications for the Government Operations Consultant II position from People First. Petitioner's application was among the applications for the Government Operations Consultant II position that People First provided to the Department. The application form used by individuals applying for the Government Operations Consultant II position included a space for applicants to indicate the position for which they were applying. In that space, Petitioner's application noted she was applying for the position of "Community/Social Service Specialist/All Other," but made no mention of the Government Operations Consultant II position. Although Petitioner's application did not specifically indicate that Petitioner was applying for the Government Operations Consultant II position, Helen Tasker, on behalf of the Department, accepted, considered, and treated Petitioner's application as an application for that position.1 The reason is that Petitioner's application was included with the approximately 50 applications for the subject position that were transmitted to the Department from People First. In fact, that was the only application for Petitioner that the Department received from People First for the subject position. At all times relevant to this proceeding, Ms. Tasker was the acting program director for the Developmental Disabilities Office. In that role, Ms. Tasker was responsible for hiring a qualified person for the Government Operations Consultant II position. Consistent with her duties related to hiring such person, Ms. Tasker reviewed the applications, independently ranked the applications, and selected the members of the interview team, which subsequently interviewed the candidates. During her tenure with the Department, Ms. Tasker has served on between ten to 15 interview teams. In some instances, Ms. Tasker served not only as an interview team member, but also as the interview team leader. As a result of this experience, Ms. Tasker knew the standard procedures for reviewing applications as well as for setting up and conducting interviews. In this case, Ms. Tasker followed the standard procedures for reviewing the applications and setting up and conducting interviews for the subject job opening. Ms. Tasker reviewed the job description and the related knowledge, skills, and abilities (KSAs) for the Government Operations Consultant II position. Ms. Tasker then reviewed and ranked all the applications that had been transmitted to the Department from People First, including Petitioner's application.2 Ms. Tasker rated and ranked each application based on the applicant's training and education and experience, including contract management experience, budget experience, and experience in direct care involving developmental disabilities. Utilizing the application rating scale that she developed, Ms. Tasker determined that the four applicants with the highest application ratings were Petitioner, Wendy Shields, Carol Solomon, and Tom Preston. Petitioner, Ms. Shields, and Ms. Solomon each received an application rating of 15, and Mr. Preston received an application rating of 12. Ms. Tasker selected the four applicants with the highest application ratings to be interviewed. Of the four applicants selected to be interviewed for the Government Operations Consultant II position, three were Department employees: (1) Petitioner, an African-American female; (2) Ms. Shields, a white female; and (3) Ms. Solomon, an African-American female. The fourth applicant selected to be interviewed, was Mr. Preston, a white male. The Government Operations Consultant II position is a higher-level position and would be a promotional opportunity for Petitioner and Ms. Shields. The person hired to fill the Government Operations Consultant II position is required to (1) negotiate and establish contracts with providers in accordance with applicable rules and regulations of the Department; (2) serve as provider liaison; (3) serve as the Medicaid waiver contract manager for the program under the Home and Community-Based Waiver Program; (4) maintain the Medicaid waiver database to track dates related to background screening, licenses, and agreement expiration dates, etc.; (5) serve as contract manager for assigned providers who serve Developmental Disabilities clients and provide technical assistance to Developmental Disabilities providers; (6) track reports prepared by private contractor that monitor the services under the Home and Community-Based Waiver Program and determine if reports require any follow-up assistance by Department staff; (7) answer questions and review proposals regarding Medicaid waiver contracts of outside organizations and/or new persons or agencies seeking to become Medicaid waiver providers; and (8) serve as member of the contract negotiation team and the budget entity committee, which addresses issues regarding rates for specific services and provides related information to providers. In addition to the specific job responsibilities for the Government Operations Consultant II position, the KSAs necessary to perform the job duties include the following: (1) ability to understand applicable rules, regulations, policies and procedures relating to operational and management analysis activities; (2) ability to organize data into logical format for presentation in reports, documents, and other written materials; (3) ability to collect, evaluate, and analyze data to develop alternative recommendations, solve problems, and document work flow and other activities relating to the improvement of operational and management practices; (4) ability to plan, organize, and coordinate work assignments; and (5) ability to communicate effectively. Ms. Tasker selected Paula Bowser and Michele Levy to serve with her on the three-member interview team. Ms. Bowser and Ms. Levy were selected because of their extensive and relevant work experience with the Department. At all times relevant hereto, Ms. Levy had been employed by the Department for 29 years and was a senior unit services specialist. As a senior unit services specialist, Ms. Levy performed some of the same duties required of a contract manager. Prior to being hired as a senior unit services specialist, Ms. Levy had worked as a contract manager with the Department for seven years. At all times relevant hereto, Ms. Bowser was the Medicaid waiver coordinator, which is a supervisory position. In this position, Ms. Bowser supervised the Department's cost plan unit review; received, interpreted, and disseminated applicable policies and procedures; and served as liaison to the Medicaid support coordinators. Prior to Ms. Bowser's working in her current position, she was the "budget person" in the Developmental Disabilities Office for five years. As leader of the interview team, Ms. Tasker prepared the interview questions. The 12 interview questions accurately reflected and related to the job duties and the KSAs necessary for the Government Operations Consultant II position. In October 2003, the four selected applicants were interviewed by the interview team. On the day of, but prior to the interviews, Ms. Tasker gave both Ms. Bowser and Ms. Levy a packet for each of the four applicants that were to be interviewed. The packets included the interview questions and an interview rating sheet. The scoring process used for the interview required each interview team member to rate each applicant on a scale of one to five. The assigned rating was based on the applicant's responses to the interview questions. As explained on the interview rating sheet, the numerical ratings represented the following: five for outstanding; four for above satisfactory; three for satisfactory; two for less than satisfactory; and one for poor. Based on this rating scale, the highest rating an applicant could receive from one interview team member was 60 (five points for his/her responses to the 12 interview questions). All three members of the interview team understood and utilized the interview rating system described in paragraph 24. The four interviews were conducted in the same manner and consistent with Department policy and procedure. Each candidate was interviewed by all three interviewing team members at the same time and was asked the same interview questions. After each interview, the interview team members independently scored the candidates on the rating sheets before any discussions between and among interview team members occurred. Each interview committee member approached the task of rating the applicants in an objective manner. To this end, each committee member's interview ratings were based on that member's professional opinion and assessment of the applicants' responses to the interview questions, in light of the job duties required of the Government Operations Consultant II position and the KSAs related thereto. After all the interviews were completed, Ms. Bowser and Ms. Levy gave their interview rating sheets for the four candidates to Ms. Tasker. The interview sheets for the candidates were then reviewed and the total interview rating for each candidate was calculated. This total was obtained by adding the total interview rating of each interview team member for the particular applicant. The final ranking of each applicant was determined by adding that individual's applicant or application ranking and his or her interview ranking. This total point score resulted in the applicant's final overall ranking. Typically, the candidate with the highest overall rating is offered the position. However, the head of the interview committee has the final decision-making authority and, for a limited number of exceptions, is not bound to offer the position to the highest-ranking applicant. For example, the person with the highest overall point total may indicate, after the interview, that he or she is no longer interested in the vacant position. In other instances, the head of the interview team may determine that for some objective reason, the individual with the highest overall rating can not perform the job duties of the position for which he or she interviewed. In this case, none of those exceptions existed. Therefore, based on the unanimous agreement of the interview team, the candidate with the highest overall rating was the person who was offered the position. On the interview rating, Ms. Bowser ranked Ms. Shields as her top choice, with a total rating of 47. Ms. Bowser ranked Petitioner a close second, with an interview rating of 46. At the time of the interviews, Ms. Bowser knew both Petitioner and Ms. Shields, but had known Petitioner much longer. Also, Ms. Bowser had worked with Ms. Shields and, to a lesser degree, Petitioner. Ms. Bowser had worked some, although not primarily, with Ms. Shields after Ms. Shields was assigned to the Department's Developmental Disabilities Program Office.3 For eight of the 12 interview questions, Ms. Bowser's ratings for Petitioner's and Ms. Shields' responses were either the same or within one point of each other. For the remaining four interview questions, there was a two-point difference in Ms. Bowser's ratings for the responses of Petitioner and Ms. Shields. Petitioner was rated two points higher than Ms. Shields in her responses to questions regarding (1) training in contract management, (2) experience in quality assurance and monitoring activities, and (3) experience in staff training. With regard to the interview question regarding the applicants' computer skills, Ms. Bowser's rating for Ms. Shields was two points higher than that of Petitioner. In arriving at her interview ratings for the selected four applicants, including Petitioner and Ms. Shields, Ms. Bowser considered the substance of the applicants' responses and to some degree their demeanor. Despite the closeness of her interview ratings for Petitioner and Ms. Shields, Ms. Bowser believed that Ms. Shields was the best candidate for the job. First, Ms. Bowser believed that Ms. Shields' experience as a provider4 would give her a perspective that would be beneficial in working with providers. Additionally, Ms. Bowser believed that Ms. Shields had knowledge of the Medicaid rules and regulations, which was a requirement of the position for which she was applying.5 Finally, Ms. Bowser believed that Ms. Shields had good organizational skills and computer skills and that these skills would make her the best candidate for the position.6 Ms. Bowser's interview ratings of all the applicants were based on their interviews and were not influenced by the applicants' race or gender. Ms. Levy rated Ms. Shields as her top applicant, with a total interview rating of 49. Ms. Levy's interview rating for Petitioner was 46, making her the applicant with the second highest interview rating. The closeness of Ms. Levy's ratings is based on her belief that Petitioner and Ms. Shields interviewed well. In fact, Ms. Levy's interview ratings for all of Petitioner's and Ms. Shields' responses to the 12 interview questions were within one point of each other. Despite the fact that Ms. Levy's interview ratings for Petitioner and Ms. Shields were close, Ms. Levy believed that Ms. Shields was the best candidate for the position of Government Operations Consultant II. Among the reasons that Ms. Levy considered Ms. Shields the best candidate were the following: (1) Ms. Shields' prior experience as a provider in Nebraska gave her more perspective and would be helpful in working with providers, (2) Ms. Shields' responses indicated that she could and would effectively handle work priorities and work assignments,7 and (3) Ms. Shields had good computer skills, including experience setting up databases. Ms. Levy's interview ratings of all the applicants were based on their interviews and were not influenced by the applicants' race or gender. Ms. Levy knew both Petitioner and Ms. Shields prior to the interview, but had known Petitioner a lot longer. Ms. Levy also had "worked some" with both Petitioner and Ms. Shields prior to the interview, but had worked more with Ms. Shields. Ms. Levy worked with Ms. Shields after the contract manager for the unit left. During this time, Ms. Shields sometimes accompanied Ms. Levy on visits to monitor new providers. While working with Ms. Shields, Ms. Levy observed that Ms. Shields performed numerous tasks and did so very well and was very organized. As a member of the interview team, Ms. Tasker also completed interview ratings for the four applicants interviewed. Ms. Tasker's interview ratings for Petitioner and Ms. Shields were very close, with Petitioner receiving the highest rating and Ms. Shields receiving the second highest rating. Based on their responses to the 12 interview questions, Ms. Tasker's interview rating for Petitioner was 48 and her rating for Ms. Shields was 46. For most of the 12 interview questions, Ms. Takser's interview ratings for Petitioner's and Ms. Shields' responses were either the same or within only one point of each other. The only exception was Question No. 6, which asked the applicants to describe their experience with quality assurance activities. With regard to their responses to that question, Ms. Tasker's rating for Petitioner was five and for Ms. Shields was three.8 After the interview team had interviewed all the applicants and independently completed their interview rating sheets, the overall ratings for the candidates were totaled. The total ranking for each candidate was based on the applicant's application ranking and the interview rating/ranking assigned by the three interview team members. Ms. Shields' application ranking was 15 and her total interview ranking, based on the interview ratings of all interview team members, was 142, giving her a final overall ranking of 157. Petitioner's application ranking was 15 and her total interview ranking, based on the interview ratings of all interview team members, was 140, giving her a final overall ranking of 155. The remaining two applicants, Ms. Solomon and Mr. Preston had final overall rankings of 140 and 137, respectively. As noted in paragraph 30 above, the Department's usual procedure is offer the position to the applicant who has the highest final ranking. In the instant case, of the four applicants interviewed, Ms. Shields had the highest final ranking, with an overall ranking of 157. Petitioner had the second highest final ranking, with an overall ranking of 155. The interview team members believed, as reflected by the close final rankings, that both Ms. Shields and Petitioner were both excellent candidates for the position and met all the qualifications for the job. Nevertheless, Ms. Shields' total overall ranking of 157 was two points higher than Petitioner's overall ranking of 155.9 Throughout the application review and ranking process and the interview process, Ms. Tasker wanted to select the applicant who she believed had the competencies to perform the job, and who could perform the work required of the position. At no point during the hiring process (i.e review of applications, interview process, and/or calculation of rankings) did race or gender influence Ms. Tasker's decisions. The interview team unanimously and correctly determined that Ms. Shields had the qualifications, experience, and background required and necessary to perform the job of Government Operations Consultant II. As the leader or head of the interview team, Ms. Tasker could have offered the position to an applicant who did not have the highest final ranking if she had an objective basis for doing so. However, Ms. Tasker did not have such a reason, even though her own interview rating for Petitioner was two points higher than her rating for Ms. Shields. Based on Ms. Shields' final overall ranking and Ms. Tasker's belief that Ms. Shields could do the job, Ms. Tasker determined that Ms. Shields was the best candidate. Having made the foregoing determination, Ms. Tasker, on behalf of the Department, offered Ms. Shields the Government Operations Consultant II position. Ms. Shields was hired for the Government Operations Consultant II position on or about October 23, 2003. The Department's usual hiring procedures requires the Department's Human Resources Office to review the applicant's hiring packet prior to an applicant's being offered a position. In the instant case, Human Resources did not review the hiring packet before Ms. Shields was offered the Government Operations Consultant II position. Instead, the Human Resources Office reviewed the packet after Ms. Shields was offered and accepted the position, and after Petitioner filed a grievance. Upon review of the packet, Human Resources determined that no laws or policies were violated that would make the hiring of Ms. Shields for the Governmental Operations Consultant II position unlawful. Petitioner asserted, through various witnesses, that Ms. Shields was pre-selected for the position of Governmental Operations Consultant II. To support this assertion, testimony was presented that in July or August 2002, about a year before that position was vacant and advertised, Ms. Shields was "pulled" from her unit in the Department to work in the Developmental Disabilities Program Office. Petitioner further asserted that Ms. Shields was moved to the Developmental Disabilities Office in order to train her for the Government Operations Consultant II position. However, Petitioner presented no competent evidence to support this assertion. At the time Ms. Shields was sent to work in the Program Office, each unit was required to send one of its employees to that office to assist that office in fulfilling its duties. This additional assistance was required because of a staff reduction in the Program Office. Ms. Shields was the person selected to go to the Program Office, because she had Medicaid waiver experience, which would allow her to assist the Program Office in preparing cost plans. While working in the Program Office, Ms. Shields was exposed to, learned, and performed some of the job tasks for which the Developmental Disabilities Program Office was responsible. However, as noted above, Ms. Shields was not singled out to work in the Program Office, but was one of several employees selected from their respective Department units to go and assist in the Program Office, due to that office's being short-staffed. Ms. Shields' assignment to the Program Office was not related to any effort to pre-select her for the position of Government Operation Consultant II, or to provide her with on- the-job-training for such position.10
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and its subordinate Charge of Discrimination. DONE AND ENTERED this 14th day of December, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Appalachia 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 14th day of December, 2006.
The Issue Whether Petitioner had just cause to suspend Respondent without pay pending disposition of felony criminal charges.
Findings Of Fact The stipulations of the parties in the pre-hearing stipulation, the testimony presented, and the evidence received at the final hearing support the following Findings of Fact: Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Escambia County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. The School Board has the statutory responsibility to prescribe qualifications for positions of employment and for the suspension and dismissal of employees subject to the requirements of chapter 1012. At all times relevant to this proceeding, Respondent is a noninstructional support employee, who has been employed as a Custodial Worker I by the School Board since October 13, 2014. Mr. Warren worked 40 hours a week at Pine Forest High School. Mr. Warren’s position with the School Board is annual, rather than based on the academic school year calendar. During the regular school year, students are required to be on campus from 8:30 a.m. to 3:30 p.m. After the school day, there are students who remain at the school for various activities with clubs and organizations. While students are present, custodial workers complete their duties and work assignments throughout the school. On a regular school day students may be present at the school for clubs and organizations until as late as 9:00 p.m. Respondent works the 2:00 p.m. to 10:30 p.m. shift and would be present when students are present. The background regarding Respondent’s arrest arises from a dispute where it was alleged that he forged a quitclaim deed, transferring property from his uncle to himself. On May 9, 2017, Respondent was arrested. Thereafter, an information was filed against Respondent by the State Attorney’s Office alleging that he knowingly obtained or endeavored to obtain certain property of another valued at $20,000.00 or more, but less than $100,000.00, in violation of section 812.014(1)(a) and (1)(b), and (2)(b)1., a second degree felony. At the time of the final hearing, Respondent’s criminal case was pending final disposition. On May 18, 2017, Superintendent of the School Board, Malcolm Thomas, provided written notice to Respondent that he was suspended “with pay effective immediately . . . pending the outcome of an arrest for §812.014.2b1 [sic], F.S., a disqualifying offense.” The Superintendent’s letter did not provide authority for the Superintendent’s action. The Superintendent also cited no authority for his position that the alleged offense was a “disqualifying offense.” Also, on May 18, 2017, the Superintendent notified Respondent of his intent to recommend to the School Board that Mr. Warren be placed on suspension without pay beginning June 21, 2017. In his request to the School Board, the Superintendent stated that his recommendation was “based on conduct as more specifically identified in the notice letter to the employee.” Similar to the notice regarding the intended recommendation, the Superintendent cited no authority for his recommendation, nor his position that the alleged offense was a “disqualifying offense.” By letter dated June 21, 2017, Dr. Scott advised Respondent that the School Board voted to accept the Superintendent’s recommendation placing him on suspension without pay, effective June 21, 2017. As cause for Mr. Warren’s suspension without pay, Dr. Scott’s letter stated that it is “based on conduct as more specifically identified in the [Superintendent’s] notice letter to the employee.” Dr. Scott’s letter did not use the term “disqualifying offense,” nor did it cite any authority for the School Board’s action. Respondent had no history of disciplinary action during his employment by the School Board. In addition, Ms. Touchstone testified that Respondent “has been a good employee for us.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Escambia County School Board, issue a final order affirming suspension without pay of Respondent’s employment, pending disposition of his criminal charges. DONE AND ENTERED this 22nd day of December, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2017. COPIES FURNISHED: Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Ronald G. Stowers, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Malcolm Thomas, Superintendent Escambia County School District 75 North Pace Boulevard Pensacola, Florida 32505 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Petitioner, Ruthye Smith, was discriminated against on the basis of her race when she was not selected for two administrative positions with the Brevard County School Board in 1998.
Findings Of Fact Respondent, Brevard County School Board, is the public entity that operates the public schools in Brevard County, Florida, and is the employer of teachers, administrators and other personnel involved in operating public schools. Petitioner, Ruthye Smith, is an African-American female, who has been employed by Respondent as a teacher since 1973. Respondent utilizes a state-approved Human Resource Management and Development Plan, known by the acronym "HRMD," for the training, evaluation, and selection of principals, assistant principals, and deans. HRMD utilizes an interview process for personnel selection called "targeted selection" which identifies "dimensions" for each employee position that are developed through an in-depth job analysis of each position. The targeted selection interview process is designed to evaluate a candidate's qualifications for a position by assessing the candidate's responses to questions designed to reveal the candidate's ability to fulfill requirements of the dimensions identified for the particular position. "Targeted selection" identifies the following seven dimensions for the assistant principal position: communication, decisiveness, leadership, energy and tolerance for stress, planning and organization, control/monitoring, and technical/professional knowledge. A candidate for a principal, assistant principal or dean position is questioned/interviewed by two certified targeted selection interviewers in one-on-one interviews. These interviewers are principals or former principals who have been promoted to director or assistant superintendent and who have received specific training in utilizing the targeted selection process. Each interviewer rates and scores the candidate in separate interviews, evaluating the candidate's responses to certain questions from an interview guide that provides questions directly related to the seven dimensions. The result is a "dimension rating" with a range from a low of 1 to a high of 5 in each of the seven dimensions. After each interviewer has concluded his or her interview, the interviewers confer and form a consensus of the dimension ratings generated by the candidate's responses and prepare a data integration form which documents a consensus dimension rating given the candidate by the interviewers for each targeted dimension. A candidate for selection to an administrative position such as principal, assistant principal, or dean is not deemed qualified unless the candidate scores at least a consensus 3 in each of the seven targeted dimensions. Respondent typically pursues three initial steps in the personnel selection process: advertising the position, evaluating applicants to see if they meet basic criteria, and giving candidates who meet the basic criteria targeted selection interviews. In the instant case, in April 1998, Petitioner applied for two advertised assistant principal positions. Having met the criteria for consideration, Petitioner was given two targeted selection interviews on June 10, 1998. The data integration form prepared by the interviewers records a consensus score of 1 in each of the seven targeted dimensions. Based on the targeted selection interviews and the resultant consensus scores, Petitioner did not score the consensus 3 in each of the seven targeted dimensions required to qualify for consideration for the assistant principal positions. Utilizing the same targeted selection interview process, Respondent identified other qualified candidates who were selected for the positions; both of the candidates selected were Caucasian females.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 22nd day of May, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 22nd day of May, 2003. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Levi G. Williams, Esquire Fertig & Gramling 200 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact 1. Petitioner (Randolph) is an African-American female. 2. Petitioner was hired by Respondent on June 2, 1997, and was terminated by Respondent from her employment on September 30, 1997. 3. When initially hired, Petitioner’s official employment class title was Other Personnel Services (OPS) Paralegal Specialist. 4. On July 1, 1997, approximately one month after her date of employment, Petitioner’s official employment class title was changed to Administrative Secretary and Petitioner’s pay plan status was changed from OPS to Career Service. 5. On September 1, 1997, Petitioner's class title was reclassified to Paralegal Specialist. 6. From July 1, 1997, until the date of her termination, Petitioner was employed in a probationary status by DOAH with her primary job responsibilities being that of a proofreader. 7. Probationary employees are not entitled to progressive discipline and can be terminated at will pursuant to Florida Administrative Code Rule 60L-36.005. 8. Ann Cole, the clerk of DOAH, interviewed all candidates for the newly created proofreader position. 9. There were several applicants for the proofreader position and after a series of tests and interviews Ann Cole determined that Petitioner was the best applicant for the proofreader position and Petitioner was hired for the job. 10. Approximately one month after Petitioner was hired, a second proofreader (Dr. Rappendelli) was hired. Dr. Rappendeli is a white female. 11. Both Petitioner and Dr. Carol Ripandelli were supervised at DOAH by Ann Cole. ATTENDANCE HISTORY 312. During the first month of her employment Petitioner shared a work area in DOAH’s mailroom with current DOAH employee Elma Moore, an African-American female. 13. Elma Moore typically arrived at work between 7:00 and 7:15 a.m. even though the required start time for employees of the clerk’s office was 8:00 a.m. 14. Elma Moore was able to directly observe the times during which Petitioner arrived at work. Ms. Moore noted that Petitioner reported to work forty-five minutes late on her first day. Ms. Moore further noted that Petitioner would often be late. 15. Elma Moore was relocated to another part of the clerk’s office when Dr. Rappendelli was hired. 16. Elma Moore, even from her new workstation, continued to be situated such that she was able to observe the times at which Petitioner customarily arrived at work. 17. Elma Moore testified that during the four month period that Petitioner worked for DOAH, at least two to three times each week, Petitioner would arrive at work approximately ten to thirty minutes beyond the mandatory 8:00 a.m. start time for employees. 18. The testimony of Elma Moore is further corroborated by the affidavit of Deanna Hartford. 19. Ms. Hartford, who was the Deputy Clerk Supervisor for DOAH during Petitioner’s period of employment, stated that she observed Petitioner arrive to work late, without notice, on several occasions during her OPS employment and during her career service probationary employment. 20. Ms. Hartford stated in her affidavit that around the first week of September 1997 she was asked by Ann Cole to observe Petitioner’s attendance. Ms. Hartford noted that during this period of observation Petitioner arrived to work at’ the following times on the dates as indicated: September 8, 1997, 8:20 a.m.j; September 9, 1997, 8:25 a.m.; September 10, 1997, 8:10 a.m.; and September 17, 1997, 8:20 a.m. 21. Ms. Hartford reported to Ann Cole, Petitioner's supervisor, that Petitioner was frequently late for work. 22. This is consistent with Elma Moore’s testimony that Petitioner, at least two to three days per week, was customarily late for work in excess of ten minutes. 23. Petitioner attempted to contradict the testimony of Elma Moore and the affidavit of Deanna Hartford by testifying that she was told by her supervisor, Ann Cole, to make up her tardy time thereby excusing the fact that she was habitually late for work. 24. Ms. Cole stated the importance of proofreaders being punctual to work, and testified that she and Petitioner had at least two meetings where they discussed Petitioner’s tardiness issue prior to her termination. 25. Ms. Cole stated that she spoke with Petitioner about her timesheet and attendance, and the need for Petitioner to tell her when she is late and how she plans to make up her time. 26. Ms. Cole stated that Petitioner’s communication regarding her promptness and plans to make up time never improved. 27. Ms. Hartford stated that she never observed Petitioner disclose her late arrivals to her supervisor, Ms. Cole. On more than one occasion, Ms. Hartford stated, she reported Petitioner’s tardiness to Ms. Cole, who indicated she was unaware of the late arrival. PHONE USE 28. Unlike some of the other jobs in the clerk's office, the proofreader’s duties and responsibilities did not require the utilization of the telephone. 29. Elma Moore stated that during the time that she shared an office with Petitioner, her desk was in close proximity to Petitioner’s desk and that on several occasions she noticed that Petitioner was talking on the telephone. 30. Elma Moore stated that Petitioner was using the telephone for personal calls frequently. 31. Elma Moore further testified that she knew that the responsibilities and duties of the proofreader did not require Petitioner to use the telephone. 32. Deanna Hartford noted in her affidavit that she personally observed that Petitioner was always on the phone. 33. Ms. Hartford also noted in her affidavit that other employees at the Clerk’s office had complained to her about Petitioner’s excessive use of the telephone. 34. Ms. Hartford advised her supervisor Ann Cole about Petitioner’s excessive phone use. 35. In response to the complaint about Petitioner's excessive use of the telephone, Ms. Cole contacted DOAH’s information services department and requested that they audit all of the telephone extensions for the clerk’s office. 36. The audit results for the clerk’s office revealed that during the audit period, employees, excluding Petitioner, averaged 85.5 outgoing phone calls. 37. Petitioner, however, had 294 outgoing calls attributed to her extension during this period. Dr. Carol Ripandelli, the other proofreader, had 79 outgoing calls attributed to her extension during this same period. 38. The audit results for the clerk’s office revealed that during the audit period, employees, excluding Petitioner, averaged 1.6 outgoing calls that exceeded ten minutes in duration. 39. The number of outgoing calls exceeding ten minutes in duration that were attributed to Petitioner's extension during the audit period totaled thirteen. Dr. Carol Ripandelli had only two outgoing calls that exceeded ten minutes in duration attributed to her extension during the audit period. 40. Petitioner denied having made the number of phone calls attributed to her extension. Petitioner also charged that it was possible that other employees could have made outgoing calls from the phone on Petitioner’s desk. 41. Elma Moore testified that it was neither the practice nor the custom of employees of the clerk’s office to regularly use the telephone of other employees. INITIATIVE 42. Deanna Hartford, in her affidavit, noted that in July of 1997 she was asked by Ann Cole to provide additional training to the proofreaders. 43. Petitioner and the other proofreader were instructed to inform Ms. Hartford when they were caught up with their work so that the additional training could be provided. 44. Dr. Carol Rappendeli, the OPS proofreader, sought and received additional training in several areas including filing, assisting in the quarterly file purge and destruction, outgoing docketing procedures, and maintaining the Florida Administrative Code supplements. 45. Petitioner never sought additional training as requested. 46. Ann Cole observed Petitioner nodding off on at least three occasions while in an important proofreading standards meeting. 47. Ms. Cole observed Petitioner cutting coupons at her desk the morning of September 22, 1997, during business hours. 10 48. Elma Moore also testified to the fact that Petitioner, during business hours would frequently work on a personal book when she wasn’t proofreading. DISRUPTIVE AND RUDE BEHAVIOR 49. Ms. Cole testified that along with the attendance problems and telephone usage, Petitioner also had attitude problems. 50. On two occasions, Petitioner felt the need to apologize for rude comments made to her supervisor, Ms. Cole. 51. Ms. Cole observed rude behavior by Petitioner directed toward Dr. Ripandelli when they were discussing proofreading on a particular order. 52. Ms. Cole stated that when Petitioner gets in one of her moods, teamwork between Petitioner and Dr. Ripandelli is ineffective. 53. Ms. Cole testified that she had to speak with Petitioner about her radio and that it was so loud it caused a disturbance in the break room. 54. Dr. Ripandelli testified that Petitioner’s radio was so loud that she bought herself headphones in order to drown out Petitioner’s radio. i 55. In contrast, Ms. Cole testified that Dr. Ripandelli gets along with all the judges and that Dr. Ripandelli interacts fine with her. TERMINATION 56. Ms. Hartford stated that Petitioner never discussed with her any need to accommodate her for a disability or for her religion. 57. Ms. Hartford further stated that Petitioner never mentioned that she was being discriminated against for any reason. Ms. Hartford never observed Petitioner walk with a limp, or have sores or bandages on her legs. 58. Petitioner was terminated on September 30, 1997, due to her chronic tardiness, excessive use of the telephone, and her general failure to demonstrate initiative.
Conclusions Petitioner: Ms. Audrey Randolph, Pro Se 2644 Edgewood Avenue, West Jacksonville, FL 32209-2431 904-713-9913 For Respondent: Mr. Linzie F. Bogan, Esquire Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399 850-414-3300 ext. 4650
Recommendation 29 In the present case, Respondent showed a legitimate reason for discharging Petitioner. Petitioner failed to establish a prima facie case of discrimination based upon her race, religion, disability or marital status. Petitioner also failed to demonstrate that Respondent discriminated against her in retaliation for Petitioner engaging in an activity that was protected by Section 760.10(7), Florida Statutes. Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 4A day of Vabir ; 2003, in Tallahassee, Leon County, kative Law Judge sd Way, Bin A-0 32398-1703 Filed with the clerk of the Florida Commission of Human Relations this 2" day of December 2003. 30 COPIES FURNISHED: Ms. Audrey Randolph 2644 Edgewood Avenue, West Jacksonville, FL 32209 Mr. Linzie F. Bogan, Esq. Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399 Harry Hooper Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Secretary of Commission Mike Hanson Room 1801, The Capitol Tallahassee, Florida 32399-0001
The Issue The issue is whether Petitioner's Charge of Discrimination (Complaint) was timely filed, so that his allegations of discrimination can be investigated.
Findings Of Fact Petitioner is a Chinese national and was hired by USF in 1994 as an assistant professor in the Department of Government and International Affairs. USF is a state university. In 2002, Petitioner was promoted to an associate professor at USF. On an undisclosed date, he was given tenure. Petitioner's duties included teaching, research, publication, and service to the community. He also supervised graduate students in the preparation of a thesis for their studies. In 2010, Petitioner was suspended for one year. For violating the terms and conditions of his first suspension, on May 23, 2013, USF issued Petitioner a Notice of Suspension (Notice) informing him that he was suspended a second time, for two years without pay, from June 3, 2013, to August 6, 2015. This meant he had no regular Department, College, or University responsibilities for which he was needed, and he was not expected to be on campus during the suspension. Also, he had no teaching or work assignments during this period of time. Among other things, the Notice advised Petitioner that no employer contributions towards his benefits, including health insurance, would be made by USF during the two-year period. However, the Notice provided Petitioner with the name, email address, and telephone number of a University contact person to coordinate his benefits while he was suspended. During his suspension, Petitioner returned to China a number of times. On May 24, 2013, Petitioner sent an email to Dr. Dwayne Smith, Senior Vice Provost & Dean of the Office of Graduate Studies at USF, acknowledging his receipt of the Notice and calling his suspension a "racially discriminative and vindictive action." He further advised Dr. Smith that he would "make an open response to the whole university" and file a grievance regarding the suspension. On June 21, 2013, Petitioner filed an internal grievance regarding his suspension pursuant to the Collective Bargaining Agreement between USF and United Faculty of Florida (Union). On January 2, 2014, Petitioner filed a Notice of Arbitration with USF's Office of the Provost, indicating his intent to arbitrate the matter. However, the Union subsequently declined to proceed with arbitration, no arbitration was scheduled or conducted, and the grievance was withdrawn. Petitioner agrees that USF did not prevent him from arbitrating the dispute. On May 4, 2015, or a few months before his suspension ended, Petitioner filed his Complaint with the EEOC. The Complaint was later referred to the FCHR and was date-stamped on January 25, 2016. It alleged race and national origin discrimination and retaliation. Whether there is a workshare agreement between the two agencies that allows the EEOC complaint to operate as a dual filing with the FCHR, with the same filing date, is not of record. In any event, for purposes of this Recommended Order, it makes no difference whether the filing date is May 4, 2015, or January 25, 2016. The allegations in the Complaint were investigated by an FCHR investigator. Among other things, she conducted a 90-minute, unrecorded telephonic interview with Petitioner in April 2016 and reviewed his responses to a questionnaire. Although Petitioner contended at hearing that he raised additional allegations during the telephone interview, there is no credible evidence to support this claim. The investigator also spoke with persons at USF and received USF's written reply to the charges. After the review was completed, the FCHR determined the most recent allegation of discipline occurred on May 23, 2013, the Complaint was untimely, and it had no jurisdiction to investigate the charges. Other than the suspension, the Complaint does not identify any other discrete acts of discrimination or retaliation during the 365 days preceding the date of filing the Complaint. The deadline for filing a complaint regarding the suspension expired in May 2014. Petitioner did not seek to amend his Complaint to add new charges before the FCHR began its investigation. At hearing, however, he testified regarding a number of grievances, including a less-than-satisfactory evaluation received for the fall semester 2015; difficulty in arranging premium payments on his health insurance and changing coverage from family to single while he was suspended; unfair student evaluations he received for two courses he taught in the fall of 2015; and his inability to supervise a graduate student's literature review in the fall of 2015. All of these events occurred long after he was suspended, involved different actors and types of conduct, were dissimilar from each other, and should have been raised by timely amending his Complaint or by filing a new complaint with the FCHR. Petitioner offered no proof that he was misled or lulled into inaction by USF or FCHR. Rather, Petitioner explained that he waited to file his Complaint with the EEOC until after the grievance was resolved, and he had not yet retained an attorney to represent him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief as untimely filed. DONE AND ENTERED this 21st day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of February, 2017. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Richard F. Meyers, Esquire The Meyers Firm, P.A. Post Office Box 16308 Tampa, Florida 33687-6308 (eServed) Craig S. Dawson, Esquire Office of the General Counsel University of South Florida 4202 East Fowler Avenue, CGS301 Tampa, Florida 33620-9951 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact At all times material, Petitioner Leroy Battles, Jr., was a Correctional Officer I (CO I) in the Food Service Department of Putnam Correctional Institute (PCI), a closed correctional facility administered by Respondent Department of Corrections (DOC). DOC is an employer subject to the Florida Human Rights Act. Petitioner is an adult black male. In January 1990, PCI advertised the position of Corrections Officer II (CO II/Sergeant) in its Food Service Department. The four original applicants for this position were David Thomas, a black male, Mark Nelson, a white male, Petitioner Leroy Battles, Jr., a black male, and Douglas Miller, a white male. Douglas Miller withdrew his application on January 26, 1990, the day scheduled for interviews of the four applicants. Rather than re-advertise, interviews of the three remaining applicants proceeded as scheduled. The remaining three applicants were interviewed on January 26, 1990 by a three-employee panel made up of Jacqueline Johns, PCI Personnel Manager; Gregory Drake, PCI Assistant Superintendent, and Francis (Frank) Hawkins, PCI Food Service Director. All three panelists were white, but the composition of the interview panel was formed pursuant to the DOC's promotional policy manual, and there is no evidence any of the panel members were racially biased or that the racial mix of the panel members was racially motivated. There had been an argument, confrontation, or misunderstanding between Petitioner and one of the interview panelists, Officer Hawkins, prior to the January 26, 1990, interview, but it seems to have been remote in time from the interview date, and upon the credible evidence as a whole, it is found that the matter was resolved without it interfering with the interview process. 1/ The month following the award of the CO II promotion, Officer Drake served on a grievance committee involving Petitioner Battles. That subsequent experience could not have colored Drake's vote on the January 26, 1990 promotion. It is noted that Drake may have reviewed some information concerning the grievance before the grievance committee actually met, but there is no evidence he reviewed it before the promotional interviews on January 26, 1990. There is no evidence any panel member scored the interview questions or report writing sample from any personal bias. Jacqueline Johns was the PCI Personnel Manager at all times material. Her duties included oversight of all procedural matters concerned with hiring and promotions. Prior to the interviews, Mrs. Johns prepared an applicant fact sheet for the vacant position of CO II. On that applicant fact sheet, she listed the names of the applicants, their work locations, job titles, last three evaluations, dates of appointment to their present employment group (also known as employment class, rank, or grade), educational degrees, and any other relevant information and training. (See, Respondent's Exhibit 2 and Findings of Fact 19-22) Her source for this information was the applicants' respective applications and their respective personnel files. The interview panel was provided with this fact sheet. Although there is some controversy between the parties as to the accuracy of some of the material contained therein, there is no evidence that favorable substantive information about Petitioner was deliberately distorted, omitted, or minimized due to any discriminatory motivation, racial or otherwise. On the applicant fact sheet, Battles was listed as having completed two courses, 1860 hours, and Nelson was also listed as having completed two courses, 1860 hours. Actually, on January 26, 1990, Battles' two courses named on the applicant fact sheet totalled 1900 hours and he also had 1080 hours of training which was not listed because he had not gotten a certificate therefor. Likewise, Nelson's named courses should have totalled 2940 hours, instead of 1860 hours and he had 40 hours of training which were not listed because he also did not have the certificate on that date. Reading the number of hours listed on the applicant fact sheet, one would normally assume Officers Nelson and Battles each had a total of 1860 hours of training. Reading the names of the courses listed on the applicant fact sheet, a knowledgeable person might possibly glean that Battles had 1900 hours and Nelson had 2940 hours, but probably could not come to that conclusion without more explanation or interpretation from other sources, such as was provided at formal hearing. The applicant fact sheet does not convey hours or courses of training not listed there. 2/ The interview process consisted of an oral panel interview and a work sample on report writing. The oral interview consisted of panel members asking the same ten questions dealing with the Food Service Department of each of the three interviewees, separately. Before the interviews, ten questions were selected by the three panel members from a larger bank of questions and answers prepared in advance at agency headquarters in Tallahassee and published for such interviewing purposes in DOC's policy manual. This policy manual is kept under lock and key at the PCI facility so that interviewees will not know in advance the exact questions and answers they will be asked. Contrary to Petitioner's assertion, this system does not prevent applicants from adequately preparing for the interview, because applicants have their prior training and study sources upon which to rely and because the Florida Administrative Code rules cover most, if not all, of the substantive information upon which the questions are based. There is no evidence that any of the questions actually put to the three applicants by panel members on January 26, 1990, were racially biased. The interview score sheets for all three applicants have been maintained, but are subject to interpretation. Based on the score sheets as interpreted by the consistent testimony of all three panel members, it is found that Officer Nelson correctly answered more of the ten interview questions than did Petitioner Battles. No inquiry of any of the panelists was made to clarify how the other black applicant, Officer Thomas, scored on these questions. The work sample consisted of a photograph that was given to each of the three interviewees along with a sheet of paper. The accompanying instruction sheet stated that each man should write a description of the scene in the photograph and that his description would be reviewed for accuracy, completeness, and understandability. Mrs. Johns simultaneously gave each of the applicants oral instructions to prepare their reports as they had learned to do in school. The photograph provided no means by which a date and time could be accurately determined. The writing sample completed by Nelson included a date and time he made up from his imagination. Nelson used the date and time of writing out his report sample. In so doing, Nelson was following standard instructions he had received at the Correctional Academy that proper report writing should include specific dates, times, and locations. Petitioner Battles did not invent a date, time and location for his writing sample. Nelson received a higher score on his writing sample than did Petitioner, partly because of his invention of date, time, and location details and partly because of his more professional choice of the terms, "correctional officers" and "inmates," which terms Petitioner failed to use. Instead, Petitioner used the words, "guards" and "convicts" in his report writing sample. Petitioner admitted at formal hearing that the terms employed by Nelson had been the ones instructed for use from the day he, Battles, had started with DOC. Each member of the interview panel read each applicant's report writing sample and signed off on them. Exactly how the writing sample was weighed by the panel in the total scheme (that is, viz a viz the interview questions) is not clear from this record. There also is no clear indication how the other black applicant, Thomas, scored on the writing sample. However, all three panel members consistently testified that Nelson's writing sample was better than Petitioner Battles' writing sample. Officer Hawkins indicated that on average, in real life situations, Petitioner Battles wrote much better reports than his promotional sample had indicated on January 26, 1990. There is no evidence that the report writing sample or the interview questions/answers were scored by any panel member from a racially biased motivation. In the individual opinions of each panelist (Jones, Drake, and Hawkins) as testified at formal hearing, Officer Nelson was more qualified than Petitioner for promotion to the position of CO II in the PCI Food Service Department on January 26, 1990, on the basis of the interviews and writing samples. No ranking for Thomas, the other black applicant, was elicited. The actual and supposed education, training and experience of Battles and Nelson were roughly the same as to special training in food service matters. See, Finding of Fact 8. Applicant Thomas appears on the applicant fact sheet as having fewer hours of certification training (1080) than either other applicant and only one course compared with their two. Petitioner Battles' most recent three job evaluations before the interview included two "achieves standards" and one "exceeds standards." Applicant Nelson's last three job evaluations also included two "achieves" and one "exceeds." Applicant Thomas' last three job evaluations were all "achieves." All this information appears on the applicant fact sheet. Petitioner had served approximately three months longer in the Food Service Department CO I position than had Nelson, but most of this period coincided with his specialized training, so his extra three months in the Food Service Department was not substantially on-the-job training. Nelson had served longer in the rank or grade of CO I than Petitioner by approximately three months, but Nelson's extra three months in the CO I employment group were not specifically in the Food Service Department. DOC's promotional policy requires that an employee's length of time in the employment group (rank/grade/class) is to be considered with regard to promotion. The rules are silent as to any consideration to be given the length of time an applicant has served in a specific position, such as in the Food Service Department, but provides that variety of experience should be considered. (Respondent's Exhibit 5). Thomas had been a CO I longer than either Petitioner or Nelson. How long Thomas had been in the Food Service Department is not clear from this record. On January 26, 1990, the three panelists individually weighed the education, training, experience, job evaluations, and length of time in the employment group of each interviewee as it appeared on the applicant fact sheet prepared by Mrs. Johns. Each panelist essentially used his/her own personal, individual, subjective analyses of these factors. In the individual opinion of each panelist (Johns, Drake and Hawkins), as expressed at formal hearing, these factors did not alter, either up or down, any panelist's individual assessment based on the more objectively graded interview (10 questions) and report writing sample that Officer Nelson was more qualified than Petitioner Battles was for the CO II vacancy on January 26, 1990. No opinions with regard to Thomas' qualifications based on these factors were elicited from the panelists. James R. Reddish, a white male, was Superintendent of PCI at all times material. As superintendent, Reddish was ultimate supervisor of all promotional applicants and all interview panel members. Mr. Reddish had exclusive and ultimate authority with regard to hiring and promotion at PCI. Once the interview process was completed, Mrs. Johns submitted a memorandum containing the three interviewees' names, in alphabetical order of Petitioner Battles, Nelson, and Thomas, to Superintendent Reddish for the superintendent's selection of the successful CO II candidate. The memorandum also told Reddish that the interview process was completed, but the three applicants/interviewees were not ranked thereon. From that memorandum (Respondent's Exhibit-13), it may be inferred, contrary to Petitioner's assertions, that Superintendent Reddish also received the three applications and fact sheet. 3/ There is no proof that the test results or writing samples of the three applicants/interviewees was ever forwarded to Superintendent Reddish or that he considered them. Indeed, Mrs. Johns' testimony represents the contrary. There was no conversation between Mrs. Johns and Mr. Reddish regarding his decision, and she did not relate to Reddish the opinions of herself or the other panel members as to rank or qualifications of the three interviewees. Superintendent Reddish's decision- making process for the promotion was discussed with no one and there is no evidence as to what, if anything, Reddish had before him besides the alphabetical list of the names of the three interviewees, the applicant fact sheet on all three, and their respective applications when making his promotional decision. Although no witness could rule out that Superintendent Reddish's promotional decision in this instance was racially motivated, no witness could credibly say that it was, either. Superintendent Reddish appointed the only white interviewee, Officer Nelson, instead of either of the black interviewees, one of whom was Petitioner. Mrs. Johns testified that in her opinion, based on having dealt directly with Superintendent Reddish regarding all aspects of hiring and promotion concerning correctional officers at PCI from 1987 to 1991, Reddish was biased and prejudiced against blacks, exercised his racist opinion and behavior when considering promotions and hiring practices for correctional officers at PCI, consistently made racially motivated decisions regarding promotions and hiring and chronically referred to blacks as "niggers." On the other hand, Mrs. Johns also testified that on a number of occasions, Reddish had promoted blacks over whites. On January 26, 1990, there were seven correctional officers assigned to PCI's Food Service Department. Four of these correctional officers were black; one of the four was Petitioner, who was a CO I. Two of the three correctional officers who were CO II/sergeants also were black. Both of the black CO II/sergeants, Tangie Brown and Charles McGill, had been promoted by Superintendent Reddish. Other black employees promoted by Reddish during his tenure at PCI included Troy Massey to the position of Correctional Officer Supervisor I, John J. Williams and Johnnie O. Givens, to CO II/sergeant positions, and Bert Milton to Stores Manager. Mrs. Johns specifically testified that in general she was afraid of losing her job if she confronted Reddish concerning his racist practices in promotions and hiring and that on occasions she had been required by Reddish to stretch the qualifications of certain applicants because of Reddish's relationship with that person or because he wanted to hire or promote that person or to stretch the qualifications of white applicants so as to make those applicants appear more worthy than blacks. However, she further testified that in this instance, Reddish did not ask her to stretch Nelson's qualifications, and the evidence as a whole indicates that she did not do so. In general, and in this specific instance, Mrs. Johns felt that it was inappropriate for Superintendent Reddish not to interview the three applicants himself. However, no statute, rule or agency policy that requires the superintendent to personally interview applicants has been cited. While it seems an exercise in futility for the panel to engage in the elaborate interview and report writing procedure outlined in the foregoing findings of fact if it did not then forward the panel's rankings and recommendations to the ultimate decision-maker for consideration, there is no evidence this situation was contrary to DOC policy, arose out of intimidation of the panel by Mr. Reddish, was racially motivated internally within the panel, or was racially motivated by Mrs. Johns or by Mr. Reddish. Indeed, the DOC promotional policy reads in pertinent part as follows: 2. When 1 to 3 vacancies are being recruited for simultaneously, the interview panel will select the top ten (10) applicants based on Education, Performance Appraisals and work experience in the Correctional Officer Occupational Group and schedule interviews with each applicant. If there are from 4 to 10 applicants, all applicants will be interviewed. If there are three or less applicants, the position will be readvertised. . . * * * 5. After all interviews are concluded and all factors (education, performance appraisals, work experience, affirmative action goals, oral interview and work sample) are considered, the Panel will identify the top applicants as outlined below. These applications will be forwarded to the Superintendent for final selection. The Superintendent must select the applicant to fill the vacancy from the top applicants. For filling a single vacancy the top three (3) applicants will be recommended to the Superintendent. (Respondent's Exhibit 5) Therefore, although it is arguable that the withdrawal of one of the original four applicants should have required re-advertisement of the position vacancy prior to conducting interviews, the panel complied fully with DOC policy when it sent Superintendent Reddish all three names, and Reddish was entitled to appoint anyone from the list of the "top three applicants" submitted to him by the panel, provided he did not do so for discriminatory reasons. The Superintendent Reddish had seen only the scores of Petitioner and Nelson, he might have appropriately promoted Nelson as the most qualified of the two. Since no full assessment of Thomas' ranking by the panel exists in this record, it is not possible to determine whether or not if Superintendent Reddish had seen the scores of all three applicants he might still have appropriately promoted Nelson as the most qualified interviewee. However, Reddish saw only the three finalists' names, their applications (which are not in evidence) and the applicant fact sheet upon which the somewhat subjective factors of education, training, experience, job evaluations, and length of time in employment group were listed for each finalist. See, Findings of Fact 8, and 19-22. There is no direct evidence that Superintendent Reddish knew of or understood any discrepancy in the course names and 1860 hours of training listed for Battles and Nelson on the applicant fact sheet or had any knowledge of the actual hours and courses completed by any applicant, since this information was only presented and explicated at formal hearing. Superintendent Reddish was personally familiar with Officer Nelson. Prior to the promotion, Mr. Reddish had personally placed a commendation letter in Officer Nelson's personnel file for a reason Petitioner felt was inappropriate. No other witness commented on Reddish's reason for the commendation being either appropriate or inappropriate. The incident had no racial overtones. It involved the publication on a local newspaper's editorial page of a letter written by Officer Nelson calling for greater respect for correctional officers through the use of their professional titles. Whether or not Superintendent Reddish considered this commendation in his promotion of Nelson over Reddish is unknown. Approximately June 1990, Superintendent Reddish was demoted. According to consistent testimony by Johns, Hawkins, Drake, and Battles, Superintendent Reddish was demoted on the strength of a DOC investigatory report that the witnesses believed confirmed that Reddish was racially biased in hiring and promoting in the manner that was described by Mrs. Johns. See, Finding of Fact No. 27. However, the report is not in evidence here, and panel members Hawkins and Drake expressed themselves as never having read the report and being only partially in agreement with what they had heard about it. Under these conditions, the report is hearsay from which no factual or legal conclusions may be legitimately drawn. In any case, there was no suggestion by any witness that the report described any bias or discrimination by Reddish against Petitioner with regard to this particular promotion. After Nelson was promoted over Petitioner, he and Petitioner had trouble working together. On February 23, 1990, Petitioner was transferred out of the daytime shift in the Food Service Department to the less desirable "graveyard shift" in a straight security position. There is insufficient evidence to establish this transfer was retaliatory. Petitioner then filed a grievance related to his lack of promotion. It is unclear whether this was the grievance Officer Drake was requested to consider in February, 1990, or a different one. See Finding of Fact 5.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order that: Cites the Department of Corrections for an unlawful employment practice and orders it to cease and desist such practices; Orders the Department of Corrections to pay Petitioner the difference in salary and benefits between his CO I position and a CO II position, beginning January 26, 1990 and continuing; Requires the Department of Corrections to promote Petitioner into the next available CO II vacancy; and Awards reasonable attorney's fee and costs. DONE and ENTERED this 24th day of February 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 24th day of February 1992.
The Issue Whether Petitioner's application for registration as a trainee real estate appraiser should be denied on the ground set forth in the Florida Real Estate Appraisal Board's Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a 35-year-old divorced man (born in October 1972) who resides in Miami-Dade County, Florida, with his parents. He is the father of a six-year-old son whom he shares custody of with his former wife. In early 2003 (when he was 30 years of age), fueled by a desire to increase his wealth, Petitioner engaged in the trafficking of counterfeit Procrit to drug wholesalers. (Procrit is a prescription drug manufactured by Amgen, Inc.) In so doing, Petitioner recklessly exposed the intended consumers of these counterfeit drugs to the risk of serious bodily harm. Prior to engaging in this criminal enterprise, Petitioner had lived a law-abiding life. Petitioner was arrested on or about February 28, 2003, and subsequently charged in the United States District Court for the Southern District of Florida with the federal crime of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320. The information against Petitioner alleged, in pertinent part, that, "[f]rom on or about January 20, 2003 to on or about February 27, 2003, at Miami, Miami-Dade County, in the Southern District of Florida, and elsewhere, the defendant, Eddy Gorrin, did intentionally traffic and attempt to traffic in goods, that is, Procrit prescription drugs, and knowingly used a counterfeit mark on and in connection with such goods without authorization from Amgen, Inc., such mark being identical with and substantially indistinguishable from the genuine mark in use and registered for those goods by Amgen, Inc. on the principal register in the United States Patent and Trademark Office, and the use of which counterfeit mark was likely to cause confusion, to cause mistake, and to deceive." With Petitioner's post-arrest assistance, the authorities recovered all of the counterfeit Procrit that Petitioner and his co-perpetrators had distributed. On or about May 22, 2003, Petitioner entered into a plea agreement with the federal prosecutor's office. The agreement provided, in pertinent part, as follows: The defendant agrees to waive prosecution by indictment and plead guilty to Count One of an Information, which charges the defendant with intentionally trafficking and attempting to traffic in goods and knowingly using a counterfeit mark on those goods in violation of Title 18, United States Code, Sections 2320 and 2. The defendant is aware that the sentence will be imposed in conformity with the Federal Sentencing Guidelines and Policy Statement (hereinafter "Sentencing Guidelines"), and that the applicable guidelines will be determined by the Court. The defendant is also aware that a sentence imposed under the guidelines does not provide for parole. Knowing these facts, the defendant agrees that this Court has jurisdiction and authority to impose any sentence within the statutory maximum set for his offense. This Office and the defendant agree that, although not binding on the Probation Office or the Court, they will jointly recommend that the Court make the following findings and conclusions regarding the applicable Sentencing Guidelines: Applicable Offense Guideline: That pursuant to Section 1B1.2(a) of the Sentencing Guidelines, the offense guideline applicable to the defendant's offense is Section 2B5.3 of the Sentencing Guidelines, which provides for a base offense level of eight; Amount of Loss: That under Sections 2B1.1(b)(1) and 1B1.3 of the Sentencing Guidelines, the amount of loss resulting from the defendant's offense conduct is between $200,001 and $400,000, increasing the defendant's offense level by twelve levels. Manufacture of Counterfeit Drug: That under Section 2B5.3(b)(2) of the Sentencing Guidelines, the defendant's offense involved the manufacture of the counterfeit prescription drug Procrit and that his offense level should therefore be increased by two levels. Conscious or Reckless Risk of Serious Bodily Injury: That under Section 2B5.3(b)(4) of the Sentencing Guidelines, the defendant's offense involved the conscious or reckless risk of serious bodily harm, and that as a result, his offense level should be increased by two levels. Acceptance of Responsibility: That under 3E1.1 of the Sentencing Guidelines, the Sentencing Guideline level applicable to the defendant's offense should be reduced by three levels based upon his recognition and affirmative and timely acceptance of personal responsibility for the offense, provided further that the defendant makes a full, accurate and complete disclosure to the United States Probation Office of the circumstances surrounding defendant's relevant conduct and does not engage in any misconduct after entering into this agreement . . . . Other Adjustments: That no other additional downward adjustments from Chapters 2 or 3 of the Sentencing Guidelines are applicable in this case. Restitution and Fine: That pursuant to Section 5E1.1(a) of the Sentencing Guidelines, the defendant agrees that he shall pay restitution in the amount of $8,000 to the U.S. Food and Drug Administration, which takes into account the $25,000 voluntarily restituted in March 2003, prior to the filing of the information in this case. It is also agreed that this payment will be a condition of the defendant's probation and/or supervised release. After a through review by the parties of both the offense conduct and the application of the Sentencing Guidelines to this offense conduct as outlined in paragraph 3 of this Agreement, this Office and the defendant agree, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, that the applicable total resulting offense level in this case is an offense level 21. This Office does not object to the defendant's request to be sentenced at the low end of the guideline range, that is, 37 months. The defendant understands and agrees that the Court may impose any sentence authorized by law and that the defendant may not withdraw his plea solely as a result of the sentence imposed. The defendant also understand and agrees that the Court may impose a statutory maximum term of imprisonment of up to ten years, followed by a maximum supervised release term of three years. In addition to a term of imprisonment and supervised release, the Court may impose a fine up to $2,000,000. The defendant understands and agrees that, in addition to any sentence imposed under paragraph 5 of this agreement, a special assessment in the amount of $100 will be imposed on the defendant. The defendant agrees that any special assessment imposed shall be paid at the time of sentencing. The defendant is aware that the sentence has not yet been determined by the Court. The defendant is also aware that any estimate of the probable sentencing range that he may receive from his counsel, the government or the Probation Office, is a prediction, not a promise, and is not binding on the government, the Probation Office or the Court. * * * After entering his plea of guilty, Petitioner was sentenced to 37 months in federal prison. He was also fined and ordered to pay restitution. Petitioner began serving his prison sentence on October 16, 2003. While in prison, Petitioner took a correspondence course in real estate appraising. He also participated in and completed a nine-month alcohol rehabilitation program (for which he was eligible because he had a history of alcohol abuse). As a result of his completion of the program, his prison sentence was shortened. In March 2005, Petitioner was released from prison and placed on supervised probation for a period of three years. For the first six months of his probation, Petitioner was under house arrest and had to wear a monitoring device on his ankle. Petitioner's probation officer recommended that he be discharged early from probation inasmuch as he had "complied with the rules and regulations of probation/supervised release and [was] no longer in need of supervision." On November 22, 2006, the sentencing judge issued an order adopting this recommendation and discharging Petitioner from probation. Since his release from prison in March 2005, Petitioner has led a crime-free life and become a productive member of society. He has abstained from the use of alcohol, with the exception of having an occasional glass of wine. He has gone back to school and completed the necessary coursework to obtain his Associate of Arts degree from Miami- Dade Community College. He has been gainfully employed throughout the post- incarceration period. From March 2005, to April 2006, Petitioner worked for two companies owned by Patsy Stecco: Mortgage Processors of South Florida, Inc., where he helped process mortgages, work that required him to handle money (which he did without incident); and Buyers Home Connection, Inc., where he was a credit analyst with managerial responsibilities. During this time period, he took a "real estate mortgage broker course . . . to get more of an understanding of what the work entail[ed]." Ms. Stecco has known Petitioner for the past ten years,1 having first met him "through a niece of [hers who] was friend[ly] with his ex-wife."2 Ms. Stecco was aware of Petitioner's criminal past when she hired him. In April 2006, Petitioner went to work for a Florida- certified residential appraiser, Gaston Gosselin, Jr. Mr. Gosselin owns his own appraisal business, Precision Appraisers and Company, Inc. He hired Petitioner based upon Ms. Stecco's recommendation. Before hiring Petitioner, Mr. Gosselin did not inquire as to whether Petitioner had a criminal record, and Petitioner did not volunteer that he did. It was not until two or three months after Petitioner began working for him that Mr. Gosselin found out (from Ms. Stecco) about Petitioner's criminal past. When Mr. Gosselin confronted Petitioner about the matter, Petitioner was candid and forthright, and he apologized to Mr. Gosselin for not making the disclosure sooner. While Mr. Gosselin was concerned about Petitioner's "initial[]" lack of openness regarding the matter, Petitioner had so impressed him during the "short time" they had known each other that, despite this concern, Mr. Gosselin retained Petitioner as an employee. Petitioner did research and marketing work for Mr. Gosselin. He also assisted with office personnel matters. In February 2008, Mr. Gosselin had to let Petitioner go because, due to deteriorating business conditions, he could no longer afford to keep Petitioner on the payroll. He has "stayed in touch" with Petitioner, however, and now "consider[s] him a friend." Ms. Stecco and Mr. Gosselin (both of whom testified, credibly, at the final hearing on Petitioner's behalf3) found Petitioner to be a hardworking, quick-learning, reliable, dedicated, competent, honest, and trustworthy employee. Mr. Gosselin would not hesitate to serve as Petitioner's supervising appraiser were Petitioner's application for registration as a trainee real estate appraiser to be granted.4 He believes that Petitioner would be a "great asset to [him] and [his] business." Since February 2008, Petitioner has been a staffing manager with Robert Half International (RHI). RHI does not "know about [Petitioner's] criminal history." It has not "inquire[d] [of Petitioner] about [his] criminal past," and Petitioner has not come forward and made any unsolicited disclosures regarding the matter. In addition to working full-time for RHI, Petitioner works evenings and weekends for his father's company, EDGO General Consulting Services, Inc. (EDGO), which "owns rental properties." Petitioner collects rents and makes deposits, as well as does needed repair work, for the company. Petitioner had worked for EDGO prior to his incarceration. In 2001, he was "involved in overseeing" a residential construction project undertaken by the company. In applying for the staffing manager position he now holds with RHI, Petitioner submitted a copy of a resume, wherein he had listed, "oversee construction development of single family spec homes," as one of his duties at EDGO. In so doing, he meant to convey that "oversee[ing] construction development of single family spec homes" was one of things that he had done during his employment with EDGO, not that it was among his current job duties. The resume also contained the following entry regarding his employment with Precision Appraisers and Company, Inc. (under the heading of "Professional Experience"): Precision Appraisers & Company, Inc., Office Manager/Appraiser 04/2006-02/2008 Establish productive marketing strategies and incentives for existing and potential clients. In charge of interviewing new prospective personnel for clerical and administrative positions. Research all records of properties being appraised and provide all information to the appraiser performing the appraisal. Organize bi-weekly payroll for staff and independent contractors. It was Petitioner's intent, in describing his position as "Office Manager/Appraiser," to indicate that he was an "office manager for an appraiser firm," not that he himself was an appraiser. Under the heading of "Education/Qualifications" on the resume appeared the following: Real Estate Appraiser Real Estate Mortgage Broke[r] Associates in Arts, Business Administration Petitioner listed "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" under this heading to indicate that he had taken "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" coursework. He did not mean to represent that he was authorized to act as a "Real Estate Appraiser" and a "Real Estate Mortgage Broke[r]." While the resume entries discussed above were not models of precision, neither were they intentionally deceptive. Petitioner has become a more mature and responsible person than he was at the time he engaged in the criminal conduct that led to his incarceration. He is repentant and remorseful about his crime and recognizes the importance of his being a positive role model for his son. He understands all too well what his ill-advised decision five years ago has cost him and his family, particularly his son, who did not have a father around during the time Petitioner was in prison. More importantly, he feels "terribly" about the potential harm to which he exposed the public and is "thankful that no one was [actually] harmed." Petitioner is embarrassed and ashamed of what he did and is committed to not making the same mistake again in the future and jeopardizing his freedom and ability to be with his son and the rest of his family. He has "learned [a] lesson" from the price he and his family has paid for his one criminal indiscretion. He has no intention of ever "put[ing] [him]self in a position like that again." In short, in the five years that have passed since his crime, Petitioner has been rehabilitated, and it appears that the interest of the public will not likely be endangered if he is granted the registration he seeks and is able to work as a trainee real estate appraiser under the supervision of a licensed or certified appraiser.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order granting Petitioner's application for registration as a trainee real estate appraiser. DONE AND ENTERED this 11th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 11th day of July, 2008.
