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 Whether Petitioner Rafael Oropesa is entitled to licensure as a Florida registered trainee real estate appraiser.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Petitioner applied for licensure as a trainee appraiser. Respondent, an agency of state government, is charged with the duty of licensing and regulating Florida real estate brokers, sales associates, schools and appraisers. With particular relevance to the instant case, it is Respondent's responsibility to investigate the qualifications of individuals who apply for licensure as trainee appraisers, and to issue licenses to applicants who meet the licensure criteria set forth in relevant provisions of the Florida Statutes. Respondent determined that Petitioner did not meet licensure criteria and denied his application. Respondent requires applicants to submit, in writing, information relevant to its investigation of the qualifications of individuals who apply for licensure as trainee appraisers. Respondent prescribes the form and detail required of applicants in submitting such information. More specifically, applicants are provided application forms approved by Respondent (application forms). The application forms include detailed, specific, and unambiguous questions and instructions. Applicants are required to "attest" that they read the questions asked in the application and answered the questions "completely and truthfully to the best of [applicant's] knowledge." Once a completed application is submitted, Respondent's staff commences to verify information provided and attested to by the applicant, and to make a recommendation regarding the applicant's qualifications for licensure. Respondent reviews staff recommendations and makes a determination as to whether the applicant meets licensure criteria; based upon its determination, Respondent grants or denies licensure. Upon review and investigation of the information provided and attested to by Petitioner, staff determined that Petitioner failed to meet licensure criteria and recommended that his application for licensure be denied. The staff recommendation was based upon Petitioner's criminal record, which included three felony convictions for crimes involving moral turpitude, as well as Petitioner's failure to disclose two of the convictions in such form and detail as Respondent prescribes. At a meeting held October 3, 2005, Respondent considered Petitioner's application and afforded Petitioner a full opportunity to present whatever information he wished Respondent to consider. Following discussion of Petitioner's criminal record, and his failure to disclose two of the convictions, Respondent concluded that Petitioner had not demonstrated that he met licensure criteria. The evidence established and Petitioner admits that on or about February 20, 1991, the Circuit Court of the 13th Judicial Circuit, in and for Hillsborough County, Florida (the Court) adjudicated Petitioner guilty of three felonies he committed on or about April 19, 1990: attempted arson; armed burglary of a structure; and making, possessing, throwing, placing, projecting, or discharging a destructive device. Petitioner broke into the referenced structure, a building which housed a bar owned by a business competitor, for the purpose of destroying the structure and its contents. Following Petitioner's conviction, the Court pronounced sentence of 30 years in prison, of which 15 were suspended at the time of sentencing. Petitioner served two years in prison, at which time he was released and placed on probation. Petitioner was released from probation on or about October 27, 2000. On or about August 2, 2005, Petitioner filed his application forms. The application forms include "background information" questions, one of which asks if the applicant has ever been convicted of crime(s) other than minor traffic offenses. Applicants who answer this question in the affirmative are unambiguously instructed to provide "full details of any criminal conviction . . . including the nature of any charges, dates, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which any proceedings were held or are pending. . . ." (full details). Applicants are directed to supply full details on a separate form known as DBPR 0050-1--- Explanatory Information for Background Questions (form 0050- 1). Form 0050-1 contains space for applicants to list the crimes of which they have been convicted and to provide the required full details with respect to each offense. Having answered the background question regarding criminal conviction(s) in the affirmative, Petitioner filled out form 0050-1. On it, he disclosed only his conviction for attempted arson; he failed to reveal his contemporaneous convictions on the charges of armed burglary of a structure and making, possessing, throwing, placing, projecting, or discharging a destructive device. Petitioner does not claim that he did not understand the form and detail Respondent had prescribed with reference to the disclosures required to be made on the application forms in general and form 0050-1 in particular. Rather, he attempted to justify his failure to disclose, claiming under oath that he had attached "court documents" (documents) to his application; that the documents he furnished fully disclosed all required information; and that the documents had been lost by Respondent. Assuming arguendo that Respondent has discretion to grant licensure to an applicant who chooses to submit documents in lieu of submitting an application in the form and detail prescribed by Respondent, this Petitioner is not a candidate for the exercise of such discretion. The fact-finder had the opportunity to closely observe Petitioner's demeanor as he testified that he had attached documents to his application, and that the documents fully disclosed all information required to be disclosed by applicants with criminal backgrounds. On direct and cross- examination with respect to the documents, as well as with respect to matters of lesser significance, Petitioner was evasive and on occasion combative. Petitioner's testimony regarding the documents was not corroborated in any way. The fact-finder does not believe that Petitioner attached documents to his application; it follows that Respondent did not lose any documents. There is no persuasive evidence that Petitioner's application was mishandled in any way. Even if the fact-finder credited Petitioner's uncorroborated testimony to the effect that he had furnished full details regarding his criminal history, the crimes themselves are sufficiently egregious to warrant a denial of licensure. Each of the Petitioner's crimes involved moral turpitude. Each related directly to the activities of a trainee appraiser, in that each was calculated to cause the destruction of real and personal property. In this case, the property Petitioner sought to destroy belonged to the owners of a business competitor. Petitioner's crimes victimized not only the owners of the structure, but also their employees, customers, and vendors. Because trainee appraisers have substantial access to the property of sellers and purchasers, a record of crimes against property raises grave concerns as to an applicant's fitness for licensure. Petitioner's crimes reflect depraved indifference to the lives of individuals who may have been in the structure at the time the crimes were committed, as well as to the lives of the firefighters and police who would forseeably be called upon to put out the fire and to pursue the individual(s) who committed the crimes. Licensure is limited to applicants who demonstrate competence and qualifications to make real estate appraisals with safety to those with whom they may undertake a relationship of trust and confidence. Petitioner's crimes demonstrate that he lacks the requisite trustworthiness, competence, and qualifications for licensure. Petitioner's failure to reveal two of his felony convictions on form 0050-1 furnishes an independent basis upon which licensure should be denied. Form 0050-1 as attested to by Petitioner was an attempt to obtain a license by means of knowingly making a false statement, submitting false information, refusing to provide complete information in response to an application question. Petitioner's form 0050-1 was a knowing fraud, misrepresentation, and concealment with respect to information at the heart of Respondent's discharge of its duty to assure that applicants meet statutory criteria for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying Petitioner's application for licensure as a Florida registered trainee real estate appraiser. DONE AND ENTERED this 13th day of July, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 13th day of July, 2006. COPIES FURNISHED: Brian J. Stabley, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 John R. Sutton, Esquire John R. Sutton & Associates, P.A. 7721 Southwest 62nd Avenue, Suite 101 South Miami, Florida 33143 Frank Gregoire, Chairman Real Estate Appraisal Board Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32802-1900 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her race and/or age when it denied her a promotion.
Findings Of Fact Petitioner is an African-American female who has worked for CSXT for over 30 years. She began her employment with CSXT on May 19, 1977, as a secretary in CSXT’s Baltimore Division. In 1992, Petitioner transferred to CSXT’s Jacksonville Division. During her employment with CSXT, Petitioner held various positions. In 2004, Petitioner transferred to the position of Manpower Support Clerk, a union position, and worked in the Personnel Attendance Central Services (“PACS”) Group1/ under the directorship of Edward H. Pettit. Petitioner held this position during the time period at issue in this proceeding. In July of 2007, Petitioner applied for the position of Manager Manpower Administration, a management position. The job posting for this position provided that the selected candidate would be responsible for managing all PACS processes, as well as the day-to-day activities of the PACS staff. The job posting also provided that the selected candidate must have, inter alia, “functional/technical” competencies, including extensive knowledge of CSXT’s mainframe systems such as TSO and Focus, as well as various PC programs. Petitioner, as well as fellow applicants Stephanie Howard, Anthony Avena, and Glenn Shelton, met the minimum qualifications for the position and were each interviewed on July 10, 2007. The interview panel consisted of the following CSXT employees: (1) Jenna Svela, the Recruiter for the Manager Manpower Administration position; (2) Gary Gambill, Director Human Resources Information Systems-Workforce Analytics; (3) Mr. Pettit, Director Manpower Administration and Information Management; and (4) Lucy Bafford, Human Resources Representative. At the time Ms. Howard applied for the position of Manager Manpower Administration, she held the position of a Senior Manpower Support Representative. As a Senior Manpower Support Representative, Ms. Howard supervised two Manpower Support Clerks and was responsible for generating regularly weekly and monthly reports using Focus, Microsoft Excel, and Access programs. In addition to her Bachelor of Science in management, Ms. Howard had also obtained an Associate’s degree in computer programming and applications in 1998. Ms. Howard is Asian-American and younger than Petitioner. The interview panel asked each of the applicants the same seven questions. Six out of the seven questions were standard interview questions that were pulled from a bank of interview questions maintained by CSXT. The remaining interview question, namely, question three, was added by Mr. Pettit, the hiring manager, to assess each candidate’s technical abilities within the PACS system. As noted above, the job posting for the Manager Manpower Position provided that the selected candidate must have “functional/technical” competencies. For each interview that was conducted, the individual members of the interview panel completed an interview evaluation form in which he or she assigned a score of 1 through 4 to the answers provided by the candidate to each of the questions. The scoring was assigned as follows: (1) a score of one indicated that the candidate “does not meet requirements”; (2) a score of two indicated that the candidate “almost meets requirements”; (3) a score of three indicated that the candidate “meets requirements”; and (4) a score of four indicated that the candidate “exceeds requirements.” In addition to assigning a score, the individual members also provided an explanation on the interview evaluation form as to why a particular score was assigned. The interview panel found that Petitioner met the requirements for question one, almost met the requirements for questions two, six, and seven, and did not meet the requirements for questions four and five. In comparison, the interview panel determined that Ms. Howard exceeded the requirements for questions one, two, four, and five and met the requirements for questions six and seven. Thus, Ms. Howard received a higher score than Petitioner on each of these questions. As noted above, question three was added to assess each candidate’s technical abilities within the PACS system. For this portion of the interview, each candidate was asked to log into the PACS system and accomplish the following functions: (1) add a new location in PACS; (2) change a bad ID number; (3) disqualify an employee’s bid; (4) change an employee’s seniority date; and (5) manipulate a prepared Excel spreadsheet to produce a pivot table and bar graph, as well as format the prepared Excel spreadsheet for printing. PACS clerks have access to these functions and, in fact, perform these tasks from time to time. There is no persuasive evidence that Mr. Pettit designed question three to give Ms. Howard or any other candidate a competitive advantage over Petitioner who was not familiar with the functions. The interview panel found that Petitioner did not meet the requirements of question three. Notably, Petitioner was only able to complete one out of the five functions. In comparison, the interview panel determined that Ms. Howard met the requirements for question three. Unlike Petitioner, Ms. Howard completed each of the five functions. Overall, the panel found that Ms. Howard would be a good fit for the position of Manager Manpower Administration. The decision was based on her qualifications, supervisory experience, technical and communication skills, and leadership abilities. On the other hand, the panel found Petitioner to be ill prepared for the interview. Specifically, the panel concluded that Petitioner failed to effectively communicate how her skills, abilities, and experience prepared her to assume the Manager Manpower Administration position. In fact, several members of the panel noted that Petitioner’s responses were difficult to follow and that Petitioner failed to provide appropriate examples in support of her responses. In addition, the panel found Petitioner’s technical skills to be insufficient. Based on the foregoing, Respondent offered and Ms. Howard accepted the position of Manager Manpower Administration. The greater weight of the evidence indicates that neither Petitioner's race nor her age played any role in the decision-making process. During the hearing, Petitioner acknowledged that she did not have any facts that would indicate that the panel’s decision not to promote her was based on her age or race. Moreover, she verified that Ms. Svela, Mr. Gambill, and Ms. Bafford had never done or said anything to her that would indicate that they were biased against her based on her race or age. Petitioner also confirmed that Mr. Pettit had never made any statement suggesting that he was biased against her based on her race. Mr. Pettit never told Petitioner that she did not need a union-protected position due to her age and tenure with the company. Instead, Mr. Pettit merely informed Petitioner that, given her 30 years of service with CSXT, she did not need to obtain a protected position to avoid being displaced. There is no persuasive evidence that Mr. Pettit had influence with the individuals involved in the hiring process. He did not try to drive the panel’s selection towards Ms. Howard or away from Petitioner.
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. DONE AND ENTERED this 13th day of November, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 13th day of November, 2009.
The Issue Whether Petitioner was discriminated against by Respondent, based upon her race, in violation of Section 760.10, Florida Statutes.
Findings Of Fact The Respondent, the Okaloosa County Supervisor of Elections, is an employer within the meaning of the Florida Civil Rights Act of 1992, as amended. It is an equal opportunity employer. During the time relevant to this matter, the Supervisor of Elections had 16 or 17 full-time employees, 5 of whom were black. The employees worked out of three separate locations that were approximately 25 miles apart. All employees were and continue to be at-will employees. The Supervisor of Elections is a constitutionally- elected office. The office’s primary functions are to conduct all county elections, to handle voter registration, process candidate qualification, and conduct voter education. At the time relevant to this proceeding, Patricia Hollarn was elected to serve as the Supervisor of Elections in Okaloosa County from January 1989 until January 2009. During her tenure, she had the authority to hire and fire her staff, pursuant to Section 129.202, Florida Statutes. Under that statute and the constitution, the Supervisor of Elections office is separate and independent from the County or the State and is not subject to County or State personnel rules. However, under Patricia Hollarn's tenure, the Respondent utilized some of the Human Resources of the Okaloosa County Board of County Commissioners for directions in some personnel policies for the termination of employees. Petitioner, Ida Lupino Cooper, is a black female. As such, she is a member of a protected class. Ms. Cooper was hired by Respondent on July 31, 2007, as an Elections Specialist I and was assigned to work out of the Fort Walton Beach office. Essential job functions included the computerized data entry of voter registration information and information related to applicants who registered for elected offices in Okaloosa County, as well as assisting with elections and primaries. Other essential job functions included responding to concerns over voter-related matters and performing administrative support, answering the telephone, sorting and dispersing the mail and any other assigned duties related to the Supervisor of Elections’ offices. Important to job performance was the ability to tactfully and effectively interact with the public and with co-workers. Although there are consistent day- to-day functions in preparing for each election, critical workload increases around the day elections are held. Workload was particularly heavy during the 2008 primary and general elections due to large increases in voter registration and turnout. The Fort Walton Beach office employed two Election Specialists. Kimberly Williams, who is white, was the other Election Specialist at the Fort Walton Beach office. Ms. Williams was the only employee Petitioner alleged was similarly situated to her. The Petitioner's and Ms. Williams’immediate supervisor was Louise McGirr. She held the position of Voter Registration Coordinator. Ms. McGirr supervised all employees who had data entry responsibilities. She worked one day a week at the Fort Walton Beach office. A goal of the Supervisor of Elections was to have and maintain a reputation of accuracy in the data collected by the Supervisor’s office. To achieve that goal, Ms. Hollarn created a position to oversee the accuracy of the data entry and editing process. Brenda Ball was the Quality Control Editor who oversaw the data entry and editing process for the Supervisor of Elections. Ms. Ball was sometimes assisted in her quality control responsibilities by Martha Hall from the warehouse. She was not a direct supervisor of Petitioner or any of the Elections Specialists. In order to oversee quality control, Ms. Ball received hard copies of data contained in Verification Reports that had been entered by the employees in the office with data entry responsibilities. The data primarily consisted of names, addresses and other information relevant to a voter’s right to vote. Each report also reflected the person who had entered the data. From the Verification Reports, Ms. Ball and sometimes Ms. Hall edited and corrected errors and omissions in the data that had been entered. She and Martha Hall generally reviewed and corrected all of the data entries made by the Election Specialists on a daily basis. The Verification Reports reflected that all of the Elections Specialists made repetitive mistakes in their data entry. The most commonly-found errors were capitalizations in the wrong place, misspelling the name of voters, incorrect and missing mailing addresses, missing apartment numbers and missing zip codes, as well as faulty formatting. Ms. Ball did not tally or keep a record of the errors, but would routinely advise all employees about consistent types of errors she was noticing and to be accurate. However, there was no definitive measurement or standard regarding the number of errors that were acceptable or unacceptable. In Petitioner’s Probationary Employee Performance Appraisal of January 9, 2008, Ms. Cooper received all 2s on a rating scale of 0 to 5. A score of 2 indicated that the employee “meets expectations.” One of the categories reviewed was for accuracy. In that category, Petitioner received a 2, reflecting the criteria that her work was “normally correct and timely.” Additionally, from the comments of Petitioner’s supervisors, including Ms. Hollarn, Petitioner clearly needed to learn more, but her employer was satisfied with her performance. Petitioner’s overall performance was scaled as 30 points out of a potential 60 points. The score made her eligible to receive a 3 percent performance pay increase which she received. The available options were no increase or a 3 percent performance pay increase. She signed the evaluation and testified that she was happy with it. Kimberly Williams received her Probationary Employee Performance Appraisal on March 17, 2008. Like Petitioner, she received all 2’s and a scaled score of 30 out of 60 points. It was noted in her evaluation that she normally arrived early to work. Like Petitioner, Ms. Williams’ supervisors, including Ms. Hollarn, were satisfied with her performance and she received a 3 percent performance pay increase. There was no evidence presented that Petitioner was treated less favorably or subjected to more scrutiny than Ms. Williams Over the next several months and in an attempt to address Petitioner’s job performance, Ms. Hollarn, met with Petitioner on several occasions providing verbal counseling to her regarding her job performance. These “meetings” were not formal and were more like friendly conversations geared towards helping an employee. This type of employee counseling was in line with Ms. Hollarn’s style of supervising. Additionally, Louise McGirr, Petitioner’s supervisor, sent written counseling to her staff reminding the Petitioner and other Election Specialists about consistent types of data entry errors and the need for accuracy. Contrary to the allegations contained in her FCHR complaint and Petition, Petitioner admitted that she had received such counseling from her supervisors. During these meetings with Petitioner, Ms. Hollarn noted that Petitioner often tried to compare her work to other employees instead of focusing on her work and how to improve her performance. Ms. Hollarn did like this trait of Petitioner and felt she should pay attention to improving her own work. Such an opinion is not uncommon among supervisors, and there was no evidence that demonstrated Ms. Hollarn’s opinion was based on race. On July 10, 2008, Petitioner received her Annual Employee Performance Appraisal. She again received all 2’s on a rating scale of 0 to 5, including the category of “accuracy.” Her overall performance again was 30 points out of a potential 60 points. Thirty points was the lowest-scaled score in the “meets expectations” category. The next category down was “needs improvement.” The scaled score made her eligible to receive a 1 percent performance pay increase, which she received. The Appraisal noted that she frequently detailed other employee’s flaws, rather than focus on her responsibilities. The Appraisal also noted that she had a lot to learn, but dealt with the public well. In short, the Appraisal reflects that Petitioner was perceived as an average employee after one year, especially since Petitioner did not volunteer for non-mandatory overtime and did not arrive or begin work early. Petitioner refused to sign her Employee Performance Appraisal because she thought it should be higher so that she could qualify for a higher pay increase. Contemporaneous to Petitioner’s Annual Employee Performance Appraisal, she was verbally counseled by her supervisor, Louise McGirr on July 10, 2008. Ms. McGirr warned Petitioner that her attention to detail and work performance were unsatisfactory and she needed to improve. Kimberly Williams received her Annual Employee Performance Appraisal on November 18, 2008. She received mostly 2’s and several 3’s on a rating scale from 0 to 5. She received a 2 in the category of “accuracy.” However, she received 3’s in reliability, attendance, productivity, follow through and initiative. Ms. Williams received a scaled score of 35 out of 60 points. The scaled score made her eligible to receive a 1 percent performance pay increase. For unknown reasons, Ms. Williams was not recommended for the pay increase by the Supervisor of Elections and, unlike Petitioner, did not receive the pay increase. However, the Appraisal indicated that her supervisors and Ms. Hollarn were impressed with Ms. Williams’ drive, self-starting ability and initiative which she demonstrated during the 2008 election which was record-setting in the number of voter registrations and turnout. The testimony revealed that Ms. Williams was perceived as more than an average employee, especially since she arrived and began work early and volunteered for overtime even though it was not required. Again there was no evidence that Petitioner received more scrutiny in her job performance than Ms. Williams Sometime in late summer of 2008, Ms. Hollarn was involved in an automobile accident that resulted in very serious injuries to her, and caused her to be hospitalized and homebound for several weeks. During the period of the first election primary in August, Ms. Hollarn conducted meetings from her hospital room and placed Shirley Young and Louise McGirr in charge during the election primary. The August 26, 2008, primary was an unusually busy time at all the Supervisors’ offices and was a period when tensions ran high and time was of the essence because election results were being counted. As indicated, Shirley Young was acting on behalf of the Supervisor of Elections at the time due to Patricia Hollarn’s continued incapacitation from her car accident. Ms. Young was trying to determine whether or not a specific precinct’s voting machine uploaded critical election results from the Fort Walton Beach office to the Crestview office. The difficulty with the machine was causing a delay in the election results which the media and public were waiting on and which the Chairman of the Canvassing Board, a county judge, was becoming impatient over the delay. Ms. Young called the Fort Walton Beach office to inquire about the delay and asked to speak to Pam McCelvey, who had knowledge about the information she was seeking. Petitioner answered the telephone and placed Ms. Young on hold after asking her "if she could wait a minute." Petitioner placed Shirley Young on hold, for a period of time, estimated to be from 10 seconds to 5 minutes. Petitioner or someone else hung up the phone on Ms. Young, requiring Ms. Young to call back a second time. Ms. Young believed it was Petitioner who hung up on her, but irrespective of who hung up, Ms. Young felt that she should not have been placed on hold and made to wait for critical election information. Ms. Young was “shocked” and embarrassed at Petitioner’s actions and felt very strongly that Petitioner did not show tact or effective interaction with her at a very critical time during the election. Ms. Young conveyed the above events of the election night to Patricia Hollarn. At the time, neither Ms. Hollarn nor Ms. Young discussed the telephone incident on election night with the Petitioner, and Petitioner was not disciplined for placing Ms. Young on hold or hanging up on her. From her demeanor at the hearing, Ms. Hollarn was very displeased and somewhat embarrassed about the telephone incident and felt Petitioner had acted very inappropriately, did not fit in the office and, more than anything else, precipitated Ms. Hollarn’s decision to terminate Petitioner. Even though the facts may be in dispute as to exactly what happened during the August primary, there was no evidence that Ms. Hollarn’s perception of the incident was illegitimate or related to Petitioner’s race. Shortly after the telephone incident and when she was physically able to address the matter, Ms. Hollarn began looking for a reason to terminate Petitioner. Ms. Hollarn asked Brenda Ball about Petitioner’s data entry accuracy. She did not ask Ms. Ball about any other employee’s data entry accuracy. However, at hearing, Ms. Ball’s impression was that Kimberly Williams made as many errors and similar errors as Petitioner. Although the evidence was not clear on what information was reviewed, Ms. Ball reviewed some information on Petitioner’s errors since her last evaluation on July 10, 2008. The information included the Verification Reports she received. In an email dated September 17, 2008, Ms. Ball responded to the Supervisor of Elections’ inquiry. Ms. Ball stated that there had been some improvement in Petitioner’s data entry performance since her last performance evaluation of July 10, 2008, but that Petitioner’s performance had slowly declined since then. She also described the type of consistent errors Petitioner made while entering data. Ms. Hollarn did not discuss the fact that she intended to terminate Petitioner with Ms. Ball. At the time of Ms. Hollarn’s inquiry, Ms. Ball did not know Petitioner would be terminated and she did not recommend her termination. During her testimony, Ms. Ball reviewed Verification Reports from the data that had been entered by Petitioner and by Kimberly Williams, her white comparator. The review during the trial covered data entered during August 2008 and part of September 2008 until the day of Petitioner's termination. The evidence did not demonstrate that these were the same reports that Ms. Ball had reviewed for her response to Ms. Hollarn’s earlier inquiry regarding Petitioner. A very rough tally of the errors that were counted during the hearing indicated that for 30 days in August 2008, Petitioner made 79 demonstrated errors while her white counterpart, Kimberly Williams, made 37 errors during a 10-day period in August. For ten days in September 2008, Williams had 92 demonstrated errors, while Petitioner made 88 errors for 11 days in September. Indeed, Ms. Ball's review of both Petitioner and Williams’ data entry during the hearing, while not scientific or precise, clearly indicated that they both made the same type of repetitive errors. However, the Verification Reports presented at the hearing did not demonstrate whether the number of errors made by Petitioner and Ms. Williams were significantly comparable or different because the reports did not cover the same periods of time, account for variability in office duties and were not analyzed statistically in any scientific manner. No expert witness or independent objective analysis of the numbers was offered at the hearing. Petitioner offered the testimony of Tiffany Lovett, the Candidate Coordinator for the Supervisor of Elections Office, who was responsible for maintaining information on voter petitions and absentee ballots. She testified that she had previously had problems with data entry performed on her work by Kimberly Williams substantial enough that she complained to Louise McGirr and to Pat Hollarn about Williams’ inaccuracy. The evidence was not clear whether Petitioner entered data for Ms. Lovett or, if she did, the time period that Petitioner entered such data. However, Ms. Lovett also testified that all employees made errors in data entry and made such errors especially during the 2008 primary period. Patricia Hollarn formalized her decision to terminate Petitioner's employment on September 19, 2008. On that date, Ms. Hollarn came to the Fort Walton office in a wheel chair. She was still recovering from her automobile accident. She requested that Petitioner meet with her and Shirley Young. During the meeting, Ms. Hollarn gave Petitioner a letter of termination, effective that day. The letter specifically stated: On July 10, 2008, you were counseled by your supervisor, Louise McGirr, regarding your work performance and attention to detail in your office duties. Although a slight improvement did occur for a short amount of time, a consistent, significant improvement has not been seen. . . . therefore, as of today your current employment is terminated (per 129.202(2) FS and Okaloosa County Human Resources Policy Manual Chapter XX, Section B 4k “Incompetence and inefficiency in the performance of assigned duties”). . . . During the meeting, Ms. Hollarn also told Petitioner that she was not a good fit in the office which the evidence showed was more indicative of the real reason for Petitioner’s termination. Ms. Hollarn admitted that she had not personally reviewed Petitioner's work performance, work product or alleged work errors, but relied on information and input she received from Jimmie Giles, Brenda Ball, Louise McGirr and Shirley Young about Petitioner's job deficiencies. However, Jimmie Giles testified that she did not give any information to Ms. Hollarn about Petitioner's job performance. Ms. Giles made it clear that her job duties were data entry, she did not supervise any employees, and she certainly did not recommend that Petitioner be fired from her job. On the other hand, Ms. McGirr and Ms. Young both provided negative input about Petitioner’s job performance. In particular, Ms. McGirr reported that Petitioner did not volunteer to work overtime, despite the need created by the upcoming elections. Petitioner’s lack of focus on solving her performance issues and focus on other employee’s performance and her unwillingness to “volunteer” for overtime all contributed to Ms. Hollarn’s negative view of Petitioner. Added to this negative view was the telephone incident that was reported to her by Ms. Young and was embarrassing to her office. None of these reasons were based on Petitioner’s race. Given these facts, the fact that the termination letter did not state the real or all the reasons for Petitioner’s termination does not demonstrate that Respondent’s motives for terminating Petitioner were based on Petitioner’s race. Petitioner was terminated for her poor work performance, less than self-motivated conduct and the telephone incident. There was no evidence that Respondent’s reason for termination was a pretext to cover discrimination. Moreover, Petitioner’s termination was not solely based on data entry errors. Differences between the work of Petitioner and Ms. Williams, brought out at the hearing, pertained to their overall performance. Although Ms. Williams and Petitioner received identical scores of 30 on their Probationary Employee Performance appraisals, Ms. Williams received a higher score on her first Annual Employee Performance Appraisal. Despite the five-point higher score than Petitioner, Ms. Williams received no pay increase, while Petitioner received a 1 percent pay increase. Finally, Petitioner was replaced by Latoya Knox, who is black, had previously worked in the office and who Ms. Hollarn wanted to hire back. Given these facts, Petitioner did not establish by a preponderance of the evidence that she was treated differently than comparable non-minority co-workers, her termination was based on her race or that the reasons given for her termination were a pretext for discrimination. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with Prejudice. DONE AND ENTERED this 30th day of March, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2010. COPIES FURNISHED: Michael K. Grogan, Esquire Allen Norton & Blue 800 West Monroe Street, Suite 100 Jacksonville, Florida 32202 Carolyn Davis Cummings, Esquire Cummings & Hobbs, P.A. 462 West Brevard Street Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Delta Health Group, Inc., d/b/a Longwood Health Care Center, violated Sections 400.215 and 435.05, Florida Statutes; and whether the violations warrant the imposition of a conditional licensure rating and $2,000 fine.
Findings Of Fact Based on stipulations, official recognitions, and oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the state agency charged with the licensing of nursing homes and the assignment of licensure status pursuant to Chapter 400, Florida Statutes. Petitioner evaluates nursing home facilities to determine their degree of compliance with established state rules as a basis for making the required licensure assignment. In addition, Petitioner is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federally mandated statutory requirements. These federally established requirements are applicable to Florida nursing homes pursuant to Florida Administrative Code Rule 59A-4.1288. Respondent is a licensed nursing home located at 1520 South Grant Street, Longwood, Florida. As authorized by Chapter 400, Florida Statutes, Petitioner surveyed Respondent to determine whether Respondent was in compliance with applicable state and federal laws and regulations. When Petitioner conducts a survey of a nursing home, it issues a survey report, commonly referred to by its form number, a "2567," or, when a state statute or rule is violated, a "3020," referring to the State of Florida form. The forms are identical in format with the exception of their respective form numbers. If deficiencies are noted in the "2567" ("3020"), they are identified by a "Tag" number which identifies the applicable regulatory violation. In addition, the survey report determines the level of deficiency of the regulatory standard believed to have been violated. As a result, the alleged deficient practice, the particular regulation violated, and the class of the deficiency, are cited in the "2567" or "3020" survey report. Petitioner conducted its annual recertification survey of Respondent, which was completed on October 24, 2002, and issued a 3020 survey report noting certain deficiencies involving state required background screening of employees. In an effort to protect residents of nursing homes who are often unable, physically and mentally, to protect themselves, the State of Florida requires that employers conduct statutorily mandated background screenings of prospective employees. For employees who have resided in Florida for five years prior to applying for employment a "Level 1" screening is required. For employees who have not resided in Florida for five years prior to applying for employment in addition to the "Level 1" screening, a "Level 2" screening is required. A "Level 1" screening includes, but is not limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement and may include local criminal records checks through local law enforcement agencies. A "Level 2" screening includes fingerprinting, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies. Sections 435.03 and 435.04, Florida Statutes (2002), contain an extensive list of criminal offenses, which disqualify a prospective employee from nursing home employment. During the referenced survey, Petitioner examined five of Respondent's current employees' personnel files. This examination revealed that employment history checks had not been completed on two of the five employees checked. By statute, these employees should not have been hired prior to completion of the employment history checks. Respondent does not contest the determination that the employment history checks were not conducted. The survey report ("3020") notes "N620" as the "ID Prefix Tag"; the portion of the 3020 titled "Summary Statement of Deficiencies" contains Section 400.215, Florida Statutes, reprinted verbatim. The 3020 further notes that this deficiency is a "Pattern, Class III, 11/15/02." The date indicates the deadline for correction of the deficiency. Section 400.215, Florida Statutes, states, in part, that "facilities must have in their possession evidence that level 1 screening has been completed before allowing an employee to begin working . . ." Petitioner conducted a "follow-up" survey on December 12, 2002. During the "follow-up" survey, it was noted that Respondent was appropriately conducting employment history checks; however, it was also determined that Respondent had failed to timely request "Level 2" background screening on three of five employees due to its failure to timely submit fingerprinting cards to Petitioner. Subsections 435.05(1)(a) and (c), Florida Statutes, require that fingerprinting cards should be submitted to Petitioner within ten working days of an employee's hiring date. In the three instances cited, the fingerprinting cards were forwarded 37, 27 and 15 days after the employees were hired. Respondent does not dispute that the fingerprinting cards were submitted late. The parties have stipulated in the Joint Prehearing Stipulation filed October 1, 2003, that Respondent had forwarded all fingerprinting cards by December 5, 2002. Respondent urges that employment history checks are an exercise in futility. It is argued that modern-day employers will not advance negative information about a former employee. While this argument may have some practical merit, there may be instances where a former employer will provide information that will result in the denial of employment and protection of residents. A hiring employer may learn some information, not limited to evidence of a conviction or plea to a disqualifying offense, which may convince the employer not to hire an applicant. In addition, it is the wisdom of the Florida Legislature, not the employer that dictates this requirement of law. Respondent further argues that the delay in submitting the required fingerprinting cards did not result in a potential harm to residents because, in the three instances cited, the results of the Level 2 screening demonstrated that none of the involved employees had been convicted of a disqualifying offense. This "begs the question" of a timely-filed fingerprinting card revealing a disqualifying offense more quickly, resulting in the protection of residents. Were there no time requirement for submitting the information required for the "Level 2" screening, a dilatory employer could wait several months before submitting the required information, conceivably allowing an employee with a disqualifying criminal offense committed in another state to work for six months,1 exposing residents to potential harm the entire time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent violated Section 400.215, Florida Statutes (2002), by failing to comply with requirements regarding employee background screening and awarding Respondent a Conditional licensure status from October 24, 2002, through December 5, 2002. DONE AND ENTERED this 25th day of November, 2003, in Tallahassee, Leon County, Florida. S 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 25th day of November, 2003.
The Issue Whether the Respondent committed an unlawful employment practice by terminating the Petitioner's employment on the basis of race or national origin.
Findings Of Fact The Petitioner, a black African male, was hired by Larry Schenck, Executive Director of the Respondent, in April of 1992 as a DUI evaluator. The Petitioner was qualified for the position of DUI evaluator by virtue of his education and experience. As a DUI evaluator, the Petitioner interviewed clients of the Respondent to make determinations regarding whether the clients had a problem with alcohol or other drugs which required treatment, and to make referrals for treatment as necessary. The Petitioner was supervised by Jim Scott. Mr. Scott is the clinical supervisor for the Respondent. Mr. Scott, as clinical supervisor of DUI evaluators, performed the following functions: Supervision of evaluators for one hour of clinical per 40 hours of evaluator time. Personal observation of one DUI evaluation interview or review of an audio or video recording of an evaluation interview once every six months for each DUI evaluator. Monthly review of at least three client case records for each DUI evaluator. In addition, Mr. Scott conducted a 20-hour training class for DUI evaluators, which each DUI evaluator was required to attend before beginning evaluations. The Petitioner attended the training class conducted by Mr. Scott. After reviewing DUI interviews, Mr. Scott personally discussed the evaluations with the DUI evaluator or prepared a written report of his evaluation for dissemination to the DUI evaluator. However, Mr. Scott could not state whether his evaluations of the Petitioner had been provided to the Petitioner. Mr. Scott prepared five written reports of evaluations performed by the Petitioner on the following dates: June 22, 1992; August 25, 1992; January 26, 1993; April 13, 1993; and June 22, 1993. The Petitioner acknowledged receiving the first four of these reports. Mr. Scott testified that there were significant deficiencies in his evaluation technique. The Petitioner's deficiencies were: The Petitioner had difficulty in accepting the client's responses. The Petitioner seemed to be looking for a certain response and would keep questioning the client until he received the response for which he was looking. The Petitioner failed to use open-ended questions in his interview technique. The Petitioner used leading questions designed to elicit a certain response. This is an improper evaluator interview technique. The Petitioner failed to provide an assessment of his findings to the client. The Petitioner did not mention any "critical factors" or symptoms to the client. He only told the client "you meet our criteria, there- fore I am referring you". In addition to five evaluations of the Petitioner's client interviews, Mr. Scott randomly reviewed each month Petitioner's case files for quality assurance. At least eleven of the Petitioner's evaluations deviated from the Evaluator Guide which required that written substantiation be provided for evaluations. The Petitioner's deficiencies resulted in clients being improperly referred for treatment. In July of 1993, Respondent was fired by Larry Schenck, Executive Director of North Central Florida Safety Council because of the Petitioner's poor evaluations. Of the six DUI evaluators, including the Petitioner, employed by the Respondent, three were black and three were white. The Respondent's chief DUI instructor is another black African male, Mr. Costeau. There was no evidence presented at hearing that the Petitoner was replaced by a non-black or non-foreign individual. The undisputed evidence presented was that in 1992, the Petitioner received wages of $4,060.00 from his employment and in 1993, received $3,975.00 from his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Petition for Relief and its underlying discrimination claim be dismissed. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1996. APPENDIX TO RECOMMENDED ORDER The parties filed proposed findings which were read and considered. The Respondent's proposed findings were adopted. The following states which of the Petitioner's findings were adopted and which were rejected and why: PETITIONER'S RECOMMENDED ORDER FINDINGS 1-3. Statement of case. Paragraph number 1. Paragraph number 16. 6-7. Rejected, as contrary to better evidence. 8-9. Conclusions of law. COPIES FURNISHED: Steven Scheck, Esquire 106 N.W. 2nd Avenue Gainesville, Florida 32601 Robert E. Roundtree, Jr., Esquire Post Office Box 23939 Gainesville, Florida 32602 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Petitioner's employment should be terminated on the grounds alleged in the Administrative Complaint dated June 3, 1998.
Findings Of Fact For the past seventeen years, Respondent has been employed by the Petitioner. At the time of the formal hearing, he held the position of a fire alarm foreman. He previously held the positions of a fire alarm technician and a trades helper. Respondent has been a good employee and has a good work record. Respondent is represented by the National Conference of Firemen and Oilers, AFL-CIO, Local 1227. Gary Mitten is the president of that union. Pursuant to its rule making authority and to implement Sections 231.02 and 230.23(5), Florida Statutes, the Petitioner revised its Rule 3.12, effective September 3,1997, to provide as follows: Definitions: For the purposes of this policy: "Prospective Employee" means an applicant who has received an offer of employment. "Conviction" means a determination of guilt that is the result of a plea or a trial regardless of adjudication of guilt. A prospective or current employee who is recommended to fill a non-instructional position shall, as a condition of employment, file a complete set of fingerprints taken by an authorized law enforcement officer or a designated employee of the District trained to take fingerprints. The prints will be processed pursuant to the requirements of Section 231.02(2)(a), Florida Statutes. * * * A prospective or current employee may be disqualified or may be terminated from continued employment if the prospective or current employee has been convicted of a crime classified as a felony or first degree misdemeanor directly related to the position of employment sought or convicted of a crime involving moral turpitude or any of the offenses enumerated in Chapter 435, Florida Statutes. * * * 6. Any provision of the law notwithstanding, all personnel currently required to be certified under Section 231.17, Florida Statutes, and by January 1, 1998, for all other personnel currently employed by the District who have not been fingerprinted and screened in the same manner outlined in Section (1) shall submit a complete set of fingerprints taken by an employee of the school or district who is trained to take fingerprints. The prints shall be processed according to Section 231.02(2)(a), Florida Statutes. Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. Such action shall be subject to appeal. . . . Section 231.02, Florida Statutes, pertains to the qualifications of school personnel and provides, in pertinent part, as follows: To be eligible for appointment in any position in any district school system, a person shall be of good moral character . . . (2)(a) Instructional and noninstructional personnel who are hired to fill positions requiring direct contact with students in any district school system or laboratory school shall, upon employment, file a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. These fingerprints shall be submitted to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation for federal processing. . . . Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. . . . Any provision of law notwithstanding, by January 1, 1997, . . . for all other personnel currently employed by any district school system or any other public school who have not been fingerprinted and screened in the same manner outlined in paragraph (a) shall submit a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. The fingerprints shall be submitted to the Department of Law Enforcement for state processing and the Federal Bureau of Investigation for federal processing. . . . Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. . . . Personnel who have been fingerprinted or screened pursuant to this subsection and who have not been unemployed for more than 90 days shall not be required to be refingerprinted or rescreened in order to comply with the requirements of this subsection.1 Section 435.03, Florida Statutes, provides, in pertinent part, as follows: All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. For the purposes of this subsection, level 1 screenings shall include, but not be limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies. Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (n) Chapter 796, relating to prostitution. Section 435.06, Florida Statutes, provides, in pertinent part, as follows: When an employer or licensing agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record which indicates noncompliance with the standards in this section. It shall be the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification shall be proof of mistaken identity. The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07. Section 435.07, Florida Statutes, provides exemptions from disqualification, in pertinent part, as follows: Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification. The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: * * * (b) Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions; * * * (3) In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120. . . . In December 1997, Respondent was fingerprinted pursuant to School Board Rule 3.12. The subsequent screening reflected that Respondent was arrested by the Riveria Beach Police Department on March 13, 1997, and charged with solicitation of prostitution, which is a misdemeanor offense pursuant to Section 796.07, Florida Statutes. This is also a disqualifying offense pursuant to Section 435.03(2)(n), Florida Statutes. Respondent subsequently entered a plea of nolo contendere; he was assessed a monetary fine, and adjudication of guilt was withheld. James P. Kelly is responsible for conducting background screenings of employees as Chief of the Petitioner's police department. Melinda Wong is the director of Petitioner's employee records and information services departments. Mr. Kelly and Ms. Wong serve as members of Petitioner's Criminal Background Check Committee, which was formed to consider the results of background screenings and to consider appeals of employees found to have a disqualifying conviction. By memorandum dated January 5, 1998, Respondent was notified as to the results of the background screening and advised, in pertinent part, as follows: This past year you were fingerprinted pursuant to Florida Statutes, Section 231.02. Based on the criminal history indicated below, the Criminal Background Check (CBC) Committee will recommend your termination from employment with the District. You have a right to appear before the CBC Committee to appeal that determination and request exemption from the requirement that you be disqualified from further employment. In order for an exemption to be granted, you must demonstrate sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which exemption is sought; the time period that has elapsed since the incident; the nature of the harm caused to the victim; and any other evidence or circumstances indicating that you will not present a danger if continued employment is allowed. On March 13, 1997, in Riveria Beach, Florida, you were arrested for solicitation of prostitution for which you subsequently pled guilty. . . . Respondent appeared before the Committee accompanied by Mr. Mitten, his union representative. Respondent told the Committee that he had been drinking on the night in question and had let a friend, who he later identified as Billy Scott, drive his vehicle. Respondent further related that he had fallen asleep and that when he awakened, he and Mr. Scott were being arrested for solicitation of prostitution. Respondent asserted that his plea was one of convenience and entered only after the Public Defender told him the plea would not affect his employment.2 The Committee thereafter caused the School Police to investigate the circumstances surrounding Respondent's arrest. From that investigation, it was revealed that the supporting arrest documents do not reflect the presence of another person in Respondent's vehicle. Casting further doubt on Respondent's versions of the events was the fact that Respondent was cited as driving with an open container of alcohol. The citation indicates that Respondent was the driver of the vehicle, and not merely a passenger. Further, an interview of the arresting officer led the investigator to conclude that Respondent was in the car alone at the time of the incident. Based on the information that had been made available to it, the Committee concluded that Respondent's version of the events had not been confirmed. Respondent was invited to appear before the Committee to explain the discrepancies between his version of the events and the results of the investigation. Respondent, accompanied by Mr. Mitten, told the Committee that the person driving the car was Billy Scott, who was visiting from California. Respondent also said that Mr. Scott had told him that he (Scott) was not formally booked because he had a brother-in-law (Respondent was not certain as to the relationship) on the Riveria Beach Police Department who had interceded on his behalf. Respondent thereafter gave the investigator the telephone number and address of Mr. Scott's temporary residence. The investigator verified that the address was a valid address and called the telephone number, leaving a message on an answering machine. Later, a person claiming to be Mr. Scott telephoned the investigator and verified Respondent's version of the events. Subsequent to that call, the investigator received a call from a woman who stated that the investigator had left a message on her answering machine, that she had a son named Billy Scott, that Billy Scott had not been to California since he was an infant, and that Billy Scott did not have a relative who worked for the Riveria Beach Police Department. Based on the information before it, the Committee concluded that Respondent had committed a disqualifying offense and that the evidence offered by Respondent in mitigation of that offense was not credible. Because there was no mitigating evidence within the meaning of Section 435.07(3), Florida Statutes, the Respondent's work record was not considered.3 The Committee recommended to the Superintendent that Respondent's employment be terminated. The Superintendent accepted that recommendation and, in turn, recommended to the School Board that Respondent's employment be terminated. The School Board thereafter accepted the recommendation of termination from the Superintendent and voted to terminate Respondent's employment, subject to his right to contest the proposed action pursuant to Chapter 120, Florida Statutes. Respondent's testimony at the formal hearing was similar to the explanation of the events he gave the Committee. That self-serving, uncorroborated testimony is insufficient to establish by clear and convincing evidence that he is entitled to an exemption, as required by Section 435.07(3), Florida Statutes. Respondent asserts that the disqualification does not apply to his position because his position does not require direct contact with students. That assertion is rejected. The evidence is clear that Respondent's job duties require his presence at the various schools of the district at times the children are present. Although Respondent typically checks in at a school's office when he first comes on campus, he thereafter is not monitored or otherwise supervised while on the school campus. This opportunity to have contact with students provides the Petitioner with a sufficient basis to consider him to be an employee who has direct contact with students.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that terminates Respondent's employment. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998
Findings Of Fact During the 1985-86 school year, the Respondent, Janet Robinson, was a seventh grade student at Norland Middle School. During the 1985-86 school year, the Respondent accumulated an excessive amount of absences from all six of her classes. The Respondent was absent 36 times from her language arts class, 40 times from her business education class, 32 times from her mathematics class, 36 times from her physical education class, 44 times from her science class and 46 times from her home economics class. In each of her classes, the Respondent received an "F" as a final academic grade. In each class, the Respondent consistently received ratings of "3" for effort. A "3" is the lowest rating possible for effort. When a teacher or other staff member at Norland Middle School has difficulty with a student's behavior, the teacher or staff member may submit a report of the incident to the front office. The reports are called Student Case Management Referral Forms and are reserved for serious behavior problems. During the 1985-86 school year, 19 Student Case Management Referral Forms were written regarding Respondent's behavior. On July 31, 1985, a Student Case Management Referral Form was written because Respondent was consistently tardy to class and was disruptive after she arrived. The Respondent was suspended from class for two days. On September 13, 1985, a Student Case Management Referral Form was written because Respondent was involved in a fight, which she provoked. The Respondent was suspended from school for three days. On October 21, 1985, a Student Case Management Referral Form was written because Respondent constantly talked out loudly in class, argued with her teacher, and was tardy to class on numerous occasions. On November 5, 1985, a Student Case Management Referral Form was written because Respondent was tardy to her physical education class, refused to "dress out" in the appropriate attire and continued to walk around after being told to sit down. On November 14, 1985, a Student Case Management Referral Form was written because Respondent was singing and talking out loudly in class. The Respondent was suspended from school for three days. On November 20, 1985, a Student Case Management Referral Form was written because Respondent was disruptive in class and left the room without permission. On December 2, 1985, a Student Case Management Referral Form was written because Respondent refused to "dress out" on numerous occasions for her physical education class. The Respondent was suspended from school for three days. On December 9, 1985, a Student Case Management Referral Form was written because Respondent continued to refuse to dress properly for her physical education class. The Respondent was suspended for three days. On December 20, 1985, a Student Case Management Referral Form was written because Respondent did not serve administrative detention as requested and was disrespectful to the assistant principal. The Respondent was suspended for three days. On January 9, 1986, a Student Case Management Referral Form was written because Respondent was belligerent and argumentative when she was stopped in the hall way by a staff official who was checking for hall passes. On January 30, 1986, a Student Case Management Referral Form was written by a substitute teacher because Respondent was disruptive in class. On February 19, 1986, a Student Case Management Referral Form was written because Respondent refused to dress properly for her physical education class and was rude to her teacher. On March 27, 1986, a Student Case Management Referral Form was written because Respondent was involved in a fight, which she provoked. The Respondent was suspended for three days. On April 14, 1986, a Student Case Management Referral Form was written by a substitute teacher because the Respondent was disruptive in class. The Respondent was assigned to a special counseling program. On April 22, 1986, a Student Case Management Referral Form was written because Respondent displayed a negative attitude in class, refused to bring books or materials to work with, repeatedly asked to use the bathroom and left the class without permission. Respondent was suspended for three days. On April 22, 1986, a second Student Case Management Referral Form was written because Respondent refused to cooperate in class, was inattentive and displayed a very negative attitude. On May 2, 1986, a Student Case Management Referral Form was written because the Respondent was tardy to class. On May 20, 1986, a Student Case Management Referral Form was written because Respondent was found on the school grounds during a period in which she was suspended from school. The Respondent received five additional days of suspension. On May 23, 1986, a Student Case Management Referral Form was written because Respondent was tardy to class, disruptive and refused to participate in the classroom lesson. Ms. Beth Casenhiser is an English teacher at Norland Middle School. During the 1985-86 school year, the Respondent was a student in Ms. Casenhiser's class. The Respondent did not seem to want to work and did not bring her materials to class. The Respondent would talk out loudly in class, search through her purse, call to students across the room and walk around during class. The Respondent refused to follow instructions or do any work in class. Attempts by Ms. Casenhiser to correct Respondent usually resulted in a strong verbal confrontation and open defiance. Ms. Ruby Hudson teaches business education at Norland Middle School. During the 1985-86 school year, the Respondent was a student in one of her classes. The Respondent consistently refused to bring her books or other materials to class. The Respondent was consistently inattentive and talkative in class. The Respondent refused to do any work, repeatedly arrived late and unprepared, and generally demonstrated a negative attitude. Ms. Jackie Miller, a student counselor at Norland Middle School, spoke with the Respondent on many occasions. Based on Respondent's record from her elementary school, Ms. Miller had targeted Respondent as a person to be given special attention and counseling. The Respondent usually left the counseling sessions with Ms. Miller with a good attitude but failed to follow through on her commitments to perform better in her classes. Nothwithstanding the numerous conferences with Respondent and the Respondent's mother, the Respondent continued her disruptive behavior. Ms. Miller believes that the Respondent would benefit from an alternative school placement because of its smaller student/teacher ratio and system of short term positive rewards. Mr. Kenneth McCard, assistant principal, made numerous attempts to counsel Respondent regarding her behavior. During a conference with Respondent and her mother, the Respondent made a written commitment to improve her behavior and performance in school. Despite these efforts and repeated reminders by Mr. McCard of Respondent's written commitment, Respondent's classroom performance and conduct remained unchanged. During the 1985-86 school year, the Respondent was suspended from school on ten separate occasions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Jan Mann Opportunity School-North. DONE AND ORDERED this 14th day of October, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2537 Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Facts 3-22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 16. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. COPIES FURNISHED: James G. Bovell, Esquire 1401 Ponce de Leon Blvd. Coral Gables, Florida 33134 Mr. & Mrs. Guy Robinson 19331 N.W. 7th Avenue Miami, Florida 33169 Madelyn P. Schere, Esquire Assistant School Board Attorney The School Board of Dade County Board Administration Building Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Bldg. 1450 Northeast Second Avenue Miami, Florida 33132
