The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, 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 31st day of January, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
Findings Of Fact Respondent has taught in the State of Florida for 33 years. The last 26 of those years have been with the Dade County school system. His most recent assignment was at Coral Gables Senior High School as a Cooperative Education teacher. Part of the duties of a Cooperative Education teacher is to work two weeks each summer doing preplanning activities prior to the opening of the fall term. The two weeks are to be used for job development, developing training plans, getting training agreements signed by employers, visiting parents of students that will be in the program in, the fall, recruiting, and reviewing student files. One week is required to occur just prior to the opening of school in the fall. The second week can be taken at any time during the summer after summer school starts on July 5. During the summers of 1978, 1979, 1980 and 1981, Respondent had a summer job with the City of Miami as director of the lunch program in the City's parks. In that job, he supervised four monitors employed by the lunch program, who visited the parks and reported back to Respondent. Respondent also visited the parks to ensure that the lunch program operated efficiently, and he was responsible for much of the paperwork involved in the program, including tally reports. During each of the summers in question, the lunch program for the City of Miami ran for eight weeks. Although the Recreation Department of The City of Miami requires that its administrative offices be open during the normal working hours of 8:00 a.m. until 5:00 p.m., the same schedule was not required of persons working in the lunch program. The monitors working in the lunch program were part-time employees for the reason that the caterer commenced delivering lunches to the various parks at approximately 10:30 a.m. The anticipated schedule was that lunches would be served to the children involved in the program between noon and, hopefully, 1:00 p.m. but by 2:00 p.m. at the latest. Although there were more parks involved in the program than monitors, each park had its own supervisors overseeing operation within the park. If a problem arose regarding delivery of the lunches or during the serving of the lunches and neither Respondent nor any of the monitors were on site, the park's employees could temporarily resolve the problem and call the office at the City of Miami to advise of the need for any further assistance. During most of his eight-week employment with the City of Miami, Respondent worked normal hours involved in a 40-hour work week. However, during the summers of 1978, 1979, 1980 and 1981, two weeks of the City's lunch program involved the same two weeks when Respondent was employed by the School Board for his preplanning activities. The two-week periods (actually ten working days) when Respondent was on the payrolls of both the School Board of Dade County and the City of Miami were as follows: August 7-18, 1978; August 6-17, 1979; July 28-August 8, 1980; and August 10-21, 1981. Respondent was hired each of the summers involved by Basha Schlazer, the Recreation Program Supervisor for the City of Miami. Prior to Respondent's acceptance of the summer job each year, he advised Schlazer that he had a two- week preplanning period which would overlap the City's employment, during which time he would be a full-time employee of the School Board and he would have to work at Coral Gables Senior High School before he could undertake his duties at the City of Miami. Schlazer told Respondent not to worry about it, since his duties with the City could be worked around his duties with the School Board. Because his employment at the City of Miami would not interfere with his work hours at Coral Gables Senior High School during those two weeks inn question each year, Respondent accepted the position with the City of Miami. Schlazer was Respondent's immediate supervisor during his employment with the City of Miami. During the two-week employment overlap period each summer, Respondent went to Coral Gables Senior High School at approximately 7:30 to 8:00 a.m. He worked there each day completing the activities previously planned for in the plans completed by him, as required of all teachers prior to their summer employment. He completed all of the activities listed in his daily plans and left Coral Gables Senior High-School at approximately 1:30 p.m. each day. He then went to his job at the City of Miami, arriving there at approximately 2:00 to 2:30 p.m. He then worked at the City of Miami until approximately 5:00 p.m. He took home with him the paperwork he did not complete at his job with the City and completed that paperwork during the evenings and on weekends. The hours during which Respondent worked at home were supplemented, at Schlazer's request, by Respondent working on other activities involving the City of Miami, such as working at talent shows, dog shows and a hula-hoop contest, all during the evening or weekend hours. Respondent was not compensated for these extra activities, but rather, at Schlazer's direction, he continued to simply fill out payroll sheets so they reflected that he continued to work eight hours a day during those two weeks in question each year. By devoting his own time to his duties at the City during the two weeks in question each year, Respondent continued to enjoy his reputation at the City as a good worker, and the park lunch program ran smoothly at all times under his direction. The only difference which occurred in The lunch program during the two weeks of overlap is that during that time the park employees and monitors were instructed not to call in if there were a problem until after 2:00 p.m., when Respondent came to work. During each of The two weeks of each of the four summers in question, Respondent was never at the City of Miami in the mornings except on one occasion during the summer of 1981. On that day, Respondent worked at Coral Gables Senior High School until 11:00 a.m., when he was entitled to a break. During that break, he drove to the City of Miami to drop off a report that he had completed at home the night before. As he was leaving the City of Miami office to return to Coral Gables Senior High School, he received a telephone call from his department chairman at the school telling him that his principal wished to speak with him. During the regular school year, Respondent is not expected to be at Coral Gables Senior High School throughout the normal teaching day because of the nature of his teaching position. Rather, he is expected to be off the campus canvassing to find prospective employers, visiting parents, following up on job leads and otherwise doing the normal activities expected of a teacher in the Cooperative Education program. Although the contract between the School Board and the teachers' union specifies that the contractual workday for teachers in senior high schools is 7 hours and 20 minutes long, commencing at 7:30 a.m. and ending at 2:40 p.m., That was not necessarily Respondent's workday normally, since his job took him off the school site. Respondent believed that the work hours required during The two-week preplanning period were more lenient, and no evidence was introduced that Respondent had ever been advised of the specific time frame contained within the union's contract with the School Board. The School Board utilizes a form entitled "Voucher for In-County Travel Reimbursement and Monthly Visitation Report for Vocational Cooperative Teachers." Although Cooperative Education teachers are required to provide such forms for travel reimbursement regarding mileage and have been so advised during various monthly inservice meetings, some of those teachers do not fill out those forms for reimbursement, since they choose to claim those items on their personal income tax returns. Respondent is one of those teachers. If a teacher chooses not to fill out such a form, no monitoring is done by the School Board since there is no specific rule which would be violated by the failure to fill out such a form. It simply means that the School Board will not have to reimburse its employees for travel expenses. In his 33 years of teaching in the State of Florida, 26 years of which have been for the School Board of Dade County, Respondent has never been suspended or disciplined. No evidence was presented to show that Respondent's work with the City of Miami interfered with his School Board job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Notice of Charges filed against Respondent and reinstating him to his former position with full back pay. DONE and RECOMMENDED this 4th day of October, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 4th day of October, 1983. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County School Board 141 Northeast Second Avenue Miami, Florida 33132 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 83-464 GEORGE Y. BUTLER, Respondent. /
Findings Of Fact Petitioner, Clarence E. Burtoft, was hired by respondent, Southern Linen Service, in November, 1982 as assistant general manager at its Daytona Beach plant. Prior to this employment, he had back surgery performed in Augusta, Georgia but the effects of such surgery did not interfere with his job duties. After being on the job for approximately three days, he was told by the regional manager that labor costs needed to be reduced, and that one employee must be laid off. He was also told to shift two female employees from one department to another. There is a dispute between the parties as to what the actual instructions were, and whether they were in fact carried out by Burtoft. Nonetheless, the employer construed Burtoft's actions as not complying with its instructions, and Burtoft was accordingly terminated the following day and told he was not the right man for the job. The back surgery was not related in any respect to the termination and Burtoft himself acknowledged as much. Burtoft's complaint is that his job records at Southern Linen Service contain a notation that he was fired for refusing to follow instructions. He only wants that adverse information removed. 1/ He is not contending that his employer unlawfully discriminated against him, or requesting that his job be reinstated with full back pay. Indeed, it was only after he visited the State employment office that he filed this complaint upon that office's encouragement. At no time was he ever told by any Florida Commission on Human Relations representative that its jurisdiction extended only over certain employment practices, and that any complaint must necessarily be founded on some form of discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for relief filed by Clarence E. Burtoft be DENIED. DONE and ENTERED this 2nd day of March, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 2nd day of March, 1984.
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.
The Issue Did Respondent, CTI Resource Management Services, discriminate against Petitioner on account of her race, in violation of chapter 760, Florida Statutes?
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made: Ms. Ferguson worked for CTI as an enterprise application support (EAS) customer service representative (CSR) at the company’s corporate headquarters in Jacksonville, Florida. She was hired on June 18, 2012. CTI is a Service-Disabled Veteran-Owned Small Business. The company operates as a government contractor and provides support for information technology, logistics, staff augmentation, and administrative support primarily for government customers. CTI has been in business since March 2003. At all times relevant to this case, CTI has maintained a Discrimination, Harassment, and Retaliation Policy, prohibiting all forms of unlawful discrimination, harassment, and retaliation. The policy states in part as follows: Conduct that interferes with CTI, or an individual’s work performance, or creates an intimidating, hostile or offensive working environment is prohibited. CTI will not tolerate any attempts of retaliation against an employee who raises a sincere and valid concern that this policy has been violated. CTI takes all allegations of discrimination, harassment and retaliation very seriously and is firmly committed to ensuring a workplace free of discriminatory activities. Anyone engaging in discrimination, harassment, or retaliation is subject to disciplinary action up to and including termination. (Respondent’s Ex. 2) Ms. Ferguson was familiar with this policy and received annual training on it. In fact, in 2015, she made a perfect score of 100 on her discrimination policy training. Ms. Ferguson reported to her team leader, Sarah McKibben. Ms. McKibben, in turn, reported to the administrative director and program manager, Wendy Marsh. Ms. Marsh reported to CTI’s executive vice president and chief operating officer, Chris Getz. Mr. Getz reported directly to CTI’s chief executive officer, Chris Imbach. CTI also employed a director of Human Resources, Robin Norton. Ms. Norton has been employed in this position for approximately six years and has over 20 years of experience in the field of human resources. Iris Maldonado Borges was employed as a coworker on Ms. Ferguson’s Team, and, in fact, occupied the cubicle immediately adjacent to Ms. Ferguson. Ms. Borges is Hispanic. On Thursday, September 9, 2015, Ms. Marsh advised Ms. Norton that Ms. Borges was resigning from her employment. This surprised Ms. Norton, since Ms. Borges recently had sought a promotion within the company, and, in the process, had advised Ms. Norton how much she loved working for CTI. Accordingly, Ms. Norton asked Ms. Borges to come to her office to talk about her resignation. When Ms. Borges reported to Ms. Norton’s office, Ms. Borges initially did not want to talk about the reasons for her resignation, simply saying that she was resigning “for personal reasons.” When pressed further, Ms. Borges said that she did not want to “get anyone in trouble” and started crying. She also stated that she was afraid of retaliation. When she was assured that CTI had a policy against retaliation, she finally talked about four separate incidents that she had experienced in the workplace. The first incident related by Ms. Borges involved mean and hurtful comments and gossip about Team Leader McKibben and another employee, Veronica Smoot, allegedly being in a lesbian relationship. According to Ms. Borges, Ms. Ferguson and another coworker, Phylisia Knowles, were the ones making the “loudest comments.” This was upsetting to Ms. Borges since both Ms. McKibben and Ms. Smoot were friends. The second incident also involved Ms. Knowles. Ms. Borges said that Ms. Knowles was “very mean” to her, would not speak to her, and during a team meeting, she had “shot her a bird.” The third incident occurred during the employee “crazy hat day.” According to Ms. Borges, she, Ms. Knowles (African- American), and Ms. Ferguson were posing for a picture, when another employee, who was Caucasian, attempted to join the picture. Ms. Ferguson then allegedly told the employee, “no, this is a minority picture,” and the employee was not included in the picture. The fourth incident involved alleged gossiping by Ms. Ferguson with another coworker about Ms. Borges allegedly being in a relationship with a male coworker. Ms. Borges overheard the conversation, which upset her because she was married, and she felt like the conversation was very disrespectful to her marriage. After relating the above incidents, Ms. Borges stated that “these things had been building up and that she couldn’t take it anymore” and she wanted to resign. Ms. Norton then asked Ms. Borges to take some time off with pay until the matter could be investigated, which she agreed to do. Ms. Norton conferred with Ms. Marsh and Mr. Getz, and it was determined that Ms. Ferguson and Ms. Knowles would both be interviewed the following Monday, September 14, 2015 (the first day that both were scheduled to be at work). It was also determined that Ms. Borges’ workstation would be moved to a new location that was not immediately adjacent to that of Ms. Ferguson. Both Ms. Ferguson and Ms. Knowles were interviewed the following Monday, September 14, 2015, by Ms. Norton, Mr. Getz, and Ms. Marsh. Ms. Norton initially conducted both interviews, asking a sequence of questions concerning the incidents raised by Ms. Borges. With respect to Ms. Ferguson, she recalled rumors circulating about Ms. McKibben and Ms. Smoot being in a lesbian relationship, but denied participating in them. She could not recall the “this is a minority picture” comment during “crazy hat day,” but stated that it sounded like something she could have said in a joking manner. She denied participating in a conversation about Ms. Borges allegedly being in a relationship with a coworker. Mr. Getz concluded the interviews with both Ms. Ferguson and Ms. Knowles by stating that whether or not they had participated in the incidents and rumors involving coworkers, such conduct did not resonate with CTI’s values and was not to be tolerated. He reiterated that if such conduct happened again, the offending employee would be immediately terminated and he would personally escort him or her out the door. At the conclusion of the interviews, Mr. Getz, Ms. Norton, and Ms. Marsh conferred and it was decided that, aside from the stern warning from Mr. Getz, no further action was to be taken against either Ms. Ferguson or Ms. Knowles. Two days later, on Wednesday, September 16, 2015, Ms. Marsh, Ms. McKibben, and Ms. Borges, who was crying, all came into Ms. Norton’s office. Ms. Borges described an incident that had occurred that morning in the ladies’ room involving Ms. Ferguson. She stated that as she was exiting her stall, Ms. Ferguson was standing there blocking her exit and “fronting” her. When asked what she meant by “fronting” her, Ms. Borges stated that Ms. Ferguson had her chest bowed out, and had a “very mean and intimidating look on [her] face” like she was “going to fight.” While describing the incident, Ms. Borges was very, very upset and crying. She stated that she “had had it . . . that she couldn’t take it anymore and she wanted to resign.” Ms. Norton again asked her to please go home until they had an opportunity to address the situation. Ms. Norton, Ms. Marsh, and Ms. McKibben then contacted Mr. Getz and related to him what Ms. Borges had reported. In discussing the situation, it was determined that they had no reason not to believe Ms. Borges. She had been an excellent employee and was very non-confrontational in her demeanor. There also were no other witnesses to the incident besides Ms. Borges and Ms. Ferguson. Mr. Getz and Ms. Norton also conferred with CTI’s chief executive officer, Chris Imbach. It was decided that the type of intimidating behavior reported by Ms. Borges was not consistent with the company’s values, particularly since it had occurred a mere two days after Mr. Getz had made it “crystal clear” that such conduct would not be tolerated. Accordingly, the decision was made to terminate Ms. Ferguson’s employment. Mr. Getz, Ms. Norton, Ms. Marsh, and Gary Rogers, director of Security, met with Ms. Ferguson that same afternoon. Mr. Getz conducted the meeting, which was “relatively short and to the point.” He advised Ms. Ferguson that she was being terminated for her intimidating behavior in the women’s bathroom, which was found to have created a hostile working environment. Ms. Ferguson was argumentative and tried to interrupt Mr. Getz throughout the meeting. Ms. Ferguson stated that she could not believe that she was being fired for merely “glaring” at a coworker. This statement confirmed to Mr. Getz and Ms. Norton that Ms. Ferguson knew what she had done in the ladies’ room, as Mr. Getz had simply told her that she was being terminated for her “intimidating behavior” in the ladies’ room--no details of the incident were disclosed to her. Ms. Ferguson was provided a written letter of termination at the meeting, confirming the reason for her termination. Mr. Getz made the final decision on termination. There was no persuasive evidence presented at hearing that race played any part in Mr. Getz’s decision. Mr. Getz was a pastor in a local church for 15 years prior to being an executive with CTI. Mr. Getz also has a very racially diverse family. He and his wife adopted four children, one of which is Asian, one is half Caucasian, half Hispanic, and two are African-American. The evidence established that CTI has a racially diverse workforce at its corporate headquarters. In 2015, 21 of its 70 employees, or 30 percent, were African American; five, or seven percent, were Hispanic; and three, or four percent, were Asian. Petitioner presented evidence that an African-American coworker, Jeff Lazenby, had made a complaint of a hostile work environment against his Caucasian supervisor, Adam Highfill, but that Mr. Highfill was not terminated by CTI. The complaint against Mr. Highfill occurred in June 2011, over four years prior to the incident leading to Ms. Ferguson’s termination. Mr. Lazenby’s complaint was investigated by Ms. Norton; Mr. Getz; Mike Vonbalson, senior program manager and Mr. Highfill’s supervisor; and Bob Bearden, also a program manager. It was determined that Mr. Highfill had not created a hostile working environment; rather the two individuals became engaged in a disagreement on the work floor and both were found to have acted inappropriately. Mr. Lazenby and Mr. Highfill were both counseled for their behavior. Further, Mr. Highfill was found to have engaged in poor management practices. He was placed on a 30-day development plan to attempt to improve his management skills. When his management skills did not improve to an acceptable level, Mr. Highfill was demoted to a nonsupervisory position on August 3, 2011, where he remains employed. Ms. Knowles, who is African-American, was not terminated by CTI, because there were no further complaints or incidents involving alleged behavior by her following the company’s interview with her on September 14, 2015. The credible evidence of record established that Ms. Ferguson was terminated for creating a hostile work environment after being specifically advised on September 14, 2015, that any such behavior in the future would result in her termination by the company. There is no credible evidence of record that Ms. Ferguson’s termination was racially motivated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed against Respondent. DONE AND ENTERED this 24th day of March, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 24th day of March, 2017.
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice on the basis of religion; or in retaliation to his engagement in a lawful employment activity, in violation of section 760.10, Florida Statutes.
Findings Of Fact Respondent, Escambia County, is a political subdivision of the state of Florida that is authorized to carry out county government, pursuant to section 125.01, Florida Statutes (2016). Escambia County is an employer as that term is defined by the Florida Civil Rights Act 1992. Petitioner, Mr. Love, was employed by Blue Arbor, Inc., a staffing agency. Blue Arbor had a contract with Escambia County for temporary labor services. Blue Arbor assigned Mr. Love to a temporary job with Escambia County, Public Works Department, Office of Engineering and Construction, as an engineering project coordinator. The assignment was for one year. Petitioner was assigned to the job from May 26, 2014, until his termination. On January 26, 2015, Escambia County terminated Petitioner’s temporary employment contract. Petitioner was an employee of Escambia County as that term is defined by the Florida Civil Rights Act of 1992. Mr. Love is a Christian. Petitioner timely filed a complaint with the Commission alleging Respondent engaged in an unlawful employment practice by terminating Petitioner on the basis of his religion. As an engineering project coordinator, Petitioner’s job responsibilities included: management of complex projects, ability to prioritize work, and ability to exercise good interpersonal skills with co-workers, supervisors, and the public. Mr. Love earned a Bachelor of Science in Engineering Technology and Construction degree in December 2013. Mr. Love had no prior drainage or roadway experience before working for Escambia County. Mr. Love began working for Escambia County following a storm that was declared a disaster. Due to the disaster, staff was expected to be flexible and able to perform job duties without refusal or hesitation. Respondent asserts that it terminated Petitioner’s contract due to his inability to perform job responsibilities without objection or hesitation, work performance, and disruptive behavior. Mr. Love had multiple supervisors during his eight month tenure at Escambia County. While working at Escambia County, Mr. Love’s supervisors had issues with his work performance and his behavior. Mary Bush, a construction manager, supervised Mr. Love in 2014. Ms. Bush had issues with Mr. Love’s file storage practices and behavior. Ms. Bush testified that Mr. Love saved all his work on a personal computer and was told several times to save his work in the shared folder. Mr. Love refused to save his work on the shared drive on the basis that the documents were his work. During the time Ms. Bush supervised Mr. Love, she experienced two incidents with Mr. Love involving outbursts. On one occasion, Mr. Love was in Ms. Bush’s office seeking review of Mr. Love’s work. Mr. Love stated in a raised voice, “you need to review the report so I can do my job.” On another occasion, Ms. Bush directed Mr. Love to identify his documents using a certain description and explained the importance of the practice. Mr. Love objected on the basis that the practice was an asinine process. Mr. Love was reassigned to another supervisor due to the outbursts involving Ms. Bush. At no point did Mr. Love state that his objection to following directions was based on his religion. Chris Curb, an engineering manager for stormwater, also supervised Mr. Love during his tenure at Escambia County. Despite the direction from Ms. Bush, the file-sharing issue continued. On December 30, 2014, Chris Curb notified Mr. Love by email that his file saving was a “problem.” Mr. Curb advised Mr. Love that his file folder was not a standard subfolder and he needed to save all files in the proper shared subfolders. He explained that file sharing is important so Escambia County could comply with state regulations and records requests. He further explained that Mr. Love was not the sole owner of a project record because other employees would need access to the work. He concluded his email with instructions for Mr. Love to use designated file folders. A third supervisor, Jim Duncan, also had issues with Mr. Love’s work performance and behavior. Similar to his practice under prior supervisors, Mr. Love refused to save his files to the shared file folder. Mr. Love also repeatedly refused to attend mandatory meetings without a direct command. For example, on multiple occasions Mr. Love’s supervisor had to locate and direct him to attend the weekly department meetings. Mr. Love testified that he was reluctant to attend the meetings because he believed they “were unproductive and take up too much time.” Similar to other supervisors, Mr. Love engaged in an outburst with Mr. Duncan. Mr. Duncan was a construction manager when he supervised Mr. Love and thus, was responsible for directing Mr. Love to advance projects from conception to completion. One such project was ENG Flood 414-85, which was also referred to as the Beulah Road at Helms Intersection project (“Beulah-Helms project”). Mr. Love was the project coordinator for the project. In October 2014, Roads, Inc., a construction company, submitted a bid for the Beulah-Helms project. Brett Moylan is the vice-president and chief operating officer of Roads, Inc. The project was a pricing agreement contract. Pricing agreement contracts are contracts where prices are established for a period of one year and are adopted by the Escambia County prior to the award of any specific pricing agreement contract. Pricing agreements have a blackout period and bidding process that also takes place prior to acceptance of the pricing agreement. In December 2015, Mr. Love was in the final stages of the procurement process for the Beulah-Helms project. Roads, Inc. was the lowest bidder on the project. Mr. Love corresponded with Mr. Moylan regarding the documents necessary to approve the project. Mr. Love requested a construction schedule and MOT plan for the project before the work order could be approved. Mr. Moylan asserted in an email that the construction schedule would begin after the purchase order is issued. Mr. Moylan later submitted the MOT plan and signed the work order. On January 22, 2015, Mr. Love sent an email to Mr. Moylan requesting the construction schedule and another signed work order with the appropriate dates. Mr. Love advised Mr. Moylan that he would not begin the project until Mr. Moylan submitted the construction schedule. Although Mr. Moylan explained that he usually did not submit a construction schedule, he ultimately provided the construction schedule to Mr. Love indicating that the project would begin the following Monday and “be substantially complete within 60 days of commencement, and have a completion date within 90 days.” The construction schedule provided by Mr. Moylan was an acceptable schedule. For a reason that was not addressed at hearing, Mr. Love asked Mr. Moylan for the construction schedule again, despite receiving it. Mr. Moylan advised Mr. Love to accept the next lowest bidder. As a result of the email exchange with Mr. Moylan, Mr. Love planned to send Mr. Moylan a follow-up email about accepting the next highest bidder, which would purportedly cost Escambia County an additional $20,000 for the project. Before Mr. Love drafted the email, he called Mr. Moylan to discuss the issues referenced in the email. Mr. Love testified that before he called Mr. Moylan he “drove around the block a couple of times, before he could call Mr. Moylan because [he] knew that the conversation was going to get heated.” Mr. Love described the conversation as heated, and they “cut each other off” during the conversation. Mr. Moylan contacted Mr. Duncan to complain about Mr. Love’s behavior related to the Beulah-Helms project. Mr. Duncan approached Mr. Love to discuss the exchange between Mr. Love and Mr. Moylan. Mr. Duncan directed Mr. Love to award the Beulah-Helms project to Roads, Inc. Mr. Love objected to awarding the contract to Roads, Inc. He testified that his objection was based on his religion because “[he] had an obligation to utilize his moral and ethical judgment which is inherent to [his] religion.” Mr. Love stated that the religious accommodation was based on his request for additional information before he could feel comfortable awarding the project to Roads, Inc. Mr. Love testified that he told Mr. Duncan that he refused to award Roads, Inc., without the construction schedule “based on a matter of principal.” Mr. Love did not say he refused to approve the project based on his religion. He did not say he needed an accommodation for his religion. Mr. Duncan directed Mr. Love not to take any further action until they discussed Mr. Love’s objection with the department manager, Joy Jones. During the conversation, Mr. Love became angry and yelled at Mr. Duncan. Sharon Johnson, a project coordinator, witnessed the exchange between Mr. Love and Mr. Duncan. Specifically, Ms. Johnson observed Mr. Love and Mr. Duncan having the discussion about the Beulah-Helms project. Ms. Johnson described Mr. Love’s demeanor as unhappy and upset. She testified that he raised his voice and yelled at Mr. Duncan. At the same time, Mr. Duncan attempted to calm Mr. Love. Ms. Johnson could not recall the substance of the discussion, but she testified without hesitation that Mr. Love did not mention anything about his religion. Ms. Johnson’s testimony is found to be credible. On January 26, 2015, Escambia County terminated Petitioner’s contract. Joy Jones, the Engineering Department manager, made the final decision to terminate Mr. Love’s contract. Although Ms. Jones did not directly supervise Mr. Love, she was aware of the issues concerning his work performance and behavior through complaints from her staff who directly supervised Mr. Love. After several complaints of angry outbursts, difficulty meeting deadlines, failure to save critical documents to the shared drive, inability to move projects in the process without reluctance, and inability to work with several supervisors, Ms. Jones made the decision to terminate Mr. Love’s contract. Based on the evidence, Respondent has demonstrated that Mr. Love’s termination was based on a legitimate business decision due to poor work performance and disruptive behavior. Approximately one year after his termination, Mr. Love sent an email to the Escambia County Administrator, Jack Brown. The email complained of perceived damage to Mr. Love’s reputation, credibility, and career. Mr. Love did not mention any complaint of religious discrimination or retaliation. In his response to Mr. Love, Mr. Brown explained that “in the project coordinator position staff must examine and thoroughly understand applicable process. Refusal and hesitation to perform job duties affect production, grant reimbursement deadlines, and citizen expectations.” Mr. Love did not explicitly mention anything about his religion or religious discrimination to any of his supervisors before he was terminated from Escambia County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s discrimination complaint and Petition for Relief consistent with the Findings of Fact and Conclusions of Law of this Recommended Order. DONE AND ENTERED this 24th day of May, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Benjamin David Love Post Office Box 1132 Gonzalez, Florida 32560 (eServed) Meredith D. Crawford, Esquire Escambia County Board of County Commissioners Suite 430 221 Palafox Place Pensacola, Florida 32502 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether Respondent should be terminated from employment for the reasons stated in the Final Disposition - Notice of Dismissal (Notice), dated October 11, 2017.
Findings Of Fact Background The College is a public institution of higher education charged with the responsibility of providing post-secondary education. Currently, there are approximately 33,000 students enrolled at the College. It has eight campuses, including the Tarpon Springs Campus. Seven of the campuses have Provosts, who report to the Senior Vice President of Student Services. The College is overseen by a five-member Board of Trustees (Board), each Trustee appointed by the Governor. In this contentious dispute, the College seeks to terminate Respondent from his position as Provost of the Tarpon Springs Campus, a position he has held since 2014 under an annual Contract for Employment for Administrative Personnel of Community Colleges. The contract has been renewed three times, most recently for a term beginning on July 1, 2017, and ending June 30, 2018. The College, however, can decline to renew his contract for no cause at the end of each term. The annual contract provides that "the Board may suspend or dismiss the Administrator [Provost] for cause pursuant to the applicable provisions of the Florida Statutes and the Board of Trustees' Rules and Colleges Procedures." Also, under Board Rule 6Hx23-2.2012 (rule 23-2.2012), the College can terminate contractual employees for "immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness or conviction of any crime involving moral turpitude." In this case, the College relies upon misconduct in office as the ground for dismissal. The contract requires Respondent to comply with all relevant statutes and rules of the State Board of Education, the State Board of Community Colleges, and the Board of Trustees. He also is required to comply with the terms of any College internal policies and procedures in effect at the time that his first contract became effective, and continuing throughout his term of employment. The position of Provost is a very high-ranking administrative position. The Provost is responsible for overseeing all aspects of student services, which includes student complaints of harassment and discrimination, as well as working in partnership with Academic Deans and the faculty. It is a highly visible position with the College and in the community. The College characterized the position as the "face" of the campus and the Tarpon Springs community. The Provost also serves on various community boards and organizations to represent the views of the College. At the time of Respondent's hire in 2014, the President was Dr. William Law, while Dr. Tonjua Williams served as Senior Vice President, Student Services. Dr. Williams is now the President and the one responsible for making the decision to terminate Respondent's employment, subject to confirmation by a majority of the Trustees. Shortly after his hire in 2014, the College became aware of allegations at his prior employment in Virginia, which involved an inappropriate relationship with a subordinate female employee. Dr. Law directed Dr. Williams to speak with Respondent about the allegations. Respondent acknowledged to her that the allegation was true, and, as a consequence, he was moved from a position on campus to a district office position. Dr. Law decided to give Respondent the opportunity to continue to serve at the College, but the expectations of the College with regard to his personal conduct were made very clear in a memorandum to Respondent from Dr. Williams. It stated in part that "it all boils down to exercising good judgment. Modeling good judgment is highly valued at [the College] and has a significant impact on staff morale, leadership effectiveness and student success." Respondent acknowledged in writing that he received the memorandum. According to the President, this established the expectation that he would always use good judgment in matters concerning the College. During his tenure at the College, Dr. Williams and Respondent had what she characterized as a "great relationship," "a very close working relationship," and one that was "open and transparent." She added "[t]here were no problems with us reaching each other when we needed to speak and talk." The Incident Around 1:30 a.m. on August 21, 2017, a physical altercation between Respondent and a female occurred at her apartment in New Port Richey. Although Respondent is married, the two had been involved in an affair for around two years. The female was not a student or employee of the College. On Thursday, August 31, 2017, Respondent was served with papers requiring him to appear for a hearing in circuit court on a domestic violence injunction involving the female. While attending the hearing on Friday, September 1, 2017, Respondent was arrested by the Pasco County Sheriff's Office and charged with two felonies, one for Burglary - Occupied Dwelling Unarmed (§ 810.02(3)(a), Fla. Stat.), and another for Battery - Commit Domestic Battery by Strangulation (§ 784.041(2)(a), Fla. Stat). Both charges related to the incident that occurred on August 21, 2017. After spending the night in jail, Respondent bonded out on Saturday, September 2, 2017. On October 26, 2017, the charges were dismissed by the State Attorney after he declined to prosecute the matter. Events After the Arrest The College was closed officially for Labor Day weekend on September 2, 3, and 4, 2017. On Tuesday morning, September 5, 2017, Respondent texted Dr. Williams asking, "can we talk privately tomorrow I have a home life situation but I need to converse with you." Respondent knew that Dr. Williams planned to attend a conference at the Tarpon Springs Campus the following day, and he intended to speak with her at that time. Dr. Williams responded "absolutely." Nothing in the text suggests the "home life situation" was related to a legal matter or criminal arrest or that there was any urgency in meeting with her. Nor did it suggest that the subject of the meeting involved something that could potentially affect the College's reputation or his continued employment. In fact, Dr. Williams assumed he wanted to discuss "a personal matter." Due to the threat of Hurricane Irma, then in the Gulf of Mexico and headed towards the state, Dr. Williams did not attend the conference the next day. Also, the College closed officially on September 6, 2017, due to the hurricane and did not reopen officially until September 18, 2017. With the approval of his supervisor, Dr. Rinard, Respondent flew to Maryland, where his wife and children reside. He did not return to Florida until September 13, 2017. During this intervening period, he did not attempt to contact his supervisor or the President regarding his arrest. Even though the College was closed for the hurricane, administrators continued to perform duties and responsibilities related to the safety and security of the College. Dr. Williams conducted at least two conference calls per day via telephone or Skype, where as many as 60 administrators would join in the call to discuss situations on the campuses. Although he was in Maryland much of the time, Respondent joined in the conferences on most, if not all, of those occasions. In fact, on Monday, September 11, 2017, he texted Dr. Williams regarding the situation on the Tarpon Springs campus, which had been conveyed to him by his staff. On September 12, 2017, Respondent texted Dr. Williams and advised he was returning from Maryland. The text stated in part: "I need to speak to you regarding a personal/family matter. I will discuss all in detail with you." Again, it made no reference to his arrest. After he returned to Florida the next day, Respondent and Dr. Williams agreed to meet on September 14, 2017, at a local restaurant. However, the President later informed Respondent that she was unable to make the meeting and needed to reschedule. She attempted to reach him later that day by telephone to reschedule the meeting but was unsuccessful. At that point, she assumed Respondent wished to discuss a personal family matter that did not involve the College. The two exchanged texts again on Sunday, September 17, 2017, but Respondent chose not to mention his arrest. Around noon on September 18, 2017, or 17 days after his arrest, Respondent telephoned Dr. Williams, and, in a 15-minute conversation, he advised her that he had been arrested on September 1, 2017, he was innocent of the charges, and he had retained counsel. He also told Dr. Williams that he was involved in a relationship with a woman that went awry, and the incident was not work-related. Respondent added that he had gone to court on September 1, 2017, to file a restraining order against the female, and he believed he was being scammed.1/ During the call, Dr. Williams told Respondent she needed more details. She specifically asked that he provide a police report with the details of the incident and the name of the victim to verify she was not a student. Dr. Williams also told Respondent that he needed to contact Dr. Rinard, his immediate supervisor, and tell him what had happened. Had Respondent been unable to reach Dr. Williams by telephone on September 18, 2017, his belated efforts to notify the President would be further delayed, as Respondent's first choice was to speak to her one-on-one, or if this was not possible, to discuss the incident by telephone. His actions also raise an inference that he always intended to speak with the President, and not his direct supervisor. Later that same day, September 18, 2017, Respondent spoke with Dr. Rinard by telephone. According to Dr. Rinard, Respondent "informed [him] that he had had an affair, that the woman he had an affair with had pressed charges, he was arrested, that these were all lies, that she was a thief, she had stolen property, [and he] admitted that he was wrong to have had an affair." Dr. Rinard asked Respondent if the incident involved a student or employee or occurred on College property. He was told it did not. He did not provide Dr. Rinard with the name of the victim. The following day, the two again spoke briefly while attending a Board meeting. Respondent asked if he needed anything more in reference to their conversation the previous day and Dr. Rinard answered "no." While at the Board meeting, Respondent spoke privately with a Board member, Trustee Gibbons, and disclosed that he had been arrested. On the evening of September 18, 2017, the President telephoned Respondent and commented that she was looking at the charges on a website. She said she needed more information regarding the incident, but Respondent told her he had no documentation regarding the arrest. During the call, Respondent asked the President to speak with his attorney who could provide any details that she wanted concerning the charges. Although Dr. Williams testified there was no agreement to speak with the attorney, Respondent's criminal attorney, Mr. Theophilopoulos, testified that he understood Dr. Williams had agreed to a conference call around 5:30 p.m. on September 20, 2017, so that he (the attorney) could answer any questions she had. Dr. Williams denies that a conference call was scheduled. Respondent contends otherwise and says he went to his attorney's office and waited for her to call at the scheduled time, and when she did not, they both attempted to call her from his office but were unsuccessful.2/ Whether or not such a call was scheduled, it is undisputed that it never took place. However, Dr. Williams telephoned Respondent around 6:11 p.m. on September 20, 2017, while he was driving home from his attorney's office. The Vice President of Administrative/Business Services & Information Technology, Mr. Miles, participated in the call. Mr. Miles has oversight of the Human Resources Department. During the call, Dr. Williams informed Respondent that he was being placed on administrative leave, with pay and benefits, effective that date. Again, she requested a copy of the police report or details of the incident, as the College needed more information so that it could properly assess the situation. Respondent replied that he had no written reports but his attorney had "new information" regarding the charges. Respondent was told to have his attorney contact the College General Counsel, Ms. Gardner. A few hours after the phone call, Respondent received a memorandum from Dr. Williams via email confirming that he was being placed on administrative leave, with pay and benefits, until further notice. According to Dr. Williams, this would give the College more time to thoroughly review the situation before deciding what action to take. At that time, the College still lacked the name of the victim and detailed information regarding the arrest. On September 20, 2017, Dr. Williams notified three of the five Trustees about the incident and shared with them the information she had gathered up to that point. She also told them she was still "working" on what action to take. Respondent decided to return to Maryland the same evening he was placed on administrative leave. He testified that while driving to Maryland, he received a call from Trustee Gibbons, who told him the Board had voted to not terminate him if he was cleared of the charges. This assertion was not corroborated, and there is no record of any Board meeting at which a vote would have taken place. The Termination Process On September 21, 2017, Dr. Rinard advised Tarpon Springs faculty and staff that Respondent had been placed on administrative leave and that an interim Provost had been appointed. That evening, Dr. Williams and Mr. Miles spoke with Respondent by telephone. They informed him that the College had not yet received information regarding the arrest and instructed Respondent to return his keys. Mr. Miles offered to meet with him to pick up the keys. However, Respondent, who by then was in Maryland, told them he had already mailed his keys to his attorney. The following day, September 22, 2017, through its own investigation, the College was able to obtain a copy of the Pasco County Complaint Affidavit providing additional details regarding the arrest. On Saturday, September 23, 2017, Mr. Miles left a voicemail for Respondent and reminded him that he wanted to meet with him to obtain the keys to College property. Mr. Miles also sent a text, which stated, "Dr. Williams asked me to obtain your work keys so I'm coming today," meaning that he (Mr. Miles) would drive to Respondent's home in Palm Harbor or the campus that day to retrieve the items. In response to Mr. Miles' request, Respondent replied by email that the keys had been sent to his attorney via Federal Express from Maryland. He added that if the College had any further questions, his attorney should be contacted. As of Monday, September 25, 2017, the College had not received any additional information from Respondent or his attorney regarding the arrest, and it had not received Respondent's keys or swipe card. On September 25, 2017, Dr. Williams determined that termination proceedings should begin. The same day, Dr. Rinard issued a memorandum recommending that Respondent be dismissed from employment. The basis for the recommendation was as follows: You have engaged in misconduct by not timely disclosing to the College your arrest and the charges pending against you. You have also engaged in misconduct by not providing the College with documentation related to your arrest and not returning the College's property upon request. You have also engaged in misconduct by not being truthful and forthcoming about the details of your arrest. The memorandum was actually prepared for Dr. Rinard's signature by Mr. Miles, who oversees the Human Resources Department and is also an attorney. According to the memorandum, Respondent's actions violated rule 23-2.2012, which authorizes the College to terminate an administrator for the offense of "misconduct in office." The recommendation also referred to rule 6Hx23-2.19, which outlines the procedure the College must follow when it proposes to terminate an employee. The following day, September 26, 2017, Respondent's attorney emailed the General Counsel asking for directions on where to return the keys and swipe card that were in his possession. She replied that all College property, including any electronic devices or computers, should be delivered to the security desk lobby of the district office in St. Petersburg. On September 28, 2017, five days after Dr. Williams' directive, the keys and swipe card were delivered and secured by the College. The College did not receive Respondent's college- owned laptop and other electronic devices until October 11, 2017. The Predetermination Hearing and Termination After the recommendation to terminate was issued, Respondent requested a predetermination hearing, which is afforded an employee before a decision is made regarding termination. On October 5, 2017, a hearing was conducted by the Senior Vice President of Instructional & Academic Programs, Dr. Anne Cooper, who had the authority to affirm, modify, or reject Dr. Rinard's recommendation. Respondent was accompanied by his attorney at the hearing. At the hearing, Respondent was provided a timeline of events. In response, Respondent presented his own timeline for reporting the arrest, as well as a written statement from the alleged victim in the incident which resulted in his arrest. On October 9, 2017, Dr. Cooper issued a recommendation to the President that Dr. Rinard's decision to terminate Respondent's employment be upheld. The recommendation is found in Petitioner's Exhibit 11. By letter dated October 11, 2017, the President advised Respondent that she was upholding the recommendation for dismissal because Respondent: Failed to timely advise supervisor and college administration of the arrest and nature of the charges; Failed to provide the college with information and requested documentation regarding the arrest and allegations; and Failed to immediately return college property as requested. These grounds differed slightly from those in the memorandum signed by Dr. Rinard on September 25, 2017. Whereas Dr. Rinard's memorandum stated that Respondent had failed to timely inform the College of his arrest and pending charges, Dr. Williams' Notice stated that Respondent had "[f]ailed to timely advise supervisor and college administration of the arrest and nature of the charges." Whereas the memorandum stated that Respondent had failed to provide the college with "documentation related to [his] arrest," the Notice stated that he had "[f]ailed to provide the college with information and requested documentation regarding the arrest and allegations." Finally, whereas the memorandum stated that Respondent had not returned the College's property upon request, the Notice stated that Respondent had "[f]ailed to immediately return college property as requested." Although Respondent contends he is prejudiced because the original charges were modified, the allegations in the memorandum and Notice are substantially the same, and Respondent did not demonstrate how he was prejudiced by the minor changes. No matter which set of charges apply, the College has established that the allegations are true. The College Regulations and Policies Both parties agree there is no specific College regulation that requires employees to immediately notify their supervisor or other College officials after they are arrested and charged with a crime. However, Dr. Williams stated there is an expectation that a high-ranking employee, such as a Provost, should immediately notify his supervisor, within one or two working days, given the repercussions to the College that might arise if and when the charges became public.3/ The College relies on rule 23-2.2012 as the "principal ground for prosecution in this case." That rule allows the College to dismiss an employee under written contract for "misconduct in office." The term is not further defined by rule or statute that is applicable to the College. Because Respondent is not a career service employee, the College cannot rely on procedures applicable to that category of employees. Analysis of Respondent's Conduct At hearing, Respondent characterized the incident as "a personal and private matter" that was unrelated to the College. However, he agreed he had an obligation to tell the President and Dr. Rinard about the incident so that the College would not be blind-sided if the incident became public. He contends he made good-faith efforts to contact Dr. Williams by texting her on several occasions to request a meeting. But none of the texts stated, or even suggested, that he needed to speak with her about a work-related matter or that he had been arrested for two felony charges. Moreover, these efforts evidence the fact that he knew he had an obligation to timely, completely, and candidly report anything that could impact his effectiveness as a Provost or the reputation of the College. He failed to fulfill this obligation. Respondent does not dispute the fact that he made no effort to notify his immediate supervisor, Dr. Rinard, regarding his arrest until Dr. Williams instructed him to do so on September 18, 2017. More than likely, this was because he had very little contact with Dr. Rinard, who had assumed his position in July 2017. On the other hand, he had a much closer relationship with the President, and she is the individual who makes the final decision. According to Respondent, it was important that he discuss the matter one-on-one with the President due to the "nature of the sensitivity of the situation itself, my accuracy of understanding the accusations and the false accusations, which were also racially motivated." After Respondent was unsuccessful in personally speaking with the President on September 6, 2017, he should have immediately disclosed his arrest by telephone. The record shows that he had ample opportunity to report the incident to the President by telephone beginning on the day after he was arrested. His failure to do so exhibits a lack of good judgment and trustworthiness. The delay in reporting the arrest from September 1 until September 18, 2017, was unreasonable in light of all circumstances. As Dr. Williams noted, "there is an expectation of good judgment for Provost and campus leaders, Deans, and others in that role. And you always expect your leaders, you know, [to] protect the Institution and make sure they are aware of what is going on." In the same vein, Mr. Miles pointed out that the College ended up having "to get the information ourselves" after Respondent failed to provide additional information regarding the arrest. This led him to ask whether he could "trust Dr. Bright to give me what I need to do the job that I need to do." He added that it was imperative that the College know "what exposure" it might have and how to "react to the situation" should the incident become public. Dr. Cooper, who conducted the predetermination meeting and is the chief academic officer of the College, testified that the Provost is a high-profile position and the face of the campus in the community. She noted that even though the College was closed for a hurricane, "there were multiple opportunities to report the incident to his direct supervisor, Dr. Rinard, and he failed to do so." She also testified that the incident could have blind-sided the President and Board of Trustees and put "the College in a very poor light in regard to the community." She added that "there was potential for multiple issues associated with not reporting it sooner," and "someone in that high-profile leadership position would know that." She summed it up by saying that even if there was not a specific written policy requiring Respondent to promptly report the incident to his superiors, an obligation to do so "is leadership 101." Besides failing to report the incident for 17 days, the evidence as a whole shows that, once the incident was reported, Respondent was non-responsive, uncooperative, and somewhat evasive in responding to Dr. Williams' direction to provide her additional information regarding the arrest and the name of the victim. The President had legitimate reasons for requesting additional information. Without this information, the College was at risk of having its reputation and credibility damaged. As the President pointed out, she asked for information, and when she did not receive it, this forced her to "go dig [herself] to find information" from another source. This should not be the job of the President. Finally, as previously found, Respondent did not promptly turn in all College keys and equipment, despite being told to do so on numerous occasions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that St. Petersburg College enter a final order terminating Respondent's employment as Provost at the Tarpon Springs Campus. DONE AND ENTERED this 4th day of April, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2018.
The Issue Whether the Respondent committed an unlawful employment practice by terminating the Petitioner’s employment on the basis of handicap.
Findings Of Fact The Petitioner, John Tadlock, (Tadlock) is a white male, age 46, and a resident of Panama City, Bay County, Florida. The Respondent, Westinghouse Electric Company, d/b/a Bay County Energy Systems, Inc. (Energy Systems), was and is a corporation organized and existing under the laws of the State of Florida. Energy Systems maintains a facility that collects garbage and burns it as fuel. The operation serves two basic functions. First, it disposes of unwanted garbage. Second, it produces energy by creating steam that in turn drives a turbine and produces electricity. From January, 1987, until September, 1993, Tadlock was employed by Energy Systems. Tadlock began as a B-class maintenance mechanic and advanced to the position of A-class maintenance mechanic. Subsequently, Tadlock moved to the operations portion of the company where he worked on boilers. Tadlock testified that he suffered injuries while at work during the years 1987, 1991, and 1993. Tadlock further testified that after each injury he recovered fully and resumed work at Energy Systems. As a result of the injuries sustained in his accidents at Energy System, Tadlock never testified that he was informed by any physician that he would have any permanent restrictions. In addition, at no time did Tadlock inform his employer, Energy Systems, that he suffered from any disability or restrictions relating to his ability to perform his job. During the period from October, 1991 through September, 1993, Tadlock had been cited for numerous violations of company policy and provided written warnings or reprimands. The first such violation occurred on October 24, 1991, when Tadlock was cited for violating company policy by failing to wear appropriate safety gear. Specifically, Tadlock failed to wear his indirect venting goggles. The memorandum memorializing the complaint noted that just two days prior to the complaint, Tadlock had received emergency training and, in response to a direct question raised by Tadlock, was informed that he must wear venting goggles. On September 17, 1992, Tadlock was cited for a safety violation for failing to wear appropriate hearing protection devices. As a result of this violation, Tadlock was given an oral warning. On June 3, 1993, Tadlock was cited for failing to wear gloves while on the floor of the facility. As a result of this violation of safety procedure, Tadlock was orally counseled on the correct policy and informed that such departure from set safety procedures would not be acceptable. On June 14, 1993, Tadlock was cited for failing to wear a personal respirator while in specific areas of the facility in violation of published safety procedures. On June 25, 1993, Tadlock received a written warning regarding his “unsatisfactory” safety record. Specifically, Tadlock was informed that he had a total of eleven accidents since his employment and that five of them were reportable to OSHA. The memorandum warned Tadlock that if he failed to show “immediate and sustained” improvement in his accident rate that he would be subject to disciplinary action. On July 30, 1993, Tadlock was verbally warned for failing to properly replace “pig pans” under an air dryer that resulted in oil running into a water drain. On August 31, 1993, Tadlock was verbally warned for failing perform his duties as an outside operator by failing to properly read his turnover log. As a result of his lack of action, Tadlock placed 55 gallons of bleach into a drainage basin. On September 19, 1993, Tadlock was informed, for a second time, that his safety record continued to be unsatisfactory. The letter referenced two accidents that occurred in August, 1993, that could have been avoided by practicing proper safety measures. As a result of those accidents and for his many past safety violations, Tadlock was suspended for three working days. Tadlock was offered employee assistance to help him perform his work in a more satisfactory and safe manner. On September 28, 1993, Tadlock was cited for a safety violation for failing to wear the appropriate shields on his prescription glasses. On October 10, 1993, Tadlock was cited for failing to properly maintain a boiler operator sheet log. This was the second time that Tadlock had been cited for improper maintenance of a log. Tadlock was also informed that if this type of action happened again, it would result in discipline. On October 15, 1993, Tadlock was observed urinating on the Boiler Room floor of the facility. Tadlock was cited for violating several rules of company conduct. A result of violating this company policy, coupled with the countless verbal and written warnings he had received, Tadlock was dismissed for cause. At the hearing, Tadlock admitted that he urinated on the floor of the facility but countered that he had no choice because Energy Systems failed to properly maintain its restroom. Tadlock was unable to support his assertion that there were no operating restroom facilities. First, in spite of every witness called by Tadlock, there was no testimony, even from Tadlock himself, that any of the bathrooms were not in working order.4 Energy Systems maintained that it had operational restroom facilities throughout its facilities. In addition, no competent evidence was presented that indicated that any of the restroom facilities were inoperable thus requiring someone to urinate in the middle of the facility. After being fired for the numerous safety violations and for violating company policy, Tadlock filed a complaint with the Commission on Human Relations alleging that he was discriminated against because of his handicap. Specifically, Tadlock asserted that he had suffered several on-the-job injuries that rendered him disabled and that he was discriminated because of the type injury or the lack of adequate medical treatment that he received. Such allegations were never proven and appear irrelevant to these proceedings. Specifically, any issues relating to his medical treatment and his injuries are more appropriately resolved in a worker’s compensation forum. At no time during his employment with Energy Systems did Tadlock inform his employer that he suffered from a handicap. Furthermore, there is no evidence that Energy Systems was aware that Tadlock suffered a disability or handicap. For example, Mr. James M. Leddy, the plant manager for Energy Systems testified that he was not aware of any condition which prevented Tadlock from functioning in a normal manner. The record is void of any evidence by a physician to indicate that Tadlock was considered disabled or handicapped. Mr. Dale J. McKeand, Manager of Plant Operations for Energy Systems, stated that Tadlock was not disabled and never asked for any accommodation for his “condition.” In addition, Mr. Richard S. Brookins, an industrial hygiene, safety and environmental coordinator for Energy Systems, stated that Tadlock worked full-time with no medical or duty restrictions and that he was terminated for his safety violations including urinating on the boiler room floor. Assuming that Tadlock could prove that he was handicapped, his actions after he was dismissed do not indicate a person with a handicap. Specifically, immediately after Tadlock’s dismissal, Tadlock opened a skinning shop for the purpose of skinning wild game (alligators, etc.). Skinning is a very physical job and it requires an individual to handle large game animals for the purpose of skinning hides from the carcasses of the animals. For the reasons stated above, there is no evidence to support that Tadlock was dismissed for any reason other than cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that this matter be dismissed with prejudice. DONE and ORDERED this 27th day of March, 1997, at Tallahassee, Florida. ` WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1997.
