The Issue Whether Respondent's contract of employment as a cafeteria worker should be terminated.
Findings Of Fact Dorothy Golden was employed as a lunchroom worker at Cottondale High School. She had been employed as a lunchroom worker since 1984. Ms. Golden's contract of employment was for one year and expired in the latter part of April, 1991. The contract was not renewed for the 1991-92 school year. During the 1990-91 school year, Dorothy Golden's immediate supervisor was Dorothy Barnes. Dorothy Barnes became the Cafeteria Manager at Cottondale High School after the retirement of Lela V. Gardner in approximately 1988. Although Ms. Golden inquired about assuming the manager's position at the County office, she never submitted an application because she decided she did not want the responsibility of the job. Ms. Golden did not resent the fact that Dorothy Barnes was hired as the Cafeteria Manager at the high school. Dorothy Barnes was supervised by the principal, Henry Ezell and the food service director, Ralph Harrison. Both Ms. Barnes' supervisors thought highly of Ms. Barnes because she had turned the cafeteria into a paying enterprise for the school. Over time a personality conflict gradually developed between Ms. Golden and Ms. Barnes because of Ms. Barnes' dictatorial style of management. In fact, Ms. Barnes could be so overbearing that at least two lunchroom employees who worked with Ms. Barnes testified that they would resign their jobs rather than work under her supervision again. 1/ Over the years Ms. Golden and Ms. Barnes had several minor conflicts. These conflicts basically stemmed from the personality conflict between the two women and Ms. Barnes' perception that Ms. Golden was unwilling to perform the duties Ms. Barnes assigned to her and/or that Ms. Golden was not prompt in the performance of such assigned tasks. Ms. Golden tried her best to get along with Dorothy Barnes. Ms. Golden felt that she could never do enough to satisfy Ms. Barnes. Apparently, until March, 1990, none of the alleged problems between Ms. Golden and Ms. Barnes were sufficient to justify a downgraded evaluation in any particular category or a failure to recommend her for reemployment for the following year. In fact, for each of the school years 1984-85 through 1989-90, Ms. Golden received satisfactory evaluations and had her annual contract of employment renewed. Given these facts and the supportive testimony of Ms. Golden's co- workers, the School Board has failed to demonstrate any cause for terminating Ms. Golden which could be attributed to the period of time prior to March 28, 1991. On March 28, 1991, Ms. Golden was sick with a temperature. Even though she was ill, Ms. Golden went into work with the intention of going to see the doctor during the day. She informed Ms. Barnes that she was sick and was going to see the doctor. However, the doctor could not see Ms. Golden on March 28. Ms. Golden therefore continued to work throughout the day. Near the end of the March 28 workday, Ms. Barnes instructed Ms. Golden to grind five pounds of cheddar cheese and five pounds of white cheese. The cheese was needed for the next day's meal. Because she felt so bad and had time the next day to grind the cheese, Ms. Golden asked Ms. Barnes if she could wait until the next day to grind the cheese. When Ms. Barnes did not tell her not to, she assumed she had permission to wait until the next day. The next day, March 29, 1991, a Friday, Ms. Golden attempted to grind the cheese. Ms. Barnes had revised her instruction to require that Ms. Golden grind 45 pounds of cheese even though only 10 pounds were needed for that day's meal. Clearly, the remaining 35 pounds of cheese would have to be stored in some fashion. The usual practice was to store cheese in bulk in one large freezer bag. The practice did not include using several small used bread bags in lieu of one large freezer bag. Ms. Golden attributed the practice of using one large freezer bag to prior instructions from the health inspectors. The cheddar cheese ground properly. However, Ms. Golden had difficulty grinding the white cheese because it was not frozen solid and gummed up in the grinder. Ms. Rouhlac, a co-worker of Ms. Golden, observed Ms. Golden's difficulties in grinding the white cheese and told her to get Ms. Barnes to help her. Ms. Golden said that she would rather clean the machine and try it one more time before seeking assistance from Ms. Barnes. The white cheese continued to gum up the grinder. In order to come up with enough cheese for that day's meal, Ms. Golden used some other cheese which was already shredded along with the amount that she had ground. Ms. Golden placed the remaining cheese in a large bag in the refrigerator to return to later. Ms. Golden continued to perform other tasks for the remainder of the day until Ms. Barnes requested her to place the cheese in smaller bread bags. Ms. Barnes' request was made ten minutes before quitting time. Ms. Golden searched for smaller bags to put the cheese in but could not find any. Ms. Golden asked Ms. Rouhlac about bags in her area. Ms. Rouhlac looked for some small bags but could not find any. Consequently, Ms. Golden placed the cheese back in the refrigerator until she could get some bags. Ms. Golden suspected that Ms. Barnes was responsible for the bags disappearing based on Ms. Barnes' previous practice of playing little tricks on employees by hiding things. The search for the small bags took up the remainder of the work day. Ms. Golden was not allowed to stay after normal working hours and she left for the weekend. On Monday, April 1, 1991, Ms. Golden was washing lettuce in prepartion for making a green salad. Ms. Golden was using one half of a double sink to wash the lettuce. The other half of the sink had dirty utensils soaking in it. Ms. Golden had previously been instructed that the side of the sink with the utensils in it was for the cook and not to use that side of the sink. Ms. Barnes told Ms. Golden to wash the sink. Ms. Barnes intended the word "sink" to refer to both sides of the double sink being used by Ms. Golden. Ms. Golden understood the word "sink" to mean one side of the double sink. She washed the side of the sink she was working in. A short time later, Ms. Barnes again told Ms. Golden to wash the sink. Ms. Golden told her that she had already washed her sink. After a brief discussion on this issue between the two women and Ms. Barnes made her intent clear, Ms. Golden washed both sides of the sink in accordance with Ms. Barnes' instructions. Later that evening, Mrs. Golden attended a meeting of food service workers at which there was a discussion about how to get along with someone at work who was difficult to deal with. The advice given was to simply "turn the other cheek" and be silent so as not to exacerbate the problem. Mrs. Golden decided to take this approach with Mrs. Barnes in the hope that it would avoid further instances of Mrs. Barnes "jumping down her throat" for no apparent reason. On Tuesday, April 2, 1991, Ms. Golden, following the advice she had received the night before, did not reply verbally to Ms. Barnes when she was greeted the next morning. She simply went about her work in silence, avoiding Ms. Barnes where possible to avoid a controversy. During this time, Ms. Barnes instructed Ms. Golden to refill the milk shake machine. Having performed this task many times before, Ms. Golden knew exactly what to do and simply verified which day of the week it was to determine which flavor of milk shake mix to put in the machine. To avoid conflict with Ms. Barnes, Ms. Golden directed these questions to her fellow employees. Ms. Barnes, angry over her perceived rebuke when she greeted Ms. Golden, chastised Ms. Golden for her inquiry. The evidence indicates that Ms. Barnes apparently misheard some of Ms. Golden's inquiry. 2/ On Wednesday, April 3, 1991, Ms. Golden came to work and began preparing a salad. Ms. Barnes came in and angrily slammed the cheese from the cooler down in front of her and shouted "Stop what you are doing right now and bag this cheese." Ms. Golden had inadvertently forgotten about the cheese in the refrigerator. She said she would bag the cheese if there were some small bags available. When she went to look for bags, there were plenty of small bags in the place where such bags are normally kept, but which was empty the previous Friday. When Ms Golden discovered the return of the small bags she said to the other employees present "These bags must have walked back." Following the discovery of the small bags and within a few seconds of Ms. Barnes slamming down the cheese, Ms. Christmas, a co-worker of Ms. Golden, came over and helped Ms. Golden bag the cheese in small bags. During the bagging of the cheese a shouting match erupted between Ms. Golden and Ms. Barnes. When they were finished bagging the cheese, Ms. Golden went to Ms. Barnes' office to ask her whether she wanted the cheese in the cooler or in the freezer. The shouting match continued. Ms. Barnes was on the phone talking to someone whom Mrs. Golden assumed was Ralph Harrison because Mrs. Barnes was always threatening to call Ralph Harrison out to the school as a means of intimidating Ms. Golden. Later, Ms. Golden realized from comments made by Ms. Barnes that it was the Principal, Henry Ezell, to whom she was talking. During the conversation, Ms. Golden asked Ms. Barnes to permit her to tell her side of the story when she was through. Ms. Barnes became very angry and stated that "Here she is again telling me what to do," and threw the phone down, bouncing it off the floor. Later, both Ms. Barnes and Ms. Golden met separately with Mr. Ezell and Mr. Harrison. During Ms. Barnes' meeting, Ms. Barnes stated essentially that she had had enough of Ms. Golden and that something must be done about Ms. Golden or she would not continue to work in the cafeteria. During Ms. Golden's meeting, Ms. Golden answered the questions asked of her. When she was asked whether she would comply with Ms. Barnes' instructions Ms. Golden stated that she was doing everything she could to comply with Mrs. Barnes' directives. She told them that she felt that nothing she could do seemed to satisfy Ms. Barnes, but that she would continue to try and get along with Mrs. Barnes and to do her job as she had been. Mr. Ezell and Mr. Harrison interpreted Ms. Golden's response to mean that she did not believe there was a problem between her and Ms. Barnes and that she would not follow Ms. Barnes' directives. Ms. Golden meant just the opposite by her statements. Based on the above interpretation and to satisfy Ms. Barnes, the entire blame for the perceived problems Ms. Barnes was having with Ms. Golden was placed on Ms. Golden. Ms. Golden was told, by Mr. Harrison, that either the manager had to go or she had to go. Later, Ms. Golden was informed that she was suspended with pay pending a recommendation of dismissal. Written documentation to that effect followed. The evidence in this case, demonstrated that Ms. Barnes and Ms. Golden were not very good at communicating with each other. The difficulty in communication resulted not so much from disliking each other as from an imbedded inability in each women's personality and social skills to relate their meaning to each other. Ms. Barnes' failure was her overquick perception that she was not being obeyed, lack of pateince with Ms. Golden because of her perceptions about her and her lack of flexibility in manner of performance for a given task. Ms. Golden's failure was that she was somewhat slow in understanding and lacked flexibility in performing her functions because of her slowness. The evidence relating to the specific incidents outlined above clearly demonstrates that there was no failure on the part of Ms. Golden to perform her functions in the cafeteria. In each instance, there was never a refusal to comply with Ms. Barnes' directives but simply a failure to understand the directive or a disagreement about what was necessary to accomplish the task. All tasks were eventually performed once a meeting of the minds was achieved. None of the incidents outlined above warrant the early termination of Ms. Golden since she essentialy successfully and satisfactorily performed her job as a lunchroom worker during the time period from March 28, 1991-April 3, 1991.
Recommendation It is accordingly, recommended that the School Board of Jackson County enter a Final Order awarding Respondent backpay for the period of time from her suspension until the School Board's action not to renew her contract. RECOMMENDED this 28th day of February, 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 28th day of February, 1992.
The Issue Whether Petitioner established “just cause” to terminate Respondent's employment as a school bus driver.
Findings Of Fact Mr. Moore has been a school bus driver in Seminole County since 2009. The operative facts are not in dispute. On October 24, 2012, Mr. Moore was beginning his morning school bus route. After picking up two students, Mr. Moore, at approximately 6:45 a.m., pulled into a parking lot of a local doughnut shop and parked the bus. Mr. Moore exited the bus, left the school bus door open with the motor idling. Mr. Moore returned within three minutes with a bagel and a soft-drink. All of these events were captured on video, and Mr. Moore does not dispute that this early morning breakfast stop occurred. Mr. Moore's only explanation is that he was not thinking, and had been under a lot of personal stress at the time. The School Board has a specific policy that requires a school bus driver to operate the bus with "maximum regard for the safety of students and due consideration for the protection of health of all students . . . ." School Board Policy 8.31. Moreover, a bus driver is prohibited from using the bus for personal business, and prohibited from leaving the bus' motor unnecessarily idling while in the vicinity of students. School Board Policies 8.48, and 6.22(J). In addition to the School Board Policies, the School Board bus drivers are required to follow the procedures set out in the School Bus Operations Handbook (Handbook). Seminole County Public Schools, Transportation Services, School Bus Operations Handbook, (amended July 2012). Importantly, for this case, the Handbook expressly provides that a driver shall never leave students unattended on the school bus. School Bus Operations Handbook at 247. Further, the Handbook provides that in the event a driver must leave the bus, the driver must set the parking brake and remove the bus keys from the ignition. Id. A school bus driver is then directed to keep the keys in his or her possession. Id. Finally, the Handbook clearly states that the school bus driver is not to leave the approved bus route without permission. Id. Mr. Moore received extensive training in the School Board's policies concerning the safe operation of the school bus and the School Board's expectations for its school bus drivers found in the Handbook. Mr. Moore is sincere in his testimony that he loves his job, and forthright in his admission that he made a mistake in stopping for his morning breakfast while on his bus route.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board terminate Mr. Moore's employment. DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 14th day of February, 2013.
The Issue Whether respondent is guilty of the acts charged in the specific notice of charges dated September 11, 1990, and, if so, whether petitioner should discharge him from his job as a school bus driver or take other disciplinary action?
Findings Of Fact After orientation and instruction beginning with his employment as a school bus driver trainee in September of 1987, respondent "was given [his] first bus" (T.383) on December 9, 1987. Formerly a truck driver, he became a permanent or non-probationary school bus driver in March of 1988. 1987-1988 After respondent drove his first route, No. 131, for two days, a supervisor shifted him to route No. 94, telling him "what a troubled bus it was." T.386. The supervisor told him the middle school students had already had plenty of warnings and exhorted him, "'Quit warning them. Write them up.'" Id. The rest of the 1987-1988 school year, respondent drove route No. 94, which entailed two separate runs, one for kindergarteners and one for middle schoolers. On the middle school run, "90 percent of the children wouldn't mind at all." T.392. The first of March or the end of February of 1988 (T.64), respondent Henderson told Rosalyn Brown, at the time the only black student on the bus, "to sit [her] black ass down in the seat." T.269. On other occasions, he told students to "[s]hut the hell up," (T.270) and said, "I won't put up with this bullshit." Id. He used the word "[f]uck . . . sometimes." T.256. Petitioner's official school board policies, a copy of which respondent received at or about the time he began work, state: Drivers shall at all times set good examples for the students riding their buses. Do not do on your bus that which students are not permitted to do. Petitioner's Exhibit No. 1, No. 6.44.9. Hernando County School Bus Rules, Instructions for Pupils Riding Buses provides, "Pupils must not use any abusive or profane language to other pupils, the driver, or pedestrians." Petitioner's Exhibit No. 4, No. 10(b). On May 23, 1988, middle school girls were seated on the right hand side of the bus and boys on the left, as usual. As the bus, with respondent at the wheel, passed prisoners at work on a shoulder of the road, "the girls started leaning out the window hollering." (T.396) Mr. Henderson had hardly told them to close their windows when, while waiting for a traffic light to change, a "car pulled up beside [him, and the driver] complained that the boys w[ere] throwing paper out the windows at the back," (T.397) so he "informed the boys to close their windows," (id.) too. When, windows closed (except for respondent's), the bus began to resound with the sound of "stomping . . . feet" (T.397), Mr. Henderson pulled the bus over and parked by the side of the road. Unable to restore order, he drove the bus back to middle school. There respondent allowed the students to lower their windows, and the "duty teacher" urged them to behave. To respondent, the duty teacher said "if they didn't quiet down, take them on into Brooksville," (T.398) to the bus barn. Because the students were still unruly five minutes later, respondent drove them from the school to the transportation compound, where a mechanic boarded the bus to help maintain order, while respondent drove the children home. No violation of school board policy on Mr. Henderson's part was proven, in connection with the events of May 23, 1988. Limbs protruding and various missiles leaving through open windows justified his directing that the windows be closed. The radio in respondent's bus at the time was not in working order. Petitioner's official policies require that each "bus driver shall be responsible for being familiar with all state and local laws and regulations in regard to safety and see that these are properly carried out." Petitioner's Exhibit No. 1, 6.44.4. At stop signs, respondent would "slow down, but he wouldn't come to a complete stop" (T.271) every time. When he failed to come to a complete stop, "the students would always yell at him about it." T.277. 1988-1989 Respondent resumed driving route No. 94 when school started in the fall of 1988. One day the first week back two fights broke out before the bus left middle school, and the new principal had to intervene. Later in the week, Joan Gear, petitioner's transportation coordinator told Mr. Henderson, "'Ray, we're going to prove a point to this principal. I want you to take another bus for a while.'" T.402 (Discipline problems persisted under respondent's successor on bus No. 94.) Mr. Henderson began the second week of the new school year driving route No. 108. After a week on route No. 108, he was transferred, without explanation, to route No. 73, one of the routes he had been on as a trainee and a less remunerative assignment than either No. 94 or No. 108. Only after the first Monday morning's run did he receive the No. 73 route report or route sheet, which listed twelve regularly scheduled stops. Petitioner's Exhibit No. 12B. The tenth morning stop was listed as "White House on Right," Petitioner's Exhibit No. 12B, on Ft. Dade Street. The white house meant stands north of Ft. Dade and slightly east of Little People's Day Care, which is on the south side of the street. Brandy Huntley, a niece of the day care center's proprietress, and two other middle schoolers were picked up mornings directly across the street from the white house, at the end of the day care center driveway. The first afternoon he drove, respondent stopped directly in front of the white house, and Brandy and the other middle schoolers disembarked there. But two afternoons that week (not in succession) he failed to stop in front of the white house (or across the street from Little People's Day Care.) Instead he stopped after turning left at the next intersection. Respondent's claim that a ditch made it necessary to stop in the middle of the road, if the bus stopped in front of the white house or across from the nursery afternoons, went unrebutted; but letting children out around the corner created other hazards. Nor was the spot respondent chose a "regularly scheduled stop" for any student. School board policy provides that "[a] driver shall not let any student off the bus at other than the student's regularly scheduled stop, unless permission has been given in writing by the child's parent." Petitioner's Exhibit No. 1, 6.44.18. No such permission had been given here. Under school board policy, bus drivers may never let students off between regularly scheduled stops. After a discussion about where to stop on Ft. Dade Street in the afternoons and before his first week on route No. 73 was out, respondent took a leave of absence through November 22, 1988. Once the leave was over, petitioner's initial refusal to put him back to work resulted in respondent's filing an unfair labor practice charge. On January 18, 1989, he returned to work. For the remainder of the school year, he drove route No. 75, without incident. Two Minutes Time allotted for regular routes includes a half hour for cleaning and paper work, but drivers on field trips are paid based on the time actually required to do the job. On July 18, 1989, Mr. Henderson drove on a field trip. Ordinarily, a field trip driver completes and submits a form showing how long he has worked, only after making the trip and cleaning the bus. Petitioner's Exhibits Nos. 11 and 13; T. 423. Rain made for an early end to the field trip. At five minutes after noon on the 18th, Mr. Henderson set out for the restroom in the transportation compound offices. He took with him a form on which he had written 12:30, his estimate of when he would finish cleaning the bus. Leaving the form on Miss Looper's desk, he returned to the bus and began cleaning. After he had cleaned the bus, he returned to the compound office, which he reached at 12:28. Petitioner's Exhibits Nos. 11, 13, T. 423. When Ms. Gear asked him to substitute 12:28 for 12:30 on the form, he responded, "Joan, if you want the time changed, change it." (T.424) When she said, "I won't pay you if you don't change it," Id., he replied, "Don't pay me." Id. A month later, the unaltered form was processed and respondent was paid. Whether two minutes made any difference in his compensation for the field trip the evidence did not show. 1989-1990 When the next school year began, Mr. Henderson drove route No. 200. One October afternoon after students had boarded, Mr. Henderson prepared to pull away from the high school. Before moving forward, the bus rolled back a few inches into the bus driven by Jose Santiago. Without respondent's knowing, a tail light lens struck (without damaging) a mirror on Santiago's bus, leaving a hole in the lens two inches across. T. 287-291, 376, 429. Accidents of this kind are not uncommon. To prevent students' walking in front of buses, the drivers park them tightly one behind another before school lets out. T. 287-291, 342, 376, 377, 426, 530. By the time Mr. Santiago finished his route and reached the transportation compound, Mr. Henderson had already left. Mr. Santiago reported the accident to the office staff and to one of the mechanics, who brought the bus respondent had driven to the garage to replace the lens. But Mark Tallent told the mechanic to return the bus unrepaired to its regular parking place, setting a "trap" he had never set for any other driver. T. 24, 58, 59, 288, 378. Bus drivers are required to perform a "pre-trip inspection" of their buses, and make records of the inspections by completing forms. Petitioner requires that all exterior lights be checked. The next morning respondent indicated that everything was in working order on his pre-trip inspection form. Petitioner's Exhibit No. 7; T. 39. Ken Schill, petitioner's safety officer, followed respondent's bus in another vehicle and pulled him over. Together they inspected the broken lens. Petitioner suspended Henderson for three days and required him to take eight hours of in-service training, on account of the inspection form's inaccuracy. T. 40-41, 95-96, 428-429. In January or February, Mr. Henderson's bus was following bus No. 149 on a dusty rock or gravel road. After bus No. 149 made a newly scheduled stop, Mr. Henderson braked suddenly and steered his bus to the left to avoid hitting bus No. 149. By the time he came to a stop, the buses overlapped. T. 454, 498, 502. On the afternoon of February 28, 1990, Mr. Henderson had driven the school bus to the crest of a hill on Weatherley Road, when state trooper Lee Frye, who was sitting in his car at the bottom of (the other side of) the hill "clocked Mr. Henderson speeding." T.151. He was exceeding the 35-mile-per hour speed limit by at least ten miles per hour, although he told the trooper the speedometer had not indicated this. T. 151, 157, 430-433; Respondent's Exhibit No. 7A. Trooper Frye did not give Mr. Henderson a citation, but he told the Board's transportation department that the bus was going 52 miles per hour. Although not consistently enforced, school Board Policy 6.44(23) states: "Any bus driver guilty of a traffic violation involving a school bus will be dismissed." After Mr. Tallent checked Henderson's speedometer, he recommended and the School Board approved a suspension of ten days plus fifteen hours' retraining on account of this incident. T. 44-45, 151-157, 430-436. One afternoon on Willow Street respondent veered to avoid a car and knocked over at least two empty, lidless, rubber trashcans standing approximately one foot from the right edge of the road. When, back at the compound, Mr. Henderson told Mark Tallent about the accident, Mr. Tallent said to forget about it. T. 437-444, 496. On another afternoon, Scott Robinson, a student who had just gotten off bus No. 200, was approximately 6 or 7 feet in front of the bus when he heard the engine revving. Although Scott did not see the bus move forward, he was frightened, and the bus in fact "jerked." T. 133-148. The next morning, Mr. Henderson inquired "You really didn't think I was going to hit you, did you?" T.134. Another time the bus lurched forward while Kathy Black "was still in front of the bus" (T.252) "and about hit her." Id. Tom Ferris complained that Henderson almost hit another bus. Cathy Smith, a parent of a student on route No. 200 filed a complaint on April 30, 1990, claiming that he failed to stop for her daughter at her regularly scheduled stop. On May 3, 1990, petitioner received a three-page list of 21 complaints against Mr. Henderson, accompanied by a petition with 20 names on it, both written by Kim Lowe, a student on route No. 200 whom respondent had frequently disciplined. On May 4, 1990, another parent, Mr. Burris, complained to Mr. Tallent that he had observed respondent speeding and driving recklessly. T. 46-51, Petitioner's Exhibit 8. Earlier during the 1989-90 school year, petitioner's Department of Transportation had received still other complaints about Mr. Henderson. On May 3 or 4, 1990, without offering any explanation, Mr. Tallent told respondent he need no longer report for work. He did not tell Mr. Henderson of the complaints Ms. Smith and Messers. Burris and Ferris had made or give him an opportunity to refute their allegations prior to the filing of formal charges.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss respondent as a school bus driver. DONE and ENTERED this 12th day of September, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 12th day of August, 1991. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 18 through 45, 47, 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 66, 67 and 68 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the school year was 1987-1988. With respect to petitioner's proposed finding of fact No. 7, the complaint included the words "god damn." With respect to petitioner's proposed findings of fact Nos. 16 and 17, the evidence showed things were being thrown out of the bus. With respect to petitioner's proposed findings of fact Nos. 46, 48, 49 and 50, it was not proven that other drivers reported every accident, however minor, or did so before leaving the scene, and respondent did report hitting the trashcans. Petitioner's proposed finding of fact No. 64 refers to a complaint that was not proven at hearing. Petitioner's proposed finding of fact No. 65 is not supported by citation to the record. With respect to petitioner's proposed finding of fact No. 69, the evidence did not show what she thought other than that she was "stunned looking." Respondent's proposed findings of fact Nos. 1 through 6, 8, 9, 10, 11, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 32, 34, 35, 36, 37 and 39 through 44 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 7 is a proposed conclusion of law. With respect to respondent's proposed finding of fact No. 12, she testified she was the only black. With respect to respondent's proposed finding of fact No. 17, a "duty teacher" boarded the bus and spoke to the children. With respect to respondent's proposed finding of fact No. 24, the morning stop was across the street from the white house. With respect to respondent's proposed finding of fact No. 31, students calling out alerted him the buses had collided. With respect to respondent's proposed finding of fact No. 38, the policy has not been enforced consistently. COPIES FURNISHED: John T. Jaszczak, Esquire Hogg, Allen, North & Blue, P.A. Hyde Park Plaza, Suite 350 324 S. Hyde Park Avenue Tampa, FL 33606 Sally C. Gertz, Esquire 118 North Monroe Street Tallahassee, FL 32399-1700 Dr. Daniel L. McIntyre, Superintendent Hernando County School Board 919 U.S. 41 North Brooksville, FL 34601
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this day of Aol’ -2644-in Tallahassee, Florida. Elizabeth (Dudek Aecretary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. AHCA vs. Superior Stores Discount Distributor d/b/a Surgical World Final Order (C.I. #11-2146-000) Page 1 of 2 Copies furnished to: Louise T. Jeroslow, Esquire 6075 Sunset Drive, Suite 201 Miami, Florida 33143 Telephone: (305) 740-7431 Facsimile: (305) 740-8960 (Via Facsimile and U.S. Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive - Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Mike Blackburn, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Eric Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Agency for Persons with Disabilities 4030 Esplanade, Suite 380 Tallahassee, Florida 32399-0950 (Via Email Only) CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the x day of Pyar arf , 2014-7 a= ee Richard Shoop, Esquire Agency Clerk State of Florida, Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 Telephone: (850) 412-3630 AHCA vs. Superior Stores Discount Distributor d/b/a Surgical World Final Order (C.1. #11-2146-000} Page 2 of 2
The Issue The issue in this case is whether the Education Practices Commission should take disciplinary action against the teaching certificate held by the Respondent, Matthew Fontes, based on an Administrative Complaint charging him with violating Florida Administrative Code Rule 6A-10.081(3)(a)(failure to make reasonable effort to protect students from conditions harmful to learning or to students’ mental or physical health or safety) and, therefore, violating section 1012.795(1)(j), Florida Statutes (2014).
Findings Of Fact The Respondent holds Florida educator certificate 1138466, which expires on June 30, 2018. He is certified in guidance and counseling. From 2010 to 2014, he was a middle school guidance counselor at Narcoossee Community School in Osceola County. On October 9, 2013, two Narcoossee students, K.S. and H.F., got into a verbal argument. At the end of school the next day, K.S. got onto the bus and became concerned by the “dirty look” and hard stare H.F. was giving her and thought that more arguing and possibly physical fighting would take place if she stayed on the bus. To avoid a fight, K.S. and her cousin, A.L., got off the bus and went to the school’s administration building for K.S. to call her mother at work to pick them up. K.S. was adamant about not riding the bus, so her mother agreed to leave work and pick them up. K.S. and A.L. then went to find a school administrator. They found the Respondent in his office helping another student, S.W., with a written statement about an unrelated bullying incident. Standing in the doorway to the Respondent’s office, K.S. told the Respondent that she did not feel comfortable riding the bus home because a girl on the bus was giving her “dirty looks” and bothering her, and she was afraid there was going to be a fight. She did not say who the other girl was. She told the Respondent that she had called her mother, who was on her way to drive her and her cousin home, and asked if she could wait in the office for her. The Respondent asked if they were signed up for the after-school program for students who did not take the bus home and was told that they were not. The Respondent noticed Kelly Slade, a paraprofessional at the school, in the hallway and asked her if the office was closed, which it was. The Respondent then told the two students that he could not wait with them because he had an appointment with an air-conditioning repairman, and that they would have to ride the bus. He did not look for or use his school-issued radio to call another administrator. Instead, he led K.S. and A.L. back to the bus loading area. When they got outside the building, the buses were starting to leave the bus loading area. As he was running up to Dustin Sassic, the administrator in charge of buses, the Respondent yelled at him to hold the buses. Mr. Sassic complied with the Respondent’s request. As the Respondent approached Mr. Sassic, the students got on their bus, and Mr. Sassic “rolled” the buses (i.e., signaled to the bus drivers to continue to leave the school). When the Respondent reached Mr. Sassic, he told him there had been a problem, but the Respondent had to leave for an appointment. Mr. Sassic could not recall any specifics about the problem mentioned by the Respondent. The Respondent then walked directly to the teacher parking lot and left school to meet the air-conditioning repairman at his house. Not long after the buses left, H.F. started a fight with K.S. and punched her in the nose, causing it to bleed. The bus driver stopped the bus, and emergency medical services and the sheriff’s office were called. On her way to the school, K.S.’s mother received a telephone call from her daughter and was told what had happened. She then got a call from an emergency medical services technician regarding her daughter’s nosebleed and treatment and the location of the bus. She drove directly to the bus to see to her daughter’s needs. The next day, K.S.’s mother and father went to the school to ask the principal, Dr. Matthew Phillips, why their daughter was not allowed to wait for her under the circumstances, but instead was made to take the bus. At the time, the principal knew nothing about the incident. He followed up on the complaint by talking to Mr. Sassic and initiating an investigation. As a result of the investigation, the Respondent was reprimanded by the Osceola County School District for violating parts of the Principles of Professional Conduct, including rule 6A-10.081(3) regarding protecting students from harm. At the end of the school year, Dr. Phillips decided not to renew the Respondent’s employment contract because of the K.S. incident and other “struggles” in meeting the requirements of his job as guidance counselor at the school. Since then, the Respondent has not been employed as a teacher; he has been employed by his uncle, who has health problems, helping to take care of him and his orchard. The Respondent’s version of the incident on October 10, 2013, was starkly inconsistent with the greater weight of the evidence. He testified that K.S. did not appear to be at all stressed or upset about having to ride the bus and only told him that someone on the bus was bothering her. All the other witnesses confirmed that K.S. was visibly upset, definitely did not want to ride the bus that day, and told the Respondent that her mother was on the way to drive her home. Even if all K.S. said was that someone on the bus was bothering her, the Respondent asked no questions to better understand the situation. The Respondent then testified that he asked Ms. Slade, the paraprofessional, to supervise the cousins while he dealt with the other student in his office and to try to determine the facts and whether the cousins should ride the bus. He testified that he finished with the other student and returned to Ms. Slade and the cousins. He testified that Ms. Slade told him the cousins just said someone was bothering them and that she believed they should ride the bus. Ms. Slade categorically denied that any of this actually took place. Again, even if it happened that way, it would have been incumbent on the Respondent, as guidance counselor, to ask more questions to resolve the matter. The Respondent also testified that he explained the situation to Mr. Sassic, who concurred that the students should be required to ride the bus. Mr. Sassic denied this, and the greater weight of the evidence refutes the Respondent’s testimony. Simply put, the greater weight of the evidence was that the Respondent wanted to leave school to make his appointment with the air-conditioning repairman. This desire led to a poor decision to place the cousins back on the bus without giving the matter adequate attention. He unreasonably took a chance that the threat to K.S. was not credible. This placed K.S. in physical danger. The offices of the school’s other administrators, including the principal, Dr. Phillips, were a short distance from the Respondent’s office. If the Respondent was too busy to help K.S., he should have gone to one of the other administrators for assistance. The Respondent also had a school-issued radio, as did all the administrators at the school, but did not attempt to use it to call for assistance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding the Respondent guilty as charged and suspending his teacher certificate for six months to impress on him the importance of taking responsibility for his actions and acting in accordance with the Principles of Professional Conduct in general, and rule 6A-10.081(3)(a) in particular. DONE AND ENTERED this 6th day of January, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2016. COPIES FURNISHED: Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman and Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue is whether Petitioner may terminate Respondent's employment contract due to repeated acts of harassment, gross insubordination, and violations of Petitioner's policies.
Findings Of Fact Until her last day of work on March 15, 2004, Respondent had worked for over 13 years at Stanley Switlik Elementary School (Switlik) in Marathon. Switlik is a public school. For most of her career with Petitioner, Respondent worked as an aid in the exceptional student education (ESE) prekindergarten program. During the 2003-04 school year, Respondent worked as a 1:1 aid to a student in a varying exceptionalities class. At all material times, Respondent was classified as noncertified instructional staff. For at least the past couple of years, Respondent was dissatisfied by much of what took place around her at work and in the local education community. In the past two years, Respondent has filed complaints with three federal agencies (Department of Education, Department of Health and Human Services, and Equal Employment Opportunity Commission), two state agencies (Department of Education and Department of Children and Family Services), and one local agency (Petitioner). The 13 subjects of these complaints include two principals of Switlik, two superintendents of Monroe County Public Schools, various teachers and teacher aids, and a relative of her husband. The record discloses no basis for finding any merit whatsoever in any of these complaints. In June 2002, Respondent walked into a classroom at the Grace Jones Day Care Center, which is a not-for-profit school in Respondent’s neighborhood, and entered a class with sleeping preschool children. Respondent approached the new director of Grace Jones and confronted her about the school's curriculum. The bewildered director spoke to Respondent for a few moments before realizing that Respondent had no children at the school. In the ensuing weeks, Respondent continued to challenge the director about the school’s curriculum, warning her that she needed to change the curriculum or Respondent would shut down the school. One time, Respondent warned the director that “you better watch your white ass.” Seeing the director smoking a cigarette on school grounds during breaks, Respondent began videotaping the director from the street to document what Respondent viewed as illegal behavior. The purpose of Respondent’s actions is unclear, but does not seem to have been the betterment of the educational program at Grace Jones. When children in the custody of a relative of her husband attended Grace Jones, Respondent never volunteered to help at the school. However unclear the purpose of Respondent’s actions, their effect was to frighten the director, the teachers, and the students and disrupt the educational process at the school. The director eventually obtained a judicial order prohibiting Respondent from trespassing onto the Grace Jones grounds. Respondent repeatedly involved herself with the education of the two children who were in the custody of a relative of Respondent's husband. When one of the children was later attending Switlik, while Respondent was employed at the school, Respondent telephoned the child’s guardian and informed her that the child had been misbehaving in school. When the guardian called the principal, the principal stated that the child had not been misbehaving. Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion directly to the child’s guardian. Later, in January 2004, Respondent informed the guardian and the guardian’s sister, who is the biological mother of the children, that Switlik was failing one of the children. Again, Respondent was not an aid in the child’s classroom, and she violated Petitioner’s policy in communicating in this fashion. Despite receiving a warning from the principal not to disclose confidential student information, Respondent continued to try to obtain educational information about these children, even though she had no right to such information. Frustrated that the guardian would not remove one or both of the children from Switlik, Respondent threatened to call the Department of Children and Family Services and inform them that the guardian was engaged in illegal drug use. Although she may never have followed through on this threat, she did call the Department of Children and Family Services and inform them that the children’s biological mother was residing with them and the guardian, evidently in violation of some sort of prohibition against this living arrangement. The record permits no findings as to whether the guardian was engaged in illegal drug use or the biological mother was residing with her children and the guardian, but the record permits the finding that, in both cases, the intention of Respondent in threatening to call or calling the authorities was not to correct an intolerable situation, but was to coerce the guardian to accede to Respondent's demands. While employed at Switlik, Respondent had numerous confrontations with numerous employees, including superiors. Two of the more prominent confrontations involved Respondent’s confrontation with a school bus driver, who occupied a managerial role at Switlik as to transportation, and two aids, who worked in a Head Start prekindergarten classroom at Switlik. These incidents occurred during the 2002-03 school year. The problem with the school bus driver began in 2002. Escorting one or more children to or from the school buses, as was her responsibility, Respondent entered a bus loaded with children and began directing them to sit down. When the bus driver, who was on the bus, told Respondent to leave the bus, Respondent angrily accused the bus driver of failing to discharge her duty to protect the safety of the children. After receiving complaints from the driver about Respondent and from Respondent about the driver and the students standing in the bus, the principal met with Respondent and told her not to interfere with the bus driver and her supervision of the students already on the bus. Despite the warning, Respondent later engaged in a nearly identical confrontation during the 2002-03 school year. When the principal sided again with the bus driver, Respondent demanded a meeting with the superintendent to discuss her problems with the bus driver and, now, the principal. Ignored by the superintendent, Respondent contacted a school board member and asked for a meeting. Obtaining no satisfaction from the school board member, Respondent contacted the United States Department of Education, Civil Rights Office, and Florida Department of Education with her complaints about the bus driver and the refusal of Petitioner's representatives to resolve the situation. The problem with the Head Start aids initially involved their choice of classroom attire. They wore shorts, which Respondent considered to be cut too short. Possibly arising out of Respondent's frustration at not being allowed to wear a head scarf at school, Respondent complained to the principal that the two women were allowed to wear shorts. A picture of the shorts revealed that they were not suggestive or inappropriate in length or style. To the contrary, shorts permitted the aids to perform the physical activity imposed upon them in working with young children. After Respondent complained about the aids' shorts, the aids began to lock the classroom door to prevent Respondent from taking a short-cut through the room when students were present. Respondent complained about this, but, again, the principal sided with the aids and directed Respondent to stop cutting through the occupied classroom--a directive that Respondent repeatedly ignored. Twice bested by the aids, Respondent pressed her complaints about them to higher authorities. Respondent informed the Monroe County director of Head Start of the problem. When the county director referred Respondent back to the principal, Respondent threatened to contact the Southeast Director of Head Start in Atlanta and government representatives in Washington. On October 8, 2003, the principal and other of Respondent's employees, including the Human Relations Director, participated in a meeting requested by Respondent to discuss her concerns about events that had taken place at Switlik over a period of time. At some point, the principal warned Respondent about her disruption of the school environment and her confrontational behavior. The principal warned that Respondent's unprofessional behavior would lead to termination. Respondent became belligerent and loudly denounced the Human Relations Director as a liar. Two days later, Respondent refused to sign a memorandum outlining what had taken place at the meeting. The above incidents are largely drawn from Respondent's testimony. However, there were numerous other confrontations, such as with an office manager who asked that Respondent wait a moment before the woman could get her paycheck or repeated abuse of school email to hector Petitioner's employees. There were also numerous other examples of insubordination, such as Respondent's refusal to sign a statement acknowledging Petitioner's anti-harassment policy and her refusal to sign her evaluation at the end of the 2002-03 school year, which warned that her noncompliance with Petitioner's policies was disrupting school operations. Dissatisfied with the resolution of all of these matters, Respondent also filed complaints with the Department of Health and Human Services and Equal Employment Opportunity Commission about at least some of them. Two principals over several years have tried patiently to counsel Respondent regarding her strident, uncooperative behavior. At meetings, Respondent routinely took the offensive, yelling and denouncing the participants by, among other things, claiming that the current principal was not doing her job. An endless pattern of complaints about problems perceived by no one but Respondent preceded complaints about never-commenced or incorrectly resolved investigations. The disruption upon the educational process was evident and substantial. Respondent has not been chastened by less severe job actions than termination. When Petitioner suspended Respondent for three days from April 30 to May 2, 2003, Respondent's response, upon her return to work, was to file a complaint about the principal and, after a month of inaction on her complaint, to email the superintendent and demand to know the status of his investigation of her complaint. Failing to obtain a satisfactory response from the superintendent, Respondent submitted complaints about the principal and superintendent to the Florida Department of Education. Finally, on August 14, 2003, Respondent emailed the School Board members and asked for a meeting about this problem. By undated letter in February or March 2004, Petitioner's superintendent advised Respondent that she was suspended with pay until the School Board meeting of April 1, 2004, at which he would recommend termination. The letter states that Respondent has violated Sections 1012.27(5) and 1012.33, Florida Statutes, The Code of Ethics for Education Professionals, and Petitioner's policies 6.37, 6.38, 2.70, 3.40, and 5.70. By letter dated March 22, 2004, Petitioner's superintendent advised that he would recommend at the April 1 School Board meeting that it convert Respondent's suspension with pay to a suspension without pay, pending final action on his recommendation to terminate Respondent's employment. Petitioner's policy 6.37 provides that Petitioner's superintendent may suspend an employee until the next meeting of the School Board. The policy provides a hearing under Chapter 120, Florida Statutes, to any employee who has a property interest in his or her job.
Recommendation It is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 25th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 October, 2004. COPIES FURNISHED: John Padget, Superintendent Monroe County School Board Post Office Box 1788 Key West, Florida 33041-1788 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Scott E. Siverson Vernis & Bowling of the Florida Keys, P.A. 81990 Overseas Highway Islamorada, Florida 33036 Scott C. Black Vernis & Bowling of the Florida Keys, P.A. 81990 Overseas Highway Islamorada, Florida 33036 Diane Scott Post Office Box 501586 Marathon, Florida 33050
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint.
Findings Of Fact At all pertinent times, Clifton Jerome Locke has held Florida Teacher's Certificate Number 361372 for the areas of psychology, administration and Junior ROTC, and has taught as a Junior Army ROTC instructor at Crestview High School. Major Jordan was the director of army instruction for the Okaloosa County School Board and Sgt. Locke's "superior officer" at all pertinent times. Ever since Sgt. Locke began as a Junior Army ROTC instructor at Crestview High School, in January or February of 1971, Major Clifton D. Jordan's job was "[t]o coordinate and to command, really, if you will, the Army ROTC operations within the county school system." (T. 39-40) TELEPHONE BILLS The Okaloosa County School Board relied on the ROTC program to secure reimbursement from the U. S. Army for long distance charges incurred by ROTC. When the School Board received telephone bills for the ROTC telephone at Crestview High School, the office of the assistant superintendent for finance paid them, and sent copies of the bills to Crestview High School's Junior ROTC program. As the monthly phone bills arrived, Sgt. Locke looked them over, then gave them to a cadet, who prepared DA Form 360 and DA Form 3953, for Major Jordan's signature. Major Jordan signed the Army form to which a copy of the monthly telephone bill was attached, DA Form 3953. This form and attachments were regularly sent to the signal officer at Fort Rucker, Alabama, until the practice ceased in the spring of 1978. Although unsure whether his office, the school principal or Major Jordan received the Army's reimbursement checks, Creel Richardson, Jr., assistant superintendent for finance for the Okaloosa County School Board, testified without contradiction that the U. S. Army had not reimbursed long distance charges incurred by the Junior ROTC program at Crestview High School over a 46-month period beginning in the spring of 1978. During this entire period, Major Jordan was "telephone control officer." Army regulations precluded Sgt. Locke's serving as telephone control officer. (T. 81) Some time in 1978 Sgt. Locke received a note from Mrs. Strauder of the signal office which read: Returning your bill to be corrected. Please mark calls on the phone bill that add up to fifty-three ninety- five ($53.95), all three copies, please. It was about this time that Sgt. Locke and Major Jordan discussed the use of the telephone for other than official long distance calls. Although Major Jordan did not recall this conversation, he did testify at hearing that he had made various personal long distance calls on the ROTC telephone and had sought Army reimbursement for them by failing to delete personal items from the phone bill copies forwarded to Fort Rucker. Without counting calls made in 1982, Major Jordan made more than two hundred personal, long distance calls on the ROTC telephone, between February 14, 1978, and May 26, 1983. See Respondent's Exhibit No. 5. Eventually, the Federal Bureau of Investigation looked into Major Jordan's personal use of the ROTC telephone for long distance calls, but criminal charges were not brought. Other school personnel also made unauthorized use of the ROTC telephone. Major Jordan, who had never delegated any responsibility or duty in connection with telephone bill reimbursement to Sgt. Locke in writing, told him not to be concerned about which of the phone calls were in fact official calls. Sgt. Locke continued for a few months to give phone bills to cadets for preparation of the reimbursement request forms and the forms continued to be prepared. But Major Jordan stopped signing them and Sgt. Locke eventually stopped giving the phone bills to the cadets who prepared the forms. Of the 46 monthly bills for which no reimbursement was sought, 29 had not been opened in March of 1982, at the time Sgt. Locke was transferred from the ROTC department and Major Jordan went through respondent's desk drawers. At some point, Sgt. Locke told Major Jordan he would rather not be involved in preparation of the forms. He told the student cadets responsible for preparing the forms to deal directly with Major Jordan. In or about October of 1982, the signal office inquired about phone call reimbursement and charges for long distance. Phone calls billed to the ROTC number at Crestview High School aggregated $2,974.42 over the 46-month period. How much of this sum reflected official calls was not clear from the record. Another year elapsed after Sgt. Locke's transfer from the ROTC department before Major Jordan signed and transmitted any phone bill reimbursement forms to the signal office, with the result that reimbursement for any official calls was lost to the Okaloosa County School Board for much of that period as well. CANDY SALES Toward the beginning of the 1981-1982 school year, Jerry Pilgrim, a candy salesman from Milton, Florida, spoke to Major Jordan and Sgt. Locke about the ROTC students' selling candy to raise money. In October, it was agreed that a sale would take place later in the fall. Mr. Pilgrim discussed the candy sales with Major Jordan, who told him to deal with Sgt. Locke. Orders for candy to be delivered in November and December were not filled on time, so Sgt. Locke cancelled them, fearful the upcoming Christmas vacation would complicate matters. When Mr. Pilgrim stopped by the school to apologize for his failure to deliver the candy on time, Major Jordan said ROTC might sell candy some other time. In all, Mr. Pilgrim spoke to Major Jordan six to ten times and never got any indication that Major Jordan opposed a candy sale. It was Major Jordan who chose the particular kind of candy (Reese's candy bars) the day Mr. Pilgrim handed out samples. Major Jordan never told respondent not to conduct a candy sale. Major Jordan and Sgt. Stakley's testimony otherwise has not been credited. In January, Sgt. Locke placed another order for candy by telephone and Mr. Pilgrim delivered the candy the third week of January, 1982. He unloaded the trunk of his car at the ROTC office at Crestview High School, and returned two days later with 20 more cases of candy. Two weeks later he again called at the school, but Sgt. Locke told him that the principal was upset and that ROTC would not be ordering more candy. For the 1981-1982 school year and for some time previously, there was a written policy at Crestview High School requiring approval in advance of fund raising projects, and requiring, with respect to sales conducted by students, that a form be filed reflecting beginning inventory, cost per item, closing inventory, profit, total cost and total items sold. Petitioner's Exhibit No. 1. Both Major Jordan and Sgt. Locke knew or should have known of this policy, even though there was no evidence that the ROTC program had followed it in the past. Approval was not obtained for the candy sale in advance, nor was the required form filed. On January 21, 1982, six students turned in a total of $89.50 to Sgt. Locke, money they had been paid for candy. On January 25, 1982, six students turned in more candy sale proceeds to the respondent, aggregating $86.00. On January 26, 1982, Sgt. Locke entered the hospital, having suffered a mild stroke. He had trouble seeing, was unable to change gears driving, and finally fainted, slumping over his typewriter at Crestview High School. In the hospital, he remembered the money in his desk and asked his daughter, Cynthia Faith, who was also a cadet in the ROTC program, to retrieve the cash from his desk drawer. Sgt. Locke could not see well enough to count the money, so his wife, his daughter and his parents, who were visiting at the hospital, counted it for him. His wife drew a check in the amount of $175.50 on a joint account she shared with respondent, and one of the respondent's daughters gave the check, Petitioner's Exhibit No. 6, along with the required "Report of Monies Collected" forms, Petitioner's Exhibit No. 5, to the school bookkeeper, Ms. Earlene Carter, on February 5, 1982. (T. 163) Proceeds from the candy sale totalled at least $1385.86 and there were no complaints about the handling of the rest of the money. Insofar as the evidence shows, all the money the students turned in was ultimately deposited with the school bookkeeper. School policy required that "teachers who receive money from students in a school related activity should . [t]urn the money into the bookkeeper the day it is collected or as soon thereafter as possible." Petitioner's Exhibit No. 2. Pictures were taken of the ROTC students by James L. Davis of Stone Studio in Pensacola. Most of the students showed up with their money at the time pictures were taken in January of 1982. Others, including respondent's two daughters, did not pay for their photographs the day they were taken, but Cynthia Faith Locke later gave Sgt. Stakley $20 for the pictures taken of her sister and herself, and the photographer was eventually paid in full. Major Jordan testified at hearing that he found a "collection voucher" in Sgt. Locke's desk drawer reflecting that four ROTC students had made payments of ten dollars each for photographs, but that no money was attached to the voucher or present elsewhere in the drawer. Two of the students Major Jordan said were listed on the "voucher" were Sgt. Locke's daughters. The evidence was insufficient to show that Sgt. Locke ever received any money from any student for photographs. The "voucher" Major Jordan claimed he found was not produced at hearing. Aside from Major Jordan's testimony, which has not been credited in this regard, no evidence suggested any impropriety in the handling of any moneys respondent may have received in connection with the sale of photographs to ROTC students. APPLICATION LATE Dean Oliver Casey, a student enrolled in the ROTC program at Crestview High School, filled out an application for an ROTC scholarship in December of 1980. Major Jordan and Dean Casey had discussed the scholarship application two or three times between September 1, 1980, and mid-November of that year, and Major Jordan had told him to mail the completed application to Fort Monroe, Virginia, but he missed the December 15, 1980, deadline. Later Dean Casey gave the completed application to Sgt. Locke who asked Major Jordan if he could "pull any strings" to get the application considered, even though the deadline for submission had passed. After Major Jordan "relieved" Sgt. Locke of his ROTC assignment, respondent went to work in Okaloosa County School Board's finance department at the Carver Hill complex. On the assumption that the allegations against him were true, his effectiveness as a ROTC instructor had been impaired, the consensus of the testimony was, but there was no evidence of the impact on his effectiveness on the assumption that the charges were false, even in part; and no evidence as to his effectiveness while employed in the finance department. The parties' proposed findings of fact have been considered in preparation of the foregoing. To the extent they have not been adopted, they have been rejected as unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent. DONE and ENTERED this 25th day of May, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Ronald G. Meyer, Esquire Pamela Cooper, Esquire Post Office Box 1547 Tallahassee, Florida 32302 Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Donald L. Griesheimer Executive Director Department of Education 125 Knott Building Tallahassee, Florida 32301
The Issue The issues in this case are: (1) whether Respondent violated Subsection 489.119(6)(b), Florida Statutes (2000); (2) whether Respondent violated Subsection 489.1425(1), Florida Statutes (2000); (3) whether Respondent violated Subsections 489.129(1)(f), (g), (i), (j), (m), and (q), Florida Statutes (2000); and (4) if so, what penalties should be imposed.
Findings Of Fact Respondent, Douglas V. Reynaert, was originally licensed as a certified general contractor in the State of Florida on June 10, 2000. For reasons not presented at this proceeding, the Board revoked Respondent's license as a general contractor on November 6, 2003. Consequently, Respondent is no longer able to engage in contracting in the State of Florida. Doug Reynaert and Sons, Inc., does not have a certificate of authority as a contractor qualified to do business in the State of Florida. The Dietzman Contract On or about March 27, 2000, three months prior to Petitioner's being issued a contractor's license, Doug Reynaert and Sons, Inc., entered into a construction contract with Homer Dietzman ("Dietzman contract"). The construction contract provided that Doug Reynaert and Sons, Inc., would construct a new house for Mr. Dietzman and his wife at 4515 - 6th Street West, Lehigh Acres, Florida, at a cost of $70,900. According to the contract, the construction of the house was to be completed by October 20, 2000. The Dietzman contract did not contain a contractor number either for Respondent or Doug Reynaert and Sons, Inc. As noted in paragraph 1, Respondent was not licensed as a contractor until June 2000, more than two months after the Dietzman contract was executed. Moreover, Doug Reynaert and Sons, Inc., was never licensed or certified as a contractor qualified to do business in Florida. The Dietzman contract did not contain the written statement explaining the consumers' rights under the Construction Industries Recovery Fund required in Subsection 489.1425(1), Florida Statutes (2000). According to the Dietzman contract, the house was to be completed by the end of October 2000. However, Doug Reynaert and Sons, Inc., did not begin construction on the house until September 2000; and by the end of October 2000, the company had only completed the slab. On or about February 15, 2001, Doug Reynaert and Sons, Inc., stopped all construction work on the Dietzman house, even though the project was not complete. After the construction work on the house stopped, Mr. Dietzman called the foreman for Doug Reynaert and Sons, Inc., who was overseeing the project, and asked why the workman were not doing any work on the house. In response to Mr. Dietzman's inquiry, Mr. Dietzman was told by the foreman for Doug Reynaert and Sons, Inc., that "We're all done." The Dietzman construction contract included a Specification Sheet that provided that the contractor, Douglas Reynaert and Sons, Inc., would provide all permits and county impact fees, drawings, builder's risk insurance, hurricane engineering fees, survey, lot clearing and fill allowance, city water or well package, and city sewer or septic system. The Specification Sheet also detailed the exterior and interior features to be included in the Dietzman house. Many of the features included in the Specification Sheet, which was a part of the construction contract, were not provided by the contractor. Features that the contractor was to provide, but which, in fact, were not put in the Dietzman house were the following: dead bolt locks on exterior doors; stain- resistant carpeting; no-wax vinyl in the kitchen and bathrooms; two ceiling fans; lighting allowance; landscape package; 18-cubic-foot refrigerator with ice maker; self-cleaning range; built-in dishwasher and microwave; 40-gallon quick recovery water heater and laundry tub; washer and dryer; Monet faucets; custom cabinets; full-length vanity mirrors; garbage disposal; window blinds or verticals; water treatment; softener/reverse osmosis/aerator; well; some soffit; Bahai sod; two toilets; some cathedral ceilings; 10.0 seer-rated air conditioner; and prefabricated shower. On or about February 19, 2001, about two weeks after Doug Reyaernt and Sons, Inc., stopped working on the Dietzman house, Mr. Dietzman prepared a list of the contract items that were incomplete and mailed the list to Respondent. Mr. Dietzman also attempted to personally contact Respondent about the company's failing to complete the house, but the office of Doug Reynaert and Sons, Inc., was closed. Eventually, in late February or early March 2001, after learning that Respondent was in the office of Doug Reynaert and Sons, Inc., Mr. Dietzman went there and talked to Respondent about the incomplete construction project. In response, Respondent stated that he would complete the project if Mr. Dietzman paid him $25,000.00 above the contract price. Mr. Dietzman refused to pay any additional money to Doug Reynaert and Sons, Inc., to complete the project and decided to finish the home himself. Based on the contract amount, only $6,450.00 was due upon completion of the project. However, based on the money that Mr. Dietzman had paid to Doug Reynaert and Sons, Inc., as of late February 2001, he was under no obligation to pay any additional money until the project was complete. During the course of the project, Mr. Dietzman paid Douglas Reynaert and Sons, Inc., $64,450.00 of the total contract amount of $70,600.00. Mr. Dietzman expended a total of $14,571.00 to complete and/or include all the items listed in the construction contract that were not performed and/or provided by Douglas Reynaert and Sons, Inc. This amount does not include costs associated with mileage to pick up supplies, recording fees paid to the clerk of the court, nor an unexplained fee paid to the Department. Of the total costs expended by Mr. Dietzman to complete the house, $8,121.00 was in excess of the contract price. Mr. Dietzman completed the house, and after it was completed, he lived there for three years before selling it. During the period between March 2, 2001, and April 30, 2001, five subcontractors filed separate liens of claims on the Dietzman property, which alleged unpaid amounts of $1,785.00; $650.00; $137.00; $5,998.00; and $619.15. According to the liens of claim, the subcontractors had last furnished labor services or materials in January, February, and March 2001. Mr. Dietzman believes that the claims of lien filed against his property expired without satisfaction. Notwithstanding Mr. Dietzman's subjective belief, no evidence was presented upon which to determine whether the claims of lien, in the first instance, were valid; and, if so, whether they were satisfied or whether they expired. However, when Mr. Dietzman sold the house in December 2003, the title to the house was clear. On March 20, 2001, Mr. Dietzman filed a Uniform Complaint Form with the Department arising from the contract with Doug Reynaert and Sons, Inc. The Uniform Complaint Form stated that Doug Reynaert and Sons, Inc., had abandoned the construction project and that Respondent had indicated that he would not finish the house unless the Dietzmans paid him another $25,000.00. The Department's costs related to the investigation and prosecution of the Dietzman contract, excluding costs associated with an attorney's time, are $287.37. The Gammie Contract On or about May 20, 2000, Leila Gammie and her sister, Karen Gammie, entered into a construction agreement with Doug Reynaert and Sons, Inc. ("Gammie contract"). Pursuant to the Gammie contract, Doug Reynaert and Sons, Inc., was to build a house for Karen and Leila Gammie at 1124 Southwest 15th Terrace, Cape Coral, Florida, for $92,420.00, and the buyers were required to pay the builder $3,000.00 when the agreement was signed. The Gammie contract was a one-page document and did not include the beginning and completion date for the project. Also, the contract did not include a general contractor's license number, certification number, or a written statement explaining the consumers' rights under the Construction Industries Recovery Fund. Leila Gammie paid a deposit of $6,000.00, by two checks of $3,000.00 each, to Doug Reynaert and Sons, Inc. The first payment was made on May 20, 2000, the day the Gammie contract was fully executed, and the second payment was made on June 3, 2000. The May 20 and June 3, 2000, checks were deposited in the account of Doug Reynaert and Sons, Inc., on May 26, 2000, and June 8, 2000, respectively. On July 15, 2000, the Gammie contract was amended by the parties to increase the price of building the house to $95,279.00 and to establish Reynaert and Sons, Inc.'s, responsibility for paying closing costs. Crossland Mortgage approved Leila and Karen Gammie for a construction loan to build the house. The construction loan agreement was executed in July 28, 2000, and required that construction be completed by February 1, 2001. Respondent signed the "Assent by Contractor" section of the construction loan agreement in which he certified that he was the general contractor for the borrowers and that in consideration of the lender making the mortgage loan, he agreed to be bound by the terms of the construction loan agreement. On July 28, 2000, Respondent executed a Crossland Mortgage Corporation's Contractor's Acknowledgment, in which he certified that Doug Reynaert and Sons, Inc., had entered into a construction contract with Leila and Karen Gammie "on May 20, 1999 [sic]" for the construction project described in the construction loan agreement. In the Contractor's Acknowledgment, Respondent also confirmed that the contract price was $95,279.00 and that Doug Reynaert and Sons, Inc., had already received $6,000.00, which had been applied toward the construction contract. Respondent's signature on the Contractor's Acknowledgement was notarized. On July 28, 2000, Leila and Karen Gammie executed an addendum to the construction loan in which they authorized the lender to make scheduled payments directly to Doug Reynaert and Sons, Inc. Leila Gammie, Karen Gammie, and Respondent, as representative for Doug Reynaert and Sons, Inc., are signatories on a loan document titled, "Construction Draw Guideline." That form was executed on July 28, 2000, and listed Doug Reynaert and Sons, Inc., as the contractor to whom payments would be made. Leila Gammie recorded a Notice of Commencement on August 3, 2000, in Lee County, Florida. After the Notice of Commencement was filed, Leila Gammie made regular visits to the lot on which her house was to be constructed. On each occasion, she observed that Doug Reynaert and Sons, Inc., had not started the construction project. She then contacted Respondent to inquire about when construction of her house would begin. In response, Respondent told Leila Gammie that he would not go forward with the project unless she gave him $10,000.00 above the contract price. She refused to give Respondent any more money and Doug Reynaert and Sons, Inc., never started the job. By letter dated March 15, 2001, the Harris Trust Bank of Montreal, the apparent successor or assignee of the lender, Crossland Mortgage, advised Leila Gammie and Karen Gammie that the project had not progressed as scheduled and that for "this reason and other findings, Doug Reynaert and Sons, Inc., is no longer an approved builder of Harris Trust/Bank of Montreal." Leila Gammie engaged another contractor who built the house, which is her present residence. On March 20, 2001, Leila and Karen Gammie filed a Uniform Complaint Form with the Department arising from the contract with Doug Reynaert and Sons, Inc. In the Uniform Complaint Form, Leila and Karen Gammie stated that Doug Reynaert and Sons, Inc., kept changing the original start date of the construction project from August 2000 until February 2001 and that Respondent ultimately told Leila Gammie that he would not begin the project unless she paid him an additional $10,000.00. The Department's costs related to the investigation and prosecution of the Gammie contract, excluding costs associated with an attorney's time, are $287.37. Alleged Contracts with James Pledger and Angela Barnes The 2002 Administrative Complaint assigned DOAH Case No. 04-1547PL alleged certain violations related to an alleged construction contract between James Pledger and Doug Reynaert and Sons, Inc. However, no evidence was presented regarding this alleged contract and the violations related thereto. The 2001 Administrative Complaint assigned DOAH Case No. 04-1546PL alleged certain violations related to an alleged construction contract between Doug Reynaert and Sons, Inc., and Angela Barnes. However, no evidence was presented regarding this alleged contract and the violations related thereto.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order adopting the foregoing Findings of Fact and Conclusions of Law and requiring Respondent, Douglas V. Reynaert, to pay restitution to Leila and Karen Gammie in the amount of $6,000.00 and to Homer Dietzman in the amount of $14,571.00. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 29th day of October, 2004. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Douglas V. Reynaert 4815 Hidden Harbour Boulevard Fort Myers, Florida 33919 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether the Respondent discriminated against the Petitioner on the basis of his disability, and whether the Respondent’s discharge of the Petitioner from employment was unlawfully based upon his disability, in contravention of Section 760.10, Florida Statutes (2003), and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. Section 1201 et seq.
Findings Of Fact The Petitioner worked for the Respondent from September 17, 1999 through July 9, 2002. At the time of his termination from employment on July 9, 2002, the Petitioner worked in the Respondent’s Pensacola, Florida, Store No. 1605 under the supervision of Front End Assistant Manager Jackie Lewis and Store Co-Manager Rodney Snyder. The Petitioner’s last position with Wal-Mart was as a “People Greeter,” working eight-hour shifts. The Petitioner suffers from diabetes. On his employment application, the Petitioner indicated that he was able to work any scheduled hours and was seeking full-time employment. The Petitioner’s diabetes did not interfere with his ability to secure full-time employment. The Petitioner began his employment with the Respondent in Pensacola, Florida, Store No. 1222 as a maintenance associate, handling janitorial tasks. During the time he worked as a maintenance associate the Petitioner had his diabetes “under control.” The Petitioner completed an ADA “Job Matrix” form provided by the Respondent, on which he represented that he was able to perform all essential functions of his position without the need for any accommodation. No mention was made by the Petitioner at that time of his diabetic condition or resulting need for an accommodation. The Petitioner had “run-ins” with store management during his tenure as an employee of the Respondent. The Petitioner had a “run-in” with a Meat Department Manager over an assignment to mop-up a sugar spill, which the Petitioner refused to do. The Petitioner complained about supplies, or the lack thereof, at the store. The Petitioner admitted that there were tasks he simply refused to perform. The Petitioner had several problems with his co- workers and managers. On August 28, 2001, the Petitioner’s poor work attitude was cited on his annual performance appraisal, which was termed “below expectations.” During the course of his employment with the Respondent, the Petitioner was disciplined on several occasions through Wal-Mart’s “coaching” process. On February 17, 2001, the Petitioner received a “written coaching” for his failure to perform assigned job tasks, and he was informed that he needed to improve his job performance. Neither the annual performance rating nor the “coaching” session was caused by the Petitioner’s medical condition. On July 31, 2001, the Petitioner received a more severe form of coaching, a “Decision-Making-Day.” The coaching indicated that the Petitioner failed to complete jobs in a timely manner, questioned the authority of his managers, and had trouble following the directions of supervisors. The Petitioner was informed that if his performance did not improve he would be terminated. The Petitioner was given a day off to consider whether he wanted to continue to work for the Respondent and to prepare a performance action plan. In his performance action plan, the Petitioner indicated he would be more productive and approach his work with a more positive attitude. Following his performance action plan, the Petitioner requested and was granted a transfer to the position of "People Greeter," who works at the front of the store and welcomes customers as they enter the store. A "People Greeter" also performs certain tasks related to security. The Petitioner claimed to have given the Respondent’s personnel office a doctor’s note on June 27, 2002, indicating that the Petitioner needed a break every two hours in order to properly regulate his medication. The note made no mention of the Petitioner’s diabetic condition. The Respondent disavows any knowledge of receipt of a note concerning the Petitioner’s medical condition and need for frequent breaks. The Petitioner claimed that he was not always given the breaks he needed to regulate his medication. Given the nature of retail operations, in terms of the ebb and flow of shoppers entering the store, regular breaks are not always possible. Prior to the alleged submission of the doctor’s note on June 27, 2002, the Petitioner received coaching from his supervisors. On June 22, 2002, the Petitioner received verbal coaching from Ms. Jacqueline Lewis concerning his lack of respect for Customer Service Managers and other store management. Ms. Lewis received a statement from the Petitioner’s trainer indicating he refused to follow Wal-Mart policies for the "People Greeter" position. Ms. Lewis received written complaints from other co- workers of the Petitioner concerning his performance as a "People Greeter." All of these statements were factors in Ms. Lewis’ evaluation of the Petitioner’s performance as a "People Greeter." On the day of his termination, the Petitioner shouted 75-feet across the front of the store to the Customer Service Manager, requesting that she contact Ms. Lewis about issues taking place in the front of the store. He called a second time when his first request went unheeded. This behavior took place in front of store customers. Based upon the shouting incident, the Petitioner’s violation of policies, and the written complaints from co- workers, the Respondent terminated the Petitioner’s employment on July 9, 2002. The specific reasons given for the Petitioner’s termination were his inability to perform his job and for his not being respectful of other associates. The Petitioner believes that his co-workers and supervisors were aware of his diabetes. No co-workers or supervisors of the Petitioner testified at hearing that they were aware of the Petitioner’s diabetes. Ms. Lewis, the Front End Assistant Manager in the store, was not aware of the Petitioner’s diabetes. Ms. Carolyn Miller, the head Customer Service Manager for the store, was not aware of the Petitioner’s diabetes. Mr. Snyder, the store co-manager, was not aware of the Petitioner’s diabetes. Upon termination from employment with Wal-Mart, the Petitioner secured a Florida security guard license on his first try and obtained work as a security guard. The Petitioner was able to work a full eight-hour shift while employed by the Respondent. The Petitioner was able to perform the duties of his maintenance position when he held that job. At the time of his termination, the Petitioner was actively seeking a new position with Wal-Mart in the heating and ventilation area. When the Petitioner was unable to perform tasks associated with his employment, he attributed this to “old age,” and not his diabetes. The Petitioner planned to open his own steam cleaning and air conditioning repair business while he worked at Wal-Mart and felt physically able to do so. Since his termination from Wal-Mart, the Petitioner has secured gainful employment as a security guard at various factories, involving activities such as walking and driving trucks. The Petitioner has plans to rewire his house by himself. The Petitioner’s diabetes is kept in control by medication, and he does not require insulin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the Respondent did not discriminate against the Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of April, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 20th day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John M. Dickson 7870 Castlegate Drive Pensacola, Florida 32534-4555 Richard L. Ruth, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
