The Issue Whether Respondent, Fort Walton Beach Medical Center (FWBMC), engaged in employment discrimination and, thus, violated the Florida Civil Rights Act(FCRA), section 760.10, et seq., Florida Statutes, by: (a) failing to accommodate Petitioner, Jennifer L. Landress, because of her alleged disability; (b) subjecting Ms. Landress to a hostile work environment on the basis of her sex; (c) constructively discharging Ms. Landress from employment; and (d) retaliating against Ms. Landress, and, if so, the appropriate penalty.
Findings Of Fact FWBMC hired Ms. Landress on October 31, 2005, and employed her for approximately 14 years as a Cardiovascular Services Specialist. Ms. Landress resigned her employment with FWBMC on October 4, 2019. During her employment with FWBMC, Ms. Landress reported to either Ms. Ristom, Vice President of Quality and Risk Management, or Rob Grant, the former Director of Cardiovascular Services. Between August 30, 2018, and October 4, 2019, FWBMC also employed Ms. Sanders, Human Resources Business Partner, and Ms. Clark, Cardiovascular Tech. FWBMC never employed Dr. Al-Dehneh (or the other physicians who testified at the final hearing—Dr. Sandwith and Dr. Chen). Dr. Al-Dehneh has privileges to use FWBMC to provide services to the patients who come to FWBMC to receive care. Neither Dr. Al-Dehneh nor any of the physicians who testified at the final hearing were supervisors of Ms. Landress. Further, Dr. Al-Dehneh: never had a role in Ms. Landress’s discipline or schedule; never evaluated her performance; and did not exercise any control over Ms. Landress or affect the terms or conditions of her employment with FWBMC. FWBMC’s Policies Concerning Discrimination and Sexual Harassment FWBMC has a policy entitled “Equal Employment Opportunity/Harassment,” which is included in the employee handbook, as well as on its “HR Answers” online portal and intranet. The “Equal Employment Opportunity/Harassment” policy states, in part: Equal employment opportunities are provided to all employees and applicants for employment without regard to race, color, religion, gender, gender identity, national origin, age, disability, sexual orientation, genetic information, or protected veteran status with applicable federal, state and local laws. This policy applies to all terms and conditions of employment, including, but not limited to, hiring, placement, promotion, termination, layoff, transfer, leaves of absence, compensation and training. * * * Any form of unlawful employee harassment based on race, color, religion, gender, gender identity, national origin, age, disability, sexual orientation, protected veteran status or any other status in any group protected by federal, state or local law is strictly prohibited. Improper interference with the ability of employees to perform their expected job duties is not tolerated. Each member of management is responsible for creating an atmosphere free of discrimination and harassment, sexual or otherwise. Further, employees are responsible for respecting the rights of their co- workers. The following is prohibited: Unwelcome sexual advances, requests for sexual favors, and all other verbal or physical conduct of a sexual or otherwise offensive nature …. Behaviors that engender a hostile or offensive work environment will not be tolerated. These behaviors may include, but are not limited to, offensive comments, jokes, innuendos and other sexually oriented or culturally insensitive/inappropriate statements, printed material, material distributed through electronic media or items posted on walls or bulletin boards. FWBMC also has a policy entitled “Complaint Procedures,” which is contained in the employee handbook, as well as on its “HR Answers” online portal and intranet. The “Complaint Procedures” policy states, in part: If you experience any job-related harassment based on race, national origin, religion, gender, gender identity, color, disability, age or other factor prohibited by federal, state or local statute, or you believe you have been treated in an unlawful, discriminatory manner, promptly report the incident to your manager or Human Resources, who will investigate the matter and take appropriate action. If you believe it would be inappropriate to discuss the matter with your manager or Human Resources, you may bypass your manager or Human Resources and report it directly for investigation at The Ethics Line at [phone number]. Ms. Landress testified that she received a copy of the employee handbook, read the policies contained in it—including the policy concerning “Equal Employment Opportunity/Harassment” and “Complaint Procedures”—and knew of and utilized them. Ms. Sanders testified that if FWBMC, after investigation by its human resources department, substantiates a claim of harassment or discrimination by a physician, it would provide its investigative findings to the medical staff office, who would then refer the physician to a peer review process that could culminate in an appropriate action with respect to that physician’s hospital privileges. The undisputed evidence at the final hearing revealed that Ms. Landress reported to FWBMC’s human resources department that she was subjected to discrimination and harassment in August 2018, and again in March 2019. Allegations of Harassment and Hostile Work Environment Ms. Landress testified that Dr. Al-Dehneh began sexually harassing her starting in 2013. On August 30, 2018, she met with Ms. Sanders and Ms. Ristom and discussed this allegation. Ms. Sanders testified of the allegations made by Ms. Landress at the August 30, 2018, meeting: That Dr. Al-Dehneh had asked Rob to find women for him and to get Ms. Landress to sleep with him. She also indicated that Dr. Al-Dehneh was listening to her conversations via some sort of recording or monitoring device in her computer. She felt that Dr. Al-Dehneh had bugged her home through Siri and had accessed her medical records here at the facility. She was afraid for her life and had a gun. She also felt that Dr. Al-Dehneh was watching her home and that she told us a story about a lady on a bike who said that she was dead to her. She was afraid to go to the police about Dr. Al-Dehneh because she had been told that he was a mobster. And then she did admit to us at one point that she had started developing feelings for Dr. Al-Dehneh. Ms. Ristom also testified concerning the allegations made by Ms. Landress at the August 30, 2018, meeting: She said that Dr. Al-Dehneh had said to her to let him know when she was ready to get married. She said that Rob was tasked with getting women and obtaining sex for Dr. Al-Dehneh. And, you know, during that time Jennifer told me that – told Julie Sanders and I that she had started developing feelings for him, for Dr. Al-Dehneh. And in addition, she felt like her neighbor was watching her and providing information back to Dr. Al-Dehneh about her activities at home. Also, she said that she was afraid to report him because she felt like she – she understood him to be a mobster. She said he was listening to her through a listening device when she was at home through, like, a Siri, a radio kind of device because he would say things that he would only know if he was able to hear her at home. She told us about a heavyset lady on a bicycle who told her that she was a dead lady, that Jennifer was a dead lady, but that that woman was not going to be the one to kill her because Jennifer had been nice to her. She said that she was afraid to go to the police because she believed Dr. Al-Dehneh to be a mobster and that he owned the police and the hospital as well. She said that she was defending herself – felt like she needed to defend herself and had been carrying a gun and keeping it on her nightstand as well. She told us that she hadn’t slept in months, that she was taking medication to help her but that she was having difficulty concentrating. The testimony of Ms. Landress more or less confirmed that she made those allegations that Ms. Sanders and Ms. Ristom testified were made at the August 30, 2018, meeting, and that those allegations formed the basis for her Petition for Relief. She added that Dr. Al-Dehneh “constantly” harassed her, that she believed he started a rumor at the hospital that she had herpes, and that he had her “followed” to a local mall. Ms. Landress denied that she had romantic feelings for Dr. Al-Dehneh, but stated that she “had a great working relationship with him for a long time.” Dr. Al-Dehneh testified and denied all of Ms. Landress’s allegations, including: asking Ms. Landress to let him know when she was ready to get married; offering to “buy” Ms. Landress from her husband; threatening to have Ms. Landress fired; having Ms. Landress followed; putting a “hit” out on Ms. Landress; making comments about Ms. Landress to other physicians; spreading a rumor that Ms. Landress had herpes; calling Ms. Landress’s treating physician, Dr. Chen, for information about her; and accessing Ms. Landress’s medical records. According to Ms. Landress, Dr. Sandwith and Ms. Park were witnesses who could corroborate many of her allegations concerning Dr. Al-Dehneh. Both denied each and every allegation. Dr. Sandwith testified that he never saw Ms. Landress and Dr. Al-Dehneh together; denied talking to Dr. Al-Dehneh about Ms. Landress; denied ever seeing or hearing Dr. Al-Dehneh harass or act inappropriately with Ms. Landress or any other hospital staff; and denied hearing rumors concerning Ms. Landress, Dr. Al-Dehneh, their alleged relationship, or that Ms. Landress had herpes. Ms. Park, who worked with Ms. Landress: testified that she never heard any rumors that Dr. Al-Dehneh was having sexual relationships with other women; denied witnessing Dr. Al-Dehneh tell Ms. Landress that he was going to call Ms. Landress’s husband and offer $5,000 for her; denied talking with Ms. Landress about being sexually harassed; denied hearing rumors about Ms. Landress and Dr. Al-Dehneh; denied hearing rumors that Ms. Landress had herpes; and denied telling Ms. Landress to stay away from Dr. Al-Dehneh. According to Ms. Landress, she also discussed her allegations of sexual harassment with her orthopedic physician, Dr. Chen, on numerous occasions. Dr. Chen testified that during one of Ms. Landress’s appointments, I recall you telling me just occurrences at home, of what happened in the workplace between yourself and a certain physician on staff at the – at the Walton Beach Medical Center. Yeah, and there was situations or there were occurrences that were – upsetting to you and they were providing some sorts of distress. He further testified that Ms. Landress “spoke … about the herpes.” Dr. Chen testified that he may have heard FWBMC staff discussing the alleged herpes rumor, but could not recall from whom he heard those rumors, and admitted that the rumors could have come from Ms. Landress herself. Dr. Chen testified that he never witnessed Dr. Al-Dehneh acting inappropriately towards Ms. Landress, and that he never heard any other physician at FWBMC discuss any rumors concerning Ms. Landress or Dr. Al-Dehneh. FWBMC Investigation of Complaint of Harassment and Hostile Work Environment At the conclusion of the August 30, 2018, meeting, Ms. Sanders immediately investigated Ms. Landress’s claims by interviewing Dr. Al-Dehneh that same day, and by interviewing other employees who could potentially substantiate Ms. Landress’s claims. However, Ms. Sanders was unable to find any witness who corroborated any of Ms. Landress’s allegations. Ms. Sanders testified, as part of her investigation, that she determined that Dr. Al-Dehneh did not have any remote access or log-in capabilities to access Ms. Landress’s computer. Ms. Sanders further testified, as part of the investigation, that she confirmed that Dr. Al-Dehneh never had access, nor tried to access, Ms. Landress’s medical records. During the investigation, Ms. Ristom testified that she offered to move Ms. Landress’s office to distance her from the individuals allegedly involved, including Dr. Al-Dehneh. Ms. Landress declined this offer. Ms. Sanders completed her investigation of Ms. Landress’s claims of sexual harassment and hostile work environment on September 18, 2018, and informed Ms. Landress that FWBMC could not substantiate her claims. Subsequent Events On September 20, 2018, Ms. Landress suffered an anxiety attack and went home from work early. When Ms. Sanders and Ms. Ristom learned of the anxiety attack, they attempted to speak with Ms. Landress in her office and told her to take the weekend off to deal with her anxiety. Both Ms. Sanders and Ms. Ristom testified that Landress did not attribute her anxiety attack to the alleged past sexual harassment incidents with Dr. Al-Dehneh, nor any new incidents of harassment. Ms. Landress’s testimony concerning the anxiety attack and subsequent leave was as follows: Predominately because I really wanted to come home and take medication because I couldn’t stand – I – I just couldn’t get past people in the hospital constantly talking about me having herpes. I mean, it’s kind of like if you were walking in the building and that’s all you heard, you want to get out of there. As previously noted, the FWBMC investigation did not substantiate Ms. Landress’s allegation concerning hospital rumors that she had herpes. Further, there was no testimony or evidence presented at the final hearing, outside of Ms. Landress’s testimony, that confirmed this allegation. Ms. Landress soon returned to work and did not report another incident of harassment until March 2019. On March 1, 2019, Ms. Landress reported that a nurse practitioner, who she claimed worked for Dr. Al-Dehneh, took a photo of Ms. Landress on her cellphone when she walked by Ms. Landress’s office. Ms. Landress testified that she “assumed” the nurse practitioner took the photo for Dr. Al-Dehneh. Ms. Landress further testified that she never saw the photo. Ms. Ristom and Ms. Sanders met with Ms. Landress concerning this allegation, and Ms. Sanders investigated it. Ultimately, FWBMC was unable to substantiate this claim or that she was being harassed by Dr. Al-Dehneh or his nurse practitioner. Ms. Landress did not report any other incidents of harassment after March 1, 2019. Leave(s) of Absence FWBMC approved Ms. Landress for a paid leave of absence from June 10, 2019, until she resigned on October 4, 2019. FWBMC granted this leave for two separate reasons: for an orthopedic condition, and for a mental health condition. Initially, Ms. Landress was placed on leave for her claims of stress, anxiety, and post traumatic stress disorder related to the alleged harassment. Then, on September 9, 2019, Ms. Landress submitted a separate claim because of pain in her right elbow. Dr. Chen, Ms. Landress’s treating orthopedic physician, informed FWBMC that her anticipated return work date was October 7, 2019, with restrictions, such as “no repetitive use of right arm to include typing, mouse use, [and] writing.” After Dr. Chen cleared Ms. Landress to return to work, with restrictions, Ms. Sanders reminded Ms. Landress that she could not return until her mental health counselor also cleared her. Ms. Landress’s mental health counselor never cleared her to return to work. In July 2019—during her leave of absence for a mental health condition—Ms. Landress requested, to Ms. Ristom, the opportunity to work from home. FWBMC denied Ms. Landress’s accommodation request; Ms. Sanders testified: At that time we weren’t able to accommodate the work from home request. There was concerns around protecting patient medical records and her ability to work with the staff and the physicians when she needed to ask questions. On September 20, 2019, while Ms. Landress remained on leave, Ms. Ristom received an email from Q-Centrix, a third-party data management provider that collaborates with healthcare providers, such as FWBMC. The September 30, 2019, email requested that FWBMC terminate Ms. Landress as an employee so that Q-Centrix could employ Ms. Landress in a full-time position. Ms. Ristom forwarded this email to Ms. Sanders to investigate and did not reply to the September 20, 2019, email from Q-Centrix until FWBMC could confirm from Ms. Landress that it was her intention to resign her position with FWBMC. On September 27, 2019, Q-Centrix emailed another request to FWBMC to terminate Ms. Landress. Ms. Sanders testified that she spoke with Ms. Landress about this request. On October 4, 2019, Ms. Landress—who still had not received clearance to return to work at FWBMC from her mental health counselor— submitted a letter of resignation to Ms. Sanders. Her letter of resignation stated that she and her mental health counselor agreed that her “PTSD is too great to return.” Her letter further stated that because FWBMC denied her request to work from home, she had accepted a position with “another company.” The October 4, 2019, letter of resignation attached four additional pages of what Ms. Landress contends were the events that led her to resign. The first page listed the allegations of sexual harassment by Dr. Al-Dehneh that Ms. Landress discussed with Ms. Sanders and Ms. Ristom during the August 30, 2018, meeting. The remaining three pages listed various allegations that Ms. Landress did not report to FWBMC and did not include in her charge of discrimination with FCHR. Findings of Ultimate Fact Ms. Landress presented no persuasive evidence that FWBMC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by sex-based or disability-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful sex-based or disability-based discrimination. Ms. Landress presented no persuasive evidence that FWBMC’s actions subjected her to harassment based on sex. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful sexual harassment. Ms. Landress presented no persuasive evidence that FWBMC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Landress presented no persuasive evidence that FWBMC’s actions were sufficiently severe or pervasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of hostile work environment. Finally, Ms. Landress presented no persuasive evidence that her working conditions at FWBMC were so intolerable that a reasonable person in her condition would have been compelled to resign. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of constructive discharge.
Conclusions For Petitioner: Jennifer L. Landress 7758 Ramona Drive Navarre, Florida 32566 For Respondents: Cymoril M. White, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Jennifer L. Landress’s Petition for Relief. DONE AND ENTERED this 29th day of December, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 29th day of December, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Tracey K. Jaensch, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602 Stanley Gorsica, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 Jennifer Lynn Landress 7758 Ramona Drive Navarre, Florida 32566 Cymoril M. White, Esquire Ford & Harrison, LLP 101 East Kennedy Boulevard Suite 900 Tampa, Florida 33602
Findings Of Fact The Respondent, Larry C. Griggs, is licensed as a certified general contractor, holding license number CG C001910. During the years 1979, 1980 and 1981 the Respondent was president of Kramer Homes, Inc., and in this capacity he acted as contractor for the construction of a project in Dade County known as Woods Landing. Kramer Homes, Inc., entered into subcontracts in connection with the Woods Landing project, and listed itself as contractor on these subcontracts. Kramer Homes, Inc., also caused the notice of commencement to be published, and it obtained the construction loan and paid some of the bills incurred. The Respondent, however, failed to qualify Kramer Homes, Inc., with the Construction Industry Licensing Board. The Respondent admitted the above facts, but explained that he had no intent to violate the construction industry licensing law. He asserts that he was confused as to the proper practice because he owned and operated both Kramer Homes, Inc., and his other corporation, Larry C. Griggs, Inc., which he did qualify. During the course of the Woods Landing project, funding problems developed which resulted in the failure of the Respondent to pay 16 creditors for materials furnished or services performed at Woods Landing when payment was due. Subsequently however, the Respondent has caused payment to be made, or has made arrangements for payment, to all such creditors except for five. The creditors remaining unpaid are Miami Comfort Air, Style Light, Inc., Gem Cabinet Company of Miami, Inc., World Tile Company, and Dixie Clamp and Scaffold, Inc. On approximately September 11, 1981, the Respondent issued a check on a Woods Landing account, payable to Miami Comfort Air, in the amount of $5,000. Previously, on July 31, 1981, the Respondent had acknowledged the debt due Miami Comfort Air, and had made arrangements to pay $8,000 by September 1, 1981. The check for $5,000 was in partial payment of the total debt. The check for $5,000 issued by the Respondent on September 11, 1981, to Miami Comfort Air was returned unpaid by the bank marked not sufficient funds. When the Respondent learned that this check had not been paid, he failed to make it good or to make suitable arrangements for payment of the amount due Miami Comfort Air. The Respondent contends that be believed that there were sufficient funds in his account when he issued the $5,000 check to Miami Comfort Air. He explained that his bank, County National Bank of South Florida, became insecure with the financial aspects connected with the Woods Landing project, and withdrew interest from his account without advising the Respondent, at or about the time he issued the check to Miami Comfort Air. He asserts that it is his intention to pay all of the creditors of this project, and he established his payment record of the creditors who had been paid as of the date of the hearing. Miami Comfort Air has reduced its claim against the Respondent to judgment which the Respondent has not paid, but has elected to appeal, although he did not appear in court to defend the claim when suit was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Larry C. Griggs, be found guilty of violating Sections 489.129(1)(d), (g), (j) and Section 489.129(1)(c) to wit Section 455.227(1)(a), Florida Statutes, and that he be assessed an administrative fine of $250 on Count 1, $100 on Count 11 and $1,000 on Count 111, for a total fine of $1,350. THIS RECOMMENDED ORDER entered on this the 24th day of January, 1983. WILLIAM B. THOMAS, 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 24th day of January, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Blvd. Fort Lauderdale, Florida 33306 James L. Wall, Jr., Esquire 407 Lincoln Road Miami Beach, Florida 33139 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was subjected to sexual harassment in the form of a sexually hostile work environment and was retaliated against for complaining about the alleged harassment in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, James E. Gonzales, is a male person who was hired by the Respondent, Pepsi Bottling Group, on March 13, 1995. He was hired as a route sales trainee in the Central Florida marketing unit of that employer. The Pepsi Bottling Group (Pepsi) is responsible for the manufacture sale and delivery of Pepsi products to its vendors. Over the last three years the Central Florida unit has been the foremost marketing unit in the United States. The management of the Central Florida Marketing Unit has been rated by its employees as being the top management team in the country for Pepsi. The Petitioner applied for a Pre-sale Customer Representative (CR) position on March 27, 2003. On April 21, 2003, the Petitioner was assigned to a Pre-Sell (CR) position. As a Pre-Sell CR, the Petitioner was responsible for serving his own accounts; creating and maintaining good will with all customers; ordering customer's products in advance; and developing all assigned accounts relative to sales volume, market share, product distribution, space allocation and customer service. He was responsible for solicitation of new business; selling and executing promotions; soliciting placement of equipment; selling sufficient inventory; and utilizing point of purchase materials to stimulate sales. He was also charged with maintaining "shelf facings" cleaning and shelving and rotating product and merchandising product sections and building displays to stimulate sales. Additionally, he was required to complete and submit all related paperwork regarding sales and promotional operations in an accurate and timely manner. The Petitioner's direct supervisor initially was David Lopez. He was replaced by Wanzell Underwood in approximately August 2003. On December 5, 2002, the Petitioner received the Respondent's employee handbook. The handbook contains the Respondent's Equal Employment Opportunity Policy and Sexual Harassment Policy. The Equal Employment Opportunity Policy prohibits discrimination on the basis of race, color, religion, gender, age, disability, etc. including sexual orientation. It encourages employees to immediately report any complaint, without fear of retaliation, to the Human Resources Manager or Human Resources Director. The Respondent's policy has a zero tolerance for retaliation and forbids any retaliatory action to be taken against an individual who in good faith reports a perceived violation of that policy. Employees who feel they have been retaliated against are required to report such retaliation to the Human Resources Manager or Director. The sexual harassment policy of the Respondent prohibits all forms of harassment and clearly sets out complaint procedures for employees to follow in the event they have experienced harassment. They are directed to report any complaint immediately to the Human Resources Manager or Director. Throughout his employment the Respondent received numerous customer complaints regarding the Petitioner's poor performance. The Petitioner received five disciplinary actions against him from the period 2003 through 2005. These "write- ups" were for failing to service customers according to the Respondent's standards and were dated August 2003, April 2004, September 2004, October 2004, and May 2005. On August 1, 2003, the Petitioner received a documented verbal warning after the Respondent received a complaint from a customer regarding the amount of out-of-date product in his store and the poor level of service he was receiving from the Petitioner. On April 9, 2004, the Petitioner received a documented verbal warning for his failure to prepare his three Circle K stores for a "customer tour," although he had assured his direct supervisor, Mr. Underwood, and the Key Account Manager, Eric Matson, that the store would be ready. The Petitioner's failure to prepare his Circle K stores for the customer's tour embarrassed both his supervisor and the Key Account Manager. On June 23, 2004, the assistant manager at ABC Liquor, a store Gonzales was responsible for, sent an e-mail to Eric Matson complaining about the lack of service provided by Gonzales and requested a new CR to service his store. The customer stated that Gonzales had given nothing but "crappy" service, bad attitude, and sometimes no service. On September 21, 2004, Eric Matson received an e-mail regarding the Petitioner's failure to order product for the Mt. Dora Sunoco store. The Petitioner's supervisor, Wanzell Underwood, visited the Mt. Dora Sunoco store and confirmed the manager's complaints. The Petitioner received a written warning for not properly servicing the Mt. Dora Sunoco store. In the Petitioner's contemporaneous written comments in opposition to the written warning he failed to note that the manager of the Mt. Dora Sunoco was purportedly sexually harassing him. On October 11, 2004, the Petitioner received a final written warning and one-day suspension after his direct supervisor re-visited the same Mt. Dora Sunoco store that complained previously. The Petitioner was warned that a similar problem in the future would lead to his termination. Again, in the Petitioner's written comments in opposition to his written warning, he made no mention that the manager of the Mt. Dora Sunoco store was sexually harassing him. On October 11, 2004, after the Petitioner was suspended for one day, he requested that the Human Resources Manager, Christopher Buhl, hold a meeting. During the meeting he complained for the first time to the Unit Sales Manager, Howard Corbett, the Sales Operations Manager, Tom Hopkins, and Mr. Buhl, that three years previously, in 2001, one person had told the Petitioner that everyone thought he was "gay" (meaning co-employees). One person asked him if he was gay, according to the Petitioner's story, and one person said, "We all know you're gay," before he became a Pre-Sell CR. The Petitioner, however, refused to cooperate with Mr. Buhl in obtaining information regarding his complaints. At no time during the meeting did the Petitioner complain about being sexually harassed by the manager of the Mt. Dora Sunoco store. During the October 11, 2004, meeting the Petitioner claimed his supervisor, Wanzell Underwood, threatened him. However, the Petitioner conceded during the meeting that the alleged statement made by Mr. Underwood was made to a group of Customer Representatives, to the effect that he would "kill you guys if you do not make the sales numbers." Mr. Underwood denied ever threatening to kill the Petitioner. During the meeting the Petitioner also complained that his route was too large and he requested that it be reduced. At no time during that October 11, 2004, meeting did the Petitioner complain that he was sexually harassed by Alice Marsh, the Mt. Dora Sunoco manager. His extensive notes and comments on his Disciplinary Action Reports did not document any such complaint. In November 2004, the Petitioner was asked to go to K- Mart and place an order, but the Petitioner failed to follow instructions and visit the store. Instead, the Petitioner placed the order over the phone. The manager of the store called the Respondent three times to complain about the poor service provided by Mr. Gonzales. Each year the Respondent changes its delivery routes. During the end of 2004 or the beginning of 2005, the Respondent re-routed all of its Pre-sell CR routes. The Respondent reduced the Petitioner's route as he had requested and in conformity with its route standards. Despite the Petitioner's allegation to the contrary, in fact the Petitioner's route was not reduced by as much as 50 percent. In May 2005, Key Account Manager, Mike Lewis, visited the Petitioner's K-Mart store to conduct a "Look at the Leader" audit. The Petitioner had been trained and was responsible for preparing the K-Mart for the audit. When Mr. Lewis arrived at the store, the store did not meet the Respondent's standards. Additionally, required product was missing from the displays. Mr. Lewis called Howard Corbett to inform him of the problems. Mr. Corbett called the Petitioner to ask about the missing product. The Petitioner assured him that the product was in the store and on display. The missing product was not displayed, however, and was later found in the back room of the K-Mart store. On May 18, 2005, the Respondent received another e- mail from Charles Pippen, District Manager for Sunoco, complaining of the Petitioner's poor service at the Mt. Dora Sunoco store. He claimed that the Petitioner did not reply to phone calls and rarely ordered enough product. On May 19, 2005, the Territory Sales Manager, John York, followed up on that complaint by visiting the Mt. Dora Sunoco store and meeting with the Manager, Alice Marsh. Mr. York was substituting for Mr. Underwood who was out on medical leave. During the meeting, Ms. Marsh complained that the Petitioner did not order the quantity of product she requested, failed to provide adequate signage, and refused to place product where she requested. While at the Mt. Dora Sunoco store, Mr. York observed the problems about which Ms. Marsh had complained. After meeting Ms. Marsh, Mr. York spoke with the Petitioner to inform him of Ms. Marsh's complaints. During his conversation with Mr. York, the Petitioner admitted to failing to service the account by not placing the product by the gas pumps as requested, not ordering the amount of product requested, and not hanging certain signs. Later in this conversation with Mr. York, the Petitioner informed Mr. York that he believed that the Sunoco Manager's reason for complaining about his service was that he had refused her sexual advances. The Petitioner did not tell Mr. York what the alleged advances consisted of or when they might have occurred. Mr. York, however, in fact was never the Petitioner's supervisor. The Petitioner was responsible for two CVS stores in Mt. Dora. On Friday, May 20, 2005, the Petitioner made an unusual request of his temporary Manager, Dan Manor, for a Saturday delivery to his CVS stores. The Respondent does not normally schedule Saturday deliveries for such "small format" stores like CVS. When Mr. Manor approved the Saturday delivery, he specifically instructed the Petitioner that must meet the bulk delivery driver at the stores to "merchandise" the product, because bulk delivery drivers do not merchandise the product delivered and Mr. Manor did not have a merchandiser assigned to the Mt. Dora stores. The Petitioner agreed to meet the bulk delivery driver at the CVS stores on Saturday. The Petitioner did not advise his supervisor that he had made arrangements with the CVS store manager or a merchandiser regarding alternate arrangements for the Saturday delivery. The supervisor would have expected the Petitioner to do so. On Saturday, May 21, 2005, the Petitioner failed to meet the bulk driver to assist in merchandising the orders at the two CVS stores as instructed. The customer refused to take delivery of the product until a merchandiser was present to merchandise the product. Mr. Manor was unable to reach the Petitioner by telephone because the Petitioner was at Sea World with his family. Mr. Manor had to send a merchandiser from Longwood in order to merchandise the product that the Petitioner had ordered for the CVS stores. On May 23, 2005, the Petitioner failed to attend a weekly mandatory 5:00 a.m. meeting. He did not call his supervisor advising of his unavailability. The Petitioner did call Mr. Manor at about 6:15 a.m. and told him that he had overslept. When Mr. Manor questioned the Petitioner about why he did not meet the bulk driver on Saturday, he said that "he did not get a chance to make it out on Saturday." On May 23, 2005, Mr. Corbett decided to terminate the Petitioner based on his very poor performance. That decision to terminate him was approved by the Respondent's Human Resources Department. On May 26, 2005, the Respondent terminated the Petitioner for failing to service the CVS stores at a critical time, for the services issues at the Sunoco and the K-Mart, and for failing to attend the Monday morning meeting. At the time of his termination the Petitioner was on a final warning and had been advised that he could be terminated. The Petitioner never alleged during his termination meeting that he was being sexually harassed. Howard Corbett provided the Petitioner with documents to file an internal appeal on the day he was terminated. The Petitioner, however, did not appeal his termination as permitted by the Respondent's policy. The Petitioner claims he was the victim of sexual harassment by being subjected to (1) homosexual related comments made in 2001, and (2) alleged sexual overtures by the Sunoco Manager, Alice Marsh, in 2003. According to Ms. Marsh, she was never interested in the Petitioner sexually. She did not socialize with the Petitioner, and did not want a relationship with him. She did not touch him and did not state that she wanted the Petitioner fired. She also testified that she never stated that she wanted a sexual relationship with the Petitioner. The Petitioner's allegations regarding sexual harassment by Ms. Marsh related the following behaviors: She touched his back and arm; She was too close to him when he was around; She was nice to him until informed that he was married; She suggested sexual interest by her body language and eyes; and She wore provocative clothing. David Lopez supervised the Petitioner for approximately two years in the 2001 to 2003 time period. During this time period the Petitioner never complained to Mr. Lopez that he had been sexually harassed. Mr. Lopez did not witness the Petitioner being harassed while working with the Respondent either. Wanzell Underwood supervised the Petitioner for approximately two years in the 2003 to 2005 time period. During this time, the Petitioner never complained to Mr. Underwood that he had been sexually harassed. Mr. Underwood did not witness the Petitioner being harassed while he worked for the Respondent. The Petitioner never made a compliant regarding the alleged sexual harassment by the Sunoco Manager, Alice Marsh, to the Human Resources Department, in accordance with the Respondent's policy. He did not explain the nature of any sexual harassment, even when he finally claimed that he was being harassed. The Respondent would have terminated the Petitioner for his poor performance regardless of whether he engaged in the purported protected activity by complaining of sexual harassment. The Petitioner alleges he was terminated for reasons other than complaining about sexual harassment, including his alleged knowledge of theft in Lake County. In any event, on July 15, 2005, the Petitioner filed the Charge of Discrimination with the Commission and the resulting dispute and formal proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James E. Gonzales 26437 Troon Avenue Sorrento, Florida 32757 Nicole Alexandra Sbert, Esquire Jackson Lewis LLP 390 North Orange Avenue Orlando, Florida 32802
The Issue Whether Respondent, Suncoast Architecture and Engineering, LLC. (Suncoast), retaliated against Petitioner, Kenan Tuzlak, after Petitioner filed a discrimination complaint against Suncoast and, if so, what relief should be granted to Mr. Tuzlak.
Findings Of Fact At all times material to this case, Suncoast was an architectural and engineering company located in Clearwater, Florida. Mr. Burnett is the president and sole owner of Suncoast. Suncoast was an "employer" pursuant to the definition of the term set forth within the applicable Pinellas County Code provision. In November 2011, Mr. Tuzlak was first employed by Suncoast as a draftsman. He was promoted to designer, receiving an increase in pay and bonuses. His initial title at Suncoast was "Senior Engineering Technician." On Monday, June 11, 2012, Mr. Tuzlak was terminated from his employment at Suncoast. On November 5, 2012, Mr. Tuzlak filed a charge of employment discrimination (Charge 1) pursuant to Pinellas County Code section 70–76. Mr. Tuzlak alleged he was discriminated against based on his religion and retaliation. On Friday, December 21, 2012, William Hurter, counsel to Suncoast, mailed a letter directly to Mr. Tuzlak. Mr. Tuzlak received the letter the next day. That letter, in pertinent part stated: By way of introduction, this firm represents the interests of Suncoast Architecture & Engineering LLC ("Suncoast"). We are in receipt of your claim and have already been in contact with the Pinellas County Office of Human Rights. To begin, we would like to reiterate Suncoast's position: your termination from employment had nothing to do with any sort of discrimination whatsoever, and was based solely on legitimate business necessities. Our client also stated your claim is filled with falsehoods and misrepresentations. As a result, Suncoast is demanding that you withdraw your discrimination claim within 7 days of the date of this letter. If you do not withdraw your claim, we will represent Suncoast throughout the discrimination proceedings and we will also be filing a lawsuit against you for trade slander, in addition to any other legal causes of action which Suncoast may be able to pursue against you for your meritless discrimination claim. We would also ask that any further communications you may seek to have with Suncoast come strictly through this office. We will ensure that any statements or other information from you is forwarded to the appropriate representative of Suncoast. Overall, we are sympathetic to your situation and understand the hardships associated with losing one's job. However, in today's economy many individuals and business [sic] are struggling and it is inappropriate and against the law to file a discrimination claim in retaliation to a lawful and necessary termination of employment. With that in mind, we hope you will accept our offer to withdraw your claim against Suncoast in exchange for Suncoast agreeing not to pursue its legal rights against you. Mr. Tuzlak felt threatened and scared by the letter. Mr. Tuzlak believed the intent "of this document [letter] was to scare me off and stop me from enforcing my legal rights." Mr. Tuzlak understood the letter was a demand for him to withdraw the prior discrimination case (Charge 1) against Suncoast, or Mr. Tuzlak would be sued for, among other things, "trade slander."1/ The letter accused Mr. Tuzlak of filing Charge 1 with "falsehoods and misrepresentations." Mr. Tuzlak feared he would incur financial loses. His testimony is found to be credible. On January 22, 2013, Mr. Tuzlak filed the retaliation charge (Charge 2) pursuant to Pinellas County Code section 70-54. At the time Charge 2 was filed, the allegations in Charge 1 had not been resolved.2/ After Charge 2 was filed, but before this hearing was held, Mr. Tuzlak moved to Alberta, Canada, where he is currently working as a design engineer. Mr. Burnett makes all the decisions regarding Suncoast. Mr. Burnett directed Mr. Hurter to write the letter to Mr. Tuzlak. Mr. Burnett wanted Mr. Tuzlak to stop pursuing the original discrimination charge. Mr. Burnett "intended to gain an end to this proceeding [Charge 1] without causing any more damage to anyone." Mr. Burnett's stated desire to "inform him [Mr. Tuzlak] that there are adverse consequences that can happen to you if this happens" is self-serving. Mr. Burnett does not have any recollection of any statements Mr. Tuzlak made outside of the allegations found in Charges 1 and 2. Mr. Burnett did not receive any direct feedback from the community about any statements Mr. Tuzlak may have made. Suncoast's employees were told of the allegations in the Charges, but that information did not come from Mr. Tuzlak. Mr. Burnett conceded he had no way to know if Suncoast sustained any loss or damage as a result of either Charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent, Suncoast Architecture & Engineering, LLC, violated section 70-54(l), Pinellas County Code; and Ordering Suncoast to pay Mr. Tuzlak reasonable costs and attorney's fees. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount. DONE AND ENTERED this 3rd day of January, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 3rd day of January, 2014.
The Issue The issues to be resolved in this proceeding concern whether, Respondent discriminated against the Petitioner based upon her race or sex and whether she was subjected to retaliation after complaining to the Respondent concerning the alleged harassment.
Findings Of Fact The Petitioner became employed on October 10, 2005, at HOM. She worked as a general laborer and finisher at times pertinent to this case. HOM is a manufacturer of mobile and modular homes at its Lake City, Florida, plant. It has in excess of 15 employees and is therefore a statutory employer with the meaning of Section 760.02(2), Florida Statutes (2006). The Petitioner has a number of blemishes on her employment record with the Respondent. She had performance problems prior to the events leading up to the termination of her employment. She was disciplined for an incident occurring on December 21, 2005, for failure to report to required overtime work, as well as for insubordination. Steve Weeks, the Respondent's Production Manager, deemed the failure to report for required overtime work to be insubordination and a violation of the company's attendance policy. She received an employee warning notice on May 3, 2006, regarding a perceived need for her to "pickup the pace and for her attendance." Mr. Weeks told Ms. Pate that she needed to increase her production pace and needed to work on her attendance and work quality. The Petitioner was given to understand that her employment could be terminated for further violations. The Petitioner maintains she has been subjected to "harassment." Specifically, she complains that her co-workers in the finishing department harassed her by "bumping into me and playing threatening songs, threatening, talking about they were going to beat my behind, you know, just constantly threatening." Her complaints concern Priscilla Berry, Katherine Belford, and Melody Adkins. Melody Adkins is a white female, Priscilla Berry and Katherine Belford are African-American females. Most of the Petitioner's complaints concern Katherine Belford and Priscilla Berry. The Petitioner admits that these individuals never indicated they were committing any alleged harassing acts because of the Petitioner's race or gender. She further acknowledges that the harassment "may not have been for my race" and that the harassment "might have been because I was a female and I was doing my job and I didn't hang with that certain group" of females. No male employees are alleged to have threatened or harassed the Petitioner and she never complained to her direct supervisor, Tommy Smith, concerning any problems related to her race or gender. Ms. Pate spoke to Supervisors Weeks and Smith in an effort to stop the harassment and threats. In response to her complaints Mr. Weeks talked to the supervisors and employees involved in the incidents Ms. Pate complained about and told them they were not to bring personal problems to the work place. Mr. Smith separated the Petitioner from Ms. Belford and Ms. Berry because of the antagonism that had developed between them. He directed her to perform her duties in a different location in order to alleviate the hostilities. The Petitioner called the HOM corporate office on June 27, 2006, and spoke to Mr. Jeff Nugent. Mr. Nugent directed the Regional Human Resources Director, William Allen, to investigate the Petitioner's complaints. Mr. Allen spoke to the Petitioner by phone on June 29, 2006, and arranged a meeting with her for July 11, 2006. The Petitioner told Mr. Allen during that phone conversation that she was being harassed and threatened and that the supervisor was not doing anything to alleviate the matter. She told him that "they" were discriminating against her because she was a black woman and the supervisors were still doing nothing to alleviate her harassment, in her view. The Petitioner met with Mr. Allen on July 11, 2006. Mr. Allen also met with other employees. The plant had been shut down during the first week of July and immediately thereafter on July 11, 2006, the Petitioner had the meeting with Mr. Allen. She found him responsive to her complaints. He took notes during the meeting with the Petitioner and with the other employees he interviewed. The Petitioner complained that she was being harassed and threatened by the above-referenced women on the job, that she "went up the chain of command" to get the harassment to stop but that it had not stopped. She did not complain to Mr. Allen that she was being harassed based on her gender or her race, however. Mr. Allen determined that the problem between Ms. Pate and the other employees was based upon difficulties in "getting along well" or, in effect, personality differences. He also determined that the Respondent had responded to the prior complaints by separating Ms. Pate from working with the employees about whom she had complained. On July 13, 2006, Mr. Smith observed Ms. Pate out of her assigned work area while using a cell phone. The use of a cell phone during working hours, and in working areas, violates company policy. Mr. Smith asked Ms. Pate to report to the plant office to speak to Mr. Weeks. Upon arriving at the office, the Petitioner told Mr. Smith and Mr. Weeks that she was leaving because she did not feel well. Mr. Weeks told Ms. Pate that she could leave the premises, but she would have to bring in a physicians note to prevent the absence from being unexcused. She returned to work the next scheduled work day and did not bring in a physician's note as directed. The previous work day's absence was thus an unexcused absence. Mr. Weeks decided to terminate the Petitioner's employment for her attendance problems and for her failure to submit a doctor's note justifying her absence of July 13, 2006. Her unexcused lack of attendance caused her to have excessive absences in violation of the Respondent's adopted attendance policy. The Petitioner's employment was terminated on July 17, 2006. The Petitioner never told Mr. Weeks that she felt her employment was being terminated in retaliation for her having called the corporate office to complain, or that she was being harassed because of her race and gender.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 10th day of December, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 10th day of December, 2007. COPIES FURNISHED: Deborah Pate 862 Northeast Coldwater Street Lake City, Florida 32055 Kevin E. Hyde, Esquire Foley & Lardner LLP One Independent Drive, Suite 1300 Post Office Box 240 Jacksonville, Florida 32201-0240 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
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 26th day of August, 1997.
The Issue The issues are whether Respondent, City of Edgewater (the City), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on her age, gender, and/or disability by the manner in which the City terminated Petitioner’s employment. Also at issue is whether Petitioner’s termination was in retaliation for Petitioner’s complaints regarding discriminatory conduct by her immediate superior.
Findings Of Fact The City is an employer as that term is defined in section 760.02(7), Florida Statutes. Petitioner is a white female who was over the age of 40 during the events relevant to this proceeding. Petitioner was hired by the City as a part-time animal control officer on June 9, 1993. At the time Petitioner was hired, animal control was part of the City’s police department. On October 15, 1993, Petitioner was transferred to a full-time position as records clerk/telecommunicator in the police department. Petitioner maintained the department’s records and answered all police calls, including 911 calls. She dispatched officers and emergency personnel. Petitioner testified that this was a desk job with no real physical requirements beyond walking to a window to deal with members of the public. She received excellent evaluations and stayed in this position until early 1999. While working this job, Petitioner obtained police training at Daytona State College. Upon graduation, Petitioner applied for a job as a police officer with the City. On February 19, 1999, the City hired Petitioner as a police officer. Petitioner was promoted to sergeant on May 7, 2006, and served in that position until her demotion following an altercation with a female detainee in the City’s holding facility on June 16, 2011. Petitioner was continuously employed by the City for 18 years and eight months. During her employment, she received regular pay increases and numerous commendations. Over the years, she received three written warnings and one demotion, from sergeant to officer after the incident on June 16, 2011. Chief of Police David Arcieri characterized her disciplinary record as good in light of Petitioner’s length of service. During the course of her employment, Petitioner had multiple health problems. In 2001, during work-related mountain bike training, Petitioner suffered a fall that badly injured her shoulder.3/ Petitioner had surgery and recalled that she missed at least four months of work. When she came back to work, Petitioner was unable to perform the normal duties of a police officer. She was allowed to return in a light-duty desk position, working with the City’s chief of grants. She worked in this position for approximately six months before returning to regular duty as a police officer. In 2004, Petitioner was diagnosed with lupus and rheumatoid arthritis (“RA”). Petitioner testified that she freely discussed her condition with her co-workers because of the problems she had establishing a medication regime that did not cause allergic reactions. Until late 2011, she was forced to give herself painful injections in the stomach. She now has a port implanted that allows her to take the medications via infusion. Chief Arcieri confirmed that it was common knowledge in the City’s police force that Petitioner had lupus. Petitioner testified that she missed very little work because of the lupus and RA. She requested no accommodations in the workplace for these conditions. Sometime in 2009, Petitioner underwent neck surgery to repair a disc “that was almost gone.” Petitioner recalled discussing her condition with then-Sergeant Arcieri4/ prior to the surgery. They talked about the fact that her doctors were unsure whether the neck condition had been brought on by her RA. Petitioner testified that she was out of work for two or three months due to this surgery, but did not require a light-duty assignment when she reported back to her position. On September 22, 2009, Petitioner was at work conducting a witness interview when her nose began bleeding uncontrollably. A fellow officer drove her to the emergency room. Another city employee came to the emergency room to make sure Petitioner got home safely. At the hospital, Petitioner was diagnosed with hypertension. She missed several days of work and was placed on medications to control her blood pressure. City Manager Tracey Barlow testified that he was contemporaneously aware of Petitioner’s hypertension. Petitioner requested no workplace accommodations for her hypertension. In early 2010, Petitioner was out of work for a time with uncontrolled vomiting and diarrhea. Petitioner’s physician, Dr. Beatrice Bratu, diagnosed her condition as stress-induced colitis. Petitioner testified that her treatments for the colitis lasted about three months but that she was back at work within a few weeks. On March 15, 2010, Personnel Director Donna Looney addressed the following email to Petitioner: We are very pleased to see you back and doing well! I am in receipt of a note from Dr. Bratu which indicated you may return to work. I want to stress that we understand the necessity for you to follow your doctor’s instructions. No restrictions are noted; therefore you are allowed to continue your regular duties. Please be advised that you have a continuing obligation not to work when you are feeling impaired (fatigue, weakness, pain, etc.). It is City policy that if you expect to have any adverse side effect while taking medication, you must inform your supervisor, and you are never to drive a City vehicle when you are feeling impaired. If I can be of any further assistance, please feel free to contact me. Petitioner requested no workplace accommodation related to her colitis. On June 16, 2011, Petitioner was involved in an altercation with a 28-year-old female detainee at the City police station. Several officers submitted witness statements about the incident and police station video cameras captured the essentials of the acts that occurred. The video recording did not include sound. The detainee, J.G., had been arrested for battery and was by all accounts heavily intoxicated and belligerent. J.G. asked to go to the bathroom. Petitioner let her out of the cell and escorted her to the bathroom. The video shows Petitioner standing in the open doorway of the bathroom, waiting for J.G. to finish. Petitioner told the police department’s internal affairs investigator that J.G. asked for tampons. Petitioner responded that the police department did not keep such items and that she would have to clean up as best she could with the materials available in the bathroom. J.G. replied that she could not put back on the shorts she had been wearing. She stated they were not her shorts and they were bloody. Petitioner told her that she had to put the shorts back on. At this point, the video shows the shorts flying out of the bathroom and landing behind Petitioner, who kicked them back into the bathroom and stepped into the doorway. J.G., stepping into camera range, picked up the shorts and threw them at Petitioner. The shorts hit Petitioner along her beltline. Petitioner took a step forward and struck J.G. in the face with her open right hand. J.G. pushed forward momentarily, but retreated into the bathroom as Petitioner continued to advance. At this point, Officer Eric Selvaggio entered the picture to assist. For a period of roughly forty seconds, all three people were inside the bathroom, invisible to the camera. The doors then opened, and the three emerged. The two police officers guided the handcuffed J.G. toward a point outside the range of the camera. J.G. wore only a shirt and underwear. The video next cut to an empty holding cell. Petitioner and Officer Selvaggio entered the picture, guiding the handcuffed J.G. toward the cell. J.G. continued to struggle with the officers. She dropped to the ground. The officers pulled her to her feet and pushed her into the cell. J.G. kicked at Petitioner. The camera angle made it impossible to see whether there was contact, but Petitioner stated at the time, and has consistently maintained since the incident, that J.G. kicked her in the stomach. Immediately after the kick, Petitioner attempted to push her way past Officer Selvaggio toward J.G. Petitioner drew back her right fist but Officer Selvaggio’s left arm blocked her from throwing a punch. He pushed Petitioner away and then secured J.G. in the holding cell. Though there is no sound on the video, it is clear that Petitioner and J.G. continued an animated conversation after J.G. was locked in the cell. Multiple police witnesses recalled Petitioner calling J.G. a “fucking bitch.” Petitioner and the other officers on duty went out the back door to discuss the situation. The video appears to show Petitioner performing a joking reenactment of her attempted punch at J.G. Officer Selvaggio stated to the investigator that Petitioner told him she might not charge J.G. for the incident, but he replied that under the circumstances it would be best if she did follow through with charges. Petitioner filled out a charging affidavit against J.G., charging her with battery on a law enforcement officer, in violation of section 784.07(2)(b), Florida Statutes. In her charging affidavit, Petitioner wrote as follows, in relevant part, verbatim: On June 16, 2011 at approximately 12:45 a.m., the defendant, [J.G.] was in police custody at the Edgewater Police Department on a battery charge from a previous police call. The defendant requested to use the bathroom and was escorted to the bathroom by me. The defendant was upset over being arrested, while sitting on the toilet, she kicked off her shorts and threw them out of the restroom stating that she was not putting them back on as they were not hers and were soiled from her menstrual cycle. I pushed the shorts back into the restroom with my foot and advised her she needed to put them back on, she screamed she was not going to. When the defendant rose from the toilet, she picked up the shorts and threw them directly into my face, striking me with the shorts. The defendant then pushed herself up against the sink and began calling me a bitch and telling me again she was not putting the shorts back on and she was leaving. I entered and attempted to get her out of the bathroom, she began to punch at me. Myself and Officer Selvaggio, who was standing nearby, grabbed hold of the defendant in an effort to get her out of the bathroom. The defendant struggled against us, before we got her to the floor and secured her. As we were getting her back into the cell, the defendant threw herself onto the bench and kicked out striking me in the stomach with her right foot. The defendant was left in the cell with no shorts on and in handcuffs . . . . It should be noted that Petitioner’s charging affidavit states that J.G. hit her in the face with the bloody shorts, when in fact the shorts hit Petitioner in the waist area. Petitioner failed to mention that she slapped J.G. in the bathroom or that Petitioner attempted to punch J.G. in the holding cell. Chief Arcieri testified that when he came in later that morning, he reviewed all of the reports filed since the previous day. Petitioner’s report caught his eye because it involved battery on a law enforcement officer inside the station house. He instructed his assistant to pull the video of the incident and make one copy for him and one for Petitioner. When he saw the video, Chief Arcieri notified the Florida Department of Law Enforcement (“FDLE”) and requested an investigation. Chief Arcieri testified that he went to FDLE because he thought criminal charges could ensue in the case and that he does not like to investigate criminal matters internally. He also ordered an internal affairs investigation, but placed it on hold pending the outcome of the FDLE investigation. On June 21, 2011, Petitioner was placed on paid administrative leave for the duration of the investigations. J.G. refused to cooperate with the FDLE investigators. Without a victim willing to go forward, no criminal charges could be brought against Petitioner. The FDLE investigation was dropped. The internal affairs investigation was completed on August 15, 2011. The investigator’s written report concluded as follows: Sgt. Winston did commit the act of perjury on an official felony charging affidavit. Sgt. Winston did in fact using her hand strike a prisoner in the face which caused her to fall back onto the sink. Sgt. Winston did reach her right arm over the shoulder of Officer Selvaggio in an attempt to strike a handcuffed prisoner which Officer Selvaggio was attempting to secure inside the holding cell. Sgt. Winston did violate Edgewater Police [sic] & Procedure by removing a prisoner, removing the prisoner’s handcuffs without another officer present and allowed the prisoner to use the restroom. Sgt. Winston violated Edgewater Policy & Procedure by entering the cell/booking area wearing both her issued side arm as well as her issued taser. Sgt. Winston violated Edgewater Police [sic] & Procedure by openly criticizing the policy of securing any and all weapons prior to entering the booking/cell area when prisoners are present. This was done openly in the presence of fellow officers. Sgt. Winston violated City Policy and Procedure 12.02 Inappropriate/Unacceptable Behavior. Sgt. Winston did violate Edgewater Police Department Policy & Procedure Excessive force not resulting in injury. Petitioner was represented by counsel for the Fraternal Order of Police (“FOP”) in defending herself against the allegations that resulted from the internal affairs investigation. Negotiations ensued between the City and Petitioner to resolve the matter short of litigation. A settlement agreement was reached and executed on August 24, 2011. Petitioner agreed to findings that some of the allegations were sustained.5/ Petitioner agreed to a demotion from sergeant to officer, effective August 19, 2011, with a resulting salary cut, and she agreed to attend anger management courses. On August 24, 2011, Chief Arcieri ordered Petitioner to report for duty at 6:00 a.m. the following morning. Petitioner called in sick and did not report for work on August 25, 2011. Ms. Looney, the personnel director, contacted Petitioner to find out why she was not reporting for work. Petitioner told Ms. Looney that she had sustained a back injury during the altercation with J.G. on June 16, 2011. Ms. Looney testified that this was the first she knew of Petitioner’s back injury. In a letter dated August 24, 2011, and received by Chief Arcieri on August 25, 2011, Petitioner’s personal workers’ compensation attorney wrote as follows, in relevant part: As you know, Ms. Winston is an 18 year employee with our [sic] agency who was recently in an altercation with a belligerent, drunken female on June 16, 2011. Ms. Winston was injured during the arrest but was placed on Administrative leave pending an internal investigation and the matter has not been reported as an injury as of yet. Ms. Winston was not aware that she had injured her low back immediately due to circumstances surrounding the altercation and the typical adrenaline response resulting from such an altercation. She thought she was just sore from being beat up a bit but as the weeks went by her condition worsened. A recent MRI has revealed two herniated discs in the lower back and Ms. Winston does require medical treatment for this work related injury. I am requesting at this time that the Agency immediately file a First Report of injury on behalf of Ms. Winston. This should be considered notice under Chapter 440 of the work related injury. In addition to the back injury, Ms. Winston now suffers from uncontrolled high blood pressure which is also disabling. Ms. Winston will be receiving a letter from her doctor indicating that she is unable to work due to her uncontrolled blood pressure at this juncture. That is also a work related claim under F.S. 112.18, more popularly known as the “Heart/Lung Bill.” This claim should also be processed and medical care should be provided as soon as possible. Please see that a First Report of Injury is completed with regard to this claim . . . . In a related claim, Ms. Winston also has a September 22, 2009 uncontrolled hypertension incident which resulted in hospitalization. As you know, the 2009 accident occurred while Ms. Winston was interviewing a sex crime victim. She was experiencing a severe headache and then had an uncontrollable nose bleed during the interview. The blood pressure reading at the time revealed her blood pressure was severely elevated and she was taken to the hospital. This incident should have triggered the immediate filing of a First Report of Injury under F.S. 112.18 as referenced above. For whatever reason, no First Report of Injury was filed but I am requesting that you file such a First Report of Injury immediately on Ms. Winston’s behalf and that you provide appropriate medical care for this condition . . . . Finally, Ms. Winston advises me that she has been under an internal investigation since the June, 2011 incident. This internal investigation appears to be entirely inappropriate given the circumstances surrounding this event and would appear to be part of an intimidation practice on the part of your Agency, which is in clear violation of F.S. 440.205. As I am sure you know, 440.205 prohibits the harassment, intimidation, retaliation, or termination of an employee by virtue of a workers’ compensation claim. Needless to say, Ms. Winston has numerous ongoing workers’ compensation claims and it appears that all of the harassment which she has been subjected to since the time the internal investigation was opened in this matter appears to be directly attributable to her ongoing workers’ compensation issues. It should also be noted that Ms. Winston is suffering from post traumatic stress disorder as a result of this recent altercation and all of the fallout related to same. As I am sure you are well aware, post traumatic stress disorder of this nature is also covered for First Responders under the auspices of F.S. 112.1815. I am requesting again that a First Report of Injury be filed relative to this issue and that appropriate medical care be provided. Ms. Winston is entitled to full pay as she was injured during an altercation with a violent individual. Full pay is appropriate pursuant to the provisions of F.S. 440.15(11). This means that she should be receiving a regular paycheck without deduction of sick or vacation bank time. Please see that the appropriate adjustment is made relative to payment of benefits and feel free to contact me with any question . . . . On August 30, 2011, Petitioner submitted three “Incident/Accident Information Forms” to the City in regard to her workers’ compensation claims. The first states that Petitioner suffered an injury to her lower back on June 16, 2011, when “an intoxicated combative prisoner . . . kicked me in my stomach just above my gun belt.” The second describes “stress” as the injury, dated June 28, 2011, caused by “constant harassment & belittled by Dave Arcieri.” The third form states that the date of injury was September 22, 2009, the injury was “blood pressure caused bleeding of the nose,” and describes the incident in terms similar to those used in the attorney’s letter of June 24, 2011. Petitioner testified that she still sees a psychiatrist once a month and goes to counseling every two weeks, but that she first sought mental health counseling in June 2011 because of problems with Chief Arcieri that dated from long before he became chief. She testified that “he would cuss me out, call me names, have people that were subordinates watching me and reporting back to him to make sure I didn’t breathe the wrong way.” Petitioner testified that Chief Arcieri’s animus toward her dated from her handling of a situation as a sergeant that led to the firing of an officer. A member of Petitioner’s squad reported to her that an officer in another squad stole property from a civilian during a traffic stop and then gave him the stolen item. Petitioner told the officer to file a report and drop the item into evidence and that she would meet with the other officer’s sergeant. The other officer’s sergeant required him to write a report. The officer lied in the report. Petitioner and the other sergeant brought the matter to the attention of their superiors. After an investigation, the department had no choice but to fire the officer. At a sergeants’ meeting a little while later, then- Administrative Sergeant Arcieri said that Petitioner was incompetent. If she had handled the situation differently, Sergeant Arcieri would not have had to fire a good officer. Petitioner asked how the department could tolerate a lying thief in its midst. Sergeant Arcieri told her that the officer could have been reprimanded in some other way. Petitioner testified that she was afraid of Chief Arcieri because of threats he made to her. He made it clear to her and to any other officer who thought about reporting something to Ms. Looney or Mr. Barlow that these officials would let him know and the snitch would pay a price. On September 27, 2011, Petitioner sent an email to Michelle Grenham, Chief Arcieri’s secretary, stating that she would be unable to attend the anger management class required by the settlement agreement because she was undergoing major surgery on September 28 at Halifax Hospital in Daytona Beach. Ms. Grenham forwarded the email to Chief Arcieri and Ms. Looney. Petitioner underwent surgery on September 28, 2011, to repair the herniated discs in her back. Petitioner testified that prior to the surgery, she had difficulty walking, standing, bending at the waist, reaching, and climbing stairs due to the pain in her back. She was able to drive a car but only for short distances. She did not have full control of her bladder and bowels. She could only sleep by putting herself in a fetal position then bracing herself with pillows to keep her in that position. Petitioner described the surgery as less than a complete success. She had numbness in her right leg, was unable to bend, squat, kneel or stretch, and could not sit for very long. She eventually required spinal injections and the surgical insertion of a morphine pump in her stomach for pain in her spine. The morphine pump was still in place at the time of the hearing. Physicians also implanted a spinal cord stimulator in her back. She regained control of her excretory functions but was unable to walk without the use of a walker for several months and a cane thereafter. She wore a back brace most of the time. On November 29, 2011, Petitioner and her husband met with Mr. Barlow and Ms. Looney to discuss Petitioner’s medical situation and when she might return to work. The meeting was held at Petitioner’s request. Petitioner testified that she came into the meeting wearing a back brace and using a walker. Her husband had to drive her to the meeting. Petitioner testified that she asked for the meeting to find out if she could get an extended leave until her physician cleared her to go back to work. She also wanted to discuss Chief Arcieri’s harassment and belittling of her. At the meeting, Petitioner told Mr. Barlow that she didn’t know how long the healing process would take or whether she would need additional surgeries. Petitioner testified that Mr. Barlow told her it might be in her best interest to retire, in light of her age and her many health problems, including RA, lupus, hypertension, and now the back injury. Mr. Barlow stated that it seemed to him that Petitioner didn’t have anything that was going to go away, and that anyone with a back injury would have issues with it for life. Mr. Barlow asked whether Petitioner really thought she could ever come back as a police officer. Petitioner could only say that she didn’t know. Petitioner testified that she told Mr. Barlow that she hoped to reach retirement as a police officer but that she was willing to take another position with the City if her physical limitations kept her from returning to her former position. Petitioner testified that she told Mr. Barlow that she had a doctor’s appointment on May 3, 2012, and that Mr. Barlow promised to give her a leave of absence until that appointment. Petitioner’s husband, Ricky Winston, testified that at the meeting, his wife explained her injuries to Mr. Barlow and complained about Chief Arcieri’s constant ridicule and badgering. Mr. Winston stated that Mr. Barlow had a calendar and some paper and a calculator that he was using to diligently figure out something. It turned out that Mr. Barlow was calculating the date of Petitioner’s full retirement, with the idea of carrying her on the City’s employment roster until then. Mr. Winston testified that he left the meeting with the understanding that Mr. Barlow had agreed to grant Petitioner unpaid leave until she reached retirement. Mr. Winston recalled that Mr. Barlow listed all of Petitioner’s physical problems and asked why she didn’t just quit. Mr. Winston testified that this question was devastating to his wife because she never had any intention of leaving the job she loved. Ms. Looney testified that she did not recall Mr. Barlow mentioning any of Petitioner’s physical infirmities aside from her back injury. She did not recall Mr. Barlow using a calculator or calendar during the meeting or stating a date for Petitioner’s retirement. Ms. Looney stated that the goal was for Petitioner to return from her next doctor’s appointment with a physician’s statement as to when she could return to work, whether at full or light duty. Ms. Looney’s assumption, based on Petitioner’s condition, was that Petitioner would return to light duty at first. Mr. Barlow explicitly stated that the City wanted Petitioner to return to work, either full or light duty. Ms. Looney testified that she believed everyone at the meeting understood that Petitioner wanted to return to light duty and that the police department would try to find light duty restricted work for Petitioner when her doctor cleared her to return. Petitioner would remain on unpaid leave until her next doctor’s appointment in January 2012, at which time the City would need to know whether she could return to work. Petitioner had given Ms. Looney light duty notes from physicians in the past, which led Ms. Looney to assume that Petitioner understood what she needed to provide to the City. Ms. Looney stated that Mr. Barlow did not promise to keep Petitioner’s job open until May 2012. Mr. Barlow recalled almost nothing about the November 29, 2011, meeting with Petitioner. The only relevant specific testimony he provided on the subject was a denial that he told Petitioner that she could have a leave of absence until May 2012. However, given his lack of recall as to anything else that transpired in the meeting, Mr. Barlow’s testimony on this single point is not credited. The testimony of Petitioner and her husband regarding the statements made at the November 29, 2011, meeting is credited as to Mr. Barlow’s discussing Petitioner’s retirement and as to the fact that a discussion of Chief Arcieri’s behavior toward Petitioner occurred. On these points, Petitioner and Mr. Winston were credible, consistent witnesses. Ms. Looney’s testimony on these points was confused and equivocal. Mr. Barlow’s testimony was of little use at all as he claimed to remember virtually nothing about the meeting. However, the testimony of Petitioner and her husband cannot be credited as to the matter of Mr. Barlow’s promise to give Petitioner a leave of absence until May 3, 2012. Even disregarding Mr. Barlow’s convenient memory on this point, Petitioner’s testimony and that of her husband diverged on the ground for the leave of absence. Petitioner testified that Mr. Barlow gave her until May 3, 2012, because that was the date of her next doctor’s appointment. Mr. Winston vaguely recalled that a date was mentioned, either March or May, and that this date was based on Mr. Barlow’s calculation of Petitioner’s retirement date. Petitioner’s claim that Mr. Barlow gave her until May 2012 is further undercut by documentary evidence. On January 26, 2012, Petitioner sent Ms. Looney an email that stated as follows, in relevant part: Call me when you get the chance, I have prescriptions to pick up and get fitted for another brace, but I am going to need to take a leave of absence for a bit. Dr. Vinas [Petitioner’s surgeon] is not releasing me for duty at this time . . ., I will be going into a new brace and will be going to pain management for epidural injections in my spine. I have attached the letter from Dr. Vinas, as well as a copy of the medications I will be taking. My next appointment with him will be May 03/2012 unless the Dr. at the pain management center feels I need further surgery. I have no idea what to do about taking a leave, is there paperwork I need to file or just send you a letter? I would rather speak to you so if you are not busy please call me . . . . If the November 29, 2011, meeting had settled the question regarding Petitioner’s leave of absence until her doctor’s appointment on May 3, 2012, there would have been no need for Petitioner to write to Ms. Looney on January 26, 2012, to request a leave of absence and to inform Ms. Looney that her next doctor’s appointment would be on May 3. This email is consistent with the assertion made in the City’s February 21, 2012, letter terminating Petitioner’s employment that Mr. Barlow agreed to maintain the status quo until January 23, 2012, the date of Petitioner’s next scheduled doctor’s appointment.6/ In an email to Ms. Looney dated February 9, 2012, Petitioner stated, “[A]t this stage nothing surprises me anymore, I mean after all, I was supposed to be back on my feet and rarin to go by January, well that, as you know did not happen.” Petitioner closed a separate February 9, 2012, email to Ms. Looney with the following: “I forwarded this to [Mr. Barlow] also, but if he does not get it please let him know and tell him I said to keep his chin up as he always does and thank him for allowing me to take a leave of absence. Hopefully it won’t be much longer.” These emails cast further doubt on Petitioner’s claim that she had obtained a leave of absence until May 3, 2012, from Mr. Barlow at the November 29, 2011, meeting. The greater weight of the evidence indicates that Petitioner was granted an unpaid leave of absence at the November 29 meeting, but only until her physician cleared her to return to work in some capacity, which Petitioner at the time anticipated would occur in January 2012. The evidence presented at the hearing showed that Petitioner had used her twelve weeks of leave under the Family Medical Leave Act (“FMLA”) as of November 16, 2011. She had exhausted all of her accrued leave as of December 9, 2011, when she formally began the unpaid leave of absence. On January 1, 2012, Petitioner began receiving the City’s long-term disability benefits. Ms. Looney signed a letter to Dr. Federico Vinas, dated January 25, 2012, that stated as follows: Ms. Winston has informed us she is a patient of yours. She has a follow-up appointment January 26, 2012 in association with surgery perform [sic] by you. First, and foremost, enclosed you will find the Authorization to Disclose Medical Information form executed by Ms. Winston along with her job description (Police Officer) setting out the physical requirement. JoAnne is a valued City employee and it would be greatly appreciated if you verify her ability to perform any or all of these duties. Please provide us with specific restrictions or requirements necessary not to aggravate her condition and advise as to exactly when she can be cleared for full police officer’s duties. Your expertise is [sic] this matter is greatly appreciated. Please contact me for any further information you may need. The City’s job description for “Police Officer” reads as follows, in relevant part: PRIMARY DUTIES AND RESPONSIBILITIES: (all duties may not be performed by all incumbents) Patrols designated area of the City to preserve the peace, to prevent and discover criminal acts, and to enforce traffic regulations. Answers calls and complaints involving drunkenness, domestic disputes, assaults and batteries, missing persons, fires, thefts, accidents and other felonies and misdemeanors. Is responsible for being knowledgeable of the crime problem in assigned work area and developing strategies to combat the problem. Develop contacts and provide intelligence reports to detectives and administration. Makes preliminary investigations at crime scenes or incidents, protects and collects physical evidence, locates witnesses, interviews witnesses, makes arrests, assists paramedics with basic and advance [sic] life support. Interviews complaints [sic] and witnesses to obtain information about crimes; assists in investigative work. Prepares evidence for issuance of complaints and testifies as a witness in both civil and criminal court, transports prisoners. Patrols school zones and high activity areas when assigned. Assists motorists, directs traffic, investigates accidents, recovers stolen automobiles, prepares detailed reports, advise of and interpret laws and ordinances and provides general information to the public. Cooperates and coordinates with other law enforcement agencies and other components of the Criminal Justice System. * * * Environmental Conditions: Outdoor environment with exposure to discomforting and dangerous working conditions Office environment with exposure to computer operations Physical exertion in lifting/moving items weighing up to 50 pounds Routine travel is required along daily assigned routes Occasional overnight travel is required Other physical/mental requirements may apply * * * DISCLAIMER STATEMENT This job description is not intended as complete listing of job duties. The incumbent is responsible for the performance of other related duties as assigned/required. The physical demands described herein are representative of those that must be met to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable qualified individuals with disabilities to perform the essential functions. On January 26, 2012, Dr. Vinas forwarded to Ms. Looney a “Work Status” form regarding Petitioner that provided as follows: The above captioned patient is being treated in this office. The patient’s current work status is as follows: ( ) This patient was seen for treatment in our office today, please excuse any absence from work or school. (X) Based on the job description provided by the patient, it is in this patient’s best interest to be excused from all work duties at this time. Restrictions The patient may return to or continue to work with the following restrictions: ( ) No lifting over pounds. ( ) No excessive/repetitive bending or twisting. ( ) No prolonged sitting/standing or stooping. ( ) No excessive/repetitive pulling or pushing. ( ) No excessive activity with arms above shoulder level/overhead activity. ( ) ALL OF THE ABOVE ( ) Specific instructions ( ) This patient does not work at this time, but has been instructed to limit household/daily activities so as to remain within the above noted restrictions. ( ) This patient’s most recent evaluation supports a return to normal, routine work activities. The effective date of this Work Status is from the date noted above until further notice. If the patient’s current position of employment can be modified or other position found that conforms to the above restrictions, then the patient may return to work. If these restrictions cannot be maintained, I would recommend that the patient be excused from work until further notice. The patient’s work status will be evaluated on a visit-to-visit basis. Ms. Looney testified that based on Dr. Vinas’ Work Status form and her own conversations with Petitioner, she concluded that Petitioner was unable to return to work in any capacity, full or light duty, as of January 26, 2012. At the hearing, Petitioner conceded that she could not have returned to work as a police officer on January 26, 2012. As set forth in Finding of Fact 54, supra, Petitioner notified Ms. Looney via email on January 26 that her next appointment with Dr. Vinas would be on May 3, 2012. In the same email, Petitioner asked for guidance on how to request a further leave of absence. The record of this proceeding includes a “Request for Leave of Absence” form in which Petitioner asked for a leave of absence commencing on January 26, 2012, with an “anticipated return date” of May 3, 2012. At the hearing, Petitioner could not recall filling out this form. In her testimony, Ms. Looney indicated that she filled out the form for Petitioner. In the space in which the applicant is to set forth reasons for the leave of absence, Ms. Looney wrote, “See attached e-mail,” which was Petitioner’s January 26 email to Ms. Looney. Mr. Barlow denied the request for a further leave of absence by signature on the request form. The form does not indicate when Ms. Looney filled it out or when Mr. Barlow denied the request. The record is also unclear as to when Petitioner was notified that the City was denying her a further leave of absence. As late as February 9, 2012, Petitioner was still sending chatty emails to Ms. Looney regarding her medical condition and treatment, even asking Ms. Looney and Mr. Barlow to stop by her house for a visit if they are ever in the neighborhood. The first clear notice of the denial was in the termination letter set forth in the next paragraph. On February 21, 2012, Ms. Looney wrote the following letter to Petitioner: On November 29, 2011 Tracey Barlow, City Manager, and myself met with you to discuss your medical situation. You informed us your next doctor’s appointment was January 23, 2012, at which time you were hoping to be taken out of your brace. We agreed your continued employment with the City would depend on your returning to full duty and I would send Dr. Vinas a letter requesting exactly when you would be cleared to return to full duty as a police officer. Following your exam on January 26, 2012, you emailed me Dr. Vinas’ work status form which states “based on the job description provided by the patient, it is in this patient’s best interest to be excused from all work duties at this time.” You also stated your next appointment is May 3, 2012 and asked about taking a leave of absence. JoAnne, as you are aware your FMLA was met as of November 16, 2011; all your workers compensation claims have been denied;7/ you exhausted all of your accruals as of December 9, 2011 and have been granted unpaid leave of absence for the previous 74 days, and as of January 1, 2012 you began receiving the city’s long term disability benefit. Therefore, due to all the facts stated too [sic] include uncertain ability to return to work date, the City Manager has denied your request for leave of absence exceeding 30 days. As a result, consider this formal notification that your employment with the City of Edgewater ends effective February 24, 2012. It is very important that you contact the Personnel Department to make the necessary arrangements for your continued insurance coverage and any outstanding benefits/obligations you have with the City. Petitioner testified that at the time the City terminated her employment, she was still using a cane at home and a walker when she went out. There is no question that Petitioner was unable to return to full duty as a police officer on February 24, 2012. It was Petitioner’s contention that she could have come back to work for the police department in some form of light duty, as she had been allowed to do in the past, or in one of several jobs that the City advertised as open during her convalescence. Petitioner further contended that Ms. Looney should have sent Dr. Vinas the job descriptions of all open City jobs rather than just the job description of a police officer. As to the last point, Ms. Looney testified that it was standard practice for the City to send the physician an employee’s current job description for an assessment of the employee’s ability to return to work. Petitioner was treated no differently than any other City employee in this regard. Petitioner testified that she asked the City to bring her back in another position, but could offer no documentary evidence to support that testimony. She claimed that part of the discussion at the November 29 meeting with Mr. Barlow and Ms. Looney was her hope to retire as a police officer, but her desire to remain a city employee in whatever capacity she could. Ms. Looney testified that Petitioner never asked to work in any position other than that of police officer. Petitioner sent an email to Ms. Looney on December 26, 2011, asking whether Ms. Looney had “heard from my Dr. as to when I might be able to come back light duty or anything else?” Petitioner claims that the “anything else” portion of the email indicated her desire to be placed in any available job. Ms. Looney read the email as merely asking whether she had heard from Petitioner’s doctor, not as a job request. Ms. Looney’s reading is not unreasonable given that this was the only document Petitioner produced that even arguably contained a statement asking to be placed in a position other than police officer. In any event, whether Petitioner asked to be placed in another position is not decisive because of the blanket statement in Dr. Vinas’ work status form. Ms. Looney testified that she was unable to place Petitioner in any position because Petitioner’s physician had clearly stated that it was in her best interest to be excused from all work duties. It was always the City’s understanding that Petitioner would return to work in a light duty function at first, but in fact Petitioner was not cleared to work at all. Ms. Looney might have followed up with Dr. Vinas and inquired whether Petitioner was capable of doing clerical work or some other form of indoor, deskbound job, but Petitioner has pointed to nothing that required Ms. Looney to do so in light of Petitioner’s failure to request that accommodation. Ms. Looney testified that it was the City’s practice to hold off on discussing positions outside of an employee’s department until the employee has actually been cleared for light duty. No evidence was presented that the City treated Petitioner any differently than it treated other employees in a similar position. Similarly, Mr. Barlow might have agreed to extend Petitioner’s unpaid leave of absence to May 3, 2012, but he was not required to do so. At the time of her termination, Petitioner had used twelve weeks of FMLA leave and had been granted an additional 74 days of unpaid leave at Mr. Barlow’s discretion. Petitioner had been out on some form of medical leave for approximately six months. The City did not seize on some early opportunity to dismiss Petitioner; rather, the City had anticipated that Petitioner would return to work as a police officer and waited until Petitioner had exhausted all avenues of leave except a second discretionary unpaid leave of absence before deciding to terminate her employment. Petitioner offered no credible evidence that her termination was based on her age, gender, disability or perceived disability or that she was treated differently than other employees due to her age, gender, or disability. The lone indication of possible bias was Mr. Barlow’s statement at the November 29, 2011, meeting that Petitioner should consider retirement in light of her age and poor health. This statement may be easily read as a kindly (if poorly phrased) expression of concern for Petitioner. By her own testimony, Petitioner was on good terms with Mr. Barlow and Ms. Looney right up to the time of her termination. Petitioner sent solicitous emails to them as late as February 9, 2012. Petitioner’s feelings were hurt by the statement, but no other ill effect followed. She was granted the requested unpaid leave of absence and remained employed by the City for three more months. Petitioner testified that she never considered herself disabled and prided herself on not calling in sick or requesting accommodations for her conditions. Ms. Looney, Mr. Barlow, and Chief Arcieri all testified that they did not perceive Petitioner as having a disability that required accommodation in the workplace, though they were all aware of at least some of her chronic conditions such as lupus, RA, and hypertension. Petitioner claimed that Chief Arcieri carried on something of a vendetta against her. Chief Arcieri testified that prior to the demotion his relationship with Petitioner was friendly. When Petitioner’s house was flooded, Chief Arcieri took off work to help Mr. Winston solder a broken shower valve. After Petitioner was demoted, the relationship was less friendly but always professional. Chief Arcieri testified that he has never yelled at Petitioner or any other employee. He never called her names. The harassment and belittling that Petitioner alleged never happened. Chief Arcieri denied any sort of gender bias, pointing to the successful efforts his department has made to recruit and hire female officers. He denied ever making a comment about Petitioner’s age. He testified that he never considered Petitioner disabled while she was on active duty, despite her lupus. Petitioner never requested an accommodation and Chief Arcieri never saw the need for an accommodation. Chief Arcieri testified that at the close of the internal affairs investigation of the June 16, 2011, incident, he declined to sustain some of the allegations in order to protect Petitioner from a referral to the Criminal Justice Standards and Training Commission (“Commission”) for further discipline. Chief Arcieri assented to a request by the FOP that he submit a letter to the Commission stating that he believed the demotion was sufficient and asking the Commission not to take further action against Petitioner. Petitioner’s testimony against Chief Arcieri consisted of general statements that he harassed and belittled her. The only specific incident Petitioner recounted as to the source of any possible animus the chief bore toward her involved the firing of the officer who stole something during a traffic stop. Even if Petitioner’s version of events is accepted, Chief Arcieri’s anger toward Petitioner had nothing to do with her age, gender, or disability. He called her “incompetent.” He was upset about the manner in which Petitioner performed her job, which he believed led to the needless dismissal of a good officer. Whether Chief Arcieri was right or wrong to be angry at Petitioner, he did not engage in an act of discrimination. Even if the factfinder were to accept Petitioner’s description of Chief Arcieri as a bully on the job, there is no evidence aside from Petitioner’s general comments to indicate that she was singled out due to her age, gender or disability. It is telling that in testifying about her fear of reporting the bullying, Petitioner stated, “I was afraid. I was very afraid. David Arcieri made it not only clear to me, but to any other officer who even thought about going to report to Donna Looney or to Tracey Barlow, ‘Don’t worry, they’ll let me know and you will pay the price.’” This statement might be evidence that Chief Arcieri is a bully, a poor leader of his department, or a bad administrator. However, the statement does not establish that Chief Arcieri discriminated against Petitioner in a manner prohibited by section 760.10, Florida Statutes. If anything, the statement indicates that Petitioner found herself in the same boat as the other officers in her department.8/ Petitioner was aware of and understood the City’s nondiscrimination and no-harassment policy, the operative language of which states: The nature of some discrimination and harassment makes it virtually impossible to detect unless someone reports the discrimination or harassment. THUS, IF ANY EMPLOYEE BELIEVES THAT HE OR SHE OR ANY OTHER EMPLOYEE IS BEING SUBJECTED TO ANY OF THESE FORMS OF DISCRIMINATION OR HARRASSMENT, HE OR SHE MUST REPORT THIS TO THE PERSONNEL DIRECTOR (386-424-2408) AND/OR CITY MANAGER (386-424-2404). If you are encountering a problem, please do not assume that the City is aware of it. The City is committed to ensuring that you have a pleasant working environment, and your assistance in bringing your complaints and concerns to our attention is a necessary first step. (Emphasis in original). The policy was included in the City’s personnel manual. Petitioner was provided with copies of the policy and amendments thereto several times during her tenure with the City. Petitioner conceded that, notwithstanding the policy, she did not report any incidents of harassment or discrimination to either Ms. Looney or Mr. Barlow while she was actively working for the City. The allegations of intimidation and harassment made by Petitioner’s attorney in his August 24, 2011, letter and Petitioner’s allegation of “constant harassment and belittlement by Dave Arcieri” in her workers’ compensation incident report were made only after Petitioner had been off the job for eight weeks. Further, the specific allegations made by Petitioner’s attorney claimed that the City was in violation of section 440.205, Florida Statutes, not that Chief Arcieri or any other City employee was discriminating against or harassing Petitioner because of her age, gender, disability, or perceived disability. The evidence produced at the hearing established that Petitioner sustained an injury to her back, most likely due to an altercation with a detainee on June 16, 2011, that necessitated surgery and a rehabilitation process that was not complete even at the time of the hearing in May 2014. The City carried Petitioner as an employee until all of her available leave had been used and then for another 74 days on an unpaid leave of absence. The City had no legal obligation to grant Petitioner an unpaid leave of absence but did so in the hope that Petitioner would be able to return to work in January 2012. As of the termination date of February 24, 2012, Petitioner had been away from her job for more than six months, had not been cleared by a physician to do work of any kind, and would not receive a physician’s clearance to work any sooner than May 3, 2012. The City could have consented to carry Petitioner even longer on an unpaid leave of absence, but it was not discriminatory for the City to make the business decision to terminate Petitioner’s employment. Petitioner offered insufficient credible evidence to refute the legitimate, non-discriminatory reason given by the City for the termination of her employment. Petitioner offered insufficient credible evidence that the City's stated reason for the termination of her employment was a pretext for discrimination based on her age, gender, disability, or perceived disability. Petitioner offered insufficient credible evidence that the City discriminated against her because of her age, gender, disability, or perceived disability in violation of section 760.10, Florida Statutes. Petitioner offered insufficient credible evidence that her dismissal from employment was in retaliation for any complaint of discriminatory employment practices that she made while an employee of the City.
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 finding that the City of Edgewater did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 30th day of January, 2015, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of January, 2015.
The Issue The issues in this case are whether each of the two respondents practiced contracting and electrical contracting without a license in violation of Subsections 489.113(2), 489.127(1)(f), 489.531(1), Florida Statutes (2004),1 and, if so, what penalty, if any, should be imposed pursuant to Subsections 455.228(1) and 489.13(3).
Findings Of Fact Petitioner is the state agency defined in Subsection 489.105(2) that is responsible for regulating the practice of contracting and electrical contracting pursuant to Subsection 455.228(1). Neither of the respondents has ever been licensed as either a contractor or an electrical contractor. On April 14, 2005, Mr. Adams and Bay Breeze Maintenance, LLC (Bay Breeze), practiced contracting and electrical contracting within the meaning of Subsections 489.105(3) and (6) and 489.505(9) and (12). Mr. Adams, as agent for Bay Breeze, submitted to Mr. Christopher King, as agent for Dome Flea Market in Venice, Florida, a written proposal to remodel part of the Dome Flea Market for a cost not to exceed $60,000. The proposed remodeling involved an upgrade of a snack bar into a grill and bar to be known as the Sawmill Grill. In relevant part, the proposed remodeling required performance of plumbing, carpentry, and electrical contracting, including the installation of electrical wiring and electrical fixtures. Between April 14 and May 20, 2005, Mr. King paid approximately $39,350 to the respondents for the proposed remodeling job. On April 14, 2005, Mr. King paid $8,000 and $1,500 by respective check numbers 7725 and 7726. On April 19, 2005, Mr. King paid $8,000 and $1,700 by respective check numbers 7730 and 7731. On May 3 and 20, 2005, Mr. King paid $5,150 and $14,000 by respective check numbers 7742 and 7770. The respondents never actually performed any remodeling work. Mr. Adams testified that Mr. King forged the written proposal and that neither Mr. Adams nor Bay Breeze submitted a proposal for the remodeling project. That testimony was neither credible nor persuasive. The financial harm to the public was substantial. Mr. Adams and Bay Breeze have not paid any restitution. Petitioner incurred investigative costs, excluding attorney fees and costs, in the amount of $844.07. The investigative costs are reasonable within the meaning of Subsection 489.13(3).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Mr. Adams and Bay Breeze guilty of committing the violations alleged in each Amended Administrative Complaint and imposing an aggregate administrative fine against Mr. Adams and Bay Breeze, collectively, in the amount of $10,000. DONE AND ENTERED this 12th day of March, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 12th day of March, 2007.