The Issue The issue in this case is whether respondent should be dismissed from her position as a teacher for the reasons given in the amended notice of proposed dismissal dated January 20, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Gwendolyn M. Beeks, was a classroom teacher employed by petitioner, Duval County School Board (Board). When the events herein occurred, respondent was employed at Pine Estates Elementary School in Jacksonville, Florida. Between July 9, 1994, and August 22, 1994, respondent had access to the bank account of the Pine Estates Elementary School Safety Patrol. Based on a complaint by parents of patrol members, an investigation of the bank account was conducted by the state attorney. On November 14, 1994, the state attorney filed an information against respondent charging her with violating Section 812.014(c), Florida Statutes, a third degree felony. Specifically, respondent was charged with the theft of approximately $1,600.00 from the Safety Patrol bank account. On December 15, 1994, respondent entered a plea of guilty to the charge. The circuit court withheld adjudication, placed her on eighteen months probation, required restitution, payment of costs and a letter of apology, and ordered that she perform fifty hours of public service. On January 20, 1995, the Board issued its amended notice of proposed dismissal. Respondent has been suspended without pay since that time.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Duval County School Board enter a final order discharging respondent as a classroom teacher for violating Sections 4(a) and (d) of the Duval County Teacher Tenure Act, as amended. The charge that she has violated Section 4(b) should be dismissed. DONE AND ENTERED this 11th day of December 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1995. COPIES FURNISHED: Dr. Larry L. Zenke Superintendent of Schools Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207-8182 Thomas E. Crowder, Esquire 600 City Hall 1300 East Bay Street Jacksonville, Florida 32202 Ms. Gwendolyn M. Beeks 9801 Baymeadows Road, Number 156 Jacksonville, Florida 32202 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on June 25, 2007.
Findings Of Fact Petitioner is an African-American male who was hired by Respondent in approximately September 2006. When hired, the name of the facility was Greenville Hills Academy. The nature of Respondent’s business was a residential facility which housed boys under an apparent contractual arrangement with the Department of Juvenile Justice. Petitioner was hired by Respondent as a tester, teacher of life skills, and also was assigned library duties. On December 5, 2006, Petitioner received a memorandum from George Hare, Lead Teacher, entitled “Areas of Concern.” The memorandum addressed Respondent’s areas of concern regarding Petitioner, including problems with administering intake and exit tests to clients, as well as Petitioner’s attitude with co- workers. At some point, Petitioner was placed in a welding class. It is his understanding that, in the context of his teaching certificate, he is not permitted to teach outside his field. Petitioner was not certified in welding. Because of that, he refused to teach the welding class or to give grades to students in the class. On March 21, 2007, Petitioner received another memorandum from Mr. Hare. The memorandum notes that the grades in question were not welding grades but grades for the life skills portion of the welding class. The memorandum concludes by placing Petitioner on suspension for two days for failure to perform a duty or to follow instructions. On March 26, 2007, Petitioner received a Memorandum from Jeff McSpaddin, Director of Grants and Projects, notifying him that his employment was being terminated for insubordination and continued nonperformance of assigned duties and responsibilities. Petitioner asserts that he was not properly trained by Respondent and that white employees were properly trained. Other than Petitioner’s general statements, there is no specific evidence in the record as to who these other employees were, their positions, or what type of training they may have received that he did not. Petitioner also asserts that he was not provided with another staff person who could cover for him when he went to the restroom. Because of the nature of the facility, teachers were not permitted to leave students in a classroom even while going to the restroom, and needed a staff person to cover in that instance. As a result, Petitioner could not go to the restroom when needed. He does not know, however, if other teachers were assigned staff to assist them in this regard. Other than the general allegations that he believed white employees received training that he did not and were generally treated better than he was, Petitioner did not identify any similarly situated employees of Respondent outside of his protected class who were treated more favorably. Moreover, there is no evidence that anyone of another race replaced him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of May, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 9th day of May, 2008.
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the notice of charges; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made: The Board is the appropriate agency authorized to operate, control and supervise the public school system for the Dade County school district. As such, it is responsible for the discipline of teachers employed by the public schools. At all times material to the allegations of this case, Respondent, Lester Johnson, was employed as a continuing contract teacher with the Dade County public schools. Respondent began his employment in August, 1975, and remained on contract until his suspension, August 23, 1989. The Respondent completed his undergraduate studies at Bethune-Cookman College and received a masters degree in administration from Nova University. Throughout his teaching career, the Respondent has taught social studies at the high school or middle school levels. On December 11, 1984, Respondent was observed for evaluation by Lois A. Lindahl, an assistant principal at Norland Junior High School. Subsequent to that observation, Ms. Lindahl conducted a conference with the Respondent to advise him of the three areas in which he had been rated unacceptable. Those categories were: preparation and planning, classroom management, and teacher- student relationships. Specifically, the administrator outlined complaints that had been received from students and parents concerning the Respondent's behavior. Among those complaints were the following: "picking on certain students in each class; ridiculing students; looking strangely at girls; challenging students." Respondent received a written summary of the foregoing conference on December 18, 1984, and, at that time, indicated he understood the concerns and would seek to improve his performance. On February 27, 1985, John Gilbert, principal at Norland, met with Respondent to review complaints which had been received concerning his performance. At that time, Respondent was warned that the administration had received complaints that Respondent was "too familiar looking at girls." Several students had alleged that Respondent had stood behind a female student while she gave a report and "looked her up and down." Additionally, Respondent was advised that his manner of observing the girls in shorts at basketball games was inappropriate. Respondent acknowledged the comments and indicated his willingness to correct the situation. Following that conference, there were no similar complaints through the end of that school year. At the conclusion of the 1984/85 school year, Respondent received an acceptable rating and was recommended for employment for the next year. During the 1985/86 school year Respondent was employed at Highland Oaks Junior High School. Harold Blitman was principal at Highland Oaks at that time and met with Respondent regarding "rumblings" he had received concerning Respondent's treatment of students. Respondent was advised that a mutual respect with students needed to be established and that students should not be subjected to disparaging remarks. Respondent was formally observed on February 18, 1986, and, as a result, received an acceptable overall rating with a recommendation for employment on June 3, 1986. During the next school year at Highland Oaks, Respondent was observed on two dates, September 15, 1986 and January 27, 1987. As a result of those evaluations, Respondent received an overall rating of acceptable with a recommendation for employment. Respondent's performance during the 1987/88 school year deteriorated. Consequently, Respondent was given a prescription for performance improvement to correct the deficiency noted by the school administration. Specifically, Respondent was instructed to comply with School Board rules regarding the treatment of students and was cautioned regarding his conduct toward female students. Incidents of Respondent staring at female students, looking at them "up and down," and requiring females to approach him more closely than they wished to, were deemed inappropriate conduct. Respondent was advised that familiar conduct between himself and female students caused embarrassment and made them feel uncomfortable. In February, 1988, a female student, Milissa Wege, complained that Respondent had called her "scum," had grabbed her forcefully by the arm, and ejected her from the classroom. A secretary observed a red welt on Ms. Wege's arm where Respondent had purportedly grabbed her. Respondent denied grabbing Ms. Wege, but a verbal confrontation did occur between them. The exact language of that conversation is not known. In April, 1988, Respondent approached a student named Sherri Goldenberg. In addition to the conduct described in paragraph 8 which was displayed toward Ms. Goldenberg, Respondent approached Ms. Goldenberg during a movie and placed his hand on her shoulder. Respondent then rubbed her shoulder in a caressing motion which made Ms. Goldenberg very uncomfortable. Subsequent to the events with Ms. Wege and Ms. Goldenberg, an investigation was completed and resulted in a letter of reprimand being issued to Respondent. He was instructed not to touch students, not to say demeaning things to students, and not to give female students any reason to believe he had some kind of sexual interest in them as that made them uncomfortable. Consequently, Respondent was given an unacceptable evaluation in category seven, professional responsibility. In May, 1988, Respondent met with Raymond Fontana, assistant principal at Highland Oaks, regarding an incident involving Cory Smith. Cory's mother had registered a complaint against the Respondent because he had allegedly used demeaning terms ("stupid," "boy") toward her son. Respondent admitted that he had said the words but claimed that he had not intended to demean the student. Respondent was advised to refrain from such conduct in the future. During Respondent's time at Highland Oaks, Mr. Fontana had a number of conferences with him, both formally and informally, to attempt to correct Respondent's treatment of students. Mr. Fontana urged Respondent to not touch students and to cease using derogatory or demeaning language toward students. During the school year 1988/89, Respondent was observed on three dates: October 5, 1988; November 22, 1988; and November 28, 1988. On May 30, 1989, Respondent received an acceptable overall evaluation and was recommended for employment. However, in June, 1989, an incident occurred which resulted in the Respondent being recommended for suspension with termination proceedings to follow. That incident involved a student named Roscoe Phillips. Respondent's class was in the library because his usual classroom, the auditorium, was being used for an assembly. Mr. Phillips was talking and being disruptive. Consequently, Respondent moved him to another seat to limit the student's interaction with the class. Mr. Phillips' poor conduct continued. Finally, Respondent told the student to be quiet, grabbed his mouth by pinching his lips together, and shoved his head backward. Incidental to the shoving motion, Respondent stepped on Mr. Phillips' foot. Right after the incident occurred, the student reported Respondent's conduct to the office. On August 23, 1989, the Board suspended Respondent from his employment with the Dade County public schools.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County, Florida enter a final order suspending the Respondent from his employment with the Dade County public school system for a period of one school year. Further, it is recommended that Respondent be required to participate in a continuing education program geared specifically to developing strategies for classroom management and the professional treatment of students. DONE and ENTERED this 27 day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of July, 1990. APPENDIX TO CASE NO. 89-4860 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE SCHOOL BOARD: Paragraphs 1 and 2 are accepted. With the exception of the last sentence of paragraph 3, that paragraph is accepted. The last sentence is rejected as hearsay. Paragraph 4 is accepted. It is not found, however, that the Board has presented sufficient evidence from which it must be concluded that Respondent caused the red marks on Ms. Wege's arm. It is accepted that she alleged that to be the case and that Respondent was counseled about it. Paragraph 5 is accepted. In the future, the Board attorney shall please refrain from such lengthy paragraphs. Paragraph 6 is accepted. The first two sentences of paragraph 7 are accepted. The remainder is rejected as irrelevant. Paragraph 8 is accepted. See, however, comment in paragraph 3 above. With regard to paragraph 9, it is accepted to the extent addressed in finding of fact paragraph 15; otherwise rejected as irrelevant, contrary to the weight of the evidence, or comment. Paragraph 10 is accepted to the extent that it correctly summarizes Mr. Blitman's testimony; however, as to its conclusion, it is rejected as contrary to the weight of the evidence. Respondent showed a bone fide interest in improving his performance and with sufficient guidance can do so. Paragraph 11 is accepted as an accurate summary of Dr. Gray's testimony; however, as to its conclusion, it is rejected as contrary to the weight of the evidence. See additional comment in paragraph 9 above. Paragraph 12 is rejected as contrary to the weight of the credible evidence. The weight of the evidence established that Respondent and Ms. Wege had a verbal confrontation. No finding is made regarding the alleged "grabbing" of her arm. To that extent Mr. Kennedy's testimony supports Respondent's version of the incident and has been deemed credible. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is accepted. Paragraphs 2, 3, 4, 5, and 6 are rejected as recitation of the notice of charges with argument, or contrary to the weight of the credible evidence. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the admission made by Respondent to the administrator. Paragraph 9 is rejected as contrary to the weight of the credible evidence. See finding of fact paragraph 15. COPIES FURNISHED: William DuFresne DuFRESNE AND BRADLEY 2929 S.W. Third Avenue, Suite One Miami, Florida 33129 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132 Dr. Patrick Gray Assistant Superintendent Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Respondent committed a discriminatory housing practice against Petitioner.
Findings Of Fact In March 2006, Ms. Burnette moved into Oak Gardens, which is a 55+ mobile home community in Sebring, Florida. Oak Gardens is adjacent to Silver Oaks Mobile Home Park (Silver Oaks), and both mobile home parks have the same management. Ms. Burnette rented a space for her mobile home from Oak Gardens. Her mobile home was infested with mold and lacked central heating and air conditioning. Approximately a month after Ms. Burnette moved into the community, she bought a second mobile home and moved into it. She also kept the second mobile home at Oak Gardens and paid rent to Oak Gardens for the space on which the mobile home was located. In March 2007, Ms. Burnette sustained injuries in an automobile accident. She has difficulty walking and does not see well. The evidence presented at the final hearing does not establish that Ms. Burnette had a handicap. After her accident, Ms. Burnette asked Mr. Charbonneau to be her caregiver. From March until October 2007, Mr. Charbonneau cared for Ms. Burnette, but did not stay overnight with Ms. Burnette. Some time in October 2007, Mr. Charbonneau started staying overnight with Ms. Burnette at Oak Gardens. Oak Gardens requires each of its residents to undergo a background check as part of an application for residency at Oak Gardens. The application is made on a form used by Oak Gardens. The background checks are done by an outside company. When Mr. Charbonneau began staying with Ms. Burnette on a full-time basis, management at Oak Gardens asked that Mr. Charbonneau fill out an application for residency and submit to a background check. Ms. Burnette gave some information to Oak Gardens concerning Mr. Charbonneau, but it was insufficient to comply with the application for residency. Ms. Burnette was advised that Mr. Charbonneau needed to fill out the application for residency that all potential residents completed. Mr. Charbonneau supplied the requested information. Within a month, a background investigation was performed, and Mr. Charbonneau was approved to live in the Oak Gardens community. Ms. Burnette claims that Oak Gardens refused to allow Mr. Charbonneau to live at Oak Gardens. When questioned at the final hearing concerning her claim, Ms. Burnette stated that the only time that Oak Gardens interfered with Mr. Charbonneau’s residency at the mobile home park was when management called the police. Mr. Charbonneau candidly admitted that, at the time the police were called to Oak Gardens, he and Ms. Burnett were arguing in the street. Ms. Burnette entered into an agreement with Oak Gardens to allow Oak Gardens to attempt to sell the mobile home which Ms. Burnette vacated, but still owned. Ms. Burnette does not feel that Oak Gardens made a good faith effort to sell the mobile home, but she did not demonstrate that the failure of Oak Gardens to sell her mobile home was because she had a handicap. She claims that Oak Gardens would not renew its agreement to sell the mobile home; however, at some point, Ms. Burnette wrote to Oak Gardens and advised that she no longer wanted to sell her mobile home and that she needed the unit for extra storage space. Additionally, the letter advised that Mr. Charbonneau was her caregiver. Ms. Burnette complained that she and Mr. Charbonneau were not allowed to attend a Thanksgiving dinner at one of the two clubhouses located at Oak Gardens and Silver Oaks. There were two homeowners’ associations for the communities. One homeowners’ association was sponsoring a private dinner, and one homeowners’ association was sponsoring a dinner at which anyone could participate. The evidence was not clear whether Ms. Burnette was attempting to attend the private dinner or the public dinner. However, the management at Oak Gardens was not involved in the dinners being sponsored by the homeowners’ associations and did not deny Ms. Burnette or Mr. Charbonneau entrance to the dinners. No evidence was presented to establish either Ms. Burnette or Mr. Charbonneau were barred from the Thanksgiving dinner based on a handicap. Both Ms. Burnette and Mr. Charbonneau had use of Oak Gardens’ laundry facilities, pool, and clubhouse. Ms. Burnette stopped paying rent for the lots on which her mobile homes were located. Management for the mobile home park provided notice to Ms. Burnette that she was delinquent in her rent payments. Ms. Burnette did not pay rent after being notified that rents were owed. The owner of the mobile home park, Wayne C. Rickert, filed a Complaint for Eviction of Tenant (Complaint) in the County Court in and for Highlands County, Florida, on June 24, 2008, against Ms. Burnette. The Complaint was assigned Case No. 08-376-CCS. On June 30, 2008, a copy of the Complaint and a Summons on Claim for Possession of Residential Premises and/or Ancillary Relief (Summons) was served on Ms. Burnette by attaching a copy to the premises where she resided. The Summons contained the following: Not counting the first day of service of this summons, YOU HAVE FIVE (5) DAYS IN WHICH TO SERVE WRITTEN DEFENSES, PURSUANT TO CHAPTERS 723 AND 51 OF THE FLORIDA STATUTES, CONCERNING YOUR EVICTION AS TENANT(S) AND TWENTY (20) DAYS IN WHICH TO SERVE WRITTEN DEFENSES CONCERNING CLAIMS FOR MONEYDAMAGES, IF ANY. You must file the original of your written defenses with the Clerk of the Court, either before or immediately after you serve the Plaintiff’(s) attorney. Ms. Burnette claimed that she was never served with a copy of the Complaint. Her testimony is not credible. On July 7, 2008, Ms. Burnette filed, with the Clerk of Highlands County Court, hand-written defenses to the Complaint, citing the case number and the date of service as June 30, 2008, at 6:35 p.m. On August 21, 2008, a Final Judgment was entered against Ms. Burnette in Case No. 08-376-CCS, requiring Ms. Burnette to relinquish possession of the lots to the Plaintiff. The Final Judgment further provided that, if Ms. Burnette failed to vacate within ten days of the date of the Final Judgment, a writ of possession would be issued to the sheriff, commanding the sheriff to put the Plaintiff in possession of the lots. A Writ of Possession was issued on September 15, 2008. On September 16, 2008, the Highlands County Sheriff’s Office served the Writ of Possession at the mobile home which Ms. Burnette had been occupying. The furnishings were removed from the mobile home, and possession of the mobile home was delivered to William Moore, the manager for the mobile home park. Oak Gardens gained title to the mobile home and sold it to a third party. No evidence was presented to establish that the eviction was based on discrimination. The eviction was for non- payment of rent. Oak Gardens has evicted other tenants for non- payment of rent. In August 2008, Mr. Charbonneau had a heart attack. The evidence presented did not establish that he was handicapped. Oak Gardens did not present evidence to establish that Ms. Burnette filed the Petition for Relief for a frivolous purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition for Relief and denying Respondent’s Petition for Attorney’s Fees and Costs. DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 12th day of June, 2009.
The Issue The issues to be resolved in this proceeding concern whether the Respondent, as a member of the City Commission of Oak Hill, Florida, committed a violation of Section 112.313(6), Florida Statutes, by allegedly threatening the police chief's employment status during a verbal altercation.
Findings Of Fact Charles Dean, the Respondent, was elected to the Oak Hill City Commission in the 2004 election and took office in January 2005. He is employed as a Senior Manager of Operations and Management for the Kennedy Space Center and also is a saddle and harness maker, owning C. Dean's Saddle Shop jointly with his wife, Carol Dean. As an elected public officer, the Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, which is the Code of Ethics for public officers and employees with regard to any acts or omissions committed during his tenure in office. The Petitioner, Ethics Commission, is an agency of the State of Florida charged with enforcing the provisions related to ethical standards for public officers and employees embodied in Part III, Chapter 112, Florida Statutes, and for imposing sanctions for violations thereof. The City Commissioners of Oak Hill, including the Respondent, are elected officials accountable to citizens at regular elections and are subject to recall as permitted by law and in accordance with the Oak Hill City Charter. The Commission also appoints heads of departments from among the sitting commissioners. The function of the department heads is to ensure that the department to which they are assigned is running efficiently in carrying out the Commission's directives. The Respondent was appointed as department head of the solid waste department. He had no authority over the police department. According to the Oak Hill City Charter, no individual commissioner, except the appointed department head for a particular department, is permitted to give directives or orders to any employee, except in cases of emergency. The Respondent, in his testimony, indicated his awareness of those limitations on his authority as a city commissioner in his contact with city employees. In his position at the Kennedy Space Center employed by NASA, the Respondent is a Senior Manager of utilities and supervises some 900 employees. He thus has professional awareness and experience in dealing with personnel matters such as employee suspensions, terminations and the like. The Complainant, Walter Zalisko, was hired by a majority vote of the City Commission to be Chief of Police for the City of Oak Hill. He was hired on July 29, 2004, before the Respondent's election to the City Commission. He was hired with the charge of elevating the professional standing and status of the City of Oak Hill Police Department. Soon after he took office in January 2005, the Respondent encountered difficulties in his relationship with Chief Zalisko. This occurred over the manner in which then Chief Zalisko handled the suspension and termination of Oak Hill City Police Department Officer Dee Williams. At a City Commission meeting on April 18, 2005, the Respondent took issue with the fact that Chief Zalisko had unilaterally suspended Officer Williams from her position, without pay, pending an internal audit, rather than bringing that decision before the City Commission for a vote. After the Respondent raised the issue at that meeting, the City Commission voted to reinstate Officer Williams's pay pending the internal audit results. In reality the Respondent objected to the procedure used by then Chief Zalisko against Officer Williams, rather than the actual decision to terminate the officer. In fact, the Respondent ultimately voted to terminate Officer Williams from the Oak Hill Police Department. In any event, after the April 18, 2005, City Commission meeting, then Chief Zalisko was angry that the Respondent had questioned his authority to suspend Officer Williams without pay in front of the City Commission. While walking back from the City Commission meeting Chief Zalisko called the Respondent a derogatory name and stated to other police officers that he was "going to get him." Apparently various members of the community communicated to the Respondent that Chief Zalisko was very upset with him and was "having him watched." Officer Winston of the police department came to the Respondent's shop and told the Respondent that the Chief was "out to get him and was watching his shop and having officers take photographs of cars parked at his shop." Sometime in June 2005 the Respondent received a telephone call from an anonymous caller advising him that Chief Zalisko was watching his saddle shop and having police officers take photos of cars parked there. This person was later revealed to be Sergeant Guy Grasso who replaced Zalisko as the current Chief of Police for Oak Hill and who testified in the hearing. Chief Grasso contacted the Respondent after Chief Zalisko ordered officers, including Grasso, to keep cameras in their police cars and photograph and ticket cars parked illegally at the Respondent's shop.1/ As shown by Advocate's Exhibit A-3 (A-F) a series of photographs (A-F) of cars parked at the Respondent's business, photographs indeed, were taken. Although Chief Zalisko initially denied that he had done so, or ordered it done, he also testified that he took some of the photographs, but thought that Officer Ihnkin or Officer Winston had taken the remainder of the photographs. In any event, both Officer Ihnkin's and Chief Grasso's testimony as well as that of Chief Zalisko, shows that photographs of cars parked in front of the Respondent's shop were taken, and implicitly would only have been taken upon then Chief Zalisko's order. Officer Ihnkin testified that Chief Zalisko told police officers prior to October 11, 2005, to write tickets for cars parked in front of Dean's Saddle Shop and to take photographs of the cars there. The current Chief of Police, Guy Grasso, also testified that before October 11, 2005, then Chief Zalisko had ordered all officers to take photographs of cars parked at the Respondent's saddle shop business and to give tickets to cars parked there. Chief Zalisko had discussions with members of the police department concerning the application of Section 316.945, Florida Statutes (the parking violation statute) as it pertained to the Respondent's shop and its location. An issue arose about the location of a stop sign at the corner of U.S. 1 and East Halifax Avenue, concerning the legality of cars parked in relation to the sign. Officer Ihnkin testified that he pointed out to Zalisko that the statute required that a car be parked 30 feet on the approach to the stop sign (presumably a minimum of 30 feet distance from the sign) and that cars parked on U.S. 1 in front of the saddle shop were actually behind the stop sign so they could not be on the approach to it and were therefore legally parked. Officer Ihnkin relates that Chief Zalisko opined that any car parked in front of the saddle shop was illegally parked and should be cited. Both Chief Grasso and Officer Ihnkin's testimony regarding the conversations they had with Chief Zalisko about the applicability of the above statute to parking in the vicinity of the saddle shop is corroborated by Chief Zalisko's opinion that it is not legal to park in front of Dean's Saddle Shop on U.S. 1 or on the East Halifax side of the shop. There were four or five incidents before October 11, 2005, while the Respondent was at his shop, when he was contacted by officers from the police department about cars parked in front of the shop. There was never an incident where the officer was rude to him, the contacts were friendly and the Respondent always voluntarily had the cars moved. Kelly's Bait and Tackle Shop and Shell Gas Station is a nearby business which has a stop sign on U.S. 1 next to the business. The Respondent observed cars parked around that stop sign and the gas station actually dispensing gas to cars which technically were on the right-of-way of U.S. 1. Neither the cars nor the business was ever cited or told to move the cars, according to the Respondent. Whether or not this was true the Respondent felt that he was being harassed by Chief Zalisko by having his business targeted and not other businesses. The fact that people were telling him, rightly or wrongly, that he was being watched by the police chief and that customers were having to move their cars from his shop, when other businesses were not being so closely watched, or supervised by the police department fed the Respondent's feelings of harassment on the part of then Chief Zalisko. On October 10, 2005, a City Commission meeting was held at which the Respondent once again took issue with the way Chief Zalisko handled the promotion of Sergeant Shaffer to lieutenant. The City of Oak Hill operates by resolution, and before anyone could be promoted to the position of lieutenant the city needed to pass a resolution creating that position. On October 7, 2005, before the City Commission had voted on whether to create the lieutenant's position, Chief Zalisko issued a press release announcing that Officer Shaffer had been promoted to lieutenant. The Respondent took issue with Chief Zalisko at the City Commission meeting for announcing to the newspaper that the promotion had been made, when in fact it had not. Chief Zalisko became angry with the Respondent and raised his voice on that occasion. The Respondent actually approved having Officer Shaffer promoted to lieutenant, but was at odds at Chief Zalisko over the procedure that Chief Zalisko had used. Chief Zalisko's anger at the Respondent from the events of the October 10th City Commission meeting is corroborated by Advocate's Exhibit 6, in which Zalisko describes the Respondent's conduct at the October 10th meeting as "ruining Lieutenant Shaffer's day" by unnecessary "show boating." On October 11, 2005, Officer Ihnkin observed a car parked in front of Dean's Saddle Shop. He thought it might be illegally parked, but rather than issue a citation he went into the shop and asked the owner of the car to move it, which the owner readily did. Officer Ihnkin stated that the sales lady, who actually was the Respondent's wife, stopped him while he was in the store and accused him and the police department of harassing them and interrupting her sale. Mrs. Dean and witness Charlie Haynes, a good friend of the Dean's niece and nephew, both testified that the officer behaved in a gruff rude manner toward Mrs. Dean. Officer Ihnkin denied being rude or unprofessional or that he raised his voice. Mrs. Dean testified that she primarily runs the shop, with some help from her husband. She had never encountered any problems with parking around the shop, according to her testimony, until the Respondent questioned Chief Zalisko about policy and procedures regarding the Williams suspension incident. After that she maintains police officers would come to the shop and tell customers to move their cars. The customers complied with it. Mrs. Dean maintains that during that same time period no other businesses in the vicinity were having parked cars moved. She also states that she observed Chief Zalisko sitting in his patrol car watching her business with binoculars. These incidents purportedly occurred between February and October of 2005. In any event, at the end of the October 11, 2005, incident in the store, Office Ihnkin left the saddle shop after the customer complied with his request to move the car without issuing a traffic citation or a written warning. Later that afternoon the Respondent came to the saddle shop after work. Mrs. Dean explained what had happened and told the Respondent that the officer had been rude. The Respondent told his wife that he would find out about the situation and went to the police station. Upon arriving at the Oak Hill Police Station, the Respondent confronted Chief Zalisko in his office regarding the incident at Dean's Saddle Shop earlier that day. The Respondent asked the chief why the officer had been rude to his wife and the chief responded by telling him that the officer had not been rude. During the conversation regarding the incident with Officer Ihnkin at the saddle shop, the Respondent told Chief Zalisko that "you work for me." Chief Zalisko maintains in his testimony that he responded that he did not work for the Respondent, but that he worked for the city commission as a whole. The Respondent went on to criticize the way the chief was running the police department and told the chief that he did not feel that he was following proper procedures. During the course of the heated conversation of about 10 minutes duration the subject of the promotion of Lieutenant Shaffer came up once again. The Respondent indicated his displeasure at the way Chief Zalisko had handled the matter of the promotion of Lieutenant Shaffer. The Respondent maintains that he did not raise the issue of Lieutenant Shaffer's promotion during this conversation because he did not want to upset Lieutenant Shaffer once again as had been done the night before at the city commission meeting. Lieutenant Shaffer was present during this conversation between the Respondent and Chief Zalisko in the police station. Regardless of who brought up the Lieutenant Shaffer promotion issue again, it is undisputed that in the conversation the Respondent made the comment, "I am coming after your job, and I am going to work hard to get rid of you." This comment was made near the end of the conversation when the Lieutenant Shaffer promotion was being discussed. The evidence does not reflect that the Respondent ever approached Officer Ihnkin concerning the way that he felt the officer had treated Mrs. Dean at the saddle shop on the day in question. The evidence does not indicate that he directed Chief Zalisko to do anything regarding parking citations or violations at his shop. He never issued any orders or directives to Chief Zalisko during that conversation at the police station. It is undisputed that both Chief Zalisko and the Respondent were speaking to each other with raised voices, arguing during this conversation. The conversation or argument lasted approximately 10 minutes whereupon the Respondent left the police station. The Respondent admitted in his testimony at final hearing that he made the comments to Chief Zalisko in both his official capacity as a city commissioner and in his capacity as a private citizen. Chief Zalisko in his testimony stated that he felt uncomfortable with the way the Respondent approached him during the argument in the police station. He testified that it was the second time the Respondent has threatened his job and he felt that he could go through with the threat and that he was misusing his position "for some personal gain to his saddle shop." Chief Zalisko further acknowledged that the Respondent never told him not to enforce the traffic laws at his shop, or that everybody should be ticketed, but the chief testified that the fact that the Respondent was complaining to him in his office and the fact that he was a commissioner sent him a signal that the Respondent was looking "for some preferential treatment." It is clear that during the conversation the Respondent told the chief that the chief "worked for him" in the context of the Ihnkin incident. It is also clear that the Respondent knew at the time of the confrontation that he should not use his official position to confront Chief Zalisko and threaten his job, regardless of whether it was about the parking situation or what the Respondent believed about the way the chief managed the police department, including the Lieutenant Shaffer promotion incident. The Respondent understood the limitations and restrictions of both the city charter and the code of ethics. City commissioners are accountable to the citizens and the Respondent was the appointed head of the Solid Waste Department therefore he had no authority to issue orders or directives concerning the police department. Parenthetically, there is no evidence that he actually did that. Under the city charter no individual commissioner, except the commissioner who is an appointed department head, may give directives to employees of a commissioner's assigned department. The Respondent sought to justify his behavior on October 11, 2005, by alleging that he felt that Chief Zalisko had been harassing him. The totality of the evidence of record indicates that there is some validity to the contention that Chief Zalisko was harassing the Respondent, even in the face of the fact that no actual tickets or warnings were issued for parking violations adjacent to the Respondent's saddle shop. The evidence, however, clearly and convincingly demonstrates that the Respondent, while a member of the Oak Hill City Commission, whet to the office of the police chief and threatened the police chief concerning his employment status, after a police officer had notified the Respondent's wife of a parking violation in front of their business, and his wife had conveyed to the Respondent the message that the officer had been rude to her. The Respondent, both as a private citizen and as a city commissioner, made direct threats of retaliation against Chief Zalisko concerning his employment.
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 the arguments of the parties, it is, therefore, RECOMMENDED that a final order and public report be entered by the Florida Commission on Ethics finding that the Respondent Charles Dean, violated Section 112.313(6), Florida Statutes (2007), and imposing a civil penalty of two hundred dollars. DONE AND ENTERED this 31st day of January, 2008, 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 31st day of January, 2008.
The Issue The issue in this case is whether Respondent, Laurel Oaks Apartments ("Laurel Oaks"), discriminated against Petitioner, Lawrence Jacobs, Jr., on the basis of his race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner is a 22-year-old African-American male. At all times relevant hereto, Petitioner was residing at Laurel Oaks in Temple Terrace, Florida. Petitioner co-habited at Laurel Oaks with a woman, Sade Newton. Petitioner and Newton were expecting a child during the time they resided at Laurel Oaks. Laurel Oaks Apartments is the Respondent. It is a large apartment complex comprised of several buildings. Approximately 70 to 75 percent of the residents of Laurel Oaks are minorities. Petitioner moved into Laurel Oaks on or about November 3, 2009. Petitioner and Newton signed an Apartment Lease Contract (the "Lease") on that date. Petitioner was assigned apartment number 8704 (the "Initial Unit") at a rental fee of $589.00 per month. The term of the Lease was one year. Almost immediately upon taking possession of the Initial Unit, Petitioner began to have some sort of confrontation with a neighboring tenant and his family (hereinafter referred to as the "Neighbor"). Specifically, Petitioner felt that the Neighbor's children were too loud, and that they were disrupting Petitioner's quiet enjoyment of his residence. Petitioner and the Neighbor argued numerous times, and Petitioner reported these arguments to Respondent. Upon receiving Petitioner's complaints about the Neighbor, Respondent offered to let Petitioner out of his Lease or move him to another apartment. In fact, Respondent agreed to allow Petitioner to move into an upgraded apartment with no increase in the rental fee. Respondent also agreed to waive the transfer fee normally associated with moving from one apartment to another. Petitioner believes that Respondent was dilatory in helping him move to a different apartment. However, there is no evidence to support that contention. The assistant community manager, Makell, indicated that she provided Petitioner with four possible options for moving. Some of the units she offered were undergoing painting or repairs and were not immediately available. Makell remembers only one telephone call from Petitioner concerning his potential interest in one of the available units. Petitioner remembers calling regularly to inquire about the units. Makell also remembers Petitioner ultimately asking for a specific apartment, number 8716 (the "Second Unit"). Petitioner and Newton signed a new lease (referred to herein as the "New Lease") for the Second Unit on February 8, 2010, and moved in on that date. The New Lease was also for a term of one year. The Second Unit was an upgrade from the Initial Unit, but Petitioner was not charged a higher rental fee. The Second Unit was, inexplicably, directly "across the way"1 from the apartment where the Neighbor resided. The evidence as to why Petitioner chose that unit or why he agreed to move into that unit was contradictory and confusing. Nonetheless, it is clear that Petitioner at some point voluntarily moved into the Second Unit. Shortly after Petitioner and Newton moved into the Second Unit, they had some sort of domestic squabble. Newton was pregnant with Petitioner's child, and there were some tensions between them. As a result of the squabble, someone called the police. When the police arrived, they talked with Petitioner and Newton for about an hour and then arrested Newton for domestic violence. Petitioner believes Newton had to be arrested pursuant to police policy, i.e., once the police are called to investigate domestic violence, they have to arrest one of the parties. There was no persuasive, non-hearsay evidence to confirm that such a policy exists. All charges against Newton were apparently dropped. However, the significance of Newton's arrest is that it constituted a breach of the New Lease. Paragraph 28 of the New Lease prohibits conduct which infringes on the quiet enjoyment of the apartment complex by other tenants. As a result, Laurel Oaks gave Petitioner and Newton a "Seven Day Notice of Noncompliance Without Opportunity to Cure" (the "Notice"), which effectively evicted them from the Second Unit. Petitioner does not deny that the New Lease was breached; he admitted so in a letter to Respondent dated May 12, 2010, about a week after the domestic violence arrest occurred. In his letter, Petitioner asks Respondent to reconsider its decision to uphold the provision in the New Lease and to rescind the Notice. Despite Petitioner's plea, Respondent stood by its Notice, and Petitioner was forced to move out of the apartment. At some point thereafter, Petitioner and a representative from Laurel Oaks did a "walk-through" of the Second Unit. A tenant who defaulted under a Laurel Oaks lease would normally be liable for any damages and for all rent that came due until the unit was re-leased. Laurel Oaks suggested at the time of the walk-through that Petitioner would receive a prorated refund for the current month (May) and would not be charged for the remainder of the Lease term. However, Petitioner, thereafter, got into an argument with the community manager, Heckinger, and Heckinger decided to pursue all allowable charges against Petitioner. As a result, when Petitioner received his ultimate receipt from Laurel Oaks, it included a demand for payment in the amount of $589.00 for termination of the Lease, forfeiture of Petitioner's $99.00 security deposit, and the remaining May rent amount ($114.00). Petitioner believes Heckinger and other employees of Laurel Oaks did not take him as seriously as other tenants. He believes Heckinger was "nasty" to him, but not to other tenants. Petitioner believes his request to move to a different apartment was not responded to in a timely fashion. Petitioner provided no evidence that any other residents were, in fact, treated differently than he was treated. There was no evidence presented that persons of color, including Petitioner, were treated differently than similarly situated persons. There was no persuasive evidence that any person affiliated with Laurel Oaks treated Petitioner badly or discriminated against him in any fashion. Laurel Oaks actually did more for Petitioner than was required or mandated by the Lease or by law. Petitioner was given the benefit of the doubt, was provided extra accommodation for his problems, and was treated appropriately. Petitioner also admitted that he did not believe the Laurel Oaks employees were racist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Lawrence Jacob, Jr.'s, Petition for Relief in full. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of December, 2010.
The Issue The issue presented is whether Petitioner timely terminated Respondent's employment, as set forth in the Administrative Complaint filed in this cause.
Findings Of Fact On July 22, 1997, Respondent completed his application for employment as a teacher for the school year 1997-98. He was hired to be the coordinator for the English for speakers of other languages (ESOL) program at Western Pines Community Middle School. That position is a teaching position. Western Pines is a new school, opening in time for the 1997-98 school year. Principal Peggy Campbell determined she needed extra assistance for the school to be ready in time for the students. As with any new school, floors needed to be mopped, windows needed to be washed, supplies needed to be unloaded and stored, desks needed to be placed in the classrooms, books needed to be stamped, and many other things needed to be done to get ready. She requested volunteers from the staff she had hired, and Respondent agreed to help prepare the school for the arrival of students. At the time that volunteers were obtained and began working, Campbell did not have approval to pay any of the volunteers. She subsequently obtained approval. Respondent began working as a volunteer on August 1, 1997. He labeled, stamped, and shelved books. He worked a total of 7 1/2 days. Afterward, he was given a one-time paycheck for those 7 1/2 days based upon a daily rate of pay. In computing the amount to pay him, Petitioner calculated a daily rate for Respondent by dividing his annual salary by 196, the number of duty days for teachers within Petitioner's school system. On August 13, 1997, all teachers reported for duty for the 1997-98 school year. August 13 began the five-day pre-school period for instructional employees, a time during which all teachers attend meetings and prepare for the arrival of students. On that date, Respondent began his professional duties as an instructional staff member of Petitioner's school system. That date was also the effective date for Respondent's instructional position. Starting on August 13, 1997, Respondent's duties were substantially different than they were prior to that date. Prior to August 13, 1997, Respondent's work was akin to that of an incidental day laborer. August 20, 1997, was the first day of classes for students within Petitioner's school system. On January 9, 1998, Principal Campbell met with Respondent and gave him a letter advising him that she was recommending to the superintendent the termination of Respondent's employment, effective January 15, 1998. She told him not to report to the school for those interim days but that he was assigned to his home for those additional days for which he would be paid. On February 21, 1998, the School Board ratified that termination, effective January 15, 1998, as part of its consent agenda at a regularly-scheduled Board meeting. At the time Respondent was notified he would be terminated and at the time of the School Board meeting, annual contracts for that school year had not yet been prepared. There is a normal delay with finalizing annual contracts due to extended negotiations with the teacher's union once the budget is final.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that Respondent's employment was terminated within his probationary period. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 28th day of May, 1999. COPIES FURNISHED: Dr. Joan Kowel, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Thomas E. Elfers, Esquire JenniLynn Lawrence, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33401 Ronald G. Meyer, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302
The Issue The issue in this case is whether Respondent, Oakmonte Village, committed an unlawful employment practice against Petitioner, Paulette 1 All statutory references are to Florida Statutes (2019). Relevant provisions of chapter 760 have been unchanged since 2015, prior to any allegedly discriminatory acts. Lewis (Ms. Lewis or Petitioner), on the basis of her race, color, national origin, marital status, religion, age, and/or in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact Royal Senior Care Management is a healthcare facility campus operating in Lake Mary, Florida. The campus includes an independent living facility, an assisted living facility, and Oakmonte Village, which is a stand- alone memory care facility that caters exclusively to residents suffering from Alzheimer’s disease and dementia. Ms. Lewis is a 52-year-old black woman. She self-identifies as light- skinned. Ms. Lewis testified that her skin color is lighter than the other black employees who worked for Oakmonte Village. She was born in Jamaica. She is married and a Christian. 3 On January 2, 2020, Oakmonte Village filed Respondent’s Response to Notice of Ex Parte Communication and Motion to Strike (in part), directed to Petitioner’s first post-hearing filing. The motion sought to strike/disregard all references in Petitioner’s filing to a settlement agreement. The motion was granted. References to a settlement were not considered in the resolution of this case. At all times relevant to Ms. Lewis’s complaint, Mr. Jones was the director of Resident Care at Oakmonte Village. Mr. Jones is a 42-year-old black man. He is of American and Jamaican descent. He is currently married, but was not married at all times relevant to the allegations in Ms. Lewis’s complaint. Mr. Jones’s current wife, who was his then romantic companion, is half-Jamaican. Mr. Jones reports directly to Mr. Marshall. Mr. Marshall is the director of Oakmonte Village. Mr. Jones and Mr. Marshall conducted a joint interview of Ms. Lewis for the position of resident caregiver. Mr. Jones and Mr. Marshall, collectively, agreed to hire Ms. Lewis.4 Ms. Lewis began working for Oakmonte Village in November 2017, starting as a part-time resident caregiver. On December 10, 2017, her employment status was changed from part-time to full-time. Ms. Lewis was a resident caregiver throughout her time with Oakmonte Village. By all accounts, Ms. Lewis was an excellent caregiver, with no marked deficiencies in her job performance. Oakmonte Village hires both resident caregivers and medication technicians to care for its residents. At the time Ms. Lewis was hired, resident caregivers were paid $9.00 per hour and medication technicians were paid $10.00 per hour. Ms. Lewis was hired at a rate of pay of $9.50 per hour, more than a typical resident caregiver. She was not hired as a medication technician because she did not have the required certification. Oakmonte Village offers medication technician training to its resident caregivers when it has a need for more medication technicians. Oakmonte Village also offers recertification training to its certified medication technicians. These trainings are conducted at Oakmonte Village by an 4 Ms. Lewis testified that Mr. Jones and Mr. Marshall were aware that she was Jamaican when they hired her. Ms. Lewis also testified that she believed Mr. Jones desired to be Jamaican and had an affinity for Jamaican culture. These facts offered by Ms. Lewis are inconsistent with her claim of discrimination based on her national origin. affiliated company. If a resident caregiver successfully completes certification training, he or she is reclassified as a medication technician and given a raise. Not all resident caregivers can be trained upon request. Certification training is provided by Oakmonte Village based on facility needs. Oakmonte Village typically requires two to three medication technicians per work shift. If Oakmonte Village loses a medication technician, because of a resignation or shift change, it fills the vacancy with a new medication technician by training and certifying a resident caregiver. Employees are not allowed to enroll in the medication technician certification training on their own; they must be nominated by Mr. Jones. There are no strict requirements for the nomination. Mr. Jones testified that he makes the nomination decision based on the employee’s work ethic, skills, and level of responsibility, among other things. Mr. Jones also considers the facility’s needs. Ms. Lewis testified that, upon hire, Mr. Jones told her that in 60 days, she would be promoted to a medication technician. Mr. Jones and Mr. Marshall credibly testified that they tell all new employees that a medication technician certification is a potential means to get a pay increase, but no assurance is given, because none can be given, that certification will definitely be offered to a particular caregiver on a particular timetable. It is based on facility need and that need changes. Ms. Lewis was not nominated to complete the medication technician certification. In April 2018, Ms. Lewis saw a list of caregivers who were nominated by Mr. Jones to complete the certification. She added her name to the list, which was inappropriate because she was not authorized to nominate herself. When Mr. Jones noticed the list had been revised, he removed Ms. Lewis from the list. As Ms. Lewis was not nominated to attend the training, she was, essentially, prevented from getting a raise. Ms. Lewis testified that Oakmonte Village’s failure to nominate her for the medication technician training in April 2018 was based on a discriminatory act. Ms. Lewis offered no evidence to prove that she was treated differently, with respect to a nomination to complete a medication technician certification training, than any other similarly situated employee outside of her protected classes, or that she was not nominated because of her race, color, national origin, marital status, religion, and/or age. Newly hired Oakmonte Village employees are on probation for 90 days. Oakmonte Village directors are strongly encouraged, but are not required, to formally discuss an employee’s job performance after the 90-day probationary period. After employees successfully complete the 90-day probationary period, they are considered permanent employees. Ms. Lewis testified that during her time at Oakmonte Village, she was not given a three-month or six-month evaluation. A formal evaluation is not required at the three-month mark. Oakmonte Village conducted an informal evaluation of Ms. Lewis after her 90-day probationary period (at the three- month mark). Mr. Marshall testified that he informally discussed Ms. Lewis’s job performance with Mr. Jones and that they agreed that Ms. Lewis was doing a “fantastic” job and warranted permanent status. As a result, Ms. Lewis was removed from probationary status and made a permanent employee. It is undisputed that Ms. Lewis continued to work at Oakmonte Village for several months after her 90-day probationary period ended. Oakmonte Village does not conduct a six-month evaluation. After the three- month (90-day) evaluation, which may be formal or informal, the next evaluation that Oakmonte Village conducts is at the one-year mark. Ms. Lewis failed to offer evidence showing how Oakmonte Village’s failure to provide a formal evaluation at the three-month or six-month mark adversely affected her or constituted a discriminatory act. Further, Ms. Lewis offered no evidence showing that she was treated differently, with respect to evaluations, than any other similarly situated employee outside of her protected classes, or that Oakmonte Village’s failure to provide a formal evaluation was because of her race, color, national origin, marital status, religion, and/or age. Oakmonte Village employees who work 64 hours or more per pay period (or 32 hours or more per week) are considered full-time employees. Full-time employees have extra benefits, including paid time off. Ms. Lewis reported directly to Mr. Jones. Mr. Jones was in charge of setting her schedule. During the weeks of June 17 through 23, June 24 through 30, and July 1 through 7, 2018, Ms. Lewis was scheduled to work two days (16 hours) per week. As Ms. Lewis was a full-time employee, this amounted to a 50 percent reduction in her scheduled hours. On June 15, 2018, Ms. Lewis emailed Mr. Marshall to complain about her reduced scheduled hours. Mr. Marshall was on vacation when he received the email, but agreed to discuss the matter with her when he returned. On June 16, 2018, Ms. Lewis emailed Mr. Jones to complain about her reduced scheduled hours. Mr. Jones told Ms. Lewis that he and Mr. Marshall would discuss her hours with her the following Monday. Mr. Marshall testified that upon his return to work, he discussed Ms. Lewis’s reduced hours with Mr. Jones and directed him to increase her hours to at least 32 hours per week. Ms. Lewis corroborated that this was accomplished when she testified that Mr. Jones called her in to work on several days to make up her reduced hours. For the week of June 17 through 23, Ms. Lewis worked and was paid for 16 hours. For the week of June 24 through 30, although she was initially scheduled to work for 16 hours, after Mr. Marshall spoke with Mr. Jones, Ms. Lewis worked and was paid for 40 hours. For the week of July 1 through 7, Ms. Lewis worked and was paid for 27.25 hours. Ms. Lewis’s last day at Oakmonte Village was July 5, 2018. She was scheduled to work eight hours on July 7, 2018. Had she worked on July 7, her total hours worked for the week of July 1 through July 7 would have been 35.25 hours. Ms. Lewis testified that the reason her hours were cut in June was due to Mr. Jones’s disdain for her because of her national origin, religion, color, and because she was a poet.5 Contrary to that description, Ms. Lewis testified that, during a meeting with Mr. Jones about her reduced hours, he told her that her hours were reduced because she was confrontational and not a team player. Ms. Lewis testified that she was the only Jamaican working at Oakmonte Village and that no other employees experienced a reduction in hours during this time. Ms. Lewis did not present any evidence at the final hearing, outside of her own assertions, that she was treated differently, with respect to scheduling of hours, than any other similarly situated employee outside of her protected classes, or that the reduction in work hours was because of her race, color, national origin, marital status, religion, and/or age. In fact, except for one week in June 2018, Ms. Lewis worked and was paid for more than 32 hours each week. Oakmonte Village operates continuously with three employee shifts: 6:00 a.m. to 2:30 p.m.; 2:00 p.m. to 10:30 p.m.; and 10:00 p.m. to 6:30 a.m. On July 4, 2018, Mr. Jones asked Ms. Lewis to come in to work the 10:00 p.m. to 6:30 a.m. shift (the night shift). She was not initially scheduled to work that day, and generally did not work the night shift, but in an effort to provide her more hours, she was asked to come in. During the July 4 to 5 night shift, Ms. Lewis worked alongside Monica Nurse (Ms. Nurse), Adrianna Rivera (Ms. Rivera), and Shanece Newman (Ms. Newman). Ms. Lewis testified that shortly after she arrived, she noticed Ms. Newman asleep at a desk, where she remained asleep for approximately two hours. Ms. Rivera asked Ms. Lewis to provide care to one of 5 Ms. Lewis testified at length that Mr. Jones disliked her because she was a poet and a writer. Writer/poet is not a protected class under the FCRA. Ms. Newman’s assigned residents. After tending to the resident, Ms. Lewis complained to Ms. Rivera about having to help Ms. Newman while also carrying out her own duties. This complaint instigated a verbal altercation between Ms. Lewis and Ms. Rivera. Ms. Nurse and Ms. Newman quickly joined the argument. Ms. Lewis testified that all three coworkers began screaming at her. Feeling threatened, Ms. Lewis called 9-1-1. As Ms. Lewis spoke to the 9-1-1 operator, Ms. Rivera contacted Mr. Marshall by telephone. A police officer arrived at the scene. Ms. Lewis testified that, by speaker phone, Mr. Marshall told her to return her emergency keys (which allowed her entrance to the building) and told her that she was fired. Mr. Marshall disputes this testimony. Mr. Marshall credibly testified that, by phone, Ms. Lewis told him that she could no longer work under those conditions and that she resigned. The persuasive and credible evidence presented at the hearing demonstrated that Ms. Lewis resigned because of the conflict with her coworkers. On July 5, 2018, Mr. Marshall emailed Ms. Lewis stating: “Thank you for your service I will mail your final check[.]” In response, Ms. Lewis emailed: “John my safety comes first. Sorry you didn’t see it that way. May God bless Oakmonte Village[.]” Ms. Lewis asserted during the final hearing that the events of the July 4 to July 5 night shift were planned by Mr. Jones and Mr. Marshall. Ms. Lewis testified that she was “set up” by Mr. Jones and Mr. Marshall so that the other three employees working that night would “jump” her. Mr. Jones and Mr. Marshall denied these allegations. Ms. Lewis presented no credible evidence that Mr. Jones and Mr. Marshall orchestrated the alleged “set up.” Further, even if this allegation were true, Ms. Lewis presented no evidence to prove that the “set up” was because of her race, color, national origin, marital status, religion, and/or age. Ms. Lewis asserts that during her time at Oakmonte Village, she experienced persistent discrimination.6 Ms. Lewis generally complained that Oakmonte Village had a hostile work environment. Ms. Lewis described an incident in November 2017, during her interview for the position for which she was hired, when Mr. Jones seemed taken aback by her non-existent criminal history. Ms. Lewis also testified that Mr. Jones once asked her “who the F do you think you are that your coworkers have to say please and thank you?” Ms. Lewis also had other personal conflicts with a few of her coworkers. Ms. Lewis complained, specifically, about her relationship with Ms. Debbie Perry (Ms. Perry). Ms. Perry is a 53-year-old black woman. Ms. Lewis testified that Ms. Perry frequently cursed at her and once intentionally bumped into her. Ms. Lewis complained to Mr. Marshall about her interactions with Ms. Perry. Mr. Marshall met with Ms. Lewis to discuss the issue and directed her to speak to him should the issue arise again. Mr. Marshall testified that he also spoke to Ms. Perry. Mr. Marshall indicated that after he met with them separately, Ms. Lewis presented no additional complaints about Ms. Perry. Ms. Lewis did not claim that either Ms. Perry’s alleged harassment, or Oakmonte Village’s response to Ms. Lewis’s complaint, was because of Ms. Lewis’s race, color, national origin, marital status, religion, and/or age. On or about July 3, 2018, a state agency conducted an investigation of Oakmonte Village. The nature of the investigation is unknown as no evidence about the type of or reason for the investigation was offered at the hearing. Ms. Lewis testified that rumors swirled at Oakmonte Village about a possible “informant.” Ms. Lewis testified that she was not the informant and she 6 Ms. Lewis offered several anecdotal circumstances, in addition to the ones provided in paragraph 29, such as whether Oakmonte Village’s work schedule listed her as a caregiver or medication technician, which she suggested were somehow discriminatory. None of her examples were persuasive. None could reasonably be considered evidence of discrimination because of her race, color, national origin, marital status, religion, and/or age. presented no evidence that her coworkers or supervisors believed she was the informant. Ms. Lewis suggested that Oakmonte Village retaliated against her for participating in a protected activity, but she did not identify a protected activity on which she is relying to make this claim, nor did she specify what action was taken in retaliation for the unidentified protected activity. Ms. Lewis alleged several bases for discrimination, including race, color, national origin, marital status, religion, and age, but did not present a persuasive case of discrimination based on any of those protected classes. Information related to claims based on her marital status and religion was not mentioned in any relevant detail at the hearing. Ms. Lewis failed to prove that Oakmonte Village’s reduction of her work hours, its decision to not nominate her for the medication technician certification training, and its failure to formally evaluate her were based on race, color, national origin, marital status, religion, and/or age discrimination, nor did she prove that any other similarly situated employees outside her protected classes were treated more favorably. Accordingly, Ms. Lewis failed to meet her burden of proving that Oakmonte Village committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Ms. Lewis’s Petition for Relief. DONE AND ENTERED this 18th day of February, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 18th day of February, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Paulette Lewis 1658 April Avenue Deltona, Florida 32725 Timothy Tack, Esquire Fisher Phillips Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent's state teaching certificate should be suspended or revoked pursuant to Chapter 231, , Florida Statutes, asset forth in Petition, dated May 21, 1979. This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on two counts of misconduct arising from the teacher/pupil relationship. The first count alleges that the Respondent had sexual intercourse with a seventh grade student on one or more occasions during the 1972 school year. The other alleges that during the 1978 school year, the Respondent kissed a female student on the lips on one or more occasion. The Petitioner herein was filed pursuant to directions of the State Commissioner of Education who, on May 18, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes. Respondent requested an administrative hearing by his answer to the Petition, dated June 20, 1979.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 157255, Graduate, Rank II, valid through June 30, 1989, covering the areas of English elementary education, and junior college. He received a Maser's Degree in education from South Carolina State College in 1969, and obtained Florida teaching certification in August, 1969. At the time of the incidents alleged in the Petitioner, Respondent was employed as a teacher in the public schools of Orange County. (Testimony of Respondent, case pleadings) During the 1971-72 school year, Respondent was a sixth grade teacher at the Grand Avenue Elementary School, Orlando, Florida. At some undisclosed time subsequent to the end of the school year, an Information was filed against Respondent by the State Attorney, Ninth Judicial Circuit of Florida, as a result of allegations that he had engaged in sexual intercourse with one of his twelve- year-old female students in 1972. The case was thereafter nolle prossed by the State Attorney for insufficient evidence. (Testimony of Nagel, Bailey) The alleged victim, Harriett Moten, testified at the hearing that on a number of occasions during the period January or February through May, 1972, while a twelve-year-old student in Respondent's sixth grade class, Respondent had sexual intercourse with her in a storage area behind the stage of the school auditorium. She testified that such incidents occurred approximately twice a week at about 11:00 A.M. during a class period. At those times, Respondent allegedly sent her out of class on an errand, such as obtaining film, and then joined her in the backstage area. She stated that these encounters would consume approximately 20 or 25 minutes by the time she returned to class, and the Respondent came back to class a short time later. Although music classes were conducted in the auditorium practically every day of the school week during the times in question, Moten testified that she never saw the auditorium in use or heard music while she was behind the stage. She stated that she submitted to Respondent's advances because she was afraid of him. She further testified that on one occasion Respondent had brought another female student to the rear of the stage who observed his activities with her. The deposition testimony of another former student, Thomas Grier, was admitted in evidence wherein he testified that he had once observed Respondent lying on top of the student who supposedly had once witnessed Respondent and Moten behind the stage. This incident also allegedly took place behind the auditorium after a music class. He further testified that he had observed Respondent enter the classroom on a number of occasions with one or the other of the tow female students. The witness was deposed at Zephyrhills Corrections Institute, Zephyrhills, Florida, where he was incarcerated for possession of a firearm. It was his third conviction of a felony. Harriet Moten testified that she gave birth to a child in January 1973. Although her blood type and that of Respondent is 0, she was informed by an Assistant State Attorney that her child's blood type was A. She had been a failing student during her sixth grade year and had been paddled a number of times by Respondent for disciplinary reasons. She informed her mother of Respondent's actions in the summer of 1972 when she experienced irregular menstrual periods and was found to be pregnant after her mother took her to a physician. She had not informed her mother earlier concerning the matter because they did not get along with each other. She claimed that she had not had sexual relations with anyone other than Respondent. Respondent denied the allegations at the hearing and said that, although the student had been one of his "problem children" whom he had to discipline on occasion, she had appeared to like him and was the only student who had brought him a Christmas present in 1971. From the foregoing, it is considered that the improbable and uncorroborated testimony of Harriet Moten, when viewed against Respondent's unequivocal denial of the allegations, is insufficient upon which to predicate a finding that Respondent had sexual intercourse with the student, as alleged in the complaint. The deposition testimony of Grier which, in part, supports the allegations, is not deemed credible. (Testimony of Moten, Grier (deposition, Petitioner's Exhibit 3), Respondent, Petitioner's Exhibit 5, Respondent's Exhibits 1, 2, 5). During the 1978-79 school year, Respondent taught sixth grade at the Cypress Park Elementary School, Orlando, Florida. On November 20, 1978, one of his students, Patricia Foster, accompanied by another member of her class, Lola Ortega, reported to the school principal that in the preceding October, Respondent had kissed her in the classroom during a-recess period when no one else was present. Lola told the principal that she had opened the classroom door at the time and observed the incident. The principal reported the matter to a school board Area Administrator who interviewed the two girls on the following day. Patricia told this official that Respondent had kissed her twice on the lips during the recess period and that, after the first kiss, he had said he "didn't mean it." Patricia said that on the second occasion, she looked up and saw Lola open the door and then close it. She further stated that she had not told her parents of the incident because her stepfather would have become angry, and that she had not told the principal earlier because she didn't want to get Respondent in trouble. Lola told the Area Administrator that she had opened the door to the classroom and observed Respondent stoop over and kiss Patty on the lips, at which time she closed the door and returned to the playground. At the hearing, Patricia testified that Lola had opened the door when Respondent kissed her the first time. Lola testified that at the time she opened the classroom door, Respondent had his back toward her and that she only saw him bend over the desk. She conceded that she had not seen Respondent actually kiss Patricia and denied that she had told anyone that she had. However, upon further inquiry, she admitted telling the principal that she had seen Respondent kiss the student and could not explain why she had done so. Patricia later told one of her classmates at a "slumber party" about the incident. That girl, Michelle Cridelle, testified that she thought Patricia had told her Respondent had kissed her twice on different days. Respondent had disciplinary problems with Lola during the previous school year and at the beginning of the 1978-79 school year. Also, on a prior occasion, she and another female student had fabricated a letter purportedly written by a male student to them containing coarse language which she admitted was designed to get the boy in trouble when it was delivered to her father. In another instance, Patricia and Lola had been untruthful in telling Patricia's mother where they had been on one occasion. Lola had been a frequent disciplinary problem for the school principal who considered her to be a leader and catalyst in creating problems at school. Respondent testified that, on the day of the alleged kissing incident, another student was in the classroom with Patricia during the recess period, and that he had simply gone to her desk and colored some leaves on a box. He denied kissing her on this or any other occasion. The school principal is of the opinion that Respondent is a very truthful individual. It is considered that the improbable, contradictory, and uncorroborated testimony of Patricia concerning the alleged kissing incident, coupled with Respondent's denial of the same, is insufficient upon which to base a finding that Respondent committed the acts alleged in the Petition. (Testimony of Foster, Richardson, Ortega, Cridelle, Cossairt, Taylor, Brady, Respondent, Petitioner's Exhibit 1). Respondent was relieved of his duties as a classroom teacher by the Superintendent of Orange County Public Schools on November 28, 1978, and reassigned to an Assistant Superintendent's office to perform administrative duties pending investigation of the 1978 allegations by Petitioner. He had been supervised by the principal of the Cypress Park Elementary School for a period of six years. The principal testified that the other teachers respected him, but that he should not be working with children due to his abrasive personality with students. During the three year period 1976-78, Respondent's performance evaluations were uniformly "Satisfactory," except in those areas reflecting his relations with students and parents, and in his support of "state laws and county policies." It was noted in the 1977 and 1978 evaluations that improvement was needed in those areas. Narrative comments of the evaluations further indicated his lack of rapport with students and parents, lack of support of corporal punishment practices, and his ridicule of students. One fellow teacher at Cypress Park Elementary School submitted a letter to Petitioner in January, 1978, stating that Respondent had always conducted himself properly with students and parents on the occasions when she had observed him at the school and during school functions. (Testimony of Cossairt, Petitioner's Exhibit 2, Respondent's Exhibit 3, supplemented by Respondent's Exhibit 4).
Recommendation That the charges against Respondent Isadore Smith be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of February, 1980. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Edward R. Kirkland, Esquire 126 East Jefferson Street Orlando, Florida 32801 Professional Practices Council 319 West Madison Street - Room 1 Tallahassee, Florida 32301
