Findings Of Fact Ivan Rosario, the Petitioner, was at all relevant times an employee of Orange County, Florida, as an equipment operator (EO III) in the highway maintenance department and assigned to the landscape crew. Mr. Rosario's national origin, Puerto Rican, is uncontroverted. William Baxter is also an employee of Orange County and in 1989 was manager of highway maintenance. On or about October 10, 1989 he received a memo from Ivan Rosario's foreman recommending that Mr. Rosario be terminated for failing to meet the minimum qualifications for equipment operator. Mr. Rosario had been in that position since approximately September 27, 1989. In accordance with established due process requirements and Orange County policy, and after notice to Mr. Rosario and to other relevant parties, William Baxter conducted a pretermination hearing on October 20, 1989. The outcome of the hearing was Mr. Baxter's determination that Mr. Rosario was exonerated of any of the accusations or charges. Mr. Rosario was not terminated. It is Mr. Baxter's usual practice after such proceedings to write a letter stating the outcome and to provide a copy to the employee and to the personnel file. However, several years after the 1989 hearing, Mr. Rosario informed Mr. Baxter that the letter was not in his personnel file. After verifying this fact, Mr. Baxter agreed to write a statement and to put it in his personnel file. Mr. Baxter or someone in the county administrative staff had also inquired of the legal staff whether the original written charges could be removed from Mr. Rosario's personnel file. The response from the county attorney's staff was that the personnel files were public records and could not be destroyed or expunged without violating Chapter 119, Florida Statutes. In a memo dated August 1, 1994, William Baxter directed Mark Massaro, the manager of traffic engineering, to place this statement in Mr. Rosario's file: On October 20, 1989, a hearing was held concerning the allegations that Mr. Rosario was hired by Orange County and on the appli- cation form he had stated he was qualified to operate equipment, however, it has been alleged that he was not capable of operating this equipment nor had he ever operated this equipment. After conducting the hearing, I made a determination and I can find no faults with the qualifications of Mr. Rosario and that the allegations against him were false. This was the result of the hearing. (Respondent's exhibit no. 3, William Baxter deposition) There is no explanation of record for the absence of some written confirmation of Mr. Baxter's decision between 1989, when the hearing was held, and 1994, when the above-described memorandum was prepared. Mr. Baxter usually provides that written decision within approximately ten (10) days and he has no recollection of failing to write the letter earlier. Mr. Rosario contends that the unexplained charges in his file prevented his being promoted and kept him from a union stewardship. He also contends that the charges hurt his reputation. No evidence was presented regarding any specific promotional opportunities or any reasons why such opportunities might have been denied to Mr. Rosario. "Stewardship," a union appointment, is a matter within the jurisdiction of the union and its bargaining unit members. The county has no control over union stewardship appointments. Mr. Rosario presented two witnesses who were also displeased with their employment experiences at Orange County. Miguel Ortiz is a computer program analyst who was with the county for five years and left in October 1994 because he felt that he was denied equal employment opportunities. He filed many grievances during his tenure and was removed from stewardship due, he believes, to his pointing out problems. He concedes that union stewardship is a union matter and not a management prerogative. Jason Stroud is an equipment operator with the Orange County Highway Department. He only contends that he has a case "along the same lines" as Mr. Rosario's case. He claims that the county "makes the rules," and breaks them or makes up new rules. Orange County has an Equal Employment Opportunity program and compliance officer. That officer, Bernard Ouellette, investigates when there are internal charges and compiles responses to send to the federal Equal Employment Opportunity Commission or Florida Commission on Human Relations. Mr. Ouellette has, in the past, found county supervisors who violate equal employment laws and they are dealt with and disciplined appropriately. A recent example is a county employee who made racially derogatory remarks and was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the complaint and petition for relief by Ivan Rosario be DISMISSED. DONE and ENTERED this 9th day of April, 1996, in Tallahassee, Florida. MARY W. CLARK, 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 9th day of April, 1996. COPIES FURNISHED: Ivan Rosario 16268 East Colonial Drive Orlando, Florida 32820 Jeffrey J. Newton Assistant County Attorney Orange County Attorney's Office Post Office Box 1393 Orlando, Florida 32802-1393 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and, whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, Progress Energy Corporation, is a public utility which provides electrical power. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003). Petitioner is an African-American female. She began working for Respondent in October 1980. Petitioner was finally discharged from her employment on December 12, 2003. During her period of employment, she received various promotions and eventually became a service coordinator. She worked at the Jamestown Operations Center and was responsible for designing electrical power services and customer coordination. In 1992, Petitioner was terminated and re-hired at a lower position as discussed hereinafter. Steven McKinnie became Petitioner's supervisor in March 2002. While Petitioner's performance was adequate, Mr. McKinnie received complaints from both co-employees and customers about Petitioner's work performance. As a result, he engaged in private counseling sessions with Petitioner as he did with other employees. Concerned about Petitioner's performance, Mr. McKinnie consulted with Respondent's Department of Human Resources regarding the advisability of employing a "360 survey" as a tool for improving Petitioner's performance. A "360 survey" provides an employee with confidential assessments made by co-employees as a tool for self-improvement. A "360 survey" is not a disciplinary tool, nor does it effect an employees status. After receiving Petitioner's approval to conduct the "360 survey," on March 6, 2003, Mr. McKinnie distributed the survey questionnaire to Petitioner's co-employees. On the evening of March 6, 2003, Petitioner e-mailed Mr. McKinnie objecting to the "360 survey." The following day, March 7, 2003, the Jamestown Operations Center staff, including Petitioner and Mr. McKinnie, were in Deland, Florida, for a "two c's" (compliments and concerns) meeting. This is another human resources' tool. This gives employees the opportunity to express their concerns and for management to respond to those concerns. During the "c and c" meeting, Petitioner voiced her complaint about the "360 survey." This was Mr. McKinnie's first notice of her objection. She also complained that Mr. McKinnie treated employees as if they were in high school and intimidated them (or words to that effect). No mention was made of racial or sexual discrimination. The results of the "360 survey" were offered to Petitioner as a self-improvement tool. The survey was not included in her performance evaluation nor did it effect her pay. In early December 2003, Respondent's management received a complaint from a co-employee that Petitioner was using Respondent's postage machine for personal use. Shortly thereafter, Sandra Shields, conducted an investigation of the alleged impropriety. Respondent's postage machines and the cost of mailing are to be used for Respondent's business purposes only, not for personal use. During the investigation, Petitioner asserted that other employees similarly used the postage machine for personal use. She declined to identify any employees. The investigation failed to corroborated Petitioner's assertion. Petitioner had two employment-related incidents of theft. In 1990, she was arrested during her lunch period and incarcerated for retail theft. The company vehicle she was driving was impounded. She entered a pre-trial diversion program and admitted the theft. Her arrest and record of pre-trail diversion was made a part of her employment record. On a second occasion, in June 1992, Petitioner received a letter of reprimand because she "misused her position as an Engineering Technician for personal gain." She had produced and submitted engineering drawings for underground cable installation at the residence of a family member. The letter of reprimand noted: "This type of action cannot be tolerated. Further violations of this nature will result in disciplinary action, up to and including termination." As noted on the letter of reprimand, Petitioner did not agree with it (the letter). Incidental to this incident, Petitioner was terminated. She grieved her termination and was rehired at a lower paid position. The letter of reprimand was placed in her employment record. As a result of Petitioner's misuse of the postage meter, aggravated by the two previous incidents of theft, Petitioner was terminated. Subsequent to her termination, Petitioner complained to the Respondent's "Ethics Line" and invoked Respondent's dispute resolution process to contest her termination. Additional investigations did not change the facts or the outcome. At the hearing, Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas Martin Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33601 Curtis B. Lee, Esquire 37 North Orange Avenue, Suite 500 Post Office Box 3412 Orlando, Florida 32802 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether the Petition for Relief should be dismissed as untimely because it was received by the Florida Commission on Human Relations more than 35 days after the date of the Commission's "no cause" determination.
Findings Of Fact Based upon the pleadings (as supplemented by Petitioner's response to the August 2, 2002, Order to Show Cause and his representations at the August 23, 2002, telephonic hearing), the following findings are made: On August 16, 2001, Petitioner filed a charge of discrimination against Respondent with the Commission. The charge of discrimination alleged that Respondent committed an unlawful employment practice in September 2000 when it fired Petitioner based upon his race.1 The address for the Commission listed on the charge of discrimination form was 325 John Knox Road, Suite 240, Building F, Tallahassee, Florida 32399. The charge of discrimination was investigated by the Commission staff, and based upon the results of the investigation, the Executive Director of the Commission determined that "there is no reasonable cause to believe that an unlawful employment practice has occurred." The date of the determination was May 8, 2002. On that same date, notice of the determination (Notice) was provided to Petitioner by U.S. Mail. The Notice stated: NOTICE OF DETERMINATION: NO CAUSE PLEASE TAKE NOTICE that a Determination has been made in the above-referenced complaint that there is no reasonable cause to believe that an unlawful employment practice has occurred. A copy of the Determination is attached. [Petitioner] may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. * * * If [Petitioner] fails to request an administrative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). (Emphasis supplied). Petitioner received the Notice four or five days after it was mailed, which would have been May 13, 2002, at the latest. The address for the Commission listed on the Notice was 2009 Apalachee Parkway, Suite 100, Tallahassee, Florida 32301. Included with the Notice was a blank petition for relief form. Petitioner filled out the form and mailed it to the Commission. Consistent with the charge of discrimination, the Petition alleges that Petitioner was fired by Respondent based upon his race and that the reasons asserted by Respondent for his firing were pretextual. The Petition was post-marked in Orlando on June 13, 2002 (36 days after the Notice, and at least 31 days after Petitioner's receipt of the Notice). Petitioner's delay in completing and mailing the Petition was due to his "inability to obtain counsel." Despite the Commission's new address being printed at the top of the Notice, Petitioner mailed the Petition to the Commission at its old address on John Knox Road. The Petition was not received by the Commission until July 9, 20022 (62 days after the Notice, and at least 57 days after Petitioner's receipt of the Notice). The envelope in which the Petition was received by the Commission includes a forwarding sticker affixed by the postal service. Thus, it appears that the 26 days that it took for the postal service to deliver the Petition from Orlando to Tallahassee is attributable to the postal service's mail forwarding process.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief as untimely. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 5th day of September, 2002.
The Issue Whether just cause exists to terminate Respondent's employment with the Lake County School Board.
Findings Of Fact The Parties Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Lake County, Florida. At all times relevant hereto, Respondent was employed as a teacher in the School Board's online learning program. Events of March 26, April 11, and April 14, 2014 The first incident giving rise to this proceeding occurred on March 26, 2014, in Mount Dora, Florida. On that occasion, Brandy Herron, a former School Board employee, was shopping with an acquaintance (Kelly Richter) at an Office Depot store. Respondent, accompanied by his 15-year-old daughter, was also present in the establishment. The record reflects that Mrs. Herron and Respondent were no strangers, having worked together——acrimoniously——at the same elementary school from 2007 to 2008. As such, it is not surprising that, upon seeing Respondent in the store, Mrs. Herron noted his presence to Ms. Richter. Regrettably for all involved, Respondent misinterpreted Mrs. Herron's innocent remark to Ms. Richter as a personal affront. Eschewing self-restraint, Respondent approached Mrs. Herron and demanded to know if she was talking about him. Moments later, while gazing at Mrs. Herron's breasts, Respondent uttered, "fakey, fakey, fakey." Predictably, Mrs. Herron asked Respondent to back away. Respondent eventually did so, but not before he told Mrs. Herron that, because he was unwilling to fight a woman, he would instead "beat [her] husband's ass." For good measure, and to the dismay of Mrs. Herron, Respondent repeated his "fakey, fakey, fakey" refrain. On the heels of his encounter with Mrs. Herron, Respondent drove (with his daughter in tow) to Mr. Herron's place of business. Upon his arrival, however, Respondent was informed by a member of Mr. Herron's staff that Mr. Herron was out of the office.1/ The second encounter at issue occurred on the evening of April 11, 2014, on the campus of Lake Tech College ("Lake Tech"), a vocational charter school located in Lake County. At approximately 9:00 p.m., Respondent accompanied two of his minor children to Lake Tech, where Respondent's father-in-law, Jack Miller, is employed as the school's assistant director. It is undisputed that the presence of Respondent and his children at Lake Tech was at the invitation of Mr. Miller, who had arranged for his secretary to notarize certain test registration documents. (Respondent's children were scheduled to take the ACT examination early the next morning.) Per Mr. Miller's instructions, Respondent accompanied his children to an office adjacent to Lake Tech's welding classroom, where a school secretary proceeded to notarize the documents. At that time, a welding class was wrapping up, one of whose students, 21-year-old Ozzie Villafranca, nodded a greeting to Respondent. From this innocent nod, Respondent erroneously concluded that Mr. Villafranca had ogled his 15-year-old daughter. By all accounts, Respondent overlooked this perceived slight (temporarily at least), completed the business at hand, and accompanied his two children to the parking lot. At that point, and without provocation, Respondent returned to the entrance to the welding classroom, where Mr. Villafranca was getting some fresh air. Respondent approached Mr. Villafranca and demanded to know if he had a "problem." Taken aback by Respondent's peculiar conduct, Mr. Villafranca replied that there was no problem. Moments later, Mr. Villafranca's cousin, Eddie Villafranca (also an adult vocational student), joined the encounter, at which time Respondent asked if he, too, had a problem. When Eddie did not respond, Respondent inquired of the cousins, "do you little boys want to get your asses beat?" Fortunately, much of the foregoing incident was witnessed by Mr. Miller, who repeatedly implored Respondent to go home. After three explicit warnings, Respondent returned to the parking lot and drove away. The next incident, which occurred on April 14, 2014, was comparatively less serious. On that occasion, Stephanie Burnett, a School Board employee, was shopping in a Target store when she was approached by Respondent's wife, Sue-Ellen Anselmo. During the brief conversation that ensued, Mrs. Anselmo identified herself to Ms. Burnett, accused Ms. Burnett of trying to destroy her family (by supposedly providing, some years earlier, misinformation to the School Board during an investigation of Respondent), and called Ms. Burnett a "bitch." Mrs. Anselmo then proceeded to walk away, at which point Ms. Burnett, who was rattled by the exchange, began to wheel her shopping cart elsewhere. Moments later, Ms. Burnett encountered Respondent, who, upon seeing her, exclaimed, "I read your statement and you're a liar." Needless to say, the foregoing incidents were reported to and investigated by the School Board. Although one or more of the episodes——particularly the first two——likely would have warranted Respondent's termination, the School Board instead issued a "Level II Written Reprimand." The reprimand, whose relevant content is quoted below, was issued on June 3, 2014, by Dominick Pedata, the School Board's supervisor of employee relations: This Level II reprimand is to put you on notice of your three separate incidents involving your behavior outside of the office. An investigation proceeded regarding these allegations. On March 26, 2014, it was documented by a police report that you harassed one former employee and her husband regarding a prior Lake County Schools investigation that you were involved in. On April 11, 2014, it was reported that you threatened two students at Lake Tech Education Center in the parking lot with physical harm and were asked to leave on several occasions or the police would be called to escort you off the campus. On April 14, 2014, it was documented by a police report that you and your wife threatened a Lake County Schools employee regarding a prior Lake County Schools investigation. These are clear violations [of] Florida Administrative Code [Rule] 6A-10.081 Principles of Professional conduct for the Education Profession in Florida . . . . Moving forward you are not to approach any employee regarding a prior investigation, and/or enter a Lake county School campus and act in an aggressive or harassing manner toward a student. Any similar issues will lead to further disciplinary action up to and including termination. Please let me know if you have any questions. (emphasis added). The foregoing language makes plain that the School Board had completed its investigation regarding the incidents of March 26, April 11, and April 14, 2014, and that Respondent's "Level II Reprimand" constituted formal disciplinary action in connection with those events.2/ Thus, as discussed later in this Order, the School Board is now precluded from terminating Respondent for the same misconduct. Psychological Evaluation As noted previously, the School Board advances an alternative basis for termination, namely, that Respondent is guilty of "incompetency." On this issue, the record reflects that on June 3, 2014, Mr. Pedata directed Respondent to report for a "Medical Fit for Duty Examination" with Dr. Wally Austin, a licensed psychologist. At or around that time, Mr. Pedata furnished Dr. Austin with police reports and other investigative documents relating to the incidents of March 26, April 11, and April 14, 2014. Consistent with Mr. Pedata's directive, Respondent thereafter reported to Dr. Austin's office and submitted to a psychological evaluation. The evaluation, which Dr. Austin conducted on June 24, 2014, comprised three elements: a one- hour interview; the Minnesota Multiphasic Personality Inventory- 2 ("MMPI-2"); and a follow-up interview of approximately 5 to 10 minutes. Dr. Austin concedes that, during the interview, Respondent's speech was "clear, logical, and coherent," and that there was "no evidence of a thought disorder, perceptual disturbance, or psychosis." Nevertheless, Dr. Austin was troubled by the fact that, when pressed about the episodes of March 26, April 11, and April 14, Respondent provided descriptions of the events that varied significantly from the accounts of the other involved parties (as documented in the police reports and other materials provided to Dr. Austin by the School Board). For example, Respondent insisted that he was not present at the Target store on April 14, 2014, and, thus, did not interact with Ms. Burnett on that date. Operating under the premise that Respondent had engaged in "grossly inappropriate behavior" during the episodes of March 26, April 11, and April 14,3/ Dr. Austin thought it prudent to "get objective information." To that end, Dr. Austin administered the MMPI-2, a widely-used, standardized test of adult personality. Unfortunately, Respondent's answers to the MMPI-2 resulted in a high "lie" (or "L") scale (one of the test's three "validity" scales) that rendered the entire evaluation invalid. As Dr. Austin explained, a high L scale typically occurs when test takers attempt to depict themselves as unrealistically virtuous. Notably, however, Dr. Austin equivocated whether the high "L scale" resulted from conscious behavior on Respondent's part. At one point, for example, Dr. Austin testified that Respondent "had the ability to answer [] in a more forthright manner."4/ Later, though, Dr. Austin credibly opined that Respondent believed in the truthfulness of his test responses: Well, that's the part we didn't get into. He faked it – when I say "faked it good," there is [sic] other scales that indicate that John believes what he is saying. So for him, he is not faking it. * * * [B]ecause by [the L scale] being so high, it invalidates the report because it lowered all of the other scores. And the psychopathology would come up, but you don't know what it is because he denies everything. But it is not a conscious denial, he believes what he believes. Pet'r Ex. 10, p. 68:5-9; 68:23-69:3 (emphasis added). Upon the completion of the MMPI-2, Dr. Austin conducted a brief follow-up interview with Respondent, at which point the evaluation concluded. The following day, on June 25, 2014, Dr. Austin notified the School Board that, in his view, Respondent was "not fit to return to work in the school system." A charging document soon followed, wherein the School Board alleged that Respondent is guilty of incompetency: Based on the results of the medical fit for duty you are also charged with "Incompetency." Under F.A.C. 6A-5.056(3), Incompetency is the "inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." Inefficiency under 6A- 5.056(3)(a)2 is "Failure to communicate appropriately with and relate to students[,]" and 6A-5.056(3)(a) is "Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents." Incapacity under 6A- 5.056(3)(b)1 is "Lack of emotional stability." Your actions clearly reflect incompetency in this regard. Pet'r Ex. 17. In its Proposed Recommended Order, the School Board reiterates its position that Dr. Austin's findings and/or the incidents of March 26, April 11, and April 14, 2014, demonstrate Respondent's incompetency. For the reasons explicated below, the undersigned is not so persuaded. First, the School Board is precluded from basing the incompetency charge upon the episodes for which Respondent was previously reprimanded. The psychological evaluation likewise cannot support the incompetency charge, as it is evident that Dr. Austin's opinion was informed almost exclusively by Respondent's previously-punished misconduct. Consider the following exchanges between Dr. Austin and School Board counsel: Q. Okay. And what are those duties, just in your own words, that you would expect for a teacher who is, in fact, fit for duty to perform? A. I think the question is very broad. Because I would like to answer it by ruling out what I don't expect. Q. Okay. A. I don't expect there to be threats of violence to hit other students – to hit students where the teachers now are starting to get violent with the kids, or young men, students of the county. Or I don't expect teachers or adults to conduct themselves inappropriately in the school setting or in public to the point that you were going down the street to fair it out with someone's husband. You know, those kinds of things, I don't think that is becoming of a school teacher. * * * A. All right. I am not assessing his ability to teach. I am assessing: Is he fit to be in the room. Q. Correct. A. I am looking at an individual who has had five episodes of grossly inappropriate behavior: The Triangle School thing one, the Home [sic] Depot lady, the flirting, the technical school, the Target. He has had inappropriate behavior in multiple settings; in the school setting, in the public with the school teachers; he is going over to people's work environments. His inappropriate behavior has involved teachers, it has involved students, it has involved administrators. He has been called on the carpet and had consequences of police reports filed on him, changes in school, three-days [sic] suspension. And it keeps going on and on . . . . If a person has done something twice, three times, four times they are very likely to do that behavior again. What faith do I have that [Respondent] is not going to threaten violence to teachers or to students when he leaves my office . . . ? Pet'r Ex. 10, p. 35:7-22; p. 36:3-8. The only reasonable interpretation of the foregoing testimony is that Respondent's earlier misdeeds were a necessary component of Dr. Austin's opinion. At bottom, then, the School Board is attempting to accomplish indirectly (i.e., terminate Respondent by channeling his previously-punished misconduct through an expert, who opines that the misconduct demonstrates unfitness) what it cannot do directly (i.e., terminate Respondent for the previously-punished misconduct). As noted shortly, basic due process precludes such an outcome. Moreover, and in any event, Dr. Austin's evaluation, which comprised a single office visit, was insufficiently comprehensive to evaluate properly Respondent's fitness to carry out his required duties. On this point, the undersigned credits the testimony of Respondent's expert witness, Dr. DeLeon, who opined that an appropriate evaluation would necessarily include multiple office visits over a period of time.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order: dismissing the charges brought against Respondent in this proceeding; and awarding Respondent any lost pay and benefits. DONE AND ENTERED this 26th day of March, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 26th day of March, 2015.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act, as amended, as alleged in Petitioner's Charge of Discrimination.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this discrimination case, Petitioner, Sandra Jackson, who is an African-American, has alleged that on April 8, 1996, she was unlawfully terminated from employment with Respondent, Halifax Medical Center, on account of her race. Although the record does not specifically address the issue of whether Respondent is an "employer," it can be reasonably inferred from the evidence that Respondent employed at least 15 employees for each working day in each of 20 or more calendar weeks in the current calendar year, and is thus subject to the jurisdiction of the Florida Commission on Human Relations (Commission). Halifax Medical Center, located in Daytona Beach, is a part of the Halifax Community Health Systems network serving East and Central Florida. Petitioner was first hired by Halifax Medical Center on February 13, 1989, as a pharmacy technician. She remained in that position until April 16, 1990, when she transferred to a position of Social Worker I at the Hospice of Volusia/Flagler (Hospice), which performs hospice services for the Halifax network in Volusia and Flagler Counties. In that position, Petitioner's duties included assisting the various supervisors, taking care of patient requests, and filling out financial assistance forms for Medicaid or Medicare patients. She was also required to fill out memorial fund requests. Because of a change in the federal law in 1992, which required that all Hospice social workers have a master's degree, Petitioner was no longer qualified to work as a social worker since she held only a bachelor's degree. In order to allow Petitioner (and several other affected social workers) to remain with the organization, the Hospice created the position of Resource Specialist. Petitioner transferred to that position on November 1, 1992. Petitioner's contention that her transfer was actually a demotion and confirms that she was treated differently from other employees has been rejected. This is because the evidence clearly shows that her transfer, and that of several similarly situated employees, was caused by a change in the federal law, and not by discriminatory animus on the part of her employer. Although the duties of a Resource Specialist were similar to that of a Social Worker I, and included providing assistance to other Social Workers, a Resource Specialist was not allowed to perform patient assessments or give supportive counseling. However, Petitioner's paperwork duties remained the same. From 1992 until 1994, Karen Grimm was Petitioner's supervisor. Grimm served as the Hospice's Psychosocial Bereavement Coordinator. When Grimm's position was split in two on January 17, 1994, Kathleen Moore became Petitioner's new supervisor. Both Grimm and Moore were required to prepare performance evaluations for all employees under their supervision, including Petitioner. Grimm's first evaluation of Petitioner was made on April 16, 1993. On that evaluation, Petitioner scored a 7.2 out of a possible 10 points, or an average evaluation. However, the evaluation noted that Petitioner needed to improve in following through on assignments and having an increased awareness of resources. These criticisms were based on complaints Grimm had received from other employees that Petitioner would not finish jobs she was required to do. Grimm discussed these criticisms with Petitioner after the evaluation was prepared. In August 1993, Pamela Toal, a nurse at Halifax Medical Hospital, met with Petitioner and Grimm regarding Petitioner's care of certain patients. In one case, Petitioner had taken two weeks to get a patient a pill box, which would have assisted the patient in ensuring that he took his prescribed medicine on time. In another case, Petitioner had been asked to assist a patient in signing up for Community Medicaid. However, she signed him up for Hospice Medicaid twice, a program in which he was already enrolled. These events were documented by Grimm. In January 1994, or shortly before her position was split, and she would no longer be Petitioner's supervisor, Grimm met with Petitioner to discuss complaints Grimm had received from a patient care coordinator (Cherrie Chester) regarding how difficult it was to find Petitioner when she was needed. Petitioner was instructed to meet with Chester to resolve the difficulty. On April 7, 1994, Kathleen Moore, Petitioner's new supervisor, met with Petitioner regarding Petitioner's work performance. At that time, Petitioner agreed to a number of performance-related changes in her work habits, which are formalized in Respondent's Exhibit 8. That document notes that "[i]f there is no improvement by the time for review [mid-May 1994], you will then be placed on a probationary period for an additional month." On her next evaluation prepared by Moore on May 22, 1994, Petitioner scored a 7.6 out of 10 points, which is considered an average evaluation. In the job responsibility category, however, she received a score of 5, which is below average. The next evaluation was prepared by Moore on April 22, 1995. Petitioner's average score was only 6.35, and her job responsibility score dropped from a 5 to a 4, indicating that she was performing her job below expectations. During this period, a number of complaints were made about Petitioner's job performance by co-workers, supervisors, families, and patients. Based on this continuing pattern of poor performance, Petitioner was placed on written notice by the Hospice Executive Director that she needed to make "immediate improvement in some areas of her work." Moore and Petitioner discussed a performance improvement plan, and Moore requested another review of Petitioner in three months to see if she had improved. In June 1995, a social worker who worked with Petitioner documented a number of incidents in which Petitioner failed to perform necessary responsibilities for patients. This required the social worker to follow up and perform the tasks that should have been completed by Petitioner. Moore conducted a follow-up evaluation of Petitioner on September 4, 1995. Her score dropped to 5.725, and her job responsibility rating dropped to a 3, which is unsatisfactory. This latter decline in rating was caused primarily because Petitioner had not been meeting in person with other social workers and counselors with whom she worked, as required by her job position. The evaluation noted that Petitioner was not improving in other areas and was still having problems filling out financial forms. In response to Petitioner's poor performance, Moore drafted a "Corrective Action Counseling Memo" on September 5, 1995. The memorandum addressed each of Petitioner's deficiencies and required certain corrective action. In addition, it warned her that any "future complaints or violations will result in termination." On September 12, 1995, Moore and Petitioner met concerning Petitioner's inability to meet the job standards. Petitioner was also put on notice that she must start looking for a different position in the Halifax Community Health Systems network as her employment as a Resource Specialist at the Hospice would end in three months. Two days later, Petitioner told Moore that it was Moore's responsibility to find her a new job. In an effort to assist Petitioner, Moore advised her to contact all of the entities under the Halifax umbrella. On September 1995, Petitioner continued to have performance problems, including a failure to report to work until noon one day, filling out incomplete and incorrect billing status forms, and failing to provide documentation to Moore in a timely manner. She also failed to timely meet with other Hospice social workers, as instructed by Moore on September 12. Although Petitioner was told in September that she had three months to find another position, she was allowed to remain in her Hospice job for several additional months because of her lack of success in finding a new job. Finally, on January 8, 1996, Petitioner was told her last day would be April 8, 1996. A Termination Voucher prepared on April 8 lists unsatisfactory ratings in the areas of job knowledge, quantity of work, and quality of work. It also relies upon "extensive notes in Personnel files" as a basis for discharge. There was no discriminatory animus on the part of Respondent in the termination decision, and it was based wholly on Petitioner's poor job performance. Notwithstanding the above, Petitioner points out that she received overall "satisfactory" job evaluations in the October 1990, April 1991, April 1992, and June 1993. While this may be true, beginning at least in April 1993, Petitioner's evaluations contained deficiencies, which persisted for several years until her termination. Petitioner also contends that beginning in 1994, when Moore became her supervisor, she suffered racial abuse in the workplace through comments made by other workers, and that she was assigned "dirty jobs" that other white employees were not required to do. Aside from the lack of corroborating evidence from any other witness to support these contentions, Petitioner never complained about the comments until the hearing. Moreover, none of the alleged statements were made by supervisors or managers who were decisionmakers at the Hospice. Petitioner also asserted that she was treated differently from other Resource Specialists when she was terminated. Besides Petitioner, Moore supervised only one other Resource Specialist, Carole Pope, a white employee, at the time of termination. During Moore's tenure as supervisor, Pope and Petitioner had the same responsibilities, and their assignments were divided by geographic area, not racial lines. Both Resource Specialist positions were apparently eliminated through a corporate "restructuring" in the spring of 1996, with Pope being transferred to a financial position in the psychosocial department and Petitioner being terminated for cause. However, there was no evidence that Pope suffered from the same job deficiencies as did Petitioner, or that Pope was given preferential treatment over Petitioner. A contention that other unnamed "white employees received favorable evaluations" during this same time period so that they would be placed in "related job openings" lacks credible evidentiary support. Another assertion that Petitioner's poor evaluations were attributable solely to Moore is not accurate. The record shows that even when Grimm was supervisor, Petitioner's performance was criticized by Grimm in several respects. The date on which the original complaint was filed is a source of confusion. In an amended letter of transmittal of the case to the Division of Administrative Hearings (DOAH) dated April 26, 2000, the then Commission Agency Clerk indicated that "[o]n April 14, 1996, Petitioner filed a Charged [sic] of Discrimination with the Commission[,]" and that the complaint had been assigned a 1997 case number (97- 0063). However, the Charge of Discrimination referred to DOAH was executed by Petitioner on February 26, 1998, or almost two years after she was discharged from employment, and Petitioner testified that this was the only paper she filed with the Commission. She also acknowledges this fact in her Proposed Recommended Order. Whether Petitioner filed a similar charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 365 days after the alleged discriminatory act, and if so, intended that filing to be a "dual filing" with the Commission, is not of record. It is also unknown whether the Commission and EEOC had a work- sharing agreement in 1996 and 1997.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination, with prejudice. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 October, 2001. COPIES FURNISHED: Azizi Dixon, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sandra F. Jackson 828 White Court Daytona Beach, Florida 32114 John W. Bencivenga, Esquire Thompson, Sizemore & Gonzales, P.A. Post Office Box 639 Tampa, Florida 33601-0639
The Issue Whether Jupiter Medical Center committed the unlawful employment practices alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is from the Philippines and is a Filipino citizen. He is now, and has been since approximately February 2000, a legal resident of the United States. JMC operates a 156-bed hospital (Hospital) located in Jupiter, Florida, which has a medical laboratory (Laboratory) that is "open twenty-four hours a day, seven days a week." At all times material to the instant case, Kathleen Rogers was the director of the Laboratory and Sherry Miller was the assistant director of the Laboratory. Petitioner was hired by JMC in October 2000, as a medical technologist to work in the Laboratory. He worked in the Laboratory as a medical technologist, under Ms. Rogers' supervision, from October 2000, until his employment was terminated on June 6, 2003 (Employment Period). During the Employment Period, Jeanne Wiley also worked as a medical technologist in the Laboratory under Ms. Rogers' supervision. Ms. Wiley did not exercise any supervisory authority over Petitioner, nor was she part of the JMC management team. Ms. Rogers was responsible for Petitioner's hiring. She "hired him at the maximum [salary] that anybody coming in at th[at] level could be paid" under JMC's race/religion/gender- blind pay scale. Petitioner received pay raises during the time that he worked for JMC. There were other Laboratory employees who were paid less than Petitioner. None of these employees was Asian. John Lambiase was hired by JMC as a medical technologist to work in the Laboratory in 2003, shortly before Petitioner's termination. At the time of his hiring, Mr. Lambiase had less education and experience than did Petitioner. Nonetheless, Mr. Lambiase's starting salary of $17.80 per hour was $0.38 per hour more than Petitioner was making.2 This disparity in pay was the product of market conditions and had nothing to do with either Mr. Lambiase's or Petitioner's race. The position that Mr. Lambiase filled had been vacant for approximately eight months despite JMC's recruiting efforts. "[D]esperate" to fill the vacancy, Ms. Rogers requested and obtained from JMC's human resources department "special permission" to hire Mr. Lambiase at the going market rate. During the Employment Period, JMC had a human resources administrative policy and procedure manual (Manual), which was made available to all employees, including Petitioner. The Manual contained, among other things, an anti-discrimination and anti-harassment policy, a grievance procedure, a "Time and Attendance" policy, and a progressive discipline policy. The progressive discipline policy stated, in pertinent part, substantially the following with respect to "Verbal Warning[s]," "Written Conference Records," and terminations: Verbal Warning: "Informal counseling" will be regarded as a daily on-going process through which management may communicate necessary information to his/her staff. Such information may include both positive comments and/or areas in need of improvement. In either case, management may wish to utilize "Employee Action Assessment" for the following purposes: To justify pay for performance adjustment decisions and to confirm performance appraisal accuracy. To document excellence for promotional opportunities. To document "reoccurring" performance/behavior/work habit problems that individually do[] not yet require formal documentation, (i.e.) "Written Conference Record." Employee Action Assessment entries will be shared with the employee within a reasonable time of management's observation or date of discovery. Employee Action Assessments need not be shared with Human Resources but rather maintained by the appropriate manager to be used as outlined above. Written Conference Records: Unless immediate suspension pending investigation or termination is necessary, an employee will receive a documented "Written Conference Record" which will delineate steps toward correction of the problem. The completed Written Conference Record process should take place within (3) three business days of the date of discovery, unless the employee has been temporarily suspended pending investigation or if interrupted by a Medical Center holiday. In the case of the latter, the process should be completed by the next business day. The Chief Human Resource Officer or Assistant Director of Human Resources will review and approve all "Written Conference Records" prior to management meeting with the employee. All employee "Written Conference Records" shall be documented on a Jupiter Medical Center "Conference Record" form and ultimately filed in the Human Resources Department. The employee is encouraged to review and record personal comments and sign the form. While employees are encouraged to respond [to] and sign the form, responding to, or signing the form merely indicates that the action was discussed with the employee, not that the employee agrees or disagrees with the corrective action. All completed "Written Conference Record" forms should be received by the Human Resources Department within (3) business days. A completed "Written Conference Record" form will be appropriately signed and dated by the manager, employee, if agreeable, and a managerial witness from the same department. A witness's signature will acknowledge that the information was thoroughly discussed with the employee in an appropriate manner. Any combination of three appropriately documented "Written Conference Records" within an eighteen-month (18) period will constitute grounds for termination unless otherwise noted on the "Written Conference Record." In such instances, fewer than (3) repetitions of some violations may [warrant] termination. . . . No department, other than the Human Resources Department will maintain formal "Written Conference Records" in their files. Informal documentation such as "employee action assessments" and/or employee attendance record may be kept within individual department files. A "Written Conference Record" should be available to support any performance appraisal standard scored as "needs improvement." Suspension and Termination: * * * 5. Terminations reviewed and approved by the Senior Manger will be forwarded to the Chief Human Resource Officer or the Assistant Director of Human Resources for review and final approval. A letter of termination must be coordinated through the Asst. Dir. of Human Resource[s] outlining all documentation used to justify the termination and to act as a notice to the terminated employee regarding [his or her] grievance rights and need to return certain Medical Center property. * * * Petitioner's employment with JMC was terminated, consistent with the above-referenced progressive discipline policy, because, in less than 18 months, he had accumulated three "Written Conference Records" (all of which were given to him by Ms. Rogers and, before becoming a part of Petitioner's permanent record, were reviewed and approved by JMC's human resources department). Petitioner's race played no role whatsoever in his receiving these three "Written Conference Records"3 or in his being terminated. There has been no showing that any other employee at the Hospital received three "Written Conference Records" within an 18-month period and remained employed. Petitioner received the first of these three "Written Conference Records" in September 2002. It read as follows: REASON FOR CONFERENCE: . . . . On August 23, 2002, Ramuriel reported out a 7.3mmol/L potassium result.[4] Ramuriel did not meet laboratory competency standards because he did not follow the attached laboratory procedure: NOTIFICATION OF LABORATORY VALUES. Procedures specifically not followed are: -2.1.1 "Verify the quality of the specimen" and "Recollect specimens immediately if specimen is suspect" 2.1.3 "Notify the physician/patient care personnel when patient is outside the hospital." Ramuriel failed to meet Human Resources 6.7a, a Class II violation, "Performance of duties below standard that continue after a reasonable period of appraisal and training." ACTION PLAN FOR IMPROVEMENT: . . . Ramuriel will immediately improve his technical skills and follow all laboratory policies, especially G.4.2 "Notification of Laboratory Values." Failure to meet JMC standards of competency will lead to further disciplinary action, up to and including termination. Ms. Rogers learned of the violation cited in this "Written Conference Record" as a result of a "physician complaint" (and not from Ms. Wiley).5 In giving Petitioner this "Written Conference Record," she did not treat him any differently than she treated other medical technologists who committed similar violations. Petitioner did not grieve his receipt of this "Written Conference Record," nor did he write anything on this "Written Conference Record" in the space provided for "[e]mployee [c]omments." The next "Written Conference Record" Petitioner received concerned an on-duty verbal altercation Petitioner had in January 2003, with another medical technologist working in the Laboratory, Susan Goldstein. Ms. Goldstein also received a "Written Conference Record" from Ms. Rogers for her participation in the altercation. Petitioner's "Written Conference Record" read as follows: REASON FOR CONFERENCE: . . . . On January 17, 2003, Ariel requested another employee to work in the coagulation section. The fellow employee stated she was busy helping a new employee with chemistry. The workload did not justify his request (see attached report). The coworker stated Ariel called her lazy when she refused to leave chemistry. Coworkers and supervisors do not feel Ariel is a patient focused team player and are unable to discuss workflow and cooperation with him. It is the policy of the Laboratory and Jupiter Medical Center to complete all tasks and work as a team to the benefit of our patients. Ariel violated Personnel Policy 6.7 group II.y "Other actions determined by management to not be in the best interest of the Medical Center." ACTION PLAN FOR IMPROVEMENT: . . . Ariel will immediately put the patient first, and remain focused on patient testing. The evening shift must work together as a team, and Ariel needs to be a member of this team. Petitioner grieved his receipt of this "Written Conference Record." Petitioner's grievance was ultimately presented to JMC's Chief Operating Officer, who reached the following "conclusion," which she reduced to writing on March 25, 2003: This investigation has revealed substantial agreement about the facts of the incident itself by all parties. The facts regarding the incident do merit a Written Record of Conference in accordance with Jupiter Medical Center Policy. The Record should be amended to show that the lack of teamwork referenced was agreed by the Department Man[a]ger to be primarily limited to the one employee involved in this incident and does not extend to the entire Department. With the amendment, the Written Record of Conference should be a permanent part of the employment file of Mr. Orlino. Following his receipt of the Chief Operating Officer's written "conclusion," Petitioner took no action to "continue with [his] grievance." As a result, pursuant to the grievance procedure set forth in the Manual, the Chief Operating Officer's written "conclusion" became the final resolution of Petitioner's grievance. The last of the "Written Conference Records" Petitioner received was for repeatedly violating, after being warned on "multiple occasions" to stop,6 that portion of JMC's "Time and Attendance" policy, which provided that "employees will not badge in more than seven minutes prior to the start of their shift." This "Written Conference Record," which was given to Petitioner on June 6, 2003, read as follows: REASON FOR CONFERENCE: . . . . See attached list of dates and times of Ramuriel's timeclock punches. Beginning on March 17, 2003 through May 24, 2003, Ramuriel has failed to badge in at the correct time. Ramuriel is establishing an unacceptable pattern of badging in for work early and leaving early. Ramuriel has violated Human Resources Policy 6.7.a, "Insubordination- refusal or failure to follow instruction or established practices of the Medical Center," a Class I violation. Ramuriel was informed of the correct badging practice verbally on March 3, 2003 and by mailbox on March 17, 2003. Again the policy was reviewed at the April 2, 2003 general laboratory meeting, which Ramuriel attended, and [he] reviewed and initialed the minutes which included the time clock policy. ACTION PLAN FOR IMPROVEMENT: . . . See associated letter. There has been no showing that any other Laboratory employee engaged in similar insubordinate conduct and did not receive a "Written Conference Record." Petitioner did not grieve his receipt of this "Written Conference Record" because he knew that he was in the wrong; nor did he write anything on this "Written Conference Record" in the space provided for "[e]mployee [c]omments." The "associated letter" in the "Written Conference Record" was a June 6, 2003, letter to Petitioner from Ms. Rogers, advising Petitioner of his termination. It read as follows: On August 23, 2002, you failed to meet laboratory competency standards or follow laboratory procedure. This is a Class II violation of Human Resources Policy 6.7- Discipline (a) "Performance of duties below standard that continue[s] after a reasonable period of appraisal and training." On October 23, 2002, you failed to meet laboratory competency standards or follow laboratory procedure. This is a Class II violation of Human Resources Policy 6.7- Discipline (a) "Performance of duties below standard that continue[s] after a reasonable period of appraisal and training."[7] On January 17, 2003, you failed to work as part of a team. This is a Class II violation of Human Resources Policy 6.7- Discipline (y) "Other actions determined by management to not be in the best interest of the Medical Center." Beginning on March 17, 2003 through May 24, 2003, you failed to badge in at your scheduled time, which is a violation of Human Resources Policy 6.7- Discipline, "Insubordination - refusal or failure to follow instructions or established practices of the Medical Center." Mr. Orlino, as a result of your actions, as denoted above, Jupiter Medical Center is terminating your employment effective immediately. You have the prerogative to utilize Jupiter Medical Center's grievance procedure; human resource policy 4.1, if you feel your termination is unjust. If you decide to grieve such a decision should be made within five (5) business days of June 6, 2003. In your absence, Jupiter Medical Center has elected to hand deliver this correspondence to ensure your complete understanding of the above events. Any compensation that you are eligible to receive will be paid to you on the hospital's next regularly scheduled payday. Please be aware that any hospital property, such as your ID badge, employee handbook, keys, uniform, etc. should be returned to the Human Resources Department. The final decision to terminate Petitioner was made, in accordance with JMC policy, by JMC's human resources department. Ms. Wiley did not provide any input in the making of this decision. Petitioner did not grieve his termination. At no time during the Employment Period did Petitioner ever utilize the procedures available to him under the Manual to complain that he was being discriminated against or harassed on the basis of his race; and there is no indication in the evidentiary record that, as a JMC employee, he was ever the victim of race-based discrimination or harassment.8 On May 24, 2005, almost a year after his termination, Petitioner filed an employment discrimination charge with the FCHR, alleging for the first time that he was the victim of anti-Asian discrimination. There are currently three or four Asian employees working in the Laboratory. They were all hired by Ms. Rogers following Petitioner's termination. None of these employees has received a "Written Conference Record."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding JMC not guilty of the unlawful employment practices alleged by Petitioner and dismissing his employment discrimination charge. DONE AND ENTERED this 14th day of August, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 14th day of August, 2006.
The Issue The issue for determination in this proceeding is whether the Respondent discriminated against Petitioner on the basis of handicap under Section 760.10, Florida Statutes, or disability under the Americans with Disabilities Act (ADA), by failing to award him the physical science/chemistry teaching position at Nease High School.
Findings Of Fact Petitioner applied for a position in 2002 and renewed the application in 2003. As a result of the 2002 application, Petitioner was offered a job, which he declined before attending orientation. On the 2002 application, Petitioner fully disclosed that he had been found guilty of DUIs in 1986 and 1988. In 2004, Petitioner became aware of a teaching position as teacher at Nease High School in the Respondent's school system. He was very interested in the position, called about the position, and was told that he must update his application on-line, which he hurriedly did. He was interviewed by Robert Corson, who was then the vice principal of Nease, who found that he was well qualified as a graduate of the U.S. Naval Academy with a degree in engineering who had taken three or four courses in physics. Petitioner was not certified, but there would have been no problem in getting him a temporary certificate that would permit him to teach while taking education courses to qualify him for certification in Florida. Corson observed that there were not a large number of quality applicants for hard science positions today, and Petitioner was the best qualified of the three candidates who applied. Just before orientation, Respondent's Human Relations (HR) office called and advised Corson that there was a problem with Petitioner's application because he had failed to report an arrest. It was normal for HR to tell the school the nature of the problem. HR told them that they would have to repost or re- advertise for the position, which they did. Corson reported that he failed to establish contact with Petitioner, but that the HR office was able to stop him at the orientation as he entered, and have Petitioner call the HR office. When Petitioner called, the HR office advised him that the employment offer was withdrawn. Petitioner first went to Corson. Petitioner wanted to see the principal of Nease, Mr. Schiavone, but Petitioner was so upset that Corson told him that he would not help himself unless he calmed down. Petitioner and Corson discussed the fact that Petitioner reported the arrests on the initial application, and Corson explained that it was out of his hands, and was an HR issue. Petitioner told Corson that he was going to the HR office. Petitioner went to the HR office and spoke with Mr. Springfield, the head of HR. Ms. Geiger, the head of the Instructional Employees' branch of HR sat in on the meeting. From the testimony of Mr. Springfield, it is fairly certain that he presented the problem as a matter of Petitioner lying on his application. This was the term that Springfield used in testifying at hearing. Petitioner explained that, while he may not have completed the on-line application correctly, he certainly did not intentionally misrepresent the matter of his arrest because he had reported them in his initial application. Ms. Geiger looked in the files under O'Brien's previous job offer, and found his initial application, which reported the DUIs as Petitioner had stated. Therefore, Springfield knew on the day the offer of employment was withdrawn that there had been no intent by Petitioner to misrepresent his qualifications. There was testimony presented by the Board about its procedures, and the superintendent's requirement that all job offers be withdrawn when a background check failed to agree with an applicant's application. After the matter of the "lie" had been resolved, the position of Springfield was that Petitioner would have to reapply for the position. This Petitioner did on that afternoon. There was no conflict regarding the correctness of his second application, which did report the DUIs. It is at this point that conflicts develop in the testimony, and there is a departure from normal procedures. Springfield testified that he could not remember if Petitioner was told that he must provide proof of "treatment" with regard to the DUIs. Geiger, who was present at the meeting, testified that Petitioner was told that he must provide proof of "treatment." Petitioner did not testify. Geiger testified that she did not follow the normal procedures of writing a letter to Petitioner outlining what he must do in response to the problems with his first on-line application because he was told these things at the meeting. Geiger made a memo to herself to follow up on Petitioner's application and on July 22, 2004, sent him an e- mail "reminding" him to submit proof of treatment. On July 27, 2004, Petitioner brought his Navy medical records to Geiger for her review and based thereon she and Springfield cleared him making him an "active" applicant. Unfortunately, Nease filled the position on July 26, 2004, by hiring Ms. Nall, a certified science teacher, who was presumably not handicapped. Petitioner asserts that the withdrawal of the job offer and denying him the position was discriminatory and based upon perceived disability. The Respondent asserts that it was just following standing procedures.
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 its Final Order directing that the Respondent cease and desist in the practices mentioned; that the Respondent be directed to hire the Petitioner upon his submitting an application for employment. Jurisdiction is retained for factual consideration of the damages to include costs and fees upon entry of the Commission's final order. DONE AND ENTERED this 29th day of December, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 December, 2005. COPIES FURNISHED: Karen J. Gallagher Qualified Representative 124 North Cove Drive Ponte Vedre Beach, Florida 32082 Thomas J. Leek, Esquire Kelly V. Parsons, Esquire Cobb & Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491 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
Findings Of Fact Respondent, PPC Products Corporation (PPC), manufactures power transistors, recitifers, diodes, and semiconductors. Approximately 80 percent of its business deals with government contracts. Petitioner is Sandra Boatwright, a black female, who worked for PPC for sixteen years. During her career with PPC she received good evaluations. In September 1989, Ms. Boatwright was working in the marking section of the production department. Her duties included putting product units in an oven and removing the units at the end of the baking period. She was a line leader with two to three employees reporting to her. Ms. Boatwright's immediate supervisor was Blynn Gause, the manager of the production department. Stringent government requirements called for the brands on the products to be permanent. During the summer of 1989, a problem had developed concerning the permanency of the marking or branding of the units. Some of the brandings were coming off prematurely. Mr. Gause asked Dolf Storz an employee in the engineering section to find a solution. In order to eliminate possible causes of the problem, Mr. Storz instituted the use of a logbook in the marking section to record the time the units went in and came out of the oven. Logbooks were a common requirement by the engineering section as a means of gathering data. In September 1989, Mr. Storz took the logbook to the marking section and requested the employees, including Ms. Boatwright, to use it. Ms. Boatwright admitted that, contrary to her initial charge, Mr. Storz was never her supervisor. In the latter part of September 1989, after Mr. Gause had returned from a vacation, Ms. Boatwright complained to him that Mr. Storz had been "acting like a king" while Mr. Gause had been away and requested a meeting to discuss the matter. On October 3 Ms. Boatwright, Mr. Gause, and Mr. Storz met in Mr. Gause's office. The discussion centered around the logbook, which the marking section had not been using. Ms. Boatwright did not feel that it was necessary to use the logbook because the marking section was already using an informal logbook to track the units in production. Mr. Storz's position was that the logbook was required by the production specifications and the informal logbook did not record the times the units went in and came out of the oven. Mr. Gause resolved the issue by requiring Ms. Boatwright and the other employees in the marking section to use the engineering log book. Ms. Boatwright thereafter used the engineering log book. On October 3, 1989, the process specification for the marking process, Device Branding Process Specification No. 200-140 was changed to require that the oven data be recorded in a logbook. This change was called Revision J. Ms. Boatwright signed off on this change. Race had nothing to do with the requirement that a marking logbook be maintained. Mr. Gause never advised Ms. Boatwright that he treated whites better than blacks. There was no disparate treatment of Ms. Boatwright in the terms and conditions of Ms. Boatwright's employment with PPC. In mid September 1989, a vacant position in the Lorlin automatic test area of the quality control department was posted. Ms. Boatwright had previously worked in the quality control department. Some time during late September or early October 1989, Ms. Boatwright approached Marleen Williams Coker (Ms. Williams), the quality manager, and asked to be transferred to that position. Ms. Boatwright knew the position was not a supervisory position. Ms. Williams told her she would agree to the transfer but Ms. Boatwright would have to talk to Mr. Gause about the transfer. Ms. Boatwright told Mr. Gause that she wanted to transfer to the quality control department. Mr. Gause, Ms. Williams, and Mindy Hill, the general manager of PPC, discussed the transfer. Although such a transfer was not common in the company due to the necessity for retraining the transferring employee, they agreed to approve the transfer due to Ms. Boatwright's long-term employment with the company. Although the position in quality control was a lower position than her position in production, Ms. Boatwright's pay was not cut. The transfer was approved in early October with an effective date of October 24, 1989. After the approval was given, applications were discontinued for the posted position, a decision was made to combine two other sections with the marking section, a new position with different tasks and responsibilities was created to oversee the merged sections, and the engineering section was contacted to move an engineering employee to the new position. Sometime between the approval and the effective date of the transfer, Ms. Boatwright changed her mind about wanting to transfer. Mr. Gause, Ms. Williams and Mindy Hill met to discuss Ms. Boatwright's change-of-mind. Ms. Hill decided not to reverse the transfer because of the changes that were being made to accommodate the transfer. Race played no part in the decision to allow the transfer or in the decision not to reverse the transfer. Ms. Boatwright's transfer from production to quality was not involuntary. Ms. Boatwright began working in the testing area of the quality control section on October 24, 1989. There were two other employees in that section, Steve Matthey and Mary Lou Rouse, who was the line leader for that section. Ms. Boatwright and Mr. Matthey reported to Ms. Rouse, and Ms. Rouse reported to Ms. Williams. In January 1990, Ms. Boatwright received a good performance evaluation from Ms. Williams. On February 10, 1990, Ms. Boatwright received a pay increase. On March 14, 1990, Ms. Boatwright filed an employment discrimination charge against PPC, alleging that she had been discriminated against based on race in the terms and conditions of her employment. Specifically, she alleged that in the middle of 1989, that all the white line leaders were promoted to supervisory positions and that she, a black, was not promoted. At the hearing Ms. Boatwright stated this allegation was incorrect and should be for the years 1984 through 1990. She alleged that she received increased scrutiny on her work, and her non-black coworkers did not. She charged that Mr. Gause had told her that he treated whites better than blacks. Her complaint stated that she had inquired about a transfer and later informed Mr. Gause she was not interested in the transfer, but was transferred anyway, resulting in a loss of job responsibilities and supervisory promotional opportunities. Each PPC employee is issued an employee handbook, which contains information on various employment related topics, including promotional opportunities. If an employee was interested in an opening, the employee was to contact his supervisor to make sure he was considered and if an employee was interested in advancing to another position, the employee was to discuss it with his supervisor to determine what additional skills or education might be needed to qualify for the position. Ms. Boatwright never discussed supervisory promotional opportunities with Mr. Gause or Ms. Williams, and never inquired of them what education or skills she might need to qualify for a supervisor position. No evidence was presented to show that Ms. Boatwright ever applied for a promotional opening. The employee handbook states that the final decision to promote would be based on the employee's demonstrated skills and capabilities, the employee's experience, education and service with PPC. One of the biggest factors to be considered is the employee's past work performance. In order to qualify for a supervisor position an employee would have to have knowledge of the area that the employee would be supervising, including the equipment and process specifications, to be able to supervise personnel, including disciplining personnel, and to be able to generate reports. Based on Mr. Gause's observations of Ms. Boatwright's past performance in dealing with personnel, she would not be qualified to handle disciplinary matters. As a line leader, Ms. Boatwright brought all personnel problems to Mr. Gause for him to resolve. In 1989 and 1990 there were no promotions from line leader to supervisor at PPC. No evidence was presented to show whether there were promotions from line leader to supervisor during the years 1984 through 1988. Race played no part in Petitioner's lack of promotion in marking and production. PPC maintains an affirmative action plan and annually files an Equal Employment Opportunity Employer Information Report EEO-1. The affirmative action plan, which is updated annually, sets forth PPC's policy with respect to equal opportunity for all employees in hiring, employment practices, recruiting, training, terms and conditions of employment, and compensation. Ms. Boatwright was in Production I job classification for purposes of PPC's Equal Employment Opportunity reports. From 1987 through 1992, the statistics collected by PPC indicate that PPC utilized more minorities and females in Ms. Boatwright's job classification than were available in the general work force in Palm Beach County. The employee handbook states that leaving early is the same as being absent. Before leaving early, an employee must have prior approval from his supervisor, preferably a day in advance. On April 2, 1990, Ms. Williams fired Audrey Shanahan, a white female, for leaving work without informing her supervisor or department manager. The employee handbook states that if work is not available in the employee's area the employee may be assigned another task. The handbook provides for immediate discharge for insubordination. Each employee is expected to follow the work instructions of his immediate supervisor or any other person having the authority of supervisor. If the employee does not think that the instructions are legitimate, the handbook tells the employee to do the work instructed and then take up his complaint with the appropriate person in authority. Bobby Mills was a quality manager at PPC in 1990. He and Ms. Williams were of equal rank, but supervised different sections. Both reported to Mindy Hill, the general manager. When Ms. Williams was absent from work, Mr. Mills would supervise her section as well as his own. When Ms. Williams was present on the job, Ms. Rouse, as line leader, would relay employee requests for permission to go home early to Ms. Williams for a final decision. Ms. Rouse would then relay Ms. Williams' decision to the employees requesting to leave early. On May 2, 1990, Ms. Williams was absent from work, and Mr. Mills filled in for her. Work in the Lorlin testing area was slow on that day, although work was expected to come later in the day. Ms. Boatwright had asked her line leader, Ms. Rouse, for permission to go home at lunch because of the lack of work. Ms. Rouse, believing that she had the authority to grant the permission in Ms. Williams absence, told Ms. Boatwright that she could go home early. Mr. Mills, observing that Ms. Boatwright, Mr. Matthey, and Ms. Rouse were not working, inquired of them why they were not working. Ms. Boatwright told Mr. Mills that she was going to go home at lunch. Mr. Mills informed the group that they could work in another area or go home then. Ms. Rouse told him she could not afford to go home early and she went to another area to work. Mr. Mills left and came back a few minutes later and told both Mr. Matthey and Ms. Boatwright to go to the back to work. Both indicated that they were going to go home early, which they did. To Mr. Mills, their leaving constituted a refusal to follow orders and was therefore insubordination. Although Mr. Mills had the authority to fire employees under his supervision without consulting the general manager, he did discuss the incident with Mindy Hill because Ms. Boatwright and Mr. Matthey were in Ms. Williams' section. He recommended dismissal; however, he was unaware at that time that Ms. Boatwright had filed a discrimination complaint. His recommendation for dismissal of Ms. Boatwright was not racially motivated. Mindy Hill made the final decision to dismiss Mr. Matthey and Ms. Boatwright for insubordination for leaving the workplace when requested to work. No evidence was presented to show that either race or retaliation played a part in her decision to terminate Ms. Boatwright and Mr. Matthey. Mr. Matthey learned of his termination when he spoke to Mr. Mills by telephone on the same day. Ms. Boatwright was verbally advised of her termination when she returned to work the next day. On February 26, 1991, Ms. Boatwright amended her discrimination charge to include her termination from employment with PPC. She alleged that she was discharged in retaliation for having filed a charge of unlawful discrimination under Title VII of the Civil Rights Act of 1964, as amended. The statistics collected by PPC for its affirmative action plans show that for the year October 1, 1989 through September 1990, thirty-four Caucasians and eighteen blacks were terminated. For the previous year, thirty-two Caucasians and twenty-four blacks were terminated. On October 8, 1992, the Equal Employment Opportunity Commission (EEOC) issued a Determination of No Cause relating to Ms. Boatwright's charges. The Florida Commission on Human Relations conducted a substantial weight review and issued a Redetermination: No Cause on April 8, 1993, adopting the October 8, 1992 determination of the EEOC. Ms. Boatwright filed a Petition for Relief on May 6, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner has failed to prove that Respondent committed an unlawful employment practice against Petitioner. DONE AND ENTERED this 27th day of December, 1993, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 27th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2647 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1 - Accepted in substance. Paragraphs 2 and 3 - Rejected as not supported by the weight of the evidence. Paragraph 4 - First, third, and fifth sentences accepted in substance. Second and fourth sentences rejected as not supported by the evidence. Paragraphs 5 and 6 - Accepted. Paragraph 7 - First and second sentences accepted in substance. Third sentence rejected as not supported by the evidence to the extent that there was no evidence to show that Ms. Rouse on prior occasions had given employees permission to leave early without getting approval from her superiors. Paragraph 8 - First, third and fourth sentences are accepted in substance. The second sentence is accepted to the extent that Petitioner did leave early but rejected to the extent that she left immediately after the conversation with Mr. Mills at which Ms. Rouse was present. Paragraph 9 - Accepted. Paragraph 10 - Rejected as subordinate to the facts actually found in this recommended order. Paragraphs 11 and 12 - Rejected as not supported by the evidence. Respondent's Proposed Findings of Fact. Paragraph 1 - Accepted. Paragraph 2 - Accepted except as to the date of hire. The evidence shows Ms. Boatwright began her employment on 2-8-74. Paragraphs 3 and 4 - Accepted in substance. Paragraph 5 - Rejected as unnecessary detail. Paragraph 6 - Accepted. Paragraphs 7 and 8 - Rejected as unnecessary detail. Paragraph 9 - Accepted. Paragraph 10 - Rejected as unnecessary detail. Paragraphs 11, 12, and 13 - Accepted in substance. Paragraph 14 - Accepted in substance. Paragraph 15 - Accepted in substance. Paragraph 16 - Accepted in substance. Paragraph 17 -Accepted. Paragraphs 18-22 - Accepted in substance. Paragraph 23 - The first sentence is accepted in substance. The second sentence is rejected as not supported by the evidence. Paragraph 24 - Accepted. Paragraph 25 - Accepted in substance. Paragraph 26 - The last sentence is rejected as unnecessary detail. The remainder is accepted in substance. Paragraphs 27, and 28 - Accepted in substance. Paragraph 29 - To the extent that the first sentence infers that Revision J was in operation prior to 10-3-89, it is rejected as not supported by the evidence. Storz testified Revision J instituted the logbook requirement and was not signed off until 10-3-89. The remainder of the paragraph is accepted in substance. Paragraph 30 - Accepted in substance. Paragraph 31 - Rejected as unnecessary detail. Paragraphs 32, 33, 34, 35 - Accepted in substance. Paragraph 36 - Rejected as unnecessary detail. Paragraphs 37, 38, 39 and 40 - Accepted in substance. Paragraph 41 - The first sentence is rejected to the extent that it infers that Revision J was in effect prior to 10-3-89. The remainder of the sentence is accepted in substance. Paragraph 42 - Accepted in substance. Paragraph 43 - Accepted. Paragraphs 44, 45, 46 and 47 - Accepted in substance. Paragraph 48 - The third sentence is rejected as subordinate and unnecessary detail. The remainder is accepted in substance. Paragraphs 49, 50, 51. and 52 - Accepted in substance. Paragraph 53 - Accepted Paragraph 54 - Accepted in substance. Paragraphs 55, 56, and 57 - Rejected as subordinate. Paragraph 58 - Accepted in substance. Paragraph 59 - The last sentence is rejected as not supported by the evidence to the extent that the term "personnel" included. Ms. Rouse, Ms. Boatwright, and Mr. Matthey. The greater weight of the evidence shows that those three persons did not understand that Mr. Mills was their supervisor. The remainder of the paragraph is accepted in substance. Paragraph 60 - Accepted. Paragraphs 61, 62, 63, 64, and 65 - Accepted in substance. Paragraph 66 - The last sentence is rejected to the extent that Mr. Mills instructed Ms. Rouse to go to the back upon his return. Ms. Rouse left before Mr. Mills returned. The remainder is accepted in substance. Paragraph 67 - Accepted in substance to the extent that Ms. Rouse complied with his instructions prior to Mr. Mills leaving the testing area to inquire if there was work in another area. Paragraphs 68 and 69 - Accepted in substance. Paragraph 70 - The first and fourth sentences are accepted in substance. The remainder of the paragraph is rejected as unnecessary detail. Paragraphs 71 and 72 - Accepted in substance. Paragraph 73 - The last sentence is rejected as not supported by the evidence to the extent that Mr. Mills clearly revoked Ms. Rouse's permission. It is obvious that it was not clear to Ms. Boatwright, Ms. Rouse, and Mr. Matthey. The remainder of the paragraph is accepted in substance. Paragraph 74 - Accepted in substance. Paragraph 75 - Rejected as subordinate and unnecessary detail. Paragraph 76 - Accepted in substance. Paragraphs 77 and 78 - Rejected as unnecessary detail. Paragraph 79 - The first sentence is accepted in substance and the remainder of the paragraph is rejected as unnecessary detail. Paragraph 80 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 81 - Accepted. Paragraph 82 - Rejected as unnecessary detail. Paragraph 83 - Accepted. Paragraphs 84 and 85 - Rejected as unnecessary detail. Paragraphs 86 and 87 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 88 - Accepted in substance. Paragraph 89 - Accepted. Paragraph 90 - Accepted in substance. Paragraph 91 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 92 - Accepted in substance. Paragraphs 93 and 94 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 95 - Accepted. Paragraph 96 - Accepted in substance. Paragraph 97 - Accepted. Paragraph 98 - Rejected as constituting a conclusion of law rather than a finding of fact COPIES FURNISHED: Ms. Sandra Boatwright 390 West 33rd Street Riviera Beach, Florida 33404-33036 Terry E. Lewis, Esquire Robert P. Diffenderfer, Esquire Suite 900 2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issues to be resolved in this proceeding concern whether the Respondent discriminated against the Petitioner as to her race and age, and by retaliation, by terminating the Petitioner from her employment.
Findings Of Fact The Petitioner, Edna Lee Long, was a long-time employee of Chipola College. She was employed for approximately 35 years by the College until her resignation on or about November 1, 2007. Her resignation was the alternative she selected to avoid termination. Chipola College, the Respondent, is a public higher education institution located in Marianna, Florida. It employed the Petitioner as a "Department Associate, Library Services" at the time of her resignation. She was hired in 1972 to be employed in the library and was employed there since that time, until she left employment. The College maintains a policy governing its information networks and use of the internet. The policy governs all computer and internet usage by College employees, using College facilities and networks. The policy prohibits the viewing of sexually explicit material by employees. The intent of the policy is to avoid harmful viruses that could pose a security risk from third party access to secure information, including confidential student records. It is inferred from the evidence that the policy is also intended to assist and maintain a certain moral standard in employees employed in positions of trust, and in helping to prevent violations of law in connection with what might be potentially viewed or downloaded as sexually explicit material. While violations of this policy by students carries disciplinary implications, those measures are essentially designed to remove a student's internet or College network use privileges, on College computers, if it is violated, rather than more severe consequences. With regard to faculty and staff policy violations, however, a zero tolerance policy is in effect. Employees are held responsible for confidentiality of their computer user-name, access to their computer user account and keeping their assigned passwords confidential. The Petitioner acknowledged receipt of and understanding of this policy and agreed to abide by it as to use of networks and the internet. The policy provides that all individual computer accounts are for the sole use of the single individual for whom the account was approved. Users of the network, internet or other online services are responsible for protecting the network's security by keeping their passwords confidential, not using another's account, nor letting their own accounts be used by another. They are required to report all security violations, or policy violations, to the management of the College, in the person of its network administrators. Matthew White is the College's Network Coordinator and has responsibility to monitor internet usage on College computers. This is accomplished through the policy by the use of computer monitoring software and protocols. The software is designed to search for certain keywords, terms or phraseology which might characterize a violation of the above-referenced policy. If any of the keywords or terms surface from any website addresses, a report is generated which is reviewed by Mr. White at least once per week. If the report indicates that a computer at the College accessed unauthorized websites with certain of the keywords contained in the software and protocol, Mr. White convenes an investigation to learn which computer and which person accessed the objectionable site or material. Once the investigation is concluded, an incident report is prepared by Mr. White and he submits his findings to his supervisor. Eventually it is submitted to the Human Resources departmental office for further attention. On October 23, 2007, the Petitioner was scheduled to work the night shift at the library. She left work and picked up her son at his high school and returned with him to the library. He was going to stay with her at the library while she finished her work that evening, during which time he was to study and take a practice ACT college entrance exam. He was to take the practice test online and so he had to access the internet to do so. By her own admission, the Petitioner used her user name and password to "log him in" to the required website, using her office computer which had been assigned to her. The Petitioner admitted that she knew that this was violative of College policy. The evidence does not reveal that her password had been disclosed to any other person. After the Petitioner logged her son onto her computer, she returned to the circulation desk to continue her work. Her son thus had access to and operated her computer for approximately one and one half hours. During a significant portion of this time the Petitioner was not able to view her computer where her son was sitting. During this time period, many sexually explicit materials and pornographic materials were viewed on the College network from the Petitioner's computer, by a person logged in under the Petitioner's username and password. There is no dispute that significant numbers of sexually explicit and pornographic images were viewed by this means. Evidence presented by the Respondent demonstrates a complete list of the internet sites and usage from the Petitioner's computer, during the relevant time period when the Petitioner's son had access to the computer and the pornographic sites were viewed. The computer website use history also indicates that the college preparatory practice examination was accessed during the same general time period as the pornographic websites. The Petitioner was unable to explain the presence of the graphic websites on the website history of her computer. Her son denied any such use or viewing of such websites, according to the Petitioner. Clearly however, the ACT test site and the pornographic websites were viewed on the same computer, at the exact times when the Petitioner's son was admittedly logged on to the Petitioner's computer, with use of her password, on the College network. The explanation that the Petitioner's son may have viewed the pornographic materials in question played no part in the employment decision involved in this case, however. There was no evidence presented that the Petitioner, or any other person, ever told her supervisors, or College administrators of the explanation for the presence of the pornographic images and materials viewed prior to this hearing. The Petitioner simply denied her own involvement. The automatic monitoring software referenced above, resulted in the generation of a report concerning the referenced internet usage for October 23, 2007, which was triggered by certain keywords which showed potential violations of the referenced policy. Mr. White became aware of this monitoring report and conducted an investigation, with the resulting incident report, at the conclusion of the investigation. Under the subject policy, this is a standard procedure for handling suspected violations of the policy. Respondent's Exhibit 2, in evidence, shows the keyword that initiated the investigation which led to procedures being followed which enabled Mr. White to determine which computer had been used to access illicit images or materials. Thereafter, Mr. White researched the Petitioner's computer and searched for internet files. He created a log of the internet files from the Petitioner's computer, printed evidence of that usage, and confirmed the user name and password used for the Petitioner's computer and entered that information into his report. The website and pornographic images shown in that report are not simply spam e-mail received randomly or accidently from a third party. This is because Respondent's Exhibit 1, in evidence, shows actual internet usage and website traffic, originated from the Petitioner's computer and not merely received from a third party. The incident, in effect, involved active searching by the user of the computer during that relevant time period. The log, for example, shows illicit material was searched with the keywords "anime" and "porn" and the resulting websites that were viewed from that computer, derived from that search. There is no question that the items shown in Respondent's Exhibit 1 are very graphic and are not random "popup" images which appeared without being searched for. Mr. White also established that the Petitioner's password was used in accessing the sites. He concluded that an individual was actively looking at pornographic sites for about 45 minutes on the Petitioner's computer, using her user name which also required her password to access. In the absence of further explanation, the College administrators believed that the Petitioner had accessed the sites herself. Mr. White informed his supervisor, Dennis Everett, of the situation and submitted his report. It was soon thereafter brought to the attention of Karan Davis, the Associate Vice- President for Human Resources. Both White and Everett came to Ms. Davis with the incident report and the usage log for the Petitioner's computer and informed her of the inappropriate use of that computer with the Petitioner's username and password. Ms. Davis then determined that the Petitioner was working during the times in question, in the library, when the sites were viewed and her account thus accessed. She therefore determined that a violation of the subject policy had occurred. Ms. Davis then conferred with the College president who made the decision to either terminate the Petitioner or give her an opportunity to resign or retire. Ms. Davis approached Ms. Long on November 1, 2007, with the incident report, a sample of the internet usage from her computer, and a termination letter from the president. The Petitioner decided to accept retirement from her position rather than termination and is thus receiving retirement benefits at this time. Contrary to the Petitioner's belief, expressed in her testimony, there is no persuasive evidence that the Petitioner was targeted or that there was any conspiracy related to use of her password by others, possibly in the College administration, to, in effect, "plant" illicit materials or images on her computer in order to generate a reason for her termination. There is no persuasive evidence that her computer was accessed by a third party (other than her son) or that her password- protected security with regard to her computer was breached. The monitoring process used by Mr. White and the administration to monitor the College network, or the evidence regarding it, does not show evidence of a virus or a mistake made in that process. There is no credible evidence to show that the Petitioner's password was used by Mr. White or any other person in or out of the College administration. Only the Petitioner knew, or should have known, her password. If the password had been re-set by a third person using her computer, she would have known about it the next day. Moreover, even if Mr. White or others in the administration had access to her password, the un-refuted evidence shows, by her own admission, that the Petitioner used her password to give her son access to her computer and the internet on October 23, the day in question. It is very unlikely that, had Mr. White or others in the College administration intended to "frame" her or "plant material" on the Petitioner's computer for nefarious reasons, they fortuitously and coincidently selected that same day, and one and one-half hour time period to do so. If they knew her password, and intended to use it for such purposes, they could have done so anytime over a period of days, weeks, months or years. Ms. Davis's testimony is uncontradicted in showing that the College was not conducting any investigation of the Petitioner until Mr. White and Mr. Everett approached Ms. Davis concerning the violations shown on the Petitioner's computer history for October 23, 2007. In fact, the Petitioner was given consistently good employee evaluations by the College for the entire time period between the 1997 discrimination complaint, related to salary, and 2007. THE RETALIATION CLAIM The Petitioner has contended that she is being retaliated against by the employment action taken because of a 1997 charge of discrimination that she filed against the College, while she was an employee, with the Florida Commission on Human Relations. That controversy stemmed from her perceived pay inequity. It was resolved, however, by an agreed-upon settlement, which resulted in her receiving an appropriate pay raise at the time. Since that time, although she has met with and discussed salary issues with her superiors or supervisors, she has made no other formal complaints concerning salary issues or other issues. The Petitioner has conceded that her complaints or requests about pay, during the interim period of time since 1997, were not based on age or race issues and admits that she never filed any charge of discrimination concerning any salary issues since 1997. Ms. Davis was not shown to have retaliated against the Petitioner and had no knowledge of the 10-year-old complaint at the time the subject employment action was taken, or at least she had no recollection of it. Mr. White was not employed at the College in 1997 and had no knowledge of the previous complaint to the Commission. The Petitioner received favorable employment evaluations between 1997 and 2007 and received the regular cost of living salary increases in the same manner as other employees during that period of time. None of the evidence presented by the Petitioner showed any race or age-related issue concerning salary or pay grade treatment. Some employees were hired who were assigned some of the Petitioner's duties, but those were employees with more qualifications than the Petitioner. The Petitioner, at the time of the hearing, did not have a degree. The Petitioner contends that the results of a pay study, conducted by the College, were discriminatory. She apparently raised a concern about purported pay inequity sometime during the period 1999 through 2000 (and reiterated by her later). She sought pay equity and upgrading of her position in discussions with her supervisors. She was told to wait while a third-party consultant, hired by the College, completed a pay and salary range study. Ms. Davis told her that no position would be re-classified until after the study was completed. As a result of this study the "Department Associate" position was approved in October 2000 and the Petitioner was moved into that position with that job title in 2001. She did not receive a salary increase, however, at that time. The salary consultant's study developed revised position descriptions and included a market study for ascertaining appropriate pay or pay ranges for those positions. The consultant set ranges for those positions at the College and the recommendations were apparently adopted by the College. It was determined that if a particular employee was earning a salary which fell within the approved range then the employee was deemed to be appropriately paid. The Petitioner did not demonstrate that she was outside of an approved pay range for her duties and did not establish that the study, nor any of Petitioner's objections to her pay grade amount, had anything to do with the employment action taken on November 1, 2007, at issue in this case. It is noteworthy that only College employees who were receiving salaries below the minimum pay range for their job descriptions received any salary increases. There were also white males at this time who did not receive pay increases for that same reason, because they were already earning salaries at or above the minimum of their pay range for their job descriptions, as was the Petitioner. The Petitioner maintains that the facts surrounding a Southern Association of Colleges (SACS) accreditation study showed discriminatory motives on the part of the College directed at her. In essence, she contends that the SACS study showed that the College had misrepresented to SACS that the library was fully staffed when it was not. There were only five employees when the accreditation standards called for seven employees, under the circumstances prevailing at the time. The College then added the necessary number of employees and, upon receiving its accreditation, apparently in late October 2007, immediately thereafter terminated the Petitioner. That subjective belief on the part of the Petitioner has not been supported or corroborated by any persuasive evidence, however. There was no demonstrated relationship between the employment action taken against the Petitioner and the accreditation or results of the study. Although the Respondent has not hired for the Petitioner's position as yet, it still has a larger library staff than it did when the fault was found by SACS as to library staffing, during the accreditation study. There is no proven relationship between the Petitioner's announced and contemplated entry into the DROP program and the subject employment decision. There was no convincing proof that the employment decision had anything to do with her announcement about entering the DROP program versus the investigation made by the College concerning the Petitioner's computer usage or use of a password to allow another to use her computer wrongfully. The Petitioner has not established persuasive evidence which would show that the policy concerning computer and internet usage was discriminatorily applied. The Petitioner has shown that no similarly-situated comparator employees, outside her protected class were treated more favorably, either because of race or age. There were three similar instances shown by the evidence to have occurred at the College. No employee in those instances was treated differently than the Petitioner. Ms. Davis investigated and enforced a policy as to the similar violations in the same manner. All three comparator employees involved were given the opportunity to resign, retire, or be terminated. None of them was given a warning on a first offense. Those three comparators were not within the Petitioner's protected class because they were Caucasian. Two were Caucasian males and one was a Caucasian female. The males were, respectively, 46 and 61 years of age and the female was None of those comparators was given a second chance before termination or constructive termination. The Petitioner's belief otherwise was based upon hearsay and unsubstantiated rumor. Ms. Davis was directly involved in the employment actions taken against those comparator employees and established that no warning was given to any of them before they were terminated. No employee outside the Petitioner's protected class has been hired to replace her in her former position. In fact, her former position is still vacant. In summary, there is no preponderant, persuasive evidence to show that the Petitioner's resignation or retirement, which was a constructive termination, was based on age, race, or retaliation for engaging in earlier protected activity as envisioned in Chapter 760, Florida Statutes. There is no persuasive evidence that discrimination of the type complained of was committed by the Respondent against the Petitioner. It does appear, from the facts established by the evidence in this case, that the termination decision was a harsh one. The Petitioner had a consistently favorable employment record with the College and, certainly, if any employee was entitled to a warning before the ultimate penalty was exacted by the College, given the facts of this case, she should have been so entitled. It is true that, at the time of the termination, the College administrators apparently did not know that the Petitioner's son had been using the computer at the time in question. However, in the de novo context of this proceeding, since the discrimination claim was filed, the College has become aware of the fact that, although the Petitioner used her password wrongfully to log her son onto the College computer system and Internet, that the Petitioner herself had nothing to do with accessing the illicit websites at issue. This fact, coupled with the Petitioner's long-time good employment record with the Respondent shows, based upon the facts of record at least, that the employment decision was unduly harsh. No actionable discrimination of the type raised in this case was proven, however.
Recommendation Having considered the foregoing findings of fact, the conclusions of law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Petition for Relief be dismissed in its entirety. DONE AND ENTERED this 25th day of November, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2009.
The Issue The issue is whether Respondent should be terminated from employment for the reasons stated in the Final Disposition - Notice of Dismissal (Notice), dated October 11, 2017.
Findings Of Fact Background The College is a public institution of higher education charged with the responsibility of providing post-secondary education. Currently, there are approximately 33,000 students enrolled at the College. It has eight campuses, including the Tarpon Springs Campus. Seven of the campuses have Provosts, who report to the Senior Vice President of Student Services. The College is overseen by a five-member Board of Trustees (Board), each Trustee appointed by the Governor. In this contentious dispute, the College seeks to terminate Respondent from his position as Provost of the Tarpon Springs Campus, a position he has held since 2014 under an annual Contract for Employment for Administrative Personnel of Community Colleges. The contract has been renewed three times, most recently for a term beginning on July 1, 2017, and ending June 30, 2018. The College, however, can decline to renew his contract for no cause at the end of each term. The annual contract provides that "the Board may suspend or dismiss the Administrator [Provost] for cause pursuant to the applicable provisions of the Florida Statutes and the Board of Trustees' Rules and Colleges Procedures." Also, under Board Rule 6Hx23-2.2012 (rule 23-2.2012), the College can terminate contractual employees for "immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness or conviction of any crime involving moral turpitude." In this case, the College relies upon misconduct in office as the ground for dismissal. The contract requires Respondent to comply with all relevant statutes and rules of the State Board of Education, the State Board of Community Colleges, and the Board of Trustees. He also is required to comply with the terms of any College internal policies and procedures in effect at the time that his first contract became effective, and continuing throughout his term of employment. The position of Provost is a very high-ranking administrative position. The Provost is responsible for overseeing all aspects of student services, which includes student complaints of harassment and discrimination, as well as working in partnership with Academic Deans and the faculty. It is a highly visible position with the College and in the community. The College characterized the position as the "face" of the campus and the Tarpon Springs community. The Provost also serves on various community boards and organizations to represent the views of the College. At the time of Respondent's hire in 2014, the President was Dr. William Law, while Dr. Tonjua Williams served as Senior Vice President, Student Services. Dr. Williams is now the President and the one responsible for making the decision to terminate Respondent's employment, subject to confirmation by a majority of the Trustees. Shortly after his hire in 2014, the College became aware of allegations at his prior employment in Virginia, which involved an inappropriate relationship with a subordinate female employee. Dr. Law directed Dr. Williams to speak with Respondent about the allegations. Respondent acknowledged to her that the allegation was true, and, as a consequence, he was moved from a position on campus to a district office position. Dr. Law decided to give Respondent the opportunity to continue to serve at the College, but the expectations of the College with regard to his personal conduct were made very clear in a memorandum to Respondent from Dr. Williams. It stated in part that "it all boils down to exercising good judgment. Modeling good judgment is highly valued at [the College] and has a significant impact on staff morale, leadership effectiveness and student success." Respondent acknowledged in writing that he received the memorandum. According to the President, this established the expectation that he would always use good judgment in matters concerning the College. During his tenure at the College, Dr. Williams and Respondent had what she characterized as a "great relationship," "a very close working relationship," and one that was "open and transparent." She added "[t]here were no problems with us reaching each other when we needed to speak and talk." The Incident Around 1:30 a.m. on August 21, 2017, a physical altercation between Respondent and a female occurred at her apartment in New Port Richey. Although Respondent is married, the two had been involved in an affair for around two years. The female was not a student or employee of the College. On Thursday, August 31, 2017, Respondent was served with papers requiring him to appear for a hearing in circuit court on a domestic violence injunction involving the female. While attending the hearing on Friday, September 1, 2017, Respondent was arrested by the Pasco County Sheriff's Office and charged with two felonies, one for Burglary - Occupied Dwelling Unarmed (§ 810.02(3)(a), Fla. Stat.), and another for Battery - Commit Domestic Battery by Strangulation (§ 784.041(2)(a), Fla. Stat). Both charges related to the incident that occurred on August 21, 2017. After spending the night in jail, Respondent bonded out on Saturday, September 2, 2017. On October 26, 2017, the charges were dismissed by the State Attorney after he declined to prosecute the matter. Events After the Arrest The College was closed officially for Labor Day weekend on September 2, 3, and 4, 2017. On Tuesday morning, September 5, 2017, Respondent texted Dr. Williams asking, "can we talk privately tomorrow I have a home life situation but I need to converse with you." Respondent knew that Dr. Williams planned to attend a conference at the Tarpon Springs Campus the following day, and he intended to speak with her at that time. Dr. Williams responded "absolutely." Nothing in the text suggests the "home life situation" was related to a legal matter or criminal arrest or that there was any urgency in meeting with her. Nor did it suggest that the subject of the meeting involved something that could potentially affect the College's reputation or his continued employment. In fact, Dr. Williams assumed he wanted to discuss "a personal matter." Due to the threat of Hurricane Irma, then in the Gulf of Mexico and headed towards the state, Dr. Williams did not attend the conference the next day. Also, the College closed officially on September 6, 2017, due to the hurricane and did not reopen officially until September 18, 2017. With the approval of his supervisor, Dr. Rinard, Respondent flew to Maryland, where his wife and children reside. He did not return to Florida until September 13, 2017. During this intervening period, he did not attempt to contact his supervisor or the President regarding his arrest. Even though the College was closed for the hurricane, administrators continued to perform duties and responsibilities related to the safety and security of the College. Dr. Williams conducted at least two conference calls per day via telephone or Skype, where as many as 60 administrators would join in the call to discuss situations on the campuses. Although he was in Maryland much of the time, Respondent joined in the conferences on most, if not all, of those occasions. In fact, on Monday, September 11, 2017, he texted Dr. Williams regarding the situation on the Tarpon Springs campus, which had been conveyed to him by his staff. On September 12, 2017, Respondent texted Dr. Williams and advised he was returning from Maryland. The text stated in part: "I need to speak to you regarding a personal/family matter. I will discuss all in detail with you." Again, it made no reference to his arrest. After he returned to Florida the next day, Respondent and Dr. Williams agreed to meet on September 14, 2017, at a local restaurant. However, the President later informed Respondent that she was unable to make the meeting and needed to reschedule. She attempted to reach him later that day by telephone to reschedule the meeting but was unsuccessful. At that point, she assumed Respondent wished to discuss a personal family matter that did not involve the College. The two exchanged texts again on Sunday, September 17, 2017, but Respondent chose not to mention his arrest. Around noon on September 18, 2017, or 17 days after his arrest, Respondent telephoned Dr. Williams, and, in a 15-minute conversation, he advised her that he had been arrested on September 1, 2017, he was innocent of the charges, and he had retained counsel. He also told Dr. Williams that he was involved in a relationship with a woman that went awry, and the incident was not work-related. Respondent added that he had gone to court on September 1, 2017, to file a restraining order against the female, and he believed he was being scammed.1/ During the call, Dr. Williams told Respondent she needed more details. She specifically asked that he provide a police report with the details of the incident and the name of the victim to verify she was not a student. Dr. Williams also told Respondent that he needed to contact Dr. Rinard, his immediate supervisor, and tell him what had happened. Had Respondent been unable to reach Dr. Williams by telephone on September 18, 2017, his belated efforts to notify the President would be further delayed, as Respondent's first choice was to speak to her one-on-one, or if this was not possible, to discuss the incident by telephone. His actions also raise an inference that he always intended to speak with the President, and not his direct supervisor. Later that same day, September 18, 2017, Respondent spoke with Dr. Rinard by telephone. According to Dr. Rinard, Respondent "informed [him] that he had had an affair, that the woman he had an affair with had pressed charges, he was arrested, that these were all lies, that she was a thief, she had stolen property, [and he] admitted that he was wrong to have had an affair." Dr. Rinard asked Respondent if the incident involved a student or employee or occurred on College property. He was told it did not. He did not provide Dr. Rinard with the name of the victim. The following day, the two again spoke briefly while attending a Board meeting. Respondent asked if he needed anything more in reference to their conversation the previous day and Dr. Rinard answered "no." While at the Board meeting, Respondent spoke privately with a Board member, Trustee Gibbons, and disclosed that he had been arrested. On the evening of September 18, 2017, the President telephoned Respondent and commented that she was looking at the charges on a website. She said she needed more information regarding the incident, but Respondent told her he had no documentation regarding the arrest. During the call, Respondent asked the President to speak with his attorney who could provide any details that she wanted concerning the charges. Although Dr. Williams testified there was no agreement to speak with the attorney, Respondent's criminal attorney, Mr. Theophilopoulos, testified that he understood Dr. Williams had agreed to a conference call around 5:30 p.m. on September 20, 2017, so that he (the attorney) could answer any questions she had. Dr. Williams denies that a conference call was scheduled. Respondent contends otherwise and says he went to his attorney's office and waited for her to call at the scheduled time, and when she did not, they both attempted to call her from his office but were unsuccessful.2/ Whether or not such a call was scheduled, it is undisputed that it never took place. However, Dr. Williams telephoned Respondent around 6:11 p.m. on September 20, 2017, while he was driving home from his attorney's office. The Vice President of Administrative/Business Services & Information Technology, Mr. Miles, participated in the call. Mr. Miles has oversight of the Human Resources Department. During the call, Dr. Williams informed Respondent that he was being placed on administrative leave, with pay and benefits, effective that date. Again, she requested a copy of the police report or details of the incident, as the College needed more information so that it could properly assess the situation. Respondent replied that he had no written reports but his attorney had "new information" regarding the charges. Respondent was told to have his attorney contact the College General Counsel, Ms. Gardner. A few hours after the phone call, Respondent received a memorandum from Dr. Williams via email confirming that he was being placed on administrative leave, with pay and benefits, until further notice. According to Dr. Williams, this would give the College more time to thoroughly review the situation before deciding what action to take. At that time, the College still lacked the name of the victim and detailed information regarding the arrest. On September 20, 2017, Dr. Williams notified three of the five Trustees about the incident and shared with them the information she had gathered up to that point. She also told them she was still "working" on what action to take. Respondent decided to return to Maryland the same evening he was placed on administrative leave. He testified that while driving to Maryland, he received a call from Trustee Gibbons, who told him the Board had voted to not terminate him if he was cleared of the charges. This assertion was not corroborated, and there is no record of any Board meeting at which a vote would have taken place. The Termination Process On September 21, 2017, Dr. Rinard advised Tarpon Springs faculty and staff that Respondent had been placed on administrative leave and that an interim Provost had been appointed. That evening, Dr. Williams and Mr. Miles spoke with Respondent by telephone. They informed him that the College had not yet received information regarding the arrest and instructed Respondent to return his keys. Mr. Miles offered to meet with him to pick up the keys. However, Respondent, who by then was in Maryland, told them he had already mailed his keys to his attorney. The following day, September 22, 2017, through its own investigation, the College was able to obtain a copy of the Pasco County Complaint Affidavit providing additional details regarding the arrest. On Saturday, September 23, 2017, Mr. Miles left a voicemail for Respondent and reminded him that he wanted to meet with him to obtain the keys to College property. Mr. Miles also sent a text, which stated, "Dr. Williams asked me to obtain your work keys so I'm coming today," meaning that he (Mr. Miles) would drive to Respondent's home in Palm Harbor or the campus that day to retrieve the items. In response to Mr. Miles' request, Respondent replied by email that the keys had been sent to his attorney via Federal Express from Maryland. He added that if the College had any further questions, his attorney should be contacted. As of Monday, September 25, 2017, the College had not received any additional information from Respondent or his attorney regarding the arrest, and it had not received Respondent's keys or swipe card. On September 25, 2017, Dr. Williams determined that termination proceedings should begin. The same day, Dr. Rinard issued a memorandum recommending that Respondent be dismissed from employment. The basis for the recommendation was as follows: You have engaged in misconduct by not timely disclosing to the College your arrest and the charges pending against you. You have also engaged in misconduct by not providing the College with documentation related to your arrest and not returning the College's property upon request. You have also engaged in misconduct by not being truthful and forthcoming about the details of your arrest. The memorandum was actually prepared for Dr. Rinard's signature by Mr. Miles, who oversees the Human Resources Department and is also an attorney. According to the memorandum, Respondent's actions violated rule 23-2.2012, which authorizes the College to terminate an administrator for the offense of "misconduct in office." The recommendation also referred to rule 6Hx23-2.19, which outlines the procedure the College must follow when it proposes to terminate an employee. The following day, September 26, 2017, Respondent's attorney emailed the General Counsel asking for directions on where to return the keys and swipe card that were in his possession. She replied that all College property, including any electronic devices or computers, should be delivered to the security desk lobby of the district office in St. Petersburg. On September 28, 2017, five days after Dr. Williams' directive, the keys and swipe card were delivered and secured by the College. The College did not receive Respondent's college- owned laptop and other electronic devices until October 11, 2017. The Predetermination Hearing and Termination After the recommendation to terminate was issued, Respondent requested a predetermination hearing, which is afforded an employee before a decision is made regarding termination. On October 5, 2017, a hearing was conducted by the Senior Vice President of Instructional & Academic Programs, Dr. Anne Cooper, who had the authority to affirm, modify, or reject Dr. Rinard's recommendation. Respondent was accompanied by his attorney at the hearing. At the hearing, Respondent was provided a timeline of events. In response, Respondent presented his own timeline for reporting the arrest, as well as a written statement from the alleged victim in the incident which resulted in his arrest. On October 9, 2017, Dr. Cooper issued a recommendation to the President that Dr. Rinard's decision to terminate Respondent's employment be upheld. The recommendation is found in Petitioner's Exhibit 11. By letter dated October 11, 2017, the President advised Respondent that she was upholding the recommendation for dismissal because Respondent: Failed to timely advise supervisor and college administration of the arrest and nature of the charges; Failed to provide the college with information and requested documentation regarding the arrest and allegations; and Failed to immediately return college property as requested. These grounds differed slightly from those in the memorandum signed by Dr. Rinard on September 25, 2017. Whereas Dr. Rinard's memorandum stated that Respondent had failed to timely inform the College of his arrest and pending charges, Dr. Williams' Notice stated that Respondent had "[f]ailed to timely advise supervisor and college administration of the arrest and nature of the charges." Whereas the memorandum stated that Respondent had failed to provide the college with "documentation related to [his] arrest," the Notice stated that he had "[f]ailed to provide the college with information and requested documentation regarding the arrest and allegations." Finally, whereas the memorandum stated that Respondent had not returned the College's property upon request, the Notice stated that Respondent had "[f]ailed to immediately return college property as requested." Although Respondent contends he is prejudiced because the original charges were modified, the allegations in the memorandum and Notice are substantially the same, and Respondent did not demonstrate how he was prejudiced by the minor changes. No matter which set of charges apply, the College has established that the allegations are true. The College Regulations and Policies Both parties agree there is no specific College regulation that requires employees to immediately notify their supervisor or other College officials after they are arrested and charged with a crime. However, Dr. Williams stated there is an expectation that a high-ranking employee, such as a Provost, should immediately notify his supervisor, within one or two working days, given the repercussions to the College that might arise if and when the charges became public.3/ The College relies on rule 23-2.2012 as the "principal ground for prosecution in this case." That rule allows the College to dismiss an employee under written contract for "misconduct in office." The term is not further defined by rule or statute that is applicable to the College. Because Respondent is not a career service employee, the College cannot rely on procedures applicable to that category of employees. Analysis of Respondent's Conduct At hearing, Respondent characterized the incident as "a personal and private matter" that was unrelated to the College. However, he agreed he had an obligation to tell the President and Dr. Rinard about the incident so that the College would not be blind-sided if the incident became public. He contends he made good-faith efforts to contact Dr. Williams by texting her on several occasions to request a meeting. But none of the texts stated, or even suggested, that he needed to speak with her about a work-related matter or that he had been arrested for two felony charges. Moreover, these efforts evidence the fact that he knew he had an obligation to timely, completely, and candidly report anything that could impact his effectiveness as a Provost or the reputation of the College. He failed to fulfill this obligation. Respondent does not dispute the fact that he made no effort to notify his immediate supervisor, Dr. Rinard, regarding his arrest until Dr. Williams instructed him to do so on September 18, 2017. More than likely, this was because he had very little contact with Dr. Rinard, who had assumed his position in July 2017. On the other hand, he had a much closer relationship with the President, and she is the individual who makes the final decision. According to Respondent, it was important that he discuss the matter one-on-one with the President due to the "nature of the sensitivity of the situation itself, my accuracy of understanding the accusations and the false accusations, which were also racially motivated." After Respondent was unsuccessful in personally speaking with the President on September 6, 2017, he should have immediately disclosed his arrest by telephone. The record shows that he had ample opportunity to report the incident to the President by telephone beginning on the day after he was arrested. His failure to do so exhibits a lack of good judgment and trustworthiness. The delay in reporting the arrest from September 1 until September 18, 2017, was unreasonable in light of all circumstances. As Dr. Williams noted, "there is an expectation of good judgment for Provost and campus leaders, Deans, and others in that role. And you always expect your leaders, you know, [to] protect the Institution and make sure they are aware of what is going on." In the same vein, Mr. Miles pointed out that the College ended up having "to get the information ourselves" after Respondent failed to provide additional information regarding the arrest. This led him to ask whether he could "trust Dr. Bright to give me what I need to do the job that I need to do." He added that it was imperative that the College know "what exposure" it might have and how to "react to the situation" should the incident become public. Dr. Cooper, who conducted the predetermination meeting and is the chief academic officer of the College, testified that the Provost is a high-profile position and the face of the campus in the community. She noted that even though the College was closed for a hurricane, "there were multiple opportunities to report the incident to his direct supervisor, Dr. Rinard, and he failed to do so." She also testified that the incident could have blind-sided the President and Board of Trustees and put "the College in a very poor light in regard to the community." She added that "there was potential for multiple issues associated with not reporting it sooner," and "someone in that high-profile leadership position would know that." She summed it up by saying that even if there was not a specific written policy requiring Respondent to promptly report the incident to his superiors, an obligation to do so "is leadership 101." Besides failing to report the incident for 17 days, the evidence as a whole shows that, once the incident was reported, Respondent was non-responsive, uncooperative, and somewhat evasive in responding to Dr. Williams' direction to provide her additional information regarding the arrest and the name of the victim. The President had legitimate reasons for requesting additional information. Without this information, the College was at risk of having its reputation and credibility damaged. As the President pointed out, she asked for information, and when she did not receive it, this forced her to "go dig [herself] to find information" from another source. This should not be the job of the President. Finally, as previously found, Respondent did not promptly turn in all College keys and equipment, despite being told to do so on numerous occasions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that St. Petersburg College enter a final order terminating Respondent's employment as Provost at the Tarpon Springs Campus. DONE AND ENTERED this 4th day of April, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2018.
