The Issue The issue in this case is whether the Respondent committed an unlawful employment practice and, if so, determination of the relief to which the Petitioner is entitled.
Findings Of Fact The Petitioner, Allison M. Huth, is an adult female person. At all times material to this proceeding the Petitioner has been a resident of the State of Florida. The Respondent, National Admark Corporation, is an advertising agency and publishing company. At all times material to this proceeding, the Respondent was doing business from offices located in Fort Lauderdale, Florida. On the morning of June 12, 1998, a Mr. William Rufrano, who was at that time a boyfriend of the Petitioner, took the Petitioner with him to the Fort Lauderdale offices of the Respondent. At that time, Mr. Rufrano had some type of arrangement with the Respondent pursuant to which he worked in the field making sales calls in an effort to sell the Respondent's products.1 The Petitioner's reason for going with her boyfriend to the Respondent's offices on June 12, 1998, was to find out more about the company in order to decide whether she wanted to work for the company. Upon arriving at the Respondent's offices on June 12, 1998, Mr. Rufrano introduced the Petitioner to his "boss" and to several of the other people who worked in the Respondent's offices. Shortly thereafter, Mr. Rufrano left the Respondent's offices and spent most of the rest of the day meeting prospective customers and making sales presentations outside of the Respondent's offices. The Petitioner remained at the Respondent's offices for most of the day. The Petitioner spent the day making calls to prospective customers. She attempted to have each of the prospective customers make an appointment for a salesperson to visit and make a sales presentation for the Respondent's products.2 The Petitioner never signed any paper work with the Respondent regarding any business relationship between herself and the Respondent. Specifically, she did not sign or submit an application for employment with the Respondent, she did not sign or enter into an employment contract with the Respondent, and she did not sign or enter into an independent contractor agreement with the Respondent. The Petitioner did not have an understanding with the Respondent as to what her hours of work would be or as to how many hours she would work each day, each week, or each month. The Petitioner did not have an understanding with the Respondent as to what her compensation would be for making telephone calls.3 In sum: The Petitioner and the Respondent never entered into any agreement by means of which the Petitioner became either an employee or an independent contractor of the Respondent. During the course of her day at the Respondent's offices, the Petitioner had occasion to seek assistance from Mr. Anthony Tundo, who was the Respondent's Sales Manager, and was the person the Petitioner had been told to contact if she had any questions. Following the Petitioner's request for assistance, Mr. Tundo engaged in a number of inappropriate, unwanted, and ungentlemanly acts that caused the Petitioner to become very upset and uncomfortable. The worst of Mr. Tundo's acts that day are described as follows in the Petitioner's Exhibit 8, a letter signed by the Petitioner and her boyfriend a few days after the events on June 12, 1998: Mr. Tundo began stroking Allison's [Petitioner's] head very softly and used the excuse that he was trying to pick something out of her hair. Mr. Tundo trapped Allison against the coffee counter in the hallway. He then pressed himself, including his erection [,] against her body which was against the counter. He then proceeded to kiss her on her forehead and cheeks. When Allison was in Mr. Tundo's office, he told her to take a look at something he was doing. Not wanting to go behind the desk, Allison leaned over the front of the desk to look. As she did so, Mr. Tundo stared directly down Allison's blouse and commented[,] "what a nice pair of tits you have." Allison quickly stood up, and proceeded to walk around behind Mr. Tundo's desk figuring he couldn't look down her blouse. As she was leaning on his desk watching what he was doing, he began to stroke her fingers and hands. He then told her to turn around. Allison did so thinking there was a flaw or something wrong with her outfit. He then grabbed her firmly by the backs of her arms and positioned her[,] which made her feel extremely uncomfortable. After doing so, he uttered the word[,] "there." He then told Allison[,] "You have very, very nice legs," and "You have a very beautiful ass[,]" and proceeded to pat Allison on her rear end. When Allison was sitting on the couch in Mr. Tundo's office, she got up to go to the ladies' room. Mr. Tundo told her to sit back down. Presuming Mr. Tundo wanted to tell her some more things related to business, she sat back down. Mr. Tundo told her to "do that again." When Allison questioned what he meant, Mr. Tundo told her that he wanted her to uncross her legs (like she would have to do in order to stand up) again so he could see what it looks like inside her legs and up her skirt. Mr. Tundo was also moving his hands in an outward motion as he was telling her these things. After Allison left Mr. Tundo's office, he continued to follow her around the office building. As he was following her, he continually told her that she has "such a sexy walk," and "such a nice ass." He followed her into the conference room next to the coffee maker. He then proceeded to rub her shoulders, moaning softly and breathing heavy as he did so. He then told her that she seemed "tense." There is no competent substantial evidence that Mr. Tundo had ever previously engaged in conduct such as that to which he subjected the Petitioner. There is no competent substantial evidence that Mr. Tundo had ever previously engaged in any type of conduct that would create a sexually hostile or abusive work environment. There is no competent substantial evidence that the Respondent's management had ever been advised that Mr. Tundo had previously engaged in any conduct that would create a sexually hostile or abusive work environment. There is no competent substantial evidence that the Respondent's management had ever received any prior complaints that Mr. Tundo had engaged in conduct such as that to which he subjected the Petitioner, or that he had engaged in any other type of conduct that would create a sexually hostile or abusive work environment.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order in this case dismissing the Petition for Relief and denying all relief sought by the Petitioner. DONE AND ORDERED this 30th day of May, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2001.
Findings Of Fact At all times materiel hereto petitioners were inmates et Lake Correctional Institution (LCI) and were subject to discipline for failure to obey orders. Piccirillo was disciplined for failure to comply with an order to report to the infirmary or sick call. Piccirillo was aware that his name was posted on the bulletin board directing him to report to the medical department and et the time specified he failed to so report, was disciplined, and he lost gain time. A doctor visits LCI twice per week and inmates with medical problems can be seen by the doctor on these days. No patient is required to undergo medical treatment for minor ills if he so elects. Because of the limited time a doctor is available to LCI it is necessary that those inmates so designated see the doctor at the scheduled time. Inmates who do not understand an order may request clarification. If the inmate cannot read he is not punished for failure to obey written orders. Prior to disciplinary action being taken against an inmate for disobedience of orders, the disciplinary report is investigated and, after the investigator finds the charge to be true, discipline may be administered. Additionally, the inmate has a grievence procedure he may follow after the investigator recommends disciplinary action be taken. Occasionally, inmates are given orders by correctional officers which are unlawful. The inmate may obey the order and say nothing, he may obey the order and file a grievance, or he may refuse to obey he order and successfully defend the disciplinary report for failure to obey the order. It is not an offense for an inmate to refuse to obey an unlawful order.
Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN 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 15th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact The Petitioner began his employment with the Respondent on or about April 9, 2004. The Petitioner worked as a houseman. This job description was within the Respondent's housekeeping section. His original schedule required him to work a shift that ran from 6:00 a.m. until 2:00 p.m. In October or November of 2004, the Petitioner's work schedule changed and he was directed to work the overnight shift. The overnight shift personnel reported for duty from 11:00 p.m. until 7:30 a.m. The Petitioner accepted this re-assignment. The change in shift assignment was requested by Elizabeth Cortes' predecessor. Some time after December 2004, the Petitioner's supervising manager changed and Elizabeth Cortes became the director or manager for housekeeping. The Petitioner asked Ms. Cortes if he could return to the 6:00 a.m. to 2:00 p.m. shift. That request was not approved. The Petitioner accepted this decision and continued to work as scheduled. Ms. Cortes told the Petitioner at that time that she did not have another employee who would be available to take the night shift. In 2007 the Petitioner enrolled in school and requested that his shift be changed to a 9:00 p.m. to 5:00 a.m. shift so that he could attend school at Miami Dade. That request was approved. From the time of approval, the Petitioner was permitted to work three days from 9:00 p.m. to 5:00 a.m. (his school days) and two days from 11:00 p.m. to 7:30 a.m. The modification of the schedule allowed the Petitioner sufficient time to get to school in the morning. The Petitioner continued to work these shift times without complaint or issue. In November or December of 2006, the Petitioner made an application to become a banquet server for the Respondent's restaurant. He alleged that he gave the application to Elizabeth Cortes who was to sign it and forward it to Human Resources. According to Esther Sandino, the Petitioner did not file an application for restaurant server. Further, Ms. Cortes did not recall the matter. The Petitioner did not file a claim of discrimination for this alleged incident but presumably alleged that this incident demonstrates an on-going disparate treatment. There was no evidence that a non- Haitian was hired for the job as banquet server. There was no evidence any banquet servers were hired. Ms. Cortes did not hire banquet servers. Her responsibilities were directed at housekeeping. During the time Ms. Cortes was the housekeeping supervisor, the Respondent employed approximately 90 employees within the housekeeping section. Of those employees approximately 70 were Haitian. The remainder were Hispanic, Jamaican, Filipino, and other. Of the five persons who held supervisory positions, one was Haitian, two were Hispanic, one was from Czechoslovakia, and the country of origin of the fifth supervisor was unknown to Ms. Cortes. Ms. Cortes did not have the authority to terminate the Respondent's employees. Standard procedure would cause any allegation of improper conduct to be referred to the Human Resources office for follow up and investigation. There were two incidents referred for investigation regarding the Petitioner prior to the incident of April 22, 2007. Neither of them resulted in suspension or termination of the Petitioner's employment with the Respondent. On April 22, 2007, a security officer reported to the hotel manager on duty, Bingina Lopez, that the Petitioner was discovered sleeping during his work shift. Based upon that report, Ms. Lopez sent an e-mail to the housekeeping department to alert them to the allegation. When the Petitioner next reported for work, Mr. Saldana told the Petitioner to leave the property and to report to the Human Resources office the next day to respond to the allegation. The Petitioner did not report as directed and did not return to the property. Mr. Saldana did not have the authority to suspend or terminate the Petitioner's employment. Moreover, the Respondent did not send a letter of suspension or termination to the Petitioner. In fact, the Respondent assumed that the Petitioner had abandoned his position with the company. Ms. Cortes presumed the Petitioner abandoned his position because all of his uniforms were returned to the company. To avoid having the final paycheck docked, the Respondent required that all uniforms issued to an employee be returned upon separation from employment. The Petitioner acknowledged that he had his brother return the uniforms to the Respondent for him. The Respondent considered turning in uniforms to be an automatic resignation of employment. To fill the Petitioner's position (to meet housekeeping needs), the Respondent contacted an agency that provides temporary staffing. The person who came from the agency for the assignment was a male Hispanic. The male (who may have been named Lewis Diaz) arrived at the Trump Resort for work about ten days after the Petitioner left. The replacement employee's schedule was from 4:00 p.m. to midnight or 1:00 a.m. The temporary replacement remained with the Respondent until a permanent replacement for the Petitioner could be hired. It is unknown how long that was or who the eventual permanent employee turned out to be. Because the Petitioner never returned to the Trump Resort as directed, he was not disciplined for any behavior that may have occurred on April 22, 2007. The Petitioner's Employee Return Uniform Receipt was dated April 25, 2007. Prior to the incident alleged for April 22, 2007, the Petitioner had been investigated in connection with two other serious charges. Neither of those incidents resulted in discipline against the Petitioner. Both of the incidents claimed improper conduct that was arguably more serious than the allegation of April 22, 2007. Of the 400 plus employees at the Respondent's resort, the majority are Haitians. The Respondent employs persons from 54 different countries. The Petitioner's claim that he was referred to as a "fucking Haitian" by a security guard has not been deemed credible. The Petitioner was unable to indicate when the comment was made. Moreover, the Petitioner did not complain to anyone at the time the comment was allegedly made. Finally, no other employee could corroborate that the comment was made. One former employee testified that the Petitioner told him about the alleged comment. At best it was one offensive statement made on one occasion. There is no evidence that the Petitioner was treated in a disparate or improper manner based upon his national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 27th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Warren Jay Stamm, Esquire Trump International Beach Resort 18001 Collins Avenue, 31st Floor Sunny Isles, Florida 33160 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was discriminated against based on retaliation for participation in a protected activity in violation of Chapter 760.10(7), Florida Statutes.
Findings Of Fact Petitioner (Holden) is an African-American female. At all times relevant to this petition, Holden was employed in a probationary status by the Florida Department of Corrections at Apalachee Correctional Institution (ACI) as a Correctional Officer. Probationary officers are not entitled to progressive discipline, but can be terminated for any reason. At the hearing, Holden withdrew her claims that the Department had discriminated against her based on her race and sex. On or about July 22, 2001, Captain Tullis Scipper responded to a call from the Medical Unit at ACI. Upon his arrival, he observed Officer Holden in front of the Suicide Watch Isolation Cell. She was cussing at the inmate with whom she had a previous confrontation. Scipper explained to her that she was not to argue or verbally abuse the inmate and that she should stay away from the cell. On at least one other occasion that night, Captain Scipper responded to the Medical Unit and observed similar actions by Holden. The next day, Captain Scipper received a call from Warden Adro Johnson, who inquired as to what had happened in the Medical Unit the night before. Warden Johnson had received a complaint from Nurse Carla Weeks that Officer Holden had been cussing the inmates and he was checking into the complaint. Warden Johnson asked Captain Scipper to bring Officer Holden to his office. The purpose of the meeting was not to ascertain whether Officer Holden had been cussing at inmates. The Warden had two eye-witness, staff accounts of her behavior. When confronted, she advised Warden Johnson that she had become angry and had cussed the inmate. Warden Johnson counseled Holden about her behavior. Warden Johnson testified that he felt that Holden was unreceptive to his counseling and that she was argumentative. He believed that she was not displaying the attitude that a good officer displays when he/she is being counseled by a warden. Holden also was upset and crying, and, as a result, Warden Johnson informed her that she needed to adjust her attitude and come back to see him the next day. Warden Johnson testified that he had not made up his mind as to what action he would take against Holden for her actions with the inmate. After the meeting with Warden Johnson, Captain Scipper observed Officers Holden and Shiver arguing with each other. Holden testified that she had asked Shiver about why her tour was changed, and this led to the incident observed by Scipper. In Scipper’s opinion, Holden was the “aggressor” because she continued to advance on Shiver, even though Shiver had his hands in the air and was stating words to the effect that he did not have anything to do with whatever they were arguing about. Knowing that Holden had just had a counseling session with the Warden, Scipper was surprised that Holden would almost immediately be involved in an altercation with a staff member. He relieved Holden of her duties for the rest of her scheduled shift. The next day Holden met as scheduled with Warden Johnson. Captain Scipper did not attend this meeting. Johnson had been informed of the previous day’s incident between Officers Holden and Shiver. He asked Holden if she was willing to change her attitude. He had not determined prior to the meeting if he would take any action at all against Holden. Johnson felt that Holden's response to him was disrespectful, and that she did not have the right attitude. Johnson terminated Holden based on what he perceived to be her poor attitude. He knew that Holden was approaching the end of her probationary status and that if he wanted to terminate her before she attained career service status with its attendant protections, he needed to do so at that time. Petitioner complained in an incident report filed before the Warden the first time that Captain Scipper refused to listen to her when he counseled her about a prior staff altercation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 24th day of September, 2003, 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 24th day of September, 2003. COPIES FURNISHED: Kimberly Holden 2103 Vista Road Marianna, Florida 32448 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 30th day of March, 2018.
The Issue The issue in this case is whether the Respondent unlawfully and knowingly possessed a controlled substance and, if so, what disciplinary action should be taken.
Findings Of Fact On July 3, 1986, the Respondent was certified by the Criminal Justice Standards and Training Commission, and was issued Certificate No. 03-86-502- 05. Later that year, the Respondent was employed as a Correctional Office at the Broward Correctional Institution. The Broward Correctional Institution is a state prison that houses female prisoners. The Respondent's duties included working inside the prison and working on the perimeter posts. While on perimeter post, the Correction Officers, including the Respondent, would sit in a small car with a loaded 12-guage shotgun and a .38 caliber revolver. The primary function of the perimeter post is to observe the fences of the prison to insure that there is no unauthorized entry into or exit from the prison. On several occasions the Respondent openly discussed with other Correctional Officers the fact that the Respondent used marijuana. On at least one occasion, the Respondent told another Correctional Officer that she (the Respondent) had reported for duty inside the prison with marijuana "joints" in her purse. On another occasion a Correctional Officer who relieved the Respondent on perimeter post smelled what seemed to be the odor of marijuana smoke and observed what appeared to be the remains of a marijuana cigarette. On yet another occasion the Respondent offered to provide marijuana to another Correctional Officer who worked on the same shift. One of the Correctional Officers who worked with the Respondent became concerned about what she had heard and seen regarding the Respondent's use of marijuana and reported her concerns to higher authority at the prison. As a result of such report, on the evening of November 16, 1989, two prison officials approached the Respondent during her break. At that time the Respondent was sitting in her personal vehicle in the prison parking lot. The prison officials requested and received permission to search the Respondent's vehicle. A Marlboro cigarette box containing what appeared to be a partially smoked, hand-rolled marijuana cigarette was found underneath the driver's seat of the Respondent's vehicle. The hand-rolled cigarette found in the Respondent's vehicle tested positive for marijuana. The Respondent was arrested on a charge of introduction of contraband into a state correctional institution. The Respondent later pled guilty and was found guilty of the lesser included charge of possession of marijuana, less that 20 grams.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent is in violation of Section 943.13(7), Florida Statues, and Rule 11B- 27.0011(4), Florida Administrative Code, and imposing a penalty of revocation of the Respondent's certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of August 1990. MICHAEL M. PARRISH 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 31st day of August 1990.
The Issue In this case, the Petitioner seeks to impose discipline against the Respondent's certificate to be employed as a correctional officer based upon the allegation that the Respondent has committed acts which evidence a failure to maintain the qualifications incumbent upon a correctional officer working in Florida. In particular, it is alleged that the Respondent committed acts which demonstrated a lack of good moral character.
Findings Of Fact Facts Deemed Admitted The Respondent was certified as a corrections officer by the Petitioner on or about August 16, 1985 and was issued Corrections Certificate No. 28-85- 502-02. The Respondent was employed as a sworn corrections officer with the Alachua County Department of Corrections from June 17, 1985 to August 8, 1991. The Respondent, on or about April 20, 1990, was found guilty by a jury for the crime of resisting arrest without violence, a misdemeanor. The court withheld adjudication and sentenced the Respondent to six months of probation. The Respondent, on or about July 8, 1991, entered a plea of nolo contendere to the criminal charges of resisting arrest without violence and battery, both misdemeanors. The court sentenced the Respondent to one year of probation and withheld adjudication. On or about August 6, 1991, the Respondent became involved in a dispute with members of his family at his residence. The Respondent had consumed one or more alcoholic beverages immediately prior to and/or during the above-referenced family dispute. The dispute turned into a verbal and physical disturbance involving the Respondent and members of his family. The police were called to the Respondent's residence due to the above- referenced disturbance. After the police arrived with regard to the above-referenced disturbance, the Respondent barricaded himself inside his residence by locking the doors. After barricading himself inside his residence, the Respondent armed himself with a knife. The Respondent threatened to kill the police officers at the scene of the above-referenced disturbance if the officers attempted to apprehend him. Other Facts The offense described in paragraph 3 to these facts is related to the allegations contained in paragraph 2.(a) to the Administrative Complaint. The offense described in paragraph 4 to these facts is related to the allegations contained in paragraph 2.(b) to the Administrative Complaint, with the exception that paragraph 2.(b) makes no mention that a battery was committed. The offense described in paragraph 4 to these facts was considered in the Circuit Court of Union County, Florida, Case No. 90-29-CF. In addition to the service of one year of probation, the Respondent was ordered to successfully complete Anger Management as instructed by the Respondent's probation officer. On August 2, 1989, at approximately 9:30 p.m., in Alachua, Florida, Officer Lisa Brown, in pursuing her duties as a sworn officer, stopped the Respondent for a traffic violation. The Respondent was stopped because he had run two stop signs in Alachua. The stop signs were run at Northeast 8th Avenue crossing over State Road 235 and at Northwest 8th Avenue at Main Street. Officer Brown is now Officer Lisa Brown Haefner. At times relevant, Officer Haefner was serving as a police officer with the City of Alachua. Officer Haefner made the traffic-violation stop on Northwest 8th Avenue, off of Main Street, in Alachua. When the traffic-violation stop was made, Officer Haefner was assisted by Sergeant Cindy Dennison of the City of Alachua. Sergeant Dennison and Officer Haefner were driving separate patrol units on that night. Both officers observed the Respondent run the stop signs. Officer Haefner and Sergeant Dennison did not know Respondent when the traffic stop was made. After the stop, Officer Haefner asked the Respondent to exit his vehicle. The Respondent exited the vehicle. At that time, Officer Haefner asked the Respondent for identification. The Respondent replied that he "had none". Officer Haefner asked the Respondent for his name. The Respondent stated that he "didn't have a name". When the Respondent was contacted about the traffic violations, Officer Haefner asked for his driver's license, and the Respondent told Officer Haefner that he did not have a driver's license. The Respondent was acting irrational and irritated in the presence of Sergeant Dennison and Officer Haefner. Officer Haefner detected an odor about Respondent's person which she believed to be cannabis. Officer Haefner determined to arrest the Respondent for resisting or obstructing arrest without violence based upon the Respondent's failure to give information concerning his identity and the belief that she had cause to arrest Respondent. After informing the Respondent that he was being arrested for resisting or obstructing arrest without violence, Officer Haefner and Sergeant Dennison attempted to place handcuffs on the Respondent. This was a normal procedure. The Respondent resisted the placement of the handcuffs by twisting and stiffening his body and leaving his arms in front of him, which obstructed the officers' ability to secure the Respondent's arms behind him, as they desired. Under the circumstances, Officer Haefner sought the assistance of Officer Clovis Watson, Jr. (later Sergeant Watson) and Officer VanHorn. The other officers who were summoned for assistance were employed by the City of Alachua Police Department. The Respondent was eventually handcuffed, placed in Officer Watson's patrol car, and taken to the police station. When at the police station, he continued to be irrational and irritated. At one point in the encounter between Officer Haefner, Sergeant Dennison, and the Respondent, the Respondent offered to obtain identification from the back seat of his vehicle. The officers declined that request in that the Respondent was acting irrational and irritated; and based upon a fear for her personal safety, Officer Haefner would not allow the Respondent to access his vehicle. Respondent's offer to obtain identification came about at the point in time at which Officer Haefner and Sergeant Dennison attempted to handcuff the Respondent. The nature of the Respondent's irrationality and irritability was manifested by his being "real vocal, not wanting to cooperate, agitated as far as being stopped" and asking the officers "why are you harassing me?". The Respondent manifested this attitude notwithstanding that Officer Haefner had told him that he was being stopped for a traffic violation. The Respondent also manifested his irritability by having an agitated appearance. Before the Respondent was arrested for resisting or obstructing arrest without violence, he had been told several times not to return to his vehicle; however, he continued to walk toward his vehicle. It is at that point that Officer Haefner and Sergeant Dennison physically grabbed the Respondent and tried to restrain and handcuff him. The Respondent's actions prohibited Officer Haefner and Sergeant Dennison from performing their law-enforcement duties in making the traffic- violation stop. The Respondent continued to struggle when the officers were attempting to place the handcuffs on him after Officer Watson arrived at the scene by swaying back and forth. In the course of that struggle, Sergeant Dennison fell to the ground and the Respondent and Officer Watson fell on top of her. As a consequence, Sergeant Dennison sustained a concussion. The Respondent held his hands close to his body as a means to restrict the ability of the officers to handcuff him. The Respondent shook back and forth and this caused the officers and the Respondent to fall, injuring Sergeant Dennison. While the officers were attempting to handcuff the Respondent, he did not strike out at the officers. The Respondent resisted, in part, because he did not wish to be taken to the jail where he worked. On May 5, 1990, the Respondent, together with his brother and a friend, went to Union County, Florida, to a nightclub. When they arrived they were confronted by a number of persons who were already at the club. A fight ensued and the Respondent's brother was injured. The Respondent then took his brother to Ramadan Hospital to have his brother treated for injuries sustained in the fight at the club. Ramadan Hospital was located in Lake Butler, Union County, Florida. Union County Sheriff Jerry Whitehead received a call on his beeper at around 1:00 to 1:30 a.m. on the morning in question. He called the Union County Jail and was told about the fight at the local nightclub. He was also told that all of the deputy sheriffs had been dispatched to the nightclub. In turn, Sheriff Whitehead got dressed and started toward Lake Butler. Ramadan Hospital is located between his home and the Union County Jail. About a mile from the hospital, Sheriff Whitehead received a call from the sheriff's office dispatcher indicating that there was a disturbance at the hospital. Sheriff Whitehead responded to that call. When Sheriff Whitehead entered the emergency room at the hospital, the Respondent, his brother and the friend were in the waiting area of the hospital. The Respondent was standing in the hallway at that time, cursing and saying that he had just contacted his supervisor, taken to mean supervisor at the Alachua Correctional Facility, and that the Respondent was "fixing to have some people come over and they were going to get the situation straight". Sheriff Whitehead identified himself to the Respondent and asked the Respondent what the problem was. The Respondent indicated that he had been involved in an incident at the local nightclub and that there had been a fight and his brother had been injured. The Respondent told Sheriff Whitehead that he was going to "take this thing into his own hands". The Respondent was also indicating "things" that he wanted to have done concerning the incident. Respondent was cursing and using foul language. Sheriff Whitehead told the Respondent that he had to calm down or leave the premises. Sheriff Whitehead repeated this remark a number of times. After a time Sheriff Whitehead went to a telephone in the hospital and called the sheriff's office dispatcher and asked that a deputy sheriff be sent. During the course of these circumstances, the Respondent was belligerent and had the smell of alcohol about his person. The Respondent was being very belligerent in telling the nurses something to the effect that he was going to "tear that place up if they didn't get this done." This related to the Respondent's concern that a doctor was not available to attend to his brother at the hospital. The disturbance which the Respondent was causing was primarily directed to the hospital staff. The Respondent continued his outbursts for several minutes. In the course of this event, the Respondent identified himself as a law enforcement officer. Sheriff Whitehead told the Respondent that he needed to calm down and to let the Union County Sheriff's Department take care of the situation. Finally, Sheriff Whitehead believed that he had lost control over the Respondent's conduct and told the Respondent that he was going to place the Respondent under arrest. The Respondent replied that "he did not need to be arrested, wasn't going to be arrested." Sheriff Whitehead then placed his arm on the Respondent's arm and the Respondent snatched his arm away from Sheriff Whitehead. At that point Sheriff Whitehead took the Respondent through a set of doors to exit the hospital emergency room. They struggled out onto a patio area and onto the asphalt parking lot and then onto a grassy area where Sheriff Whitehead took the Respondent down and held him until a deputy sheriff arrived to assist. Sheriff Whitehead told the Respondent that he was being arrested for breach of the peace, an offense which Sheriff Whitehead believed he had reasonable cause to arrest the Respondent for. After the Respondent had been subdued and handcuffs placed on him, the Respondent became cooperative and acted remorseful, again explaining to Sheriff Whitehead that he was a correctional officer and that he was afraid he was going to lose his job because of the incident. The Respondent was then taken by a deputy sheriff to be transported to the Union County jail. When Sheriff Whitehead was trying to talk to the Respondent, the Respondent would swing his arms and on several occasions made cursing remarks toward the nurses, which Sheriff Whitehead believed was because doctors were not available to attend the Respondent's brother at that time. On August 6, 1991, Officers Glen Hammond, Donald Rice and Price responded to an alleged domestic disturbance call at 305 N.E. Fifth Street in Alachua, Florida. Those officers were working for the City of Alachua Police Department when they made the response. The alleged domestic disturbance involved the Respondent, his mother, sister and brother. When the officers arrived at the scene the other family members told the officers that the Respondent had been involved in a physical altercation with them and had battered them. The Respondent's mother told Officer Hammond that the Respondent had been smoking crack cocaine prior to the arrival of the officers. The family members told the officers that the Respondent was located in a wooded area near the residence. The officers went to find the Respondent so they could talk to him concerning the complaint by his family. Officer Wallace located the Respondent and brought him back to the residence. While standing in front of the residence, the Respondent was arguing with his mother and using profanity. In addition, he yelled at Officer Hammond a few times to the effect that the Respondent wasn't going to be taken into custody. At that juncture there was no intention by the officers to arrest the Respondent. At this time Officer Hammond did not observe anything about the Respondent's demeanor to suggest that the Respondent had consumed alcoholic beverages. After a short period, the Respondent left the area adjacent to the residence and returned to the woods. The officers again went to find the Respondent so that they could discuss the complaint. While the officers were trying to locate the Respondent for the second time someone started yelling that the Respondent had returned to the residence and was inside the residence. The officers then returned to the residence. When Officer Hammond walked up to the front of the residence to an area adjacent to a porch on the front of the residence, the Respondent opened the door and stepped out holding a knife which appeared to be a steak knife. The Respondent told Officer Hammond that Officer Hammond was not going to arrest him and that if Officer Hammond tried to come on the porch, the Respondent would kill Officer Hammond. The Respondent also mentioned the possibility that he would do harm to himself. While standing on the porch, the Respondent was not acting in a rational manner. After the Respondent threatened to kill Officer Hammond, the officer backed away from the residence and called for assistance from other law enforcement officers. Officer Hammond did this being fearful for his safety. A second brother of the Respondent arrived at the residence when the Respondent went in the house from the front porch. The second brother went inside to try and talk to the Respondent to defuse the situation. The second brother managed to have the Respondent come out of the house, at which point, the Respondent was charged with disorderly intoxication. At about the time the Respondent was arrested, Officer Hammond was close enough to the Respondent to notice that the Respondent had an odor of alcohol about the Respondent's person. When Office Wallace found the Respondent in the woods on the first occasion, the Respondent did not resist the officer in any manner and agreed to go back to the residence with the officer. When the Respondent returned to the residence on the first occasion, he stated that he would kill somebody first before he would go to jail. It is at that point that the Respondent broke from the scene and ran into the woods. While on the porch, the Respondent stated that he would kill any officer or take his own life, and that the Respondent was not going to go to jail. When the Respondent was first approached in the woods, Officer Wallace did not have grounds to arrest the Respondent. When the Respondent came back from the woods the first time, Officer Hammond was trying to interview the Respondent concerning the circumstances between the Respondent and his family that had caused the officers to be summoned. When the Respondent returned to the woods for the second time, the officers did not have cause to arrest the Respondent. When the Respondent told the officers that he was not going to be arrested or go to jail, upon the conversation that the officers held with the Respondent after he returned from the woods on the first occasion, the Respondent had not been told that he was being arrested. When the Respondent went back in the house from the front porch, he locked the doors to the residence and still had possession of the steak knife. The residence in question was reported to the officers as being the Respondent's mother's residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Certificate No. 28-85-402-02 be revoked. DONE AND ENTERED this 31st day of October, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 31st day of October, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 94-5306 The following discussion is given concerning the proposed findings of fact by Petitioner. Petitioner's Facts: Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is not necessary to the resolution of the dispute. Paragraphs 5 through 30 are subordinate to facts found. Paragraphs 31 and 32 are not necessary to the resolution of the dispute. Paragraph 33 is subordinate to facts found. Paragraph 34 is not necessary to the resolution of the dispute. Paragraph 35 constitutes a conclusion of law. Paragraph 36 is not necessary to the resolution of the dispute. Paragraphs 37 through the first sentence in Paragraph 42 are subordinate to facts found. The second sentence in Paragraph 42 is not necessary to the resolution of the dispute. Paragraphs 43 through 50 are subordinate to facts found. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302-1489 Joseph W. Little, Esquire 3731 Northwest 13th Place Gainesville, FL 32605 A. Leon Lowry, II, Director Department of Law Enforcement Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302-1489
The Issue The issues in this case are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b), by unlawfully possessing a controlled substance, cocaine, and by driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages, when effected to the extent that his normal faculties were impaired or with a blood or breath alcohol level of .08 or above, and if so, the penalty that should be imposed.
Findings Of Fact Petitioner, Criminal Justice Standards and Training Commission, is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. At all times relevant, Respondent was a certified Florida Correctional Officer, having been issued certificate number 279704. On October 14, 2010, Respondent was operating or in actual physical control of his motor vehicle in South Miami, Florida. South Miami Police Officer Junior Vijil observed Respondent's vehicle stopped in the middle of the intersection of 58th Court and Southwest 73rd Street. After observing Respondent's driving pattern, Officer Vijil initiated a traffic stop. Officer Vijil approached Respondent's vehicle and made initial contact with Respondent. Officer Vijil observed certain indicators of potential impairment and requested Respondent to step out of the vehicle. Respondent complied with Officer Vijil's request. At the time of the traffic stop, Respondent had a passenger in the front seat of his vehicle. When Respondent exited the vehicle, at Officer Vijil's request, the passenger remained seated in the vehicle. Officer Vijil called for backup officers and awaited their arrival prior to performing field sobriety exercises with Respondent. The passenger remained seated, unsupervised, in Respondent's vehicle for several minutes until additional law enforcement personnel arrived. When South Miami Police Officer Louis Fata arrived on the scene, Officer Vijil initiated field sobriety exercises. At the conclusion of the field sobriety exercises, Officer Vijil did not immediately arrest Respondent, but rather, requested Respondent provide consent to search the vehicle. Respondent consented to the search. Officer Vijil began the search of the vehicle by first looking in the front interior compartment. He observed, in plain sight, a small, dark, plastic baggie in the center console. The center console's lid was absent. Although the baggie was dark in color, Officer Vijil could observe a white powdery substance that he believed was cocaine. After locating the suspicious substance, Officer Vijil removed the same from Respondent's vehicle and secured it in his patrol vehicle. A field test of the white substance was performed by Officer Vijil and Officer Fata, which resulted in a presumptive positive result for cocaine. Officer Vigil interviewed Respondent and the passenger concerning their knowledge of the suspected cocaine. After both individuals denied any knowledge of the substance, Officer Vijil arrested Respondent for possession of a controlled substance. Karen Wiggins, a criminalist at the Miami-Dade Police Department Forensic Service Bureau, performed a series of tests on the substance at issue, and credibly testified that the suspected substance was cocaine. Pursuant to the Joint Stipulation, the parties stipulate that, on October 14, 2010, Respondent did unlawfully drive or was in actual physical control of a vehicle while under the influence of alcoholic beverages, when effected to the extent that his normal faculties were impaired; or with a blood or breath alcohol level of .08 or above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of violating sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), by his violation of section 316.193, Florida Statutes. It is further recommended that Respondent be placed on probation for a period of six months, with the requirement that Commission-approved substance abuse counseling be completed prior to the end of the probationary period. It is further recommended that the Commission enter an final order dismissing the allegation that Respondent unlawfully constructively possessed a controlled substance in violation of section 893.13(6)(a), Florida Statutes. DONE AND ENTERED this 2nd day of August, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 2nd day of August, 2013.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, 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
