The Issue The issues are whether Petitioner is entitled to attorney fees and costs pursuant to Section 120.595(3), Florida Statutes, and if so, in what amount.
Findings Of Fact Petitioner was the prevailing party in DOAH Case No. 00-1600RX on one of two challenged rule provisions. In that case, the challenge to Rule 61K1-1.0011(3)(c), Florida Administrative Code, which required all contracts between a manager and a boxer to be filed with Respondent within seven days of execution, was dismissed on its merits. Rule 61K1- 1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, were found to be invalid exercises of delegated legislative authority to the following extent: (a) that Rule 61K1-1.0011(3)(c), Florida Administrative Code, deemed contacts between managers and boxers to contain all provisions set forth in Form BPR-0009451; and (b) that Form BRP- 0009451 deemed contracts between managers and boxers to be void if the managers were unlicensed on the date their contracts were executed or if the managers failed to file the contracts with Respondent within seven days of execution. Respondent presented no evidence, testimonial or documentary, in DOAH Case No. 00-1600RX or the instant case, showing that it had a reasonable basis in fact to promulgate Rule 61K1-1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, in 1985 or thereafter to amend, enforce, or defend said rule and form. Respondent admits that it has not maintained the pertinent rulemaking record required by Section 120.54(8), Florida Statutes. There is no competent evidence that Respondent in fact conducted the mandatory rule reviews required by Section 9 of Chapter 96-159, Laws of Florida, or Section 3 of Chapter 99-379, Laws of Florida. Respondent did not file post-hearing depositions showing that it ever conducted these rule reviews. Respondent admitted during the hearing of the instant case that it had no written documentation confirming that the rule reviews took place. There is no factual evidence showing the existence of special conditions that would make an award of attorney's fees and costs unjust in this case. There is no evidence showing how to allocate Petitioner's requested attorney's fees and costs between the two challenged rule provisions. The record in DOAH Case No. 00-1600RX does not indicate that the Intervenor Danny Santiago created duplicitous and unnecessary work for Petitioner and Respondent. Two of the depositions taken on December 5, 2000, at the instance of Intervenor Danny Santiago and over Respondent's objections, were filed in DOAH Case No. 00-1600RX, becoming part of the record in that case. Moreover, there is no evidence showing how to allocate a portion of Petitioner's requested attorney's fees and costs to work created exclusively by Intervenor Danny Santiago. Petitioner filed an Affidavit of Attorney Fees and Costs on March 19, 2001. Petitioner seeks to recover $13,235 in fees and costs. Petitioner presented competent evidence that the requested attorney's fees were reasonable based on the number of hours expended (66.175) and the rate charged per hour ($200). Petitioner also presented competent evidence that an expert witness fee in the amount of $1,000 is reasonable in this case. Respondent objected to Petitioner's requested attorney's fees as they relate to the following specific charges: (a) charges pertaining to an unrelated case in which Respondent sought to discipline Petitioner for violating Respondent's rules; (b) charges relating to Petitioner's Motion to Compel Discovery after Petitioner improperly served the original discovery requests and was required to serve the discovery requests a second time; and (c) charges relating to the preparation of the instant motion for fees and costs. Petitioner agreed to reduce his claim for fees and costs by the amount of the disputed charges if Respondent could provide the total amount. After much discussion, the parties agreed to file a post-hearing stipulation as to the amount to be deducted from Petitioner's claim. The parties never filed that stipulation. The undersigned has compared the record in DOAH Case No. 00-1600RX with the list of charges for fees and costs attached to Petitioner's Affidavit of Attorney Fees and Costs. The undersigned has also taken into consideration Respondent's objections to certain charges and Petitioner's acquiescence to those objections. The record reveals that Petitioner is not entitled to recover the following: (a) charges on April 13 and 27, 2000, in the amount of $100 that pertain to a request for and granting of oral argument that did not occur in the underlying case; (b) charges on July 6, 2000, and July 31, 2000, in the amount of $100, relating to review of an unidentified motion to compel and review of an order granting that motion, which did not occur in the underlying case; (c) charges on July 17 and 27, 2000, and August 14, 2000, in the total amount of $320, relating to Petitioner's improper motion to compel discovery after Petitioner incorrectly served the original discovery requests on the Attorney General and was required to serve the discovery requests a second time; (d) a charge on August 24, 2000, in the amount of $200 for attendance at court, which did not occur in the underlying case; (e) a charge on September 11, 2000, in the amount of $50 for review of an order dismissing with prejudice, which did not occur in the underlying case; (f) charges on February 23, 2001, in the amount of $80, relating to the preparation of the instant motion for fees and costs; and (g) charges on October 26, 2000, in the amount of $500 for travel to a deposition. The reduction amount for attorney's fee charges totals $1,350. There are no other identifiable disputes over amounts claimed by Petitioner as recoverable expenses or costs. Therefore, Petitioner is entitled to recover $11,885 in attorney's fees and costs incurred in DOAH Case No. 00-1600RX and an additional $1,000 for expert witness fees in the instant case, for a total recovery in the amount of $12,885. This amount is reasonable under the facts of this case. The record in DOAH Case No. 00-1600RX clearly reflects that Respondent had sufficient and timely notice of Petitioner's intent to seek attorney's fees and costs prior to the entry of the Final Order. In Respondent's meeting on December 6, 2000, Respondent's counsel advised Respondent several times that it would be liable for attorney's fees and costs if the challenged rules or portions thereof were found to lack statutory authority. Counsel for Petitioner and Intervenor Danny Santiago made appearances on behalf of their respective clients at that meeting. Petitioner made his first formal demand for attorney's fees and costs in his Proposed Final Order, which was filed in DOAH Case No. 00-1600RX on January 22, 2001. Respondent filed its Statement of Defenses to Petition for Attorney Fees in the instant case on March 19, 2001. Respondent raised the issue that Petitioner's demand for attorney's fees and cost was untimely for the first time in Respondent's Proposed Final Order filed in the instant case on May 11, 2001.
The Issue The issue is whether Respondent (“the Department of Health” or “the Department”) committed an unlawful employment practice by not providing Petitioner (“Xianshu Zhang”) with a licensure application in Mandarin Chinese or by continuing with its prosecution of her.
Findings Of Fact Ms. Zhang was born in Chongqing, China in 1970, and speaks Mandarin Chinese. Her comprehension of spoken and written English is very limited. Ms. Zhang moved to the United States in December of 2003 and stayed in the United States until she returned to China in December of 2005. Ms. Zhang returned to the United States in November of 2009. Ms. Zhang elected to pursue a career as a massage therapist and graduated from VIP Beauty School on February 24, 2012. On approximately May 15, 2012, Ms. Zhang filed an initial application for licensure as a massage therapist. At the time of Ms. Zhang’s application, the Department1/ did not offer an application written in Mandarin Chinese, and Ms. Zhang did not ask the Department to provide such an application. With the assistance of others, Ms. Zhang was able to complete the application.2/ The application completed by Ms. Zhang had a section entitled “Criminal History” that asked if the applicant had “ever been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction other than a minor traffic offense.” Ms. Zhang responded to the aforementioned question by answering “no.” Ms. Zhang acknowledged marking a box on the application that I have carefully read the questions on the foregoing application and have answered them completely, without reservation of any kind, and I declare that my answers and all statements made by me herein and in support of this application are true and correct. Should I furnish any false information on or in support of this application, I understand that such action shall constitute cause for denial, suspension, or revocation of any license to practice in the State of Florida in the profession for which I am applying. On July 21, 2012, the Department issued a massage therapist license to Ms. Zhang. The Department renewed Ms. Zhang’s license on July 26, 2013, and June 11, 2015. Ms. Zhang currently works for a spa in Miami. On April 2, 2015, the Department received information indicating that Ms. Zhang had been arrested for two counts of misdemeanor prostitution on April 5, 2005, in Suffolk County, New York. According to the information received by the Department, Ms. Zhang entered a guilty plea to one count of disorderly conduct on May 18, 2005, and was sentenced to pay $295 in fines and/or court costs. After conducting an investigation, the Department issued an Administrative Complaint on November 24, 2015, alleging that Ms. Zhang violated section 480.046(1)(a), Florida Statutes (2011). The aforementioned statute subjected massage therapist licensees to discipline for “[a]ttempting to procure a license to practice massage by bribery or fraudulent misrepresentation.” On March 4, 2016, the Department issued a “First Amended Administrative Complaint” which did not contain the allegation that Ms. Zhang violated section 480.046(1)(a). Instead, the Department alleged that Ms. Zhang violated section 480.046(1)(o), Florida Statutes (2011), by violating section 456.072(1)(w), Florida Statutes (2011). Section 480.046(1)(o) subjects massage therapist licensees to discipline for “[v]iolating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.” Section 456.072(1)(w), prohibits licensees in health professions and occupations from [f]ailing to comply with the requirements for profiling and credentialing, including, but not limited to, failing to provide initial information, failing to timely provide updated information, or making misleading, untrue, deceptive, or fraudulent representations on a profile, credentialing, or initial or renewal licensure application. As of the final hearing date, the Department’s prosecution of Ms. Zhang was ongoing. Ms. Zhang argues that the Department has discriminated against her based on her national origin and thus violated section 760.10(5), Florida Statutes (2016), by: (a) failing to provide her with a licensure application written in Mandarin Chinese; and by (b) failing to dismiss its Administrative Complaint after receiving notice that it had unlawfully discriminated against her. As explained below, Ms. Zhang has: (a) failed to present any direct evidence that the Department intentionally discriminated against her; and (b) failed to establish a prima facie case of discrimination via circumstantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Xianshu Zhang’s Petition for Relief. DONE AND ENTERED this 9th day of May, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 May, 2017.
The Issue Whether Respondent may be dismissed from employment with Florida Agricultural and Mechanical University (FAMU) for violation of FAMU Regulation 10.111.
Findings Of Fact FAMU Regulation 10.111, a duly promulgated regulation, was in effect at all times relevant hereto. (Stipulation 5.) FAMU Regulation 10.206, a duly promulgated regulation, was in effect at all times relevant hereto. (Stipulation 6.) 3. FAMU Regulations 10.100, 10.101, 10.105, 10.106, and 10.120, all duly promulgated regulations, were in effect at all times material. At all times material, Dr. Cynthia Hughes-Harris served as FAMU’s Provost and Vice-President for Academic Affairs. On May 6, 2008, Dr. James H. Ammons, in his capacity as President of FAMU, had delegated to Dr. Hughes-Harris authority to administer all applicable FAMU regulations, policies, and procedures. (Stipulation 9.) The incident that gave rise to FAMU's letter of termination to Respondent occurred in the FAMU football stadium’s field house during the FAMU homecoming game on November 1, 2008. As of November 1, 2008, Respondent had been employed in the football program at FAMU since 1997. He had served successfully under five athletic directors without receiving a bad employment rating. On June 28, 2008, he had received the American Football Coaches Association’s Outstanding Equipment Manager of the Year Award. On November 1, 2008, and at the time of his termination, Respondent was employed by Petitioner FAMU as Coordinator, Intercollegiate Athletics. The contract period for Respondent’s employment in effect at the time covered July 1, 2008, through June 30, 2009. (Stipulation 1.) As Coordinator, Intercollegiate Athletics, Respondent worked as the equipment manager for the FAMU football program. (Stipulation 2.) At all times material, Respondent’s employment classification was Administrative and Professional (A&P), with a regular appointment status. As such, Respondent was not a FAMU employee with “permanent status” as contemplated by FAMU Regulation 10.206. (Stipulation 3.) At all times material, William Lewis Hayes, Sr., was employed by FAMU as Director of Athletics. (Stipulation 4.) As such, Mr. Hayes had oversight of FAMU’s Department of Athletics, including 18 intercollegiate sports teams, and supervisory responsibility for approximately 67 employees, including Respondent. Not the least among Mr. Hayes’ many responsibilities was to act as head coach. As a result, Mr. Hayes was often referred to as “Coach Hayes.” At all times material, Respondent was subordinate to Coach Hayes. Upon his arrival and assumption of his duties at FAMU, in January 2008, Coach Hayes had become aware that scheduled intercollegiate football games played in the FAMU stadium were losing money. He also became aware that during home games, a significant number of people were entering the football stadium, its field, and its out-buildings without a game ticket. Coach Hayes regarded all non-paying attendees for both home and away games as gatecrashers and freeloaders. He reasonably believed that if all non-paying attendees were denied entrance, or if their number were at least reduced, the same people would pay the cost of admission; FAMU would increase its game receipts accordingly; FAMU’s $4,000,000, deficit would be eliminated; and the significant number of athletic scholarships which he administered would be on firmer financial ground. On November 1, 2008, Coach Hayes was 65 years old. He had successfully worked in athletics for 50 years and had coached football for 39 of those years. He had the reputation of being large and loud, and of occasionally emitting some of the verbal belligerency characteristic of male athletics generally, and of a “coach in charge” specifically. However, at all times material, he was the “coach in charge,” and the record is devoid of any evidence that he has ever been physically violent to employees or co-workers. In an attempt to reduce the Athletic Department’s financial deficit, Coach Hayes started, in March 2008, to hold weekly “game operations meetings” with mandatory attendance of most of his staff. At these meetings, he explained his reasons for tightening up on the number of non-paying game attendees; pointed out problems encountered at the last game; and asked security personnel and his subordinates to “brainstorm” ways to keep people from getting into games without paying for a ticket. Respondent attended at least some of these meetings. At one of the game operations meetings, Sgt. Beverly Stephens of the FAMU Police Department explained that the field house at FAMU’s Stadium had been identified as a significant, even the primary, entry point for non-paying attendees to get into home games and that some people were using Respondent’s name in their request for entry. Respondent was present at that meeting. Respondent was not the only FAMU employee assigned to the athletic field house, but Respondent’s office, equipment room, and general operating area were located in the field house. During the meeting with Sgt. Stephens, Respondent became visibly agitated by Sgt. Stephens’ remarks and stood up, loudly challenging her statements. He was either cajoled into calmness or physically restrained by a member of the group. Respondent explained his out-of-proportion reaction to Sgt. Stephens as “feeling disrespected” by her or because he was not familiar with Sgt. Stephens’ way of speaking or doing things. Prior to November 1, 2008, Respondent knew that one of the ways Coach Hayes planned to thwart non-paying game attendees was to retract entry credentials from everyone except absolutely necessary game personnel. For purposes of this case, the term “credentials” encompasses FAMU printed materials, FAMU paraphernalia such as items to carry balls, and FAMU football jerseys. Willie J. Pettigrew had been FAMU’s Athletic Transportation Officer for the 14 years preceding the material time frame and held that position at all times material hereto. Mr. Pettigrew had attended one or more of the game operations meetings and knew Coach Hayes wanted to keep unauthorized people out of the field house. At the commencement of the homecoming game on November 1, 2008, Mr. Pettigrew observed a bunch of people in the equipment room and told Respondent that he needed to get them out. As the first half of the homecoming game was ending, Mr. Pettigrew told Coach Hayes that he had seen a bunch of people in the field house; that the people had been gotten out of there; and that Coach Hayes should go check out the equipment room himself. Mr. Pettigrew was not specific as to why Coach Hayes should check out the equipment room, but his inference was that there continued to be unauthorized people in the equipment room. Most football games require only one or two ball boys for each side of the field for a total of four ball boys per game. At some point in time, possibly as Coach Hayes was making his way towards the field house at half time on November 1, 2008, Coach Hayes told Respondent to clear out, from the end zone near the field house, 6-to-12 boys who had failed to get appointed as official ball boys but to whom Respondent had given identifying jerseys, anyway. Respondent got the jerseys back from the boys, but Respondent considered Coach Hayes’ directive to him with regard to the ball boy “wantabees” to be Coach Hayes’ first of three “disrespectful” actions towards Respondent. Respondent felt Coach Hayes had hurt and disappointed boys whom Respondent had been mentoring, but there is no credible evidence that the boys reacted in the same way as did Respondent, and the boys were not ejected from the game, but were asked to go sit in the stadium. At half time on November 1, 2008, Respondent proceeded to the equipment room inside the field house and closed the door behind him. Coach Hayes came immediately behind Respondent, but he reached the door to the equipment room after it closed, and the equipment room door was locked when he tried to open it. Coach Hayes twice knocked loudly on the door to the equipment room, and when no one opened the door, Coach Hayes used his all- access key to enter the equipment room. Respondent considered the loud knocking to be the second of three disrespectful things Coach Hayes did to him. Apparently, when Coach Hayes unlocked the door and entered the equipment room, an 18-year-old, very tall ball boy and Respondent’s adult brother were with Respondent in Respondent's office, and in the equipment room, or in another equipment room office there was an adult ball boy "wantabee." As soon as Coach Hayes entered the equipment room, he observed an individual he did not recognize. He then passed on to Respondent’s office within the equipment room, where he observed Respondent and two other individuals. He demanded to know who the two people in Respondent’s office were. Precisely what Coach Hayes said in Respondent’s office is in dispute, as is whether Coach Hayes went out into the equipment room and came back into Respondent's office again, but the evidence is clear that what Coach Hayes did and said amounted to shaking his finger at Respondent and saying something to the effect of “You know we have talked about unauthorized people being in the field house. Why are you trying me? Who are these people?” Respondent considered Coach Hayes' inquiry to be the third instance of Coach Hayes “disrespecting” him, and Respondent further felt Coach Hayes was “harassing” him. One of the two people in Respondent's equipment room office with Respondent was Respondent’s brother. Coach Hayes did not recognize the brother or the other person in Respondent's office when he asked Respondent who they were. Coach Hayes had given Football Coach Taylor permission to have one or two people enter the fence around the field house and set up a grill near the field house to cook for some of Coach Taylor’s family. Respondent’s brother was one of these cooks. Coach Hayes had authorized Coach Taylor’s group to enter and leave the field house by a particular outside door so as to use the restrooms near that door. Coach Hayes also was aware that someone was cooking and preparing to serve food to the football team in another room of the field house. However, at the time Coach Hayes asked Respondent to identify the people in Respondent’s office and to explain what they were doing there, neither of them was cooking outside, using the restroom near the appropriate doorway, or distributing food to football players. At the time Coach Hayes asked Respondent who Respondent’s brother and the tall ball boy were and what they were doing in the equipment room’s office, both visitors were sitting in Respondent’s office watching the game on television. Upon Coach Hayes’ inquiry, Respondent informed him that one person was a ball boy and one “the cook,” but Respondent did not volunteer that the cook was also his brother. Nobody showed Coach Hayes an admission ticket. Respondent then advanced upon Coach Hayes, yelling loudly that Coach Hayes should let Respondent do his job and that Coach Hayes should stop “disrespecting” Respondent. Respondent screamed at Coach Hayes that he would not respect Coach Hayes or tolerate Coach Hayes’ treatment any longer. Respondent got his own face within six-to-eight inches of Coach Hayes’ face, and Coach Hayes began to back out of the doorway into the hall. Respondent continued to loudly threaten to get Coach Hayes fired and advanced on him in the hallway in such a way that Tight End Coach Edwin Pata was attracted to the scene by Respondent's yelling and recognized the situation as "serious" and needing intervention. Coach Pata described Respondent as being so far "in Coach Hayes’ face" that they could have “kissed.” Coach Hayes testified credibly that Respondent was using profanity and making oral threats of physical violence against him as he backed away from Respondent and Respondent continued to advance upon him. Respondent denied both using profanity and making threats. Although other witnesses waffled as to whether Respondent used profanity at this time, Coach Hayes is the more credible witness over Respondent on the profanity issue. Regardless of what Respondent said, the volume and tone of his voice, his demeanor, and his proximity to Coach Hayes was physically threatening to Coach Hayes. No credible witness heard Coach Hayes saying anything, as he backed away from Respondent into the hallway, which amounted to more than “I’m just trying to do my job.” Once in the hallway, the noise and threatened violence from Respondent was serious enough that Coach Pata grabbed Respondent from behind and pulled him away from Coach Hayes. Respondent then broke away from Coach Pata and pushed himself into Coach Hayes’ face again, all the time screaming at Coach Hayes. At that point, Coach Pata grabbed Respondent from behind a second time and “handed off” Respondent to William Bennett, FAMU’s Videography Coordinator, who forcibly removed Respondent from the hallway into another room. Neither Coach Pata nor Mr. Bennett felt physically threatened by Respondent. Coach Hayes was initially “stunned” by the sudden and intense aggression of Respondent, who, though smaller than Coach Hayes, was also approximately 35 years' younger, fitter, and overwrought. When the second half of the game began, Coach Hayes was still so shaken by the incident with Respondent that he had to sit down outside the field house. He sat there for the entire second half of the game, unable to proceed with his usual second half activities. As early as FAMU’s Human Resources Office opened on Monday, November 3, 2008, Coach Hayes went there to ask what to do about Respondent. He was told to report the incident to the FAMU Police Department, which he did. A FAMU police officer interviewed Coach Hayes and Respondent. He got a signed, written statement from Coach Hayes and one from Respondent that day. In his written statement, Respondent admitted that he “went off” on Coach Hayes. Other potential witnesses could not be contacted on November 3, 2008, so the FAMU Police Department did not get written statements from other potential witnesses until much later. However, on the basis of what he had heard that day, Officer Darren Folsom concluded that Respondent should be charged with simple assault. Later on Monday, November 3, 2008, Respondent accosted Willie J. Pettigrew and threatened to “bar [his] ass from the field house” for telling Coach Hayes to check out the equipment room the previous Saturday, November 1, 2008. Still later on Monday, November 3, 2008, a representative of FAMU’s General Counsel’s Office physically presented Respondent with a termination letter signed by Dr. Hughes-Harris which read, in pertinent part, as follows: Pursuant to Florida A & M University (FAMU or University) Regulation 10.111, you are hereby notified that your employment with the University is terminated effective immediately. This employment action is taken against you for your disruptive conduct on November 1, 2008. Please see the enclosed copy of the police report filed on November 3, 2008, as documentation in support of this employment action. After that, Respondent was escorted off campus by a member of FAMU’s legal staff and one of its police officers. Respondent has never been arrested for the alleged assault. The letter dated November 3, 2008, informed Respondent that his employment with the University was terminated “effective immediately.” (Stipulation 8.) He also received this correspondence on November 7, 2008, by certified mail, return receipt requested. (Stipulation 9.)
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Florida Agricultural and Mechanical University enter a Final Order ratifying its termination letter of November 3, 2008. DONE AND ENTERED this 14th day of May, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 May, 2009. COPIES FURNISHED: Linzie Bogan, Esquire, Avery McKnight, Esquire Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307 Sha'Ron James, Esquire Monica Evans, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Tallahassee, Florida 32308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue posed for decision herein is whether or not the Petitioner's, Orange County School Board, suspension without pay of Razzi Lee Smith from his position of classroom teacher is warranted.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, posthearing briefs and memoranda, and the entire record compiled herein, the following relevant facts are found. During times material to the allocations herein, Respondent, Razzi Lee Smith, was employed by the Petitioner, School Board of Orange County, Florida, as a classroom teacher at Rock Lake Elementary School. On October 7, 1980, Petitioner suspended Respondent without pay from his position as a teacher pending a hearing. Respondent requested a hearing pursuant to the authority contained in Sections 120.57(1) and 231.36, Florida Statutes (1979). The charges upon which the suspension is based are, in summary fashion, that Respondent is guilty of gross insubordination, willful neglect of duty and misconduct in office. The specific charges are based upon the following grounds: On or about September 24, 1980, Respondent twice refused a lawful and reasonable order of his Principal. On or about September 24, 1980, Respondent threatened his Principal. During the months of August and September, 1980, Respondent evidenced in the presence of others, a continuing belligerent and hostile attitude towards his Principal. During the months of August and September, 1980, Respondent failed to follow the established written procedures for calling in if he was to be late or not present. 5. On September 2, 19, 22, 24 and 25, 1980, Respondent failed to report to the school by 8:00 o'clock a.m. as required in the Faculty Handbook. Additionally, Respondent was charged with misconduct in office and willful neglect of duty based upon the following grounds: On August 29, 1980, Respondent was absent from his assigned work location at Rock Lake Elementary School. On September 12, 1980, Respondent took sick leave for one half day claiming that he was too sick to finish the school day at Rock Lake Elementary School but later attended a football game in Tampa, Florida. On September 23, 1980, Respondent took sick leave claiming to be too sick to teach at Rock Lake Elementary School but attended football practice at Jones High School as a coach. On September 26, 1980, Respondent provided the Superintendent with a false oral statement, to wit, that he did not leave to go to the football game in Tampa on September 12, 1980, until approximately 7:00 o'clock p.m., arriving at the game around half time at 8:30 p.m., when in fact Ice left to go to the game with the Jones High School football team. Lois Begley has been the acting principal at Rock Lake Elementary School since approximately February, 1980. Upon assuming the duties of acting principal, Ms. Begley immediately advised teachers at Rock Lake to report for work at 8:00 o'clock a.m. and leave at 3:30 p.m. Petitioner has a policy whereby teachers who find it necessary to be absent must report such intentions by 6:30 a.m. by notifying either Ms. Begley or an office employee at Rock Lake, Caroline Johnson. Respondent was advised of this policy; was warned of his breach of said policy on two occasions during February and March of 1980, and admitted that he was aware of the policy. (Petitioner's Exhibits Nos. 3, 4 and 5) Ms. Begley stressed the need to know of a teacher's intended absence prior to 7:00 o'clock a.m. in order to recruit a substitute teacher. Subsequent to March, 1980, Respondent was again advised of Petitioner's policy respecting timely reporting for duty at Rock Lake Elementary School. (Petitioner's Exhibit No. 6) During a faculty meeting held during the afternoon of the last day of preplanning, August 29, 1980, Ms. Begley observed that Respondent was not present. She inquired of Respondent's whereabouts and was advised by an office employee that Respondent had called and reported that he was experiencing transportation problems. Ms. Begley observed Respondent at Jones High School later that same afternoon. During the last week of August, 1980, Respondent advised Ms. Begley that he had been leaving Rock Lake approximately one hour early each day during the preplanning week to assume coaching duties at Jones High and that this was cleared prior to Ms. Begley's tenure as acting principal at Rock Lake. Ms. Begley reluctantly agreed to Respondent's early departure during that school year, however, she made clear to Respondent that he would be expected to teach a full day the following year. Respondent and Ms. Begley made an agreement whereby he would report to work one half hour early, i.e., at 7:30 a.m., in order to make up for one half of the time lost due to his early departure from Rock Lake to coach at Jones High School. Respondent failed to report for duty at 7:30 a.m. as was his agreement with Ms. Begley. September 2, 1980, was the first school day for students at Rock Lake. Respondent reported for work at approximately 9:00 a.m. on September 2, 1980, and several students were observed milling around in the hallways attempting to find Respondent to enter their homeroom class. Respondent called the office at Rock Lake at approximately 8:30 a.m. on September 2, and advised that he was again experiencing transportation problems. Ms. Begley offered to assist Respondent in getting a ride to school. Within minutes, Ms. Begley had located a ride for Respondent. Ms. Begley called to so advise Respondent, whereupon Respondent told Ms. Begley that he had found a ride. As stated, Respondent reported for duty at 9:00 a.m. on September 2, 1980. Ms. Begley counselled Respondent regarding his claimed transportation problems again and stressed the reasons for her need to be alerted when he would be reporting late for work. Respondent generally discussed his problems with Ms. Begley on September 12, indicating that he was encountering personal problems that he did not care to divulge and that there were rumors about him being circulated around the school amongst other faculty members. Ms. Begley later discussed the problem regarding that fact that he had failed to make up 150 of the 300 minutes that he owed the School due to his early departure to coach at Jones High Sclcool during the week of preplanning. Ms. Begley did not take disciplinary action against Respondent due to his lateness in reporting for duty on the first day of school. Respondent requested the services of a substitute teacher to "fill in" for him during the afternoon of September 12, 1980, because he was ill. Respondent initially refused to divulge to school officials the nature of his illness. He attended and coached a football game between Jones High School and a local high school in Tampa that night. On September 19, 1980, Respondent reported for work at approximately 8:50 a.m. As late as 8:30 a.m. on that day, several students were unable to get in class and Respondent failed to call to advise Ms. Begley or the designated official that he would report for work late. When questioned as to the reason for his tardiness by Ms. Begley, Respondent replied that he had earlier advised her that he was having transportation problems. Ms. Begley again counselled Respondent regarding his continued tardiness in reporting to work. At that time, he was also directed not to use school supplies to photocopy football plays for use at Jones High School without proper authorization. On September 19, office aides, Ann Green and W. Oliver, work situs was in the immediate area where Respondent was counselled by Ms. Begley and were in earshot of the conversations. Respondent balked and became vocal about being counselled by Ms. Begley for reporting late. Ms. Begley reported the incident to Dr. Skaggs, Superintendent in charge of employee relations and Ron Blocker, Area Superintendent, who serves as a liaison between the superintendent and individual school principals. During the conference with Ms. Begley on September 19, Respondent voiced displeasure about the working conditions at Rock Lake and expressed a desire to transfer when Ms. Begley reported what she termed to be threatening remarks by Respondent to Dr. Skaggs. On September 19, 1980, Respondent reported for work at approximately 8:50 a.m. and was summoned for a conference with Ms. Begley and Ron Blocker. During the conference, Respondent expressed disagreement or displeasure regarding the atmosphere in which he was being questioned and indicated that he preferred to leave. Respondent was warned of the consequences that might flow from his acts and conduct which could include either disciplinary action by way of a suspension or a failure to be reappointed for another term should he not heed the advice and warnings given him by his Principal, Ms. Begley. 2/ On September 22, 1980, Respondent reported for duty at approximately 8:14 a.m. Respondent did not call to advise Ms. Begley or the other designated official. Ms. Begley spoke to Respondent about his reporting tardy at approximately 2:00 p.m. on September 22, 1980. Present during the conference were Respondent, Ms. Begley and Ron Blocker. Respondent was invited to offer and explanation or statement with reference to his continued pattern of reporting for duty late, however, he refused to make any verbal response. Ms. Begley reduced the oral reprimand to writing and delivered it to Respondent who failed to accept or verify that he was issued a reprimand. On September 23, 1980, Respondent took sick leave and, therefore, did not report for work at Rock Lake. On that same day, however, Ms. Begley observed respondent at the football field at Jones High School between the hours of 4:00 to 5:00 p.m. working with a small group of football players. On the following day, September 24, 1980, Respondent reported for work at approximately 8:07 a.m. Ms. Begley summoned Respondent to a conference, explaining to him at the outset of the possible consequences that might result from the conference. Given the gravity of the possible consequences, Ms. Begley inquired if Respondent cared to bring a witness or other representatives to be present with him during the conference. During the conference, Ms. Begley advised Respondent that she regreted having to give him a written reprimand but that his acts and conduct gave her no alternative. A copy of a reprimand was then given Respondent which he refused to sign acknowledging acceptance (Petitioner's Exhibit No. 7). The parties' Collective Bargaining Agreement requires that written reprimands respecting lateness or failure to report for work be documented by a letter to that effect (Petitioner's exhibits Nos. 8 and 9). Ms. Begley, then, during the conference, asked Respondent if she could be of any further assistance to him, whereupon, Respondent in a hostile manner advised that he did not need or want any assistance and began pointing his finger at Ms. Begley telling her to "leave him alone." Respondent was told by Ms. Begley that that kind of conduct (vocal and belligerent outbursts) could result in disciplinary action to him. Ms. Begley inquired of Respondent what type leave he took on September 23, 1980, whereupon, Respondent advised that he went to see a doctor. Ms. Begley then asked Respondent to provide her with a doctor's statement to document that claim. Respondent never provided Ms. Begley with a medical excuse for his absence as requested. Ms. Begley considered that Respondent's demeanor and mannerism during the conference of September 24, 1980, constituted a threat based on the tone of his voice and the message, i.e., "quit messing with me. Stop bothering me--I'll do more than threaten you" (when Ms. Begley asked Respondent if he was threatening her). She also considered that Respondent's failure to signify acceptance of the reprimand constituted a compromise of her authority. (See Petitioner's Exhibit No. 8, pages 22, 23). Respondent later discussed the decision to discipline Respondent and ultimately decided to recommend his dismissal to Superintendent Skaggs and Area Superintendent Blocker during the evening of September 25, 1980. The possibility of a transfer was considered by Ms. Begley but rejected inasmuch as she was of the opinion that a transfer would not serve any useful purpose in correcting the problems evidenced by Respondent's erratic work habits. Ms. Begley considered that her attempt to reprimand Respondent was ineffective and incomplete based on his refusal to sign an acknowledgement of receipt of the reprimand plus the combination of the insubordinate attitude displayed by him in the presence of his peers, his neglect of duty and tardiness in reporting for work, when combined, warranted a recommendation to the Superintendent that Respondent be dismissed as opposed to a transfer or some other lesser form of reprimand or discipline. Ron Blocker, the area administrator and liaison between the Superintendent and the Principal were summoned to Rock Lake Elementary School to assist Ms. Begley in what was once thought to be a possible teacher resignation. During the conference on September 24, 1980, Administrator Blocker advised Respondent that his failure to sign for receipt of a written reprimand could have grave disciplinary consequences in view of the gravity of the charges and Respondent's hostile conduct as manifested throughout the conference. Administrator Blocker recalled the forceful tone used by Respondent in telling Ms. Begley that he was "doing more than threatening her." Administrator Blocker also recalled Respondent's refusal to advise Begley of the reason for his absence the day prior to the conference indicating instead that she would know at the end of the work day. During the conference, Administrator Blocker recalled that he twice cautioned Respondent that his (Respondent's) refusal to follow an administrative directive may be interpreted as "gross insubordination" which could lead to possible termination or failure to be reappointed (as a teacher) the following school year. Calvin Perry is Director of Drivers Education and is the head football coach at Jones High School. As head football coach, Coach Perry is familiar with the duties of Respondent, a paid assistant coach assigned to coach the defensive team at Jones High School. Coach Perry confirmed that Respondent was present at the September 12, 1980, game in Tampa indicating that Respondent was present during the pre-warm ups and was present throughout the entire game. Coach Perry credibly testified that Respondent was present for football practice on September 23, 1980, having reported at the start of practice at approximately 3:00 p.m. and remained throughout the practice session which lasted until approxiately 5:15 p.m. However, Coach Perry also acknowledged that Respondent indicated that Respondent was ill at the game in Tampa. James L. Schott, Petitioner's Superintendent was shown copies of the letters sent to Respondent bearing the dates September 26, and October 4, 1980, respecting his suspension of Respondent without pay. Superintendent Schott explained that a conference was called to hear the nature of the charges; to hear both sides; to evaluate the evidence and determine the nature of, if any, recommended penalty he would make to the School Board, prior to making any recommendation based on the subject charges. Superintendent Schott recalled that while Respondent explained that he was ill on September 12, 1980, he was able to attend a football game in Tampa although he arrived during halftime because he was not feeling well and was uncertain as to whether he would attend the game at all. Respondent maintained his "story" to Superintendent Schott about attending the Tampa game during halftime. When Respondent advised Superintendent Schott that he also took sick leave on September 23, 1980, Superintendent Schott reminded Respondent of the similar situation by him on September 12, and, therefore, asked that he bring any documentary evidence of illness that he had so that it could be considered prior to his making any decision on the pending charges against him. Therefore, Superintendent Schott counselled Respondent regarding his failure to follow what he considered to have been lawful and reasonable requests regarding his attendance and timely reporting to work. During the Superintendent's conference with Respondent on September 26, 1980, he determined that Respondent was late approximately 50 minutes on September 19; approximately 14 minutes on September 20th and several minutes late on September 21 and 22. On September 23, respondent was absent for work claiming sick leave. According to Superintendent Schott, Respondent acknowledged that he might have made a threat to Ms. Begley during the conference on September 24, 1980. Superintendent Schott was able to independently determine from an investigation of the charges that Respondent had offered false information regarding his attendance to the football game in Tampa on September 12, 1980, inasmuch as other credible evidence indicated Respondent's presence at that game throughout its entirety. After considerable deliberation, Superintendent Schott determined that termination was the only appropriate remedy that he should recommend to the full School Board to discipline Respondent. In making this decision, Superintendent Schott reflected on the facts that Respondent had obviously been terminated for failure to report to work as assigned and that to transfer Respondent would merely pass the problem to another Administrator to grapple with. Superintendent Schott, after much consideration, made the decision to recommend Respondent's termination without animosity and with much sensitivity to the problem based on the rapport that Respondent appeared to have with the youth and his peers at Rock Lake Elementary School. Superintendent Schott offered that teaching was more by example than by class room actions and that the responsibility of a teacher included getting to work promptly and was more than the usual duties expected once a teacher gets to class such as adding columns, deciphering words, reading etc. RESPONDENT'S DEFENSE Respondent is a 1975 graduate of South Carolina State College and as stated, has been employed as a sixth grade teacher at Rock lake since the 1979- 80 school year. While so employed, Respondent has been involved in several school related activities outside his normal teaching duties, including Chairman of the Student Council; contact or liaison for Career Education; Chairman of the Safety Patrol; Scout leader and CTA representative. 3/ Respondent admits to not returning for duty on August 29, 1980, as charged. However, he exclaimed that he encountered car trouble enroute to his mother's home for lunch and consequently had to walk a distance of approximately two miles. Respondent also reported late for duty on September 2, due to transportation problems and did not arrive until approximately 8:45 a.m. Respondent also left school on September 12, 1990, at approximately 12:50 p.m. due to illness. Respondent admitted that he attended the game in Tampa on the evening of September 12, 1980. Respondent explains that this was possible because his health improved from the nauseated condition that he had suffered earlier during the day. Respondent rode to the game in Tampa with scouting coaches Smith and Robertson and arrived at the stadium in time for program warm-ups. 4/ Respondent also admitted reporting for work late on September 19 and 22, 1980. Respondent refused to sign a statement acknowledging acceptance of the written reprimand by Ms. Begley on September 24, 1980, based on his claimed "lack of trust" for Ms. Begley. In this regard, however, Respondent admits that Ms. Begley explained to him that signing the statement attached to the reprimand in no way signified agreement with the contents of the reprimand. Respondent claimed to have felt pressured to tell the Superintendent that he left Orlando at approximately 7:00 p.m. on the evening of September 12, 1980, and arrived at the game at halftime but that there was no willful attempt by him to misstate or otherwise misrepresent the facts to Superintendent Schott. The facts do not evidence a basis for Respondent's feeling. In this regard, Respondent admitted that he arrived at the game on September 12, 1980, before it started and remained for the duration of the game. Respondent did not verbally respond to inquiries by Ms. Begley during the conference with Ms. Begley and Area Superintendent Blocker because he considered Ms Begley's inquiry to be a form of harassment and an attempt by her to treat him as a "child." Finally, Respondent considered that by telling Ms. Begley that he was initially experiencing transportation problems excused his reporting requirements when he subsequently reported for work late.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That Respondent be dismissed as an instructional employee of the Orange County School System. RECOMMENDED this 17th day of February, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact The Respondent caused the experience increments which had been in effect for all adult education teachers to be modified or terminated, and reduced the hourly wage amounts paid to adult education teachers. However, the real question presented is whether adult education teachers were included within the bargaining unit. The position of adult education teachers was not mentioned either in the inclusions or exclusions of the descriptions of the bargaining unit. Whether they would be included therefore turns upon whether adult education teachers are regularly employed certificated personnel." Adult education teachers were not required to be certificated, one primary requirement for inclusion in the unit. In addition, persons employed in the adult education program included both certificated day-time teachers and administrative personnel specifically excluded from the unit. Their employment was not contractual and could be terminated if a particular class was cancelled or dropped based upon lack of student enrollment. In such a case the adult education teacher's employment would be automatically terminated. Adult education classes were presented at night and the maximum number of hours that any adult education teacher would work would be six (6) hours per week. For both groups, employment as an adult education teacher was in addition to their regular employment. From a budgetary standpoint, adult education teachers were compensated from a separate functional breakout within the school budget to which that portion of their compensation earned as an adult education teacher was charged. No deductions were made from the adult education portion of a teacher's salary for retirement or Social Security. Based on the foregoing facts, the Hearing Officer finds that adult education teachers are not "regularly employed certificated personnel" and therefore, are not within the bargaining unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken on the charges as stated in Paragraphs 10(A)(B)(C)(D)(E)(F)(G)(J)(H) and Paragraphs 11(A) and (B). Based upon the foregoing Findings of Fact and Conclusions of Law relating to Issue XI and Paragraph 10(H) of the complaint, the Hearing Officer would recommend that the Commission enter its order requiring the Respondent to cease and desist its refusal to bargain upon request over mandatory items of collective bargaining. DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ron Meyer, Esquire Frank & Meyer, P.A. Flagship Bank Building Tampa, Florida Norman J. Smith, Esquire Brinson and Smith, P.A. Post Office Drawer 1549 Kissimmee, Florida 32741 Austin Reed, Esquire Public Employee Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301 Mr. Leonard Carson, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue in this cause is whether Respondent engaged in unlawful employment practices of discrimination against Petitioner, for the reason of her being a female, by denying her management training during her employment tenure and by subsequently terminating her employment, in violation of Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes (2003).1
Findings Of Fact Based upon observation of the demeanor and candor of each witness while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Section 120.57, Florida Statutes; and stipulations of the parties, the following relevant and material facts, arrived at impartially based solely upon testimony and information presented at the final hearing, are objectively determined: Petitioner, Kelly McKean, is a Caucasian female and, at all times pertinent to this proceeding, was an employee at one of Respondent's, Econo Auto Painting, Inc., business locations, located at 1822 West Memorial Boulevard, Lakeland, Florida, from February 12, 2001, until she was terminated on June 23, 2003. Petitioner had approximately six years of non-continuous employment at several of Respondent's business locations before beginning her employment at the above Lakeland business site. Petitioner was employed by Respondent as a "taper," the person who is responsible for taping cars after body repairs and before painting. The taping of cars consisted of aligning strips of tape to specific areas of each automobile to prevent the taped area from being painted by the painter. Petitioner was an "aggrieved person" as defined by Section 760.10, Florida Statutes. The evidence of record establishes the fact that during all times pertinent, Respondent's Lakeland location employed nine employees comprised of: two females and seven males (five Caucasians/three Hispanics/one African American). Of the nine employees, one Caucasian female and one African American male were in managerial positions. Both were employed through contractual services of Selective HR Services (SHRS), an independent contractor and co-employer of Petitioner. Respondent is an automobile body shop business specializing in automobile body repairs and painting the exterior of cars and, at all times pertinent to this proceeding, was an "employer" as defined by Subsection 760.02(7), Florida Statutes. During all times pertinent to this proceeding, SHRS was responsible for providing human resources management services for Respondent's employees.4 At all time pertinent to this proceeding, Respondent hired the shop managers for its several auto body repair shops through SHRS. At no time pertinent to this proceeding did Respondent promote employees to management positions from within. At no time pertinent to this proceeding did Respondent permit, offer, or have in place a management training program for the training and promotions of employees from within the ranks of its shop employees to management positions within the company. At all times pertinent to this proceeding, and, on Monday, June 23, 2003, Marquez Green was the shop manager and Ron Link was the assistant manager of Respondent's Lakeland branch body shop during Petitioner's last term of employment at that location. Basis for Petitioner's Termination Several weeks preceding her termination, on June 23, 2003, the assistant shop manager, Mr. Link, noticed and personally discussed with Petitioner her repeated improper taping of some cars in the assembly line processes. Mr. Link spoke with Petitioner about this problem particularly stressing the fact that each car not properly taped required repainting which resulted in a slowdown of the repair, sanding, taping, and repainting process. It was made clear to Petitioner that repainting due to improper taping was causing the shop to lose profit. During the days following notice of the problem regarding incorrectly taped cars, Petitioner failed and/or refused to improve her work habits. The lack of improvement by Petitioner of her work habit of taping cars apparently became of some concern with management, in view of Petitioner's experience and over seven years of service as a taper with Respondent's business. Added to this disturbing trend, some time later, both the shop manager and assistant manager observed Petitioner in the manager's office reading business documents. Management confronted Petitioner with this violation of its policy that "none management" personnel were not allowed to read/review business documents. Petitioner gave an excuse for her conduct stating that the prior manager permitted her to review office documents when she was caught up with her work. Other than her statement, Petitioner failed to provide the identity or the testimony of the prior manager who allegedly granted her permission to review office documents when she had completed her work assignments before the end of the day. Petitioner presented no corroborating evidence in support of her assertion of prior managerial permission for her to review office documents. Petitioner's allegation of "prior permissive authority" was thus not credible. Mr. Green gave undisputed testimony that during a third occasion, he observed Petitioner and a non-employee male friend of Petitioner walking and talking in the work area restricted to employees only. Mr. Green approached the couple and immediately brought the rule infraction of no non-employees within the restricted work area to Petitioner's attention, ending by instructing Petitioner to tell her male friend to leave the restricted workshop area immediately. Under these circumstances, and in the presence of a non-employee, Petitioner said to her shop manager: "He'll leave when I want him to leave." Following Petitioner's refusal to obey the shop manager's direct order accompanied by her disrespectful comment, Mr. Green moved to call the local police, and only then did Petitioner's male friend leave the premises. Mr. Green subsequently discussed this matter, as well as the profit loss due to improper taping of cars, with Mr. Link, and they jointly decided not to take disciplinary action against Petitioner at that time. Notice of Termination On Monday, June 23, 2003, Petitioner reported to work at approximately 7:35 a.m. and five hours later, at approximately 12:35 p.m., she had completely taped all nine cars in the shop for repair and painting that day. Petitioner sought out Mr. Link, inquiring what he would have her do next; assist other employees in the shop or go to lunch? Mr. Link instructed Petitioner to go home for the remainder of the day. After her departure, Mr. Link and Mr. Green discussed Petitioner's continuing hurried work habits, her attitude toward management when given a direct order, and her unauthorized presence in the manager's office reviewing business documents. Management considered the following: (1) Petitioner's continued episodes of improper taping was causing an increase in cost and a decrease in profits, (2) Petitioner's negative attitude toward management, and (3) Petitioner's unauthorized presence in the manager's office looking at managerial business documents. Management determined that the above conduct was sufficient basis for her termination as an employee. In the afternoon of June 23, 2003, Mr. Link, with authorization from Mr. Green, telephoned Petitioner and informed her that she was terminated because of her repeated and costly taping errors and her failure to correct those errors. The telephonic notice of termination was followed by a written termination letter with check marks beside the boxes "refusal to perform job duties" and "unable to perform job."5 This document formed the factual basis for Petitioner's termination as an employee. Background and Employer's Policy On February 12, 2001, before she began working at Respondent's Lakeland job site, but while she was working for Respondent at another job site, Petitioner executed an Employment Acknowledgement packet containing the policy(s) and procedures she agreed to follow in the event there occurred any employment disputes, including any type of discrimination. Petitioner also agreed to resolve employment disputes through use of SHRS' Alternative Dispute Resolution (ADR) procedure. Prior Complaints Made by Petitioner While working at Respondent's Longwood, Florida, job site, but before working at the Lakeland job site, Petitioner made one verbal complaint of sexual harassment to Betty Branham, SHRS compliance supervisor, regarding sexual comments regarding her buttocks made by male co-workers. The record does not contain evidence whether this complaint was pursued or dismissed. Petitioner neither made complaints nor did she make any reports of sexual harassment or discrimination, gender or otherwise, at the Lakeland job site during her February 12, 2001, to June 23, 2003, employment tenure there. Petitioner did not file a report with SHRS claiming discrimination because of her gender and/or because she was denied management training opportunities and opportunities for promotion into management. Other Employees Terminated by Respondent During the early hours of June 24, 2003, one day after Petitioner's termination, Mr. Link terminated a male employee, Edward Burgess. Mr. Burgess was a "sander," and he was terminated for "refusal to perform job duties" and "unable to perform job." According to Mr. Link, Mr. Burgess was "taking two-to-three times longer than what he should to sand cars." During the evening hours of June 24, 2003, Mr. Green terminated another male employee, Mr. Link. Mr. Link was terminated, as he recalled, "because another male employee made accusations that while walking behind him Mr. Link bumped into his rear and made sexual gestures." Mr. Link admitted he could not recall, that is, he could not confirm, argue or deny, the other party's versions of what actually occurred and what was said at the time of his bumping into the other employee. The unnamed other employee did not testify. Petitioner, through the testimony of witnesses, of record, and exhibits admitted into evidence, failed to produce a scintilla of substantial and competent evidence to establish: that she was subjected to an adverse job action when, in fact, she was terminated for poor job performance and disrespectful conduct toward management on June 23, 2003; that because of her gender, female, she was treated differently than similarly situated male employees, who were not terminated after violation of work place policy(s); and (3) that she was qualified for the job as managerial trainee but was denied an opportunity for employee managerial training which was provided by her employer to other employees.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief and the Charge of Discrimination filed in this cause by Petitioner, Kelly McKean. DONE AND ENTERED this 18th day of February, 2005, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 18th day of February, 2005.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: During the 1986-87 school year the Petitioner was employed by the Respondent as a Compensatory Education Teacher at Lake Butler Middle School. Additionally, he served as Assistant Football Coach and Junior Varsity Baseball Coach. The Petitioner is over the age of eighteen years. During the 1986-87 school year the Petitioner possessed a temporary teaching certificate issued by the Florida Department of Education (Certificate Number 562142) disclosing "Highest Acceptable Level of Training - Bachelor's Degree." The Petitioner also possesses a permanent teaching certificate with a validity period of July 1, 1987, through June 30, 1992. Superintendent of Schools, James H. Cason, III, met with M. H. Boyd, Principal, Lake Butler Middle School and Petitioner's principal, prior to formulating his decision to recommend Petitioner to Respondent for additional year of employment. Boyd advised Superintendent Cason that she was not entirely satisfied with Petitioner's performance but that she could "live with" Petitioner's reappointment for the 1987-88 school year. Superintendent Cason also conferred with the head coach, James F. Niblack, Petitioner's supervisor for the athletic duties performed by Petitioner, prior to formulating a recommendation to Respondent concerning Petitioner's reappointment for the 1987-88 school year. Coach Niblack recommended Petitioner's reappointment for the 1987-88 school year. Superintendent Cason made a timely written nomination that Petitioner be reappointed by the Respondent in an instructional position for the 1987-88 school year. On April 27, 1987, Respondent conducted a meeting for the purpose, inter alia, of acting upon the recommendation of Superintendent Cason for personnel appointments. The Respondent voted unanimously to reject the recommendation of Superintendent Cason that Petitioner be reappointed to an instructional position for the 1987-88 school year. No reason for the rejection of the nomination of the Petitioner by the Respondent was verbally stated at the April 27, 1987, meeting nor spread upon the minutes of such meeting. During the hearing, and after conferring with the members of the board, counsel for Respondent stipulated that Petitioner met the statutory requirement to be eligible for appointment to a position with Respondent in that he is of good moral character, is over the age of eighteen (18) years and holds a certificate issued under the rules of the State Board of Education. School Board member, W. S. Howard, Jr., a cousin of Boyd, requested that Boyd prepare an evaluation of Petitioner. The record is not clear as to whether the evaluation was made before or after the Superintendent conferred with Boyd on Petitioner's reappointment. Petitioner was evaluated "satisfactory" in ten (10) of the eighteen (18) areas measured on the evaluation instrument that was utilized, "unsatisfactory" on two (2), "not applicable" was marked on two (2) criteria and four (4) were left unmarked by the evaluator. The evaluation instrument utilized by the Respondent in evaluating the Petitioner's performance was not the instrument which should have been utilized during the 1986-87 school year although such instrument was utilized by the principal for other employees at the Petitioner's school. The Respondent officially sponsors, maintains and funds the athletic programs in which the Petitioner rendered services during the 1986-87 school year. Such programs constitute an integral part of the overall educational program offered by the Respondent to children of Union County. The Petitioner's service to the athletic program conducted by the Respondent was rated satisfactory or above.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent, School Board of Union County, enter a Final Order GRANTING the Petitioner an annual contract for the 1987-88 school year and reimbursing Petitioner for any loss of wages due to his non-pay status which resulted from Respondent's rejection of his nomination. RESPECTFULLY SUBMITTED AND ENTERED this 27th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2536 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-11. Adopted in Findings of Fact 1 through 11, respectively. 12.-15. Adopted in Findings of Fact 13 through 16, respectively. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 7. Adopted in substance in Findings of Fact 5, 6 and 7. Adopted in substance in Finding of Fact 1. Adopted in Finding of Fact and 6. The fact that Boyd had some reservations concerning Petitioner's abilities to teach the compensatory education class is adopted in Finding of Fact 5, the balance of paragraph 6 is rejected as not supported by substantial competent evidence in the record. The fact that Niblack recommended Petitioner for reappointment is adopted in Finding of Fact 6, the balance of Paragraph 7 is rejected as not supported by substantial competent evidence in the record. The fact that the Union County School Board voted not to rehire Petitioner is adopted in Finding of Fact 9, the balance of paragraph 8 is rejected as not supported by substantial competent evidence in the record. The fact that the reason for Respondent's vote to reject Petitioner's reappointment was not verbally stated or spread in the minutes is adopted in Finding of Fact 10, the balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record in that the testimony of the individual School Board members lacked credibility. Rejected as being presented as an argument and not as a Finding of Fact. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32302 Bobby Lex Kirby, Esquire Route 2, Box 219 Lake Butler, Florida 32054 James H. Cason, III, Superintendent The School Board of Union Co. 55 Southwest Sixth Street Lake Butler, Florida 32054 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue The issue in this case is whether Respondent, Steve E. Montgomery, committed the violations alleged in the Second Amended Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Steve Montgomery has been employed with the School Board since May 13, 1988. He last held the position of a Plumber II Journeyman in Miami-Dade County Florida. Montgomery's job description and the maintenance employee's handbook mandated that he maintain a valid driver's license and Certificate of Competency in order to remain employed by the School Board. During the hearing, Montgomery admitted that he was aware that he had to maintain such minimum qualifications for his job. Montgomery started a pattern in 2003 of his driver's license getting suspended and then being reinstated again. Montgomery admitted during hearing that his driver's license had been suspended at least four times. Each time, the School Board notified Montgomery that his license was not valid and provided him five working days to get a valid license. Montgomery was placed in an alternative work assignment whenever he did not have the valid credentials. The School Board kept a record of the occurrences in Montgomery's personnel file. The file contained a December 15, 2003, memorandum entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED BY JOB DESCRIPTION" directing Montgomery that his license was suspended and/or revoked and detailing that his job description requires that he maintain a valid State of Florida Class D license as one of the minimum qualifications of the position. The memorandum also stated that Montgomery had five days until December 22, 2003, to present evidence of a valid license. A May 24, 2004, memorandum almost identical to the one dated December 15, 2003, except for the deadline dates, was also in Montgomery's personnel file. The memorandum provided a deadline of June 1, 2004, to present evidence of a valid driver's license and indicated that, if there was a failure to satisfy the requirement in the allotted time period, a Conference-for-the Record ("CFR") would be scheduled to discuss the matter further. A July 26, 2005, memo identical to the two previous memorandums except for the dates was also in Montgomery's personnel file. The memorandum gave a deadline of August 2, 2005, to present evidence of a valid driver's license. Mr. Palacio personally gave the invalid driver's license memorandums to Respondent and verbally notified Montgomery of the requirement to get a valid license. Montgomery signed the memorandum dated September 15, 2005, entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED BY JOB DESCRIPTION." As in the previous memos, it stated: Attached please find a report dated September 15, 2005 that indicates your driver's license has been suspended and/or revoked. Your official job description requires you to maintain a valid State of Florida CDL Class D* driver's license as one of the minimum qualifications of this position. (Effective July 1, 2005, Class D licenses were converted to Class E.) You are advised that this requirement is a condition of your continued employment with Miami-Dade County Public Schools. Without a valid driver's license you are no longer qualified to perform the requirements of your position with the District. Effective immediately, you are being placed on an alternate work assignment. Accordingly, you are directed to present evidence of this required license to your Satellite Director or designee within five (5) working days from the date of this memorandum, which will be September 23, 2005. Until such time, you are not authorized to operate any District vehicle or motorized equipment that requires possession of a driver's license. If you fail to satisfy this requirement within the allotted time period, a Conference-for-the-Record will be scheduled to address this matter further. Please review your Maintenance Operations handbook (Trades Chapter, Page 4) for further details. A CFR was held with Montgomery on September 30, 2005, because he did not obtain a valid driver's license by September 23, 2005. Montgomery was provided a copy of the job description for plumber II and the September 15, 2005, memorandum. At the CFR, Montgomery was again informed that maintaining his valid driver's license is a minimum qualification of his position and that "Without a valid driver's license, you are no longer qualified to perform the requirements of your position with the District." Montgomery signed the summary of the CFR on October 3, 2005. On October 13, 2005, the School Board notified Montgomery by memorandum that he had failed to maintain his Certificate of Competency and it had expired on August 31, 2005. Montgomery signed the memorandum and was instructed to present a valid certificate no later than October 17, 2005, at 8:00 a.m. Montgomery was aware that it was his responsibility to know when his qualifying documents expired and keep them valid as a minimum requirement for his job. A CFR was held on February 11, 2006, regarding Montgomery not possessing a renewed Certificate of Competency and a valid driver's license. At the CFR, Montgomery produced a renewed certificate but did still did not have a valid license. On May 4, 2006, Montgomery still did not have a valid driver's license and Mr. Palacio recommended Montgomery's termination. In Palacio's memorandum, the grounds for such discipline were as follows: Mr. Montgomery is in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, members of the non-instructional staff shall maintain all certifications, licenses and job requirements as a condition of employment. Failure to do so shall warrant disciplinary action. On May 9, 2006, Mr. Brown and the maintenance officer signed a memo entitled Recommendation for Termination Mr. Steve E. Montgomery Employee # 169252 Plumber II, Region Maintenance Center II providing grounds for disciplinary measures inasmuch as Montgomery was unable to produce a valid Florida's driver's license, a condition of employment. The memo stated: As a Plumber II, Mr. Montgomery must maintain all certifications, licenses and job requirements. Failure to comply with minimum job requirements warrants dismissal. Montgomery let the Certificate of Competency expire again on August 31, 2007. Subsequently, on September 17, 2008, another CFR was held with Montgomery notifying him of the recommendation for suspension and termination because Montgomery's license and Certificate of Competency were not valid. During the CFR, Montgomery did not offer any explanation as to why his license was still suspended or submit proof of his Certificate of Competency but only commented he "will have [both] soon."4 Montgomery also did not complain about any working conditions during the CFR. At a regularly scheduled meeting on January 14, 2009, the School Board suspended Montgomery without pay and initiated dismissal proceedings against him from all employment with Miami-Dade County Public Schools for just cause, including, but not limited to: violation of School Board Rules 6Gx13-4A-1.21 Responsibilities and Duties, 6Gx13-4A-1.213 Code of Ethics, and Sections 1001.32(2), 1012.22(1)(f), 1012.40, and 447.209, Florida Statutes. Montgomery's license was suspended at the time of his suspension and termination. Likewise, Montgomery's Certificate of Competency had still not been renewed at the time of his suspension and termination. No other School Board employee had his/her license suspended as many times as Montgomery with an expired Certificate of Competency at the same time. Further, the School Board has disciplined employees by termination for having a suspended driver's license. Montgomery had a valid Florida driver's license and a renewed valid Certificate of Competency at the hearing. On August 20, 2009, the School Board filed its Second Amended Notice of Specific Charges charging Respondent with violating School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, School Board Rule 6Gx13-4A-1.213, Code of Ethics, and State Board Rules 6B-1.001 and 6B-1.006 by failing to maintain a valid driver's license and Certificate of Competency.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order that: (a) dismisses Count I; (b) finds Respondent in violation of Count II as charged; and (c) upholds Respondent's suspension without pay and termination. DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 26th day of February, 2010.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Section 550.105(6), Florida Statutes and Rule 61D-1.006(3)(a)2, Florida Administrative Code, by having unpaid financial obligations that directly relate to racing being conducted at a pari-mutual facility within this state.
Findings Of Fact At all times material to this case, David Monaci, an individual, held three pari-mutuel wagering occupational licenses, to-wit: Thoroughbred Trainer, DPMW license number 1079030-3050; Authorized Agent, DPMW license number 1079030- 1047; and an Unrestricted "U1" Professional license, DPMW license number 1079030-1081. David Monaci has some form of interest in, or relationship with, a corporation that is named either David Monaci Stable Inc., or D. Monaci Stable, Inc. The nature and extent of David Monaci's interest in, or relationship with, that corporation is not revealed by the evidence in this case. 3/ At some time during 1993, David Monaci, acting on behalf of the corporation named David Monaci Stable, Inc., or D. Monaci Stable, Inc., entered into an agreement with the Country Western Store in Davie, Florida, pursuant to which the Country Western Store would supply food and other necessities for the race horses being handled by David Monaci at the Gulfstream Park horse race track. The food and other necessities supplied by the Country Western Store were invoiced to "David Monaci Stable, Inc.", at an address in New Jersey. After the invoices went unpaid for a number of months, the Country Western Store quit providing anything for the race horses being handled by David Monaci. Shortly thereafter, the Country Western Store filed a lawsuit in Circuit Court in Broward County, Florida, against David Monaci Stable, Inc., seeking to recover the amount owed for the food and necessities it had furnished for race horses handled by David Monaci. On September 8, 1994, a Final Judgement was entered in favor of the Country Western Store and against David Monaci Stable, Inc. The Final Judgement provides, in pertinent part: 2. Plaintiff does have and recover from the Defendant, DAVID MONACI STABLE ,INC., the sum of $20,013.46 for damages, $224.76 for costs, $605.00 for attorneys fees, and $915.19 for interest, for all of which let execution issue. As of the date of the formal hearing in this case, nothing has been paid towards the satisfaction of the Final Judgement described immediately above. The Country Western Store did not sue David Monaci individually. The Country Western Store does not have a Final Judgement against David Monaci individually. The extent, if any, to which David Monaci in his individual capacity may or may not be responsible for the debts of David Monaci Stable, Inc., is not revealed by the evidence in this case.
Recommendation On the basis of all of the foregoing, it is Recommended that a Final Order be issued in this case dismissing all charges in the Administrative Complaint on the grounds that the evidence is insufficient to prove that the license holder, David Monaci, is responsible for any of the debts or obligations. DONE AND ENTERED this 14th day of August, 1996, in Tallahassee, Leon County, Florida. 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 14th day of August, 1996.
