The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Anna L. Elam, was not offered employment as an elementary school teacher and was therefore discriminated against by the Respondent, Flagler County Schools, on the basis of her age.
Findings Of Fact The Petitioner filed an Amended Charge of Employment Discrimination with the Florida Commission on Human Relations (“Commission”) on February 15, 2003. The Commission investigated the amended complaint and issued a determination of no cause that discrimination had occurred. The Petitioner timely requested a formal administrative hearing and the petition was duly referred to the Division of Administrative Hearings by the Commission. Upon notice, this matter was set for formal hearing on December 18, 2003, at the Flagler County Courthouse in Bunnell, Florida. Following a Motion for Continuance filed by the Respondent, the final hearing was reset for February 17, 2004, at the same location in Bunnell, Florida. The Petitioner called and spoke with Melissa Young, assistant to Administrative Law Judge P. Michael Ruff, and to Claudia Lladó, assistant to the undersigned, to inform them that she had no legal counsel and was therefore not going to appear at the February 17, 2004, hearing. Both assistants informed the Petitioner that she should attend the hearing and inform the undersigned personally as to her intention of whether to proceed. The undersigned convened the hearing in Bunnell, Florida, on February 17, 2004. Counsel for the Respondent appeared at the hearing along with approximately five witnesses for the Respondent who intended to testify. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner appeared at the hearing or within 45 minutes of the time scheduled for the hearing, 10:00 a.m. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner submitted any evidence via deposition, sworn testimony or documentary evidence prior to, at the time of, or subsequent to the hearing on February 17, 2004. Other than the calls to the assistants to the judges, neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner has contacted the undersigned or his assistant subsequent to the hearing on February 17, 2004.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, arguments of the Respondent and the fact that the Petitioner voluntarily absented herself from the hearing, it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of February, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Anna L. Elam 23 Patric Drive Palm Coast, Florida 32164 Andrew B. Thomas, Esquire 1625 Lakeside Drive Deland, Florida 32720 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner Maia Fisher (Petitioner) on the basis of her gender and retaliated against Petitioner because of her pregnancy in violation of Hillsborough County Human Rights Ordinance 00-37.
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is a female and filed a complaint with the Board alleging that Respondent engaged in gender discrimination and retaliation after Petitioner disclosed her pregnancy. Respondent is an employer within the meaning of Section 16. Respondent operates a printing business. Respondent is a corporation wholly-owned by Mr. John Disbrow and Ms. Angela Disbrow. Mr. and Ms. Disbrow are the principal operators and decision-makers. Respondent was Petitioner's employer. Petitioner was an employee during the relevant period. Petitioner began her employment with Respondent sometime in March 2008. Respondent terminated Petitioner’s employment on July 28, 2008. Petitioner discovered in June 2008 that she was pregnant. Petitioner informed Mr. and Ms. Disbrow. Mr. Disbrow instructed Mr. Alfred Buranda to terminate Petitioner’s employment sometime in July 2008. Mr. Buranda was the head of human resources for Respondent at that time, but has since moved on to other employment. Mr. Buranda refused to terminate Petitioner’s employment. Mr. Buranda conducted a teleconference with Petitioner in his office on July 28, 2009. Mr. Buranda telephoned Mr. and Ms. Disbrow on his office speaker phone with Petitioner present in his office. Mr. and Ms. Disbrow explained to Petitioner by speaker phone that the pregnancy was the reason for the termination of employment. Respondent owes Petitioner unpaid compensation in the total amount of $2,820.00. Respondent owes Petitioner back wages for unpaid overtime equal to $720.00. Respondent owes Petitioner unpaid commissions equal to $2,100.00. Back wages in the amount of $720.00 is the product of multiplying an hourly overtime rate of $12.00 by the total of uncompensated overtime equal to 60 hours. Unpaid commissions of $2,100.00 are composed of two parts. Petitioner made five sales under $500.00 for which Respondent owes a commission of $100.00 for each sale and a total of $500.00 for all five sales. Petitioner made eight sales over $500.00 for which Respondent owes a commission of $200.00 for each sale and a total of $1,600.00 for all eight sales. Petitioner has been living in a shelter for battered women. Contact and service on Petitioner has been problematic. The Board may require an investigator or other means to provide Petitioner with actual notice of the final order in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is guilty of discrimination and retaliation on the basis of gender in violation of Hillsborough County Human Rights Ordinance 00-37 and require Respondent and its principals to pay Petitioner $2,820.00 in unpaid compensation. DONE AND ENTERED this 8th day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2009. COPIES FURNISHED: Maia Fischer 2302 48th Avenue West Bradenton, Florida 34207 Camille Blake, EEO Manager Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1101 John Disbrow ADCO Printing 8412 Sabal Industrial Boulevard Tampa, Florida 33619
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on March 27, 2018.
Findings Of Fact On March 27, 2018, Petitioner filed a Charge of Discrimination with FCHR and alleged therein that Respondent committed an unlawful employment practice by discriminating against him on the basis of race, national origin, and age. Petitioner’s Charge of Discrimination states, in part, the following: During my time with LYNX, I satisfactorily performed the essential job duties of my position. Notwithstanding my performance, I was fired with only two weeks left on my training. I was subjected to discrimination based on my age, race and nationality as further described below. I believe I was fired because LYNX treated [me] disparately due to my Jamaican nationality and my age of 68 years. They manufactured classes of improper driving which could be disputed by all of the cameras that are on the training buses. They gave me only one week to improve my driving. Petitioner was born in 1949 and was 68 years old when he commenced his employment with Respondent. Petitioner was born and educated in Jamaica and lived in the country for a significant portion of his adult life. Respondent speaks with an unmistakable Caribbean accent. Petitioner’s ethnicity and race derive from the African diaspora, and for purposes of the instant proceeding his race is that of a Black person. On or about June 14, 2017, Respondent extended to Petitioner a conditional offer of employment to work as a full- time bus operator. The terms of Respondent’s conditional offer of employment to Petitioner provide, in part, as follows: All offers of employment are contingent upon the satisfactory completion of the following: acceptable criminal history background check and motor vehicle record, employment verification and Department of Transportation (DOT) physical examination (that is good for a minimum of one year) including a negative drug screen. All employees must complete a 120-day introductory period. Should the results be unsatisfactory, according to LYNX’ standards, your offer of conditional employment with LYNX will be reviewed and may be revoked. The job description for Petitioner’s position as a bus operator provides as follows: JOB SUMMARY: Bus Operators transport passengers by operating any type of motor coach on regularly scheduled links and chartered service, observing all state and municipal traffic laws, observing all safety rules and strictly adhering to time schedules. DUTIES: Performs DOT pre-trip inspections. Answers passenger questions courteously. Calls out stops. Issues slips for fare refunds. Issues and collects transfers. Observes all state and municipal traffic laws. Observes all safety rules. Strictly adheres to time schedules. Monitors fare and ticket collection. Verifies that appropriate passes are being used. Writes daily reports such as transfers collected, coach mileage, special fares and tickets collected, time cards for hours worked and completes memorandum cards. Completes trouble card for mechanical difficulties of bus assigned. Performs other duties of similar nature as may be required. Completes Bus Condition Reports. REQUIRED KNOWLEDGE, SKILLS AND ABILITIES: Skills in customer service. Ability to effectively communicate in English, both verbally and in writing. Ability to physically sit for extended periods of time. Ability to pass a drug screen. Must possess a valid Florida Commercial Driver License (CDL), Class A or B with a Passenger endorsement and airbrakes. Ability to communicate in English on the work site. Ability to maintain DOT physical for one year. MINIMUM EDUCATION AND EXPERIENCE: Must be at least 21 years of age. High School diploma or GED required. Clean driving record. Full-time: Ability to work days, nights, weekends, holidays, split shifts, split days off and any hours assigned. Part-time: Ability to work mornings, afternoons and/or weekends. Not allowed to work over 30 hours per week. This description in no way states or implies that these are the only duties to be performed by the employee occupying this position. Employees will be required to follow any other job-related instructions and to perform any other job-related duties requested by their supervisor. Petitioner, as a condition of employment, was required by Respondent to complete an employment application. Petitioner noted on his employment application that he worked as a “Driver Guide” for Holland Alaska Princess for the period March 17, 2016, through May 24, 2016. According to Petitioner, his primary duties with Holland Alaska Princess were driving “tourists to scenic and historical locations in Alaska, USA, Yukon and British Columbia in Canada and informing guests on the highlights and history of each location toured.” Other than his employment at Holland Alaska Princess, Petitioner did not list on his LYNX employment application other jobs or experiences which required that he possess a CDL, Class A or B, with a passenger and airbrakes endorsement. According to the “experience questionnaire” completed by Petitioner during his LYNX new employee orientation, Petitioner noted that he had possessed his “CDL with passenger endorsement” for 16 months, and over the “course of [his] CDL career” had only driven an “MCI coach bus” for three months. Although Petitioner met the minimum qualification of possessing a valid CDL with appropriate endorsements, he, nevertheless, had limited practical experience in the operation of buses such as those operated by Respondent. On or about August 23, 2017, Petitioner, after completing the employment related background check and related matters, was hired by Respondent as a full-time bus operator. As a condition of employment, Respondent required Petitioner to attend “LYNX Training University (LTU).” Wilfredo Acosta, for more than seven years, has worked as a training instructor at LTU where he conducts “new operator” training sessions. According to Mr. Acosta, LTU is not a driving school where employees are taught how to drive a bus, but is, instead, an assessment opportunity where LYNX evaluates its new employees to ensure that they have “basic knowledge” regarding the proper way to operate buses utilized by the company. On September 15, 2017, less than a month after being hired, Respondent terminated Petitioner’s employment with the company due to “unsatisfactory job performance.” Maria Colon, who works as Respondent’s manager of organizational development and training, outlined in a memorandum to Petitioner the company’s reasons for the employment decision. The memorandum provides as follows: On September 8, 2017, you met with the manager and trainer concerning your unsafe driving practices. Your daily student operator evaluation forms were reviewed with you and the following dates were discussed: 8/28 Right turns too short, jumped a curb and drifted to the right side not maintaining the bus centered. 8/29 Right turns too short, jumped a curb and drifted to the right. 8/31 Right turns too short and jumped curb. 9/7 Right turns too short not using pivot point. 9/8 Unsatisfactory report was given for not slowing down for school zone when yellow light was flashing. Continued to make right turns too short with contact to the curb. Continued to drift to the right and did not maintain proper hand position on steering wheel or use of mirrors. At that time you stated that you were a driver for a long time and you knew how to drive. I informed you that LYNX’ priority is safety and my job was to ensure only those students that demonstrate consistent, safe driving practices would graduate from the LYNX Bus Operator Training Program. You felt the trainers were targeting you and [you believed that] with time you can improve. We agreed to give you until Friday, September 15th to improve your driving. If no improvement was noticed you would be terminated from the program. On September 15, 2017, you once again met with the manager and trainer to review your progress: 9/13 Unsatisfactory report for improper securing of the bus. Unsatisfactory report for obstructing traffic at an intersection. Continued to make right turns too short and jumped the curb. 9/15 Continued to drift to the right side not maintaining the bus centered. Failed to properly signal when approaching railroad crossing. Since you have continued to have unsafe driving practices with no signs of improvement, I have decided to terminate you from the LYNX Bus Operator Training Program. During the evaluation period referenced above, Petitioner’s driving deficiencies were personally observed by LYNX employees Karamchand Lowhar, Charles Rapier, Wilfredo Acosta, and Margaret McCoy. Each employee credibly testified during the final hearing regarding Petitioner’s driving deficiencies, and their testimony is credited. Petitioner contends that he is a bus driver of considerable experience, and the driving deficiencies cited by LYNX employees are exaggerated, fabricated, or both. Petitioner asserts that each of his bus training sessions was video- recorded, and that the most credible evidence of his driving performance lies therein. There is no indication that when Petitioner met to discuss his driving deficiencies with Respondent on or about September 8, 2017, he specifically requested either then, or thereafter, that the video recordings of his driving performance be evaluated and preserved. The evidence establishes Respondent’s vehicle video recording system preserves video for 30 days, and after such period, the video recordings are overwritten with new footage. Petitioner’s testimony that he has extensive commercial driving experience is undercut by the employment application and experience questionnaire that he completed as part of the pre- employment process. Petitioner admits in both documents that he has very limited experience with operating a bus. Petitioner, however, in prosecuting the instant action, and in his pre- termination meeting with Ms. Colon on September 15, 2017, represented that he is a bus driver of considerable experience. These inconsistencies are damaging to Petitioner’s credibility. Petitioner’s credibility also suffers from his factually inaccurate statement regarding when his employment was terminated in relation to the end-point of his 120-day probationary period. Petitioner’s Charge of Discrimination states that he “was fired with only two weeks left on [his] training.” Petitioner attempts to bolster his claim of discrimination by inferring that for more than three months, he met, or even exceeded, Respondent’s performance expectations, and that Respondent’s discriminatory animus was only revealed when Respondent, without sufficient justification, terminated his employment as a bus operator. The evidence establishes, however, that Petitioner was hired on or about August 23, 2017, and his employment with LYNX ended approximately three weeks later because of his poor performance during bus operation training sessions. Petitioner’s suggestion that he was meeting, or even exceeding, Respondent’s performance expectations during his probationary period is not supported by the evidence. Other than Petitioner’s testimony, which is not credible, there is no proof, either circumstantial or direct, that Respondent’s asserted grounds for terminating Petitioner’s employment are merely a pretext for unlawful discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, LYNX Transportation, did not commit an unlawful employment practice as alleged by Petitioner, Leebert Lawrence, and denying Petitioner’s Charge of Discrimination. DONE AND ENTERED this 4th day of October, 2019, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Leebert Lawrence Apartment 211 7511 Solstice Circle Orlando, Florida 32821 (eServed) Cindy Ann Townsend, Esquire Bell & Roper, P.A. 2707 East Jefferson Street Orlando, Florida 32803 (eServed) Michael John Roper, Esquire Bell & Roper, P.A. 2707 East Jefferson Street Orlando, Florida 32803 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue in this case is whether there is just cause to terminate Respondent from his employment as a bus driver.
Findings Of Fact Respondent has been employed by Petitioner as a bus driver for approximately six years. The terms and conditions of Respondent's employment are controlled by the Official Agreement Between The Seminole County School Bus Drivers' Association, Inc., and The School Board Of Seminole County Sanford, Florida (the "collective bargaining agreement" or "CBA"). Under the collective bargaining agreement, Respondent can not be disciplined, including reprimand, suspension, or termination, except for just cause. Mr. Ricky Dale Saunders is one of several area managers employed by Petitioner. In 1995, Mr. Saunders was Respondent's immediate supervisor. Mr. Saunders scheduled a meeting with Respondent for February 1, 1995. The purpose of the meeting was to discuss complaints by parents concerning Respondent's treatment of students on his school bus. Respondent attended the meeting with two union representatives. All of those in attendance were seated around a conference table. Before Mr. Saunders could discuss the parental complaints, Respondent complained that Mr. John Nault, another bus driver, had moved Respondent's bus in the school compound the day before. Mr. Saunders stated that he had authorized Mr. Nault to move Respondent's bus. Respondent accused Mr. Saunders of lying and became angry. Respondent stood up, leaned forward, and told Mr. Saunders that he would ". . . kick his mother-fucking ass." In March 1995, Petitioner suspended Respondent for 5-days without pay. Petitioner initially proposed a 10-day suspension, but agreed to a 5-day suspension after Respondent's union representatives protested that Respondent had no prior discipline that warranted a 10-day suspension. Petitioner reassigned Respondent to Lake Brantley High School and issued a directive to Respondent. The directive stated that Respondent's conduct on February 1, 1995, was unacceptable and that Petitioner would seek to terminate Respondent if Respondent ever engaged in such conduct again. In the 18 months between March 1995, and September 1996, Respondent had satisfactory evaluations. He encountered no problems on the job. Respondent had a number of problems with students on his bus during the 1996-1997 school year. During the first two weeks of school, Respondent met with Mr. Thomas Murphy, Assistant Principal of Lake Brantley High School, to request assistance in resolving the discipline problems on Respondent's bus. Mr. Murphy assigned Mr. Randolph Harvey, the school security officer, to assist Respondent in preparing a seating chart for Respondent's bus. Mr. Harvey and Respondent went to the bus and began the seating chart. Mr. Harvey and Respondent obtained the names of approximately 10 students. The names of the remaining students were not obtained because the students had to go to class. Mr. Harvey stated that he would continue to assist Respondent each day until the seating chart was complete. However, Mr. Harvey never returned to complete the seating chart. Respondent continued to encounter problems on his bus and continued to seek the assistance of Mr. Harvey. Mr. Harvey did not assist Respondent in completing the seating chart. Mr. Harvey periodically took disruptive students off the bus and spoke to them about their behavior. He then released them to go to class. Mr. Harvey never provided Respondent with the names of the disruptive students or assisted Respondent in obtaining their names. On September 17, 1996, during the ordinary course of his job duties, Respondent transported students in his school bus to Lake Brantley High School. At about 7:00 a.m., a disturbance occurred among three students. Respondent drove the bus a short distance to a place where he could stop the bus safely. Respondent stopped the disturbance and, by radio, asked for assistance. The dispatcher told Respondent that someone would meet Respondent at the bus ramp. When Respondent arrived in his bus at the bus ramp, Mr. Harvey met Respondent at the ramp. Mr. Harvey talked with the disruptive students and ushered them off the bus but did not provide any of their names to Respondent. The disruptive students were taken to Mr. Murphy's office. Mr. Murphy discussed the incident with the students out of the presence of Respondent. Mr. Murphy determined that no fight occurred on the bus and sent the students to class. On the afternoon of September 17, several students on Respondent's bus became unruly. They were upset that some students were taken to Mr. Murphy's office. They used inappropriate language and made inappropriate statements. On the morning of September 18, 1996, a disturbance occurred on Respondent's bus for the third time in 72 hours. Respondent, by radio, requested assistance from Ms. Josephine DeLude, an area manager for Petitioner and Respondent's supervisor. Respondent reported that three students were rude, called him the "F" word, and were out of their seats and screaming. He asked Ms. DeLude for assistance in getting the names of the disruptive students. Ms. DeLude met Respondent as he drove his bus into the bus ramp area. At the direction of Ms. DeLude, Respondent drove the bus to the front of the school. Respondent got out of his bus and waited at the front of the school while Ms. DeLude went to find someone to assist Respondent in getting the names of the disruptive students. On her way, Ms. DeLude met Mr. Harvey coming out of the school. Ms. DeLude asked Mr. Harvey for his help in obtaining the names of the students. Mr. Harvey said, "Oh no, not him again. I've been on that bus every day since school started. He doesn't know how to handle those students." 1/ Mr. Harvey then turned back into the school for the assistance of Mr. Murphy. Ms. DeLude instructed Respondent to release all of the students from the bus except the three disruptive students. By the time the other students were off the bus, Mr. Harvey returned with Mr. Murphy. Mr. Harvey said to Mr. Murphy, "He's always having problems, he does . . . he has an attitude." Ms. DeLude turned to Mr. Harvey and asked, "If he's always having problems, why hasn't one student been removed off the bus?" Ms. DeLude was standing between Respondent and Mr. Murphy. Mr. Murphy said, "We've had problems with him, the kids complain, he has an attitude, he has an attitude towards the kids. . . . We have had trouble since day one with this bus. The driver has an attitude towards the kids." Mr. Murphy then requested Respondent to provide the names of the disruptive students. Respondent became angry. He yelled at Mr. Murphy, calling him an "idiot", "stupid", and an "asshole." Mr. Murphy said, "See, this is the attitude I'm talking about." Respondent became out of control. He stepped around Ms. DeLude and stood within a few inches of Mr. Murphy's face. Respondent became very red in the face. He pointed his finger in Mr. Murphy's face, and repeatedly yelled that Mr. Murphy was an "idiot" and "stupid." Mr. Murphy told Respondent to get his finger out of his face, and Respondent ". . . stood back a ways." Ms. DeLude stepped between Respondent and Mr. Murphy to separate the two. Respondent yelled that he was going to "kick" Mr. Murphy's "ass." Mr. Murphy said, "I'll be happy to meet with you somewhere to see who can kick whose ass." Mr. Murphy spoke to Respondent in a normal conversational tone and did not yell at Respondent. Mr. Murphy did not provoke Respondent prior to his quoted statement in the preceding paragraph. Ms. DeLude pushed Respondent toward his school bus. Respondent continued to scream over Ms. DeLude's shoulder that Mr. Murphy was an "idiot." Mr. Murphy directed Respondent not to return to Lake Brantley High School. Mr. Murphy went inside the school. By letter dated September 23, 1996, Petitioner notified Respondent of its intent to terminate his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from his employment as a bus driver. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.
The Issue The issue in the case is whether there is just cause to terminate the employment of the Respondent, a school bus operator.
Findings Of Fact Luis R. Rosario (Respondent) is a school bus operator employed by the Lee County School District (District). The Respondent has been employed as a bus operator since August 1994. The Respondent's performance evaluations have been acceptable. The sole exception was noted in his 1996-1997 evaluation, which found that he needed to improve in the category identified as "uses appropriate techniques in maintaining order among students on the bus." The subsequent evaluations do not indicate that the issue continued to be a concern after the 1996-1997 evaluation period. On February 28, 2000, the Respondent was transporting students to and from Trafalgar Middle School. In the afternoon of February 28, a student identified for purposes of this order as D.M. attempted to board the bus in the afternoon. D.M. was not a regular passenger on the Respondent's bus. According to District policy, in order for a student to ride a bus other than his or her assigned bus, a student must have a note signed by a parent and approved by an authorized school administrator. Some schools, including Trafalgar Middle School, use a system of bus passes to control bus ridership. When D.M. boarded the Respondent's bus on the afternoon of February 28, 2000, he did not have a bus pass or a note from a parent. According to the Respondent, D.M. has friends on his bus and has made prior attempts to board the bus without a pass or a note. D.M. supposedly told the Respondent that he had given him the note and had ridden the bus to Trafalgar Middle School on the morning of February 28. The Respondent did not recall having D.M. on the bus that morning and did not recall receiving any note from him. The Respondent refused to permit D.M. to board the bus. There is no evidence that D.M. provided a note or a bus pass to the Respondent on February 28. When the Respondent refused to permit D.M. to board the bus, D.M. became argumentative and hostile towards the Respondent. The Respondent argued with D.M. D.M. left the bus, spoke to a school resource officer, and then returned to the bus with the school principal, Joseph Vetter. Mr. Vetter and the Respondent became involved in a discussion regarding whether D.M. should be permitted to ride the bus. Mr. Vetter was unhappy with the Respondent's behavior towards D.M. and towards himself. Mr. Vetter testified that the Respondent was "yelling" at D.M. and at the principal, and was "rude" and "disrespectful." During the interaction between the principal and the Respondent, D.M. continued to act in a disruptive manner. The evidence fails to establish that the Respondent's behavior towards D.M. was inappropriate. The principal testified that the Respondent's rudeness and abusiveness reached a level that the principal had never previously experienced during his lifetime, yet the principal was specifically able only to recall that the Respondent repeatedly stated that D.M. did not belong on his bus. There is no evidence that the Respondent cursed in the presence of the principal or D.M. Although the Respondent may have raised his voice towards D.M. and the principal, the evidence fails to establish that the Respondent's behavior towards D.M. was so inappropriate as to warrant a verbal reprimand by the principal in front of the Respondent's passengers. Mr. Vetter left the bus and told the Respondent that he would be contacting the Respondent's supervisor. The Respondent, apparently dissatisfied with the result of the interaction, followed the principal off the bus and briefly continued to argue before returning to the bus and leaving the campus. The District asserts that, as the bus left the school's bus boarding area, the Respondent cursed at the principal. The evidence fails to support the assertion. The District presented the testimony of several students in support of the assertion. The testimony of the students lacks sufficient precision to establish that the Respondent cursed at the principal. The students offered contradictory testimony about where they were seated on the bus and what words they actually heard the Respondent speak. Further, an investigator for the District interviewed several students after the incident occurred. The investigator prepared typewritten statements, allegedly based on what the students told him, and provided them to Trafalgar Middle School officials. The Trafalgar Middle School officials presented the statements to the students and told them to sign the statements. The students did not read the statements before they signed them. The written statements prepared by the District's investigator contain substantial derogatory information about the Respondent. According to the students who signed the statements, much of the information contained therein is false. At the hearing, the students who signed the prepared statements denied providing the false information to the investigator. The Petition for Suspension in this case alleges that the Principal of Trafalgar Middle School intervened in an altercation between D.M. and the Respondent after viewing the Respondent screaming at D.M. The evidence establishes that the principal became involved after D.M., failing to gain entry onto the Respondent's bus, found the principal and brought him to the bus. The Petition alleges that the Respondent yelled profanity directed towards the principal as he drove away in the bus and that the profanity continued during the bus ride. There is no credible evidence that the Respondent yelled any profanity at all. Other than as set forth herein, there is no credible evidence that any use of profanity continued throughout the bus ride. The Petition alleges that some students in the bus were fearful of the Respondent's behavior and his use of profanity. There is no evidence that on February 28, 2000, the students feared the Respondent in any manner. The Petition alleges that the Respondent made threatening statements suggesting bodily harm to some students and to the principal. There is no evidence that the Respondent threatened bodily harm towards any person whatsoever. The greater weight of the evidence establishes that, following the argument with the principal, and the principal's threat to call the driver's supervisor, the Respondent mumbled to himself that he did not need "this damn job" as he pulled his bus away from the Trafalgar Middle School boarding area. There was testimony from some students that they had heard the Respondent say "hell" or "damn" previously, but the testimony was insufficient to establish with specificity the circumstances of the reported events. The Respondent has been disciplined previously for accusations similar to those involved in the instant case. In May 1999, the Respondent received a written warning regarding use of profanity and improper behavior towards a student at Gulf Middle School. The evidence establishes that the Respondent reacted inappropriately when confronted with the alleged May 1999 allegations. When District officials attempted to address the situation, the Respondent became agitated and aggressive towards the people in the room. The written warning was issued to address the matter. There was no evidence presented in the instant case to establish the alleged use of profanity in May 1999. The District offered testimony related to an incident in January 1999, at Diplomat Middle School where the Respondent was accused of yelling at the school's assistant principal as the bus drove away. The evidence fails to establish specifically what the Respondent was yelling at the time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Lee County enter a final order dismissing the Petition for Suspension Without Pay and Benefits Pending Termination of Employment dated April 14, 2000, and providing an award of back pay and benefits to the Respondent retroactive to the date of his suspension. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 October, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916
The Issue Whether Petitioner was terminated from her position with Respondent as a picker/stock keeper on or about September 26, 2001, on the basis of her race (African-American) and/or gender (female), in violation of Section 760.10(1)(a), Florida Statutes (2001).
Findings Of Fact Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a temporary employee to perform the job of picker/stock keeper at its Parts Distribution Center in Orlando, Florida, during the time period from September 12, 2001, to September 26, 2001, the date she was terminated. Petitioner worked a total of 14 days for Respondent. Petitioner is an African-American female, a member of a protected class. The Parts Distribution Center for Respondent in Orlando, Florida, is a facility that holds automotive parts that are then shipped to dealerships. All temporary employees at Respondent are at-will employees. Temporary employees are told during their orientation that they are at-will employees who can be terminated at any time, for any reason. Temporary employees at Respondent are only eligible to work 119 days. Most temporary employees are not offered full time permanent employment. There is no guarantee that a temporary employee will receive an offer to work as a permanent employee. Petitioner was hired to perform the job of picker/stock keeper. A picker/stock keeper takes parts off of shelves to be shipped to dealerships. Petitioner participated in an orientation, and Petitioner received the same training as every other temporary employee. Petitioner worked the night shift. Respondent maintains written Standards of Conduct to which all employees must adhere. The Standards of Conduct apply to both temporary and permanent employees. The Standards of Conduct were in effect in September 2001, when Petitioner worked as a temporary employee. All employees are given a copy of the Standards of Conduct when they are hired. Petitioner received a copy of the Standards of Conduct when she was hired, and the Standards of Conduct are posted throughout the plant. The Standards of Conduct provide that an employee's "[f]ailure or refusal to follow the instructions of supervision" is grounds for "disciplinary action up to and including discharge." The supervisors who worked at Respondent's Distribution Center during Petitioner's employment were Richard Alvarez ("Alvarez") (Hispanic male), Lenier Sweeting ("Sweeting") (Black male), and Joe Bromley (White male). Alvarez was temporary supervisor for the night shift from June 2001 until December 2001. Alvarez was Petitioner's direct supervisor. Sweeting was a supervisor in September 2001. Sweeting was chosen to become a supervisor by Hal McDougle, a Black male. Sweeting was the supervisor on the day shift when Petitioner worked at the Distribution Center. His shift ended at 3:30 p.m. but he stayed in the building to help with the transition to the night shift. Alvarez would normally walk Sweeting to the front door to discuss what had occurred during the day shift. On September 25, 2001, Sweeting was walking past the bathroom with Alvarez and heard two women talking and laughing in the bathroom. Alvarez recognized one of the voices to be that of Petitioner. Alvarez had heard rumors that Petitioner had been taking a lot of extended breaks and told Sweeting about the complaints he had been receiving. Alvarez received at least two complaints, and possibly four or five, from Petitioner's co- workers that she was taking extended breaks and not on the floor working. Alvarez wanted to wait and see how long Petitioner remained in the bathroom. Sweeting and Alvarez waited outside the bathroom until they saw Petitioner exit the bathroom with Maria Dejesus. Alvarez believes that he and Sweeting waited outside the bathroom for approximately ten to 15 minutes. Alvarez told Petitioner that she had been taking an extensive break and needed to go back to work. Sweeting witnessed Alvarez tell Petitioner to go back to work in a professional tone. Alvarez also told Petitioner that he had heard rumors that she was taking extended breaks. He told her that since he saw it first hand, he wanted to mention it to her and let her know it would not be tolerated. Petitioner asked Alvarez which bathroom she could use in a very sarcastic tone. Sweeting observed Petitioner ask this question. Alvarez told Petitioner that he did not care which bathroom she used, as long as she did not abuse the break period. Petitioner proceeded to ask Alvarez in a sarcastic tone which bathroom she could use several times throughout the night. Despite Petitioner's sarcastic tone, Alvarez answered her questions professionally. Alvarez never asked Petitioner how old she was, whether she was married or how many children she had. Sweeting asked Maria Dejesus to go back to work as well. Sweeting and Alvarez have told other employees to go back to work when they have observed employees taking extended breaks. They have spoken to employees of both genders and all racial groups. On September 26, 2001, Alvarez assigned Petitioner to the "fast rack" area. Petitioner had never previously worked in the fast rack area. Alvarez personally instructed Petitioner in how to perform the assignment. Alvarez told Petitioner to pick the parts and put them on a rack float. After Alvarez gave Petitioner her instructions, Petitioner began her assignment. Petitioner never asked Alvarez any questions about her assignment or expressed that she was having difficulty with the job. Wanda Carithers ("Carithers") saw Petitioner using the wrong equipment to complete her assignment. Petitioner was using a bin cart instead of a float to pick the items. Alvarez noticed that Petitioner's assignment was running late. Alvarez walked over to the fast rack area and asked Petitioner two questions. Alvarez asked Petitioner whether she was going to be able to pick the whole assignment using the bin cart that she was using. Petitioner did not respond to or acknowledge Alvarez. Alvarez then asked Petitioner if she was almost done with her assignment. Petitioner rolled her eyes and said, "Your first question, yes, second question, no." Alvarez was very uncomfortable with Petitioner's response and demeanor. Alvarez told Petitioner that perhaps they had gotten off on the wrong foot. Petitioner asked Alvarez something about her union rights. Alvarez saw Petitioner's co-worker, Carithers, who was a union representative, driving by. Alvarez asked Carithers to explain to Petitioner her union rights as a temporary employee. During this conversation, Alvarez tried repeatedly to talk to Petitioner and on each occasion, Petitioner cut Alvarez off and would not let him speak. When Alvarez realized that he was not making any progress with Petitioner, he asked her to go to the warehouse office so that they could talk to a senior supervisor, Al White ("White") (Black male). Alvarez hoped that they could work out their differences with White's help. Alvarez started to walk approximately ten steps. He turned back and realized that Petitioner was not moving towards the office. Alvarez walked back to Petitioner and asked her a second time to go to the office. Once again, Petitioner did not move. Alvarez told Petitioner, "This is your last chance; go to the warehouse office." Once again, Petitioner did not move. Alvarez, after asking Petitioner to go to the office three times with no response, told Petitioner that her services were no longer needed, that she should gather up her things, and that she was terminated. Alvarez terminated Petitioner for her failure to follow a direct order of her supervisor in violation of Respondent's Standards of Conduct No. 6. Petitioner refused to move even after she was terminated. Petitioner asked Alvarez to reconsider, and he said that he had made up his mind. Alvarez started to walk away. When he saw that Petitioner was still not moving, he told her that he could call law enforcement to escort Petitioner off the property. Alvarez, and ultimately Petitioner, walked to the office. White asked Petitioner if she knew why she was terminated. Petitioner never asked to have someone from the union with her in the office until after she was terminated. At that time, Alvarez and White complied with her request and paged Rodney Witt, a union official, to come to the office. Carithers observed Petitioner fail to follow Alvarez's instruction to go to the office. Carithers recalls that Petitioner told Alvarez that Petitioner did not have to listen to Alvarez. Amber McPherson heard Alvarez call Petitioner to the office several times. Petitioner did not respond to Alvarez's requests. Sweeting has never experienced discrimination from management while working for Respondent for over seven years. Sweeting has never heard Alvarez make any gender or race-related comments or slurs. Sweeting has never heard any management employee at Respondent make a gender or race related comment or slur. Alvarez did not consider Petitioner's gender or race when he made the decision to terminate Petitioner. In addition, Petitioner lied on her application to Respondent and failed to indicate that she had been terminated from a prior employment. Petitioner had been terminated from Walt Disney World Company for theft. If Respondent had known that Petitioner had lied on her application or had been terminated for theft from a prior employer, it would not have hired her. Had Respondent learned that she had lied on her application after she was hired, she would have been terminated. Petitioner had no idea why she thinks she was treated differently based upon her gender or race. She just had a "feeling" or a "hunch." Petitioner had no evidence or information that her termination was based on her gender or race. Petitioner had no idea why she was terminated. She did not believe that it was because she failed to follow a command. Petitioner had no idea whether her supervisor, Alvarez, considered her gender or race when he terminated her employment with Respondent. Petitioner bases her claims that Respondent discriminated against her on the fact that there is general racism and sexism in society. Petitioner checked the "sex" and "race" box on her FCHR Charge of Discrimination simply because she is female and African-American. Petitioner felt as though she was harassed but cannot articulate a reason for it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief. DONE AND ENTERED this 8th day of April, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 8th day of April, 2003. COPIES FURNISHED: Stephanie L. Adler, Esquire Susan K. McKenna, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Dorothy J. McCrimmon 5361 Commander Drive Number 304 Orlando, Florida 32822 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner should terminate the Respondent's employment as a school bus driver for the reasons set forth in correspondence dated December 14, 2006.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At all times material to this proceeding, Ms. McGriff was employed as a school bus driver by the School Board. She was hired for this position in 2003, and is on a continuing contract. In the four years since she began working as a bus driver for the School Board she has had no disciplinary action taken against her. As a bus driver, Ms. McGriff is classified as an educational support employee of the School Board's Department of Transportation pursuant to Section 1012.40, Florida Statutes (2006).2 Ms. McGriff is a member of the Communication Workers of America for Professional Support Employees ("CWA"), and the School Board and the CWA have entered into a Collective Bargaining Agreement ("Bargaining Agreement") that is effective from July 1, 2005, through June 30, 2008. Article 13C.2. of the Bargaining Agreement provides in pertinent part: Discipline and Termination of Professional Support Staff on Annual or Continuous Employment Status Suspension and dismissal of professional support staff personnel shall be conducted in accordance with the procedures contained below except that the Superintendent may suspend members of the professional support staff in an emergency. With School Board approval, an employee may be suspended without pay, discharged and/or returned to annual status, for reasons including but not limited to the following: * * * 9. Endangering the health, safety or welfare of any student or employee of the District. At the times material to this proceeding, Ms. McGriff was assigned as the driver of school bus number 69, and she regularly drove students attending Vero Beach High School to and from school. Students C.C., P.K., and E. were among the students who regularly rode on Ms. McGriff's school bus. On October 27, 2006, Ms. McGriff prepared a bus referral to the assistant principal for student C.C., in which she stated that he had used inappropriate language while riding school bus number 69. Frank Harmer, one of the assistant principals in charge of discipline at Vero Beach High School, received the referral and met with student C.C. on October 31, 2006, to discuss his conduct on the school bus on October 27, 2006. Mr. Harmer told C.C. to stop using inappropriate language on the bus. During this conversation, C.C. told Mr. Harmer that he had been previously harassed by students on the bus. Mr. Harmer urged C.C. to report any future harassing behavior by students to the school bus driver. In preparing for the meeting with C.C., Mr. Harmer consulted the School Board's computer system and learned that C.C. is a child with an emotional handicap and that he receives exceptional student education services from the School Board. On October 31, 2006, after speaking with student C.C., Mr. Harmer spoke with Ms. McGriff about the October 27, 2006, referral and about his conversation with C.C. During this conversation, Mr. Harmer told Ms. McGriff that C.C. was a student with an emotional handicap and that she should ensure that the other students did not harass him in the future. Ms. McGriff indicated to Mr. Harmer that she would prevent any future harassment. On the afternoon of November 3, 2006, at approximately 1:30 p.m., Ms. McGriff was waiting on school bus number 69 for the end of classes and the arrival of the students who would ride the bus home that afternoon. The conversation and ensuing events that took place on school bus number 69 were recorded on a surveillance video that was installed in the bus in accordance with School Board policy to record the activities of the bus driver and students. Student P.K. came onto the school bus before any of the other students, and P.K. initiated a conversation with Ms. McGriff about student C.C. During this conversation, which took place at approximately 1:31 p.m., Ms. McGriff referred to C.C. as a "dumb ass," and she complained to P.K. that C.C. got away with "murder." Ms. McGriff also told P.K. that she did not believe that C.C. was emotionally handicapped and that she wanted him off of her bus. In this conversation, student P.K. told Ms. McGriff that student C.C. had written P.K. a note telling P.K. that he wanted to fight him. P.K. indicated that he might try to pick a fight with C.C. on the bus that day and told Ms. McGriff to hold a clipboard in front of the video camera so the fight couldn't be seen. Ms. McGriff told P.K. that she would hold a clipboard up and would just continue driving if P.K. and C.C. got into a fight. Student P.K. had with him a stack of signs containing derogatory statements about student C.C. that he had prepared and wanted to post on the bus. Ms. McGriff laughed and encouraged P.K. to hang the signs on the windows of the bus, which he did. When P.K. asked if Ms. McGriff had any tape, she told him that she did not but that she would give tape to him if she had any. Ms. McGriff also told P.K. that she would try to drive without laughing but that it would be difficult. At approximately 1:35 p.m., student E. came onto the bus with a sign she had prepared that contained a derogatory remark about student C.C. P.K. and E. finished hanging the signs, gave each other a "high five," and Ms. McGriff laughed. The other students began entering the school bus at approximately 1:38 p.m. When student C.C. boarded the bus, he saw the signs and tore down two of them. Student P.K. re-hung one sign and gave the other to C.C. C.C. sat in his seat with his head down. P.K. took pictures of C.C. with his camera phone, and Ms. McGriff chuckled. Ms. McGriff pulled the bus away from Vero Beach High School at approximately 1:43 p.m. and began dropping off students at their bus stops. When student C.C. rose to exit the bus at his stop, student P.K. called out to him, "Bye Charles." C.C. turned, walked back to P.K., and struck P.K. several times, very quickly. C.C. then quickly left the bus. Ms. McGriff called and reported the fight to her supervisor. She also thanked P.K. and told him: "I needed that." Both students C.C. and P.K. received punishment in the form of out-of-school suspensions as a result of the altercation on the bus. Ms. McGriff admitted to having said things she should not have said and to using poor judgment with regard to the November 3, 2006, incident. Ms. McGriff endangered the safety and welfare of student C.C. on November 3, 2006, by allowing student P.K. to harass and humiliate C.C. on school bus number 69; by encouraging P.K. to harass and humiliate C.C. by laughing at P.K.'s plans to hang derogatory signs and to start a fight with C.C.; by making derogatory remarks to P.K. about C.C. herself; and by appearing to approve of P.K.'s plan to start a fight with C.C. by promising to cover the video camera when the fight started.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a final order finding that Andrea McGriff endangered the safety and welfare of student C.C. and terminating her employment as a school bus driver. DONE AND ENTERED this 14th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 June, 2007.
The Issue Whether Petitioner's termination from employment by Respondent on June 15, 2005, was discriminatory in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2005), due to Petitioner's race (African American).
Findings Of Fact Petitioner, a Black female, was employed by Respondent from November 23, 1998, until her termination on June 14, 2005. Petitioner had performed her duties as a housekeeper adequately during her employment period and had no major disciplinary reports in her record. Her annual reviews indicate she was a fair employee. She had a history of tardiness, but seemed to be getting better in her last years of employment. Petitioner had received a verbal warning notice on March 8, 2005, relating to an altercation with another employee, Katrina Stevens. It appears Petitioner did not instigate the confrontation nor did she actively participate in the argument between Stevens and another employee. She simply happened to be standing nearby when it occurred. A verbal warning notice is preliminary to a reprimand. The other employee, Martine Lane, received a reprimand for the incident. On June 8, 2005, Petitioner received another verbal warning notice, this time for instigating negative remarks toward her supervisor. The gravamen of her complaint about the supervisor was that a certain co-worker had been named Employee of the Month instead of Petitioner. Petitioner became more defiant towards her supervisors and management toward the end of her employment. She would not help out other employees when asked, preferring to tend to her own work area, even when her work was completed. She also made derogatory comments to the co-worker who had won Employee of the Month. When Petitioner's behavior did not change, a decision was made to terminate her employment. It was a difficult decision because good housekeepers were hard to find and Petitioner's work product had always been acceptable. Petitioner had always been well-liked and respected by fellow employees. Both co-workers and management had encouraged Petitioner to apply for supervisory positions when they opened. Her supervisors indicated that, with some training, she could handle a supervisory position. The decision to terminate Petitioner from employment was made by the Executive Housekeeper, Steve Jensen. He relied upon input from other management. On June 18, 2005, Petitioner was stopped from clocking in when she came to work. She was told to report to Jensen's office, which she did. At that time Jensen asked her whether she was still happy with her job, then told her she was being terminated. The reasons given were that she was not supportive, not a team player, and had become more belligerent to management. No mention of race was made as a basis for her termination and none seems to have existed. Petitioner was advised she would be entitled to vacation pay, but it was later discovered she had already used up her available vacation time. Respondent subsequently called Petitioner to offer her a different job, but Petitioner had no interest in returning to work for the company. Respondent has anti-discrimination policies in place, is an equal opportunity employer, and employs minorities in supervisory positions. Interestingly, however, there were no other Black housekeepers employed while Petitioner was working. When a supervisory position opened, Respondent would attempt to fill the position from within its existing employee pool. Two such positions opened when Petitioner was employed. Seven then-current employees applied for those positions, including Petitioner. Of the seven, four had prior supervisory experience; Petitioner did not. Two of the applicants had been with the company longer than Petitioner. Five of the seven applicants had computer knowledge and skills; Petitioner did not. Petitioner is the only candidate who admitted a fear of heights, a minor consideration for the position. Petitioner is the only candidate who stated she could not work on weekends. Petitioner was clearly not the best applicant for the job based on comparison to other candidates. Petitioner did not provide any evidence that her race was a basis for her termination from employment. None of her witnesses provided credible statements concerning discrimination. In fact, her witnesses by and large did not see any discrimination by management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2007. COPIES FURNISHED: Diane Hawkins 1556 University Lane, Number 407 Cocoa, Florida 32922 Theodore L. Shinkle, Esquire GrayRobinson, P.A. 1800 West Hibiscus Boulevard, Suite 138 Melbourne, Florida 32901 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, School Board of Alachua County, Florida, discriminated against Linda Smith, Petitioner, on the basis of her race or gender, or retaliated against her for engaging in protected activities in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes (2019).1
Findings Of Fact Petitioner worked as a bus attendant for Respondent for several years. During the course of that employment, Petitioner has had a lengthy history of conflict with another black female bus driver, Cynthia Dunmore. The problems first began when the two worked on the same bus route together in 2009, and the animosity continued both at and away from work. While at work on June 20, 2018, Petitioner called the police to ask them to get Ms. Dunmore to leave her alone. Officer Owen Osborne arrived at the transportation facility and spoke with Petitioner and then to Ms. Dunmore. Officer Osborne instructed them both to stay away from each other. Not long after Officer Osborne left the transportation facility, Petitioner spoke with Arlene Ewell, the wife of a school board employee. Following this conversation, Ms. Ewell reported to Ms. Dunmore that Petitioner had just told her that she planned to get a gun and bring it to work after the police did nothing but talk to Ms. Dunmore. Ms. Dunmore then reported this information to David Deas, the operations manager of the transportation department. School Board Policy 4217 requires all staff members to report “knowledge of firearms, weapons and/or threats of violence” to the site administrator. Mr. Deas relayed the conversation he had had with Ms. Dunmore to the Assistant Superintendent, who in turn sent Bart Brooks, a human resources supervisor, and Casey Hamilton, the school district’s security chief, out to the transportation department to assess the situation. Mr. Brooks followed standard operating procedure and placed Petitioner on paid administrative leave so that Respondent could conduct an investigation into the allegation that Petitioner threatened to bring a gun to work to harm Ms. Dunmore. Mr. Brooks and Respondent’s new investigator, Alisha Williams, promptly began an investigation of the alleged threat. In the course of the investigation, they spoke with Petitioner, who denied making a threat to bring a gun or otherwise harm Ms. Dunmore. Consistent with Respondent’s standard investigation procedures, Petitioner remained on paid administrative leave during the pendency of the investigation. On July 31, 2018, before Mr. Brooks and Ms. Williams had completed their investigation, Petitioner elected to retire. As a result of Petitioner’s retirement, the District terminated its investigation of the alleged threat. Accordingly, the District did not make a determination as to whether Petitioner did or did not threaten to bring a gun to work to harm Ms. Dunmore. No one told Petitioner that she would be fired if she did not retire. According to Petitioner, “I resigned to keep from losing my pension. If my pension was not at stake I would have let them terminate me falsely.” Petitioner offered as a comparator Paul Phillips, a white male who was hired as a bus driver for Respondent on January 20, 2015. He was terminated from that position on January 2, 2017, for driver safety violations which would not allow him to drive a bus for three years from the date of termination. Mr. Phillips was rehired as a bus attendant on October 15, 2018, and resigned on February 7, 2019, for personal reasons. Mr. Phillip’s situation is not comparable to Petitioner’s situation. Petitioner was never terminated for safety violations, but rather voluntarily retired from service on July 31, 2018, and there was no disciplinary action taken against her. Petitioner failed to persuasively prove any incidents of race or gender discrimination, or of retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, School Board of Alachua County, Florida, did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 11th day of March, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 11th day of March, 2020. COPIES FURNISHED: Linda Denise Smith 1120 Northeast 24th Terrace Gainesville, Florida 32641 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Kevin Purvis, Assistant Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Brian T. Moore, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issues in this case are whether Respondent violated Pinellas County School Board Policy 4140A(21) and Section 2.02A of the Pinellas County Schools Transportation Department Bus Driver Handbook, and, if so, should Petitioner suspend Respondent for one day without pay.
Findings Of Fact Ms. Ford started her employment with the School Board as a teacher's assistant in January 1999 and became a full-time bus driver in August 1999. During the 2009-2010 school year, Ms. Ford drove Route 875, on which students are transported in the afternoons from Dixie Hollis to their destinations in St. Petersburg. The bus which Ms. Ford drives on Route 875 is equipped with a video camera which records the activities on the bus during the route. A portion of the activities outside the bus are recorded by the video camera. On January 26, 2010, Ms. Ford was proceeding south on Third Street while on Route 875. At approximately 2:50 p.m., Ms. Ford stopped at the intersection of Third Street and Twenty- second Avenue, South, and turned right. Third Street is a two- lane street located in a residential area, with signs designating bike paths throughout the area. The next intersection on Twenty-second Avenue, South, after Third Street is Fourth Street. Twenty-second Avenue, South, is a two-lane road, except at the Fourth Street intersection where there is a left-turn lane, a center lane with an arrow pointing straight, and a right-turn-only lane. There is a flat median on Twenty-second Avenue, South, which begins a few feet southward of Third Street. The median is delineated by double yellow lines on each side. The median ends at the beginning of the left-turn lane on Twenty-second Avenue, South, at the intersection of Twenty-second Avenue, South, and Fourth Street. Once on Twenty-second Avenue, South, Ms. Ford moved into the left-turn lane and stopped to make a left turn onto Fourth Street. The video recording shows that, as Ms. Ford was traveling in the left-turn lane, there was a bicyclist on the left side of the bus either in the median or very near the yellow center-lines of the road. The bus passed the bicyclist and proceeded to stop in the left-turn lane. While Ms. Ford was stopped in the left-turn lane, the bicyclist rode her bike past the left side of the bus on or over the yellow line. As the bicyclist came along side the bus, she made a gesture with her middle finger and shouted at Ms. Ford. After the bicyclist gestured and made comments to Ms. Ford, Ms. Ford shouted at the bicyclist and said: "What you mean. No, you ain't even in the road. I bet you won't look back. Look back. No, you better get out of the road." Ms. Ford also blew her horn at the bicyclist several times. The bicyclist stopped a few inches in front of the bus in the turn lane. Ms. Ford turned onto Fourth Street, closely following the bicyclist. The bus was so close to the bicycle that one of the students in the bus said: "Don't hit her [the bicyclist], miss." Ms. Ford replied: "I might. She done made me mad." As the bus was traveling on Fourth Street, a student said: "Slow down, miss. Please slow down." The bicyclist felt that the bus was traveling so closely to her as they were making the turn from Twenty-second Avenue, South, to Fourth Street that she feared for her life. Ms. Ford claims that the bicyclist had not been in front of the bus on Third Street; that the bicyclist had been going south on Twenty-second Avenue, South, and was traveling in the median; and that she thought that the bicyclist had turned left onto Florida Avenue. The bicyclist claims that she had been riding south on Third Street and that no bus was near her; that she turned left onto Twentieth Avenue, South; that she had intended to turn left onto Fourth Street; that, as she was getting into the turn lane, the bus came along her right side with no warning; and that she had to veer to the left into oncoming traffic to avoid being hit by the bus. She claims that she had not traveled in the median. Whether Ms. Ford's claims are correct or whether the bicyclist's claims are correct concerning whether the bicyclist was in the traveling lane of Twenty-second Avenue, South, is irrelevant based on the charging document. Additionally, the claims of Ms. Ford and the bicyclist are equally credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Ford violated School Board Policy 4140A(21) and Section 2.02A of the Handbook and suspending her without pay for one day. DONE AND ENTERED this 17th day of December, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2010.
