The Issue Whether just cause exists to terminate Respondent from his employment with the Pinellas County School Board.
Findings Of Fact On January 23, 2006, Respondent was hired by Petitioner to work as a school bus driver. The position of bus driver is covered by the 2008-2011 Collective Bargaining Agreement between The School Board of Pinellas County, Florida, and SEIU/Florida Public Services Union, CTW-CLC (Collective Bargaining Agreement). Respondent's employment disciplinary history with Petitioner is as follows: 12/07/06 Respondent received a "Conference Summary" for uncorrected job deficiencies and for making inappropriate remarks to students; 05/06/08 Respondent received a "Caution" for making inappropriate remarks to students; 05/22/08 Respondent received a "Reprimand" for failing to comply with board policy, State law, or the appropriate contractual agreement; 01/25/10 Respondent received a "Caution" for excessive absenteeism; 03/26/10 Respondent received a "Caution" associated with an accident/crash that he had while operating his assigned school bus; 10/04/10 Respondent received a "Conference Summary" for insubordination; 12/02/10 Respondent received a "Caution" for making inappropriate and disparaging remarks to a student; and 12/14/10 Respondent received a "Caution" associated with an accident/crash that he had while operating his assigned school bus. During Respondent's term of employment with Petitioner, his performance appraisals have been satisfactory with the exception that on January 20, 2009, Respondent was advised that he needed to improve his punctuality; and on January 25, 2010, he was told that his work attendance was unsatisfactory. The passenger compartment of the school bus operated by Respondent during all times relevant hereto is typical of most school buses. There are two columns of seats separated by an aisle for ingress and egress that runs the length of the bus. Each column of seats is composed of approximately nine bench seats. The bus operated by Respondent was equipped with an operable audio/video camera. The audio/video camera was mounted at the front of the bus' passenger compartment and was positioned such that it simultaneously recorded audio and images of the passengers and of Respondent while he operated the bus. The bus also has a mirror mounted forward of the driver and above his head. When viewed from the seat of the driver of the bus, the overhead mirror allows the driver to monitor some of the activities of the passengers. During all times relevant hereto, Respondent was operating his assigned bus on the roads of Pinellas County, Florida. On February 8, 2011, student A.D. was a passenger on the bus operated by Respondent. School had been released for the day, and Respondent was transporting the students to their appointed stops. A.D. was enrolled as a middle school student and the other 30 or so students that were on the bus on February 8 and 9, 2011, appear from the audio/video recording to be of an age similar to that of A.D. On February 8, 2011, A.D. was seated in the third row nearest Respondent and was, for the most part, positioned such that his upper torso was angled towards the rear of the bus. At approximately 4:22 p.m., A.D. is seen on the video making a throwing motion with his right arm. Within a second of A.D. completing the throwing motion, Respondent removed the sunglasses from his face and in an agitated voice said, "(student's name) what did I say?" Simultaneous to making the statement, Respondent also spread his arms as an added gesture of frustration. Respondent's facial expression further reflected his feelings of frustration and exasperation. Approximately 14 seconds after calling out to A.D., Respondent picked up the microphone to the bus' public address system and announced the following: Respondent: Hey! (1 second pause) Respondent: If anybody sees (A.D.) throwing paper, you have my permission to knock him out! According to Mr. Thomas Hagewood, who works for Petitioner as manager of the transportation department, a student's assigned school determines appropriate disciplinary action when a student commits an infraction while riding on a bus operated by Petitioner. Employees, like Respondent, that are assigned to Petitioner's transportation department are not responsible for disciplining students. Respondent testified as follows regarding his rationale for authorizing the students on the bus to strike A.D.: Respondent: Well, I felt like I had to just bring A.D. down a peg because, like I said before, in the beginning of the year--this has been an ongoing problem. I've written him up, I've gone to the school, you know, I've gone to my FOS (Field Operations Supervisor) and I couldn't get anybody to help me get this child under control. It came to a point where we had a sixth grader bullying 50 kids on the bus by throwing pencils, crayons, paper, you name it, snot rags. It was just that particular day where even after I told him before the bus pulled out of the bus circle--I asked him not to throw anything, you know, and he did not listen to me. He got on the bus. He continued to throw stuff. I could hear the girls in the back asking A.D. to stop, you know. I just thought that if I embarrassed him a little bit that it would work, you know, that he would just stop for that moment, you know, just to leave everybody alone. Counsel: So you intended to embarrass him? Respondent: I intended to get his attention. Counsel: Okay. You just said "I thought if I embarrassed him." Respondent: Well, okay. Yeah. I just thought if I brought the attention on him that, you know, he would stop doing what he was doing. Although Respondent testified that he had previously "written A.D. up" for misconduct and complained repeatedly to school officials about A.D.'s behavior, Respondent did not produce any evidence to corroborate this testimony. Additionally, Petitioner reviewed its files and did not locate any documentation to substantiate Respondent's claim that he complained about A.D.'s behavior prior to February 8, 2011. Respondent's testimony regarding his complaints about A.D. is not credible. Immediately after Respondent finished announcing to the students that it was permissible to "knock out" A.D., several girls can be heard screaming in response to Respondent's statement, and a male student in a grey jacket is seen rising from his seat and moving towards A.D. in a provocative manner while stating something to A.D. that is inaudible. The student in the grey jacket returned to his seat without incident. A few moments later, a male student in a white hat, who was initially positioned a few seats behind A.D., is seen on the video making his way towards A.D. The student in the white hat eventually positions himself in the seat diagonal from A.D. At approximately 4:24 p.m., the student in the white hat is seen on the video standing over A.D. and throwing a punch at A.D. that appears not to have been intended to strike A.D. After throwing the counterfeit punch, the student in the white hat returned to his seat and pointed his right index finger at A.D. It is not decipherable from the audio what, if anything, the student in the white hat said to A.D. while gesturing with his finger. Over the next 30 seconds or so, the student in the white hat is seen on the video poking A.D. Both students are seated while this is occurring. At approximately 4:25 p.m., the student in the white hat rises from his seat, positions himself in a fighting stance while standing over A.D., and throws a right hand punch that strikes A.D.'s head. Immediately after being punched, A.D. sinks into his seat and disappears from the view of the camera. Approximately 15 seconds after A.D. was punched, a female student in a grey jacket makes her way from the back of the bus and leans over A.D. After leaning over A.D. for approximately three seconds, the female student walks back to her seat. It is not known what, if anything, the female student said to A.D. Approximately ten seconds later, a female student in a cream-colored jacket rises from her seat near the rear of the bus, walks down the aisle, and positions herself in the seat across from A.D. The student leans over A.D. and can be seen patting A.D. in such a way as to suggest that she was providing A.D. with comfort and support. After several seconds, the female student in the cream-colored jacket rises and returns to her seat at the back of the bus. Throughout the remaining portion of the video from February 8, 2011, A.D. remains crouched down in his seat and hidden from the video, except for a momentary instance when he rises from his seat and throws a punch at the student seated behind him. Respondent did not react to A.D. having thrown a punch at another student because Respondent, at the time the punch was thrown, was driving the bus while using his cell phone. Additionally, at other times on February 8, 2011, students on the bus were leaving their seats, walking up and down the aisle, and throwing objects about the bus. These activities went unnoticed by Respondent because he was distracted by talking on his cellular phone while operating the bus. The following morning, Respondent, while transporting the students to school, made the following announcement over the public announcement system: Respondent: Hey, real quick. Who would ya'll say the main person is that is always throwing stuff on this bus? Students: (Students yell out A.D.'s name) Respondent: Okay. They are probably going to question ya'll since he isn't on the bus. He probably told his parents about something trying to get me fired or something, you know whatever. Student: We got your back Mr. Thomas! Respondent: Alright. A.D. sustained physical injuries and sought medical treatment as a consequence of receiving the punch to his head. A.D. reported the incident to his mom who was extremely upset by the fact that Respondent, as a school board employee, would encourage students to engage in acts of violence. At 5:05 p.m., on February 8, 2011, A.D.'s mom called Respondent to report the incident. After the incident of February 8, 2011, A.D. was afraid to ride the bus operated by Respondent. A.D.'s mother moved her place of residency and transferred A.D. to another school because she wanted to "get away from that area" where she and A.D. lived at the time. The student that struck A.D. was arrested and charged with battery. The offending student successfully completed the juvenile diversion program. The mother of the student that struck A.D. was also outraged by Respondent's conduct of encouraging students on the bus to engage in acts of violence. Around February 8, 2011, Respondent was going through a stressful domestic situation related to him gaining custody of his son. As a consequence of his domestic instability, Respondent was experiencing a great deal of subjective emotional distress to the extent that he felt like a "bottle about to pop." As previously noted, Respondent, on December 2, 2010, was issued a letter of caution for using inappropriate language while on the bus with middle school students. As a part of the process for addressing the incident of December 2, 2010, Respondent agreed to voluntarily attend a student management class that is tailored towards bus drivers. A confluence of factors contributed to Respondent not taking the student management class. First, Respondent missed work for a period of time due to a workers' compensation injury. Second, the school district was closed several weeks for winter break. Third, due to a rotation of managerial personnel by Petitioner, the individuals that were aware of Respondent's request to take the student management class were given new assignments such that they no longer supervised Respondent. Finally, and most importantly, Respondent showed no initiative upon his return to work in taking the steps necessary to inform his new superiors about his desire to enroll in the student management training course.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Pinellas County School Board, dismiss the charge against Respondent, Eric F. Thomas, Jr., which alleges that Respondent violated Board Policy 4140 A.7. Petitioner terminate Respondent's employment as a school bus driver as a consequence of Respondent's violation of Board Policy 4140 A.9a., A.13., A.19., and A.24. The violation of any one of these subsections, standing alone, is sufficiently severe so as to warrant Respondent's termination from employment as a school bus driver. Petitioner dismiss the charge against Respondent which alleges that Respondent violated Board Policy 4140 A.21. (If Petitioner disagrees with the recommendation that Respondent should be terminated, then it is RECOMMENDED that Respondent, consistent with Petitioner's system of progressive discipline, be issued a letter of caution for operating his bus while using his cellular phone.) DONE AND ENTERED this 4th day of May, 2012, 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 May, 2012.
The Issue The issues are whether Respondent discriminated against Petitioner based on his race, and if so, what relief should be granted.
Findings Of Fact Respondent is a Florida corporation with its principal business location in Ormond Beach, Florida. Respondent operates a restaurant in Daytona Beach, Florida, known as IHOP 35. At all times material here, IHOP 35 had a racially-diverse workforce. Scott Studner is Respondent's President. Mr. Studner has direct supervisory authority over Respondent's management employees and ultimate supervisory authority over the non- management employees at IHOP 35. Mr. Studner is responsible for making all decisions relating to promotions and terminations of employees. Petitioner is a single African-American male with a minor son. Respondent hired him as a line cook in January 2007. At that time, Petitioner did not have any management experience. Petitioner worked as a cook on the day shift for approximately 15 months before Respondent terminated his employment. Petitioner began working 40-hour weeks for $9.00 per hour. He received at least five raises over a 12-month period, increasing his hourly wage to $10.00. Petitioner and all of the staff had to work some overtime during busy periods like "Race Week." Shortly after Petitioner began working, Mr. Studner asked Petitioner if he had any interest in a future management position. Mr. Studner routinely asks this question of all newly hired cooks. Mr. Studner told Petitioner about Chester Taylor, an African-American male, who began working for Mr. Studner as a dish washer and now owns and operates two IHOP restaurants of his own. Mr. Studner never made any representation or promise regarding Petitioner's potential advancement into a management position at IHOP 35. Shortly after he was hired, Petitioner began to demonstrate poor performance traits. He frequently arrived late to work. Occasionally Petitioner called to say that he could not work due to personal reasons. While working for Respondent, Petitioner reported several specific instances of racial hostility in the workplace to the general manager, Kathy, who tried to correct each problem as it arose. On one occasion, Petitioner discussed one incident with Mr. Studner, months after it occurred. In February 2007, Petitioner reported to Kathy that a white server named Sharon Blyler had made an inappropriate comment. Specifically, Petitioner accused Ms. Blyler of stating that she would get her orders out faster if she was black like a server named Angela. Kathy wrote Ms. Blyler up on a disciplinary form, advising her that comments about someone's race or color would not be tolerated. Mr. Studner was never informed about this incident. In April 2007, a white co-worker named Kevin called Petitioner a "monkey" several times. The name calling initially arose as a result of someone in the kitchen requesting a "monkey dish," which is a term commonly used in restaurants to describe a small round bowl for side items such as fruit. Petitioner reported Kevin's inappropriate comments to Kathy, who wrote Kevin up on a disciplinary form and suspended him for a week. Apparently, Kevin continued to work in one of Mr. Studner's restaurants but did not return to work at IHOP 35. Three or four months after Kevin was suspended, Mr. Studner asked Petitioner if Kevin could return to work at IHOP 35. When Petitioner objected, Mr. Studner said he would put Kevin on the night shift. During the conversation, Mr. Studner told Petitioner that he should have punched Kevin in the face for calling him a monkey. In the summer of 2007, there was an ordering mix-up involving a Caucasian server named Tiffany. When Tiffany became upset, Petitioner told her to calm down. Tiffany then called Petitioner a "fucking nigger." Kathy immediately had a talk with Tiffany, who then quit her job. Mr. Studner was never informed that Tiffany used a racial slur in reference to Petitioner. In August 2007, Petitioner received a formal verbal warning that was memorialized on a disciplinary form. The warning related to Petitioner's tardiness for work and for not maintaining his work area. When Kathy left her job as general manager of IHOP 35 in October 2007, there was no one person in charge of the kitchen. Petitioner and the other cooks continued to do their previously assigned jobs. On one occasion, Petitioner and another African- American male cook got into an argument. Someone at the restaurant called the police to intervene. Petitioner denies that he picked up a knife during the confrontation. At some point, Mr. Studner began working in the kitchen with Petitioner. Mr. Studner worked there for approximately five straight weeks. While Mr. Studner was working in the kitchen, he never saw any signs of racial hostility. However, Mr. Studner was aware that Petitioner could not get along with the rest of the staff. Mr. Studner realized that the staff resented Petitioner's habit of talking on his cell phone and leaving the line to take breaks during peak times. Respondent had an established and disseminated work policy that employees are not allowed to take or make cell phone or other telephone calls during work hours except in emergencies. Compliance with the policy is necessary because telephone calls to or from employees during paid working time disrupt the kitchen operation. Petitioner does not dispute that he made and received frequent calls on company time for personal reasons. Sometimes Mr. Studner would enter the restaurant and see Petitioner talking on the phone. Mr. Studner would reprimand Petitioner, reminding him that phone calls on company time were restricted to emergency calls only. Mr. Studner had video surveillance of the kitchen at IHOP 35 in his corporate office in Ormond Beach, Florida. Mr. Studner and his bookkeeper, Steven Skipper, observed Petitioner talking on his cell phone when Mr. Studner was not in the restaurant. Eventually, Mr. Studner decided to transfer Petitioner to another one of his restaurants to alleviate the tension caused by Petitioner at IHOP 35. After one day at the other restaurant, Mr. Studner reassigned Petitioner to IHOP 35 because he realized that Petitioner was unable to get along with the staff at the new location. Respondent never gave Petitioner any managerial responsibilities. Petitioner did not approach Mr. Studner or otherwise apply for the position of Kitchen Manager or any position other than cook. Respondent never denied Petitioner a promotion. In December or January 2007, Respondent hired Larry Delucia as the Kitchen Manger at IHOP 35. Mr. Delucia had not previously worked with Respondent, but he had extensive management experience at three different restaurants. When Mr. Delucia began working at IHOP 35, Petitioner and the other cooks were asked to help familiarize him with the menu and the set-up of the kitchen and coolers. They were not asked to train Mr. Delucia, whose job included scheduling and working on the computer, as well as supervising the kitchen. In February 2008, Petitioner told a white busboy named John to bring him some plates. John then told Petitioner that he was not John's boss and called Petitioner a "fucking nigger." The front-end manager, Pam Maxwell, immediately suspended John for a week but allowed him to return to work after two days. Mr. Studner was not aware of the incident involving John. Petitioner then asked Mr. Delucia and Ms. Maxwell for the telephone number of Bob Burns, the district manager for the International House of Pancakes, Inc. Mr. Studner was not aware of Petitioner's request for Mr. Burns' telephone number. Days later, Mr. Studner instructed Mr. Delucia to terminate Petitioner's employment. The greater weight of the evidence indicates that Mr. Studner decided to terminate Petitioner solely because of his continued cell phone usage on company time as observed in person and on surveillance tapes. At first, Petitioner did not realize he had been permanently terminated. During the hearing, Petitioner testified that he tried to return to work by talking to Mr. Delucia, who told him to call Mr. Studner. Mr. Studner did not return Petitioner's calls. For years, Mr. Studner has employed African-Americans to work as servers, cooks, hostesses, kitchen managers, front- end managers, and general managers. Mr. Studner owns five other restaurants, including two other IHOPs. Over the last two years, Mr. Studner has hired three African-American general managers.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and Petition for Relief. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 <day> day of <month>, <year>. COPIES FURNISHED: Sebrina L. Wiggins, Esquire Landis, Graham French 145 East Rich Avenue, Suite C Deland, Florida 32721 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether First Transit, Inc. (“Escambia County Area Transit” or “ECAT”)1/ committed an unlawful employment practice against Petitioner (“Addie L. McMillan”) by subjecting her to disparate treatment and/or by retaliating against her.
Findings Of Fact Ms. McMillan is a 55-year-old, African-American female who had worked at ECAT for 22 years. She began as a part-time beach trolley operator and progressed to becoming a full-time bus driver. The Union and ECAT had a labor agreement in place between October 23, 2013, and September 30, 2016 (“the labor agreement”). Article 52 of the labor agreement had a policy regarding the use of cell phones by ECAT employees and provided as follows: While on duty the use of cellular phone or any other personal communication device is limited as follows: SECTION 1: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other Company motor vehicle is prohibited while the vehicle is not secured. Push to talk communication devices issued by the Company may be used for work related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. Note – Secured definition: Vehicle must be in neutral/park position and emergency brake on. SECTION 2: If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable) or in a safe location with the bus secure. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. SECTION 3: The use of a cellular phone or other communication device by an employee while on the shop floor or during work time (unless previously approved) is prohibited, other than a Push to Talk communication device issued by the Company for work related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. SECTION 4: Disciplinary Action: Failure to comply with any portion of this policy may result in disciplinary action as follows: Violation of Section 2 or Section 3 of this Article: 1st offense: 3-day suspension 2nd offense: Termination Violation of Section 1 of this Article: 1st offense: Termination On June 19, 2012, Ms. McMillan signed a document entitled “Escambia County Area Transit Cellular Phone Policy” which provided that: While on duty the use of a cellular phone or any other personal communication device is limited as follows: Employees on Company Business: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other company motor vehicle is prohibited. Push- to-talk communication devices issued by the Company may be used for work-related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable), request a 10-7, and exit the driver’s seat prior to using the cellular phone. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. The use of a cellular phone or other communications device by an employee while on the shop floor is prohibited, other than a Push-to-Talk communications device issued by the Company for work-related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. On the morning of July 29, 2015, Ms. McMillan was driving a route that went through the Naval Air Station in Pensacola, Florida. At that time, the navy base had been on alert status for approximately one month. As a result, every vehicle entering the navy base had to be searched, and that caused Ms. McMillan’s bus to run behind schedule. At approximately 10:30 that morning, Ms. McMillan needed to use a bathroom and called a dispatcher via a radio provided by ECAT. The dispatcher contacted by Ms. McMillan was not receptive to her request for a bathroom break and cut off communications. Because Ms. McMillan was unsuccessful in re- establishing contact with the dispatcher over the radio, she used her personal cell phone to call a coworker, Elaine Wiggins. Ms. McMillan was hoping that Ms. Wiggins could assist her with contacting an ECAT general manager. At this point in time, the bus driven by Ms. McMillan was in traffic and moving. In other words, it was not “secured” by being in the neutral/park position with the emergency brake on. Diane Hall was an assistant general manager for ECAT during the time period at issue, and Ms. Hall talked to Ms. McMillan via Ms. Wiggins’ cell phone. Ms. Hall stated to Ms. McMillan that the route she was driving had a pre-arranged break point at a bowling alley and that Ms. McMillan could use a bathroom there. It is possible that Ms. McMillan would not have suffered any consequences for her violation of the cell phone policy but for a customer complaint provided to ECAT on July 28, 2015. Roberta Millender has been a customer service representative at ECAT for the last four years. On July 28, 2015, at 12:25 p.m., Ms. Millender received a phone call from a customer who reported that the bus driver for Route 57 left the bus at approximately 11:00 a.m. in order to smoke a cigarette, even though the bus was 25 minutes behind schedule. Ms. McMillan also drives that route. ECAT’s buses are equipped with video cameras. Therefore, ECAT reviewed the videotape from the Route 57 bus in order to investigate the complaint. Because the videotapes are on a continuous loop, ECAT had to pull video corresponding to days before and after July 28, 2015. While looking for the incident on July 28, 2015, that led to the customer complaint, an ECAT employee noticed that Ms. McMillan was using her cell phone on July 29, 2015. There is no dispute that Ms. McMillan is not the bus driver who took the cigarette break on July 28, 2015.3/ On July 30, 2015, ECAT began an investigation of Ms. McMillan’s cell phone use. ECAT notified Ms. McMillan that she would continue to work during the investigation. Via a letter dated August 3, 2015, Mike Crittenden, ECAT’s General Manager, notified Ms. McMillan that she was being terminated for violating Article 52 of the labor agreement. Mr. Crittenden’s letter deemed Ms. McMillan’s cell phone use to be a violation of section 1 which prohibited cell phone use while a transit vehicle is not secured. In addition, Mr. Crittenden’s letter noted that the termination was effective immediately. During the final hearing in this matter, Ms. McMillan was unable to present any evidence that any other similarly- situated bus drivers had not been terminated for using a cell phone while the buses they were driving were unsecured. Mr. Crittenden testified that 4 drivers have been terminated for violating section 1 of Article 52 since the labor agreement has been in place. Three of those drivers were African-American (two females and one male), and one was a Caucasian female. Mr. Crittenden was unaware of any driver being retained by ECAT after violating the cell phone policy.4/ In addition to Mr. Crittenden, Ms. McMillan called three other ECAT employees, none of whom were aware of any bus driver being retained after violating the cell phone policy. The greater weight of the evidence demonstrates that Ms. McMillan was not discharged because of her race.
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 Addie L. McMillan’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 31th 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 31th day of May, 2017.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race or gender, engaged in sexual harassment, or retaliated against Petitioner in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2006).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a Caucasian female and filed a complaint of race and gender discrimination, sexual harassment, and retaliation with the Commission. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent operates retail grocery stores in several states, including Florida. The evidence, in its entirety, does not establish a prima facie showing of discrimination or retaliation. Nor does the evidence prove that Petitioner was sexually harassed. Finally, there is no evidence that Respondent engaged in an unlawful employment practice within the meaning of Section 760.10. Respondent first employed Petitioner sometime in July 2003 as an "at-will" employee. No written employment contract has ever existed between the parties. Respondent trained and promoted Petitioner to assistant manager of a grocery store. In April 2005, however, Mr. William Reners, Respondent's regional director of operations (RDO), offered Petitioner an opportunity to become the administrative assistant/secretary in Respondent's Regional Office without a decrease in compensation.2 Petitioner accepted the offer. Petitioner continued her employment as an administrative assistant, and she voluntary resigned on February 5, 2007. Petitioner earned positive performance evaluations and regular raises during her employment. Petitioner's claim of disparate treatment relates to Mr. Cornelius Hicks, an African-American male, who was compensated at a higher level than the compensation Petitioner received. However, Respondent employed Mr. Hicks as a store manager, and Mr. Hicks never voluntarily transferred to a position of administrative assistant. Respondent gave Mr. Hicks an extraordinary raise sometime in late 2006 or early 2007. Mr. Hicks' job performance was "tremendous." Respondent intended the raise as recognition of the duties Mr. Hicks performed as a "floater" manager. The job required Mr. Hicks to manage a number of different stores and to commute long distances, on short notice, and to perform the duties of a floater manager for extended periods. Petitioner first learned of the alleged disparate treatment when Petitioner entered Mr. Reners' office without permission while he was on vacation sometime in January 2007. Petitioner learned of the raise when she discovered relevant paperwork in Mr. Reners' office. Disparate treatment is not evidenced by Respondent's refusal to give Petitioner a merit pay increase after Petitioner earned a Master's of Business Administration (MBA) degree. Mr. David Gerdes, Respondent's vice president for Human Resources, told Petitioner at the time that Respondent did not give raises to employees when they earned college degrees that do not improve an employee's ability to do his/her job. The MBA did not improve Petitioner's ability to carry out her clerical duties as an administrative assistant. Petitioner was aware that Respondent maintains a uniform, written non-discrimination policy and a "zero tolerance" sexual harassment policy. Petitioner knew the policies were posted in all stores and included in annual training sessions. Petitioner knew the company had an "open door" policy by which employees who are not satisfied with answers to their inquiries at the local level are encouraged to contact corporate headquarters in Minnesota. Finally, Petitioner knew that Respondent promptly investigates employees' complaints of discrimination, retaliation, and harassment. Mr. Reners is the individual who allegedly discriminated and retaliated against Petitioner. As the RDO, Mr. Reners is responsible for overall management and operation of the 11 grocery stores in Florida. However, Mr. Reners did not have the authority to discharge full-time employees, including Petitioner. The so-called whistle-blower evidence pertains to various memoranda about store conditions that Petitioner wrote during her employment as an administrative assistant. When Petitioner discussed the issue with Mr. Reners in September 2006, Mr. Reners invited Petitioner to send the memoranda to Mr. John Boogren, Corporate Director of Operations. Mr. Boogren is Mr. Reners' supervisor. Petitioner sent the memoranda to Mr. Boogren. The memoranda discussed what Petitioner thought were poor conditions and operating procedures in Respondent's stores. The evidence of sexual harassment involves uncorroborated allegations by Petitioner that Mr. Tom DeGovanni, a co-worker, patted Petitioner on her head and shoulders, or back, on October 6, 2006. Petitioner complained of the incident, but qualified her complaint by saying that "it was no big deal" and by saying that she did not want the company to take any action. Several days after the alleged incident, however, Petitioner delivered a memorandum to Mr. Reners complaining of the alleged conduct. Respondent investigated the claim of sexual harassment by Mr. DeGovanni in accordance with Respondent's long-standing "zero tolerance" sexual harassment policy. The investigation did not substantiate Petitioner's allegations. Mr. DeGovanni adamantly denied touching Petitioner, there were no witnesses to the alleged event, and, even though Petitioner and DeGovanni were in front of a security video camera at the time of the alleged event, the touching was not on the videotape. Respondent reminded Mr. DeGovanni of the company's policy against sexual harassment, gave Mr. DeGovanni a written warning, and transferred him to another store location so Petitioner would not have contact with him. Mr. Reners notified corporate headquarters of the complaint, the investigation results, and the corrective action. Petitioner received a satisfactory performance evaluation, a wage increase, and a bonus in December 2006, after her complaint about DeGovanni. Mr. Reners knew of and approved the evaluation, raise, and bonus and could have stopped them if he had wished to do so. Petitioner resigned her employment as Respondent's administrative assistant/secretary on two occasions prior to February 5, 2007. Although Mr. Reners could have accepted both of the prior resignations, he telephoned Petitioner and persuaded her to resume her employment without penalty. However, Mr. Reners warned Petitioner after the second resignation that, if she resigned again, he would accept the resignation. Mr. Reners was on vacation during the week of January 29, 2007. Petitioner had no communication with Mr. Reners during that week. On Saturday, February 3, 2007, Petitioner prepared a letter of resignation and resigned on February 5, 2007. The psychic that Petitioner consults had previously told Petitioner of an impending job termination. Mr. Reners returned from vacation on Monday, February 5, 2007, and commenced a meeting with two other employees to discuss renovations at Respondent's store in Labelle, Florida. Petitioner thought she should be included in the meeting and knocked on the door to the meeting room. Petitioner mistakenly thought the meeting was a staff meeting that often occurred after Mr. Reners returned from a vacation. Mr. Reners explained to Petitioner that there would be a staff meeting afterwards. Petitioner was upset at not being included in the first meeting and viewed her exclusion from the meeting as the job termination predicted by her psychic. Shortly after the first meeting ended, Petitioner walked up to Mr. Reners, handed her store keys to him, said "You win!" and left the building. Petitioner performed her job duties well. Respondent would not have discharged Petitioner on February 5, 2007. Petitioner voluntarily resigned on that day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 28th day of February, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2008.
The Issue Whether the non-renewal of Petitioner's annual employment contract as a school bus driver at the end of the 1993-94 school year was due to discrimination against her, on the basis of her race (African American) or disability (depression), in violation of Section 760.10(1)(a), Florida Statutes (1995).
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 school bus driver from October 17, 1983, until June 8, 1994, when her annual employment contract was not renewed. Throughout her employment, Petitioner exhibited problems with tardiness and excessive absenteeism. Her performance appraisals noted that her attendance with either unsatisfactory or needed improvement. In 1990, Petitioner had 13 occurrences of absenteeism or tardiness. In 1991, Petitioner had 11 occurrences of absenteeism or tardiness. In 1992, she was given an evaluation of "Unsatisfactory" and placed on notice for possible non-reappointment. As of April 1993, Petitioner had 17 occurrences of absenteeism and tardiness and was advised by the Director of Transportation that continued excessive absenteeism might affect her chances of continued employment. On May 13, 1993, Joseph Wise (Wise), Director of Transportation, advised Petitioner that he recommended to Paul J. Hagerty, Superintendent (Superintendent), that Petitioner be suspended without pay for being tardy on August 24, 1992, September 3, 1992, September 11, 1992, and May 13, 1993. After a fourth offense, as provided in Article VIII, Section 15, "Tardiness" in the official Agreement between the School Board and the Seminole County School Board Bus Driver's Association, suspension is the authorized disciplinary punishment. On May 17, 1993, the Superintendent informed Petitioner that he would act upon the Acting Director's recommendation and recommend to the School Board that Petitioner be suspended for one day, effective September 1, 1993. The Superintendent also advised Petitioner of her right to an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes, if she disputed the claim that she violated the tardy policy. The School Board approved Petitioner's suspension on June 15, 1993. On September 23, 1993, a conference was held with Petitioner and the Director of Transportation Services regarding Petitioner's absences on August 26, 1993, September 3, 1993, and September 15, 1993. Also discussed were Petitioner's tardiness on July 22, 1993, August 23, 1993, and August 24, 1993. Subsequent to the conference, the Director of Transportation Services wrote a letter of directive of Petitioner stating that he expected her regular attendance at work and that, for the remainder of the 1993-94 school year, Petitioner was directed to submit a doctor's statement and/or written explanation of the nature of any absence. Petitioner was also advised that failure to follow the directive or failure to achieve regular attendance at work could lead to further disciplinary action, including termination of employment. Petitioner was absent on October 28, 1993, November 9, 1993, November 16, 1993, and December 17, 1993. Petitioner was absent from work on January 3, 1994, to see her dentist. The dentist gave her a few days' worth of medication for dental pain. Petitioner's boyfriend was killed on or about January 7 or 8, 1994. She took a leave of absence from January 10, 1994, until January 30, 1994. On February 15, 1994, Julie Green, Area Supervisor, recommended to the Superintendent that Petitioner be suspended without pay for one day for having been absent without leave on February 15, 1994. Petitioner was tardy on February 24, 1994. On February 28, 1994, the Superintendent informed Petitioner that he intended to act upon Green's prior recommendation and recommended to the School Board that Petitioner be suspended without pay, effective April 6, 1994. The Superintendent also advised Petitioner of her right to an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes, if she disputed that she was absent without approved leave. The School Board approved Petitioner's suspension on March 2, 1994. Petitioner had a doctor's excuse for being absent on March 17, 1994. The doctor's note states that she is able to return to work. Petitioner had an absence excuse from her dentist for April 8, 1994. She had to take medication for dental pain for a few days. On April 6, 1994, the five area supervisors met with Wise to discuss reappointments and non-reappointments of school bus drivers. Julie Green was one of the area supervisors at the meeting. The management team discussed a group of school bus drivers who were borderline in terms of performance. The group was comprised of persons from different ethnic and racial groups. The management team also discussed a group of school bus drivers who had problems with extreme absenteeism. The group of school bus drivers who had problems with extreme absenteeism was comprised of both African American and white individuals. Petitioner was among this group. Carla Green, a white non-handicapped female was also among this group. The absenteeism of school bus drivers creates a safety problem. The buses do not run on time. Inexperienced office staff have to drive the buses, so children may be left standing on the side of the road for a long time waiting for a bus to pick them up. School bus drivers who have a doctor's excuse for their absence still can be found to have excessive absenteeism. Some of the individuals with absenteeism problems were reappointed. Carla Green was among those who were reappointed. Carla Green's attendance problems were determined to be less severe than Petitioner's, and unlike Petitioner, Carla Green's attendance improved during the course of the 1993-94 school year. The group of school bus drivers, whose contracts were not renewed because of absenteeism, was comprised of black and white, male and female individuals. In total, 12 school bus drivers were not reappointed. Of this group, eight were white and four were African American. None was disabled. Two of the white women who were not re-appointed had been employed as school bus drivers as long as or longer than Petitioner. In the past, Julie Green had directly supervised Petitioner but had never supervised Carla Green. Petitioner was absent again on April 13, 1994, because she took her daughter to the doctor. By letter dated April 25, 1994, Wise notified Petitioner of his recommendation that her contract not be renewed at the end of the school year. Petitioner had a doctor's excuse for being absent on May 2 and 3, 1994. The doctor's note states that Petitioner can return to work with no limitations. Petitioner was absent from work on May 9, 1994, until May 12, 1994. The doctor's note states she can return to work on May 12, 1994, with no limitations. Petitioner had a doctor's note dated May 11, 1994, which states that Petitioner has been depressed since her boyfriend was killed. Petitioner had some trouble adjusting to medication which she was given for this condition. Petitioner requested and was seen by a counselor with The Allen Group, the Employee Assistance Program for the School Board, on four occasions in early 1994. On January 26, 1994, Petitioner reported feeling angry and depressed because her boyfriend had been shot and killed. She had learned at his funeral that her boyfriend had several other girlfriends during this time, one of whom was pregnant. Petitioner consulted with a counselor on March 7 and March 10, 1994. On March 21, 1994, Petitioner reported to her counselor that she was feeling better. Petitioner's last visit with her counselor was on May 11, 1994, when she reported that her job was in jeopardy because of too many absences. By letter dated May 15, 1994, the Superintendent advised Petitioner that he would be recommending to the School Board that her employment as a school bus driver be terminated. He also advised her of her right to a hearing prior to her termination pursuant to Section 120.57, Florida Statutes. Petitioner did not request a hearing. Petitioner did not request a review or discussion concerning any alleged disability. By letter dated June 16, 1994, Petitioner was informed that the School Board terminated her employment, effective June 8, 1994. Petitioner pursued the grievance procedure through Step II, available to her under the terms of the contract between the school bus drivers and the School Board. Petitioner argued that her termination was not justified because she does not believe that excessive absenteeism constitutes just cause, and that Respondent's actions were motivated by unlawful discriminatory conduct based on her race and disability (depression). Petitioner failed to prove her allegations of discrimination by a preponderance of evidence.
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 29th day of February, 2000, 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 29th day of February, 2000. COPIES FURNISHED: Ned N. Julian, Jr., Esquire School Board of Seminole County 400 East Lake Boulevard Sanford, Florida 32773-7127 Mae Vanessa Hampton Laurel Oaks Apartments 8775 Orange Oaks Circle Tampa, Florida 33687 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner has established just cause to terminate Respondent as an educational support employee.
Findings Of Fact Based on the evidence, the following facts were found: The superintendent for the School District has the authority pursuant to section 1012.27 to recommend the termination of any School District employee to the School Board. Further, the School Board has the authority to terminate and/or suspend support personnel without pay and benefits pursuant to sections 1012.22(1)(f) and 1012.40(2)(c). Mr. Lomonte has been employed with the School District since January 3, 2006, and was a bus driver for the School District's Transportation Department. As a bus driver, Mr. Lomonte is an "educational support employee," as defined by section 1012.40(1)(a), and is governed by the Collective Bargaining Agreement (SPALC Contract) between the School District and SPALC. The SPALC Contract requires "just cause" for the discipline of support personnel. Art. 7.10, SPALC Contract. On June 7, 2010, Charles Dailey (Mr. Dailey), the director of Transportation, West Zone of the School District, received a letter from a parent concerning Mr. Lomonte.3/ The letter complained that the bus driver had engaged in inappropriate behaviors. Specifically, the parent complained that Mr. Lomonte was asking the middle school female student what she wore to bed, grabbing her book bag, and telling her that she was pretty. The School District began an investigation into the complaint and took statements from some of the students who rode the bus driven by Mr. Lomonte. Based on its investigation, the School Board found just cause to terminate Mr. Lomonte's employment. The School Board presented the testimony of D.T., a 14- year-old girl, who rode the bus driven by Mr. Lomonte for the time period of April 2010 until June 2010. D.T. credibly testified that: Mr. Lomonte, on two occasions, had kissed her hand on leaving the bus; Mr. Lomonte often called her "beautiful," "pretty," and "queen of the bus"; Mr. Lomonte had invited her to his home, where he had a professional photography studio, to have her picture taken for Quincera, and told her that he had beautiful dresses that she could wear;[4] Mr. Lomonte had placed his hand on her thigh once when she had been wearing Capri pants; Mr. Lomonte had commented on her clothing, and the fact that she wore long pants, and asked her to turn-a-round so that he could see her; Mr. Lomonte would tell her that she "smelled really good"; and Mr. Lomonte would often stare at her. D.T. credibly testified that Mr. Lomonte's actions and words made her feel "uncomfortable" and "weird." The record shows the School District learned about D.T.'s allegations against Mr. Lomonte after he had been initially suspended as the bus driver. Mr. Lomonte's initial suspension occurred during its investigation based on the parent's June 7, 2010, complaint. The record shows that after Mr. Lomonte had been suspended off the bus in early June 2010, D.T. asked the substitute bus driver, Todd Thompson (Mr. Thompson), if he was going to be the new bus driver. D.T. explained to Mr. Thompson that Mr. Lomonte had made her feel uncomfortable based on his calling her "princess" and making suggestions that "she could come over to his house and he could take pictures of her." Mr. Lomonte's testimony that D.T. exaggerated or was untruthful because he had disciplined her on the bus was not credible. Mr. Lomonte testified that he had given D.T. a referral for "horse play" with a younger student. Yet, there was no evidence of this referral at the time it occurred, or that D.T. had ever been sanctioned based on Mr. Lomonte's referral. The only evidence that he had informed the School District that D.T. had been given a referral was before the School District's pre-determination hearing held on June 24, 2010. The School Board also brought forward the deposition testimony of five student witnesses, H.J., J.S., A.S., D.P., and T.J.B. All of these students were middle school-aged girls that rode Mr. Lomonte's bus during the 2009-2010 school year.5/ The testimony supports the allegation in the Petition that Mr. Lomonte asked H.J. and D.P. what they wore to bed. The record, however, is unclear and contradictory about the circumstances of the comments and when the comment or comments took place. Mr. Lomonte brought forward evidence showing that the middle school had a pajama day as part of its spirit week and that the comments may have occurred on pajama day. Similarly, some of the witnesses remembered Mr. Lomonte asking H.J. and D.P. together, others remembered him asking H.J. or D.P. on separate occasions. Although there was discrepancy in the circumstances, all of the witnesses remembered Mr. Lomonte asking H.J. and/or D.P. what they wore to bed. Even if Mr. Lomonte asked the question in the context of pajama day and in innocence, the question is inappropriate. The deposition testimony also supported the factual allegation that Mr. Lomonte called female students on the bus "pretty" or "beautiful." This finding was also supported by one of Mr. Lomonte's witnesses, E.F., that Mr. Lomonte would tell female students on the bus "you're pretty or you're beautiful." The deposition testimony with regards to the allegation that Mr. Lomonte showed a student an inappropriate picture on his cell phone and sent a picture to the student on her cell phone was not supported. D.P. testified that Mr. Lomonte showed her a cartoon figure showing its middle finger. Mr. Lomonte denied that he showed her a picture on his cell phone. The record was inconclusive, and no other evidence was offered to support the allegation of Mr. Lomonte showing an inappropriate picture on his cell phone to D.P. No evidence was presented that Mr. Lomonte sent any picture to a student. Thus, these allegations were not proven. The record did not support the factual allegation that Mr. Lomonte inappropriately touched the arms of the students who provided deposition testimony. The record did show that Mr. Lomonte pulled on H.J.'s sweat shirt to get her attention, but that he stopped once she asked him to. Finally, the record was not clear that that Mr. Lomonte stared at the female students through the rearview mirror. Many of the female students testified that they felt that Mr. Lomonte stared at them through the rearview mirror. Mr. Lomonte testified that he did not stare at the students and that he often wore sunglasses because his eyes were sensitive to light. Mr. Lomonte reasoned that because he wore dark sunglasses, the students could not testify that he was staring at them. The testimony from the students was that he sometimes wore sunglasses. Although the students "felt" he was staring at them, it is difficult to determine the witnesses' credibility from reading a deposition. One student, J.S., however, did offer unrebutted testimony that Mr. Lomonte had stared down her shirt on one occasion when she had worn a tank top. Notably, Mr. Lomonte, in his testimony, did not address the allegation by J.S. Based on Mr. Lomonte's conduct of calling young female students "beautiful or pretty" on the bus, it is understandable that the students would feel that he was staring at them. The allegation of staring at students, with the exception of staring down one student's shirt, is not established. Mr. Dailey credibly testified that in 2008 he had given Mr. Lomonte a verbal warning about telling a female student that she was pretty and offering to take the student's picture. Mr. Dailey testified that he made it clear to Mr. Lomonte that those comments were totally inappropriate. Further, Mr. Dailey credibly testified that Mr. Lomonte understood the warning. At hearing, Mr. Lomonte admitted that he realized that he made a mistake about talking to D.T. about his photography business. Mr. Lomonte, however, attempted to explain that he understood that Mr. Dailey only prohibited him from talking about the photography business, but did prohibit him from answering D.T.'s questions about Lomonte's photography business. Mr. Lomonte's attempt to parse his understanding about Mr. Dailey's warning is not credible. Mr. Lomonte presented the testimony of S.A., S.G.F., E.M.F., and A.F. concerning the bus. The testimony showed generally that Mr. Lomonte dressed professionally. The students testified that they did not see Mr. Lomonte do anything improper. However, the facts showed that the students were often not in a position to hear whether or not Mr. Lomonte made inappropriate comments or see any inappropriate actions. For example, S.A. admitted that she was not on the bus all of the time that H.J., D.P., A.S., and J.S. were on the bus. Similarly, A.F. testified that she did not hear Mr. Lomonte call any student pretty or beautiful, but admitted that she could not hear what Mr. Lomonte was telling D.T. from her bus seat. The record showed that despite his verbal warning in 2008, Mr. Lomonte received good evaluations as a bus driver and was effective in his job. Mr. Lomonte testified under oath that he understood English and that he understood the proceedings against him and understood the testimony being offered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding that just cause exists for termination of Mr. Lomonte's employment. DONE AND ENTERED this 10th day of February, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2011.
The Issue The issue is whether Respondent, Porky's Barbeque Restaurant, engaged in an unlawful employment practice by terminating Petitioner, Susan Coffy, from her position.
Findings Of Fact Petitioner is a female and, at all times relevant to this proceeding, was over the age of 40. From March 1, 2003, until October 28, 2003, Petitioner was employed as a waitress at Porky's, a barbecue restaurant. On October 28, 2003, Petitioner was terminated from her job as a waitress. Prior to March 1, 2003, Petitioner had worked as a waitress at another restaurant, Fat Boy's Restaurant (Fat Boy's), that had been operating at the same location as Porky's. Fat Boy's closed after the building in which that restaurant was located was purchased by Walter Milton. After Mr. Milton purchased the building, he opened his own business, Porky's, at that location. After Mr. Milton opened his restaurant, he employed many of the individuals who had been employed by Fat Boy's, but told them that their employment with Porky's was for a "trial period." Immediately after Porky's opened for business, Mr. Milton initiated operational directives that he believed were essential business needs for operating a barbecue business. He introduced these new directives to the employees of Porky's, many of whom had previously worked for Fat Boy's. While some of these employees were successful in making the transition to the new operation, there were employees, including Petitioner, who were resistant to the operational directives initiated by Mr. Milton. Even though Petitioner was resistant to the new operational directives that were implemented at Porky's, Mr. Milton continued to try to work with Petitioner. In fact, Petitioner worked as a waitress at Porky's the first eight months the restaurant was open. During the course of her employment, Mr. Milton found that Petitioner was an employee who failed to follow simple instructions. For example, Mr. Milton directed employees to knock on his office door when the door was closed. Notwithstanding this very simple directive, Petitioner refused to comply. One day Petitioner went to Mr. Milton's office and found the door to the office was closed. Instead of knocking as she had been previously directed, Petitioner simply barged into the office and stated that she needed a band-aid. After Petitioner barged into the office without knocking, Mr. Milton reminded her that she should knock on the door and wait for a response before coming into his office. About three minutes after this admonition, Petitioner returned to Mr. Milton's office. Although the office door was closed, Petitioner, again, did not knock on the door, but simply opened the door and went into the office. Mr. Milton was not pleased with Petitioner's failure to embrace the directives he initiated and implemented for Porky's. However, the "final straw" that resulted in Mr. Milton's terminating Petitioner's employment was an incident about a menu item. On October 28, 2003, Petitioner was very upset that Mr. Milton had included an item on the Porky's menu that also had been on the Fat Boy's menu. That menu item was referred to as "Jim's Special Burger." Mr. Milton included that item on Respondent's menu to honor Jim Kenaston, who had been the owner of Fat Boy's. On October 28, 2003, Petitioner "flew off the handle" and confronted Mr. Milton about his decision to include the item, "Jim's Special Burger," on the Porky's menu. Petitioner, who admits she was upset about this matter, confronted Mr. Milton and argued to him that he had no right to put the "Jim's Special Burger" on Respondent's menu. The confrontation started in the kitchen of the restaurant, but continued after Petitioner left the kitchen and proceeded into the restaurant's dining room. Although there were customers in the dining room, Petitioner continued to argue with Mr. Milton about the menu item. Petitioner's verbal criticism and objection to Mr. Milton's decision to include "Jim's Special Burger" on Respondent's menu created such a commotion in the restaurant that Respondent's bookkeeper heard Petitioner's outbursts from her office located behind the cashier's counter. After the bookkeeper heard Petitioner arguing with Mr. Milton, the bookkeeper left her office and in an effort to de-escalate the situation, escorted Petitioner out of the dining room to a back hall of the restaurant where there were no customers. On October 28, 2003, as a result of Petitioner's inappropriate and unprofessional conduct described in paragraphs 10 through 13, Mr. Milton terminated Petitioner's employment at Porky's. The same day that he terminated Petitioner's employment, Mr. Milton completed a "Separation Notice" on which he indicated that Petitioner was laid off due to lack of work. The reason Mr. Milton wrote this on the form was so that Petitioner could receive unemployment compensation. Petitioner presented no competent and substantial evidence that she was terminated from employment because of her age. Likewise, Petitioner presented no evidence that after she was terminated, she was replaced by a younger worker. At all times relevant to this proceeding, Respondent had four or five employees who were over 40 years of age. Petitioner presented several witnesses who testified that she was an excellent waitress when she was employed at Fat Boy's. However, Petitioner's job performance while working for her previous employer is not at issue or relevant in this proceeding. Even if that testimony is accepted as true, no inference can be drawn that Petitioner's performance remained the same or was viewed as such by her new employer. Notwithstanding the opinions expressed by her previous employers and co-workers, Petitioner was terminated from her employment at Porky's as a result of her unacceptable and unprofessional conduct on October 28, 2003.
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, Porky's Barbeque Restaurant, did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of March, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Walter Milton Porky's Barbeque Restaurant 4280 South Washington Avenue Titusville, Florida 32780 Susan Coffy 2966 Temple Lane Mims, Florida 32754 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Seminole County School Board (Respondent) engaged in disparate treatment of Valeria Gaskin (Petitioner) such that the treatment of Petitioner constituted gender discrimination that resulted in a constructive discharge of Petitioner from her position with the school district.
Findings Of Fact Petitioner is a female who was hired by Respondent on November 25, 1991, as a school bus driver. At all times material to this case, Petitioner’s performance of her duties as a school bus driver relate to the ultimate issues of law and fact to be resolved. The employment relationship between Petitioner and Respondent was governed by a Collective Bargaining Agreement entitled “Agreement with the Seminole County Bus Drivers’ Association, Inc. and the School Board of Seminole County (union contract).” Respondent is the entity charged by law to operate the School District of Seminole County, Florida, and in that capacity entered into the union contract. Petitioner was charged with the responsibility of reading the union contract and complying with its terms. Petitioner acknowledged that she was directed to review the contract and familiarize herself with it not less than annually. The union contract required Petitioner to comply with school board policies related to her employment duties. Kenneth Lewis is Respondent’s Director of Transportation under whose leadership all school buses are operated and maintained. In the structure of the Transportation Department, Mr. Lewis is followed by Julie Murphy, Assistant Director of Transportation, who, in turn, supervises Area Managers who perform the daily supervision of bus drivers. At all times material to this matter, Kathy Dent was the Area Manager under whom Petitioner served. It is undisputed that Respondent’s policy prohibits the use of cell phones while driving a school bus. All school bus drivers are made aware of the policy and the policy is reiterated in the Transportation Handbook (handbook) and is discussed repeatedly throughout the school year during department meetings. Petitioner acknowledged that she was provided a handbook and knew that Respondent’s policy prohibited the use of cell phones by school bus drivers while on a school bus. On or about October 3, 2007, Ms. Dent met with the bus drivers under her charge (including Petitioner) to remind them of the policy against cell phone use while on school buses. On November 30, 2007, Ms. Dent met with Petitioner individually to advise her again that cell phone use was not permitted while driving a school bus. On January 17, 2008, Petitioner was involved in a vehicular accident and was talking on a cell phone at the time of the crash. Petitioner acknowledged that she was using a cell phone while driving on January 17, 2008, and that such use violated school board policy. In fact, because Petitioner’s school bus carried a digital video camera that recorded Petitioner’s actions on January 17, 2008, Petitioner knew that she could be terminated for cell phone use while driving a school bus. More specifically, at the time of the accident the video captured Petitioner exclaiming, "I’m going to lose my job because I’m on the cell phone." Subsequent to the accident Petitioner was on workers’ compensation/leave but returned to work to face a five-day suspension without pay for her violation of the cell phone policy. The letter advising Petitioner of the proposed punishment clearly indicated that the recommendation for a five- day suspension without pay from the Transportation Department would be forwarded to the school superintendent for review and action. The school superintendent accepted the recommendation and Petitioner was advised that she would serve the unpaid suspension on May 13, 14, 20, 21, and June 3, 2008. These were the first dates available after Petitioner returned to work. On May 7, 2008, a date that Petitioner was driving her bus on her designated route, a student complained that an ipod had been stolen. To attempt to solve the complaint, a law enforcement officer requested that the Transportation Department pull the video from Petitioner’s bus to see if it could reveal who might have taken the device. To that end, Assistant Director Murphy contacted Ms. Dent to ask her to retrieve the video and review it for the purpose requested. Ms. Dent pulled the video hard drive from Petitioner’s bus and viewed the footage for the purpose directed. Ms. Dent discovered conduct she had not expected. First, the video clearly showed that Petitioner continued to use her cell phone while on the school bus. Even in the face of her impending suspension, Petitioner disregarded the school board policy and the directives from her supervisor. Petitioner continued to talk on a cell phone while on the school bus. Second, the video clearly showed unbecoming conduct between Petitioner and another school bus driver, William Boone. During the video Mr. Boone can be seen approaching Petitioner while she is seated at the driver’s position, place his hand and arm under her skirt for an extended period of time, and then later giving her an unspecified amount of money before departing. This conduct occurred while Petitioner was in line awaiting the start of her bus duties. Students were not on the bus at the time. Given the unexpected discoveries on the video, both Petitioner and Mr. Boone were called to the transportation office to meet with Mr. Lewis. Beforehand, however, the video from Mr. Boone’s bus was retrieved to determine if any inappropriate conduct could be seen on it. The video did not disclose any such conduct. Mr. Boone was not observed using a cell phone while on his bus and no additional unbecoming conduct was depicted. On May 9, 2008, a meeting was conducted with Petitioner, Ms. Murphy, Ms. Dent, and Mr. Boone. Later Mr. Lewis joined the group. Petitioner and Mr. Boone were advised that their unbecoming conduct had been captured by the bus video. Additionally, Petitioner was advised that her continued use of a cell phone while on the school bus had also been shown on the video. The video spoke for itself. The video contained irrefutable evidence of the conduct described above. Petitioner and Mr. Boone were given the opportunity to see the video for themselves. Both employees displayed embarrassment and concern. Mr. Lewis advised Petitioner that her continued use of the cell phone was in violation of the school board policy and advised both employees that the unbecoming conduct that appeared to be of a sexual nature was also not acceptable. At some point Petitioner claimed that she and Mr. Boone had been involved in a romantic relationship for an extended period of time. Mr. Boone expressed concern that his wife would find out about the incident. Mr. Boone denied that he was engaged in sexual conduct but accepted that it appeared that way. Further, Mr. Boone who held a previously untarnished personnel record did not want to lose his job. Mr. Lewis advised both Mr. Boone and Petitioner that he would likely recommend termination for both of them. He did not ask for their resignations, did not attempt to intimidate them in any manner, but expressed concern at their lack of judgment. As to Petitioner, since the video depicted her continued use of the cell phone (an act not applicable to Mr. Boone), Mr. Lewis expressed serious issue with Petitioner’s behavior. Nevertheless, no one demanded that Petitioner resign her position with the school district. Later in the day, Petitioner and her union representative met with Mr. Lewis to review the allegations. Since Mr. Lewis did not change his position and the union did not seem supportive of her cause, Petitioner became upset. Ms. Murphy offered to speak to Mr. Lewis on Petitioner’s behalf to see if she would be eligible for another employment position within the school district. Petitioner was afforded additional opportunities to meet with her union representative and to determine what, if any, response she would make regarding the allegations. At that point in time, Petitioner knew or should have known that the conduct depicted on the bus video would lead to the recommendation from Mr. Lewis to the school superintendent that Petitioner’s employment as a bus driver be terminated. Petitioner knew or should have known based upon the previous disciplinary action against her that her supervisors could not take disciplinary action against her based upon their authority. Moreover, for Petitioner to be terminated, the school superintendent would have to make the recommendation to the school board for its action. In this case, that recommendation never happened. Instead, Petitioner submitted a letter of resignation to Ms. Murphy. Additionally, Petitioner stated to Ms. Murphy that she did not want Ms. Murphy to look for another employment opportunity within the school district for her. Petitioner’s letter of resignation selected May 30, 2008, as its effective date. It is undisputed that Petitioner continued to use a cell phone in violation of the school board policy despite being aware of the consequences for violation of the policy. Mr. Boone also faced disciplinary action for his part in the recorded conduct. As previously indicated, Mr. Boone had an unblemished record with the school district prior to the conduct described in this cause. He had worked for the school district almost 20 years without serious incident of any kind. Ultimately, Mr. Reichert, the Executive Director of Human Resources and Professional Standards for the Respondent, determined that there was insufficient evidence against Mr. Boone to recommend his termination to the school board. Instead, Mr. Boone was suspended without pay for five days. Mr. Boone did not challenge that decision and duly served his suspension. Mr. Boone did not admit that he had fondled Petitioner but did acknowledge that his conduct was unbecoming a school board employee. While more direct in admitting what occurred between Mr. Boone and herself, Petitioner also acknowledged that their behavior was inappropriate. Petitioner argues that both employees should have been treated similarly. Further, Petitioner maintains that Mr. Boone received better treatment, that is to say, less severe disciplinary measures, than she. Petitioner claims that her resignation was influenced by gender discrimination and ultimately a constructive discharge based upon the disparate treatment she received when compared to Mr. Boone. Petitioner did not file a complaint against the school board at the time of the incident claiming that her resignation was being coerced or was involuntarily tendered. At the time of resignation, Petitioner did not know what disciplinary action would be taken against Mr. Boone. Additionally, Petitioner knew or should have known that she could contest any disciplinary action brought against her and that she would be entitled to a hearing. Finally, Petitioner knew or should have known that her union could advise her and participate (as guided by their decision) in any disciplinary action against her based upon the terms of the union contract. Petitioner did not attempt to withdraw her letter of resignation prior to its effective date. Petitioner and Mr. Boone are no longer on friendly terms. Petitioner timely filed her claim with the FCHR seeking relief based upon gender-related disparate treatment. She maintains that conditions of her job environment constitute a constructive termination of her employment with Respondent. FCHR issued its determination of no cause and Petitioner timely pursued the instant administrative action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s claim for relief as she was not treated in a disparate manner, did not experience a hostile work environment, and did not establish that she was qualified to continue her position as a bus driver for Respondent. DONE AND ENTERED this 15th day of April, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2010. COPIES FURNISHED: Serita D. Beamon, Esquire Seminole County School Board Legal Service Department 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Jerry Girley, Esquire The Girley Law Firm 125 East Marks Street Orlando, Florida 32803 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 Bill Vogel, Ed.D. Superintendent Education Support Center 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
The Issue The issues are whether Respondent engaged in violence in the workplace, breached the responsibilities and duties of an employee, and imposed physical discipline in violation of School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07; and, if so, whether Petitioner should suspend Respondent for 30 days without pay from her position as a school bus driver.
Findings Of Fact Petitioner is responsible for operating public schools within the school district of Miami-Dade County, Florida (the District), and disciplining employees within the District when necessary. Petitioner employs Respondent as a school bus driver within the District subject to rules and regulations of the School Board promulgated pursuant to Section 1012.23, Florida Statutes (2002); and subject to the collective bargaining agreement between Petitioner and the American Federation of State, County and Municipal Employees (the Contract). Petitioner has employed Respondent as a school bus driver within the District for approximately ten years. Petitioner trains school bus drivers, including Respondent, in procedures to follow when students become disruptive or unruly while traveling in a school bus. Petitioner directs drivers to stop the school bus on the side of the road until the students calm down. If necessary, the driver must then radio or telephone a supervisor or the police for further assistance. On October 8, 2002, Respondent drove a school bus for the purpose of taking students home following an after school activity at Coral Reef Senior High School. Respondent was substituting for the regular bus driver. It was dark, and Respondent was unfamiliar with the bus route. Respondent drove the school bus in a manner that endangered the physical safety of the students in the bus. Respondent instructed the students to walk to the front of the bus when their stop was near and to tell Respondent where to stop the bus. Respondent repeatedly applied the brakes of the bus with sufficient force that the students, who stood in the aisle to give Respondent instructions, were thrown into the seats or forward in the aisle. Respondent engaged in other behavior that endangered the physical safety of the students. Respondent's driving pattern of abrupt stops continued until only a few students remained on the bus. One student, identified in the record as C.C., became angry when Respondent missed the student's stop. When C.C. was stepping down to get off the bus, C.C. realized she had dropped her purse, asked Respondent to turn on the light, and Respondent complied. C.C. walked back up the steps of the bus to retrieve her purse and called Respondent a "bitch." Respondent responded by saying, "You a bitch." Respondent violated relevant procedures for defusing disruptive situations, endangered students riding on the bus, and threatened students. Contemporaneously with the exchange between Respondent and C.C., Respondent stopped the bus in the middle of the road, rather than the side of the road and turned off the engine. Respondent did not attempt to defuse the situation and did not contact a supervisor or the police. Rather, Respondent unbuckled her seat belt, approached C.C., and participated in a physical altercation with C.C. Respondent's conduct exposed other students in the school bus to physical harm. The other students came forward to separate Respondent and C.C. A student identified in the record as Z.G. tried to grab Respondent from behind, and female students tried to stop C.C. Respondent threw her walkie-talkie at C.C., but hit Z.G. No student other than C.C. hit Respondent. Respondent threatened the students riding on the school bus at the time of the altercation with C.C. Respondent stated that she was going to "kill" the students and that she had a son who was going to "bury" them. Respondent sat down in the driver's seat and drove the school bus to the Cutler Ridge Police Station. Respondent told police that the students on the bus attacked her. At the police station, Respondent did not telephone the supervisor on duty for the District. Rather, Respondent telephoned her daughter and Ms. Shirley Morris, a coworker and friend (Morris). Morris paged Aned Lamboglia (Lamboglia), the supervisor on duty. Lamboglia spoke to Respondent by telephone. Lamboglia was surprised at the assertion that students on the school bus attacked Respondent because incidents involving a student attacking a bus driver are "extremely rare." A suspension without pay for 30 days is reasonable under the circumstances. Although violence in the workplace is an egregious offense that is aggravated because it involves students, Respondent has no prior history of discipline. There is no pattern of violent behavior. The proposed penalty is consistent with the progressive discipline agreed to in the Contract. Other than this incident, Respondent has an exemplary work history, and Petitioner does not wish to lose Respondent as an employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of violating School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07, and suspending Respondent from her employment for 30 days without pay. DONE AND ENTERED this 4th day of December, 2003, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2003. COPIES FURNISHED: Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Mary Jill Hanson, Esquire Hanson, Perry & Jensen, P.A. 105 South Narcissus Avenue, Suite 510 West Palm Beach, Florida 33401 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education 325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1394
