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JIM HORNE, AS COMMISSIONER OF EDUCATION vs JAMES M. WARNER, 04-004395PL (2004)
Division of Administrative Hearings, Florida Filed:Lake Worth, Florida Dec. 10, 2004 Number: 04-004395PL Latest Update: Feb. 25, 2025
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JOHN L. WINN, AS COMMISSIONER OF EDUCATION vs PAULA PRUDENTE, 12-000502PL (2012)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Feb. 06, 2012 Number: 12-000502PL Latest Update: Feb. 25, 2025
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CYNTHIA ORNDOFF vs FLORIDA GULF COAST UNIVERSITY, 11-000740RU (2011)
Division of Administrative Hearings, Florida Filed:Fort Ogden, Florida Feb. 14, 2011 Number: 11-000740RU Latest Update: Oct. 11, 2013

The Issue Whether the Division of Administrative Hearings has jurisdiction to hear a petition, brought pursuant to section 120.56(4), Florida Statutes (2010),1/ claiming that a state university's documents concerning the process and criteria for faculty performance evaluation; documents from the university's College of Business setting out a Framework and Standards for Contract Renewal and Promotion for faculty; and documents showing the university's organization structure and delegations of authority are "agency statements" that require rule-making under the Administrative Procedure Act.

Findings Of Fact The Petitioner is a former associate professor with Florida Gulf Coast University. Florida Gulf Coast University is a member of the Florida state university system. Since November 2002, with the voter's adoption of article IX, section 7, Florida Constitution, the state university system has been overseen by a Board of Governors. Further, article IX, section 7, Florida Constitution, designated that each university, including Florida Gulf Coast University, would be managed by a local board of trustees. Thus, the Board of Governors and boards of trustees for universities derive power from the Florida Constitution, not legislative enactment. The Board of Governors enacted Regulation 1.001 that established power and duties for university boards of trustees. Among the Board of Governors' powers and duties delegated to the universities' board of trustees is the authority to manage university personnel and faculty. Dr. Hudson Rogers (Dr. Rogers), an associate provost with the University, testified that the University faculty are organized and represented by the United Faculty of Florida (UFF). The University and UFF are parties to a Collective Bargaining Agreement.2/ The Collective Bargaining Agreement between the Florida Gulf Coast University Board of Trustees and UFF addresses the evaluation of faculty members. Under Article 10 of the Collective Bargaining Agreement, each college within the University is empowered to develop its faculty evaluation procedures and forms consistent with the criteria agreed upon in the Collective Bargaining Agreement. The colleges' promulgation and implementation of their respective evaluation frameworks are not subject to any special process other than that outlined in the Collective Bargaining Agreement. The University's College of Business developed its own evaluation framework for faculty evaluation, which was consistent with the Collective Bargaining Agreement. Further, Dr. Rogers credibly explained that the University faculty voted on and approved the Faculty Performance and Evaluation Document in 2003 that is used to evaluate faculty. In September 2008, the Petitioner signed a Professional Development Plan that included a performance improvement plan. The performance improvement plan identified objectives that the University expected the Petitioner to meet regarding her job duties. In August 2009, after completing a probationary period of the 2008-2009 academic year, the Petitioner was evaluated by her department chair. The department chair rated the Petitioner as not meeting expectations by failing to publish at least one journal article by the end of the 2008-2009 academic year to meet the College of Business scholarship standards. Based on the Petitioner's failure to publish, the department chair recommended that the Petitioner not be reappointed after the 2009-2010 academic year. A peer review committee for the University's College of Business also determined the Petitioner had failed to meet the minimum requirements. The peer review committee informed the Petitioner of its decision on September 12, 2009. On October 21, 2009, the Petitioner filed a grievance pursuant to the Collective Bargaining Agreement. A review of the Petitioner's grievance shows that it alleged numerous violations of the Collective Bargaining Agreement concerning her faculty evaluation and decision not to re-appoint her as an associate professor. On October 22, 2009, the dean for the College of Business informed the Petitioner that "[a]fter reviewing your request and all documents provided me by you and the Peer Review Committee, my decision is that your contract will not be renewed." On November 20, 2009, the University representative, who reviewed the grievance, found that a majority of the claims were time barred or did not constitute a violation. The University representative found "a partial violation of [Collective Bargaining Agreement] Article 10.3A(1)" for failing to timely finalize the Petitioner's annual evaluation for the 2008-2009 academic year. The University representative noted that the Collective Bargaining Agreement did not "indicate any action to be taken in response to this violation." On December 10, 2009, the Petitioner filed a Request for Arbitration under the Collective Bargaining Agreement. On February 23, 2010, the University received the Petitioner's Notice of Intent to Arbitrate. On April 12, 2010, an arbitration hearing was held on the Petitioner's grievance. The arbitrator held that the Petitioner's Notice of Intent to Arbitrate was not timely under the Collective Bargaining Agreement; thus, it was considered withdrawn. On September 22, 2010, the Petitioner's supervisor, Dr. Robert O'Neill (Dr. O'Neill), wrote the Petitioner, confirming that her last date of employment at the University was December 17, 2010. The Petitioner's last day of employment with the University was December 17, 2010. On February 14, 2011, the Petitioner filed the Petition. The Petitioner alleged that the University is an "agency" within the definition of chapter 120 and is subject to the Administrative Procedure Act. Further, the Petitioner alleged that the University has made the following agency statements that are unadopted rules: (1) the Faculty Performance Evaluation Document for 2003 and 2008; (2) College of Business Framework and Standards for Contract Renewal and Promotion adopted on April 14, 2006, and revised on February 5, 2010 ("Framework"); (3) Delegation of Authority Memorandum accessed on October 7, 2010, from the University's web-site; and (4) Florida Gulf Coast University's organizational chart. The Petitioner also alleged that her substantial interests are affected "because her employment has been terminated based on several unadopted rules involving published documents from the [Florida Gulf Coast University] President, to the Provost, to the College." Further, a reading of the Petitioner's challenge here shows that she alleged that the University failed to the follow the "unadopted rules" when it evaluated her and decided not to re-appoint her to a teaching position. For example, the Petitioner claimed that the Florida Gulf Coast University Faculty Performance and Evaluation document is an agency statement that was not adopted as a rule under chapter 120. Next, the Petitioner alleged that Dr. O'Neill, who was her supervisor, failed to follow this Faculty Performance and Evaluation document when he evaluated her.

Florida Laws (7) 1001.705120.52120.54120.56120.68186.50420.04
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PAM STEWART, AS COMMISSIONER OF EDUCATION vs ASHLEY PIERRE, 16-006541PL (2016)
Division of Administrative Hearings, Florida Filed:Lauderdale Lakes, Florida Nov. 08, 2016 Number: 16-006541PL Latest Update: Feb. 25, 2025
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EDUCATION PRACTICES COMMISSION vs. THOMAS H. ABBOTT, JR., 80-001515 (1980)
Division of Administrative Hearings, Florida Number: 80-001515 Latest Update: Jun. 04, 1981

Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In September of 1979, John Williamson, an undercover police agent with the Department of Law Enforcement, was involved in narcotic investigations in the Pensacola area. Mike Abbott, who is the brother of respondent Thomas Abbott, and Williamson negotiated for the purchase of one kilo of cocaine in October of 1979. The transaction was to occur in West Palm Beach. On or about October 15 or 16, 1979, Mike Abbott and Robert Covington came from Pensacola to West Palm Beach and stayed at the home of respondent Thomas Abbott. Mike Abbott came to West Palm Beach for the purpose of introducing "one person to another person for the sale" of the cocaine. Apparently, the two people who were to be introduced were Robert Covington and Duane Hutchins. For this degree of involvement in the transaction, Mike Abbott was to receive $7,000.00. On October 16, 1979, Duane Hutchins came to the respondent's West Palm Beach residence for the purpose of meeting Mike Abbott and Robert Covington. The meeting lasted approximately thirty to forty minutes, during most of which time respondent Thomas Abbott was sleeping on the living room floor. Respondent did awaken several minutes before Hutchins left and was introduced to him. At some point after this meeting at respondent's home, Mike Abbott returned to Pensacola with the understanding that his $7,000.00 fee would be delivered to him after the sale of cocaine was consummated. Covington remained at respondent's home, and he and respondent went out for drinks that evening. According to Hutchins, Mike Abbott told him that he had to return to Pensacola and that respondent Thomas Abbott, Mike's brother, would be the person to contact in absence. It was arranged that Hutchins would call respondent's house the following day and speak to either respondent or Mr. Covington to determine the details of the meeting with the purchasers. Undercover agent John Williamson arrived in West Palm Beach on October 17, 1979, and met with Jack Maxwell, a vice officer with the Palm Beach County Sheriff's Department. Williamson placed a telephone call to the respondent's residence, but he did not know to whom he spoke. Arrangements were made to meet at Victoria Station, a local restaurant and lounge in West Palm Beach, at approximately 4:30 that afternoon. When respondent returned to his residence after school at about 3:00 p.m. on October 17, 1979, Covington and Hutchins were there. They invited respondent to go to Victoria Station with them. Respondent drove back to school to ask a student to fill in for him on a part-time job that evening, and Covington and Hutchins followed respondent in another car. Respondent then left his car at school and rode to Victoria Station with Covington and Hutchins. Covington, Hutchins and respondent arrived at Victoria Station at about 4:00 or 4:30 p.m. on October 17, 1979. Shortly thereafter, agents John Williamson and Jack Maxwell arrived. The five men sat at one table, conversed and ordered several rounds of alcoholic beverages which were made of double strength. It was Hutchins plan to view the money to be used for the cocaine purchase and then place a telephone call to a Mr. Cunningham who was to join them for the purpose of finalizing the location of the transaction. After spending approximately forty-five minutes at the table, agents Maxwell and Williamson took Hutchins across the street to their Sheraton Motel room in order to show him the cash money. Hutchins was shown a briefcase containing some $100,000.00 in cash. He then returned to Victoria Station and placed a phone call to Cunningham. Hutchins left to pick up Cunningham in his car and then returned to Victoria Station with Cunningham. The six men then had discussions as to the location of the transaction. During these conversations, respondent Thomas Abbott offered the use of his house as the location for the exchange of the money for the cocaine. At approximately 8:00 p.m., Hutchins left Victoria Station for another engagement. Agents Maxwell and Williamson returned to their motel room for the purpose of waiting for information as to the location of the final transaction. Respondent Abbott and Covington left Victoria Station with Cunningham and went to Cunningham's apartment. While there, Cunningham made several phone calls. Thereafter, Cunningham drove Covington and respondent to respondent's house and dropped them off. Cunningham then went over to the Sheraton Motel room where final plans were made with agents Maxwell and Williamson for the purchase to occur in Miami. Thereafter several persons, not including the respondent, drove to Miami and completed the purchase and sale of cocaine. Those participants were arrested, and nearly one kilo of 43 percent to 52 percent pure cocaine was confiscated. Agent Williamson returned to the Palm Beach Sheriff's Department during the early morning hours of October 18, 1979. At approximately 4:30 a.m. he placed a telephone call to Mike Abbott in Pensacola for the purpose of obtaining instructions as to how he was to be paid for his part of the transaction. The telephone conversation was recorded on tape. After determining that Mike Abbott expected $7,000.00 for his part of the transaction, Williamson asked Mike Abbott "Do you want me to bring the $7,000.00 to you or do you want me to give it to your brother." "Give it to my brother," was Mike Abbott's response. Later in the same conversation, Williamson told Mike that what he was going to do was "see your brother now, and then I'll lay the seven on him." Mike responded, "Okay, that'll be excellent." After that taped telephone conversation between Williamson and Mike Abbott, law enforcement officers went to the respondent's residence and arrested respondent Thomas Abbott and Robert Covington. Mike Abbott testified that his brother knew nothing about the purchase and sale of cocaine until he was arrested on October 18, 1979. Respondent testified that he knew nothing about the drug deal and that he was too intoxicated to realize what the conversation concerned while in Victoria Station. Agent Maxwell testified that while they all were drinking alcoholic beverages at Victoria Station, respondent appeared to be cognizant of occurring events and conversation. Some three to four weeks after respondent was arrested, he went to the residence of Deputy Sheriff Robert C. Anderson whom he had known since 1969. When Anderson asked him why he had gotten involved in drugs, respondent replied that he thought it was exciting, very professional and that he wanted to be in big money. Respondent went on to describe the excitement of talking of $50,000.00, throwing money around and everybody buying drinks for each other. Anderson and respondent discussed the morality of dealing with drugs and respondent stated that he did not feel it was morally wrong since drugs had been accepted by society. During the same conversation, respondent later told Anderson that the reason be became involved was for his brother. Two administrative officials of the Palm Beach County School Board testified that, in their opinion, respondent's effectiveness as a teacher would be diminished if the charges of conspiracy to sell or traffic cocaine were sustained.

Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: That portion of the "Petition for the Revocation of the Teacher's Certificate" charging that respondent conspired to traffic cocaine in his home on or about October 16, 1979, be DISMISSED; Respondent be found guilty of conspiracy to sell cocaine while drinking in the Victoria Station in West Palm Beach on or about October 17, 1979; The conduct described in paragraph (2) above constitutes gross immorality or an act involving moral turpitude and seriously reduces respondent's effectiveness as an employee of the school board; and Respondent's teaching certificate be revoked for a period of three (3) years. Respectfully submitted and entered this 6th day of March, 1981, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 6th day of March, 1981. COPIES FURNISHED: Craig R. Wilson Ruffolo and Wilson 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Thomas Abbott, Jr. and Thomas Abbott, Sr. Route 9, Box 514D Jasper, Alabama 33501 Robert C. Apgar Peeples, Earl, Smith, Moore and Blank 300 East Park Avenue Post Office Box 1169 Tallahassee, Florida 32302 Juhan Mixon Professional Practices Commission 319 West Madison Street Tallahassee, Florida 32301 Donald L. Griesheimer Executive Director Educational Practices Commission 319 West Madison Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA EDUCATION PRACTICES COMMISSION RALPH D. TURLINGTON COMMISSIONER OF EDUCATION, Petitioner, vs. CASE NO. 81-002-RT DOAH CASE NO. 80-1515 THOMAS H. ABBOTT, Respondent. /

Florida Laws (1) 120.60
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SYNTHIA DIANNE MALLARD vs FLORIDA GULF COAST UNIVERSITY, 00-003843 (2000)
Division of Administrative Hearings, Florida Filed:Jacksonville, Florida Sep. 15, 2000 Number: 00-003843 Latest Update: Aug. 03, 2001

The Issue The issues to be resolved in this proceeding concern whether the Petitioner has been discriminated against by being denied adequate training and being dismissed from her employment for reasons of her race (African-American).

Findings Of Fact The Florida Gulf Coast University (Gulf Coast) operated in Tallahassee, Florida at times pertinent hereto, for the purpose of improving teaching and learning in the area of environmental education in the public schools as well as community colleges and universities. Dr. Kathleen Shea Abrams served as the Director of the Office of Environmental Education (OEE) from October 1990 until the office closed in July of 2000. She was responsible for making OEE employment decisions in conformance with Gulf Coast's hiring approval procedures. Dr. Abrams, as Director, was responsible for organizing a hiring committee and interviewing candidates for the vacant office assistant position. With approval from Gulf Coast and the hiring committee Dr. Abrams selected Synthia Dianne Mallard, the Petitioner, for the position on August 14, 1996. Pursuant to the position description for the office assistant position, Ms. Mallard would be required to prepare routine correspondence, reports, requisitions, invoices, travel documents, etcetera, as well as answer the telephone and provide information for routine questions and make referrals as appropriate. She was required to screen calls and perform other assigned duties and was required to possess the knowledge, skills and ability to produce grammatically correct, oral and written work products. Following her employment, Ms. Mallard was provided with information regarding OEE telephone procedures. The written procedural guidelines expressly set forth the information to be obtained when taking a message. Dr. Abrams requested Tara Johnson, an African-American student clerical assistant who was working for the OEE, to provide training to Ms. Mallard. Training was based upon the office procedural manual which outlined requirements for completing university forms, described the mail pick-up and delivery process, discussed operation of the office telephone systems and other relevant matters. Dr. Abrams also met with Ms. Mallard several times a week for five to ten minutes or more to communicate work requests and provide brief written instructions and information to her. During these meetings Dr. Abrams recommended several times that Ms. Mallard review portions of the procedural manual and refer to it as she carried out her work. At the time that Ms. Mallard joined the OEE, a set of computer-generated address labels were available to be affixed to envelopes for daily courier pick-up and delivery to Gulf Coast. As the supply ran low, Dr. Abrams requested that Ms. Mallard print new ones. Since Ms. Mallard explained that she did not know how to print labels, Dr. Abrams allowed her to write labels by hand. The handwritten labels printed by Ms. Mallard, however, did not follow the same format as the computer-printed ones and improperly included the office's return address. As a result an envelope was returned to the office by courier who misread the return address as the primary address. Dr. Abrams instructed Ms. Mallard to omit the return address thereafter and wrote a sample label for Ms. Mallard to follow. Despite these efforts, Dr. Abrams was forced to speak to Ms. Mallard on several additional occasions about this subject as she continued to improperly address the mail. In preparing correspondence, Dr. Abrams would write out letters long-hand and deliver these to Ms. Mallard for typing. Through this process, Dr. Abrams discovered that Ms. Mallard was unfamiliar with the proper format for business letters or memoranda. After returning several drafts of letters because of errors in spacing, margins, and capitalization, Dr. Abrams advised Ms. Mallard to refer to examples of business letters from existing files and use them as models. Ms. Mallard required additional instruction on how to use the office typewriter. Dr. Abrams stated to Ms. Mallard at one point that she appeared to have over-estimated her clerical skills and computer training. She asked Ms. Mallard to establish a weekly goal of mastering one new skill a week. In order to achieve this goal, Ms. Mallard received computer instructions from Tara Johnson and other staff members including Dr. Robert Raze. Ms. Mallard cautioned Dr. Abrams, however, that the expectation "to master" the skills might be too high. As part of her duties, Ms. Mallard was asked to inventory and organize an office supply cabinet consisting of four shelves of supplies. Although Dr. Abrams estimated that the task should take a maximum of three to four hours to complete, Ms. Mallard did not finish the job until several weeks later. After several weeks, Dr. Abrams arrived at the conclusion that Ms. Mallard lacked important secretarial skills and would be unable to consistently produce a quality work product. Determining that Ms. Mallard would be unable to elevate her skills to an acceptable level, Dr. Abrams requested Ms. Mallard's termination as an employee by correspondence dated December 2, 1996. In addition to the performance deficiencies that Dr. Abrams observed personally, she also received complaints concerning the Petitioner's performance from other employees. Dr. Raze was hired by Dr. Abrams in 1991, and served as a "Coordinator," a senior professional position at the OEE. Dr. Raze experienced difficulty in receiving complete and accurate telephone messages from the Petitioner. Dr. Raze advised Dr. Abrams that Ms. Mallard had failed to obtain basic information such as the complete correct name of the individual calling, the entity which the individual represented, the purpose of the call and the return phone number on certain messages. Shannon Guillemette, another employee, reported an incident where she missed an important return telephone call because of Ms. Mallard's failure to answer incoming office telephone calls in accordance with her job description. Ms. Guillemette advised that similar incidents occurred in the past as well. These complaints were received by Dr. Abrams in the ordinary course of business as the Director of the office. The Petitioner prepared correspondence dated December 11, 1996, to Steven Belcher, Director of Human Resources at Gulf Coast in response to the letter from Dr. Abrams requesting her termination. The Petitioner's, correspondence in response to the termination letter itself contained numerous errors in grammar, spelling and punctuation, which were consistent with the deficiencies earlier identified by Dr. Abrams in the Petitioner's job performance. In December of 1996, the Petitioner was terminated from her employment position. The Respondent, through its witnesses and exhibits, has established that legitimate business reasons existed for that termination. The proven reason for Ms. Mallard's termination from employment was "poor job performance." When Ms. Mallard was terminated from the OEE, the office employed a total of nine individuals. Five of those individuals were African-American and four were non-minority. The Petitioner, Ms. Mallard, is an African-American and so is Dr. Raze. Dr. Abrams is a non-minority and is responsible for the decision to both offer employment and to hire Ms. Mallard as well as the decision to terminate her. Dr. Raze observed no instances of racial discrimination in the operation of the OEE from the time he was first hired in September 1991 through the closing of the office in July of 2000. The Petitioner failed to introduce any testimony or evidence corroborating her charge of racial discrimination.

Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations determining that the Petition for Relief filed by Synthia Dianne Mallard be denied and that this cause be dismissed. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 2nd day of February, 2001. COPIES FURNISHED: Synthia Dianne Mallard 1205 West 6th Street, Apartment 2 Jacksonville, Florida 32209 Robert C. Shearman, Esquire Henderson, Franklin, Starnes & Holt Post office Box 280 Fort Myers, Florida 33902 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149

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CAROL MANZARO vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 05-000685 (2005)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Feb. 23, 2005 Number: 05-000685 Latest Update: Nov. 07, 2005

The Issue The threshold issue in this case is whether Petitioner's claim is time-barred for failure to timely file an initial charge of discrimination with the Florida Commission on Human Relations. If Petitioner's claim were timely, then the question would be whether Respondent unlawfully discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.

Findings Of Fact From April 4, 1998 until May 22, 2003, Petitioner Carol Manzaro ("Manzaro") worked for Respondent Department of Children and Family Services ("DCF") as an Inspector Specialist I (essentially, an investigator) in the Office of the Inspector General ("OIG"). Manzaro's duty station was at a satellite office located in Riviera Beach, Florida. Her supervisor was Richard Scholtz, who was based in the OIG's Fort Lauderdale field office. In October 2002, Sheryl Steckler became DCF's Inspector General. Shortly after assuming this position, Ms. Steckler hired Tom Busch as Chief of Investigations. Mr. Busch was responsible for, among other things, overseeing the OIG's field office in Fort Lauderdale and the satellite office in Riviera Beach. Ms. Steckler and Mr. Busch worked at offices in Tallahassee. In late December 2002, Mr. Busch called Manzaro and reprimanded her for sending an e-mail that Ms. Steckler felt was inappropriate. Manzaro believes that the reprimand was unwarranted and demonstrates that she was being singled out (or set up), but the evidence regarding this particular incident is much too sketchy for the undersigned to make such a finding. In January 2003, Manzaro and Louis Consagra, another inspector who worked in the Riviera Beach satellite office, were directed to attend a meeting in Fort Lauderdale, which they did. After they arrived, their immediate supervisor Mr. Scholz, recently back from a trip to Tallahassee, told the two that Mr. Busch had said to him, "Sometimes when you get older, you miss a step." Mr. Scholz further related that Mr. Busch had announced that "changes w[ould] be made." Mr. Scholz warned them that "they are looking to fire people," and that he (Scholz) would fire people to protect himself if need be. The three (Manzaro, Consagra, and Scholz) then met with Mr. Busch, who had traveled to Fort Lauderdale to see them. Mr. Busch informed them that he had just fired an inspector who worked in Fort Lauderdale, and that Ms. Steckler planned to close the Riviera Beach satellite office by June or July of 2003, at which time Manzaro and Mr. Consagra would be reassigned to the Fort Lauderdale field office. Manzaro, who was then 55 years old, decided at that moment it was time to start looking for a new job. Immediately upon returning to Riviera Beach, she began making phone calls to that end. Manzaro claims that for some weeks thereafter she received "haranguing" phone calls from Mr. Busch, who deprecated her abilities and was rude and patronizing. The undersigned credits Manzaro's testimony in this regard (which was not rebutted), but deems it insufficient to support an inference that Mr. Busch was critical of Manzaro because she was over the age of 40.1 Mr. Busch's telephone calls caused Manzaro to see (in her words) the "handwriting on the wall"; by this time, she "knew" her employment would be terminated. In March 2003, Manzaro's co-worker, Mr. Consagra, was fired. Around this time——it is not clear when——Manzaro was given a below-average performance evaluation.2 Not long after that, by letter dated April 18, 2003, Manzaro was notified of her appointment to the job of Economic Self Sufficiency Specialist I with DCF's District Nine, a position which Manzaro had sought.3 By accepting this appointment, she could continue working for DCF in Palm Beach County, albeit at a lower salary than she was earning as an inspector for the OIG. She decided to take the job. Manzaro resigned her position with the OIG via a Memorandum to Ms. Steckler dated April 18, 2003. In pertinent part, Manzaro wrote: I would first like to thank you for the opportunity to serve the Department and Office of Inspector General and for the opportunity to find other employment within the Department. At this time, familial and financial responsibilities preclude my traveling to the proposed new duty location in Ft. Lauderdale. As you will see from the attached letter, I have accepted a position with Economic Self Sufficiency effective May 23, 2003. With your permission, I would like to complete writing the three cases I presently have open and commence annual leave on May 5 through May 22, 2003. On or about May 27, 2003, Manzaro started working at her new job for DCF. On July 12, 2003, Manzaro received some paperwork that had been sent to her accidentally, which revealed that her replacement in the OIG was younger than she, and also was being paid more than she had earned as an investigator. Manzaro claims that it was then she discovered that she had been the victim of age discrimination, absent which she would not have been "involuntarily demoted" to the position of Economic Self Sufficiency Specialist I. Ultimate Factual Determinations Manzaro's theory is that she was forced to resign her position in the OIG by the threat of termination, which caused her to seek and ultimately accept other, less remunerative employment with DCF. Manzaro describes the net effect of her job-switch as an "involuntary demotion" and charges that DCF "demoted" her because she was over the age of 40. Manzaro testified unequivocally, and the undersigned has found, that during a meeting in Fort Lauderdale in January 2003 (the one where Mr. Busch had informed Manzaro and her colleagues that the Riviera Beach satellite office would be closed), Manzaro had made up her mind to look for another job. This means that the untoward pressure allegedly used by DCF to force Manzaro's resignation had achieved its purpose by January 31, 2003, at the latest.4 Therefore, if the alleged discrimination against Manzaro were a discrete act——which is, at least implicitly, how Manzaro views the matter——then the discrete act apparently occurred on or before January 31, 2003.5 Assuming, for argument's sake, that DCF did in fact force Manzaro to decide, in January 2003, to resign her position as an inspector, then the pressure that DCF exerted on Manzaro consisted of: (a) a verbal reprimand regarding an e-mail; (b) Mr. Busch's comment (reported via Mr. Scholz) that age sometimes causes one to "miss a step"; (c) Mr. Scholz's warning that people would be fired; (d) the firing of a Fort Lauderdale-based inspector; and (e) the announcement that the Riviera Beach satellite office would be closed. Assuming for argument's sake that the foregoing circumstances amounted to discriminatory coercion, the undersigned determines that Manzaro should have known, when she succumbed to the threat of termination and involuntarily decided to resign, that she might possibly be a victim of age discrimination.6 The undersigned comes to this conclusion primarily because Mr. Busch's comment about older people sometimes missing a step is the strongest (if not the only) hint of age discrimination in this record.7 The significance of the previous finding is that, if the discrimination consisted of the discrete act of demotion (as Manzaro urges), then the 365-day period within which a charge of discrimination must be filed with the FCHR began to run on Manzaro's claim no later than January 31, 2003, by which time she was on notice of the allegedly discriminatory act.8 Because Manzaro's charge of discrimination was not filed with the FCHR until June 10, 2004, it is clear that, as a claim involving a discrete act of discrimination, Manzaro's charge was untimely. Putting aside the question whether Manzaro's case is time-barred, it is further determined that, in any event, Manzaro did not suffer an "adverse employment action." The undersigned is not persuaded that Manzaro was forced to take another job, as she now contends. Rather, the greater weight of the evidence establishes that Manzaro elected voluntarily to seek other employment after learning that her duty station was being moved to Fort Lauderdale and developing concerns about her job security in light of new management's efforts to weed out employees it viewed as under-performers. Ultimately, it is determined that DCF did not discriminate unlawfully against Manzaro on the basis of her age.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Manzaro's Petition for Relief as time-barred, or alternatively finding DCF not liable for age discrimination. DONE AND ENTERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 13th day of September, 2005.

Florida Laws (3) 120.569120.57760.11
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LABRENTAE B. CLAYBRONE vs DAVID COSTA ENTERPRISES, INC., D/B/A MCDONALD'S, 16-004118 (2016)
Division of Administrative Hearings, Florida Filed:Destin, Florida Jul. 21, 2016 Number: 16-004118 Latest Update: Jan. 06, 2017

The Issue Whether Respondent, David Costa Enterprises, Inc., d/b/a McDonald’s (“Costa Enterprises”), discriminated against Petitioner, Labrentae B. Claybrone, in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?

Findings Of Fact Mr. Claybrone is an African-American male, approximately 25 years of age. He resides in Fort Walton Beach, Florida, with his mother. At all times relevant to this proceeding, Mr. Claybrone was working at one or another of the 21 McDonald’s restaurants operated by Costa Enterprises. Mr. Claybrone presents as a somewhat effeminate person, with braided, colored hair, earrings, polished fingernails, etc. He admits to being either gay or bisexual despite being married to-–but not living with-–a woman. In his Petition for Relief filed at FCHR, Mr. Claybrone refers to humiliation being imposed on him due to his “transgender and sexual orientation.” In March 2015, Mr. Claybrone was hired as a shift worker at the McDonald’s restaurant located inside the WalMart in Destin, Florida (hereinafter the “WalMart McDonald’s”). He had been hired by the general manager of that store, Ligaya Mumford. Mr. Claybrone did not at any time discuss his sexual orientation with his employer or other store personnel. On or around April 28, 2015, Mr. Claybrone thought he heard the general manager, Mrs. Mumford, refer to him as “ma’am.” He said that Mrs. Mumford also made comments about the way he walked and talked and that he reminded her of a female. Mrs. Mumford, whose testimony under oath at final hearing was entirely credible, denies making any such comments to Mr. Claybrone. Rather, Mrs. Mumford remembers talking to a young female employee on that day as they stood at the grill in the restaurant. The young lady was very respectful and always called Mrs. Mumford “ma’am,” so Mrs. Mumford had responded to the employee in kind, calling her “ma’am” as well. Mrs. Mumford believes Mr. Claybrone mistakenly believed she was referring to him when in fact she was not. As to the other comments Mr. Claybrone testified about, Mrs. Mumford categorically denied making them at all. When Mr. Claybrone went home that night and told his mother what he thought had happened, his mother insisted he complain about the comments. Mr. Claybrone says that his mother immediately called Roza Atanasova, general manager of the WalMart McDonald’s and another store known as the Destin McDonald’s. By virtue of her position as general manager, Ms. Atanasova was Mrs. Mumford’s supervisor. Ellie Montero, shift manager at the Destin McDonald’s, later notified Mrs. Mumford that Mr. Claybrone’s mother had called Ms. Atanasova with a complaint. Mrs. Mumford attempted to call Mr. Claybrone and sent him texts asking Mr. Claybrone to call her. He intentionally ignored the calls and texts because he did not want to talk to Mrs. Mumford. When Mr. Claybrone came to work for his next assigned shift, Mrs. Mumford apologized to him for the comment he (thought he) had heard. According to Mrs. Mumford, Mr. Claybrone was a good employee and never gave anyone trouble. He was kind to the customers and worked hard. She had absolutely no problem with Mr. Claybrone being one of her shift workers. Mrs. Mumford is one of Costa Enterprises’ most dependable, respected, and admired workers. She has received numerous citations and awards relating to her work ethics and skills. She is known to help employees in need, lending them her car, loaning money, and providing other assistance. Within a week after the misunderstanding with Mrs. Mumford, Mr. Claybrone heard that another co-employee, Ken Hislop, had mentioned to a fellow worker that he (Hislop) was surprised to hear that Mr. Claybrone had a child because Mr. Hislop presumed Mr. Claybrone was gay. Mr. Hislop cannot fully remember making the comment, but he meant nothing negative about Mr. Claybrone, it was just an observation. When he was advised that Mr. Claybrone was offended, Mr. Hislop offered an apology. He did not feel like the apology was accepted by Mr. Claybrone. Mr. Claybrone did not feel like the apology was sincere. Mr. Claybrone said that he was uncomfortable working with Mrs. Mumford and Mr. Hislop after the alleged slurs. At some point, it was mutually agreed by Mr. Claybrone and Costa Enterprises that Mr. Claybrone would be transferred to a different store, the Destin McDonald’s. Mr. Claybrone was transferred to the Destin McDonald’s and was, at first, a dependable worker. Then he began to be tardy and to miss his shifts, even though the Destin McDonald’s was closer to his home than the WalMart McDonald’s had been. After a while, Mr. Claybrone’s supervisor reduced his weekly hours in an effort to motivate him to do better about his attendance. Mr. Claybrone took offense to the reduction in hours and, after clocking in one day, immediately clocked out, left the store as he cursed loudly, and did not return. Mr. Claybrone effectively abandoned his position. Meanwhile, Mr. Claybrone filed a complaint with the Florida Commission on Human Relations, which ultimately led to the instant action at DOAH. Mr. Claybrone admitted that the alleged discriminatory events all transpired within a few days, no longer than a week in duration.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Costa Enterprises, Inc., d/b/a McDonald’s, did not discriminate against Labrentae B. Claybrone. DONE AND ENTERED this 21st day of October, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2016.

USC (1) 42 U.S.C 12111 Florida Laws (7) 120.569120.57120.68760.01760.02760.10760.11
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JIM HORNE, AS COMMISSIONER OF EDUCATION vs SUE ABREU, 05-001016PL (2005)
Division of Administrative Hearings, Florida Filed:Port St. Joe, Florida Mar. 21, 2005 Number: 05-001016PL Latest Update: Feb. 25, 2025
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