The Issue The issue is whether Respondents should have an administrative penalty assessed, take corrective action on their property to remove fill, and pay investigative expenses for the reasons stated in the Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice) issued by the Department of Environmental Protection (Department) on July 5, 2017.
Findings Of Fact Respondents’ residence is located at 3100 Victoria Drive, St. Augustine. The property, purchased in 2009, faces Victoria Drive to the west. The high point of the lot is where it abuts the street. It then slopes downward to a small creek which lies at the rear of the parcel. The largest elevation drop is at the front of the property. The Department has the authority to institute a civil or administrative action to abate conditions that may create harm to the environment. In this case, it filed a Notice directed against Respondents for allegedly placing fill on 0.11 acres of jurisdictional wetlands (around 5,000 square feet) located on their property. Mr. Ravan admits that he placed fill on his property without a permit, but he disputes the Department’s assertion that the filled area covers 0.11 acres of wetlands. Wetlands are areas that are inundated and saturated with water for a long enough period of time to support vegetation that can adapt to that environment. Fla. Admin. Code R. 62- 340.200(1). If the landward extent of a wetland cannot be determined by direct application of the rule definition, i.e., without significant on-site work, field verification using the wetland delineation methodology in Florida Administrative Code Rule 62-340.300 is required. Field verification involves a visual inspection of the site to evaluate vegetation, soil conditions, and other hydrologic indicators on the property. If two of these characteristics are found, the Department identifies the area as a wetland. In this case, field verification was necessary. In 2016, Mr. Ravan was involved in a dispute with a neighbor whose dog was repeatedly “messing” in his backyard. After words were spoken by the two, Mr. Ravan believes the neighbor informed the County that Mr. Ravan was placing fill in his back yard. This assumption probably is true, as emails from the County to the Department state that the case arose a few days later as a result of a “citizen complaint.” Pet’r Ex. 18. After receiving the citizen complaint, a County employee visited Respondents’ property. The employee informed Mr. Ravan that fill material (dirt) had been placed on jurisdictional wetlands without a permit. A few days later, the County reported the alleged violation to the Department. In response to the County’s referral, in September 2016, Ms. Sellers, a Department Environmental Specialist III, inspected the property with a County representative. In preparation for her visit, she reviewed aerials of the property to determine the elevation of the area, reviewed soil mapping layers, and drove around the site to verify the drainage patterns on the property and whether it had any connections to a water body. During her inspection, Ms. Sellers performed “a good analysis of the property” and took photographs of the filled area. The results of her inspection are found in a Chapter 62- 340 Data Form accepted in evidence as Exhibit 17. It supports a finding that the filled area consists of wetlands and covers around 0.11 acres. Respondents submitted no contrary evidence. After her inspection, Ms. Sellers informed Mr. Ravan that he must remove the fill. The Notice was issued on July 5, 2017. On a follow-up visit a year after her initial inspection, Ms. Sellers observed that some of the fill piles had been removed, the remaining fill had been spread throughout the area, and some of the vegetation observed in September 2016 was now covered. In a visit a few weeks before the final hearing in April 2018, Ms. Sellers observed that some fill still remained. To comply with the law, Mr. Ravan must remove the fill, obtain a permit, or enter into a consent order. If a permit is obtained, besides the cost of the permit ($420.00), Mr. Ravan would have to offset the environmental impacts by purchasing a mitigation bank credit, an expensive undertaking. If the fill is removed, it must be extracted with a small device, such as a wheelbarrow or other small piece of equipment, as a vehicle cannot be driven into the backyard. This will be a tedious and time-consuming process. The Department’s preferred option is to remove the fill. Because of the slope of the lot, mainly at the front of the parcel, Mr. Ravan has experienced drainage problems since he purchased the home in 2009. The drainage problem is caused by a County-owned culvert that runs along Victoria Drive, stops at the corner of his lot, and then dumps the runoff into his yard. Despite Mr. Ravan’s repeated efforts to obtain relief, the County has refused to correct the problem. During heavy rain events, the blocked culvert overflows into his yard and runs down the side of his property to the rear of the lot. Photographs support Mr. Ravan’s claim that the drainage problem has caused severe erosion on his property. Mr. Ravan testified that some of the fill was in place when he purchased the property from the prior owner in 2009. Because of its age, he contends the fill should be “grandfathered.” However, Ms. Sellers established that “historic fill” must be at least 20 years old in order to be immune from enforcement action. In this case, there is no proof that the fill qualifies for this exception. Mr. Ravan has cooperated fully with the Department throughout this proceeding. The evidence shows that Mr. Ravan acted in good faith and is only attempting to prevent runoff from the culvert, which has resulted in deep channels in the side and rear of his yard and washed away much of the top soil. There is no evidence regarding the derivation of the Department’s “investigative expenses” of at least $500.00. At hearing, Ms. Sellers summarized the proposed corrective action. This is a reasonable corrective action.1/ Mr. Ravan disputes her assertion that in some areas of the backyard, up to two feet of fill must be removed. He contends that if two feet of soil is removed, the water table would be reached. However, this issue must be resolved during the corrective action process.
The Issue The issue is whether Respondent, Scott Rhodes, should be terminated from employment with Petitioner, City of Clearwater (City), for violating City policies as alleged in the City's Termination and Dismissal Notice dated February 16, 2018.
Findings Of Fact Parties and Jurisdiction The City is a government employer governed by a City Council. A City Manager oversees the City’s operations. Pursuant to the Code of Ordinances of the City of Clearwater (City Code), the Clearwater Civil Service Board has adopted policies and rules regulating all aspects of the civil service employee positions within the City.1/ Mr. Rhodes began his employment with the City as a Solid Waste worker on September 6, 2004. He worked in the same position until his termination effective February 20, 2018. Approximately 85 percent of the current Solid Waste staff is African-American. Mr. Rhodes describes himself as “white” and “not black.” At all times relevant, Mr. Rhodes’ supervisor was Joseph Farrar, who is Caucasian. Mr. Farrar’s ultimate supervisor is Earl Gloster, an African-American. Mr. Gloster is the department head of Solid Waste and reports directly to the City Manager. Mr. Rhodes’ Disciplinary History Prior to his termination, Mr. Rhodes had been involved in a number of incidents with co-workers requiring counseling or discipline. In late November 2011 and early 2012, Mr. Rhodes reported he was being harassed by a co-worker in Solid Waste, Feth Benbelgacem. His complaint was investigated by the City’s HR Department and a report was issued. Although the City found Mr. Benbelgacem had violated the City’s Workplace Violence Policy, the report concluded: No one was able to corroborate the specific claim that Mr. Rhodes made that Mr. Benbelgacem [threatened him]. A number of those interviewed feel that Mr. Rhodes has animosity because Mr. Benbelgacem is permitted to operate the equipment which causes Mr. Rhodes to “nitpick” Mr. Benbelgacem’s work performance, thereby instigating their interaction. This behavior on the part of Mr. Rhodes has been reported to the supervisors and although Mr. Rhodes has been directed to cease the behavior and worry about himself, the behavior allegedly continues. * * * Although Mr. Rhodes has been instructed by his supervisors to stop delegating and criticizing tasks relating to Mr. Benbelgacem, the behavior seems to continue and should it not stop, the supervisor should address it through the Performance and Behavior Process. In November 2016, Mr. Farrar issued Respondent a coaching and counseling form for “violence in the workplace” based on a verbal altercation Mr. Rhodes had with an African-American co-worker. The form signed by Mr. Rhodes states: Outcome of Meeting: Mr. Rhodes understands that verbal misconduct is as serious as physical conduct. Verbal attacks can lead to physical confrontations just as this situation did. In the future, verbal attacks on a co-worker’s family or loved ones will not be tolerated. At some point after the November 2016 counseling, when someone did something he did not like, Mr. Rhodes would either tell that person that he was going to give that person a specific number of lashes or he would direct a co-worker to distribute a specific number of lashes to that person. Mr. Rhodes also told his co-workers to “kiss the ring,” implying they were subservient to him. Mr. Rhodes would talk about certain co-workers being on his “hit list.” When asked who was on his “hit list,” Mr. Rhodes named the same African-American co-worker involved in the November 2016 incident. In early 2017, Mr. Farrar overheard Mr. Rhodes saying he would give certain co-workers lashes. Mr. Farrar believed these comments were inappropriate and could have been interpreted as racially offensive. He also overheard Mr. Rhodes talking about his “list.” As a result, Mr. Farrar met with Mr. Rhodes and instructed him to stop making such remarks. Although Mr. Farrar did not specifically tell Mr. Rhodes these comments violated any specific policy, he did tell Mr. Rhodes “that he needed to watch what he was saying around newer people because they might not know how to take it the way people that had been around him do.” At the final hearing, Mr. Rhodes admitted he told other employees he would give them lashes, they were on his hit list, and they should kiss the ring, but claimed he was joking. In April 2017, Mr. Farrar placed Mr. Rhodes on a “Development Plan” after repeatedly being warned by Mr. Farrar about failing to properly clock in and out, and accruing unauthorized overtime. The Development Plan was to remain in effect from April 28 to October 28, 2017, and required Mr. Rhodes to meet personally with Mr. Farrar on “Payday” Fridays and comply with the City’s timeclock regulations. Mr. Rhodes defied orders to meet with Mr. Farrar and otherwise failed to adhere to the Development Plan. As a result, Mr. Rhodes received a one-day suspension (referred to as a “decision-making leave day”) and was referred to the Employee Assistance Program. The Development Plan was also revised and extended to remain in effect until March 2018. Meanwhile, Mr. Rhodes continued to make the same type of inappropriate remarks referring to “lashes” and the “hit list.” In October or November 2017, Mr. Farrar had a second meeting with Mr. Rhodes and again instructed him to stop making these types of remarks. The Terminating Incident On January 17, 2018, Mr. Farrar received a complaint from Allan Craig, an African-American Solid Waste worker, that Mr. Rhodes claimed he was the “emperor of all black people.” According to Mr. Farrar, Mr. Craig reported the incident just after it was made and was visibly shocked. Mr. Farrar referred the incident to the City’s Office of Diversity and Equity Services (“ODES”), a division within the HR department tasked with handling and investigating complaints of the City’s anti-discrimination policies, as well as potential employee violations of state and federal employment laws. Mr. Craig testified that on the day in question, Mr. Rhodes did not like something an African-American co-worker said. In turn, Mr. Rhodes told Mr. Craig to give this co-worker “50 lashes,” which Mr. Craig understood to be a whipping. Mr. Craig, said, “no, we [have] to stick together.” It is unclear to whom Mr. Craig is referring when he said “we”--“Solid Waste workers” or “African-Americans.” Regardless, in response, Mr. Rhodes made the statement, “I’m the emperor of black people.” Mr. Craig did not respond, but instead immediately left the worksite to report the comment to Mr. Farrar. Although Mr. Rhodes corroborates Mr. Craig’s version of events, he disputes saying “I’m the emperor of black people.” Instead he claims he told Mr. Craig “I am the emperor of Solid Waste”; and after Mr. Craig said, “no, we [have] to stick together,” Mr. Rhodes replied, “Allan, even black people have to answer to somebody.” Mr. Rhodes saying, “I’m the emperor of black people” is more believable than him saying “Allan, even black people have to answer to somebody.” The undersigned rejects Mr. Rhodes’ version of events for a number of reasons.2/ First, Mr. Rhodes statements do not seem to flow naturally. Second, Mr. Craig’s demeanor was more credible, and his version of the facts leading up to the “emperor” statement was consistent with the testimony of the other witnesses. Moreover, Mr. Deris, the ODES investigator, testified that Mr. Rhodes admitted to making the statement, “I am the emperor of black people” when questioned during the investigation. Mr. Gloster testified that during the pre-termination meeting he had with Mr. Rhodes, “I asked him specifically as to the comment that was made . . . that he was the emperor over all black people, and he said, yes, that he said it.” Even assuming Mr. Rhodes’ version is correct, it is equally offensive; it still implies African-Americans at Solid Waste need to answer to him. Based on the competent and credible evidence, the undersigned finds that Mr. Rhodes made the statement, “I am the emperor of black people,” and this statement was reasonably offensive to Mr. Craig. Grounds for Dismissal Based on the ODES investigation and after meeting with Mr. Rhodes, Mr. Gloster made the decision to terminate Petitioner. Thereafter, the City issued the Dismissal Notice citing numerous violations of City policy and regulations: City Policy 3201.2, Equal Employment Opportunity Policies (EEO); City Policy 3704.1, Workplace Violence Prevention Policy; and Relevant portions of the City’s Performance and Behavior Management Program Manual (PBMP), which set standards for City workers in the areas of personal responsibility, excellence, and integrity. Chapter 13, section 3, of the Civil Service Board Rules and Regulations outlines the grounds for discipline, including terminations. That section provides in pertinent part: Reasons for Suspension, Demotion, and Dismissal--Whenever practical, employees will be given reasonable opportunity to bring their performance and/or behavior up to acceptable standards pursuant to the procedures and rules of the City’s performance and behavior management programs. However, employees may be subject to disciplinary action up to and including immediate dismissal for the following acts, including but not limited to specifically cited examples: * * * (e) Commitment of a flagrant offense, including harassment or discrimination or abusive conduct or language toward coworkers, City officers, or the public. * * * (l) Failure to conform to the dictates of corrective action, including but not limited to failure or inability to comply with an agreed-upon “development plan,” or when the City believes that an employee is willful in refusing to adhere to establish rules, regulations, or guidelines. (emphasis added). Violation of EEO Policy The City’s EEO policy states in relevant part: It is the policy of the City of Clearwater that no person shall be unlawfully discriminated against with regard to recruitment, selection, appointment, training, promotion, retention, discipline or other aspects of employment because of any consideration of race, color, religion, national origin, age, disability, marital status, or gender (including conditions of pregnancy and sexual harassment), or genetic or family medical history information as defined by the Genetic Information Nondiscrimination Act. Mr. Rhodes’ “lashes” comments could reasonably be interpreted as a reference to slavery, and be racially offensive to African-American (and other) employees. As such, Mr. Rhodes continued references to “lashes,” even after being warned, violated the City’s EEO policy. Mr. Rhodes statement that he, a white person, was the “emperor of black people” clearly violates the City’s EEO policy. Violation of the City’s Workplace Violence Prevention Policy The City’s Workplace Violence Prevention Policy states in relevant part: Policy: The City of Clearwater will not tolerate violence, threats, harassment, intimidation, and other disruptive behavior in our workplace [.] All reports of incidents will be taken seriously and will be dealt with appropriately. Individuals who commit such acts may be removed from the premises and may be subject to disciplinary action, criminal penalties, or both. Definitions: Workplace violence is any physical assault, threatening behavior, or verbal abuse occurring in the workplace. Such behavior can include oral or written statements, gestures, or expressions that communicate a direct or indirect threat of physical harm. Although there was no evidence anyone believed Mr. Rhodes’ “lashes” or “hit-list” statements were real threats of violence, these statements could be considered a form of intimidation, disruptive behavior, and verbal abuse under the policy. These comments, however, when taken in the context of Respondent’s history of verbal altercations with co-workers, and coupled with the fact he was told that these statements may be misinterpreted, constitute violations of the City’s Workplace Violence Prevention Policy. Violation of the City’s Employee Standards The PBMP contains the following relevant standards and instructions: INTEGRITY STANDARDS The following standards represent Integrity issues of such a serious nature that immediate formal discipline, up to and including termination, may be recommended. Violation of the City Workplace Violence Policy. Violation of the City Equal Employment Opportunity (EEO) Policy. * * * EXCELLENCE STANDARDS We will present a professional image through actions, dress, speech and behavior. We will strive for excellence and continuously learn and make improvements. We will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes. Again, Mr. Rhodes’ statements described above when considered cumulatively and in context clearly violate the standards for employee integrity. Mr. Rhodes’ continued use of these comments, even after being repeatedly counseled, violates the standards for professional image through actions and speech; continuously learning and improving; and modifying behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Dismissal Notice are sustained, and that Respondent be terminated as a City employee. DONE AND ENTERED this 6th day of September, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 6th day of September, 2018.
The Issue The issue is whether Petitioner has been the subject of an unlawful employment practice pursuant to Chapter 760, Florida Statutes.
Findings Of Fact Respondent is a municipal corporation under the laws of the State of Florida. It provides many public services to its citizens, including the provision of beautification on city rights-of-way and parks. The City's Public Works Department operates the Crestview Beautification Crew (CBC) that provides maintenance for public areas. Mr. McLaughlin is an African-American. He applied for a position as an equipment operator with the CBC in May 2007. The Assistant Director of Public Works, Wayne Steele, a Caucasian man, interviewed Mr. McLaughlin. Mr. Steele also made inquiry and learned that Mr. McLaughlin had some negative experiences with his driver's license. Mr. Steele also learned that Mr. McLaughlin had attendance and attitude problems at his previous place of employment. Mr. Steele believed that Mr. McLaughlin would not be a good hire and recommended that he not be employed. Despite the recommendation, General Cox, a Caucasian man and the City of Crestview Director of Public Works, decided to hire Mr. McLaughlin. Mr. Cox believed Mr. McLaughlin should be given a second chance. Mr. McLaughlin commenced employment with the City's CBC on June 20, 2007. He was initially hired on a probationary basis for 90 days just like all City employees. During the probationary period an employee's supervisor is given the opportunity to observe his or her performance. If the performance is deficient, the supervisor may terminate the employee. An employee terminated during a probationary period has no right to contest the action at a hearing. Mr. McLaughlin was provided a copy of the City's personnel manual and signed a statement affirming that he understood the conditions of his probationary employment. Because of his history of attendance problems at his previous job, Mr. McLaughlin was expressly advised by Mr. Vance, his supervisor, that tardiness would not be tolerated. Mr. McLaughlin was hired as an equipment operator and as such mowed grass, operated a weed eater, and engaged in basic landscaping tasks. At daily meetings held at 7:00 a.m., crew assignments in the CBC are made. It is important for all CBC members to be present at these meetings so that everyone is aware of their daily mission. Attendance is critical during these meetings. If employees are absent the daily routine is disrupted and substitutions must be made. Mr. McLaughlin was tardy on a number of occasions. This tardiness amounted to simply arriving a few minutes late for the crew meeting. On at least two occasions, he called in saying that he could not attend work as scheduled. Mr. McLaughlin also had problems performing his duties. He was rough on his assigned equipment which resulted in a damaged mower deck, broken belts, and broken wheels. The damage occurred because he mowed over objects and struck objects with his mower that he should have bypassed. Mr. McLaughlin presented no evidence that another similarly situated person of a different race was treated differently from him. The only asserted evidence of discrimination came from his conversations with a co-equal worker and friend, and the language they used with one another indicated that any racial slurs made, if they were in fact made, were made as permissible jests. Mr. McLaughlin never complained of racial bias to his superiors. A crew leader with whom he worked, Kenneth Martin, an African-American, stated that he never heard any racial remarks made in the presence of Mr. McLaughlin and noted that Mr. McLaughlin never complained to him about any real or imagined discrimination. All supervisors in Mr. McLaughlin's chain of command agreed with the decision to terminate him on August 8, 2008. The decision was made because of Mr. McLaughlin's pattern of tardiness and because of his poor performance while operating the equipment. The record is void of any evidence of racial discrimination against Mr. McLaughlin by any employee of the City.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief filed by Patrick McLaughlin. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 March, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jason Eric Vail, Esquire Allen, Norton & Blue 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Patrick McLaughlin 748 Amos Street Crestview, Florida 32539 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: An Overview of Petitioner's Employment with the District Petitioner was employed by the District from June of 1988, until his termination, which was effective January 14, 1992. Prior to his termination he had an unblemished disciplinary record. Petitioner was initially hired by the District as a Construction Representative. In January of 1989, he assumed the duties of a Regulatory Professional I. He was promoted in 1990 to a Regulatory Professional II, a position he held until he was terminated. At the time of his termination, Petitioner had attained regular employee status inasmuch as he had successfully completed his probationary period. As a Regulatory Professional II, Petitioner was responsible for monitoring the public's compliance with the District's regulatory programs, a task that involved the exercise of considerable discretion with minimal supervision as well as frequent and substantial contact with citizens in his assigned territory, which covered all of Okeechobee and St. Lucie Counties and parts of Glades and Highlands Counties. Petitioner also supervised one subordinate employee, Donald Hagan, a Regulatory Professional I, who assisted Petitioner in his monitoring activities. Petitioner was assigned a District vehicle for official use during the workday. After hours, the vehicle was secured in the parking lot outside the District field station in Okeechobee where Petitioner was headquartered. Petitioner worked an eight-hour day. His normal work hours were 7:30 a.m. to 4:00 p.m., however, he occasionally deviated from this schedule when necessary to accommodate his workload. In addition to a lunch break, Petitioner was allowed to take two 15 minute work breaks during his eight-hour workday, one in the morning and one in the afternoon. He was permitted to take these breaks whether he was in the field station or out in the field. In September and most of October of 1991, Petitioner's immediate supervisor was Edward Maciejko. Maciejko was headquartered in West Palm Beach, approximately 60 to 65 miles from the Okeechobee field station out of which Petitioner worked. On October 23, 1991, Alan Goldstein became Petitioner's immediate supervisor. Goldstein's work station was located in Okeechobee approximately three miles from Petitioner's work station. Goldstein remained Petitioner's immediate supervisor until Petitioner's termination. The Employee Handbook The District has an Employee Handbook that is designed to provide information and guidance to District employees regarding employment-related matters. As do all new District employees, Petitioner received a copy of the Employee Handbook upon being hired and its contents were reviewed with him during his orientation. The Employee Handbook contains the District's Attendance and Leave Policy (Policy No. 300), which addresses the subjects of "normal work hours" and "work breaks" as follows: NORMAL WORK HOURS All full-time regular and initial probationary employees shall perform their assigned duties for 40 hours each work week unless otherwise authorized. All part-time regular and temporary employees shall perform their assigned duties for the total number of hours for which compensation is received. The normal workday shall be 8 hours unless otherwise authorized by the employee's Division Director. WORK BREAKS All District employees are provided one work break during the first half of their workday and one work break during the second half of their workday, except in extreme emergency. No single work break shall exceed 15 minutes. An employee is not permitted to accumulate unused work breaks nor may the work break be used to cover an employee's late arrival or early departure from duty. All employees shall take a minimum of one half hour lunch break each workday. The following discussion is found in the Employee Handbook concerning the "Code of Ethics:" Florida has been a leader among the states in establishing ethical standards for public officials and employees and recognizing the right of her people to protect the public trust against abuse. Our state constitution was revised in 1968 to require that (a)a code of ethics for all state employees and non-judicial officers prohibiting conflict between public duty and private interests shall be prescribed by law. Art III, Sec. 18, Fla. Constitution. The "Code of Ethics for Public Officers and Employees" by which the Legislature carried out this constitutional mandate is found in Chapter 112 (Part III) of the Florida Statutes. The purpose of the Code is to ensure that public officials and employees conduct themselves independently and impartially, not using their offices or positions for private gains other than remuneration provided by law and to avoid conflicts between public duties and private interest. . . . The standards of conduct summarized below generally apply to all District employees. The types of conduct prohibited are: Gifts- No public employee shall solicit or accept anything of value- including a gift, loan, reward, promise of future employment, favor, or service- that is based on any understanding that the vote, official action, or judgment of the employee would be influenced by such gift. Sec. 112.313(2), Fla. Stat. (1991). Unauthorized Compensation- No public employee or his/her spouse or minor child shall accept any compensation, payment or thing of value which, with the exercise of reasonable care, is known or should be known to influence the official action of such employee. Sec. 112.313(4), Fla. Stat. (1991). Doing Business with One's Agency- No public employee acting as a purchasing agent or acting in his/her official capacity shall, directly or indirectly, purchase, rent, or lease any realty, goods, or services from a business entity in which his/her spouse, or child is an officer, partner, director, or proprietor, or in which his/her spouse, or child (or any combination of them) has a material interest. Nor shall a public employee, acting in a private capacity, rent, lease, or sell any realty, goods or services to his/her own agency. Sec. 112.313(3), Fla. Stat. (1991). Conflicting Employment or Contractual Relationship- No public employee shall hold any employment or contractual relationship with any business entity or agency which is subject to the regulation of, or doing business with, the employee's agency. Nor shall an employee hold any employment or contractual relationship which will pose a recurring conflict between his/her private interests and his/her public duties or which would impede the full and faithful discharge of his/her duties. Sec. 112.313(7), Fla. Stat. (1991). Exemptions- Under certain circumstances the prohibitions of subsections (3) and (7) of Section 112.313, Florida Statutes, may not apply. Misuse of Public Position- No public employee shall corruptly use or attempt to use his/her official position or any property or resource within his/her trust, or perform his/her official duties, to obtain a special privilege, benefit or exemption for himself/ herself or others. Sec. 112.313(6), Fla. Stat. (1991). Disclosure or Use Of Certain Information- No public employee shall disclose or use information not available to the general public and gained by reason of his/her public position for his/her personal gain or benefit or the gain or benefit of others. Sec. 112.313(8), Fla. Stat.(1991). More specific ethics laws address financial disclosure and the reporting requirements which apply to Governing Board members, senior management, and employees with contracting authority. The above information has been provided to help you understand State Ethics Laws. The District supports and enforces these laws to the best of its ability and expects each employee to conduct their activities in a lawful manner. Conflicts of interest may be avoided by greater awareness of these Ethics Laws. If you are in doubt about the applicability of the ethics laws to your own circumstances or the circumstances of a subordinate or co-worker, contact the District's Office of Counsel. They will answer your questions or assist you in obtaining an opinion from the Commission on Ethics. Also included in the Employee Handbook is the District's Corrective Action Policy (Policy No. 803), which establishes standards governing non- executive employee conduct and discipline. Section F. of Policy No. 803 lists those acts of misconduct for which a non-executive District employee who has attained regular status may be disciplined. It provides in pertinent part as follows: The following forms of misconduct are unacceptable and subject an employee to corrective action based on the particular circumstances surrounding the incident. The list is provided merely as examples and is not intended to be all inclusive. The identification of these examples does not preclude the District's right to discipline or dismiss employees for other causes, including acts of misconduct which breach the requirements inherent in the employment relationship. 1. Unbecoming conduct: Any action or conduct by an employee which impedes the District's efforts, brings discredit on the District, impairs the operation or efficiency of the District or any employee, or impairs the employee's ability to perform his or her job. . . . 5. Absence Without Authorized Leave: Failure to obtain approval from the proper authority prior to any absence from work, except in the case of an emergency, illness or accident which requires the employee to be absent prior to receiving approval; Inexcusable or repeated failure to notify the appropriate Supervisor or division office of absence, due to sickness, within ten (10) minutes from the start of the normal work day; Being more than ten (10) minutes late to work for an inexcusable reason or on a repeated basis without notifying the appropriate Supervisor, or division office. . . . Unauthorized Use of District Property, Services, Equipment or Personnel: The use of any District property, services, equipment or personnel for any purpose other than District business. Employees shall be required to reimburse the District for the cost incurred by the District as a result of the unauthorized use of equipment or property. Improper or Careless Use of District Property, Including Vehicles: Failure to care for or properly use District property or equipment such as the failure to observe the proper speed limit while driving a District vehicle. . . . 11. Lying or Failure to Give Truthful or Requested Information: Oral or written statements that are deliberately inaccurate, incorrect or misleading but which do not constitute falsification of records. This includes lying or failure to provide information during an internal investigation. . . . 24. Violation or Disregard of Safety Practices: The failure to follow established safety practices as outlined in the District's Accident Prevention Manual. This includes failure to report any injury or accident; the performance of unsafe acts; or the failure to wear or use appropriate safety equipment. . . . Negligence: The failure to use ordinary or reasonable care, caution, attention, diligence or discretion in the performance of assigned duties and responsibilities. Falsification of a District Record: The intentional issuance of a false or incomplete report or record, either oral or written, or the intentional failure to issue a record regarding the performance of work duties, attendance, injury, illness, job qualifications or other work related matters. Policy No. 803 specifically provides for four basic types of "corrective action" to deal with acts of misconduct. They are, in order of severity: oral reprimand (OR); written reprimand (WR); suspension (S); and dismissal (D). In determining the appropriate "corrective action" to be taken in a particular situation, supervisory personnel must follow the "standards" set forth in Section G. of Policy No. 803, which provides as follows: This section has been established as a guide for use by Supervisors to help ensure that all employees receive similar treatment in like circumstances. The guidelines on severity of corrective action outlined in Section H. is not meant to be an exhaustive listing of all possible acts of misconduct or forms of corrective action. Appropriate corrective action of unlisted acts of misconduct may be derived by comparing the nature and seriousness of the offense to those listed in Section H. In many cases, the guidelines on severity of corrective action are based on the number of occurrences and the seriousness of the offense and are presented as a range of action which covers more than one form of corrective action. The use of a particular form of corrective action is not mandatory simply because it is listed in Section H. Realizing that some of the offenses listed will be more or less serious in certain cases, the supervisor taking the corrective action shall utilize good judgment in light of all available facts. The corrective action selected must ultimately be appropriate in light of the particular circumstances surrounding the incident and the employee's past performance and conduct record. For example, even for offenses where dismissal is not indicated for a first offense, dismissal on a first occurrence may be assessed for an aggravated offense or a continuous pattern of misconduct. Similarly, where dismissal is indicated, a less severe form of corrective action may be taken. This action may be taken so long as it is more severe than that given in the most recent prior occurrence that is still active, and is reasonably consistent with other cases of misconduct for other employees. Temporary and initial probationary employees may be suspended or dismissed without regard to the standards of corrective action. In determining the severity of corrective action to be applied, the authorized Supervisor should take into account the following variables: The severity of the specific act of misconduct. The circumstances under which the violation occurred. The consequences of the employee's actions in regard to its affect on the District operation and on other employees. The guidelines on severity of corrective action outlined in Section H. of this policy. The overall work record of the employee; length of employment; and the employee's prior history of other similar or unrelated corrective actions, including active and inactive offenses. The length of time since earlier corrective action, the similarity or dissimilarity of the offense, and the severity of earlier offenses. The following are among "the guidelines on severity of corrective action outlined in Section H." of Policy No. 803: 1. Unbecoming conduct: 1st occurrence- WR, S or D . . 5. Absence Without Authorized Leave (Does not affect scheduling or work of others): 1st occurrence- OR; 2nd occurrence- WR . . Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 1) Cost to District of less than $50.00): 1st occurrence- S; 2nd occurrence- S or D; 3rd occurrence: D Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 2) Cost to District of more than $50.00): 1st occurrence- S or D; 2nd occurrence- D Improper or Careless Use of District Property (Not involving personal injury or property damage): 1st occurrence: OR . . . 11. Lying or Failure to Give Truthful or Requested Information: 1st occurrence- WR or S; 2nd occurrence- S or D; 3rd occurrence- D . . . 24. Violation or Disregard of Safety Practices (Not involving personal injury or property damage): 1st occurrence- OR . . . Negligence (Not involving personal injury or property damage): 1st occurrence- OR . . . Falsification of District Record: 1st occurrence- S or D; 2nd occurrence- D The Accident and Related Events In the latter part of September of 1991, Petitioner's personal vehicle was in an automotive repair shop in Stuart. On September 17, 1991, at Petitioner's request, Donald Hagan, Petitioner's subordinate, drove Petitioner to the repair shop in Stuart, which was outside of their assigned territory, in a District vehicle. The purpose of the trip was to ascertain whether the repairs on Petitioner's personal vehicle had been completed. Upon his arrival at the repair shop, Petitioner was advised that the necessary parts had not come in and that therefore it would be another week until he would be able to pick up his vehicle. A week later, on September 24, 1991, at approximately 1:00 p.m., Hagan was in his District vehicle in the parking lot outside the Okeechobee field station when Petitioner walked up to him. Petitioner told Hagan that the repairs on Petitioner's personal vehicle had been completed. He then asked if Hagan would give him a ride to the repair shop in Stuart so that he could pick up the vehicle. Hagan responded in the affirmative. Petitioner thereupon entered Hagan's District vehicle and sat down in the front passenger seat. After Petitioner was situated, Hagan drove off, headed in the direction of the repair shop. Before reaching their destination, Hagan and Petitioner were involved in an automobile accident when Hagan lost control of the vehicle and it ended up in a ditch. The vehicle was damaged and it was towed to West Palm Beach for repairs. Hagan sustained two fractured ribs as a result of the accident. Petitioner was also injured, but not as seriously as Hagan. Both received medical treatment for their injuries. Hagan's and Petitioner's ill-fated trip did not have any District- related purpose. Nonetheless, following the accident, Petitioner reported otherwise, notwithstanding that he knew that he was providing false information to the District. On the night of the accident, he told his then immediate supervisor, Edward Maciejko, over the telephone that he and Hagan were on their way to conduct an inspection of distressed cypress trees in St. Lucie County when the accident occurred. Petitioner also prepared an accident report in which he made the same misrepresentation. A workers' compensation claim was filed on behalf of Petitioner in reliance upon this misrepresentation. Initially, Hagan corroborated Petitioner's story about the purpose of their September 24, 1991, trip. Later, however, he told supervisory personnel the truth about the matter. For his part in the incident and the subsequent cover-up, he was reprimanded and received a two-day suspension. On two occasions following Hagan's revelation regarding the true purpose of the trip, Petitioner was provided an opportunity by Alan Goldstein, who had recently become Petitioner's immediate supervisor and was looking into allegations of misconduct against Petitioner, to recant the statements he had previously made regarding the matter. Petitioner, however, declined to do so and instead repeated what he had said earlier on the subject. 2/ The Speeding Ticket and Related Events On October 3, 1991, while driving his District vehicle to a work- related meeting in Lake Placid, Florida, to which he did not want to be late, Petitioner was stopped by a Florida Highway Patrol trooper and given a traffic citation for travelling 84 miles per hour in a 55-mile per hour zone. Petitioner had exceeded the posted 55-mile per hour speed limit, but by less than the trooper indicated on the citation. Nonetheless, for convenience sake, Petitioner did not contest the citation. On the day he received the citation, Petitioner telephoned Edward Maciejko, who was still his immediate supervisor at the time, and told Maciejko that he had been "flagged down" by a trooper earlier that day while on his way to Lake Placid in his District vehicle. Subsequently, during an investigation of alleged wrongdoing on Petitioner's part conducted after Alan Goldstein, had become Petitioner's immediate supervisor, Goldstein asked Petitioner if he had informed Maciejko about the traffic citation he had received on October 3, 1991. Petitioner responded in the affirmative to this inquiry. To the best of his recollection, he had so informed Maciejko and therefore believed that he was being truthful in his response to Goldstein's inquiry. The Loan and Related Events Dry Lake Dairy (Dairy) is an Okeechobee dairy farm that has been owned and operated by the Rucks family since 1958. J. Boyd Rucks is President of the Dairy. As President, it is his responsibility to deal with governmental agencies that exercise regulatory authority over the Dairy and its operations. The District is one of these governmental agencies. In or sometime prior to 1990, the Dairy received a surface water management permit from the District. It subsequently obtained a modification to the permit to engage in a ditch clearing operation. In November of 1990, the District issued a Notice of Violation (NOV) alleging that the Dairy had violated the terms of its permit. Petitioner was actively involved in the investigation that led to the issuance of the NOV. Following the issuance of the NOV, it was his responsibility to make sure that the necessary steps were being taken by the Dairy to correct the problems identified in the NOV. At first, he visited the Dairy on a regular basis to monitor its compliance efforts. Thereafter, these regular visits ceased and his monitoring activities were confined to flying over the Dairy during his monthly aerial inspection of his territory. By the middle of October of 1991, the Dairy had made substantial progress toward correcting the violation with which it had been charged by the District, but the matter had not been finally resolved. 3/ At the time, Petitioner needed to borrow $500.00. Notwithstanding that the enforcement action against the Dairy, in which he played an integral role, was still ongoing, Petitioner ill-advisedly decided to approach the Dairy's President and its representative in its dealings with the District, J. Boyd Rucks, about loaning him the money. Petitioner knew Rucks through Petitioner's work with the District. Their relationship was purely a professional one. They did not socialize. While Rucks, on behalf of the Dairy, often made cash advances to its employees, neither he nor the Dairy was in the business of making loans to members of the general public. Never before had either of them made a loan to a District employee. At around noon on October 14, 1991, Petitioner was in his District vehicle on his way back from a field inspection when he stopped by Rucks' home and asked Rucks if he would lend Petitioner $500.00. Rucks told Petitioner that he would have to discuss the matter with other members of his family and that Petitioner should return later in the day for an answer. At around 3:30 or 4:00 p.m. that afternoon, Petitioner returned to Rucks' home in his District vehicle. 4/ Having obtained the approval of the family members to whom he had spoken, Rucks gave Petitioner $500.00 from the Dairy's petty cash fund. Petitioner was to repay the money within ten days. There was no interest charged. Petitioner did not believe that he was doing anything wrong in soliciting and accepting this loan from Rucks. There was no understanding on the part of either Petitioner or Rucks that the making of this loan to Petitioner would in any way influence Petitioner in the discharge of his duties as an employee of the District. Petitioner never suggested, nor did Rucks expect, that the Dairy would receive favorable treatment in its dealings with the District as a result of the loan. The two viewed the transaction as a personal matter unrelated to District business. Because of illness that required hospitalization, Petitioner was unable to repay the loan within ten days. The loan was repaid in full within three weeks. Petitioner's Personal Circumstances During the period of time in which the alleged acts of misconduct in the instant case were committed, Petitioner was experiencing a significant amount of stress in his personal life. He was having money problems. In addition, his relationship with his wife was deteriorating. The day after he received the loan from Rucks, Petitioner was admitted to a psychiatric hospital for treatment. He remained hospitalized for two weeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the District enter a final order (1) finding that disciplinary action, in the form of a suspension covering the period from January 9, 1992, to the date of the issuance of said final order, should be taken against Petitioner, but based only upon those acts of misconduct described in Conclusion of Law 70 of this Recommended Order, (2) reducing Petitioner's dismissal to such a suspension, and (3) reinstating Petitioner to the position he previously held or a comparable position. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3101 The following are the Hearing Officer's specific rulings on what the parties have labelled as "findings of facts" in their proposed recommended orders: Petitioner's Proposed Findings of Fact Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To the extent that this proposed finding states that "[e]mployees receive the Handbook at new employee orientation," it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 4-7. Accepted and incorporated in substance. 8. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 9-11. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding references Edward Muldowney's participation in the internal investigation and Muldowney's "extensive investigative experience," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 15-16. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 20-22. Accepted and incorporated in substance. Rejected as a finding of fact because it is more in the nature of legal argument. Accepted and incorporated in substance. Rejected because it is not supported by persuasive competent substantial evidence. 25a.-25b. To the extent that these proposed findings state that Petitioner was absent during non-break periods of the workday on September 24, 1991, and on October 14, 1991, without the authorization and approval of the appropriate authority, they have been rejected because they are not supported by persuasive competent substantial evidence. Otherwise, they have been adopted and incorporated in substance. 25c.-26a. Accepted and incorporated in substance. 26b. Last sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Accepted and incorporated in substance. 26c. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony. 26d. Accepted and incorporated in substance. 26e. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is not supported by persuasive competent substantial evidence. 26f. Accepted and incorporated in substance. This proposed finding, which states that Petitioner lied or failed to give truthful or requested information on six, rather than three, occasions, has been rejected because it is not supported by persuasive competent substantial evidence. 27a. Accepted and incorporated in substance. 27b. First, second and sixth sentences: Accepted and incorporated in substance; Third and fourth sentences: To the extent that these proposed findings state that Goldstein "specifically asked [Petitioner] if any part of the trip on the day of the accident was for personal reasons" and Petitioner "lied when he responded 'no'" to this question, they have been accepted and incorporated in substance. Otherwise, they have been rejected because they are not supported by persuasive competent substantial evidence. 27c. To the extent that this proposed finding states that Goldstein talked to Petitioner about the September 17, 1991, trip to Stuart during the discussion referenced therein, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. 27e. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are not supported by persuasive competent substantial evidence. Accepted and incorporated in substance. First, second, third and sixth sentences: Accepted and incorporated in substance; Fourth sentence: To the extent that this proposed finding states that Hagan "was a passenger in the vehicle at the time," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony; Fifth sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony. 30-32d. Accepted and incorporated in substance. 32e. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed suggests that Petitioner did not perform "his regulatory functions, including those at the Dry Lake Dairy, in an unbiased manner" as a result of the loan, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. 10/ Third and fourth sentences: Rejected because they are not supported by persuasive competent substantial evidence. 11/ 33-33b. Rejected because they concern alleged misconduct outside the scope of the charges specified in the notice of termination. 33c. Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Petitioner's Proposed Findings of Fact Accepted and incorporated in substance. To the extent that this proposed finding states that Petitioner's assigned territory included Martin County, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. To the extent that this proposed finding recites verbatim the "Grievance Resolution," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding states that Respondent was "summarily" dismissed upon given his notice of termination without the opportunity to respond and that he never before "had an evaluation which was less than satisfactory," it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding states that Petitioner was deprived of "due process," that he was terminated "arbitrarily" and that the charges against him "are so vague as to make them void," it has been rejected as a finding of fact because it is more in the nature of legal argument. Otherwise, it has been accepted and incorporated in substance.
The Issue Whether the Respondent intentionally committed an unlawful employment practice against the Petitioner on the basis on her national origin/Hispanic (Puerto Rican) or gender/female (sexual harassment). Whether Petitioner, a member of a protected class, was removed from her position with the Respondent in retaliation for her filing of a sexual harassment complaint with the Florida Commission on Human Relations on March 12, 1992.
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. Respondent, Martin-Marietta Electronics Information and Missiles Group, is a foreign corporation licensed to do business in Florida which employs more than fifteen employees. Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Petitioner, Margarita Coll, is a female, hispanic, citizen of the United States who resides in the State of Florida. Petitioner is a member of a protected class. Petitioner was an employee of Hi-Tec Associates, Inc., during all relevant periods, and was a de facto employee of Respondent for approximately four and one-half years. Petitioner was employed at Respondent company through a temporary agency called Associated Temporary Services and placed with the Respondent on January 5, 1987 as a receptionist/secretary in Martin-Marietta's Fleet Administration Department off Sand Lake Road, Orlando, Florida. Her responsibilities included record keeping, filing and helping Respondent's employees with company vehicles. Petitioner reported to the Respondent's Fleet Manager, Linda Reilly. Her day to day work assignments and supervision were received exclusively from the Fleet Manager. Petitioner worked in her position at the pleasure of the Respondent. She was assigned a "buyer" at Martin- Marietta who worked with the requesting department to fashion a position to meet the department's needs. The work was bidded out and awarded to the temporary employment agency who best met Respondent's criteria, on an annual basis. Over time, Petitioner assumed additional job responsibilities and in June, 1988 received a commendation for exceptional performance from Respondent's supervisors. In an effort to reward her efforts, Reilly successfully upgraded her position, first to Administrative Assistant and then to Fleet Analyst. When she was reclassified as a Fleet Analyst, the contract for her position was awarded to Hi-Tec Associates, Inc., since Associated Temporary Services did not provide technical employees under their contract with Respondent. Petitioner always worked at Martin-Marietta as a temporary employee and was never employed as a regular employee of the company. As such, she had no company benefits; she was classified as a contract laborer and her services were purchased by purchase order. Petitioner completed no company employment application, was not subject to Martin-Marietta performance appraisals and had no Martin-Marietta employment records or personnel file, other than her contract labor time slips. Petitioner received her pay from Hi-Tec. In June, 1990, Marilyn Quinonez was placed in the Fleet Administration Department as a Fleet Administrative Assistant by a temporary employment agency. Friction quickly developed between Petitioner and Quinonez. Petitioner believed that Quinonez was hired to assist her and became upset when she would not follow Petitioner's supervision or directions. Quinonez understood that she was to report to the Fleet Manager, and objected to the way Petitioner treated her. On November 15, 1990, Reilly was laid off by Respondent as part of a reduction in force and was replaced by Joseph LaPak. LaPak observed the bickering between Petitioner and Quinonez and that it continued to escalate over time. In December, 1990, the temporary positions in the department were reevaluated and the contract requirements for both positions were rewritten. The titles of both Petitioner and Quinonez were changed to that of Fleet Administrative Assistant. Any language in the contract which called for Petitioner to direct the clerical duties of the department were eliminated. In the fall of 1991, Quinonez met with LaPak and Wally DuBose to clarify her reporting responsibilities. It was confirmed that Quinonez and Petitioner were to report to the Fleet Manager, and that Petitioner did not have supervisory authority over Quinonez. Nevertheless, disputes between Petitioner and Quinonez continued. Attempts by management to resolve the problems were unsuccessful. On February 17, 1992, during the normal lunch hour, an altercation occurred between Petitioner and Quinonez. When Quinonez returned from lunch, she found Petitioner at her computer terminal. Quinonez asked for it back. Petitioner refused and an argument ensued. The two women became so angry and loud that a neighboring supervisor had to come over and separate them. Wally DuBose sent both Petitioner and Quinonez home for the day. Petitioner's immediate supervisor, LaPak was not in the office at the time. DuBose then discussed the matter with his supervisor, Paul Smilgen, and it was decided that Petitioner would be removed from the contract for her failure to work with fellow employees and management, and for general insubordination. LaPak was not involved in the decision to remove Petitioner. The decision was communicated to Hi-Tec. They, in turn, notified Petitioner that same evening that she was being replaced on the contract and not return to the Fleet Administration Department. Hi-Tec offered to attempt to place Petitioner elsewhere at Martin-Marietta but Petitioner refused because the openings available at the time paid less that the Fleet Administrative Assistant position. When LaPak first became the Fleet Manager in November of 1990, Petitioner and Quinonez worked in a very small work space. While Petitioner was training LaPak and working on the computer, LaPak's body was frequently close to Petitioner's and she felt pinned in a corner by him. After the initial working relationship was established and LaPak came into Petitioner's work area, he would touch her on her arms or shoulder in order to get her attention. In December, 1990, Petitioner complained to DuBose about LaPak touching her and making her uncomfortable. Both Petitioner and DuBose talked to LaPak about the fact that Petitioner did not want LaPak to touch her. LaPak honored that request and did not touch her again. He made every reasonable effort to get her attention when he needed to talk to her without touching her. In October, 1991, Petitioner complained to the Martin-Marietta EEO office that LaPak was sexually harassing her by inappropriate touching. Respondent then conducted an immediate investigation into the allegations and attempted to resolve the matter through internal mediation. Petitioner's testimony and other witnesses' testimony concerning sexual comments, innuendoes or propositions and inappropriate touching allegedly made by LaPak that occurred between December, 1990 and October, 1991 were inconsistent and are not credible. Petitioner presented no relevant or material evidence to show that Petitioner was the victim of national origin discrimination. Respondent's articulated reason for its decision to remove Petitioner from her contract labor position was not based on gender discrimination or national origin discrimination, nor was it pretextual. Petitioner failed to prove that her termination of employment at the Respondent's company was in retaliation for her complaints of sexual harassment or national origin discrimination.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued in which the Charge of Discrimination is DENIED and the Petition for Relief is DISMISSED. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: Paragraphs 1, 2, 3, 4, 5(in part), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 13, 14(except as to date of hire), 15(in part), 16(in part), 18(except as to the date of the counseling session), 19(except as to the date of the counseling session), 20, 21(in part). Rejected as against the greater weight of evidence: paragraphs 5(in part: Petitioner was first a contract employee with Associated Temporary Services), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 15(in part), 16(in part), 17. Rejected as immaterial, irrelevant or subsumed: paragraphs 11, 12, 21(in part). Respondent's Proposed Findings of Fact: Accepted in substance: paragraphs 1, 2, 3, 4(in part), 5, 6(in part), 7, 11(in part), 12, 13, 14(in part). Rejected as argument or a conclusion of law: paragraphs: 9, 10, 15, 16, 17. Rejected as irrelevant, immaterial or subsumed: paragraphs 4(in part), 8, 11(in part), 14(in part). Rejected as against the greater weight of evidence: paragraph 6(in part). COPIES FURNISHED: Kay L. Wolf, Esquire John M. Finnigan, Esquire GARWOOD, MCKENNA & MCKENNA, P.A. 815 North Garland Avenue Orlando, Florida 32801 James Sweeting, III, Esquire 2111 East Michigan Street Suite 100 Orlando, Florida 32806 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue for consideration in this case is whether Respondent should be disciplined, to include a three day suspension without pay, because of the misconduct alleged in the Notification of Suspension issued herein.
Findings Of Fact At all times pertinent to the issues herein, Respondent, William T. Mooney, worked as a laboratory technician for the City of Clearwater's Public Works/Water Pollution Control Division. On April 15, 1993, Doreen Spano, the City's utility lab supervisor, held a meeting of her division personnel at which she identified Iracema Drysdale as the lead worker and, in order to clarify any misconceptions among lab workers as to work deadlines, presented a policy letter for the lab, entitled "New Work Schedule". The schedule set guidelines and deadlines for the daily workload. The memorandum contains inconsistent statements, however. For example, while Ms. Spano indicated both in the memo and at hearing that the instructions therein are merely guidelines, she also used such imperatives as "must" and "will" in the memo. Specifically, the memorandum indicates the daily plant BOD must be in the incubator by 12:00 PM, and the daily plant bacteria must be in the incubator by 12:30 PM. Respondent has worked in this City laboratory for approximately 14 years. During this time he has developed a method of accomplishing his tasks which is described by Ms. Drysdale as less than efficient. She indicates he frequently misses his time deadlines and works at his own pace. Respondent, on the other hand, claims he has always completed his tasks according to the Standard Methods Manual, but, due to the time the samples are received in the lab, could not accomplish both the BOD and the bacteria procedures within the guidelines set in that manual and the Environmental Protection Agency standards manual. Either one or both would be late. This controversy, much of which was made by both sides, is, in reality, only peripherally related to the issue in controversy here which is whether Respondent was insubordinate or not on September 9, 1993. Both Ms. Drysdale and the Respondent signed the memorandum in question here indicating their receipt and understanding of the directions contained therein. Thereafter, on September 9, 1993, Ms. Drysdale entered the lab shortly before the lunch period to find the bacteria procedure not done and Respondent working on the BOD procedure. It appears that the bacteria sample was taken at 6:00 AM on this day and, under EPA guidelines, had to be preserved in the incubator within six hours or the results of the procedure would be invalid and not eligible for reporting to the EPA. When Ms. Drysdale asked Respondent why he was doing the BOD when the bacteria procedure had not been accomplished, he indicated that Ms. Spano's memorandum required the BOD to be done by 12:00 noon and the bacteria not until 12:30 PM. He considered this a directive and indicated he would complete his work consistent therewith. Again, there is a contradiction in the testimony as to the nature of the conversation between Ms. Drysdale and the Respondent. Ms. Drysdale asserts that about noon on the day in question, she suggested to Respondent that he start the bacteria procedure first and then do the BOD procedure. Respondent refused because he believed he had to follow the new work schedule prepared by Ms. Spano. Ms. Drysdale then told him to do the bacteria procedure first and she would assume the responsibility. Respondent still refused and, raising his voice to her, completed the BOD procedure. When he finished that, he did the bacteria procedure but by that time, the sample was too old and had to be discarded. Respondent's recounting of the incident is somewhat different. He claims he was approached by Ms. Drysdale who asked him why he did the bacteria procedure after the BOD procedure. When he pointed out the dictates of the memorandum, she claimed to know nothing about it even though her signature, along with that of Respondent and Mr. Olson, appears on the bottom thereof. Nonetheless, according to Respondent, Ms. Drysdale said she would check on it. After lunch, according to Respondent, Ms. Drysdale came back with the Standard Methods book. When he showed her the new work rules, he claims, she admitted she was aware that Ms. Spano had written them. When he asked her what Ms. Spano had said about the situation, she allegedly replied, "Why don't you do it the way I say and if Doreen (Ms. Spano) asks, I'll take the responsibility." Respondent was upset because, he contends, things like this always happen. Respondent, in subsequent testimony, denied ever getting a direct order from Ms. Drysdale or that she indicated she would assume responsibility. On balance, while there is little doubt in Ms. Drysdale's testimony as to what happened, Respondent tells two different stories regarding the conversation. At one point he claims she asked him why he didn't do it her way and that if he did, she'd assume responsibility. At another, he claims she merely asked why he was doing the procedures as he was and made no mention of assuming responsibility. It is clear that Ms. Drysdale wanted the bacteria procedure done first, and while she might not have couched her request in directory language, there can be little doubt she communicated her desires to Respondent, albeit in a perhaps more gentle manner. In any case, she was Respondent's supervisor and he knew it. She wanted the work done as she indicated and her request, made under the authority she had to get the work done as she desired, had the force and effect of a direct order which Respondent disobeyed at his peril. Ms. Spano indicated she discussed not only the appointment of Ms. Drysdale as lead worker at the April 15, 1993 meeting, but also the six hour requirement for specimens. Respondent denies this, but it is found he knew exactly what the requirements were. He claims he has been doing things the way the memorandum calls for ever since it was promulgated and this is not inconsistent with his current position on doing the BOD procedure first. When this incident took place, Mr. Reckenwald, the superintendent of the water and pollution control division, and the overall supervisor of the laboratory operation in question, received a recommendation for discipline, primarily because of Respondent's failure to follow orders. In addition, however, the incident created a problem for the City which has to report to the EPA and other federal agencies. Because of this report requirement, it is imperative the work be done properly. If it is not done properly, the work is worthless and may result in sanction action against the city by federal regulatory agencies. Not the least of concerns, also, is the public health consideration since effluent, the source of samples for both BOD and bacteria procedures, is discharged into the public waterways. On the basis of the above, a recommendations was made that Respondent receive a three day suspension. This is consistent with disciplinary guidelines contained in the City's Guidelines For Disciplinary Action. Respondent appealed the action to the City Manager who reviewed his submittal but nonetheless upheld the disciplinary action proposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the City of Clearwater take final action in this matter to consist of suspension of the Respondent without pay for three days and imposition of 40 disciplinary action points. RECOMMENDED this 24th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1994. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P.O. Box 4748 Clearwater, Florida 34618 William T. Mooney 1433 Laura Street Clearwater, Florida 34615 Michael J. Wright City Manager City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Petitioner is responsible for operating the public schools in the Sarasota County School District (District) and for hiring, firing, and overseeing both instructional employees and non-instructional "educational support" employees. Respondent has been a School Board employee in the Information Technology (IT) department since November 1991. Ms. Ehlers is an "educational support employee" within the meaning of Section 1012.40, Florida Statutes (2009);2 and for purposes of collective bargaining unit categorization, she is a "classified," as opposed to an "instructional," employee. Until the summer of 2009, Ms. Ehlers was a COBOL programmer. Due to budget cuts and advancing technology that rendered COBOL programming outdated, the positions of Ms. Ehlers and other COBOL programmers were targeted for elimination as of June 30, 2009, as part of a "staffing" process to reduce the District's workforce. The requirements for implementing workforce reductions are set forth in the Collective Bargaining Agreement (CBA) between the School Board and the union, Sarasota Classified/Teachers Association (union). In accordance with the CBA's terms, Ms. Ehlers was permitted to displace or "bump" another employee in the IT department, in the state reports coordinator position. Respondent assumed the state reports coordinator position, reporting directly to Barbara Brannen, who is the manager of Data Analysis and Recording for the District. Ms. Brannen manages a small unit with tremendous responsibility. With the assistance of four employees, including the state reports coordinator, Ms. Brannon is responsible for reporting all of the District's student and staff data in reports called "surveys" to the state and federal governments. The survey data submitted to the state Department of Education serves as the predicate for roughly 78 percent of the District's funding. Errors in these surveys can be very costly: under-reporting data means receiving less funding than the District is entitled to; and over-reporting data means overpayments discovered in audits, subjecting the District to penalties. The data is also used to determine compliance with state and federal regulations, such as the federal "No Child Left Behind" program. The data also serves to inform decision- makers at the state level for legislation and other policymaking and at the District level for staffing and resource allocation. Ms. Brannen has earned a reputation as an exacting task-master who sets very high standards for herself and the employees she supervises. Ms. Brannen can be intense and demanding, with little tolerance for mistakes. The work is stressful, but the high standards are necessary because the stakes are so high. Respondent's brief time in the state reports coordinator position was tumultuous, with nothing but discord and negativity, as explained in more detail below. Respondent's conduct during this period of less than one year, considered in the context of Respondent's employment history with the School Board, led the Superintendent to notify Ms. Ehlers by letter dated June 2, 2010, that the Superintendent intended to recommend to the School Board that Respondent's employment be terminated. The Superintendent's letter summarized the four separate, but related, categories of conduct that served as the bases for recommending termination, as follows: Respondent had created a hostile work environment within the IT department by such behavior as yelling, making threatening comments, acting in ways perceived as threatening, slamming doors, listening in on others' conversations, and following others in a stalking-type manner; Respondent violated a November 2009 mediation agreement that she entered into with her supervisor, Ms. Brannen, which had been attempted in lieu of discipline to address the discord; Respondent was insubordinate at a "Weingarten" meeting held on April 13, 2010, during which she yelled at her department director and called the department director a liar; and Respondent failed to comply with her department director's request to meet on April 15, 2010. The Superintendent concluded that in each instance, Respondent was insubordinate and in violation of the Code of Professional Conduct of the Non-Instructional Support Staff Employed by the School Board (Code of Professional Conduct), warranting disciplinary action. Collectively, the conduct constituted a flagrant violation, providing sufficient cause to recommend termination. "Just cause" is the standard required by the CBA for all disciplinary actions against non-instructional personnel such as Respondent. Normally, the following progressive disciplinary steps are administered: (1) verbal reprimand; written reprimand; (3) suspension; and (4) termination. However, progressive discipline is not required in instances of flagrant violation. In addition to the formal disciplinary steps recognized by the CBA, administrators may opt for informal steps to address concerns before resorting to formal discipline. These steps, intended to clarify expectations, may include informal counseling and issuance of Memoranda or Letters of Instruction. Although these informal steps are non-punitive themselves, the failure to abide by the clarified expectations may warrant discipline. School Board administrators also occasionally use mediation as a tool to address concerns instead of immediately jumping to discipline. If a mediation agreement is reached as a result of this process and sets forth agreed conduct, violations of that agreement can warrant discipline. Respondent's employment history includes the following informal non-disciplinary steps taken to call to Respondent's attention concerns with her behavior: November 14, 2001, Memorandum of Instruction, concerning Respondent's conduct, which was described as disrespectful, unprofessional, argumentative, condescending, and uncivil. November 26, 2001, Memorandum of Instruction, regarding Respondent's inappropriate, disruptive, and disrespectful behavior towards her co-workers and supervisor. Respondent was reminded that if she thought issues needed to be addressed, she had to use proper channels, professional methods, and appropriate behavior. February 9, 2009, Memorandum of Instruction, directing Respondent to comply with the Code of Ethics. November 16, 2009, Letter of Instruction, emphasizing the importance of properly completing timecards and blue sheets used to request time off. November 2009 mediation process, resulting in a Mediation Agreement signed on November 25, 2009, by Respondent and Barbara Brannen, undertaken in lieu of discipline. Respondent's prior formal disciplinary history includes a September 17, 2002, verbal reprimand for insubordination, following two attempts to clarify expectations via Memoranda of Instruction issued in November 2001. Respondent's Change to State Reports Coordination In early 2009, a budget shortfall was identified for the upcoming fiscal year that would begin on July 1, 2009. This started a staffing process in accordance with the CBA's requirements to plan for the necessary reduction in the District's workforce. Administration attempted to minimize the impact of budget reductions on the classroom. Administration also decided to give potentially affected employees as much advance notice as possible under the circumstances. That way, the employees could consider their options, including whether they would be in a position to take advantage of the CBA's bumping process. The CBA sets forth a detailed process that, in general terms, permits an employee whose position is eliminated to displace, or bump, a less senior employee in the same department, who holds a position for which the more senior employee is qualified. The newly displaced employee is then permitted to use the same process to bump a less senior employee, and so on. The bumping process is fairly mechanical and is monitored by a number of persons within the administration and the union to ensure that the CBA's rules are followed. On February 4, 2009, Leona Collesano, the director of the IT department, and Robert Darois, Respondent's immediate supervisor, notified Respondent that her COBOL programming position had been targeted for potential elimination as of June 30, 2009. The next day, February 5, 2009, Respondent called Tracey Craft, an IT employee, to announce to Ms. Craft in an unfriendly manner that Respondent intended to take her position. Ms. Craft was upset and complained to her supervisor, Ms. Collesano. After consulting with Human Resources, Ms. Collesano spoke with Respondent and told her to not tell any other employees that Respondent was going to take their position. Respondent admitted making the phone call, but said that she placed the call from her cell phone on her lunch hour, as if to suggest that she was free to harass other employees with threats of taking their jobs as long she was physically away from the workplace. That same day, after Ms. Collesano admonished Respondent to stop telling other employees she was going to be displacing them, Respondent sent an email to the Superintendent, all members of the School Board, the union president, and others. Respondent's email complained that she was "being harassed by" Ms. Collesano and stated that "I can talk to anyone I want when I am not at work or the job site." The next day, February 6, 2009, Respondent emailed Robert Hanson, then head of the IT department and Ms. Collesano's supervisor. Respondent stated that "Leona harassed me and her behavior was VERY unprofessional. She was very nasty." Respondent requested that "a formal complaint be filed" and said that she wanted "a response in 3 to 5 days." The record is replete with this behavior pattern by Respondent--whenever someone criticized or found fault with Respondent, she reacted very defensively, turning the situation around to blame or file a complaint against the person who criticized her. In this way, Respondent attempted to deflect the focus away from her own behavior. On February 9, 2009, Ms. Collesano and Mr. Darois met with Respondent to provide her a Memorandum of Instruction that emphasized Respondent's obligation to abide by the Code of Ethics. During the meeting, Respondent slammed her hand on the table, called Ms. Collesano a "liar," asked whether Ms. Collesano had ever managed, said that the "place is like a kindergarten," and accused Ms. Collesano of having "it out for me since you came here."3 For many days after that meeting, Respondent would walk past Ms. Collesano's office frequently (such as four times in 30 minutes), peer in, read what Ms. Collesano had written on her white board, and make "tssk" sounds. On February 24, 2009, Respondent filed an equity complaint against Ms. Collesano alleging discrimination based on "sexual orientation." The substance of Respondent's complaint was that Ms. Collesano was "mean," that she ran her department "like a kindergarten," that she used "her position negligently like a police officer with too much authority," that she was "VERY unprofessional," and that she had once asked Respondent about her dating life. Administration immediately conducted an investigation into Respondent's complaint, but found it to be without merit. Also on about February 24, 2009, Respondent confronted Tracey Craft at the Corkscrew Deli, a restaurant within walking distance of the Landings (the School Board administration's main office complex), where they both worked. Respondent yelled at Ms. Craft, "Liar!" Presumably this was because Ms. Craft had complained about Respondent's phone call threatening to take Ms. Craft's job. Although Respondent denied this incident occurred, both Ms. Craft and another eyewitness, Susie Manning, confirmed that it occurred as described, and their testimony is found to be more credible than Respondent's denial. During the spring of 2009, Respondent went to work identifying and making the case for her qualifications for other positions in the IT department. She identified four positions that she believed she qualified for and had more seniority than the person then in the position. Two of the positions, District data support coordinator and state reports coordinator, would result in a small pay reduction for Respondent, while the other two positions would result in a significant pay reduction. Despite Respondent's belief that she qualified for the District data support coordinator job, it was determined that Respondent did not meet the minimum qualifications for that position. At that point, Respondent targeted the state reports coordinator position, which had been held by Valeta Clark for three years. Ms. Brannen, the direct supervisor of the state reports coordinator, and Ms. Collesano, Ms. Brannen's supervisor as the IT department director, both contended to the Human Resources department that Respondent did not meet the minimum qualifications for the position. The Superintendent also expressed her reservations about whether Respondent's skill set was adequate, but determined that if Human Resources concluded that Respondent met the minimum qualifications for the position, the Superintendent would agree with that determination. Respondent actively sought to qualify herself for the position of state reports coordinator. She wrote emails and memos, had meetings, took tests, and otherwise pursued the position. Respondent claimed to Human Resources personnel that "I can do the job better than anyone that has been in that position before." Ultimately, the Human Resources department concluded that Respondent met the minimum qualifications for the position. Accordingly, Respondent displaced Ms. Clark as state reports coordinator. Respondent's Campaign Against Ms. Brannen Before Ms. Ehlers assumed the state reports coordinator position, she had never been supervised by Ms. Brannen. In fact, except for a six-month project they worked on together in 1996 or 1997, Respondent and Ms. Brannen had little to no interaction. They worked on different sides of different floors of what was called the "green awning building" in the Landings office complex, with Ms. Ehlers working with the COBOL programmers on the south side of the second floor, while Ms. Brannen's unit was on the north side of the first floor. Even while Ms. Ehlers was actively campaigning to take the state reports coordinator job, she began an equally vigorous campaign against Ms. Brannen. Ms. Ehlers would tell virtually anyone who would listen to her that Ms. Brannen was horrible to work for and that Ms. Ehlers would not tolerate any abuse from Ms. Brannen. Respondent made a point of telling this to fellow employees, to individuals she hardly knew, to the union, to the Human Resources department, and others. Respondent made it known that she was poised to file complaints against Ms. Brannen, and she threatened to wire herself with a tape recorder to record every interaction with Ms. Brannen. For example, when Ms. Ehlers was still a programmer, she worked on the opposite side of a cubicle wall from Jeanette Pifer. Ms. Pifer testified that Ms. Ehlers constantly made derogatory statements about Ms. Brannen, announcing to Ms. Pifer that "she wasn't going to put up with Barbara's crap" and that "Barbara was a bad person to work for." Respondent's derogatory comments did not always stop with Ms. Brannen, but sometimes continued up the chain of command. Respondent made a highly insulting comment about Ms. Collesano and Ms. Collesano's daughter to Ms. Pifer, stating that Ms. Collesano's daughter probably was as big a slut as her mother. Respondent also told Ms. Pifer that someone should "blow up" Robert Hanson's car. At the time, Robert Hanson was head of the IT department and was Ms. Collesano's supervisor. Ms. Pifer's testimony was credible and is accepted. On May 26, 2009, Respondent sent the following email to several persons in the IT department, Human Resources, and the union regarding her upcoming position working for Ms. Brannen: My placement has sure sparked comments from the vast majority of my department, employees in the school district outside my department, and the general public. I know this is a small town but this is getting ridiculous. I have received phone calls at my home, people have approached me outside of work and on the job about my placement working for Barbara Brannen. People have expressed their condolences, rolled their eyes, made snide remarks about Barbara and people in the general public have heard about others that have worked for her and worry for me. I know Barbara's history and so do a lot of other people. It's no secret. I hear negative comments daily from administrators and employees on my floor. I hear people complaining about having to be in meetings with Barbara and noone [sic] wants to be around her. Several employees/administrators have told me or insinuated that Barbara can't stand me and will find a way to fire me. This has created more concern and anxiety for me. Robert Hanson responded to Ms. Ehlers that this "message is over the top in negativity, cynicism, and hearsay." He advised Ms. Ehlers to focus on her performance and "learn this new set of skills," and if she did so, she would have no issues with Ms. Brannen or her superiors. Ms. Ehlers replied that she was going into the new position with a very positive attitude, but could not resist adding that "Barbara is very capable of destroying my best intentions. I can not [sic] help the comments that have been made to me by others, but I have heard them for years. I am very aware of Barbara's history and will not tolerate what others have." The more credible evidence establishes that despite Respondent's attempt to suggest she had a positive attitude (while adding more negative remarks), Ms. Ehlers went into the state reports coordinator position with a very negative attitude. Respondent's focus was squarely on finding reasons to complain about Ms. Brannen, instead of on learning and mastering the new skills and new procedures necessary to become effective in her new position. Respondent Assumes New Position and Continues Campaign Against Ms. Brannen Due to the critical importance of the state reports coordinator position to the District and concerns about Ms. Ehlers' skills to carry out her new duties, Ms. Brannen asked her supervisor, Ms. Collesano, to release Ms. Ehlers a full month early from her programming position, while Ms. Clark was still in the state reports coordinator position. That way, Ms. Clark, who had performed very capably in her position, could train Ms. Ehlers. For this sort of transition in the District, while some overlap for training purposes is attempted, an overlap with two employees in the same position for as long as one month is uncommon. Nonetheless, Ms. Collesano authorized the lengthy overlap to help Respondent learn her new position. Respondent was asked to report to Ms. Brannen on June 3, 2009, instead of July 1, 2009. On June 3, 2009, Respondent began training with Ms. Clark to be the state reports coordinator. While Respondent characterized this period as difficult, accusing Ms. Clark of being jealous of her and mad that Respondent bumped her out of the position, the more credible evidence established that Ms. Clark handled herself professionally and worked hard to train Respondent. Ms. Clark provided Respondent with a great deal of information, including notebooks she put together with instructions and samples showing how to set up responses to surveys, to enable Respondent to succeed in the position. During the training period, Respondent made numerous negative comments to Ms. Clark about Ms. Brannen similar to the comments described above that Respondent made to Ms. Pifer. Respondent also told Ms. Clark that Ms. Collesano and Mr. Hanson were "liars" and "can't be trusted." Ms. Clark credibly testified that Respondent told Ms. Clark that she was able to convince Mike Jones and Roy Sprinkle in the Human Resources department that she was qualified for the state reports coordinator position and that Respondent could talk them into anything where computers were concerned, because anything to do with computers went over their heads. As Respondent said this, she gestured with her hand passing over the top of her head to illustrate the comment. Respondent made a lot of mistakes during her training period, and she did not receive constructive criticism well. When Ms. Clark or Ms. Brannen pointed out Respondent's errors, Respondent became very defensive, saying that she was human and it could not be helped. When either Ms. Clark or Ms. Brannen attempted to explain what was at stake and how the errors could affect the District, Respondent reacted abruptly and loudly, with statements such as "You don't need to tell me that"; "I'm an adult"; or "You don't need to tell me, I know." Ultimately, on June 25, 2009, Ms. Clark submitted a written complaint to Ms. Brannen concerning Respondent's bad behavior and performance issues and left the complaint on Ms. Brannen's desk. The complaint disappeared, but Respondent confronted Ms. Clark later that day suggesting that she at least saw and read the complaint, if she did not actually cause it to disappear. According to Ms. Clark's credible testimony, Respondent physically confronted Ms. Clark in the women's bathroom, gesturing angrily at Ms. Clark and accusing her of being a "backstabber." This confrontation caused Ms. Clark to fear for her safety. She went to Ms. Collesano, visibly upset and nearly in tears, and requested that she be relieved of her position and the overlap training immediately. Ms. Collesano granted her request, cutting Respondent's training short by about three work days. Ms. Ehlers denies confronting Ms. Clark, and there were no eyewitnesses in the bathroom. However, Ms. Ehlers sent an email that same day to Ms. Collesano, stating that an (unnamed) employee approached Ms. Ehlers "and said that Valeta [Clark] is back stabbing me. She is making up stories that I have said things about Barbara . . . . Valeta is very jealous that I am taking her position from her." Ms. Ehlers then proceeded to accuse Ms. Clark of taking an extended lunch without reporting it on her time card, which Respondent characterized as "insubordinate." This email, in which Respondent used the same "backstabber" terminology as Ms. Clark said that Respondent used when she confronted Ms. Clark in the bathroom, adds credence to Ms. Clark's version of this incident. In addition, several witnesses confirmed seeing Ms. Clark visibly shaken shortly after this incident occurred. While at times Ms. Ehlers would insist that Ms. Clark was "jealous" that Ms. Ehlers was taking her position, at other times Respondent would include Ms. Clark in the class of "everybody" who knew that Ms. Brannen was impossible to work for, as well as the class of "nobody" who could stand working for Ms. Brannen. Neither extreme of these inconsistent positions is supported by the more credible evidence. Instead, the evidence showed that Ms. Clark did well in the state reports coordinator position and worked well over a three-year period under the supervision of Ms. Brannen. At the same time, Ms. Clark was professional about the bumping process, assisted with the transition as much as possible, considering the lack of a receptive trainee, and took advantage of the opportunities presented to her in other positions to which she was permitted to move. Ms. Clark was not the only recipient of Ms. Ehlers' negative comments about Ms. Brannen during the June 2009 transition-training period. Diane Biddle, a District employee in a completely different department, complained to Ms. Collesano that Respondent had approached Ms. Biddle in late June 2009, in a public area in Ms. Biddle's department, and made negative comments about Ms. Brannen in a loud voice so that others could hear. Specifically, Respondent came over to Ms. Biddle's area to deliver some data changes and told Ms. Biddle that she was Valeta Clark's replacement. Respondent volunteered to Ms. Biddle that Respondent could handle the work, but was not going to take the abuse from Ms. Brannen. Respondent continued loudly that she was going to file grievances against Ms. Brannen and complain to Human Resources and that she had already warned the Human Resources department and the union that she was not taking Ms. Brannen's abuse. When asked about these comments made to Ms. Biddle, Respondent said that she did not know who Diane Biddle was. That response adds credence to the record evidence tending to suggest that Respondent widely disseminated her negative comments about Ms. Brannen, with no regard to whether sharing her negative views with someone she knew or whether she made her comments in a way and in a setting where others could easily overhear. In July and August 2009, Ms. Brannen took up where Ms. Clark had left off and attempted to work with and train Respondent. By late August, Ms. Brannen called a formal meeting with Respondent to discuss the issues because Respondent continued to exhibit a negative and defensive attitude toward Ms. Brannen, toward training, and toward attempts to correct Respondent's mistakes. That effort did not help, and the friction continued through September. Respondent continued to go out of her way to initiate negative comments about Ms. Brannen in all kinds of settings, even to people who were complete strangers to her. For example, at a 2009 back-to-school event at Sarasota Middle School where Respondent's daughter attended school, Respondent approached someone she had never met before and spontaneously told this person how horrible Ms. Brannen was. It turns out that the person she approached, Maribeth Hamilton, was the school's registrar, who regularly had to deal with Ms. Brannen's unit (now including Respondent). New Audience for Respondent's Complaints On October 6, 2009, Scott Lempe, the District's chief operating officer,4 assumed supervisory oversight of the IT department from Mr. Hanson, who had resigned. Thus, Mr. Lempe became Ms. Collesano's immediate supervisor. Before this time, Mr. Lempe had never been in the supervisory line of authority over Respondent, Ms. Brannen, or Ms. Collesano. By October 8, 2009, just two days after Mr. Lempe took over as head of the IT department, Respondent was in Mr. Lempe's office. During that meeting, Respondent complained about Ms. Brannen. Mr. Lempe told Respondent that he would look into her complaints. According to Respondent, Mr. Lempe told her to send him emails for a two-week period to update him. Respondent reacted by showering Mr. Lempe with numerous email complaints about Ms. Brannen on behalf of herself; at least as often, Respondent's emails would raise complaints about Ms. Brannen on behalf of others and complaints vaguely on behalf of "people" (i.e., "People are fed up."). Although Respondent testified that Mr. Lempe asked for email reports for two weeks, Respondent acknowledged that she continued to send numerous complaint emails to Mr. Lempe after that two-week period. Finally, on October 27, 2009, Mr. Lempe responded to yet another email from Respondent by stating that he understood her concerns, "and I want these emails to stop." The emails did not stop. After several more email complaints, Mr. Lempe wrote a second time to Respondent on October 29, 2009, with the following directive: "I asked you to stop this, and remain professional for the time being. I don't want to get another email from you about this." Still, the emails continued. In just one of several emails sent on November 4, 2009, Respondent complained: "Barbara works against everybody. Barbara does not work as a team. Barbara doesn't like it that I took Valeta away from her. Valeta is thrilled to be out of here just like everyone else." After two ignored directives, Mr. Lempe called a "Weingarten meeting" to address Respondent's conduct through November 4, 2009, in continuing to send email complaints to Mr. Lempe. A Weingarten meeting is a fact-finding meeting with discipline as a potential outcome. For that reason, an employee's union representative is invited to attend. Present at the November 6, 2009, Weingarten meeting was Mr. Lempe; his assistant, Rita Fletcher, to take minutes; Respondent; and Dee White, Respondent's union representative. At the conclusion of the meeting, Mr. Lempe chose not to discipline Respondent for her insubordination. Instead, Mr. Lempe requested that Respondent participate in mediation with Ms. Brannen in an effort to resolve the problems that Respondent had working for Ms. Brannen. Mr. Lempe requested that Doug Berger conduct the mediation, and he did not require any specific resolution. Mr. Berger is a certified mediator who was a District employee at that time. Mr. Berger generally did not know Respondent or Ms. Brannen, although he had previously taught a course taken by Respondent (see Endnote 3). Respondent's union representative commented favorably about Mr. Lempe's suggestion for mediation, noting that mediation is not suggested by many administrators. She thought mediation was a good idea "instead of automatically hitting somebody with a disciplinary action" and that Mr. Berger was a "really good professional" to facilitate the effort. Respondent and Ms. Brannen participated in numerous mediation sessions in November 2009, meeting both separately and jointly with Mr. Berger. Mr. Berger described this process as sometimes difficult and emotional, although he characterized Ms. Brannen as keeping her cool and acting professionally throughout the process, while he described Respondent as often emotional. Ultimately a mediation agreement was drafted and finalized, and both Respondent and Ms. Brannen voluntarily signed the final mediation agreement on November 25, 2009. The mediation agreement included the following terms in pertinent part: Respondent and Ms. Brannen will call inappropriate behavior as it occurs (communicating with each other instead of complaining about the behavior to third parties); Respondent will redirect legitimate complaints and concerns from others to Ms. Brannen for resolution (instead of making complaints or voicing concerns attributed to others on their behalf); Respondent will not participate in office gossip with other employees regarding Ms. Brannen, but instead will address issues directly with Ms. Brannen; If there are issues that cannot be resolved between the two of them, proper procedures will be followed to address and resolve the issues, including utilizing the mediation process again as necessary; Due to the nature of their work, Ms. Brannen will insist on accuracy and meeting deadlines. Ms. Brannen will provide feedback to Respondent in a constructive manner regarding her performance. Respondent did not abide by the mediation agreement. Instead, Respondent continued to engage in the same problematic conduct that she had agreed to stop or change when she signed the agreement. As one example, Respondent continued to tell Ms. Brannen vaguely and generally that "registrars" were confused by instructions, but that they were afraid to go to Ms. Brannen with questions and instead were calling Respondent to express their concerns and fears. Ms. Brannen would remind Respondent that she had agreed to pass on these types of complaints and concerns to Ms. Brannen so she could address them when they happened. Once, when pressed for names of "registrars" who had "called," Respondent started back-pedaling, and after much dancing around, Respondent ultimately admitted that there was only one registrar who had not called, but sent an email and that email had been forwarded to Ms. Brannen. Ms. Brannen had immediately contacted that registrar, and it turned out there was no confusion, fear, or concerns at all; the registrar was simply confirming the instructions. Respondent also continued to engage in office gossip about Ms. Brannen and complain about Ms. Brannen to others, including Oscar Saliba, a fellow former COBOL programmer, and Mr. Berger, the mediator. Respondent refused to acknowledge that she ever violated the mediation agreement, continuing to insist at the final hearing that she did not violate the agreement. However, Respondent acknowledged that she was obligated by the agreement she signed to bring up problems directly with Ms. Brannen when they occurred. Respondent admitted that she did not do that. Respondent claimed it would do no good to comply with the mediation agreement because "I never got any results, anyway." But Respondent never asked to reopen the mediation agreement. Instead, just as before, she took her issues to co-workers or anyone else who would listen to her complain about Ms. Brannen. January 2010 Performance Evaluation and Resulting Complaints On January 19, 2010, Ms. Brannen met with Respondent to discuss Ms. Brannen's performance evaluation of Respondent. The evaluation was not good. In many categories, Respondent's work performance as state reports coordinator was found to be ineffective, and in other areas, Respondent was found to need improvement. Attached to the performance evaluation were 26 pages of detailed comments and documentation on each category evaluated, explaining the reasons for finding Respondent's performance ineffective or needing improvement. In sum, Ms. Brannen provided substantial performance-based justifications for each evaluation level given. Some of the basic performance problems trace back to the original concern regarding whether Ms. Ehlers had the skill set for this position. Although Ms. Ehlers plainly touted her skills and ability to carry out the responsibilities of state reports coordinator "better than anyone else," a review of the job description used to determine her qualifications shows that in some pretty obvious areas, her skills were lacking. As one example, the job description starts with the following statement under the heading "Knowledge, Skills and Abilities: Above average knowledge of PC applications such as MS Word and Excel." Ms. Ehlers did not have "above average knowledge" of these applications. She admitted as much in her meeting with Ms. Brannen in late August 2009, characterizing her own knowledge of both Word and Excel as only "Basic." She trained enough to pass a test to qualify for the job and believed that whether or not she retained the knowledge was not an issue. The January 2010 evaluation shows why above-average skills--beyond basic and certainly beyond "knew at one point but forgot"--were necessary. As just one example, one of several mistakes Respondent made in an FTE Audit Documentation report, turned in for distribution to executive staff, was described as follows: School Missing from FTE Totals. After adding a new school, Karin did not adjust the Excel table to include the school properly. Finding amounts for that school were not properly reflected in the findings totals, resulting in a misstatement of FTE finding amounts. In the evaluation categories of Personal Relationship (employee's tact, courtesy, self-control, patience and respect for others) and Acceptance of Constructive Criticism, Ms. Brannen's comments were as follows: There have been multiple instances where Karin has become upset, lost control, and left the job. We have recently established a mediation agreement that we hope will resolve this issue. When things go wrong, Karin has a tendency to try to assign blame, rather than focusing on what needs to be done to correct the problem. I have spoken to Karin about this. No one is in a position to evaluate the performance of any employee who is not a direct report. It is inappropriate, and unproductive. Karin is working on this and I have seen some improvement. Karin tends to become combative when she feels her performance is questioned. She has acknowledged that she does not take correction well, and we are working on that. I have noted improvement over the last two weeks. The record amply demonstrates the credibility and fairness of these statements. As will be pointed out below, the critiques echo similar statements made by every other supervisor Respondent worked for at the School Board. Unfortunately, the brief improvement noted in Respondent's behavior came to an abrupt halt with the issuance of this evaluation, which came with a recommendation by Ms. Brannen and Ms. Collesano that Ms. Ehlers be placed on the "notification, evaluation, assistance and time" (NEAT) process. The NEAT process is a performance improvement plan designed to provide greater assistance to employees who need help to succeed in their positions. For classified employees, such as Respondent, who are placed in the NEAT process, more times than not, the employee successfully completes the plan, and the result is that the employee is retained in the position. But termination is a possible outcome, if an employee does not successfully complete the NEAT process. Respondent could have accepted the critiques and dug in to learn or re-learn the skills needed for her new position. Instead, she fell back into a defensive, combative response mode, starting by refusing to sign the evaluation, even though the form makes clear that the employee's signature "does not necessarily indicate agreement." On the morning of February 4, 2010, Respondent finally signed her performance evaluation after her union representative advised her to sign it. Later that morning, after signing her negative performance evaluation, Respondent went to the clerk of the Circuit Court and filed a "Petition for Injunction for Protection Against Repeat Violence" against Ms. Brannen. The Circuit Court denied the petition that same day, finding that "the petition does not set forth facts which warrant the issuance of an injunction." The Circuit Court added the following note: "Injunctions for Protection are not intended to resolve work place disputes." The Hostile Work Environment Complaint The day after her injunction petition was denied, Respondent filed a Hostile Work Environment Complaint, supplemented on February 8, 2010, naming Ms. Brannen as the one who created the hostile environment. Mr. Lempe accepted Respondent's complaint immediately and took it very seriously. He requested that Mr. Jones and Mr. Sprinkle from the Human Resources department assist him with the investigation. Mr. Lempe chose to bring in the Human Resources staff, because they were outside of the IT department and had substantial experience in conducting investigations. Mr. Sprinkle interviewed Respondent twice, at Respondent's request, and he interviewed Ms. Brannen once. Mr. Sprinkle also interviewed 35 other individuals whom Respondent identified as having information regarding her claim of a hostile work environment. Mr. Sprinkle interviewed every District employee identified by Respondent and as many former District employees who agreed to be interviewed. The investigation was comprehensive and thorough.5 April 13, 2010, Weingarten Meeting While the Hostile Work Environment investigation was ongoing, Ms. Collesano proceeded with a Weingarten meeting to address Respondent's conduct through March 2010 that was contrary to the terms of the mediation agreement. After being rescheduled at Respondent's request, the meeting was held on April 13, 2010. Present at the meeting were Ms. Collesano; Respondent; Respondent's union representative, Dee White; and Ms. Fletcher to keep the minutes. During the meeting, Ms. Collesano shared with Respondent a series of emails that Respondent wrote. Instead of addressing the emails and responding to questions, Respondent became very agitated and kept veering off-topic to make accusations against others. Respondent yelled at Ms. Collesano, her department director. Respondent denies this, but every other person in the room, including Respondent's union representative, testified that Respondent yelled at Ms. Collesano. Their consistent testimony is credible; Respondent's denial of what everyone else in the room agreed happened is not credible. Twice during this meeting, Respondent was interrupted by her union representative to advise Respondent to stop, that Respondent was digging herself in a hole, and that Respondent was being very unprofessional. Respondent, however, did not stop. Instead, she accused Ms. Collesano of lying. Again, Respondent denies that she accused Ms. Collesano of lying. But Respondent did admit that she accused Ms. Collesano of "not being truthful" and that there was no difference between "not being truthful" and "lying." Once again, other witnesses in the room recalled quite clearly that Ms. Ehlers called Ms. Collesano a liar. The greater weight of credible evidence supports a finding that Ms. Ehlers did, in fact, call Ms. Collesano a liar, without any apparent basis at the April 13, 2010, Weingarten meeting. Respondent's verbal attack against her department director cannot be justified as legitimate or reasonable behavior for a subordinate. Respondent was insubordinate. Ultimately, Respondent's union representative stopped the meeting. Respondent was emotional and followed her union representative out of the building and into the parking lot. The union representative told Respondent to go back inside the building, go back to work, and not to follow her. April 15, 2010, Refusal to Meet Soon after the April 13 Weingarten meeting, Ms. Collesano reported to Mr. Lempe that she was growing increasingly concerned about her safety. Ms. Collesano also reported that others in the IT department also feared for their safety around Respondent. That report was ultimately confirmed to Mr. Lempe by several of Respondent's co-employees. Mr. Lempe elected to exercise a right available to him under the CBA to require Respondent to submit to a fitness-for- duty psychiatric evaluation before returning to work. A letter was prepared notifying Respondent of this requirement, and Mr. Lempe intended to meet with Respondent at the end of her work day on April 15, 2010, to deliver the letter to her. At approximately 4:15 p.m., on April 15, 2010, Mr. Lempe was on his way to the green awning building, less than two minutes away. Ms. Collesano met Mr. Jones of Human Resources in the lobby, and they waited for Respondent. As Respondent approached, Ms. Collesano asked her to stop to meet with her and Mr. Jones for just a few minutes. Respondent did not stop or break stride, but kept walking right past Ms. Collesano and Mr. Jones, saying that she had to leave to pick up her kids. Shortly after leaving the building, Respondent called Pam Newton, the receptionist who was in the lobby and who witnessed Respondent's exit. Respondent told Ms. Newton that the reason she did not stop was that Respondent thought she was about to be fired because she "blew up" and "lost it" at the Weingarten meeting two days earlier. Respondent told Ms. Newton that her union representative, Dee White, was mad at her, too, and thought Respondent's behavior could result in her getting fired. Respondent denies this telephone call. However, Ms. Newton's testimony was credible and corroborated by her written note of the incident shortly after it occurred. While Respondent testified that she had arranged to leave early at 4:15 p.m., to pick up her children, her conduct and her admission to Ms. Newton suggest a different reason for not stopping, even for a minute or two, for the brief meeting requested by her department director. According to Respondent's testimony, Mr. Jones and Ms. Collesano told her to come see them first thing the next morning, which would have been Friday, April 16, 2010. Respondent did not do so; she called in sick. It was not until Monday, April 19, 2010, that administration was able to deliver the letter to Respondent requiring an evaluation before returning to work. The next day, on April 20, 2010, Respondent filed two reports with law enforcement alleging that Ms. Brannen had committed two batteries on Respondent, one in October and one in November 2009. These same incidents were the basis for Respondent's prior petition for injunction against Ms. Brannen, which was denied. One allegation was that on October 23, 2009, Ms. Ehlers was moving boxes, and Ms. Brannen grabbed Ms. Ehlers' arm to stop her because she was putting the boxes in the wrong place. The other allegation was that on November 13, 2009, Ms. Ehlers was seated at her work station, and Ms. Brannen put her hands on Ms. Ehlers' shoulders and shook her while scolding her for writing something the wrong way. Respondent's explanation for not bringing up these allegations until five to six months after they occurred was that she did not realize they were batteries. No credible evidence was presented to establish that these incidents actually occurred, and Ms. Brannen denied them. There were no witnesses, even though both allegedly occurred at the workplace where others routinely were present. Outcome of Hostile Work Environment Complaint By letter dated April 26, 2010, Mr. Sprinkle transmitted to Mr. Lempe a big notebook organized with the information he had gathered in conducting the Hostile Work Environment Complaint investigation. Included were transcripts of Respondent's and Ms. Brannen's interviews, summaries of the 35 other interviews conducted, and additional material. Mr. Lempe reviewed in-depth the notebook of materials provided by Mr. Sprinkle. Mr. Lempe also followed up on issues identified in the materials, speaking again with several of the persons who had been interviewed to get more information. He also reviewed additional records, creating a notebook of his own. Mr. Lempe's conclusions on the Hostile Work Environment investigation were set forth in a memorandum dated May 6, 2010, and sent to Respondent. Mr. Lempe determined that there were two main themes evident from the investigation: first, that Ms. Brannen has high expectations of herself and those who work for her, is very precise and, generally, is a very intense manager; and second, that it was Respondent's behavior, not Ms. Brannen's behavior, that created an environment of fear and intimidation in the IT department, both with co-employees and with supervisors. Mr. Lempe concluded that a hostile work environment was shown to exist, but that contrary to Respondent's complaint, Respondent was the root cause of that environment, not Ms. Brannen. Mr. Lempe's conclusion was supported by the greater weight of the more credible evidence at the final hearing. As already noted, Respondent went out of her way to complain and make negative comments about Ms. Brannen to her co-workers and others. Her co-workers in the IT department, in particular, were subjected to interruptions during the workday and were bothered by this constant diatribe. Numerous employees testified to Respondent's bizarre behavior during the time she was in the state reports coordinator position. For instance, Respondent would enter a room, but not join a conversation. Instead, she would peer over the cubicles to eavesdrop on others' conversations. Respondent was famous for giving dirty looks to her co-workers--she would stare at them, scowl, glare, and smirk. Respondent also followed employees around, tracking them when they would leave their desks with no work-related reason for doing so. When employees sat outside on a break, Respondent stared at them through windows from inside the building. Outside the building, Respondent would drive her vehicle slowly by employees, staring at them to the point of making them feel uncomfortable. Perhaps one explanation for Respondent's stalking-type behavior was that she was looking for ammunition to complain about her co-workers. Respondent constantly complained about others allegedly engaging in various improprieties, including lying on their time cards, taking too-long lunches and breaks, and improperly talking about Respondent's Hostile Work Environment Complaint investigation. Respondent must have spent a tremendous amount of her work days focusing on the activities of her co-workers. Additional resources were spent by Ms. Collesano or Ms. Brannen, taking the time to promptly investigate each of Respondent's complaints about her co-workers. Then Respondent would complain because the investigated co-workers learned that Respondent had complained about them. In addition to Respondent's stalking-type behavior, Respondent disrupted the workplace by slamming doors and yelling frequently, and exhibiting displays of anger that were upsetting to other workers. She started petty fights over mundane things like pastries and recipes. More seriously, she made threatening comments that made her fellow co-workers uneasy. A number of these IT employees testified that they feared for their own safety because of Respondent's threats. Whether or not Respondent was actually dangerous or would ever carry out her threats, Respondent's threats were perceived to be serious and were very troubling to those hearing them. Respondent's threatening comments were also a matter of great concern to her own union and were among the reasons given for the union's recent termination of Respondent's membership. Dee White, Respondent's former union representative, testified that one of Respondent's co-workers and fellow union members called to express a concern that Respondent might become violent. The union president, Patricia Gardner, whom Respondent called to testify on her own behalf, identified three reasons standing behind the union's decision to terminate Respondent's membership. One reason was that in one of Respondent's many emails complaining about Ms. Brannen, Respondent falsely stated that Ms. Gardner had made negative comments to Respondent about Ms. Brannen. Ms. Gardner never made any such comments. A second reason was described as follows by Ms. Gardner: [T]he main thing that started it [discussion of terminating Respondent's membership] and was taken to my board where they discussed it and brought Ms. Ehlers in was her going to a representative at the Landings to pick up a T-shirt. And in the conversation, which was very one-sided, saying Barbara Brannen needs to die, which was very upsetting to her and upsetting to my board. Ms. Gardner explained that Respondent was called in to give her side of the story to the board. She denied saying to a union representative that Ms. Brannen needs to die, but the board believed she did say it. The board asked Ms. Gardner to speak to Respondent, and so the two of them had a discussion. Ms. Gardner described how she told Respondent to stop talking about Ms. Brannen: "Don't say those things. They're inappropriate. You can get in a lot of trouble for saying that sort of stuff. Just stop." Ms. Gardner described Ms. Ehler's response in which she said, "Oh, okay," she would stop. But shortly after that conversation, the April 13, 2010, Weingarten meeting, occurred. Respondent's behavior at that meeting was the final straw for the union, and Respondent's membership was terminated. A few witnesses testified in support of Respondent on the subject of whether they were aware of her threats or were afraid of her. A few male witnesses of not-so-small-stature testified that they were not "personally" fearful of Respondent. But one of these witnesses equivocated: Q: Have you ever had any reason to be fearful around Ms. Ehlers? A: Physically fearful? Q: In any way, really. A: Well, I guess we got to define fearful. I mean, afraid for my life or something? Q: Right, right. A: In that case, no. Q: Afraid any other way? A: Well, she's unpredictable. In addition, one female witness who had only known Respondent since arriving at the IT department in July 2009, testified that she did not understand why others disliked Respondent.6 This testimony was insufficient to detract from the more credible and substantial testimony that many others had a reasonable basis to be bothered and uncomfortable, at best, and fearful for their own safety, at worst, because of Respondent's behavior. Respondent attempted to prove, as in her Hostile Work Environment Complaint, that the real culprit was Ms. Brannen. Respondent presented the testimony of several witnesses, some long retired and some long moved away from the IT department and the green awning building, to attest to the difficulty of working for Ms. Brannen. As previously found, there is no doubt that Ms. Brannen can be difficult to work for if the employee does not measure up to her demanding high standards. There was some evidence that in the past, Ms. Brannen's management style may have been overly harsh at times. But the evidence also established that corrective steps were taken. Specifically, since Ms. Collesano became IT department director in August 2007, she has mentored Ms. Brannen. Ms. Collesano also sent Ms. Brannen to the Academy of Leadership Excellence for a program specifically designed to improve managerial skills. Since that time, there has been marked improvement in Ms. Brannen's management style, as attested to by those with knowledge, who maintain a current working relationship with Ms. Brannen (as opposed to those who retired or moved on long ago). The greater weight of the more credible evidence establishes that Ms. Brannen did not create a hostile work environment while Respondent was working under Ms. Brannen's direct supervision. Ms. Brannen created a demanding work environment where high standards were expected. Indeed, the mediation agreement between Respondent and Ms. Brannen, which was developed with the help of Mr. Berger, recognizes the appropriateness of Ms. Brannen's high expectations and confirms the reasonableness of her requiring accuracy in the highly detailed work she supervises. Respondent also claimed that Mr. Lempe's hostile work environment conclusion was improperly based on his review of court records, including numerous injunction petitions filed by Respondent or against Respondent, and court orders in those proceedings. Mr. Lempe testified that he did not rely on those filings for the truth of the matters asserted. The material that was unrelated to Respondent's unsuccessful filings against Ms. Brannen discussed above arguably could have been excluded from the record pursuant to Subsection 120.57(1)(d), Florida Statutes, but no objection on that basis was made. Instead, Respondent stipulated to their admission into evidence. Regardless, those documents do not add anything to the testimony and the competent substantial evidence of record and have not been used as the basis for any findings of fact herein. Context of Respondent's Work History As noted in recommending termination of Respondent's employment, the specific incidents on which the Superintendent based her recommendation all stemmed from Respondent's behavior and actions in 2009-2010. But the Superintendent also reasonably considered the recent events in the context of Respondent's work history with the School Board. Consideration of that history adds more credence and support to the concerns with Respondent's recent actions. The patterns of inappropriate behavior and serial insubordination have long been present; they have just been carried to the extreme, over the top, by recent events. Loretta Brustlin was Respondent's first supervisor. In 1996, Ms. Brustlin gave Respondent a negative performance evaluation, noting that Respondent "did not work well with employees" and was "very defensive and easily upset." Ms. Brustlin stated that "there have been a number of situations which have resulted in direct confrontation with other employees and administration." Respondent wrote a rebuttal to the evaluation, stating that she had been "verbally abused, intimidated, humiliated, and belittled." She claimed that "certain co-workers have harassed me and tried to make me as miserable as they can. They don't behave professionally and lack in common courtesy." She claimed that co-workers were "mean, nasty, and won't answer when I asked a work related question." She ended her rebuttal with this: With the turbulent work environment, certain co-workers hiding my listings, and trying to get me upset or in trouble, its [sic] not surprising that I have been defensive. I have been visibly shaken on many ocassions [sic] due to the treatment I have received. Respondent also filed complaints against Ms. Brustlin, including one complaint alleging that Ms. Brustlin had battered Respondent. Just as in Respondent's injunction petition and police reports against Ms. Brannon, Respondent claimed that Ms. Brustlin grabbed her by her shoulders and shook her; Ms. Brustlin denied doing so. Respondent also filed complaints in 2002 against her next supervisor, Brad Schuette. These complaints were filed after Mr. Schuette issued two consecutive Memoranda of Instruction in 2001 regarding Respondent's disrespectful, unprofessional, argumentative, and condescending behavior. One of Respondent's complaints claimed that Mr. Schuette discriminated on the basis of religion and sex. She accused Mr. Schuette of yelling and screaming at her and being unprofessional. In an appeal of the denial of that complaint, Respondent claimed that Mr. Schuette "lied to protect himself" and was "definitely guilty of harassment." She complained about his lack of skills as a manager, defensively stating that Respondent was "not a child." Mr. Schuette gave Respondent a negative performance evaluation in August 2002, in which he rated Respondent as "not effective" in areas such as cooperation, acceptance of constructive criticism, initiative, and quality of work. Once again, Respondent wrote a rebuttal, stating as follows: Since I first began my employment [in November 1991], it has been evident to me that there have been extreme personnel problems. On numerous occasions, I have been verbally abused, intimidated, humiliated, and belittled. I have been visibly shaken on many occasions due to the treatment I recieve [sic]. Now I have been harassed by you . . . I hear complaints daily about the administration in this department. . . . In contrast to this grim report of constant problems with colleagues and supervisors, when Respondent was showering Mr. Lempe with emails to complain about how horrible it was to work for Ms. Brannon, she painted a very different picture of her prior experiences at the School Board. On October 22, 2009, for example, she complained that "Barbara just came and lectured me . . . I have never been treated like this in any positon [sic] I have ever worked in. People have always worked as a team." Similarly, at the final hearing, Respondent testified that she has enjoyed most of her years with the School Board. Respondent testified that her best years working for the School Board were when she was supervised by Bob Darois--so good that she never filed a complaint against him. But by her own admission, Respondent hardly worked during those years: "[W]hat I want to say is for five years not only myself, but three other programmers sat there with next to nothing to do. We just fiddled [sic] our thumbs." Mr. Darois, who retired in June 2009, testified at the final hearing. He was very low-key and mild in demeanor. Yet, even Mr. Darois made negative comments in his mild way, in his 2008 evaluation of Respondent, which he confirmed at the final hearing. In 2008, he said that Respondent "[n]eeds to work on interpersonnal [sic] skills" and be "more tactful in dealing with peers." He noted that "[w]e must all work together and be part of a team." At hearing, Mr. Darois explained that he made these comments because Respondent had "issues" with other programmers. Mr. Darois also commented in the 2008 evaluation that Respondent "should be more open-minded regarding constructive criticism." At hearing, he explained that Respondent would react to criticism by comparing herself to others: "You know, so and so didn't do this; why should I?" Respondent's most recent experience with a new authority figure showed a continuation of her behavior patterns. Even though Respondent was initially pleased with Mr. Lempe's attention to her complaints, Respondent ultimately complained about Mr. Lempe, too, right after receiving his determination on the Hostile Work Environment Complaint investigation. Respondent sent an email to the Superintendent and others claiming that Mr. Lempe had "harassed and intimidated" Emily Gilmore and that he had committed a felony by unlawfully imprisoning Ms. Gilmore. Respondent made this claim even though she was not present and did not witness any such conduct, and Ms. Gilmore never stated that Mr. Lempe unlawfully imprisoned her or committed a felony.7 Considering Respondent's work history as a whole, the greater weight of credible evidence establishes that Respondent has never tolerated supervisory authority well. Under the guise of demanding respect and professionalism, Respondent was really demanding that she be left alone to perform her job as she saw fit, without questioning methods or results and without criticism. Whenever a supervisor has corrected or criticized Respondent, that supervisor has quickly become the subject of one of Respondent's many complaints. Respondent has a pattern of being derisive and disrespectful to her supervisors and blaming them for her own insubordination. Respondent has a consistent pattern of blaming her own shortcomings on others and has been repeatedly characterized, with good cause, as very defensive and easily upset over her years employed at the School Board. Her behavior is volatile and unstable and is highly disruptive to the work place. With a few isolated exceptions, she does not get along with others and is not a team player. Indeed, she goes out of her way to make the work lives of many of her co-workers miserable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Sarasota County School Board, enter a final order terminating Respondent, Karin Ehlers's, employment. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 November, 2010.
The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
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 20th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues are whether Respondent violated regulatory requirements to maintain and to implement a written policy that prohibits the neglect of nursing home residents; whether Petitioner should have changed the status of Respondent's license from Standard to Conditional; and whether Petitioner should fine Respondent $2,500 and recover investigative costs.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Subsection 400.23(7), Florida Statutes (2003). Respondent is licensed to operate a nursing home located at 710 North Sun Drive, Lake Mary, Florida 32746 (the facility). The facility admitted Resident 1 on November 20, 2000. Resident 1 was immobile and could not communicate verbally. She depended on a feeding tube for nourishment. On August 10, 2003, facility staff found ants in Resident 1's room. The ants had not bitten Resident 1. Staff sprayed the room with bug spray and then called the pest control company responsible for providing pest control at the facility (the pest control company). On August 12, 2003, the pest control company treated all of the rooms on the affected wing of the facility with ant bait gel and noted in the facility's pest control log that the problem in the affected area was "resolved." On the same day, another company treated the grounds outside the facility. During the early morning of August 20, 2003, facility staff found Resident 1 in her bed with ants and ant bites on her body. Staff immediately removed Resident 1 from her bed, showered her, called her doctor, and obtained orders for medications to treat the ant bites. Facility staff also treated the room and removed any ants that staff observed. Resident 1 went to the hospital briefly and then returned to the facility. Respondent notified Petitioner of the incident, and Petitioner sent two surveyors to the facility on August 22, 2003. Thereafter, Petitioner charged that the facility committed a Class II violation of 42 C.F.R. Section 483.13(c)(1). The relevant federal regulatory requirements are also set forth in what is identified in the record as Tag F224. Tag F224 requires the facility to maintain and to implement written policies and procedures that prohibit the neglect, abuse, and mistreatment of residents (an anti-neglect policy). Respondent does not dispute that the ant bites to Resident 1 on August 20, 2003, constituted harm sufficient to support a Class II violation, if Respondent violated the requirements to maintain and to implement an anti-neglect policy. The preponderance of evidence does not show that Respondent violated those requirements. Respondent maintained an anti-neglect policy that satisfied the requirements in Tag F224. In relevant part, the policy sets forth the standards and processes for identifying potential incidents of neglect of residents; investigating those incidents; and reporting them to appropriate agencies. Petitioner was unable to identify any component of Respondent's anti-neglect policy that violated the requirements of Tag F224. Petitioner also was unable to identify any other required policy that Respondent failed to maintain. Respondent implemented its anti-neglect policy. Facility staff identified the potential risk of harm, investigated the risk, implemented professional pest control treatments to all rooms on the same wing of the facility as the affected room, and treated the lawn outside the facility. The facility reported the incident to Petitioner. Petitioner was unable to identify any component of the anti-neglect policy, or that of any other policy, that Respondent did not implement to prevent the incident involving Resident 1. Irrespective of the anti-neglect policy that Respondent maintained and implemented, Petitioner sought to prove at the hearing that Respondent violated quality of care requirements. The Administrative Complaint does not allege that Respondent violated a quality of care requirement. If it were determined that the ALJ has authority to find Respondent guilty of violating a quality of care requirement not alleged in the Administrative Complaint, the preponderance of evidence does not show that the quality of care exercised by facility staff after they discovered ants on August 10, 2003, was deficient. Petitioner sought to prove that Respondent violated quality of care requirements by failing to provide adequate pest control service to the affected room. Petitioner did not identify any additional pest control procedures that applicable law required the facility to provide. Nor did Petitioner identify any pest control treatment or service that the facility could or should have provided to prevent the ant bites to Resident 1 on August 20, 2003. Petitioner also sought to prove that Respondent violated quality of care requirements by failing to increase monitoring of Resident 1. Petitioner failed to cite any legal standard that required facility staff to increase their monitoring of Resident 1 between August 10 and 20, 2003. The standard of practice in nursing homes is to monitor residents every two hours. No standard required a higher level of monitoring after August 10, 2003. There was no evidence that Respondent failed to monitor Resident 1 every two hours between August 10 and 20, 2003. Strict liability is not the appropriate standard for determining whether Respondent is responsible for the harm suffered by Resident 1 on August 20, 2003. The preponderance of evidence does not show that Respondent failed to provide any required goods or services to Resident 1. The ant bites on August 20, 2004, occurred despite the reasonable care undertaken by Respondent to prevent the ant bites.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order deleting the disputed deficiencies from the Survey Report for August 20, 2003; replacing the Conditional rating from August 22, 2003, until October 15, 2003, with a Standard rating; finding Respondent not guilty of the remaining allegations in the Administrative Complaint; and denying the proposed fine and recovery of investigative costs. DONE AND ENTERED this 8th day of June, 2004, 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 8th day of June, 2004. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Donna Holshouser Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 R. Davis Thomas, Jr. Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Respondent committed an unfair employment practice by discriminating against Petitioner on the basis of race, in violation of chapter 760, Florida Statutes (2012), and Title VII of the Civil Rights Act.
Findings Of Fact Mr. Nepton is a Hispanic man who worked as a collector for CCS from November, 2011, to February, 2012. CCS is a collection agency that employs approximately 80 collectors, who are divided into departments based on the different accounts they service. Mr. Nepton was originally hired to work under the supervision of Julio Castellon, and then was transferred to a unit supervised by Danielle Santilli. All of the work collectors perform is via telephone; persons who have outstanding bills are called in order to attempt collection of the debt. During his training in Ms. Santilli's department, he received most of his training from Ms. Santilli. According to Mr. Nepton, during these training sessions, Ms. Santilli made derogatory comments about Hispanic people. If the person being called was Hispanic, she would mention that Hispanic people were stupid, dumb, and never paid their bills. Mr. Nepton claims that the comments were made throughout his entire training, which lasted approximately one month. He claims that he reported his dislike of the derogatory comments to Ariel Castellon, a supervisor. Ms. Santilli testified, and denied ever making any derogatory or inappropriate remarks about Hispanics. Mr. Castellon also denied any knowledge of Ms. Santilli making any such remarks, and testified that Mr. Nepton never complained of any such comments while he worked at CCS. Lori French testified that in her capacity as the Human Resources Director, she never received any type of complaint regarding Ms. Santilli from any employee. The undersigned credits the testimony of the CCS employees, finding it consistent and credible in light of the scant evidence produced by Mr. Nepton. Mr. Nepton did not produce a single witness who could corroborate his testimony, despite the fact that the collectors worked in an open area, in close proximity to each other. The employee handbook instructed employees to report any workplace harassment of any type with the Human Resources Department. Mr. Nepton never filed such a complaint with the Human Resources Department. On February 1, 2012, Mr. Nepton received a call from a patient of a hospital inquiring as to whether the account was paid in full. Mr. Nepton requested the patient's date of birth, but the patient asked why that information was necessary. Mr. Nepton raised his voice and became argumentative with the patient. When Mr. Nepton was asked about the phone call by his supervisor, he became argumentative in the presence of the other collectors. On February 2, 2012, Mr. Nepton met with management regarding the incident on the previous day. He became agitated, raised his voice, and pointed his finger in the supervisor's face. Mr. Nepton, who was on probationary status, was discharged from his employment on that date.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief. DONE AND ENTERED this 19th day of December, 2012, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 19th day of December, 2012.
