The Issue The issue in this case is whether the Respondent has committed the violations as charged.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. In July 2008, Respondent was hired by Petitioner as a sanitation equipment operator. At the time, Respondent was given a copy of the employee handbook. Receipt of this document was acknowledged by Respondent. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resources Policy Manual. The July 16, 2010 letter, which informed Petitioner of his termination, cited to the following provisions of the Human Resources Policy Manual, which state as follows: Section F-4 Disciplinary Offenses * * * (4) Conduct Unbecoming an ECUA Employee Any act or activity on the job or connected with the job which involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee's effectiveness as an ECUA employee, or that adversely affects the employee's ability to continue to perform their job, or which adversely affects the ECUA's ability to carry out its assigned mission. Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. The seriousness of the conduct which constitutes a "conduct unbecoming an ECUA employee" offense determines the appropriate penalty. Further, the repetition of the same or similar conduct may lead to progressive discipline. If an employee repeatedly engages in conduct unbecoming, but the acts or conduct which are unbecoming are dissimilar to each other, cumulative discipline may be imposed. * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes. This may include, but is not limited to, misuse of position, giving or accepting a bribe, discrimination in employment, or actual knowledge of and failure to take corrective action or report rule violations and employee misconduct. The termination letter concluded that the facts and circumstances surrounding Respondent's conviction of a third- degree felony constitute a violation of the above-quoted provisions. On November 30, 2009, Respondent was arrested and charged with 1) "sexual assault/sexual battery, victim over 12 years of age, physical force"; and 2) "cruelty toward child abuse without great harm." On June 16, 2010, the State filed a nolle prosequi regarding the first charge of sexual assault/sexual battery, victim over 12 years of age, physical force. Thus, this charge was dropped, resulting in no conviction of this charge. Also on June 16, 2010, Respondent pled nolo contendere/no contest to the second charge of cruelty toward child abuse without great harm. This plea resulted in a conviction of this charge, which is a third-degree felony. The court placed Respondent on probation for three years. Ronald Ross is a deputy with the Escambia County Sheriff's Office. In October 2009, Deputy Ross worked in the special victims unit concerning crimes of a sexual nature against children and the elderly. Deputy Ross interviewed Respondent on October 30, 2009, regarding the incident that led to criminal charges being filed. At the time of the interview, Respondent was not under arrest. The interview took a little over an hour. During the interview, Deputy Ross described the allegations: that Respondent touched and fondled the breast and vaginal area of a 16-year old victim; that his finger penetrated the victim's vagina; and that Respondent exposed his penis to the victim. According to Deputy Ross, Respondent initially denied all of the allegations, but, as the interview went on, he admitted to some of the allegations. That is, Respondent admitted to touching the girl, denied exposing himself, and asserted that the girl was a willing participant in the encounter. Despite Respondent's initial reluctance to admit to the offense, Deputy Ross described Respondent as very cooperative during the interview. At hearing, Respondent did not wish to discuss the specific facts and circumstances of the incident in detail, which is his right. He insists, however, that he was not looking for trouble, that the "young lady" approached him, and that he pled out only because he did not have the financial resources to pay his attorney to go to trial. Despite the above, Respondent is remorseful for his actions. Respondent is concerned that the investigation of this incident conducted by ECUA was not complete. In particular, he is concerned that ECUA relied only on the Deputy's investigative interview of him, and did not review depositions in the court file that led to the prosecutor dropping the more serious charge. He also questions whether he is the only ECUA employee with a third-degree felony who was fired. There is no evidence in the record to establish whether Respondent was treated any differently than other employees who were convicted of offenses of the same category, i.e., third degree felonies. Respondent had a felony conviction prior to becoming employed by ECUA. In 2000, Respondent was convicted of a drug conspiracy charge and served a prison sentence for that crime. He disclosed his criminal background to ECUA when he was hired. Randall Rudd is the Sanitation Director for ECUA. He was aware of Respondent's prior conviction, but despite this, made the decision to hire Respondent in 2008. When Mr. Rudd learned of Respondent's 2010 conviction, he became concerned that this conviction could have an impact on Respondent's job. Specifically, Respondent was assigned yard trash collection. This involved regular interaction with the public, in that customers regularly ask questions of the sanitation operator, and the driver is often the only employee on the truck. In addition to the conviction itself, Mr. Rudd was concerned about the nature of the offense, Respondent's contact with the public, how the public might view ECUA, and potential liability to ECUA. Mr. Rudd acknowledged that Respondent was a good employee who never had any problems dealing with the public, and that his decision to terminate Respondent was not an issue of job performance.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utility Authority find that Respondent violated its Human Resource Policies F-4 (4) and (33) and impose such discipline on Respondent as determined appropriate under the provisions of the Human Resource Policy Manual. DONE AND ENTERED this 4th day of November, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 November, 2010. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Ron E. Williams 7041 Andros Drive Pensacola, Florida 32506 Richard C. Anderson, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
The Issue Whether Respondent violated provisions of Petitioner’s Human Resources Manual and Employee Handbook (“the Manual”) on April 27, 2018, and on May 3, 4, 8, 9, 12, 16, 17, 24, and 31, 2018, as charged in the agency action letter dated June 22, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. Mr. Boyd has worked for ECUA since at least November of 1997 and acknowledged on June 25, 2012, that a copy of the Manual was available to him. During all times relevant to the instant case, Mr. Boyd was assigned to ECUA’s patch services division (“patch crew”). A significant part of the patch crew’s work involves filling holes left after other ECUA employees have performed utility work. The patch crew consists of eight people who normally work from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break and two 15-minute breaks. In addition to his employment with ECUA, Mr. Boyd owns an automobile mechanic shop in Pensacola, Florida, known as Boyd’s Motorsports. An anonymous e-mail to Gerry Piscopo, ECUA’s Deputy Executive Director of Maintenance and Construction, alleged that the patch crew was leaving work early and incurring overtime by intentionally being lackadaisical in completing work assignments. As a result, ECUA initiated an investigation of the patch crew’s daily activities. ECUA retained a private investigator, Terry Willette, to surveil the patch crew and videotape their daily activities. From April of 2018 to some point in June of 2018, Mr. Willette routinely surveilled the patch crew for 4 to 12 hours a day. Mr. Willette’s work was facilitated by global positioning devices (“GPS”) that ECUA installed on every truck utilized by the patch crew. The GPS devices transmit a vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. Findings Regarding the Allegations from April 27, 2018 Mr. Boyd filed a “Daily Overtime Report” noting that he worked from 3:30 p.m. to 8:30 p.m. on April 27, 2018. Because the patch crew’s workday normally ends at 3:30 p.m., Mr. Boyd claimed five hours of overtime. Mr. Willette was following Mr. Boyd that night and observed him arriving at Boyd’s Motorsports in an ECUA truck at 7:38 p.m. Mr. Boyd left Boyd’s Motorsports at 8:02 p.m. Soon afterward, Mr. Willette lost visual contact with the ECUA truck driven by Mr. Boyd and was unable to follow Mr. Boyd to his next destination.2/ Mr. Boyd testified that he was preparing for the next day’s work assignments when he arrived at Boyd’s Motorsports that evening. According to Mr. Boyd, he and other ECUA employees would freely use resources available at Boyd’s Motorsports in order to further ECUA work. Mr. Boyd also testified that he was either: (a) in route to address a customer complaint when he left Boyd’s Motorsports at 8:02 p.m.; or (b) driving the ECUA truck to his home because he had been ordered to proceed directly to a particular worksite the next morning. Mr. Boyd’s testimony about the extent to which he and other ECUA employees freely utilized the resources of Boyd’s Motorsports to facilitate ECUA work lacked credibility.3/ As a result, the preponderance of the evidence demonstrates that Mr. Boyd was not working on ECUA business when he stopped at Boyd’s Motorsports from 7:38 p.m. to 8:02 p.m. on April 27, 2018. Therefore, Mr. Boyd erroneously reported working five hours of overtime that day. Findings Regarding the Allegations from May 3 and 4, 2018 Mr. Boyd filed a “Daily Overtime Report” indicating he worked 8.5 hours of overtime from 3:30 p.m. to 12:00 a.m. on May 3, 2018. He filed another “Daily Overtime Report” indicating he worked seven hours of overtime from 12:00 a.m. to 7:00 a.m. on May 4, 2018. The majority of the claimed overtime pertained to an assignment on Cervantes Street in downtown Pensacola involving a sewer system repair. Another crew led by Michael Killen was responsible for performing the primary repair work, and the patch crew was to move in after Mr. Killen’s crew had completed its work. Mr. Killen’s crew arrived at the worksite at 7:00 p.m. on May 3, 2018, and finished its work at 3:30 a.m. Even though Mr. Killen’s crew was still working, the patch crew arrived onsite several hours prior to Mr. Killen’s crew completing its work. While the patch crew provided whatever assistance it could during that downtime, it spent most of that time waiting for Mr. Killen’s crew to leave. When Mr. Killen’s crew left at 3:30 a.m., the patch crew began actively working. Given that the worksite was in downtown Pensacola, it is reasonable to infer that the work needed to be completed as quickly as possible. Therefore, it was not unreasonable for the patch crew to be onsite and ready to immediately begin its work.4/ In addition, the testimony indicated this was a complex assignment for all concerned and that the patch crew may have provided valuable assistance to Mr. Killen’s crew. The preponderance of the evidence does not demonstrate that Mr. Boyd erroneously reported the overtime he worked on May 3 and 4, 2018. Findings Regarding the Allegations from May 8, 2018 On May 8, 2018, Mr. Willette observed Mr. Boyd and a coworker driving an ECUA truck with several bags of concrete to Boyd’s Motorsports. Mr. Willette shot video of Mr. Boyd and his son Tony loading the concrete bags onto a pickup truck driven by Tony Boyd. Mr. Boyd testified that the concrete had to be disposed of because the bags had become wet and the concrete inside was ruined. Rather than using the ECUA truck to transport the concrete to a landfill or some other disposal area, Mr. Boyd had his son, who was not an ECUA employee, dispose of the concrete. As for why he did not use the ECUA truck to take the concrete directly to a disposal area, Mr. Boyd explained it would have been too time consuming given the locations of the patch crew’s work assignments that morning. Multiple aspects of Mr. Boyd’s testimony lacked credibility: (a) that ECUA routinely allowed concrete to become ruined through exposure to moisture; (b) that Mr. Boyd enlisted someone not employed by ECUA to dispose of ECUA property; (c) that Mr. Boyd did not need authorization in order to dispose of the concrete; and (d) that Mr. Boyd was concerned about spending an excessive amount of time in transit from a landfill to a worksite. The preponderance of the evidence demonstrates Mr. Boyd did not have authorization to take the concrete. Mr. Willette also observed Mr. Boyd driving the same ECUA truck to a CVS pharmacy and spending 16 minutes there on May 8, 2018. While Mr. Boyd had no business purpose for stopping at the pharmacy, it is certainly possible that this stop occurred during one of his authorized 15-minute breaks or that it was a bathroom stop.5/ The preponderance of the evidence does not demonstrate that Mr. Boyd violated any Manual provisions when he stopped at a pharmacy on May 8, 2018. Findings Regarding the Allegations from May 9, 2018 Mr. Boyd filed a “Daily Overtime Report” indicating he worked 2.5 hours of overtime on May 9, 2018. However, ECUA did not present any exhibits to substantiate its allegation that Mr. Boyd left work at 5:49 p.m. The preponderance of the evidence does not demonstrate that Mr. Boyd filed an erroneous timesheet on May 9, 2018. Findings Regarding the Allegations from May 12, 2018 On May 12, 2018, Mr. Willette began following Mr. Boyd at 9:08 a.m. After completing an assignment on East Chase Street, Mr. Boyd testified that he worked on three other assignments on Creighton Road, Spanish Trail, and Davis Highway before finishing his workday at 3:05 p.m. Mr. Willette testified that he did not see Mr. Boyd performing any meaningful work on Creighton Road, Spanish Trail, and Davis Highway. The relevant GPS report indicates the ECUA truck utilized by Mr. Boyd that day was idling when no work was being performed. Because Mr. Willette’s testimony was more credible, the preponderance of the evidence demonstrates that Mr. Boyd did no work after leaving East Chase Street on May 9, 2018. Findings Regarding the Allegations from May 16, 2018 Mr. Boyd’s timesheet for May 16, 2018, indicates he arrived at work at 7:00 a.m. and left at 3:30 p.m. It also indicates he worked eight hours that day. Mr. Willette surveilled Mr. Boyd on May 16, 2018. He observed Mr. Boyd and a coworker leaving ECUA that morning and driving directly to Dodge’s Chicken Store. Mr. Boyd remained inside the store for a few minutes and left appearing to be carrying two food items. Mr. Willette observed Mr. Boyd having lunch with an unidentified female from 11:30 a.m. until 12:16 p.m. Mr. Boyd drove his personal vehicle from ECUA property at 3:15 p.m. and arrived at a J.C. Penny’s store at approximately 3:29 p.m. Mr. Boyd drove away from the store at approximately 3:33 p.m. with another unidentified female. The preponderance of the evidence demonstrates that Mr. Boyd did not work eight hours on May 16, 2018. The stop at Dodge’s Chicken Store could have been one of Mr. Boyd’s 15-minute breaks. However, as noted above, patch crew members have a 30-minute lunch break, and Mr. Boyd spent 46 minutes at lunch that day. Also, while a patch crew member’s day usually ends at 3:30 p.m., Mr. Boyd left work at 3:15 p.m. Findings Regarding the Allegations from May 17, 2018 Mr. Boyd’s timesheet for May 17, 2018, indicates he arrived at work at 7:00 a.m. and left at 3:30 p.m. It also indicates he worked eight hours that day. Mr. Willette surveilled Mr. Boyd that day and observed him leaving Baptist Hospital at 8:11 a.m. following a medical appointment. Mr. Boyd then proceeded to Boyd’s Motorsports. The preponderance of the evidence demonstrates that Mr. Boyd’s May 17, 2018, timesheet is inaccurate. He was not continuously working from 7:00 a.m. to 3:30 p.m. on May 17, 2018. Findings Regarding the Allegations from May 24, 2018 Mr. Boyd’s timesheet for May 24, 2018, indicates he reported to work at 6:57 a.m. and left work at 3:30 p.m. It also indicates he worked eight hours that day. Therefore, his time entries indicate he took a standard 30-minute lunch break that day. Mr. Willette observed Mr. Boyd and a coworker meeting a third man for lunch at Miller’s Ale House at 11:08 a.m. that day. The trio left the restaurant at 12:17 p.m. Mr. Boyd testified that the third man was an ECUA supervisor and that work was discussed over lunch. Even if that assertion is accurate, there is no dispute that Mr. Boyd’s lunch on May 24, 2018, exceeded 30 minutes. The preponderance of the evidence demonstrates that Mr. Boyd’s May 24, 2018, timesheet is inaccurate. Findings Regarding the Allegations from May 31, 2018 Mr. Boyd’s timesheet for May 31, 2018, indicates he arrived at work at 6:57 a.m. and left at 3:30 p.m. Mr. Willette photographed Mr. Boyd driving his personal vehicle from ECUA property at 7:10 a.m. A coworker picked up Mr. Boyd at Boyd’s Motorsports approximately two hours later. The preponderance of the evidence indicates that Mr. Boyd’s May 31, 2018, timesheet is inaccurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Robert D. Boyd, Sr., violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; Section B-13 A (17), leaving a work station without authorization; Section B-13 A (18), loafing; Section B-13 A (21), neglect of duty; Section B-13 A (26), substandard quality and/or quantity of work; Section B-13 A (27), theft or stealing; Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law; and Section B-37, vehicle and equipment idle reduction. DONE AND ENTERED this 21st day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2018.
The Issue The issue to be resolved in this proceeding concern whether the Petitioner has been retaliated against by the Respondent in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, Leigh A. Bain, filed a Complaint with the Commission on May 16, 1997, alleging retaliation under the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes. The matter was investigated by the Commission and on November 24, 1999, the Commission issued a Notice of Determination of "no-cause." On January 3, 2000, the Petitioner mailed and faxed a Petition for Relief from an unlawful employment practice to the Commission. The Petition was served by mail on ECUA on January 3, 2000. ECUA filed an Answer and a Motion to Dismiss on January 24, 2000. Thereafter, on January 31, 2000, the Commission issued a Notice of Dismissal stating that the Petitioner had failed to file a timely petition, pursuant to Rule 60Y-5.008, Florida Administrative Code, and that the Petitioner had taken more than thirty-five days from the date of service of the Notice of Determination to file a petition. The Notice of Dismissal was filed with the Clerk of the Commission on January 31, 2000. On February 28, 2000, the Petitioner filed a Notice of Appeal with the Commission. The Notice stated that it was being filed in accordance with Rule 9.110(d) and Rule 9.130(c), Florida Rules of Appellate Procedure, to appeal the Notice of Dismissal of the Petition. On June 28, 2000, the Commission rescinded its previous dismissal, re-opened the Complaint and transmitted the Petition to the Division of Administrative Hearings. In the rescission order the Commission stated that it had previously dismissed the Complaint because the Petition had not been filed within thirty-five days of service of the Notice of Determination. The Commission then found that the Petition had been timely filed on January 3, 2000, using the date of the post-mark of the Petition and adding three days to the thirty- five day time limit for mailing. The Notice of Appeal had been filed with the Commission but not with the Appellate Court. Moreover, the Commission failed to transmit the record to the Appellate Court. In the Petition for Relief Ms. Bain alleges that she was a victim of sexual discrimination or harassment by her supervisor, Steve Burgess. She reported the alleged discrimination to her personnel director on October 4, 1996. She contends that her supervisor retaliated against her on November 11, 1996, by giving her a poor performance rating. Petitioner began employment with ECUA in January 1987, as Executive Secretary to Chuck Wigley, then Executive Director of ECUA. She worked in that position until 1989 and then began working for Steve Burgess who was then the Manager of Customer Relations. She worked for Mr. Burgess until she was transferred to the Engineering Department in June 1997. She was currently employed as an Office Assistant IV in the ECUA Engineering Department. Steve Burgess is the current ECUA Field Services Administrator. He is in charge of the ECUA division that deals with the public. That division has two departments, the Regional Services Department and the Customer Service department. It has approximately 225 employees. Mr. Burgess reports to Van Van Dever, the current ECUA Executive Director. Mr. Burgess has worked for the Respondent for fourteen years. On October 1, 1992, the Petitioner's job title was changed from "Executive Secretary" to "Administrative Secretary." Her salary remained the same and the grade was changed from X10-6 to C18. This was part of a re-classification effort for ECUA positions and pay grades when the ECUA became part of Escambia County's Civil Service System. The re- classifications of ECUA positions, within the county Civil Service System, was approved by the county's Civil Service Board and the ECUA Board. On October 1, 1996, the Petitioner's job title was changed to "Office Assistant IV." Her salary remained the same as it had been when she was an Administrative Secretary and her grade was changed from C18 to C20. This change was made in accordance with a wage and re-classification study and was approved by the county Civil Service Board. The Petitioner describes her re-classification to Administrative Secretary as bringing her and all department secretaries to the same level so there was no longer a distinction between what she had been and the other secretaries. She viewed this action as a demotion for her or a promotion for the other secretaries, with the result that they were all at the same level after the re-classification. These re- classifications, however, were not demotions for any disciplinary or performance reasons. The re-classifications of Ms. Bain's position in 1992 and 1996 occurred prior to the October 4, 1996, allegation of sexual harassment. The last re-classification to Office Assistant IV was effective on October 1, 1996, three days before the Petitioner decided to submit the October 4, 1996, memorandum concerning the harassment allegation. The Petitioner was upset over the re-classification decisions made as to her. In a May 2, 1996, memorandum to Mr. Burgess, the Petitioner stated in reference to the re-classification of her position to Administrative Secretary: . . . However, all positions previously classified as Secretary, Range 8, were also upgraded to Administrative Secretary, Pay Grade 18, which provided a substantial salary increase for those applicable employees. I was not pleased with the inequity of this situation. Through no fault or control of my own, my position was now considered to be equivalent with one that, for the previous five years, had been two pay grades lower. My qualifications had not changed; neither had those of the other employees, and yet somehow we were all considered to be equally qualified for the same position. When I raised this issue, I was told I had no reason to be upset as I had been placed in the highest level secretarial position that existed in the Civil Service System. . . . Ms. Bain continued to be concerned about the re- classification of her position and requested that it be upgraded to an Administrative Assistant position. She also filed an appeal of her Civil Service position allocation and formally requested that the Civil Service Board upgrade her position to Administrative Assistant. The Petitioner wanted Mr. Burgess, her supervisor, to support the upgrade of her position but he would not do so. She was dissatisfied with Mr. Burgess because he did not support a higher classification for her. She felt that if Mr. Burgess supported the upgrade she would have received it. Mr. Burgess and Ms. Bain discussed her concerns and her request for a position upgrade on April 22, 1996. Mr. Burgess explained to the Petitioner at that time why he could not support the upgrade. On one of her visits to see Mr. Van Dever, the Petitioner advised him that the relationship between her and Mr. Burgess had been tense over the re-classification issue. That matter was an issue all during 1996, between the Petitioner and Mr. Burgess. The Petitioner wrote in her comments on her 1996 evaluation that she believed that she was marked-down in attitude because of her classification appeal. She did not go to the committee that was conducting position audits, however, to speak with the committee about the re-classification of her position, even though this committee was to make recommendations on subjects such as the upgrade of Ms. Bain's position. There was an analogous Office Assistant IV position in the STR Division. Like Mr. Burgess, however, Bernie Dahl, the STR Director, did not support a position upgrade for his own Office Assistant IV either. Ms. Bain went to Mr. Van Dever to complain about three incidents involving Mr. Burgess. The first incident occurred in February 1993. She met with Mr. Van Dever and he seemed supportive. He said that he would speak with Mr. Burgess about the matter. He met with Mr. Burgess and Ms. Bain felt that things seemed to improve. The next incident with Mr. Burgess occurred a year later on January 20, 1994, when Mr. Burgess allegedly became upset when he discovered that a letter had gone out with a handwritten invoice attached to it. When Ms. Bain called Mr. Burgess' attention to the fact that he had signed the letter with the handwritten invoice attached he allegedly became agitated and angry. She went to see Mr. Van Dever about this incident. She felt that things improved once again after Mr. Van Dever met with Mr. Burgess about this incident. In September 1996, a third incident occurred about which Ms. Bain complained to Mr. Van Dever. This incident arose when Mr. Burgess asked Ms. Bain to forward his and her phone lines when they had to be away from their desks to someone other than Quanita Stallworth, who handled the ECUA switchboard. He did this because he was concerned that Ms. Stallworth had too many calls to handle when all the phone lines were transferred to her at lunch and when employees were away from their desks. Ms. Bain was initially told to forward the phones to Linda Sutherland. When she objected to forwarding her phone to Ms. Sutherland, Mr. Burgess told her that she could forward it to Linda Iverson or to someone other than Linda Sutherland " . . . as long as its not going to Quanita " After the Petitioner had been directed not to forward the phones to Quanita Stallworth, Mr. Burgess discovered that she had disregarded his instructions and forwarded her phone to Ms. Stallworth. When he reiterated to the Petitioner that they were not going to forward the phones to Ms. Stallworth, the Petitioner told Mr. Burgess that " . . . then I'm going to go see Van." Mr. Burgess told her to go ahead and see Mr. Van Dever. The result of this incident was that Mr. Van Dever allowed Ms. Bain to continue to forward her phone to Quanita Stallworth. Mr. Burgess and Ms. Bain had a meeting with Mr. Van Dever after the phone forwarding incident. They were both told that they needed to try to work together in a professional way and they agreed that they would do so. There was discussion during that meeting about attempting to locate another position for Ms. Bain but there were no openings at the time. When the Petitioner went to Mr. Van Dever about the incident concerning the phone on September 25, 1996, her Complaint involved that particular incident, the switching of the phones. She did not claim gender-bias discrimination in her conversation with Mr. Van Dever. The Petitioner does not recall mentioning, in any conversation that she had with Mr. Van Dever, that she had filed a sexual harassment complaint against Mr. Burgess. In her conversations with either Mr. Van Dever or Mr. Burgess, the Petitioner did not tell either Mr. Burgess or Mr. Van Dever of filing any sexual harassment complaint against Mr. Burgess. She did not give Mr. Burgess or Mr. Van Dever a copy of her October 4, 1996, memorandum which contained her allegations of sexual harassment against Mr. Burgess. The issue she had taken to Mr. Van Dever in September 1996, was to the effect that she felt Mr. Burgess was a tyrant and that he mistreated employees. When she went to Mr. Van Dever to complain about him she raised a morale problem or a problem among several employees whom Mr. Burgess supervised. The morale issue due to Mr. Burgess was her whole reason for complaining at that time. The morale issue is what the Petitioner wanted Mr. Van Dever to look into and she identified male and female employees for him to talk to in order to confirm her complaint that Mr. Burgess mistreated employees. The Petitioner has at various time, identified several employees she believes have had significant problems with Mr. Burgess, including males, such as Bob Kintz, Gabe Brown, and Glenn Johansen. Mr. Van Dever told the Petitioner that he had talked to everyone of the employees that she had identified and that none of them agreed with her. Nettie Williams, the ECUA customer Service and Collections Manager, has worked for Mr. Burgess, her immediate supervisor, since 1989. Mr. Van Dever questioned Ms. Williams about an alleged morale problem in the customer service area in the fall of 1996. He asked her whether she had had any problems with Mr. Burgess and she told him that she did not and that any issue she and Mr. Burgess had they would be able to sit down and work out. Kathy Gaut, the ECUA Internal Programs Coordinator, directs training and other employee-related programs, internal communications, the newsletter and any kind of employee activities. She has been employed with ECUA for about seven years. It is the nature of her job to be in touch with and interact with a lot of employees. Mr. Van Dever often asked Ms. Gaut about general employee issues because of her contact with ECUA employees. In October 1996 Mr. Van Dever asked Ms. Gaut whether she was aware of any problems that employees might be having with Mr. Burgess. She told Mr. Van Dever that she did not know any problems employees were having with Mr. Burgess and that she was not having any problems with him. Mr. Van Dever asked her how she felt employees regarded Mr. Burgess and if he intimidated people. She responded that some people believed that he was abrupt or even rude at times. She advised that his personality was such that he could be very pleasant and convivial but when he had a problem or a particular situation to address, he could come across as being abrupt because he wanted to get right to the point and get the job done and go on to the next subject. She told Mr. Van Dever that she felt that some people may have a problem with Mr. Burgess being abrupt with them because he was so focused on getting his job done. Ms. Gaut is aware of Mr. Burgess' management style and his manner of dealing with people because she has been around him in numerous director and staff meetings. She has observed his interaction with employees at all levels of the company. Mr. Burgess' management style is to get to the point and not string out conversations about an issue when he is ready to get a problem resolved. Ms. Gaut has observed Mr. Burgess and Ms. Bain interacting approximately 10 to 15 times over a five-year period. Ms. Gaut never witnessed Mr. Burgess treating females unfairly as opposed to males and has never herself experienced gender bias from Mr. Burgess. Ms. Nettie Williams was present when Mr. Burgess directed the Petitioner not to forward her phone to Quanita Stallworth. Ms. Williams has never witnessed what she felt was gender bias on the part of Mr. Burgess and has never been treated differently by Mr. Burgess because she was female. On October 4, 1996, the Petitioner met with ECUA Human Resources Director Grant Holmes and submitted a memorandum dated that day in which she complained about Mr. Burgess' conduct toward her. In that memorandum she recites three incidents which allegedly involved inappropriate behavior by Mr. Burgess: the February 1993 incident, when Mr. Burgess had interrupted an attorney in an interview of the Petitioner to tell her to take care of the mail; the January 1994 incident over the handwritten invoice and the September 24, 1996 incident over the forwarding of the phones. In the October 4, 1996 memorandum, Ms. Bain states that she believed Mr. Burgess' conduct towards her was a form of sexual harassment in that Mr. Burgess allegedly engaged in intimidation of her and tended to view a certain type of behavior by males as acceptable, while the same type of conduct by a female he viewed as unacceptable. The basis for her belief that Mr. Burgess treated males differently from her was an incident involving Gabe Brown. Mr. Burgess had an incident with Gabe Brown when an ECUA board member reported that a male customer service representative had been rude to a customer. The board member told Mr. Burgess that he needed to investigate it right away. Mr. Burgess went to the customer service department and called the only two male customer service representatives out of the office and talked with them in the hallway to find out which one had talked with a customer who had complained to the ECUA board member. Mr. Brown was not the one who had the conversation with the complaining customer. Upset, Mr. Brown later came to Mr. Burgess and complained to him that he was embarrassed because Mr. Burgess had singled him out in front of all the other employees as if he had done something wrong. Mr. Burgess thought about the incident and felt that Mr. Brown was right about his handling of the situation. Mr. Burgess therefore apologized to Mr. Brown. Mr. Burgess has apologized to the Petitioner as well. Once when he called a meeting with the Petitioner and the meeting deteriorated, he apologized to her because he felt he was responsible for the conduct of the meeting as the supervisor. He also apologized after the February 1993 incident when he interrupted the Petitioner and called her out of a meeting with an attorney. On that occasion, Mr. Van Dever instructed him to apologize. However, Mr. Burgess accepted the responsibility for his conduct and was sincere in his apology. Mr. Holmes asked the Petitioner, during the meeting with her on October 4, 1996, whether she was claiming that Mr. Burgess had engaged in unprofessional and sexual conduct toward her and she told Mr. Holmes that Mr. Burgess had not done so. The substance of the claim that the Petitioner made was gender bias, although she called it sexual harassment. In the October 4, 1996 memorandum the Petitioner stated that she could only assume that her Civil Service appeal in May of 1996 had something to do with the way Mr. Burgess treated her. In an October 8, 1996, meeting with Mr. Holmes and Mr. Van Dever, the Petitioner requested that she be removed from Mr. Burgess' supervision. This was also discussed at a later meeting on that same day with Mr. Burgess and Mr. Van Dever. Shortly after the October 8, 1996, meeting, Mr. Holmes discussed with Ms. Bain his efforts in attempting to relocate her in another Office Assistant IV position. Mr. Holmes had asked the other employees in the same classification if they would agree to be moved from their current positions and exchange work assignments and locations with Ms. Bain. All elected not to do so. Mr. Holmes also sent Ms. Bain information on other open positions county- wide. Ms. Bain met with Mr. Holmes and Linda Walen. Mr. Holmes met with Ms. Bain again in January 1997 to discuss the job search for the Petitioner and to tell her that he had been unable to find anything for her. After she filed her retaliation complaint with the Commission, Ms. Bain was transferred to the Engineering Department in the same position. She has the option to apply for position openings throughout the ECUA organization and is not restricted only to promotions within the Engineering Department. ECUA employees, including those in the same position as Ms. Bain, can be promoted to positions anywhere within the ECUA organization. Employees in the Petitioner's position, Office Assistant IV, have gone from the ECUA STR Department to the Purchasing Department and from an Office Assistant IV position to a Purchasing Agent position. Ms. Bain's assignment to the Engineering Department does not preclude her from promotional opportunities that may open up anywhere in the ECUA organization. The Petitioner has had no problems with perceived bias or other difficulties in her employment in the Engineering Department. Mr. Burgess, as Ms. Bain's supervisor, did her performance evaluation in 1996. He gave what he thought was an overall good evaluation. In the ECUA ratings scale a "good" rating is not an "average" rating but is a rating that can be from 70% to 95% out of a possible 100%. For those areas where Mr. Burgess marked her evaluation "good," he felt that Ms. Bain was in that range and that she had indeed done a good job in those areas. Her performance rating in 1996, which she signed on November 12, 1996, was a total weighted score of 3.4 with a "good" rating in the following five categories: "Attitude," "Communication," "Human Relation Skills," "Initiative/ Creativity" and "Safety." The Petitioner received an "Excellent" rating in the areas of "Quality," "Productivity" and "Care of Facilities & Equipment." There were no negative ratings in any category. The 3.4 score was almost half-way between a "good" and an "excellent" overall rating. As shown by Mr. Burgess' rating comments on the 1996 evaluation, depicted in Petitioner's Exhibit 2, he felt that, due to the problems Ms. Bain had with the Civil Service re-classification of her position, she did not go the "extra mile" during 1996. She did her job and did what was asked of her but did not take the initiative to do anything other than what was asked of her. Mr. Burgess felt that the re-classification issue affected her output at work and her overall attitude on the job so that he could not give her a higher evaluation like he had done in 1995 when he rated her as "Excellent." Ms. Bain submitted a memorandum dated November 12, 1996, in response to the 1996 evaluation. Ms. Bain states, in that memorandum, that she and Mr. Burgess were "beyond the point of talking about this (see my memorandum to Grant Holmes dated October 4, 1996) . . .." While the Petitioner references her October 4, 1996 memorandum in the November 12, 1996 memorandum in response to her evaluation, she does not reference sexual harassment or the fact that she had filed a discrimination complaint against Mr. Burgess. Mr. Burgess did not counsel Ms. Bain during 1996 about a deterioration in her attitude because overall he rated her as having a good attitude. He did not feel that her attitude warranted counseling. He felt that Ms. Bain was doing her job and did not feel that she was doing bad things. Further, Ms. Bain was not happy with the re-classification situation and Mr. Burgess did not want to "stir anything up." The 1996 rating did not indicate a significant deterioration in the Petitioner's attitude. Her attitude was not excellent in terms of the rating scale, so Mr. Burgess did not feel that he could give her a 4 rating as he had done in 1995. In the previous year, 1995, Mr. Burgess had given her Superior ratings in four categories because he felt that she had gone out of her way to do extra things and to take on extra tasks. In 1995, he evaluated Ms. Bain, giving her a total weighted score of 4.1 with a "Excellent" rating in all categories except for a "Superior" in a category of "Care of Facilities & Equipment." He made comments on her 1995 evaluation to the effect that Ms. Bain continued to do excellent high-quality work. In 1992, the Petitioner received a total weighted score of 3.6 with a "good" rating in "Attitude," "Communication," and "Human Relation Skills." She received an "Excellent" in "Quality," "Productivity," "Initiative/ Creativity," "Safety," and "Care of Facilities & Equipment." In 1993 she received a total weighted score of 3.7 with good or excellent ratings in all categories. In 1994, Mr. Burgess rated her with a total weighted score of 4.0 with an "Excellent" rating in all categories. In 1997, Bill Johnson, the Director of the Engineering Department, gave Ms. Bain a total weighted score of 3.2, a lower rating than Mr. Burgess had given Ms. Bain in 1996, the evaluation which she alleges is retaliatory. Mr. Johnson gave her a "good" in all categories. There is no evidence that she has had any friction since transferring to the Engineering Department. In 1998 Mr. Johnson gave her again a total weighted score of 3.2 and a "good" rating in all categories except for "Quality" for which she was given a "Superior" rating. In 1999, Mr. Johnson gave her a total weighted score of 3.5 and gave her a "good" in all categories except for "Communications," "Quality," and "Productivity" for which she was given "Superior" ratings. In the year 2000, Mr. Johnson gave her a total weighted score of 3.5 with a "good" in all categories except for "Communication," "Quality" and "Productivity" for which she was again given "Superior" ratings. Mr. Johnson's ratings of Ms. Bain were not adverse actions or discriminatory and such has not been claimed by her. Since 1992, the Petitioner has received a "good" rating in "Attitude" on all evaluations except for the 1994 and 1995 evaluations when she received "Excellent" ratings in that category by Mr. Burgess. Her current supervisor, Bill Johnson, has never rated her higher than "good" in the "Attitude" category. Thus, in the nine-year period, she has received a "good" rating in "Attitude" on seven out of nine ratings. Mr. Burgess was not aware that Ms. Bain had filed a sexual harassment complaint or any kind of discrimination complaint against him at the time he completed the 1996 evaluation. Although he knew that Ms. Bain had gone to Mr. Van Dever concerning his directive to her that she should not forward her phone to Quanita Stallworth at the switchboard, and although he was later told that Mr. Van Dever was investigating whether there was a morale problem in his division, he did not actually know that a sexual harassment complaint had been filed regarding him. He learned of it when the Petitioner filed her retaliation complaint with the Commission and referenced a previous "sexual harassment" complaint that she had filed on October 4, 1996, with the ECUA. Mr. Burgess found that she had submitted the October 4, 1996, memorandum when she made reference to it in a November 12, 1996, memorandum which she wrote in response to the November 11, 1996, performance evaluation. However, he did not learn that she claimed to have filed a sexual harassment complaint against him until the ECUA was notified of her retaliation charge by the Human Relations Commission. Mr. Holmes never told Mr. Burgess that the Petitioner had called her complaint a sexual harassment complaint or gender-based discrimination complaint. Neither Mr. Holmes or Mr. Van Dever told Mr. Burgess about the contents of the October 4, 1996, memorandum. Mr. Burgess did not know until early June 1997 that the Petitioner had alleged that he had sexually harassed her because when he found out about the sexual harassment complaint, he had just been nominated to be president of the local Chapter of the American Cancer Society, in late May 1997. When he received notification that Ms. Bain was claiming sexual harassment, he went to the leaders of the American Cancer Society and offered to resign or have them not name him as president so as not to cause the Society any embarrassment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations finding that the Petitioner failed to establish that she was the victim of discriminatory retaliation and dismissing the Petition in its entirety. DONE AND ENTERED this 8th day of March, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2001. COPIES FURNISHED: R. John Westberry, Esquire Holt & Westberry 1108-A North 12th Avenue Pensacola, Florida 32501 Rosa Carson, Esquire Carson & Adkins 2958 Wellington Circle, North, Suite 2000 Tallahassee, Florida 32308-6885 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether Sea World violated section 760.10, Florida Statutes by imposing stricter dress codes on males than on females and by laying off John Graziano because of his sex, male.
Findings Of Fact Sea World of Florida, Inc. (Sea World), is a theme park in Orlando, Florida, which provides marine life exhibits and shows to the public and conducts marine life research. John Graziano was hired on March 11, 1986, as a gardener in the landscape department, which department is responsible for landscaping, planting and pest and rodent control in the park. Sea World's landscape department has grooming standards for its employees. A memorandum from the President of Sea World referencing the standards in the employee handbook and urging a positive image, was posted on the employee's bulletin board. John Graziano was one of many employees who signed a form stating that he had received and read a copy of the dress and grooming standards. In February 1987, Dan Trausch, the Vice-President in charge of the landscaping department noted that a lot of the landscape staff in the park were out of uniform. Bob Vidler, Director of Horticulture met with his supervisors and circulated a memo to all employees reminding them to wear hats and regulation belts. The company provided uniforms for the employees. On March 20, 1987, John Graziano was given a written counselling report and was suspended for refusing to wear his hat. He had been orally warned at least three times prior to the suspension. On March 27, 1987, John Graziano was written up again on a counselling report for his negative attitude and "resentment." He was placed on 30 days probation. In July 1987, Bob Vidler was still having problems with his staff's compliance with grooming standards and he issued a memo, dated July 31st to all landscape employees: This is the final warning in relation to maintaining grooming standards. This includes hair, name tags, caps and visors. I do not want to be told by Administration that we are not adhering to the rules. PLEASE SIGN BELOW TO INDICATE YOU HAVE SEEN THIS. (Respondent's Exhibit 5) John Graziano claims that he never saw this memo, but included among the other purported signatures of the employees is a notation, "Graziano refused to sign." On August 18, 1987, Graziano was given a written counseling report for failure to comply with grooming regulations, violation of company or department procedures, insubordination and failure to obey orders. The report was characterized as a "final warning" and Graziano was told if the behavior continued, he would be discharged. During this time, Sea World's owner, Harcourt, Brace, Jovanovich (HBJ) was the target of an "unfriendly" corporate takeover attempt. All departments were under pressure to find ways to reduce costs. Bob Vidler submitted a series of recommendations for the landscaping department, including the reduction of payroll. He determined that $177,943.00 per year could be saved by reducing the permanent full-time staff by eight people and substituting seasonal temporary employees. John Graziano was an obvious choice for layoff. In Vidler's view, he and several others were "deadwood," carried by the remaining employees. Vidler felt that Graziano was rebellious and did not like following the rules. He spent a lot of time standing around talking. Graziano was the only employee Vidler consistently observed without a hat and he was the only employee suspended for the infraction. Graziano claims that the dress code policies were only enforced against males and that he was singled out for discipline and layoff because he was a male. He presented no evidence to support that claim. The individuals who made the layoff decisions are male; thirty-one out of thirty-nine landscape department employees are male; and five of the six temporary employees hired were male. Sea World established that the action taken with regard to this employee was a legitimate business decision.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That Petitioner's Petition for Relief be DENIED. DONE and ENTERED this 9th day of February, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Office 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 9th day of February, 1989. COPIES FURNISHED: John Graziano Apartment 231 9100 Meadowcreek Drive Orlando, Florida 32821 Harvey D. Rumeld, Esquire Dow, Lohnes & Albertson 1255 - 23 Street N.W., Suite 500 Washington, D.C. 20037-1194 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. Petitioner, Joyce C. Hallowell, was employed by Respondent as a part- time commission sales associate in the electronics department of Brand Central during the relevant period of time including June 1993. Petitioner worked for Respondent on-and-off for a period of 20 years in various sales positions and both in a full and part-time capacity. Petitioner is an American woman, born: October 14, 1948, who was 44 years of age during the relevant time and a member of a protected class. William Henley became the Store General Manager of the Melbourne, Florida Sears store in May 1993. Accordingly, Henley was, during the relevant time period, the Store General Manager of the Melbourne, Florida Sears store. As Store General Manager, William Henley has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions. Herman Payne became the Brand Central Manager of the Melbourne, Florida Sears store in 1993. Accordingly, Payne was, during the relevant time period, the Brand Central Manager of the Melbourne, Florida Sears store. As Brand Central Manager, Payne supervised all four departments in Brand Central. He has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions for personnel in his department. Payne was 41 years old during the relevant time period. Frances Pagan Cusick is the Human Resources Manager for the Sears Melbourne, Florida store. As Human Resources Manager Cusick has responsibility for, inter alia, administering the hiring, equal-employment, and compensation policies of Sears. Cusick was 43 years old during the relevant time period. Brand Central consists of four departments: computers, electronics, small appliances and home appliances. Sales associates work in each of the four Branch Central Departments. Both full-time and part-time sales associates work in Brand Central. Each of the sales associates in Brand Central are paid on the basis of commissions earned from sales. As a consequence, each sales associate's earnings are dependent on the number of sales made. At the time of Henley's and Payne's arrival at the Melbourne, Florida Sears store in May, 1993 and June, 1993, respectively, the store, including Brand Central, was in need of numerous changes and improvements, including improvements in appearance and presentation. In June, 1993, Henley and Payne initiated a cleanup "campaign" throughout the store, including Brand Central, in an effort to make the store more presentable to the public. As part of the clean-up "campaign" in Brand Central, Payne recruited the assistance of all Brand Central employees. Petitioner was uncooperative and refused or was reluctant to assist in various efforts to improve the appearance of Brand Central. She also complained to management about others in her department and their lack of diligence in the clean-up campaign. Hallowell's attitude problems were a serious concern to the management of the Melbourne, Florida Sears store. The management of the Melbourne, Florida Sears store counselled her and documented Petitioner's attitude problems. In June, 1993, a need arose for additional part-time help within the appliance department of Brand Central. A transfer from one section of Brand Central to another is not considered a promotion; rather, it is simply a transfer from one department to another. Henley and Payne ultimately decided who would be transferred to the appliance department of Brand Central. The criteria utilized by Respondent in determining who would be transferred to the appliance department included: (i) satisfactory job performance; (ii) satisfactory customer service; and (iii) a positive attitude. Given the nature of Respondent's business, it is important for Respondent's employees to maintain satisfactory job performance, customer service, and to exhibit a positive attitude. The criteria utilized by Respondent in determining who would be transferred to the appliance department were essential to building a highly motivated team of sales associates. Seniority was not a factor utilized by Respondent in determining who would be transferred to the appliance department. Age was not a factor utilized by Respondent in determining who would be transferred to the appliance department. In June 1993, Petitioner expressed to Herman Payne a desire to transfer from the electronics department to the appliance department of Brand Central. Three individuals were considered for the available, part-time position in the appliance department of Brand Central, to wit: Barbara Gehrlein, Terry Giordano and Petitioner. The transfer which Petitioner sought to the appliance department of Brand Central was not a promotion. However, Petitioner felt that she could earn a higher commission in that department over time. Barbara Gehrlein, who was over fifty at the time, elected not to be considered for the transfer to the appliance department of Brand Central because she was not interested in a part-time position. Gehrlein's preference was to remain in a full-time position. Terry Giordana, who was under forty years of age at the time, was selected for the transfer to the appliance department of Brand Central. Henley and Payne decided that she exhibited a positive attitude and satisfied the other qualification criteria utilized by Respondent. Petitioner was not chosen for the part-time position in the appliance department of Brand Central because of the poor attitude she exhibited during the clean-up campaign. After the selection of Terry Giordano for the part-time position in the appliance department of Brand Central, Petitioner continued to exhibit a poor attitude. Prior to the selection by Respondent of the individual to be transferred to the appliance department of Brand Central, Petitioner admitted to her supervisor, that she had been uncooperative and that she had a "chip on her shoulder." Respondent maintains an Affirmative Action Policy. Sears' Affirmative Action Policy provides, inter alia, that: Sears is proud to reaffirm its commitment of the principles of equal employment opportunity and affirmative action. It is our policy to provide equal employment opportunity in all areas of our employment practices and to assure that there will be no discrimination against any associate or applicant on the grounds of race, color, religion, sex, age, national origin, ancestry/ethnicity, citizenship, sexual orien- tation, disability, veteran status, marital status, or any other reason prohibited by law. This policy extends to all of the Sears employment practices including recruitment and hiring, job assignments, education and development, promotions, compensation and benefits, use of company facilities, and all other privileges, terms, conditions of employment. It is further the goal of Sears to provide an atmosphere where all our associates can grow and optimize their performance in an environment free of intimidation and harassment of any form. No direct evidence exists supporting Petitioner's contention that she was denied a "promotion" because of her age. Respondent did not fail to "promote" Petitioner. Respondent did not fail to "promote" Petitioner because of her age and Respondent did not discriminate against Petitioner on the basis of her age. With respect to targeted earnings, studies showed that an employee in the appliance department would earn less than an employee in the electronics department, given certain assumptions. Assuming a total store sales volume of $3 million, it is expected that an employee in the appliance department would earn $10.38 per hour, while an employee in the electronics department would receive $10.43 per hour. With respect to targeted earnings, studies showed that an employee in the appliance department would earn slightly more than an employee in the electronics department, given certain other assumptions. Assuming a total store sales volume of $3-6 million, it is expected that an employee in the electronic's department would earn $11.50 per hour, while an employee in the appliance department would receive $11.67 per hour. During the relevant time period, of the 13 individuals who worked in the appliance department of Brand Central, eight of them (or 61.5 percent) were at least 40 years old. During the relevant time period, of the 23 individuals who worked in all of Brand Central, 13 of them (or 56.5 percent) were at least 40 years old. During the relevant time period, of the 20 sales associates who were promoted at the Melbourne, Florida Sears store, five of them (or 25 percent) were at least 40 years old. During the relevant time period, of the 213 sales associates who were working at the Melbourne, Florida Sears store, 85 of them (or 39.9 percent) were at least 40 years old.
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 22nd day of November, 1995, 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 22nd day of November, 1995. APPENDIX 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 (in part), 4, 5, 6 (in part), 7, 8, 9 (in part), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, and 53. Rejected as irrelevant, immaterial or subsumed: paragraphs 3 (in part), 6 (in part), 9 (in part), 31, 32, and 41. COPIES FURNISHED: Joyce C. Hallowell 1498 Beche Street, S.E. Palm Bay, Florida 32909 Carlos J. Burruezo, Esquire 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 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
The Issue Whether Respondent committed an unlawful employment practice.
Findings Of Fact Petitioner is a woman who suffered an aneurysm in 1987 which resulted in paralysis. Subsequently, she regained full use of her body except for her left hand. She possesses gross motor skills in her left hand but lacks fine motor skills. Respondent is a retail furniture store, which at times pertinent did about three million dollars in business annually. Respondent at times pertinent employed 23 to 26 full-time employees. Respondent went out of business on September 24, 2001. Petitioner interviewed with Doris Hudson and Cindy Gentry about three weeks prior to June 8, 2000. Petitioner was informed that she was hired and could begin work on June 8, 2000. The position she was hired for was accounts payable clerk. During the interview, the matter of the facility of Petitioner's left hand was not noted or discussed. Petitioner believed that the job consisted of mostly working on a keypad with numbers, in the accounts payable section of the bookkeeping office. Petitioner reported for work on June 8, 2000. Doris Hudson, Respondent's Comptroller, an employee of Respondent for over 41 years, provided her with a tour of the premises. Petitioner's first assignment was to type checks. She did this slowly because she could type only with her right hand. Typing checks is an important function of the accounts payable clerk. Most vendors were paid by checks which were prepared by data processing equipment but it was necessary to prepare many checks for local vendors on a typewriter. During the hour and a-half Petitioner worked at the typewriter, she correctly prepared three checks. Ms. Hudson expected an accounts payable clerk to prepare 25 to 35 checks in an hour and a-half. An accounts payable clerk, according to Ms. Hudson, should be able to type 55 words per minute; Petitioner could type only 30 words per minute on a good day. An accounts payable clerk's daily activities included kneeling on the floor and opening a large safe; swinging open a heavy door which has to be unlocked with two keys simultaneously; counting 30 to 50 checks per day and counting currency and coins; and printing out reports which were inserted in a large binder. A substantial part of the duties of the accounts payable clerk required excellent typing and data input skills. The accounts payable clerk was required to reload the printers and this required the coordination of two hands. The accounts payable clerk was required to prepare deposits which required that the employee flip each individual check with one hand and operate a calculator with the other. Ms. Hudson did not discover the deficiencies with regard to Petitioner's left hand until she made inquiry after noting the small number of checks which Petitioner prepared. Ms. Hudson could not use an employee who could not do the activities described in paragraph eight and nine, above. Ms. Hudson could not call others in the office away from their jobs to help a person who had limited use of one hand. She did not have enough employees. When Ms. Hudson's office was fully staffed there were many times when it was difficult to accomplish all necessary duties in an eight-hour day. It was Ms. Hudson's opinion that Petitioner could not perform the duties of accounts payable clerk and that it was impossible to accommodate her deficiencies without disrupting the orderly functioning of her office. After considering Petitioner's capabilities and the requirements of the accounts payable clerk, Ms. Hudson decided that Petitioner was not suitable for employment as an accounts payable clerk and as a result, discharged her. Petitioner was paid $22.61 for 2.66 hours of work. This reflected an hourly wage of $8.50. Petitioner worked as an administrative assistant at Century Boats in Panama City prior to obtaining the job with Respondent. She lost that job in February of 2000, due to a reduction in workforce. After Petitioner left Respondent's place of business she went to work at a clinic run by Bay Medical. She began working there on August 28, 2000, as an insurance coder and biller and was paid $8.00 per hour. She lost that job on February 28, 2001, when the facility closed. She was offered a job in the radiology section but it paid less so she elected to remain essentially unemployed for a year. She did work a one- week job with Cardiology Associates and worked for C-1 Medical Clinic for a month and a-half during that period. Petitioner, at the time of the hearing, was employed by Nextel Communications as a customer care representative and was paid $9.50 per hour. She started February 18, 2002. Petitioner has a hard time buttoning clothes but she can drive an automobile. She testified she could do, ". . . everything pretty much what everybody does." She can't throw a ball up with her left hand or play tennis anymore. She can lift heavy objects up to at least 75 pounds. She has no medical restrictions placed on the use of her left hand.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing Petitioner's Amended Charge of Discrimination. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 11th day of July, 2002. COPIES FURNISHED: Linda Chesser 6802 Penny Road Panama City, Florida 32404 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303-4019 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed a violation of the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 2, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In his Charge of Discrimination, Petitioner, Jeffrey S. Wytrwal, alleges that after he had suffered a knee injury, Respondent, Waste Management of Putnam County, violated the Florida Civil Rights Act of 1992, as amended, by failing to find him a "light duty" position "due to [his] disability and [because of] unfair favoritism throughout this company." Respondent denies the charge of discrimination and contends that Petitioner does not suffer from a disability, and even if he did, it had no positions in the company which were compatible with his medical restrictions. Respondent is engaged in the business of providing solid waste collection services for the residents of Putnam County, Florida. Testimony by Respondent's district manager, Brian Watkins, established that Respondent is an employer within the meaning of the law and is thus subject to the provisions of Chapter 760, Florida Statutes. Petitioner worked for Respondent as a driver on a garbage truck from 1990 until 1993, and then again beginning in January 1995. The work is physically demanding, and it requires that the driver frequently jump in and out of the vehicle to sling or empty garbage cans into the rear-end loader. After working a 12-15 hour shift on January 28, 1997, Petitioner was home sitting on his bed "half Indian style" when he attempted to stand up. His right knee locked; he was transported to a local hospital; and he later underwent arthroscopic surgery to correct the injury. After suffering the foregoing injury, Petitioner qualified for disability payments from his employer, and he began receiving a monthly disability check in the amount of $888.00. On an undisclosed date after Petitioner suffered his injury, Respondent changed its hauling operation from a two-man team (a driver and swingman) on each truck to a single driver. This meant that the bona fide occupational requirements for the position of driver required that he engage in bending, stooping, and climbing on a repetitive basis for long hours each day without the aid of a "swingman." On October 14, 1997, Petitioner was released by his doctor to return to work and was given a certificate which read "No bending, stooping, climbing (Light Duty Only, if available)." These restrictions obviously did not allow Petitioner to return to his former job. Upon obtaining the release, Petitioner telephoned his supervisor, John Rakoczy, and asked if he could go back to work on "light duty," performing duties that would be compatible with his medical restrictions. On a very few occasions, Respondent had authorized an injured worker to perform other temporary duties if his injuries "fit a temporary job." However, except for two already filled dispatcher positions in the office, Respondent had no jobs which did not require bending, stooping, or climbing. Therefore, without making fundamental alterations in the company's operations, which would result in an undue hardship to the company, Rakoczy could not offer Petitioner part- time or restricted work. Petitioner did not seek the office dispatcher position, and he produced no evidence that he was qualified to perform that job. Although Petitioner admits that his knee has improved since October 1997, he never again contacted his employer regarding reemployment. At hearing, Petitioner acknowledged that he agreed with Rakoczy's assessment that no light duty jobs were available within the company. Even so, he and his wife "took it hard," and in January 1998 he filed his Charge of Discrimination. Petitioner has not alleged, nor presented competent and credible evidence, that his knee injury continues to limit the full and normal uses of his physical facilities. While it is undisputed that the injury may have limited his physical facilities during his recuperation, there is no evidence that it continues to do so, or that others regard him as having a disability. Therefore, Petitioner has failed to demonstrate that he is disabled within the meaning of the law. Respondent's decision to not offer Petitioner light duty was not based on discriminatory reasons, as Petitioner has alleged, but was based on the fact that there were no jobs which were compatible with Petitioner's medical restrictions. While collecting medical disability payments, Petitioner also filed a worker's compensation claim against his employer in October 1997, and this claim was settled in May 1999 for the sum of $27,000.00. By agreeing to the settlement, Petitioner was no longer eligible for disability payments, and they terminated in May 1999. Until he settled his worker's compensation claim, Petitioner did not look for other employment. After the case was settled, however, he secured a job within a week at a local country club doing maintenance and landscaping work, and he has worked there since that time. There is no evidence as to how his current job duties compare with the duties that he performed for Respondent. Further, the difference in compensation, if any, between the new job and Petitioner's former job is not of record. Although Petitioner contended that Respondent had offered "light duty" to other injured workers in the past, he could only identify one such worker named "Keith," who had lost four fingers in an accident. Unlike Petitioner, however, that worker was able to perform a variety of temporary jobs despite the limitations caused by his injury. Neither the Charge of Discrimination, nor the record evidence, reveals the specific relief that Petitioner is requesting. Rather, the complaint merely lodges allegations of discrimination against Respondent. Respondent suggests that Petitioner's injury was pre-existing, and occurred before January 28, 1997, and that Petitioner may be malingering. This is based on the treating physician's notes which reflected that Petitioner had his symptoms prior to the date of the injury. Even if this were true, however, this fact would appear to bear on the legitimacy of Petitioner's worker's compensation claim, and not the charge of discrimination. Finally, even though the treating physician suspected that Petitioner might be malingering with his injury, this was only a suspicion and was not medically confirmed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, Petitioner's Charge of Discrimination. DONE AND ENTERED this 31st day of August, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 31st day of August, 1999. COPIES FURNISHED: Jeffrey S. Wytrwal Post Office Box 701 Satsuma, Florida 32189-0701 Joseph P. Shelton, Esquire 1500 Resurgens Plaza 945 East Paces Ferry Road Atlanta, Georgia 30326-1125 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner, Karen L. Ehlers was wrongfully terminated from her position with Respondent, Florida Employers Insurance Service Corporation because of her handicap or perceived handicap in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: FEISCO is a Florida corporation which is in the business of providing insurance-related services to insurance companies, self-insurer funds and self- insured employers, and is an employer as that term is defined in Section 760.02(6), Florida Statutes. FEISCO has a department called Information Services (formerly known as Management Information Services) which is responsible for providing the computer information systems within FEISCO and maintaining the many applications and data bases used by other FEISCO departments. The Petitioner, Karen L. Ehlers, was employed by FEISCO from July 17, 1989, to November 15, 1990, as a computer programmer in the Information Services department. The minimum education requirement for the position of computer programmer was two years' computer science education or equivalent Micro/Mini exposure. Petitioner holds a bachelor's degree in mathematics with an emphasis in computer science. As a computer programmer, Petitioner's job duties included writing computer programs, designed by analysts, using several computer languages and working and communicating with analysts and program users to correct design problems to assure the final program fit the user's needs. At all times during her employment with FEISCO, Petitioner was supervised by Joan Zare, Production Supervisor, Information Services department. Zare was responsible for overseeing Petitioner's training during her probationary period and for all formal evaluations of Petitioner's work. John Keegan, Manager of FEISCO's Information Services department, was Zare's immediate supervisor at all times relevant to this proceeding. Keegan reviewed and approved the written evaluations of Petitioner by Zare, but did not review Petitioner's work. Keegan did not have any direct knowledge of Petitioner's competence, and did not interview either Zare or Petitioner regarding the evaluations. Jim Venza, Director of Information Services for FEISCO, was Keegan's immediate supervisor at all times relevant to this proceeding. Venza had no direct knowledge of Petitioner's work performance. Upon being hired by FEISCO, Petitioner was subject to a ninety-day probationary period. After this probationary period (July 7, 1989 to October 13, 1989), Zare gave Petitioner a positive evaluation which included ratings of "Achieves" in all performance standards. Zare viewed Petitioner's overall performance during her probationary period as satisfactory and recommended Petitioner for full employee status. In January, 1990, Petitioner received a salary adjustment upward from $20,000.00 to $20,500.00 In June, 1990, Petitioner received a congratulatory memorandum and a $50.00 bonus for successfully completing a Property and Liability Insurance course and examination. FEISCO encouraged its employees to take course work to increase their knowledge of insurance and to join Toastmasters, a group organized to help its members improve self-confidence and public speaking skills. Petitioner participated in outsider course work and Toastmasters. On July 4, 1990, Petitioner was diagnosed as having chronic fatigue syndrome. This condition did not restrict Petitioner in her job as a computer programmer or effect her work negatively. On July 9, 1990, Petitioner advised Zare that she had chronic fatigue syndrome. On July 17, 1990, Zare gave Petitioner her first annual performance evaluation. Although Petitioner had experienced some problems with her work during the period after her probationary performance evaluation, Zare felt that her job performance in the latter part of the evaluation period indicated that Petitioner had overcome those problems. Zare rated the Petitioner as achieving at or above the standards expected of her in all areas of her job performance. In one area of work Petitioner was rated as "Exceeds". While Zare considered Petitioner as performing satisfactory at the time of her first annual performance evaluation, it was understood between Petitioner and Zare that continued improvement by the Petitioner would be necessary in order for Petitioner to maintain a satisfactory performance rating. On October 15, 1990, Keegan and Bob Burgoon, a program analyst, assigned Petitioner to the extra duty of Problem Manager. The duties of Problem Manager involved reviewing and solving problems with programs which were called in by users, and required being on-call to assist operations during off-hours. The job of Problem Manager had previously been rotated among analysts and not assigned to programmers. However, the job of Problem Manager was assigned to Petitioner because Keegan and Burgoon felt that she could handle the job. On October 16, 1990, Petitioner advised Keegan of her previously diagnosed medical condition, and presented Keegan with a written statement from her doctor recommending that Petitioner restrict herself to a forty-hour week. Petitioner advised Keegan that she still wanted to try the Problem Manager's job. However, Keegan decided not to "second guess" the doctor and removed Petitioner from the Problem Manager duties. There is insufficient evidence to establish facts to show that Keegan at any time, including the meeting with Petitioner on October 15, 1990, advised the Petitioner that her medical condition would adversely affect her job with FEISCO. Petitioner became concerned about her job after the meeting with Keegan on October 15, 1990 and discussed this matter with Frances White in personnel on October 22, 1990. Petitioner also shared these same concerns about her job with Zare on October 23, 1990. At this meeting with Zare there was no reference to Petitioner's job performance by Zare. On this same day, Zare met with Venza and Keegan together and with White individually in regard to Petitioner's concerns. On October 24, 1990, Petitioner met with Zare and White. At this meeting, Zare and Petitioner discussed concerns about Petitioner's job performance. They also discussed Zare's intention to develop a detailed list of skills necessary for the satisfactory performance of the programmer position which would be used to revise the current programmer position description, and would involve a self-assessment by all programmers. The purpose of the self- assessment was to identify the areas in which the programmers felt they needed improvement. After each programmer finished their respective self-assessment, Zare reviewed the self-assessment individually with each programmer. In reviewing Petitioner's self-assessment, Zare concluded that Petitioner had overrated her abilities in several areas. After Zare concluded the review of the individual self-assessments with each programmer, Zare prepared a memorandum of her findings to all programmers. The memorandum outlined a proposed training project that was to be given in conjunction with the individual self-assessment. As with other programmers, Petitioner was assigned a series of projects to be completed as part of this training. As each part of the project was completed, Zare orally evaluated the Petitioner's performance and tested the program and reviewed the coding used by Petitioner. Errors were pointed out to Petitioner and she was given an opportunity to correct the errors. On November 14, 1990, after completion of the entire project, Zare reviewed Petitioner's work and prepared a written appraisal of Petitioner's performance on the project. The written appraisal described Petitioner's shortcomings but also included some positive criticism. Zare concluded that Petitioner's work on the project was below the expected standard. Basically, the written appraisal was contradictory to all performance evaluations previously given to Petitioner by Zare. The programmers, other than Petitioner and Chris Brady, were unable to begin work on the project due to prior work commitments before Zare was transferred to another department. After Zare was transferred this project was terminated. While Zare did verbally counsel Brady about his work, Brady did not receive a written appraisal by Zare before her transfer. Therefore, Petitioner was the only programmer to receive a written appraisal of her work on the project. On November 14, 1990 when Petitioner met with Zare to review Zare's written appraisal of her performance, the Petitioner became upset and defensive. Therefore, Zare suggested that the Petitioner review the appraisal overnight and come back the next day to discuss the appraisal. Petitioner did not return to discuss the appraisal with Zare. Petitioner's failure to return and discuss the appraisal with Zare resulted in Zare concluding that Petitioner was unwilling to accept constructive criticism of her performance. This precluded Zare from working with Petitioner to attain any progress. Therefore, Zare concluded that nothing could be accomplished in attempting to work with Petitioner in the future. Therefore, Zare recommended to Keegan and Venza that Petitioner be terminated. Although Zare considered Petitioner's work performance to be below standards, Zare would not have recommended Petitioner's termination had it not been for Petitioner's very negative reaction and her unwillingness to discuss the appraisal with Zare. Petitioner's employment with FEISCO was involuntarily terminated on November 15, 1990. Between being terminated with FEISCO and being re-employed, Petitioner lost ten weeks of pay at $418.00 per week, an annual bonus equal to one month's pay and other monetary damages in the form of lost medical benefits. Although FEISCO had several employees that suffered a medical condition during times relevant to this proceeding, there was no evidence that FEISCO discriminated against any of these employees because of their medical condition. There was insufficient evidence to establish facts to show that FEISCO discriminated against Petitioner because of her medical condition, chronic fatigue syndrome, when FEISCO terminated Petitioner on November 15, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Karen Ehlers, was not discharged due to her handicap or perceived handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed. RECOMMENDED this 26th day of May, 1993, at Tallahassee, Florida. WILLIAM R. CAVE 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 May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3782 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 31 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony, with the exception of the second sentence of Proposed Finding of Fact 30 which is rejected as not being supported by competent substantial evidence in the record. Respondent's Proposed Findings of Fact. Proposed Findings of Fact 1 through 18 and 22 through 55 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial. Proposed Findings of Fact 19 through 21 are rejected as not being supported by competent substantial evidence in the record. COPIES FURNISHED: Snowden S. Mowry, Esquire KANETSKY, MOOR & DEBOER, P. A. Post Office Box 1767 Venice, Florida 34284-1767 David J. Stefany, Esquire HOGG, ALLEN, NORTON & BLUER, P. A. S. Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Sharon Moultry, Clerk Human Relations Commission John Knox Road Building F, Suite 240 Tallahasse, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether the termination of Respondent was in accordance with the personnel policy and procedures established by Emerald Coast Utility Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. On September 25, 2006, Respondent was employed by Petitioner as a lead service worker. At the time, Respondent was given a copy of the employee handbook and the Drug Free Work Place Program notice. Receipt of both documents was acknowledged by Respondent. Until the time of the incident described in this order, Respondent was considered an excellent employee with high potential for advancement. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resource Policy Manual. The Human Resource Policy Manual states, in relevant part, as follows: * * * Section F-4 Disciplinary Offenses (29) Use of or Being Under the Influence of any Controlled Substance as Defined in Section 893.03, Florida Statutes or Federal regulation, Not Pursuant to Lawful Prescription While on Duty; or Possession, Sale, ‘Illegal drug’ means any controlled substance as defined in Section 893.03, Florida Statutes or Federal regulation, which is not possessed, sold, distributed, or dispensed in accordance with law. * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes . . . . Chapter G Drug and Alcohol Abuse Policy It is a condition of employment with the Escambia County Utilities Authority for an employee to refrain from reporting to work or working with the presence of drugs and alcohol in his or her body. If an employee tests positive for alcohol or drugs, his or her employment may be terminated . . . Section G-2 Definitions B. ‘Drug abuse’ means the use of any controlled substance as defined in Section 893.03, Florida Statutes, as amended from time to time, not pursuant to lawful prescription. The term ‘drug abuse’ also includes the commission of any act prohibited by Chapter 893.03, Florida Statutes, as amended from time to time. The use of illegal drugs, or being under the influence of illegal drugs on the job, by ECUA employees is strictly prohibited. Section G-5 Rehabilitative/Corrective Action B. Any employee found to have possessed, used or been under the influence of illegal drugs or alcohol while on duty shall be subject to disciplinary action, up to and including dismissal . . . . E. Any employee who tests positive for alcohol or who tests positive for illegal drugs on a confirmation test shall be subject to disciplinary action, up to and including dismissal . . . . On August 14, 2009, Respondent was driving an ECUA vehicle while performing his job duties for Petitioner. Respondent did not see a low-hanging tree branch and struck the branch with the vehicle, causing minor damage to the vehicle. Respondent contacted his supervisor to report the accident. Respondent’s supervisor met Respondent at the accident site. He did not observe any behavior by Respondent that would indicate he was under the influence of any substance. However, because a vehicle accident had occurred, Respondent was required by ECUA policy to undergo a urine test for drugs and alcohol. That day, Respondent reported to LabCorp, ECUA’s occupational testing services company. LabCorp is a licensed facility under state and federal law to obtain urine samples for drug-testing purposes. Respondent was seen by a LabCorp technician who was well-qualified to obtain and process urine samples. The technician checked Respondent’s identification and had him empty his pockets prior to the test. The technician gave Respondent a sample cup, with a temperature strip on it. The temperature strip helps ensure that the liquid in the cup is close to body temperature indicating the liquid is urine and has not been adulterated. Respondent took both cups in the bathroom and urinated in them. Respondent returned the sample to the technician. In the presence of Respondent, the technician checked the temperature of the sample, which was normal. The technician then split the sample into to two test tubes, sealed each tube, labeled them and had Respondent initial each tube. The technician recorded her activity in processing the sample on a custody and control form which Respondent then signed, acknowledging the sample-taking process. Again in the presence of Respondent, both the custody and control form and the two samples were placed in a sample bag which was sealed with an evidence sticker and placed in a locked specimen box for transport to a licensed testing facility in North Carolina. There was no evidence that appropriate procedures were not followed by LabCorp in processing Respondent’s urine sample. Respondent’s sample arrived at LabCorp’s testing facility at Triangle Park in North Carolina on August 17, 2009. Sample A was used for initial testing and Sample B was frozen to preserve it for later testing if required. The sample was tracked through the test process by number and the name of Respondent is not known to the technician performing the tests. The first test performed on Respondent’s sample A was an immunoassay test. The sample was initially tested with a cut-off level of 15 nanograms per milliliter. The cut-off level is used to limit the possibility of a positive result due to secondhand exposure. Respondent’s sample tested positive for Cannabis. Since the sample was positive, it was sent for gas chromatography/mass spectrometry (GCMS) confirmation testing. GCMS tests for the presence of THC, the exact metabolite of marijuana. Respondent’s sample produced a positive result for THC. The results were reported to ECUA’s medical review officer and to ECUA. Upon learning of the positive test results, Respondent requested that the second sample be tested by another lab. The sample was sent to another LabCorp testing facility in Houston, Texas. Unfortunately, the second sample tested positive for marijuana. Respondent had no explanation for the positive test results and testified that he had not used marijuana for some 15 years. However, no credible evidence was produced at hearing that demonstrated the samples were adulterated, mixed up or improperly tested. Given these facts, Petitioner has established that Respondent tested positive for marijuana and that such results violate its drug policy.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utility Authority find that Respondent violated its Human Resource Policies F-4 (29) and (33) and impose such discipline on Respondent as determined appropriate. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 27th day of May, 2010. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Terrance D. Peace 5748 Juergen Way Milton, Florida 32570 Richard C. Anderson, SPHR Director of Human Resources & Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
