The Issue The issue is whether Petitioner, Juan F. Ramos (Petitioner), is entitled to compensation pursuant to sections 961.01 through 961.07, Florida Statutes (2013). Unless otherwise stated, all references to the law will be to Florida Statutes (2013).
Findings Of Fact Petitioner immigrated to the United States from Cuba in 1980. In April of 1982, Petitioner resided in Cocoa, Florida, within walking distance of his employer, Armor Flite Southeast. Mary Sue Cobb, the victim of a murder, also lived in the area near Petitioner’s home and Armor Flite Southeast. Petitioner and Mrs. Cobb knew one another. Prior to April 23, 1982, Petitioner had placed an Amway order with the victim and her husband. The Cobbs sold Amway products and solicited Petitioner to purchase items and/or become a salesperson for the company. Prior to April 23, 1982, Petitioner had been at the Cobb residence five or six times. Petitioner had been inside the Cobb home. For the two days prior to April 23, 1982, Petitioner had been sick, unable to go to work, and had not been at the Armor Flite Southeast property. At all times material to this case, Manuel Ruiz was the general manager at Armor Flite Southeast. Mr. Ruiz served as Petitioner’s supervisor. From the Armor Flite Southeast property, it was possible to view the Cobb residence. On the morning of April 23, 1982, Petitioner told his wife he was going to work. Petitioner did not, however, enter the Armor Flite property at the beginning of the work day when Mr. Ruiz opened the shop at approximately 6:45 a.m. Moreover, Mr. Ruiz did not see Petitioner at the Armor Flite Southeast property until he came to pick up his check at 11:30 a.m. or noon on April 23, 1982. Instead of a paycheck, Mr. Ruiz gave Petitioner a letter on April 23, 1982, that notified him he was being laid off effective April 21, 1982. Armor Flite Southeast was in Chapter 11 and the trustee for the company gave Mr. Ruiz a list of four persons who were to be laid off. Petitioner was among those four. Petitioner was invited to attend a meeting with the trustee on April 23, 1982, at approximately 3:30 p.m. In theory, the employees were being laid off due to lack of work, but they could be re-hired if the work volume improved. Mr. Ruiz explained the foregoing to Petitioner. Mr. Ruiz and Petitioner had no difficulty communicating as both men were fluent in Spanish. At some time after the meeting with Mr. Ruiz, Petitioner returned home and was there when family members came over later in the afternoon. During the morning of April 23, 1982, Mrs. Cobb was murdered. Following an investigation of the crime, Petitioner was charged with the first degree murder of Mrs. Cobb, was convicted, and was incarcerated. Subsequent to the conviction and sentencing, Petitioner’s conviction was overturned and his case was remanded for a new trial. The second trial resulted in an acquittal on April 24, 1987. On June 28, 2010, Petitioner filed a petition for compensation and alleged he is entitled to relief pursuant to chapter 961, Florida Statutes. An Amended Petition was filed on October 20, 2010, and resulted in an order entered May 13, 2013, by Circuit Court Judge Charles Roberts that provided as follows: The Defendant’s [Petitioner herein] Amended Petition to Victims of Wrongful Incarceration Compensation Act shall be transferred to the Division of Administrative Hearings for findings of fact and a recommended determination of whether the Defendant has established that he is a wrongfully incarcerated person who is eligible for compensation.
The Issue The issue is whether Petitioner's Petition for Relief should be dismissed as untimely pursuant to Section 760.11(7), Florida Statutes (2003).
Findings Of Fact Petitioner filed a Charge of Discrimination with FCHR on June 25, 2003. Petitioner alleged that Respondent discriminated against him based on his learning disability by terminating his employment on May 13, 2003. Finding no reasonable cause to believe that Respondent had committed an unlawful employment practice, FCHR issued a Determination: No Cause on November 4, 2003. That same day, FCHR issued a Notice of Determination: No Cause, advising Petitioner that he had 35 days from the date of the notice in which to request an administrative hearing. The notice clearly stated that Petitioner's claim would be dismissed pursuant to Section 760.11, Florida Statutes, if he failed to request a hearing in a timely manner. Petitioner filed his Petition for Relief with FCHR on January 5, 2004. Petitioner's request for hearing was filed 56 days after the date of the Notice of Determination: No Cause and 21 days after the expiration of the 35-day period referred to in Section 760.11(7), Florida Statutes (2003).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of February, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kacy M. Marshall, Esquire Fisher & Phillips, LLP 450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Wayne Pagliara Post Office Box 808 Orange Lake, Florida 32681-0808 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at "formal hearing," and the record as a whole, including the parties' Joint Stipulation, the following findings of fact are made: Respondent is now, and has been since February 19, 1998, certified as a correctional officer in the State of Florida. He holds Correctional Certificate Number 178896. On February 19, 1982, Respondent was certified as a law enforcement officer in the State of Florida and issued Law Enforcement Certificate Number 34142, which has since expired. Respondent is now, and has been since shortly after receiving his bachelor of science degree in education from Slippery Rock University, certified as a teacher in the State of Florida. From the early 1980's until 1993, Respondent worked as a police officer for various law enforcement agencies in Florida. In 1985, Respondent was physically arrested and charged with battery in Pinellas County. He was acquitted of the charge following a jury trial. After the acquittal, at Respondent's request, records relating to the matter were ordered sealed. In the mid 1990's, Respondent worked for Wackenhut Corporation as a teacher at correctional facilities in Moore Haven and South Bay, Florida. While working for Wackenhut in South Bay, Respondent was asked to assist in the "start up" of a "work release center" in Broward County, Florida, that Wackenhut was going to operate for the Broward County Sheriff's Office. Pursuant to Wackenhut policy, Respondent had to "go through a correctional academy" before assuming his new duties. After graduating from the "correctional academy," Respondent relocated to Broward County and began his new assignment for Wackenhut. Respondent's primary tasks were to "draw[] up all the rules and regulations for the [soon to be opened] facility" and "interview[] people for jobs." Respondent was housed in a "temporary [Wackenhut] office" in Lauderdale-by-the-Sea, Florida, along with others involved in the effort to open the facility, including Richard Fortenberry, who was going to be the facility administrator. On September 26, 1997, Respondent was accused of stealing a "couple of packs of playing cards" from a retail establishment in Palm Beach County, Florida. The Palm Beach County Sheriff's Office deputy on the scene issued Respondent a notice to appear2 in lieu of physically arresting Respondent. As directed, Respondent subsequently appeared in the Criminal Division of Palm Beach County Court to respond (in Palm Beach County Court Case No. 97-024167 MM A04) to the retail theft accusation made against him. On November 17, 1997, Respondent signed a Deferred Prosecution Agreement in Palm Beach County Court Case No. 97- 024167 MM A04,3 which provided that, if Respondent complied with the[] "conditions [set forth in the agreement] during the [three-month] period of Deferred Prosecution, no criminal prosecution concerning this charge [of retail theft] [would] be instituted " On December 22, 1997, the Palm Beach County State Attorney's Office issued a Nolle Prosse in Palm Beach County Court Case No. 97-024167 MM A04. The Broward County "work release center" was scheduled to open in February of 1998. Respondent was to occupy a "lead supervisor" position at the facility when it opened. Before he was able to assume this position, however, Respondent needed to fill out an "extensive" application (even though he was already employed by Wackenhut) and pass a pre- employment review conducted by the Broward County Sheriff's Office. Respondent filled out the application, "to the best of [his] ability," in October of 1997. On the application, he mentioned the 1985 Pinellas County battery charge of which he was acquitted, but not the notice to appear that he had received the previous month.4 Deputy James Diefenbacher was the Broward County Sheriff's Office "contract manager" for the Broward County "work release center" project. In November of 1997, after Respondent had entered into his Deferred Prosecution Agreement in Palm Beach County Court Case No. 97-024167 MM A04, Mr. Fortenberry told Respondent that Deputy Diefenbacher needed from Respondent certain documents concerning the 1985 Pinellas County battery charge in order for Deputy Diefenbacher to complete his pre-employment review of Respondent's background. Respondent promptly furnished Deputy Diefenbacher the requested documents. On December 31, 1997, Deputy Diefenbacher "showed up" at Respondent's office in Lauderdale-by-the-Sea and told Respondent that he "needed to talk to [Respondent] real quick." It was New Year's Eve. The "handful of people," including Respondent, who were there, were finishing up there work for the day so the office could close early. After he and Respondent "looked over [Respondent's] application" together, Deputy Diefenbacher turned on a tape recorder, "swore [Respondent] in," presented Respondent with a document, and told Respondent, "I need you to sign this document here. It means that you don't have any other arrest history."5 The document, which was typed on Broward County Sheriff's Office letterhead, read as follows: I swear under oath that all information regarding my criminal history has been presented to the Broward Sheriff's Office. My criminal history consists of a charge of simple battery, of which I was found not guilty of all charges by the court. Not [sic] other criminal history exists. SWORN AND ATTESTED TO BY TIMOTHY J. MILLER ON THIS 31ST DAY OF DECEMBER NINETEEN HUNDRED NINETY SEVEN. Signed By: DEPUTY JAMES DIEFENBACHER OF THE BROWARD SHERIFF'S OFFICE Signed CCN# Respondent signed the document without reading it. Respondent took Deputy Diefenbacher at his word that, by signing the document, Respondent was attesting that he had no other arrests other than his 1985 arrest in Pinellas County for battery. Respondent did not intend to deceive anyone in signing the document. He believed that the information contained in the document (as explained to him by Deputy Diefenbacher) was true.6 He did not consider his having been given a notice to appear (on September 26, 1997, in Palm Beach County) to have constituted an arrest.7 Nonetheless, "a couple [of] years later," Petitioner was charged with and tried for perjury in connection with his signing the document; however, he was acquitted of the charge.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 16th day of February, 2004.
The Issue Whether Respondent Employer has committed an unlawful employment practice against Petitioner by discrimination against her on the basis of race, sex, handicap, or retaliation, in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a Negro female. As of March 12, 2003, she was rated by the Veterans’ Administration (VA) as having a 30 percent disability, due to a knee injury which occurred while she was on active military duty. (Petitioner’s unrefuted testimony and Exhibit P-37.) Petitioner specifically has alleged “sexual harassment,” “hostile work environment,” racial discrimination, retaliation, disparate treatment, and that she was denied a reasonable accommodation for her alleged knee “handicap.” Her “disparate treatment” allegation was presented in two respects: (1) that employees outside Petitioner’s protected racial class were not disciplined as harshly as Petitioner; and (2) that because Petitioner had worked for Respondent Employer for more than twelve months’ total, the State of Florida career service rules do not support her being terminated as a “probationary employee” from the position to which she was promoted and in which she had worked for less than twelve months at the time of her termination. Petitioner was first employed by Respondent Employer on November 15, 2002, at St. Lucie Regional Juvenile Detention Center in the position of Juvenile Detention Officer (JDO). After completing her twelve months’ probation in that position, Petitioner attained permanent State of Florida career service status. This meant that Petitioner was considered a permanent State of Florida employee, but it did not mean, as she has asserted, that she did not have to undergo a twelve months’ probationary period in each career service promotional position, if and when she attained one, or that she could never be terminated for cause. (See Conclusions of Law.) On September 10, 2003, at Petitioner's request, she was transferred from St. Lucie Regional Juvenile Detention Center to a vacant JDO position at Alachua Regional Juvenile Detention Center (ARJDC or “the facility”). This transfer permitted her to pursue a higher education at Santa Fe Community College (SFCC) in Gainesville, via her VA benefits, while being employed fulltime. When she transferred, Petitioner prepared a memo to all her supervisors at ARJDC stating that she needed to work the 11:00 p.m. to 7:00 a.m. shift so she could attend college classes in the mornings. However, at no time did the Employer guarantee that Petitioner would always be assigned to that shift. (P-35) At all times material, Petitioner was a single parent, working full time, and taking college classes. As a single parent, she was the sole support of her child. Because she was going to college pursuant to VA guidelines, she had to attend her classes and successfully complete them in order to continue to receive VA tuition and assistance. At all times material, Jill Bessette (Caucasian female) was employed in the position of ARJDC’s superintendent. As such, she was responsible for the overall functioning and operations at ARJDC, and for ensuring the safety and security of that facility’s juveniles and staff. Bessette relied on the facility's two assistant superintendents, Patricia Newman (Caucasian female) and Charles Parkins (Caucasian male), to assist her. Newman and Parkins oversaw daily operations, attended to personnel matters, and provided direct supervision of staff. In so doing, they regularly made written and oral reports to Bessette. On February 13, 2004, as a result of good reports about Petitioner's performance as a JDO at the facility, Bessette promoted Petitioner to the position of Senior Juvenile Detention Officer (SJDO). (P-17). On or about February 23, 2004, Petitioner complained to her superiors about Douglas Singleton (male) evaluating her, because she felt he had not observed her often enough. She was also rated by a female officer, Cohen, and wanted Cohen’s rating retained. This may have been a departmental career service or a union grievance, but it appears to have had no discrimination overtones. (See Findings of Fact 31 and 34.) Assistant Superintendent Parkins, who was Petitioner’s direct line senior supervisor, denied Petitioner’s grievance about her rating as untimely, but Petitioner did not demonstrate any specific negative personnel action resulting directly from Singleton’s evaluation. There is no evidence that this rating reflected that Petitioner was ever tardy or had unexcused absences. (P- 24, 25). After her termination in September 2004, Petitioner wrote the Governor stating that she had complained to Parkins in March 2004, about his attempt to switch her to a shift which would have interfered with her college classes and that Parkins was hostile about her going to college (P-36), but at hearing she presented no credible evidence that such an attempt by Parkins had ever occurred or that she had ever complained to anyone about such an attempt prior to her termination. Additionally, Petitioner was consistently assigned to the 11:00 p.m. to 7:00 a.m. shift she had requested until September 2004. (See Findings of Fact 31-35, 55, and 75, and Conclusion of Law 81.) In late February 2004, Petitioner complained because Newman, the assistant superintendent most concerned with timesheets, had inquired of a middle-level supervisor why Petitioner had been absent on a specific day. The testimony about this incident is so sparse, disjointed, and inconclusive that the undersigned cannot determine whether Petitioner also filed any type of grievance about Newman’s inquiry, but again, Petitioner’s complaint does not seem to have had anything to do with discrimination. (See Findings of Fact 31, 34.) In any case, Newman was apparently satisfied when informed by Cohen that Petitioner had been on pre-approved leave, and Petitioner did not suffer any detrimental personnel action specifically as a result of Newman’s inquiry. (Cf. Findings of Fact 74-75.) During the first week of April 2004, Petitioner tendered a letter of resignation to Bessette, which Bessette reluctantly accepted. Bessette testified that the only reasons Petitioner gave for this resignation were personal ones unrelated to discrimination. Petitioner did not testify otherwise. A short time later, Petitioner reconsidered her decision, and Bessette accepted Petitioner’s rescission of her resignation in such a way that Petitioner suffered no lapse in her career service. (R-5). From April 13, through July 25, 2004, Bessette took extended medical leave. During Bessette's absence, Assistant Superintendent Charles Parkins assumed the role of “Acting Superintendent.” At all times material, Shirley Edmond (Negro female) and Bruce Perry (Negro male) were employed by ARJDC as middle level supervisors. They supervised the JDOs and SJDOs assigned to their shift(s). At ARJDC, there are three shifts around the clock. SJDOs and JDOs at the facility are assigned to work shifts. In order to maintain an appropriate minimum correctional officer- to-juvenile detainee ratio, and in order to ensure the safety and security of staff, juveniles, and the community, SJDOs and JDOs are subject to having their shift assignment rotated or changed. Also in order to prevent the facility from operating below minimum staffing levels, JDOs and SJDOs may be required to “holdover” or continue working into the next shift when asked to do so as a result of on-coming staff members’ tardiness or absence. As a result of minimum staffing level requirements, ARJDC's operating procedures address the issue of tardiness and identify three instances of tardiness in any rolling 90-day period as “excessive.” (R-17). ARJDC’s operating procedures also address absenteeism. The required procedure for “calling in sick” requires employees seeking approved leave to contact the on-duty officer or acting supervisor at least two hours in advance of the employee’s report time, and further requires that thereafter, the employee also speak to the shift supervisor and discuss the employee's return-to-work date. Medical verification may be required by the Employer for absences in excess of three consecutive days. (R-17). Upon her hire, and again in June 2004, Petitioner was made aware of, and was provided with, a copy of the Employer’s policies and procedures with regard to absenteeism and tardiness. (R-3, 19). From May through June or early July 2004, Petitioner, Perry, and Edmond all worked the 11:00 p.m. to 7:00 a.m. shift. During these months, both Perry and Edmond observed that Petitioner frequently arrived late for her shift, that is: more than one minute after 11:00 p.m., which is the grace period allowed by the facility’s policies and procedures. (R-17). On one occasion, Perry spoke to Petitioner about her tardiness. Petitioner attributed her tardiness to problems with her babysitter. At all times material, Petitioner was aware of the Employer’s policy against, and procedures for reporting, discrimination or sexual harassment. These procedures are given in numbered paragraphs, but are not referred to as “steps.” They permit Petitioner to involve the internal EEOC officer and the Employer’s hierarchy outside the facility. (R-4). On June 25, 2004, while he was her shift supervisor, Bruce Perry wrote Petitioner a counseling memo concerning her tardiness on June 1 and 25. She received the memo on July 13, 2004. (P-15). Shirley Edmond testified that July 22, 2004, Petitioner threatened her as set out in greater detail in Findings of Fact 68-72 infra, concerning Bruce Perry’s counseling memo. On or about July 16, 2004, Petitioner filed what was described as a “departmental grievance” against Perry’s counseling memo(s).2/ This grievance could have been brought pursuant to a union collective bargaining agreement or pursuant to Section 110.227(4), Florida Statutes. However, that statute provides a "two-step" grievance procedure only for career service employees who are no longer on probation in their current position, and it excludes consideration of both "discrimination" and "sexual harassment" issues, which are supposed to proceed through superiors and the EEOC officer. Due to her probationary status as SJDO, Petitioner would have been ineligible to pursue the statutory grievance. In any case, her grievance did not raise issues of sexual discrimination or sexual harassment (P-38), nor was it directed to an internal EEOC officer. On or about July 17, 2004, Petitioner sent an e-mail letter outside the facility to the Assistant Superintendent for Detention Services, Perry Turner. Respondent's discrimination and sexual harassment procedures permitted this. However, in the e-mail Petitioner complained in general terms that she was experiencing problems getting facility personnel, particularly Charles Parkins, to follow all the "steps," in appropriate sequence, of established grievance procedures. (P-39). Turner, who oversees all detention facilities and services statewide, and whose office is in Tallahassee, delegated responsibility for investigating Petitioner's complaint to Operations Manager Richard Bedson, who supervises all of the detention branches’ support services. Mr. Bedson had recommended Petitioner for her promotion to SJDO and for a raise in connection therewith, but they did not know each other. (P-17). He was not housed in her facility. He was entirely independent from ARJDC staff. On July 19, 2004, Perry rescinded his counseling memo to Petitioner (P-12), because it had been shown to Parkins that Perry was not on the same shift with Petitioner on June 25, 2004 (P-13), and/or that on June 25, 2004, or the other date cited in Perry’s memo (June 1, 2004), Petitioner had prior permission from a different supervisor to “back down” her hours so as to legitimately arrive late for her shift (P-39). Perry’s testimony herein confirmed that for one of the days cited in his counseling memo, he had relied on someone else’s observation of Petitioner’s tardiness, and that he, himself, had not seen that particular tardy arrival. In any case, a counseling memo is not considered a disciplinary memo, and Perry’s memo stated that fact. (P-15). A counseling memo does not begin the three-tier progressive discipline that could lead to termination of a permanent employee for cause, and Perry’s counseling memo was rescinded, anyway. Petitioner acknowledged that the offending memo was rescinded after she complained about it. Despite the happy outcome for Petitioner of her grievance about Perry’s counseling memo, Petitioner claimed at hearing that everything that happened to her after February 2004, was the result of Parkins’ retaliation against her for filing the first evaluation grievance which Parkins had ruled was untimely (see P-12, 14, and Finding of Fact 10) and/or because Parkins and Perry were retaliating against her for grieving Perry’s alleged sexual harassment of her. At hearing, Petitioner testified that from late May 2004 to June or July 2004, Bruce Perry made suggestive remarks to her about her lips and buttocks; made comments designed to make others infer that Petitioner and Perry were sexually involved; put his hands on her shoulders; and rubbed his privates in her presence. She claimed that she rejected Perry and reported these unsavory and harassing activities to superiors Parkins (male), Singleton (male), Smith (female), and Cohen (female), and that thereafter, Perry created a hostile and retaliatory workplace for her. She also related that Freda Smith, a middle level supervisor, had promised to report Petitioner’s complaint of sexual harassment by Perry to Parkins. None of the foregoing supervisors Petitioner named corroborated that Petitioner had reported any sexual incident with Perry to them. Of the supervisors Petitioner named, only Parkins actually testified, and he denied that either Petitioner or Freda Smith, on Petitioner’s behalf, had made any such report to him. (R-20). Bruce Perry denied in writing, when the issue was first raised after Petitioner’s termination, and in his testimony herein that he had committed any of the acts of which Petitioner accused him. (R-7). Interestingly enough, although Parkins and Perry both denied any knowledge of Petitioner reporting Perry to Parkins, Petitioner personally testified that when she had reported Perry to Parkins, Parkins removed her from the area physically near Perry and later removed Perry from her shift altogether, so as to separate them. Perry confirmed that he only worked with Petitioner "a couple months" until he was removed from her 11:00 p.m. to 7:00 a.m. shift. When, precisely, Perry was removed from that shift is not clear on this record. Petitioner testified that she needed larger pants for her correctional officer’s uniform, to accommodate the knee brace she sometimes needed to wear for her prior military injury, and that Perry had remarked that her pants were all right, in connection with his comments about her buttocks. Perry denied making any suggestive remarks. No other witness noticed a problem with Petitioner’s uniform pants or that Petitioner was in any manner unable to do her job, due to her knee or for any other reason, until she had a shoulder injury on August 4, 2004, as described infra. However, Petitioner testified that Parkins told her to get a doctor’s note stating that she needed the knee brace. Petitioner had admitted in evidence such a note from her doctor dated July 21, 2004, on which she had printed a note to Parkins requesting larger uniform pants and stating she had spoken to Parkins about the larger pants a month before July 21, 2004. This note said nothing about Perry or his alleged sexual comments. (P-11). Petitioner's testimony is not entirely clear as to whether she believed that Parkins refused her request for larger uniform pants, or just ignored it, but since she admitted that she slipped the note under Parkins’ office door when she was told by another supervisor that Parkins would not be in, her delivery system may have failed to get her doctor’s note to Parkins. Parkins testified that he recalled no requests, either oral or written, for bigger uniform pants, but if he had received such a request he would merely have passed it on to the person who was in charge of ordering/issuing property on a regular basis. It is probable the property officer only worked a standard day shift, while Petitioner worked the 11:00 p.m. to 7:00 a.m. shift. On July 25, 2004, Bessette returned and resumed her duties as superintendent of ARJDC. Bessette testified that she knew nothing of any sexual harassment allegations until after Petitioner was terminated in September 2004, and the evidence as a whole shows that Petitioner first approached internal and external EEOC officers about sexual harassment only after she was terminated. (R-7, P-26,36) Moreover, in late July, Petitioner had every opportunity to speak to the Employer’s non-facility personnel to resolve any alleged “sexual harassment,” “hostile work environment,” racial discrimination, retaliation, disparate treatment, or problems concerning being denied a reasonable accommodation for her alleged knee “handicap,” but she did not do so. In late July, Operations Manager Richard Bedson telephoned Petitioner at the facility and asked if he could speak to her about the concerns she had expressed in her letter to Assistant Superintendent for Detention Services, Perry Turner. (See Finding of Fact 26.) Petitioner refused to speak to Bedson over the phone about her e-mail to Turner or her concerns, stating she did not know who Bedson was and she was not going to speak to him unless someone else on the phone vouched for him. Bedson then arranged to meet with Petitioner, personally. (P-39). Discrimination investigations, particularly those involving sexual matters, are best begun by a discreet meeting between the investigator and the complainant alone, but Petitioner had not told Mr. Bedson what her problems were, and her memos had referred to “step” grievance procedures which are a union device. The use of the word "step" could also have referenced the Section 110.227(4) procedure which, by its nature, could not deal with "discrimination" or "sexual harassment." (See Finding of Fact 25.) Petitioner also had declined, via e-mail, to come to Bedson's office in another city unless she received per diem travel pay, and had stated that she preferred to meet at ARJDC. (P-39). Therefore, Bedson held a meeting on July 30, 2004, with Petitioner, Bessett, Parkins, and Petitioner's union representative, Mr. Reeves, who is a teacher from outside the facility. Bedson chaired the meeting and asked Petitioner to relate her concerns regarding her treatment at ARJDC. At no time during the July 30, 2004, meeting did Petitioner indicate she was being, or had been, sexually harassed; that she or anyone else was the subject of any type of disparate or preferential treatment; or that she had a knee injury that was not being accommodated. She did not state that she was entitled to preferential treatment by virtue of being a veteran. She did orally accuse Parkins of practicing undefined retaliation against her. However, she refused to discuss anything more and stated she would put her concerns in writing. Bedson informed Petitioner that he would request that an investigator meet with her as quickly as possible so that an investigation could occur. He then concluded the meeting. After this meeting, Bedson telephoned Operations Management Consultant II James Darbin Graham, who is assigned to Respondent Department’s North Region Office. He directed Graham to meet with ARJDC staff and Petitioner to determine what Petitioner’s concerns were and to conduct an investigation as necessary. Bedson recounted to Graham his earlier meeting with Petitioner, her prior e-mail, her general allegation of "retaliation" by Parkins, and her refusal to provide any further explanation. On August 4, 2004, while working the 11:00 p.m. to 7:00 a.m. shift, Petitioner injured her shoulder opening a door. She left the facility for the hospital. After treatment at the hospital, she returned to the facility at approximately 5:00 a.m. with hospital paperwork for facility administrators so that she could obtain workers' compensation benefits, including medical care, disability pay, and leave. On this same morning, Graham arrived, unannounced, at the facility at approximately 6:00 a.m. to meet with Petitioner. He was advised that she had left for the hospital, but then he spotted her in the ARJDC lobby. Petitioner was wearing a hospital gown, and her arm was in a sling. Graham introduced himself to Petitioner and advised that he needed to speak to her. Petitioner refused to speak to him, stating she was on medication and that he would have to make an appointment so that she could have her union representative at the meeting when she was not feeling the effects of the medication. In order to be able to arrange such a meeting, Graham advised Parkins that he needed to speak with Petitioner upon her return to work from medical leave. From August 4, 2004 onward, Parkins did not arrange such a meeting or notify Graham when such a meeting could occur. Graham concluded this was because of Petitioner’s extended absence and subsequent termination, effective September 8, 2004. As a result of her on-the-job shoulder injury, Petitioner was immediately placed on workers’ compensation leave. The parties agree that Petitioner was entitled to all workers’ compensation benefits, including medical care, leave, and pay, from August 4, through August 10, 2004. It is the two periods of August 10, to August 19, 2004, and August 20, to September 8, 2004, that drive this case. Assistant Superintendent Newman maintains and processes paperwork related to workers' compensation for the facility. On August 10, 2004, Petitioner’s medical physician released Petitioner to return to work with the following restrictions and medications: Employee is to avoid all use of affected arm. . . . Avoid lifting, reaching, grasping with right arm only. Physical therapy ordered. Stop percocet and discontinue sling. The following medication(s) has (have) been prescribed: Naproxen . . . Effects include . . . dizziness Metaxalone . . . May cause drowsiness Cyclobenzaprine . . . common side effects include drowsiness, decreased judgment, . . . blurred vision . . . caution should be exercised when driving or operating dangerous equipment Tramadol . . . May cause sedation . . . Use caution when driving or operating dangerous machinery. (Emphasis supplied) (R-2). Petitioner received a copy of the foregoing document, as quoted supra. It is probable that the Employer’s independent workers’ compensation contract carrier, “Covel”, also received a copy, but there is no evidence this detailed document was presented to anyone at ARJDC. However, ARJDC was made aware of its medical restrictions on use of Petitioner’s arm. “Master Control” is the only light duty available at ARJDC. It has always been used for situations such as Petitioner’s, and is the only “accommodation” Respondent has available. Master Control is a desk assignment away from juvenile detainees, which requires only monitoring cameras, answering telephones, and pushing buttons, but which has no potential for strenuous restraint of, or harm from, detainees. Petitioner was advised on August 10, 2004, that the facility could accommodate her doctor's restrictions of modified duty by assigning her to Master Control. However, Petitioner did not report to work for nine more days, or until August 19, 2004.3/ Petitioner also did not obtain authorization for her absence August 10-19, 2004, using the methods required by the Employer’s policies and procedures. (See Findings of Fact 16- 18.) Instead, Petitioner reached Parkins by telephone on August 10, 2005, and told him that her medications were making her too drowsy and dizzy to drive. Parkins took what Petitioner told him at face value. He was concerned about Petitioner’s safety and the Employer’s liability. He told her not to come to work until she could drive or could see her doctor. Petitioner followed up on their conversation by faxing Parkins, that same day, a written explanation that she was on four medications and that three out of the four medications, which she did not name, were causing her symptoms. (P-34). Petitioner’s next doctor’s appointment was not until August 19, 2004, so she did not report to work until after that appointment. Although her physical restrictions diminished over time, from August 4, 2004, until October 20, 2004, Petitioner’s workers’ compensation physician continued to prescribe one or more medications for Petitioner which could have rendered her dizzy or drowsy. (P-10, 32). However, there is no evidence this information was sent to ARJDC, even though it probably was sent to the independent workers’ compensation contract carrier, Covel. Petitioner did not work the full 11:00 p.m. to 7:00 a.m. shift in Master Control on August 20, 2004. Upon her placement in Master Control early, at about 10:30 p.m., on August 19, Petitioner immediately complained of pain in her shoulder and drowsiness from her medications. After she was observed with her head on the table, she was sent home by her supervisor. She had been present on the jobsite about an hour. Petitioner called in on August 21, 2004, at midnight (an hour after she was due to report for her shift), to say she had just awakened, was in a lot of pain, and would not be reporting to work. Petitioner did not follow proper procedures in reporting this absence. (See Findings of Fact 16-18.) Petitioner's regular days off work fell on August 22, and 23, 2004. On August 24, 2004, Petitioner still did not report to work and did not call the facility, as required by Respondent’s policies and procedures. On August 24, 2004, Assistant Superintendent Newman received a call from Julie Bumgardner of Covel, who wanted to be sure that the facility was accommodating Petitioner’s workers’ compensation shoulder injury with an appropriately restricted work assignment. When Newman indicated that Petitioner continued to be absent due to drowsiness associated with her medication, Bumgardner advised Newman that the medications Petitioner was currently prescribed for her workers' compensation injury did not contain narcotics to make her drowsy and Petitioner should have returned to work on August 10, 2004, with the accommodation for her arm as previously stated. Bumgardner faxed Newman either an incomplete copy of the August 10, 2004, physician's order, which did not mention the four drugs which could have been making Petitioner dizzy or drowsy between August 10-19, 2004, but which did say to discontinue percoset, and/or a separate document showing that the narcotic percocet had been discontinued by the physician on August 10, 2004, and which listed the other four drugs, but not their side effects. (R-8). As a result of this incomplete and therefore misleading information, Newman and Bumgardner concurred that any of Petitioner’s absences after August 10, 2004, should be charged against Petitioner’s accrued sick and annual leave and should not be categorized as workers’ compensation leave. Petitioner was credited with working eight hours on August 25 and eight hours on August 26, 2004. On August 26, 2004, Newman wrote a memo to Petitioner advising her that effective Friday, September 10, 2004, Petitioner was being temporarily reassigned to the 7:00 a.m. to 3:00 p.m. shift in Master Control. The memo explained to Petitioner that Newman's purpose in this reassignment was to further accommodate Petitioner by assigning her to Master Control during the day shift when another employee, also assigned to this same station, could assist Petitioner if Petitioner needed assistance. By writing the memo on August 26, and not making the assignment change effective until September 10, Newman intended to give the customary two weeks’ notice so that Petitioner could arrange her personal life to fit the change of shift. When she wrote this memo, Newman should have, but did not, realize that Petitioner was taking morning classes. When she received this memo on August 26, 2004, Petitioner believed that she was entitled to never be reassigned to a shift that did not accommodate her college classes. She refused to sign, acknowledging receipt of the memo. Petitioner wrote the following on the bottom of Newman’s memo: I am confused about this letter because of the last letter I received from D.S. Bessette. I cannot sign this at this time. You must have me confused with SJDO L. Green. She’s the one with the shift ch[ange].(R-10) In her routine review of employee timesheets, Newman had noted that Petitioner had not signed her timesheet covering August 13, 2004, through August 26, 2004, and that Petitioner had claimed “leave without pay: code 60”, signifying that she expected to receive workers’ compensation disability pay and not be docked any sick or annual leave for that period of time. On August 27, 2004, Newman issued a memo to Petitioner's immediate supervisor, Wilcox, requesting that Wilcox address with Petitioner the incorrect coding Petitioner had written into her timesheet covering the dates of August 13, through August 26, 2004. (P-33). Ms. Newman also wrote across Petitioner’s first timesheet (see Finding of Fact 57), in red ink, advising Petitioner: Ms. Francis you need to recode your leave to 52-sick and resubmit w/ signature. According to your doctor’s note you should have assumed work duties on the 10th of August. (R-12) Workers’ compensation pay does not begin until a specified time after the compensable accident. Many employers, including this one, have an elaborate system in place to pay an employee full salary and adjust leave categories of accrued sick and annual leave to make up the difference between the workers’ compensation rate and the regular pay rate, instead of paying the employee just the lesser amount permitted by the workers’ compensation statute. However, neither of those considerations was afoot here. Here, despite Newman’s testimony as to “the first 40 hours of workers’ compensation coverage,” the exhibits clearly reveal that Newman was attempting to get Petitioner to use her accrued sick leave to cover any time she had been absent from work after August 10, 2004. Because of her conversation with, and the incomplete materials supplied by, Bumgardner, Newman believed this was the correct way to code Petitioner’s timesheet. (See Findings of Fact 49-53.) When she received Newman’s August 27, 2004, memo to Wilcox, that same day, Petitioner responded to it by writing a note on the bottom in which she stated that she was not going to use sick leave; that she had permission from Parkins for her August 10-19, absence; that she was on four different “meds”; that her arm became swollen when she did come in on August 19; and again that she would not use sick time for an on-the-job injury that Newman refused to accommodate. Petitioner then finished with I am so sick and tired of the inconsistency and lack of communication among the management team. . . . You all need to stop this please. (P-33) Petitioner’s adamant and belligerent attitude did not sit well with Newman who, based on the information provided by Bumgardner, believed she was just doing her duty. On September 2, 2004, Newman came in at 6:00 a.m. to talk to Petitioner before Petitioner went off her shift at 7:00 a.m. Petitioner insisted on being confrontational with Newman in front of staff, instead of coming to Newman’s office as Newman requested. Petitioner adamantly refused to change the first timesheet or to sign it. (R-14). She stated to Newman that she had relied on Parkins’ oral authorization to be on workers’ compensation leave from August 10, to August 19, 2004. She later submitted a new, typed timesheet, still claiming “Code 60-workers’ comp. disability” for each of her scheduled work days between August 13, and 24. This version she signed. (R- 13). Newman caught up to Petitioner as Petitioner was checking out at the time clock on September 2, 2004; handed her a copy of the August 26, 2004, memo (see Finding of Fact 55); and inquired if Petitioner would be reporting as previously ordered to the 7:00 a.m. to 3:00 p.m. shift on September 10, 2004. Petitioner stated she could not make the change due to her babysitter and previous registration for college classes. She continued to rely on Parkins’ oral authorization for August 10-19, and apparently expected workers’ compensation considerations for her absences after August 19, 2004, as well. (R-14). Newman never received corrected timesheets from Petitioner, despite explaining the situation to someone from Petitioner’s union who telephoned Newman and offered to act as an informal intermediary. Finally, in order to get Petitioner paid on time, either Newman or Parkins filled out a timesheet covering August 13 through August 26, 2004, and signed for her. Petitioner ultimately was charged sick leave from August 10-20, 2004, and was declared absent without authorization for August 21 and 24, when she had not followed the prescribed procedures for an authorized absence. (See Findings of Fact 49 and 51.) This meant that Parkins had retroactively withdrawn his oral authorization for Petitioner to take workers’ compensation leave for August 10 through August 19/20, and that Respondent viewed Petitioner’s absences on August 21 and 24 as unexcused. From the way this case was presented, it is difficult, if not impossible, to pinpoint when Petitioner did, and did not, report for duty after August 26, 2004. For instance, Petitioner insisted that she was not scheduled for duty on September 3, 2004, because that was the date of Hurricane Frances. She also claimed she could not work on September 3, 2004, because that was a day on which lack of accommodation the night before had caused her arm to swell. (See Finding of Fact 68.) Parkins confirmed that he did not schedule any “light duty” officers, of which Petitioner was one, for duty during Hurricane Frances, but he did not know the date of Hurricane Frances. Another witness thought Hurricane Frances had occurred in August 2004. If Hurricane Frances occurred on August 3, 2004, instead of September 3, 2004, then all such testimony is irrelevant because Petitioner's arm was not injured until August 4, 2004. There is documentation and testimony from Newman and Petitioner that Petitioner worked September 2, rolling into September 3, 2004. (See Finding of Fact 68.) Other dates Petitioner worked are equally confused or obscure, but Petitioner claims she worked August 25-28; was off on August 29-30; and contradicts herself that she was, or was not, scheduled to work on August 31, 2004; and was, or was not, scheduled to work on September 3, 2004. (See, infra.) However, both Petitioner and Edmond agree that on September 2, 2004, Edmond assigned Petitioner to a regular duty post. Edmond claims the assignment was a pure mistake on her part. Petitioner complained, via a 6:05 a.m. September 3, 2004, e-mail to Bessette, Newman, and Parkins, that her arm was swollen because of Edmond’s mis-assignment. (R-18). Petitioner’s e-mail also asserted that the Employer was not accommodating her work restrictions from her workers’ compensation doctor and that she was unable to come in to work that night due to her swollen arm. On September 3, 2004, at 11:35 a.m., about five-and-a- half hours after Petitioner’s complaint about Edmond’s assignment of her to regular duty on the 11:00 p.m September 2, to 7:00 a.m., September 3, 2004, shift, Edmond provided Bessette with a written statement, via e-mail, relating that on July 22, 2004, Petitioner threatened to "take her [Edmond] down." Edmond testified that shortly after receiving Perry’s June 25, 2004, counseling memo, Petitioner had called Edmond into a courtyard area at the facility to discuss her tardiness and her belief that management was tracking her tardiness. Respondent had always tracked its employees’ tardiness but had recently added a new method of keeping track. Petitioner referred to management’s tracking of her tardiness as "foolishness." Petitioner told Edmond not to engage in such behavior or Petitioner would “take her down" with the rest of management. Edmond claims to have acknowledged the incident to her immediate supervisor, Wilcox, on the same night it occurred. Wilcox was not called to corroborate Edmond’s testimony, and Edmond did not memorialize the event in writing until September 3, 2004, when she felt her job was being threatened by Petitioner’s September 2, 2004, memo of complaint. (See Finding of Fact 68.) Edmond testified that she also notified Bessette on September 3, 2004, about the July 22, incident because she believed that Petitioner was using codeine on the job. There is insufficient credible evidence to substantiate Edmond's testimony about codeine. It is more likely that Edmond related the story about July 22, 2004, to Bessette in retaliation for Petitioner's complaining that her workers’ compensation injury was not being accommodated by Edmond. The fact that Edmond also kept the July 22, 2004, incident to herself for six weeks renders the truth of her whole testimony suspect. However, that does not mean that Edmond's superiors had reason to disbelieve her September 3, 2004, accusation. Since August 24, 2004, Parkins and Newman, in reliance on Bumgardner, believed that Petitioner was using a narcotic drug (percocet) which her doctor had told her to discontinue on August 10, 2004. They were unaware that some of the other drugs legitimately prescribed by Petitioner’s authorized workers’ compensation physician might have caused the drowsiness and dizziness that had kept Petitioner from reporting for work between August 10 and August 19, 2004, and sporadically thereafter. (See Finding of Fact 53.) After Julie Bumgardner’s mis-information had been received on August 24, 2004, and continuing onward, Superintendent Bessette received reports from Newman, Parkins, and Edmond about Petitioner’s tardiness problems. It is not clear what instances of tardiness besides those occurring after August 10, 2004, were actually reported to Bessette. It is probable that both Newman and Parkins had an overall impression that Petitioner had frequently been tardy over the whole period of her employment at ARJDC, and it is possible, but not proven, that the rescinded Perry counseling memo (see Findings of Fact 23-27) was remembered or utilized. However, tardiness was only part of Bessette’s considerations. Bessette was also apprised of Petitioner's incorrectly coded timesheets and adamant attitude that she would not use sick leave to cover time off. Petitioner’s belligerency toward Newman and her attitude that everyone was “out to get her” aggravated the situation. Bessette considered Petitioner's refusal of Newman’s direct order to correct her timesheets to be insubordination. Parkins and Newman believed, however erroneously, that Petitioner was taking the narcotic percocet, contrary to her doctor’s instructions. Parkins may also have believed and resented that his oral authorization to Petitioner for leave August 10-19, had been obtained by fraud. The report to Bessette of a threat against Edmond was the last straw. Upon the mounting objections to Petitioner’s job performance, and based on a consensus of Newman, Parkins, and herself, Bessette determined that discipline was appropriate and requested authorization from her superiors to terminate Petitioner, which they granted. Petitioner was terminated by a September 8, 2004, letter, effective that date, stating that her termination was because of . . . your failure to satisfactorily complete your probationary period . . . . (P-9) Petitioner proved that ARJDC SJDO Genevieve Hazelip (Caucasian female), Respondent’s employee since 2000, was disciplined in the position of SJDO on one occasion in January 2005, after Petitioner was terminated. This was an oral reprimand for “a conversation with racial undertones, regardless of intention". (R-15). The oral reprimand of Hazelip was only stage one of the Employer’s three-stage progressive disciplinary system, which could lead to termination of a permanent employee at the third step. If Hazelip was on probation in her SJDO position, the Employer did not have to go through the three steps to terminate her, but it was not proven that Hazelip was on probation when she received the oral reprimand. Petitioner also proved that Hazelip was disciplined on two other occasions but was unable to establish whether these disciplinary actions occurred while Hazelip was a JDO or an SJDO or what level of discipline was imposed either time. At hearing, Petitioner claimed that Caucasian officers at ARJDC regularly got weekends and other coveted days off and Negro officers did not. She submitted nothing to substantiate this allegation, but admitted that there were more Negro officers than Caucasian officers and that she had never complained about the shift assignments because she was not dissatisfied with her own days off. It also may be reasonably inferred that Petitioner was not privy to any requests by other officers, Caucasian or Negro, for what shifts or days they wanted to work.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 1st day of September, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 1st day of September, 2006.
The Issue The issue is whether Respondent, Ideal Security Services, Inc. (“Respondent or Ideal”), retaliated against Petitioner, John Mercurio (“Petitioner”), for exercising his right to file a complaint on an alleged unlawful employment practice pursuant to section 760.10, Florida Statutes (2019).1/
Findings Of Fact Ideal is an employer as that term is defined in section 760.02(7). While the exact number of employees is not reflected in this record, the evidence established that Ideal employs greater than 15 employees. Ideal provides security officers to different locations for access control and on-site patrol. Petitioner worked for Respondent as a security officer from June 20, 2018, through February 7, 2019. At the time he was hired by Ideal, Petitioner was informed in writing of the company’s “Interchange” practice, which provides: Although employees generally are hired to work at one specific client location or facility, the company (Ideal Services, Inc.) uses its Guard Force INTERCHANGEABLY to meet its needs: In case of cancellation of any accounts, reduction or increase in hours provided, or an employee who may request a transfer. Also Ideal Services, Inc. wishes to point out that they DO NOT guarantee a full 40 hour work week. Overtime is given to employees depending on where the overtime will occur and the availability of employees to work an assignment. Ideal Services, Inc. wishes to also point out that hourly pay rates will depend on job placement as some client assigned jobs will carry higher pay rates than others. It is therefore Ideal Services, Inc.’s policy to inform all individuals who are applying for employment that Ideal Services, Inc. DOES NOT HIRE for only one site at one set pay rate . . . because both of these are subject to change. On the date he was hired, Petitioner signed a copy of the above policy statement, acknowledging that he had read and understood its contents. Petitioner’s first assignment was to provide security at a Krispy Kreme Donuts retail location, an assignment which carried a pay rate of $9.50 per hour. In July 2018, Petitioner was assigned to several other locations, in addition to the Krispy Kreme location. Those new locations were at Daytona Beach Housing Authority apartments, including the Maley, Windsor, and Trails apartment complexes. The public housing assignments carried a pay rate of $8.50 per hour. As of August 2018, Petitioner was no longer assigned to the Krispy Kreme location, but rather was working exclusively at the public housing locations. In December 2018, another Ideal security guard was newly assigned to the same public housing complex as Petitioner. It was clear to Petitioner that this individual was a racist based on his words and actions. While standing next to Petitioner, the new security officer referred to the building residents as "monkeys." It was clear to Petitioner that this remark was made in reference to the African-American residents of the complex. Dan Montrose, the senior security officer and Petitioner’s partner, was also within earshot when the newly assigned officer made the derogatory remark. Petitioner was stunned by the racist comment, especially since Mr. Montrose’s wife is an African-American female. Petitioner also testified that on another occasion, the new officer posted a picture of a Caucasian baby on the common area's fridge with an arrow that said, "Dan" on it, as well as a black finger/arm covering the baby's mouth which said, "Dan's wife." While Petitioner’s first impulse was to report the above racist incidents to his employer, at the request of Officer Montrose he did not immediately do so. However, while the exact date of the conversation is not of record, sometime in the second or third week of December 2018, Petitioner reported the “monkey remark” to Ideal’s Manager and CFO, Diane Cox. Ms. Cox assured Petitioner that she would discuss the racist comment with the offending security guard. Ms. Cox testified that the offending security guard was given a verbal warning for his inappropriate comment, but was not otherwise disciplined because he had worked for the company for many years without incident. When Ms. Cox spoke with the offending security guard about his inappropriate remark, she did not raise the issue of the racist picture that had been posted on the common area refrigerator. According to the testimony of Ms. Cox, this is because she had not been informed by anyone about the existence of the picture, and first became aware of it when she read Petitioner’s Complaint. Ms. Cox testified that had she been informed of the racist picture, disciplinary action would have been taken against the offending employee. Again, while the exact date is not of record, sometime in late December 2018, Petitioner requested a copy of his payroll records from Ms. Cox. While gathering the records for Petitioner, Ms. Cox discovered that Petitioner’s rate of pay had erroneously not been reduced from $9.50 per hour to $8.50 per hour when he was transferred from the Krispy Kreme location to the public housing locations. Upon discovering this accounting error, Ms. Cox informed Petitioner that effective immediately his rate of pay while on duty at the public housing locations would be adjusted to $8.50 per hour, but that Ideal would not be attempting to recoup the overpayments that had been made over the previous months, since the error had been theirs. Respondent offered in evidence payroll records which demonstrated that all Ideal security guards assigned to the public housing locations were paid at the rate of $8.50 per hour. At about the same time as Petitioner’s downward rate adjustment, another Ideal security guard requested that he be assigned an additional eight-hour shift in order to bring him to 40 hours per week. In an attempt to accommodate this request, Ms. Cox contacted several of the Ideal security guards, including Petitioner, to inquire as to whether any wished to relinquish an eight-hour shift. Petitioner advised Ms. Cox that he did not want to give up an eight-hour shift, and that request was honored by Ideal. The timing of Petitioner’s reporting of the racist remarks to Ms. Cox; Petitioner being informed that his hourly rate was being reduced; and Petitioner being invited to give up a work shift; is unfortunate. Because of the temporal proximity of these events, it is understandable that Petitioner concluded that the reduction in his pay rate and attempted reduction in his assigned hours were in retaliation of his reporting the racist remarks. However, the evidence does not prove a causal link between Petitioner's complaint and the adverse action he suffered. Rather, the credible testimony of Ms. Cox established legitimate nonretaliatory reasons for how Petitioner was treated, and there is no evidence that the reasons articulated by Ms. Cox were a pretext for retaliation. Petitioner failed to persuasively prove any incidents of retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Ideal Security Services, Inc. did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 16th day of January, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2020.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact The Petitioner began his employment with the Respondent on or about April 9, 2004. The Petitioner worked as a houseman. This job description was within the Respondent's housekeeping section. His original schedule required him to work a shift that ran from 6:00 a.m. until 2:00 p.m. In October or November of 2004, the Petitioner's work schedule changed and he was directed to work the overnight shift. The overnight shift personnel reported for duty from 11:00 p.m. until 7:30 a.m. The Petitioner accepted this re-assignment. The change in shift assignment was requested by Elizabeth Cortes' predecessor. Some time after December 2004, the Petitioner's supervising manager changed and Elizabeth Cortes became the director or manager for housekeeping. The Petitioner asked Ms. Cortes if he could return to the 6:00 a.m. to 2:00 p.m. shift. That request was not approved. The Petitioner accepted this decision and continued to work as scheduled. Ms. Cortes told the Petitioner at that time that she did not have another employee who would be available to take the night shift. In 2007 the Petitioner enrolled in school and requested that his shift be changed to a 9:00 p.m. to 5:00 a.m. shift so that he could attend school at Miami Dade. That request was approved. From the time of approval, the Petitioner was permitted to work three days from 9:00 p.m. to 5:00 a.m. (his school days) and two days from 11:00 p.m. to 7:30 a.m. The modification of the schedule allowed the Petitioner sufficient time to get to school in the morning. The Petitioner continued to work these shift times without complaint or issue. In November or December of 2006, the Petitioner made an application to become a banquet server for the Respondent's restaurant. He alleged that he gave the application to Elizabeth Cortes who was to sign it and forward it to Human Resources. According to Esther Sandino, the Petitioner did not file an application for restaurant server. Further, Ms. Cortes did not recall the matter. The Petitioner did not file a claim of discrimination for this alleged incident but presumably alleged that this incident demonstrates an on-going disparate treatment. There was no evidence that a non- Haitian was hired for the job as banquet server. There was no evidence any banquet servers were hired. Ms. Cortes did not hire banquet servers. Her responsibilities were directed at housekeeping. During the time Ms. Cortes was the housekeeping supervisor, the Respondent employed approximately 90 employees within the housekeeping section. Of those employees approximately 70 were Haitian. The remainder were Hispanic, Jamaican, Filipino, and other. Of the five persons who held supervisory positions, one was Haitian, two were Hispanic, one was from Czechoslovakia, and the country of origin of the fifth supervisor was unknown to Ms. Cortes. Ms. Cortes did not have the authority to terminate the Respondent's employees. Standard procedure would cause any allegation of improper conduct to be referred to the Human Resources office for follow up and investigation. There were two incidents referred for investigation regarding the Petitioner prior to the incident of April 22, 2007. Neither of them resulted in suspension or termination of the Petitioner's employment with the Respondent. On April 22, 2007, a security officer reported to the hotel manager on duty, Bingina Lopez, that the Petitioner was discovered sleeping during his work shift. Based upon that report, Ms. Lopez sent an e-mail to the housekeeping department to alert them to the allegation. When the Petitioner next reported for work, Mr. Saldana told the Petitioner to leave the property and to report to the Human Resources office the next day to respond to the allegation. The Petitioner did not report as directed and did not return to the property. Mr. Saldana did not have the authority to suspend or terminate the Petitioner's employment. Moreover, the Respondent did not send a letter of suspension or termination to the Petitioner. In fact, the Respondent assumed that the Petitioner had abandoned his position with the company. Ms. Cortes presumed the Petitioner abandoned his position because all of his uniforms were returned to the company. To avoid having the final paycheck docked, the Respondent required that all uniforms issued to an employee be returned upon separation from employment. The Petitioner acknowledged that he had his brother return the uniforms to the Respondent for him. The Respondent considered turning in uniforms to be an automatic resignation of employment. To fill the Petitioner's position (to meet housekeeping needs), the Respondent contacted an agency that provides temporary staffing. The person who came from the agency for the assignment was a male Hispanic. The male (who may have been named Lewis Diaz) arrived at the Trump Resort for work about ten days after the Petitioner left. The replacement employee's schedule was from 4:00 p.m. to midnight or 1:00 a.m. The temporary replacement remained with the Respondent until a permanent replacement for the Petitioner could be hired. It is unknown how long that was or who the eventual permanent employee turned out to be. Because the Petitioner never returned to the Trump Resort as directed, he was not disciplined for any behavior that may have occurred on April 22, 2007. The Petitioner's Employee Return Uniform Receipt was dated April 25, 2007. Prior to the incident alleged for April 22, 2007, the Petitioner had been investigated in connection with two other serious charges. Neither of those incidents resulted in discipline against the Petitioner. Both of the incidents claimed improper conduct that was arguably more serious than the allegation of April 22, 2007. Of the 400 plus employees at the Respondent's resort, the majority are Haitians. The Respondent employs persons from 54 different countries. The Petitioner's claim that he was referred to as a "fucking Haitian" by a security guard has not been deemed credible. The Petitioner was unable to indicate when the comment was made. Moreover, the Petitioner did not complain to anyone at the time the comment was allegedly made. Finally, no other employee could corroborate that the comment was made. One former employee testified that the Petitioner told him about the alleged comment. At best it was one offensive statement made on one occasion. There is no evidence that the Petitioner was treated in a disparate or improper manner based upon his national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 27th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Warren Jay Stamm, Esquire Trump International Beach Resort 18001 Collins Avenue, 31st Floor Sunny Isles, Florida 33160 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations of fact, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since May 16, 1986, certified by the Commission as a correctional officer. He holds certificate number 12-86-502-02. Respondent was employed as a correctional officer with the St. Lucie County Sheriff's Department (hereinafter referred to as the "County") from October 9, 1985, until April 26, 1991, when he was terminated by the County. He was disciplined by the County on various occasions during the first several years of his employment. Thereafter, for a period of approximately two years, until the spring of 1991, he had an unblemished disciplinary record. On March 20, 1991, at approximately 5:00 p.m., Respondent was working in the intake and booking area of the St. Lucie County Jail when he was involved in an altercation with Mark Hornick, an inmate at the facility, as Hornick was being escorted, in handcuffs, through the area by another correctional officer, Deputy John Fischer. Hornick was complaining about not having been fed. Respondent approached Hornick and asked him if he wanted to file a grievance. Moments later he grabbed the much smaller Hornick from behind and then pushed him into a wall in an adjacent hallway. Hornick struck his head on the wall and sustained a cut just over his eye. After Hornick made contact with the wall, he turned around and faced Respondent. Respondent thereupon grabbed Hornick again and this time picked him off the ground. He held Hornick in the air for a brief period of time before releasing him. The force Respondent used against Hornick was not, nor should it have appeared to Respondent to be, reasonably necessary to defend himself or anyone else against the imminent use of force, to overcome Hornick's resistance to any command that he had been given, or to accomplish any other legitimate objective. As a result of this March 20, 1991, altercation with Hornick, Respondent was given a ten-day suspension by the County, which determined following an investigation of the matter that Respondent, in his dealings with Hornick, had engaged in the excessive use of force. During his suspension, Respondent knowingly and voluntarily used marijuana. Upon Respondent's return to duty on April 15, 1991, he was ordered by his supervisor to report to a doctor's office to undergo urinalysis testing. Respondent went to the doctor's office on April 18, 1991, and provided a urine sample. The sample was given a unique identifying number and promptly sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. The sample was properly protected and transported to a forensic laboratory, where it was received in good condition without any evidence of tampering. At the laboratory, the sample was kept in a secure manner throughout the testing process. Adequate procedures were employed to ensure that the sample was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the sample. An initial immunoassay screening of Respondent's urine sample indicated the presumptive presence of 9-carboxy, a unique metabolite of tetrahydrocannabinol (THC), the biologically active compound found in marijuana. Additional laboratory testing of the sample was then performed to verify the results of the immunoassay screen previously performed. Gas chromotography-mass spectrometry, the most reliable and accurate confirmatory testing method, was utilized. The gas chromotography-mass spectrometry analysis of Respondent's urine sample was positive for the presence of 9-carboxy in a concentration of 41 nanograms per milliliter. The nanogram per milliliter results of the testing are consistent with, and indicative of, Respondent's knowing and voluntary ingestion of marijuana within a time frame of approximately one hour to one week prior to the collection of the urine sample. Passive inhalation of another's secondhand marijuana smoke would produce much lower results. After these results were made known, Respondent's employment with the County was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking his certification as a correctional officer as punishment therefor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of October, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1993.
The Issue Whether Petitioner, Paul Rancourt (Mr. Rancourt), established through clear and convincing evidence his actual innocence, thereby entitling him to compensation under the Victims of Wrongful Incarceration Compensation Act, chapter 961, Florida Statutes (2011).1/
Findings Of Fact Before discussing the findings from the administrative hearing, it is appropriate to set out the procedural history of the criminal proceedings. On December 18, 1996, the State charged Mr. Rancourt and Daniel McLean (Mr. McLean) with the kidnapping and three counts of sexual battery of A.S., which occurred on October 31, 1996. On July 27 through July 30, 1998, the State tried Mr. Rancourt and Mr. McLean together. The jury convicted both men, and the trial court sentenced Mr. Rancourt and Mr. McLean to life imprisonment on each count with the sentences to run concurrently. On April 5, 2000, the Second District Court of Appeal issued an opinion overturning Mr. McLean's conviction based on trial errors. McLean v. State, 754 So. 2d 176 (Fla. 2d DCA 2000). The appellate court reversed Mr. McLean's conviction for kidnapping because it found that the State "failed to prove [McLean] intended the kidnapping to occur, or that he performed any action that assisted in the kidnapping." Id. at 180. Further, the appellate court found that the trial court erred in two key evidentiary rulings. First, the trial court erred in allowing the State to elicit testimony from the medical provider who examined A.S. following the assault. The disputed question was: "[d]id she act in any way inconsistent with the way a rape victim would act?" Id. at 181. The appellate court found that the prejudicial effect of the expert testimony substantially outweighed its probative value. Id. Second, the trial court erred in excluding testimony under the Rape Shield Statute.3/ Id. Specifically, the trial court erred in not allowing Mr. McLean's attorney to cross-examine the medical provider about whether or not the A.S.'s soreness in her vulva area was due to the fact that she had not had sexual intercourse in the past year, as opposed to a sexual battery. Id. The appellate court found that this question went to a key issue of whether the sexual contact was consensual. The appellate court found the exclusion of this testimony was not harmless error; and thus, reversed Mr. McLean's convictions and sentences, and ordered a retrial. On January 5, 2001, Mr. McLean, pursuant to a plea agreement, pled nolo contendere to one count of sexual battery, section 794.011, Florida Statutes (1996). Based on the plea agreement, Mr. McLean was sentenced to 64 and one-half months’ incarceration, which reflected his time served, and two years’ probation. On June 14, 2000, the Second District Court of Appeal affirmed Mr. Rancourt's convictions for sexual battery and kidnapping, and his life sentences. Rancourt v. State, 766 So. 2d 1071 (Fla. 2d DCA 2000). In affirming Mr. Rancourt's conviction, the appellate court found that trial counsel had failed to preserve the issues concerning the medical expert's opinion vouching for the victim's credibility and the exclusion of the medical testimony under the Rape Shield Statute. On September 13, 2000, the appellate court issued its mandate. On September 10, 2002, Mr. Rancourt filed a post- conviction motion alleging ineffective assistance of counsel. Notably, Mr. Rancourt's post-conviction motion alleged, in part, his trial counsel was ineffective for failing to preserve the evidentiary issues that had formed the basis of Mr. McLean's reversal. On November 3, 2003, the circuit court entered an order vacating Mr. Rancourt's convictions and sentences "after considering the Motion and applicable law, and upon agreement of both parties[.]" The order directed that a new trial be held. On September 27, 2005, the State re-tried Mr. Rancourt for sexual battery and kidnapping. The jury convicted Mr. Rancourt of the lesser-included offense of battery, section 784.03, Florida Statutes (1996), a first-degree misdemeanor. Consequently, the trial court sentenced Mr. Rancourt to one year in the Polk County jail with credit for time served. On June 25, 2010, Mr. Rancourt filed the Amended Petition for Determination of Wrongfully Incarcerated Person, which is the subject of this hearing. Mr. Rancourt has not been convicted of any other felony in any jurisdiction. At the time of these events, Mr. Rancourt was a 32-year- old man, and A.S. was a 19-year-old freshman at Florida Southern College. Mr. Rancourt, in offering proof of actual innocence, testified on his own behalf that the sexual encounter that occurred between him and A.S. was consensual. Mr. Rancourt's testimony on December 8, 2011, was consistent with the testimony that he had provided in his two criminal trials. Transcripts of Mr. Rancourt's prior testimony at the criminal proceedings were admitted into evidence. Mr. Rancourt's testimony at the hearing concerning his meeting A.S. and the subsequent sexual encounter was not believable. Specifically, the undersigned did not find Mr. Rancourt's description of how a young woman, whom he had never spoken too, would at the closing of the bar grab him at the door as patrons attempted to leave the bar, and give him a "deep french kiss." Further, it was incredulous that after asking him for a ride back to her dorm room that A.S., while in the back seat of the car, would engage in a series of intimate gestures towards himself and his best friend, Mr. McLean. Finally, it was not credible that A.S. and Mr. Rancourt engaged in a consensual sexual encounter as described by Mr. Rancourt on the lawn of a home off a dark street. The conclusion that Mr. Rancourt's description of the events is not credible is further bolstered by the testimony showing A.S.'s actions immediately after the sexual encounter, and Mr. Rancourt's untruthful responses to the police investigation following the events. Mr. Rancourt also offered Mr. McLean, who testified that he witnessed A.S. acting as a "willing participant" in the sexual encounter with Mr. Rancourt. Further, Mr. McLean offered testimony that he did not engage in any sexual relations with A.S., and that he only pled to the sexual battery charge in order to avoid the risk of receiving another lengthy sentence. Next, Mr. Rancourt brought forward the testimony of Brandon Perron (Mr. Perron), a private investigator, and introduced into evidence copies of Mr. Perron's investigative reports. The record shows that Mr. Perron prepared these reports as part of Mr. Rancourt's post-conviction efforts. The reports and Mr. Perron's testimony show that he identified many factual issues regarding Mr. Rancourt's convictions. Specifically, Mr. Perron raised issues concerning discrepancies in A.S.'s statements, testimony, and her motivations to lie concerning the events of October 31, 1996; discrepancies in witnesses' statements to the police investigator and testimony; poor and prejudicial police investigative techniques that overlooked potentially exonerating evidence showing that the sexual encounter was consensual; and defense counsel's failure to conduct an adequate investigation into potential witnesses. Although Mr. Perron was a persuasive witness for showing potential problems with the State's criminal case against Mr. Rancourt, Mr. Perron's testimony did not establish Mr. Rancourt's actual innocence. Mr. Rancourt's final witness was his aunt, Barbara Hoffman (Ms. Hoffman). In October 1996, Mr. Rancourt and Mr. McLean were living with Ms. Hoffman while they sought employment. Ms. Hoffman's testimony concerned Mr. Rancourt's character and her opinion that he was not capable of committing a crime. Further, she testified about the day that law enforcement officers went to her home to ask Mr. Rancourt and Mr. McLean to come in for questioning. She testified that the detective investigating the events had prejudged Mr. Rancourt to be guilty of rape. The purpose of this testimony appeared to show that statements given by Mr. Rancourt and Mr. McLean to the police may not have been voluntary. It is noteworthy that neither Mr. Rancourt nor Mr. McLean was arrested; thus, the questioning was non-custodial. Moreover, Ms. Hoffman's testimony was marginally relevant in that it did not bring forward any fact showing that Mr. Rancourt was actually innocent of the sexual battery and kidnapping charges. The State introduced evidence showing that the sexual encounter was not consensual. A.S.'s trial testimony shows that she consistently testified that the sexual encounter was not consensual. In addition to A.S.'s trial testimony, the State introduced trial testimony of Angie Wren (Ms. Wren) and Issac McKeithan (Mr. McKeithan). The criminal trial transcript shows that Ms. Wren and Mr. McKeithan drove upon A.S. shortly after the event and saw a car quickly drive away from the area where A.S. was standing. Ms. Wren testified that A.S. was hysterical and crying, and "she just didn't look like she had been through anything good, that's for sure." A.S. reported to Ms. Wren and Mr. McKeithan that she had been raped. Ms. Wren and Mr. McKeithan drove A.S. to the Lakeland Police Department immediately, and the attack was reported. This testimony shows that A.S. contended that she had been raped moments after the sexual encounter. Further, a review of the criminal proceedings shows that the State brought forward medical testimony showing bruises on A.S.'s arms. A.S. had testified that, before the attack, she did not have the bruises. Finally, the criminal trial transcripts and testimony given at the December 8 through 9, 2011, hearing showed that Mr. Rancourt and Mr. McLean had provided false statements, and changed the story given to the officer conducting the investigation. Specifically, the trial transcripts, and Mr. Rancourt's testimony on December 8, 2011, showed that he told the investigator at first that he did not engage in sexual relations with A.S., then changed his story to claim that he and A.S. had sex in the vehicle, and then changed his story, yet again, to state that he and A.S. had consensual sex on the front yard of a home off a dark street. During his testimony on December 8, 2011, Mr. Rancourt acknowledged that the statements he gave about not having sex with A.S. and then having sex in the vehicle were false. Similarly, Mr. McLean, when asked if he and Mr. Rancourt had sex, informed the officer "no." Mr. McLean testified that he answered that way because he contended that he had not had sex with A.S. This parsing of words was not credible. The undersigned found these acknowledged false statements, made at the time of the investigation, persuasive evidence that Mr. Rancourt's explanation of the night was not credible.
Recommendation Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Mr. Rancourt has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Mr. Rancourt's claim for compensation, and dismissing his Petition. DONE AND ENTERED this 14th day of March, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2012.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred. Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record. In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects. After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination. On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination. Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law. Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination. At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job. Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett. There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
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 the petition for relief with prejudice. DONE AND ENTERED this 18th day of August, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1788 Petitioner: Petitioner filed an "order" with nine unnumbered paragraphs containing a mixture of proposed findings of facts and conclusions of law. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 5 and 8. 6-8. Rejected as being a conclusion of law. 9. Rejected as being contrary to the evidence or a conclusion of law. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: P. Daniel Williams, Esquire P. O. Box 1007 Daytona Beach, Florida 32115 Winston K. Borkowski, Esquire P. O. Box 1725 Ormond Beach, Florida 32175 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue for determination in these proceedings is whether the Petitioner, the Department of Insurance and Treasurer, should discipline the Respondent, Warren Scott Jackman, under Section 633.351(2), Fla. Stat. (Supp. 1990), on an Administrative Complaint charging that he has pled nolo contendere to a felony charge.
Findings Of Fact At all times pertinent to this proceeding, the Respondent has been certified as a firefighter, certificate #44701. On or about March 7, 1990, a two-count criminal information was filed against the Respondent in Case No. CF-90-0604 charging the Respondent with two counts of committing a lewd act in the presence of a child. The information alleged that, on two occasions, the Respondent did handle, fondle or make an assault in a lewd, lascivious or indecent manner or knowingly commit a lewd and lascivious act in the presence of a sixteen year old girl in that he did allow, permit or engage her to fondle, touch or rub his penis, but without committing sexual battery. On or about August 24, 1990, the Respondent entered a plea of nolo contendere to the charges. Adjudication was withheld, but the Respondent was sentenced to one year of community control, followed by four years probation for each count, to be served concurrently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Insurance, enter a final order revoking the certification of the Respondent, Warren Scott Jackman, as a firefighter. RECOMMENDED this 11th day of February, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 11th day of February, 1991. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-3. Rejected, as stated, as contrary to facts found and the greater weight of the evidence. (The Respondent, not the Petitioner, was charged and entered the plea.) 4. Accepted and incorporated. COPIES FURNISHED: Lisa S. Santucci, Esquire Department of Insurance and Treasurer Division of Legal Services Room 412, Larson Building Tallahassee, FL 32399-0300 Warren Scott Jackman 1569 Churchill Court Lakeland, Florida 33801 Tom Gallagher State Treasurer, Insurance Commissioner and Fire Marshall The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
