The Issue Whether the Petitioner, Macia Poole, was subject to an unlawful employment practice by Respondent, Westminster Village of Pensacola, on account of her sex or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact On April 3, 2015, Petitioner’s Employment Complaint of Discrimination and Petition for Relief were transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations for a formal administrative hearing to be held in accordance with section 120.57, Florida Statutes. On April 10, 2015, a Notice of Hearing by Video Teleconference was entered which set the final hearing for June 1, 2015, at 9:00 a.m., Central Time, (10:00 a.m., Eastern Time), at video teleconference sites in Pensacola, at the Office of the Judges of Compensation Claims, Video Teleconferencing Room, 700 South Palafox Street, Suite 305, Pensacola, Florida, and in Tallahassee, at the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. On May 4, 2015, one Subpoena Duces Tecum and four Subpoenas Ad Testificandum were issued at the request of Petitioner. On May 14, 2015, Petitioner electronically filed her Notice of Appearance in this proceeding. On May 26, 2015, Petitioner filed a Request to Reschedule Video Hearing. The Request made no allegation of an inability to attend the hearing, only that her attendance would be an “inconvenience.” The Request was denied. The filing of the Request is convincing evidence that Petitioner knew that the final hearing was scheduled to be heard in accordance with the Notice of Hearing by Video Teleconference. On June 1, 2015, at the scheduled date, time, and place, the final hearing was convened. Mr. Moran, representing Respondent, Westminster Village of Pensacola, made his appearance. Petitioner did not appear. The final hearing was recessed for twenty minutes to allow Petitioner to appear. During the recess, the undersigned confirmed that the Division had not received any communication from Petitioner of exigent circumstances that may have interfered with her appearance at the final hearing. After twenty minutes had passed, the final hearing was re-convened. Petitioner was not in attendance. Respondent was prepared to proceed, and had its witnesses in attendance at the Pensacola video location. Mr. Moran confirmed that he had received no emails from Petitioner, that being their normal form of communication. At 9:25 a.m., Central Time, (10:25 a.m., Eastern Time), the final hearing was adjourned. There was no evidence presented at the final hearing in support of Petitioner’s Employment Complaint of Discrimination and Petition for Relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Westminster Village of Pensacola, did not commit an unlawful employment practice as to Petitioner, Macia Poole, and dismissing the Petition for Relief filed in FCHR No. 2014-01235. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of June, 2015. COPIES FURNISHED: Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Brian J. Moran, Esquire Moran Kidd Lyons Johnson, P.A. 111 North Orange Avenue, Suite 900 Orlando, Florida 32801 (eServed) Macia Deanne Poole Apartment 176 6901A North 9th Avenue Pensacola, Florida 32504 (eServed) Christopher R. Parkinson, Esquire Moran, Kidd, Lyons, and Johnson, P.A. 111 North Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
Conclusions This matter is before Florida Agricultural and Mechanical University Board of Trustees (“FAMU,” “Respondent,” or the “University”) for final agency action. Robert E. Nixon, Petitioner, was previously employed by the University as Director of the FAMU Institute on Urban Policy and Commerce. (“Institute”) On or about July 1, 2010, the Grand Jury for the United States District Court for the Northern District of Florida, Tallahassee Division, issued an indictment against Petitioner alleging certain criminal violations as more fully set-forth in Respondent's Exhibit 1, attached hereto. As a result of the said indictment, the University, on July 8, 2010, immediately severed its employment relationship with Petitioner. (See Exhibit 1) Petitioner requested a review of the University’s action, and the matter was referred to the Division of Administrative Hearings. (“DOAH”) The cause was initially set for hearing commencing January 18, 2011, but was continued pending the outcome of Petitioner’s federal trial. On November 12, 2010, Petitioner was convicted on all counts. (Respondent’s Exhibit 2) By Order entered January 11, 2011, the file at DOAH was closed and jurisdiction was relinquished to the University. Accordingly, it is hereby ORDERED and ADJUDGED that the July 8, 2010 termination of Petitioner is hereby ratified. — apth DONE and ORDERED this 20 day of June, 2011. ‘s H. Ammons President iferinse H Aaron Filed with FAMU this day of June, 2011. Abigail VC Rdddar ail V. Raddar FAMU Clerk
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of Florida Agricultural and Mechanical University Board of Trustees, Office of the General Counsel, Lee Hall, Suite 300, Tallahassee, Florida 32307, and a second copy, accompanied by filing fees prescribed by law, with the First District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of rendition of this Final Order. Copy: Cynthia Hughes Harris, Provost and Vice President for Academic Affairs Avery D. McKnight, Genera] Counsel Nellie C. Woodruff, Associate Vice President, Human Resources Claudia Llado, DOAH Clerk Robert E. Nixon, c/o Gary Roberts, Esq., 130 Salem Court, Tallahassee, FL 32301
Findings Of Fact Respondent is comprised of 12 physicians and three members of the public. Respondent carries out the provisions of Chapter 458, Florida Statutes (the "Medical Practice Act"). Respondent's primary purpose is to ensure that physicians who practice medicine in the state meet the minimum requirements for safe practice and to prohibit the practice of medicine by those who are incompetent or unsafe. Respondent is not an employer for the purposes of this proceeding. Respondent does not employ anyone, does not serve as an employment agency or job training service, and is not a labor organization or trade association. Petitioner is a Cuban born, foreign trained individual who is seeking licensure by endorsement. Respondent graduated from the University of Camaguey, a Cuban medical school. Background When Petitioner initially applied for licensure on October 26, 1983, the University of Camaguey was not listed in the World Health Organization World Directory Of Medical Schools. The University of Camaguey was listed in a subsequent edition published after Petitioner was denied licensure in 1983. Petitioner, received a valid certificate from the Educational Commission on Foreign Medical Graduates on August 16, 1984. Respondent denied Petitioner's initial application for licensure on the ground that Petitioner failed to show that he possessed a valid certificate from the Educational Commission on Foreign Medical Graduates. A formal hearing was conducted on August 29, 1984, by Hearing Officer R.T. Carpenter, in Case No. 84- 2684. The Recommended Order issued on October 3, 1984, found that Petitioner had graduated from a recognized medical school and had obtained a valid certificate. Respondent was to consider the Recommended Order at its regularly scheduled meeting on February 3, 1985. In July, 1984, Petitioner was working at a medical clinic when a patient suffered a cardiac arrest while being administered anesthesia by Petitioner. Petitioner was charged with a felony violation of practicing medicine without a license. Petitioner entered into a plea bargain agreement in the criminal case in which Petitioner withdrew his application for licensure, entered a plea of nolo contendere, and was placed on probation. Respondent permitted Petitioner to withdraw his application for licensure and took no action on the application. Respondent satisfactorily completed his criminal probation and re- applied for licensure on January 27, 1987. Respondent denied the application on June 7, 1987, on the grounds that the criminal conviction rendered Petitioner morally unfit to practice medicine, that Petitioner had not demonstrated he could practice medicine with skill and safety, and that Petitioner had not graduated from an accredited medical school. A formal hearing was conducted on January 5, 1989, by Hearing Officer Linda M. Rigot, in Case No. 88-0270. A Recommended Order was issued on March 30, 1989, finding that Petitioner had graduated from an accredited medical school, that Petitioner had been rehabilitated, and that Petitioner should be licensed to practice medicine. Before Respondent considered the Recommended Order in Case No. 88-0270, Petitioner was charged with practicing medicine without a license in the field of plastic surgery. A subsequent formal hearing was conducted by Hearing Officer Rigot on December 21, 1990. The Supplemental Recommended Order issued on March 6, 1991, found that Petitioner had knowingly practiced medicine without a license in April, 1989, and that Petitioner was not rehabilitated from his prior conviction. The Supplemental Recommended Order recommended that Respondent deny Petitioner's application for licensure. Respondent adopted the Supplemental Recommended Order in a Final Order issued on May 24, 1991, which is currently pending appeal. No Unlawful Discrimination Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's licensure application. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's licensure application was based upon Petitioner's failure to satisfy applicable statutory criteria for licensure, his commission of acts constituting violations of the Medical Practice Act, and his failure to demonstrate rehabilitation and good moral character. From 1987-1991, Respondent has certified 10,963 applicants for licensure as physicians by endorsement. Approximately 3,479, or 31.7 percent, were foreign-trained applicants.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida. DANIEL S. MANRY 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021 Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted in finding 1. 2. Accepted in finding 2. 3. Accepted in finding 10 4. Rejected as conclusion of law. 5. Accepted in finding 4. 6. Accepted in finding 5. 7. Accepted in finding 7. 8. Accepted in finding 9. 9.-10. Accepted in finding 10. 11. Rejected as irrelevant and immaterial. 12. Accepted in finding 11 13. Rejected as irrelevant and immaterial. COPIES FURNISHED: Marcelino D. Mata 158 East 47th Street Hialeah, Florida 33013 Ann Cocheu Assistant Attorney General Department of Legal Affairs PL01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues for determination are: (1) did the College of Central Florida (“CCF”) commit an unlawful employment practice by discriminating against Petitioner on the basis of age and/or sex; and (2) did CCF unlawfully retaliate against Petitioner by firing her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Howell began working in CCF’s lawn maintenance department on August 17, 2015. She worked 25 hours a week performing activities such as removing weeds, picking up debris, and maintaining the flower beds around CCF’s campus. CCF’s lawn maintenance department consisted of approximately 20 people, but Ms. Howell was the only female. At the time of the final hearing, Ms. Howell was 67 years old. Tommy Morelock, CCF’s director of facilities, made the decision to hire Ms. Howell. Ms. Howell claims that her co-workers mistreated her. For example, she asserts that there were at least three occasions when co-workers intentionally drove a four-wheel drive vehicle or a pickup truck into a golf cart driven by her. Another alleged incident involved a co-worker running a finger down her neck. In addition, Thomas Smith supposedly “flipped her off” on numerous occasions throughout her tenure at CCF and referred to her as a “f***ing c*nt.” In approximately August of 2016, after a co-worker allegedly used a vehicle to strike a golf cart driven by Ms. Howell, her fiancée, Newell Melton, called CCF in order to lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke with Katherine Hunt, one of Mr. Morelock’s subordinates and CCF’s manager of facility operations and construction projects. Ms. Hunt met with Ms. Howell soon afterward about these alleged incidents. Ms. Howell also described how her male co- workers would grab themselves between the legs. However, Ms. Howell did not indicate that those actions were directed toward her. Ms. Howell did not mention any improper conduct by Thomas Smith during her meeting with Ms. Hunt. In late 2016 or early 2017, Ms. Howell also met with Mark Sakowski, another of Mr. Morelock’s subordinates and CCF’s manager of plant safety and facility operations, about one of the vehicle incidents. Mr. Sakowski told Ms. Howell that he would talk to the co-worker in question and asked her to bring any future issues to his attention. Ms. Howell did not mention anything to Mr. Sakowski about Thomas Smith directing obscene gestures toward her. After the meeting, Mr. Sakowski spoke to employees within the lawn maintenance department about professionalism, safety, and having respect for others. Ms. Howell never filed a formal complaint with CCF about her co-workers’ alleged misconduct. At Mr. Morelock’s request, Ms. Howell met with him and Caroline Smith, CCF’s equity officer, on June 7, 2017, to discuss her complaints. During this meeting, Ms. Howell described: (a) how her co-workers would drive vehicles into golf carts she was occupying; (b) the incident in which a co-worker ran a finger down her neck; and (c) a rumor among her co-workers that she was planning to file a sexual harassment complaint. As CCF’s equity officer, Ms. Smith is responsible for investigating student and employee claims of discrimination or harassment. After hearing Ms. Smith’s description of the alleged incidents, she concluded that the allegations involved inappropriate “horseplay” rather than age and/or gender-based discrimination. She then explained CCF’s employee complaint procedure to Ms. Howell, but Ms. Howell declined to initiate a formal complaint. Ms. Howell did not mention Mr. Smith’s alleged misconduct during her meeting with Mr. Morelock and Ms. Smith. In a memorandum dated June 7, 2017, and addressed to Ms. Howell, Mr. Morelock wrote the following: As discussed in our 11:00 AM meeting today with the College Equity Officer, Mrs. Smith, to address your complaints regarding horseplay in the workplace, rumors, and possible harassment, I have met with the 3 employees in your complaint and have addressed these issues. Please let me know immediately if there are any further incidents or if you have any additional concerns. Mr. Morelock noted in the memorandum that Ms. Hunt, Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received a copy of Mr. Morelock’s memorandum shortly after their meeting. At approximately 12:30 p.m. on July 19, 2017, Ms. Howell was nearing the end of her workday and driving a golf cart. She crossed paths with a vehicle driven by Mr. Smith and noticed in her rearview mirror that Mr. Smith was directing an obscene gesture toward her.2/ Ms. Howell proceeded on her way to leaving the CCF campus. However, she reversed course and, with the assistance of another co-worker, spent approximately ten minutes driving around the CCF campus looking for Mr. Smith. Upon finding Mr. Smith at the back of the CCF campus planting junipers, Ms. Howell exited the golf cart and angrily told Mr. Smith to stop directing obscene gestures toward her. According to Mr. Smith, Ms. Howell went into a “tirade.” After confronting Mr. Smith, Ms. Howell left the campus without reporting this new incident to any supervisors. As far as she knew, none of the pertinent supervisors were available. Mr. Smith felt threatened and immediately sought out Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that he stop spreading rumors about her, and Ms. Howell supposedly stated that CCF, Mr. Smith, and Mr. Smith’s wife “would be sorry.”3/ Rather than obtaining Ms. Howell’s version of the confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock, who was on vacation at the time. Mr. Morelock recommended that they confer with CCF’s director of Human Resources and authorized them to resolve the matter as they saw fit. Mr. Sakowski and Ms. Smith called Ms. Howell on July 21, 2017, and notified her that she had been fired. The only explanation given to Ms. Howell was that she did not work well with supervisors and co-workers. Mr. Sakowski explained that he was concerned about his staff’s safety and that of CCF’s students: We take safety very seriously on the campus. And in this day and age with mass-casualty and active-shooter scenarios, we practice these drills on campus on an annual basis. And it did scare me that -- I did not want it [to] make national news. Mr. Sakowski was also concerned by the fact that Ms. Howell confronted Mr. Smith rather than reporting his obscene gesture to a supervisor: Instead of coming back onto campus after leaving her shift, she should have come into the building and either got myself or Ms. Hunt at that time and explained what had just happened instead of taking matters into her own hands. Because Mr. Morelock’s memorandum to Ms. Howell directed her to “[p]lease let me know immediately if there are any further incidents or if you have any additional concerns,” Ms. Hunt considered Ms. Howell to be insubordinate when she confronted Mr. Smith on July 19, 2017.4/ This was the first disciplinary action that CCF had taken against Ms. Howell. Since being fired by CCF, Ms. Howell has unsuccessfully applied for two positions, a greeter at a hospital and a landscaping technician at a local cemetery. While she considers herself to be retired, Ms. Howell is still looking for employment. Ultimate Findings Ms. Howell persuasively testified that Mr. Smith directed an obscene gesture toward her on July 19, 2017. However, the preponderance of the evidence demonstrates that CCF did not know nor should have known that Mr. Smith directed obscene gestures and/or language toward Ms. Howell. While Ms. Howell consistently testified that she did not discuss Mr. Smith’s conduct with Mr. Sakowski or Ms. Hunt, she gave conflicting testimony as to whether she reported Mr. Smith’s conduct to Mr. Morelock during their meeting on June 7, 2017. In contrast, Carol Smith, CCF’s equity officer, persuasively testified that Mr. Smith’s conduct was not discussed during that meeting.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2019.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when it fired her in March 2004.
Findings Of Fact Petitioner is an African-American female. Hampton Court is assisted living facility in Haines City, Florida. Its residents include elderly Medicaid recipients. Kenneth Wilder is the executive director of Hampton Court. Mr. Wilder is a white male. Mr. Wilder has approximately nine years of experience administering assisted living facilities, and at the time of the events giving rise to this proceeding, he had been the executive director of Hampton Court for approximately a year and a half. Petitioner’s immediate supervisor was Dorothy Pelemon. Ms. Pelemon, like Petitioner, is an African-American female. Petitioner was hired by Hampton Court as a Resident Care Aide in early February 2004. Her primary job duties in that position were providing direct care to Hampton Court residents. Petitioner’s salary was $7.50 per hour, and she typically worked 40 hours per week. Several weeks after she was hired, Petitioner was promoted to the position of Resident Care Manager. In that position, Petitioner still provided direct care to Hampton Court residents, but she also had some supervisory duties. Petitioner only held the Resident Care Manager position for two or three weeks. On March 10, 2004, she was demoted back to the position of Resident Care Aide for improperly transcribing medications on patient charts and for improperly assisting a patient with his medications. On Saturday, March 20, 2004, Petitioner was involved in an altercation with another employee, Ivette Rodriguez. Ms. Rodriguez is a Puerto-Rican female. She was re- hired as a Resident Care Aide at Hampton Court in early March 2004, after having been fired approximately six months earlier for excessive tardiness and absenteeism. The altercation between Petitioner and Ms. Rodriguez was the culmination of a series of disputes that the two had on March 20, 2004. According to Petitioner, the disputes started when Ms. Rodriguez got agitated with her when she took responsibility for the upstairs residents, who had fewer medications, and left Ms. Rodriguez with the downstairs residents, who had more medications. According to Petitioner, Ms. Rodriguez also got agitated with her later in the day for not taking a phone message. Petitioner also testified that she was agitated with Ms. Rodriguez for taking breaks and receiving numerous phone calls while “on the clock.” According to Petitioner, the altercation that led to her firing started when she observed Ms. Rodriguez writing in the “manager’s log” at the nursing station. Petitioner told Ms. Rodriguez that she was not allowed to write in the log and Ms. Rodriguez got upset. Petitioner and Ms. Rodriguez exchanged words, and at one point during the altercation, Petitioner told Ms. Rodriguez that “you don’t know who you’re dealing with,” or words to that effect, and she expressly threatened to send Ms. Rodriguez to the hospital. Petitioner did not follow through on the threat, and there was no physical contact between her and Ms. Rodriguez at any point during the altercation. The altercation was entirely verbal and never went beyond Petitioner and Ms. Rodriguez yelling at each other. The altercation was witnessed by other employees and by Hampton Court residents, and according to the “write-ups” given to Petitioner and Ms. Rodriguez, the altercation “created a hostile living environment for [the residents].” Petitioner and Ms. Rodriguez were separated for the remainder of the day, and there were no further incidents between the two. Neither Mr. Wilder, nor Ms. Pelemon was at the facility at the time of the altercation between Petitioner and Ms. Rodriguez. Mr. Wilder and Ms. Pelemon conducted an investigation into the altercation the following week. Based upon the investigation, they preliminarily decided that both Petitioner and Ms. Rodriguez should be fired and “write-ups” were prepared to effectuate that discipline. The “write-up” for Petitioner contains the following account of the altercation: On March 20, 2004, [Petitioner] was involved in an altercation with co-worker Ivette Rodriguez. The altercation resulted when [Petitioner] took control of the upstairs med cart instead of the one she was supposed to take control of. [Petitioner] refused to cooperate and escalated the level of aggression in the fight making threats such as, “I’ll send to you Heart of Florida Hospital!” . . . . The “write-up” for Ms. Rodriguez contains the following account of the altercation: On March 20, 2004, [Ms. Rodriguez] was involved in an altercation with co-worker [Petitioner]. The shouting and fighting took place in public areas and was witnessed by co-workers and residents. [Ms. Rodriguez] also had her brother-in-law come to the community to get involved by confronting [Petitioner]. . . . . The source of the accounts of the altercation in the “write-ups” is not entirely clear and, as a result, the findings made above regarding the altercation are based on Petitioner’s testimony at the hearing rather than the accounts in the “write- ups”. (It is noted, however, that the “write-up” given to Petitioner and her testimony at the hearing both make reference to her express threat of physical violence towards Ms. Rodriguez.) Mr. Wilder and Ms. Pelemon met with Ms. Rodriguez on March 24, 2004, to discuss the altercation. Ms. Rodriguez was given an opportunity to tell her side of the story and to explain her actions. In doing so, Ms. Rodriguez acknowledged that her actions were wrong, she expressed remorse for her role in the altercation, and she promised that it would not happen again. Based upon the remorse expressed by Ms. Rodriguez, Mr. Wilder and Ms. Pelemon agreed that Ms. Rodriguez should be suspended for one week rather than be fired. The “write-up” prepared in advance of the meeting was edited to change Ms. Rodriguez’s discipline from termination to “1 week suspension from 3/24/04 to 3/30/04.” Mr. Wilder and Ms. Pelemon met with Petitioner the following day, March 25, 2004, to discuss the altercation. Like Ms. Rodriguez, Petitioner was given an opportunity to tell her side of the story and to explain her actions, but unlike Ms. Rodriguez, Petitioner expressed no remorse for her actions and, according to Mr. Wilder, she was loud and acted aggressively during the meeting. Petitioner and Ms. Pelemon testified that Petitioner did not act aggressively during the meeting but, consistent with Mr. Wilder’s testimony, they acknowledged that Petitioner did speak in a loud voice at the meeting and that she never expressed any remorse for her involvement in the altercation with Ms. Rodriguez. Based upon the lack of remorse expressed by Petitioner regarding her role in the altercation, Mr. Wilder and Ms. Pelemon agreed that the preliminary recommendation of termination should stand for Petitioner, and her employment with Hampton Court was terminated on March 25, 2004. Ms. Pelemon testified that she fully supported the decision to fire Petitioner for her role in the altercation with Ms. Rodriguez and, consistent with Mr. Wilder’s testimony, Ms. Pelemon testified that race played no part in Petitioner’s termination. Ms. Pelemon also testified that she fully supported the decision to suspend Ms. Rodriguez rather than fire her based upon the remorse that she expressed for her role in the altercation. Petitioner started working for Wal-Mart in May 2004, and she is still working there. She is paid $15.10 per hour and she typically works 36 hours per week. Ms. Rodriguez was fired by Hampton Court in August 2004 for poor work performance.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Hampton Court. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 25th day of October, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kenneth Wilder Heart of Florida Care Inc., d/b/a Hampton Court of Haines City 301 South 10th Street Haines City, Florida 33844 Laurie Ann Johnson 623 Avenue O, Northeast Winter Haven, Florida 33881
The Issue Whether the Respondent, Allan Williams, P.E., and Allan Williams, P.E., d/b/a ABW Engineering (Respondent or Williams), committed the violations alleged in the Administrative Complaint dated November 15, 2013, and, if so, what penalty should be imposed.
Findings Of Fact Allan B. Williams is a licensed engineer fully authorized to do business in Florida. Respondent's recognized and legally sufficient name to do business is "Allan B. Williams, P.E." On or about August 20, 2002, Respondent filed a fictitious name application with the Florida Department of State, Division of Corporations (DOS), that represented Allan B. Williams sought to do business under the fictitious name "ABW Engineering." Subsequently, the fictitious name was renewed on March 28, 2007, and was valid through December 31, 2012. On or about May 29, 2013, Respondent again filed the requisite papers with DOS to establish "ABW Engineering" as a fictitious name, with an active status expiration date of December 31, 2018. It is undisputed that Allan B. Williams, the subject of this case, is the person who established ABW Engineering with DOS. In 2007, Petitioner cited the Respondent with practicing engineering through a business entity that was not properly authorized to do business in Florida. In response to that claim, Respondent acknowledged that he did business as ABW Engineering and stated, in part: I didn't know I needed one. In all the years I practiced in Washington, D.C., Maryland and Virginia I never needed one. The only time I can remember this being a requirement, is, if you are a corporation home based outside these states and jurisdiction and you wish to do business in these states and jurisdiction, then you have to pay a "foreign corporation" tax or fee. It was my impression that Certificate of Authorization was the same as a foreign corporation fee. In further response to the 2007 dispute, Respondent filed the appropriate paperwork and paid the required fees to obtain a Certificate of Authorization for ABW Engineering (No. 27462) with Allan B. Williams, P.E., identified as the registered principal officer for the company. The licensure date for ABW Engineering was May 3, 2007. The letter announcing the approval of the Certificate of Authorization for ABW Engineering contained the following provisions: Your Certificate of Authorization will expire February 28, 2009. A notice of renewal will be mailed to the address of the business thirty (30) to forty-five (45) days prior to the expiration date. * * * In accepting this registration, you assume the responsibility of complying with the requirements of Chapter 471, Florida Statutes and Chapter 61G15, Florida Administrative Code. Allan B. Williams, P.E., did not timely renew the Certificate of Authorization for ABW Engineering when it expired on February 28, 2009. From March 1, 2009, through May 8, 2013, Allan B. Williams, P.E., did business under the letterhead and logo of ABW Engineering. Respondent used the letterhead and logo on billing for engineering services rendered by Allan B. Williams, P.E. On or about May 8, 2013, Petitioner issued a Notice to Cease and Desist to ABW Engineering. That notice provided, in pertinent part: Our records show that you do not currently have a certification as required by section 471.023, FS. If the above facts are true, they establish probable cause for FBPE to believe you are violating Florida law by offering ENGINEERING SERVICES without the required license or certification. On May 23, 2013, Respondent wrote a letter in response to the Notice to Cease and Desist that provided: Certificate of Authority has never been uppermost in my mind. Why? For over thirty five years I have always received constant reminders to complete my courses in continuing education and to renew my PE license. Not once have I received reminders about renewing my Certificate of Authority. And so Certificate of Authority becomes obscure in comparison to the other licensing requirements. Think about it. For your PE you have to satisfy educational requirements at an accredited school of Engineering; you have to work for four (4) years doing progressively challenging engineering work which prepares you to take the PE exams; you have to pass the exams and then you get your PE License. Then every two (2) years you have to pass continuing education courses. For Certificate of Authority you fill out a form and you pay $255. I don't think any Engineer would purposely avoid paying a $255 fee and risk losing thousands of dollars in earnings. It slipped my mind—I forgot it—I apologies [sic]. On June 10, 2013, Respondent received a Certificate of Authorization for ABW Engineering. On September 18, 2013, Petitioner notified Respondent that the Board was issuing a citation based upon the allegations previously disclosed to Respondent: that ABW Engineering had offered engineering services during a period of time when it was not properly certified or authorized to do business. Under the terms of the citation, Respondent was given the option of paying the penalty calculated pursuant to Florida Administrative Code Rule 61G15-19.0071 ($5,000.00) or having the case prosecuted pursuant to section 455.225, Florida Statutes (2013).1/ Respondent chose the latter. At hearing, Respondent maintained that he did not do business as ABW Engineering, but as Allan B. Williams, P.E. That claim was not deemed persuasive in light of the totality of evidence that established Respondent routinely used the ABW Engineering letterhead and logo, was listed in the telephone and other directories as ABW Engineering, and billed for engineering services with the logo and name. Moreover, Respondent admitted that using "ABW Engineering" was a strategy to secure work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order finding Respondent in violation of offering engineering services through a fictitious name that did not have a valid Certificate of Authorization, imposing an administrative fine in the amount of $5,000.00, awarding the costs of prosecution against Respondent, and reprimanding Allan B. Williams, P.E., as the registered general officer of ABW Engineering. DONE AND ENTERED this 2nd day of September, 2014, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 2014.
The Issue The issues to be determined are whether Respondent, Monroe Shannon, violated sections 1012.795(1)(d), (g), or (j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint, and, if so, what are the appropriate sanctions?
Findings Of Fact The commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Mr. Shannon holds Florida Educator Certificate 734423, covering Educational Leadership, School Principal, and Business Education, which is valid through June 30, 2018. At all times material to this case, Mr. Shannon was employed as an assistant principal at Congress in the Palm Beach County School District. He is a 16-year employee of the School District. Mr. Shannon was transferred to Congress as assistant principal during the early portion of the 2011-2012 school year. Ms. Gina Marie Dempsey was an eighth-grade teacher at Congress during the 2011-2012 school year. She had been introduced to Mr. Shannon early in the school year and saw him frequently in the lunchroom or hall, but other than that, had little reason to be in contact with him, for he was the assistant principal for the seventh grade. Ms. Dempsey credibly testified that Mr. Shannon was a little inappropriate in his comments to her. He asked her where her friends hung out, whether he could be her friend on Facebook, and if she wanted to go out with him for drinks. When he asked her out, she indicated she did not hang out with administration. On September 15, 2011, there was an open house at Congress. Ms. Dempsey was dressed up, wearing stiletto heels. As the open house concluded, Ms. Dempsey was walking down the hall toward her car when she encountered Mr. Shannon. No one else was in the hall. He told her, "I really like those heels. I would like to see you only in those heels." As he made this statement, Mr. Shannon was rubbing his hand in the general area of his genitals. He then asked Ms. Dempsey if she needed an escort to her car. She said no. Mr. Shannon said, "It is getting dark and you need protection." Ms. Dempsey told him that she had an Easton bat in her car and that she could take care of herself. Mr. Shannon said, "All right, all right." Ms. Dempsey felt that the heel comment was "off color." She believed his statements and actions were inappropriate, especially for a married administrator to direct to a teacher. Ms. Dempsey reported the incident to her assistant principal, Ms. Cheryl Van Voorhies, saying she did not want Mr. Shannon in her classroom or her hallway. Ms. Michele Wertman (now Ms. Regan) graduated from Florida Atlantic University in 2009. During the 2011-2012 school year, she was 23 years old and had taught for two years. She was teaching seventh-grade English at Congress. Shortly after the start of the school year, a student in her fourth-period class, which was always difficult to manage, made an inappropriate sexual remark toward her. Ms. Wertman went to Mr. Shannon, as the new assistant principal for the seventh grade, to find out what should be done. Rather than assist her, Mr. Shannon told her, "Well, you know you are a sexy teacher, what do you expect?" or words to that effect. Ms. Wertman immediately reported the incident to Ms. Janis Rosencrans, the Classroom Teachers Association representative, who credibly testified that Ms. Wertman was visibly upset and in tears when she did so. Ms. Rosencrans in turn advised the principal, Ms. Harris, about the incident. This incident made Ms. Wertman upset and uncomfortable, particularly since Mr. Shannon had earlier asked if she was on Facebook, asked if she and her roommate wanted to go out for drinks, and asked if he could take her out. She had declined and had never socialized with Mr. Shannon. She did not feel it was appropriate for an assistant principal to be seeking a personal relationship with a teacher he supervised. Ms. Wertman continued to have problems with the behavior of her students in her fourth-period class. She concluded it was just a bad combination of students, since her other four classes were wonderful. She approached Mr. Shannon to see if some students could be switched because the existing classroom dynamic was not at all conducive to learning. In response, Mr. Shannon told her that perhaps she needed to transfer to a "west school" and that she was probably "too white" to work at Congress, which was a predominately black school. Ms. Wertman was shocked and upset and started crying in Mr. Shannon's office. She had gone to Congress as a student and never felt that she was out of place because of her race or color. Mr. Shannon then told her that "if you don't do A, B, or C, then, it will cost you your job and you won't be here next year." Ms. Wertman did not know what Mr. Shannon meant by this last remark, but became insulted and angry at the way Mr. Shannon was treating her. She immediately left and went to see Ms. Rosencrans. After hearing Ms. Wertman's story, Ms. Rosencrans told Ms. Wertman that she should go to the principal, which she did. Ms. Harris told Ms. Wertman that she would report the incident. On several occasions, Mr. Shannon would use his key to enter Ms. Wertman's locked classroom unannounced. While Mr. Shannon, as the assistant principal for seventh grade, had authority to observe seventh-grade teachers and evaluate them, Ms. Wertman never received any evaluations from any of these visits. She stated: And he would just take his aide key and he'd walk in and he'd stalk around the classroom and holding his belt buckle and he kind of like threw his weight around, like just his body language. Ms. Wertman felt intimidated and uncomfortable with these visits. On one of these occasions, Mr. Shannon told her fourth-period students: You know, you guys should really listen to Ms. Wertman. You have a really, you know, sexy teacher . . . . You have a fine looking teacher here. Ms. Wertman felt that she was being sexually harassed by Mr. Shannon and that Ms. Harris was allowing it to go on. She thought that if this was how the school system operated, she could not teach any longer. She quit her job on the last day before the Christmas break. She did not return to teaching during the rest of that school year and the year following. S.D., formerly an eighth-grade student at Congress, also testified about an incident involving Mr. Shannon. She testified that he told her that he "wished she was old enough," that he told her she "couldn't handle him," and that he "grabbed her [best friend's] behind." That testimony, however, was not clear and convincing. First, her testimony was a bit unclear as to when and where the statements were made. She said the statements were made in a conference room with another assistant principal present. But at another point in her testimony, she said that Mr. Shannon made the comment "walking through the hallway just saying that he wished I was old enough." Second, while she alleged that at least one other student and another assistant principal were present when the statements were made, there were no corroborating statements or testimony from them that they heard the statements or why they might not have heard them if they were made. Third, there were inconsistencies between her written statement given on the date of the incident and her later testimony at hearing. In her written statement, she stated that Mr. Shannon touched her face, but said nothing about him inappropriately touching her friend. At hearing, she stated that he had earlier "grabbed her [best friend's] behind," but said nothing about him touching her face. If Mr. Shannon had "grabbed the behind" of her friend, it seems remarkable that that incident would not have been part of her original written statement. Finally, Mr. Shannon testified that S.D. was being confrontational and that there was nothing sexual about the conversation. He testified that S.D. had balled up her fists and that comments that he "wished she was old enough" and about her "not being able to handle him" were related to her aggressiveness. At one point during cross-examination, S.D. seemed to concede that this might be the case: Q: Isn't it true when he said he wished you were old enough, again, that was in response to you coming at him physically and him wishing you were not a minor at the time? A: Yep. S.D.'s testimony, taken as a whole, was simply not precise or explicit enough to leave a firm conviction as to the truth of her allegations. On February 2, 2012, T.S., an eighth grader at Congress, encountered Mr. Shannon in the hall. Mr. Shannon put his arm around her and whispered in her ear, "You need a man." T.S. testified that Mr. Shannon's putting his arm around her did not make her feel uncomfortable, but that Mr. Shannon's whispering that "you need a man" in her ear did. T.S. testified that as far as she knew, in the crowded hallway with all of the students busy making their way to their classes, she was the only one that witnessed the conversation. At her next class, T.S. asked her reading teacher, Ms. Banks, if she "could keep a secret." When Ms. Banks told her she could, T.S. then replied, "well, I can just say it because they [the other students] know." After T.S. relayed what had happened, Ms. Banks directed T.S. to write a statement about the incident. In February 2012, Mr. Shannon was investigated for alleged acts of sexual harassment. In a letter from Ms. Mara Stafford, the director of Recruitment and Retention for the School District of Palm Beach County, dated February 16, 2012, Mr. Shannon was advised that he was to be the assistant principal at Citrus Grove Elementary School. He did not begin working there, however, because he was subsequently called and told he would not be reporting to the new position. On May 16, 2012, Mr. Shannon received a letter from Ms. Janis Andrews, chief academic officer of the School District of Palm Beach County, advising him that he would not be recommended for reappointment. The letter advised him that he could apply for vacant positions for which he qualified. His employment was thereby terminated a couple of weeks later at the end of his contract period. Mr. Shannon applied for a teaching position with many schools. There was an opening at Carver, and he was interviewed by the principal there, Ms. Lena Wallace. Mr. Shannon was hired for the teaching position and was reassigned to Carver. Mr. Shannon was issued a letter of reprimand by the School District dated August 20, 2012. Mr. Shannon's actions and remarks toward Ms. Dempsey when he encountered her in the hall after the open house constituted sexual harassment. Mr. Shannon's actions directed toward Ms. Wertman, his comments to her, and comments about her to her students, constituted sexual harassment and discriminatory conduct. Mr. Shannon's actions directed toward Ms. Wertman and his comments to and about her, unreasonably interfered with Ms. Wertman's performance of her professional and work responsibilities. Mr. Shannon's conduct toward T.S., an eighth-grade female student, constituted sexual harassment and failed to protect her from conditions harmful to learning or her mental health. However, there was insufficient evidence that he exposed her to unnecessary embarrassment or disparagement. These inappropriate behaviors of Mr. Shannon seriously reduced his effectiveness as an employee in the School District. There was no evidence that Mr. Shannon engaged in any inappropriate behaviors after he was given a teaching position at Carver beginning with the 2012-2013 school year. Ms. Wallace, aware of allegations against Mr. Shannon, advised him that if there were any incidents involving him, that she would "fire him immediately, and it would stick." Ms. Wallace testified that Mr. Shannon was very student-oriented, did everything that was expected of him, and worked professionally. At the time of the hearing, Mr. Shannon had been employed as a teacher at Carver for three school years. There was no evidence that Mr. Shannon's teacher certificate has been subjected to prior discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Monroe Shannon, in violation of sections 1012.795(1)(g) and (j) and implementing rules 6B-1.006(3)(a), 6B-1.006(3)(g), and 6B-1.006(5)(d). It is further RECOMMENDED that the Education Practices Commission impose upon Mr. Shannon a fine of $500.00 for each offense, for a total fine of $2,000.00, and revoke his educator certificate for a period of two years. It is further RECOMMENDED that educational employment upon recertification be subject to three years of probation as provided by section 1012.796(7)(d) with conditions determined by the Education Practices Commission to be reasonably necessary to ensure that there will be no threat to students and that he will be capable of resuming the responsibilities of an educator. DONE AND ENTERED this 31st day of July, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 31st day of July, 2015.
