The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact This case came before the Division of Administrative Hearings based upon the filing of a complaint alleging employment discrimination filed with the Florida Commission on Human Relations (The Commission). The Commission transmitted the complaint on March 27, 2008, for the assignment of an administrative law judge. The case was originally assigned to Administrative Law Judge Diane Cleavinger, and the matter was set for hearing to be held June 3, 2008. On May 21, 2008, Respondent filed a Motion to Continue based upon the unavailability of a key witness. The motion alleged that Petitioner had been contacted, but "prefers to state whether he has any objection to this motion in writing." On May 28, 2008, Judge Cleavinger granted the Motion to Continue and rescheduled the hearing for July 24, 2008. On June 3, 2008, Petitioner wrote a letter requesting to be heard on the request for continuance. Because his correspondence did not indicate that counsel for Respondent had been served, a Notice of Ex Parte Communication was filed. On June 12, 2008, a pre- hearing conference was conducted by telephone, and on July 14, 2008, Petitioner filed a Request for Recusal, which was granted July 16, 2008. The case was reassigned to the undersigned and on July 24, 2008, the case proceeded to hearing as previously scheduled. At the outset of the hearing, counsel for the Department made an appearance. However, Petitioner was not present in the hearing room. At the request of the administrative law judge, a representative for the Department checked the Division lobby to see whether Petitioner was present. A recess was taken to afford Petitioner an opportunity to appear. During the recess, the clerk's office was consulted to confirm that staff had received no contact from Petitioner indicating he was on his way to the hearing. After a twenty-five minute recess, the hearing was reconvened. Petitioner did not appear.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of unlawful discrimination. DONE AND ENTERED this 30th day of July, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 30th day of July, 2008. COPIES FURNISHED: J. Yvette Pressley, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Elleton R. Collins, Jr. 4768 Woodville Highway, No. 412 Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Shear Express, Inc., committed alleged acts of employment discrimination in violation of Section , Florida Statutes, by discriminating against the Petitioner because of her age and because of an alleged disability.
Findings Of Fact The Respondent first hired the Petitioner as a hair stylist during 1994. She worked continuously for the Respondent since that time until sometime in the year 2001. During that year, she was terminated for a "negative attitude towards customers." In late 2002, the Petitioner met with the president of the Respondent, Janet West, asking to have a second chance at employment and to get her job back. Consequently, Ms. West hired the Petitioner again as a hair stylist on December 11, 2002. When the Petitioner was re-hired on December 11, 2002, the Petitioner was 58 years old. When the Petitioner was terminated on July 29, 2004, the Respondent employed approximately 100 to 120 employees. Many of them were over 40 at that time and several were over 50 years of age. In fact, in her testimony, the Petitioner agreed that her age had nothing to do with her termination. In any event, the Petitioner suffered a fall in 2003, the investigation of which apparently revealed that the Petitioner suffered from a brain tumor. She underwent surgery for that brain tumor in September 2003, which was successful. She returned to work on October 14, 2003, with the only restriction being that she could not drive for some six months following surgery. The Petitioner was then diagnosed with shingles in November 2003, and for that reason had to be out of work until January 9, 2004. The Petitioner was able to return to work on that date without any physical restrictions or limitations following her recovery from shingles. She had already effected a full recovery, without restrictions, from the brain tumor surgery. The Respondent's testimony, which is indeed corroborated by that of the Petitioner, as well as the deposition testimony of Dr. Steven Crews, establishes that the Petitioner was able to perform all physical requirements and duties of her job as a hair stylist after her return to work in January 2004. She sought no accommodation for any disability from her employer, and the evidence reflects that she needed no accommodation. She exhibited no physical or mental impairment that substantially limited any major life activity nor was her employer informed of such, and there was no record of any such impairment. The Petitioner offered no evidence that there was any intent, action or circumstance on the part of her employer, the Respondent, to terminate her based upon any disability. In fact, as found above there was no evidence of disability, physical or mental. Rather, there was evidence from which it may be inferred that there was some ill will between the Petitioner and her employer and supervisor. The Respondent offered evidence which establishes that the Petitioner had engaged in a pattern of tardiness in coming to work and then leaving work early. She had a negative attitude toward customers and co-workers and was something of a disruptive influence in the workplace with regard to both customers and coworkers. The termination was shown by the Respondent to be due to the Petitioner's failure to follow rules and the continuing pattern of negativity in her attitude and actions towards customers and co-workers. Indeed, the incident report, in evidence as Respondent's Exhibit Three indicates that the basis for the ultimate termination action was insubordination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission of Human Relations dismissing the petition in its entirety. DONE AND ENTERED this 14th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Samanthia Downs 12740 Blue Heron Way Leesburg, Florida 34788 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent was a real estate sales associate, holding Florida license number 3055247. Respondent is currently employed in real estate sales. On May 9, 2004, Respondent entered a plea of guilty to a violation of Subsection 800.04(4)(b), Florida Statutes, and to a violation of Subsection 847.0135(3), Florida Statutes, in Case No. 42-2003-CF-002535, Circuit Court, Fifth Judicial Circuit, Marion County, Florida. Subsection 800.04(4)(b), Florida Statutes, classifies commission of sexual activity with a person under 16 years of age as a second-degree felony. Subsection 847.0135(3), Florida Statutes, classifies knowingly using a computer service to solicit sexual activity with a child as a third-degree felony. Respondent entered the guilty pleas upon advice of legal counsel and in order to avoid a public trial. Respondent was ordered to pay a $500 fine and various court costs, and to serve 100 hours of community service. Although a sentence of one day in jail is noted in the court documents, the same documents credit Respondent with one day of incarceration, and according to Respondent, he spent no time in jail. Respondent was classified as a sex offender, subject to the requirements applicable to the classification, and was placed on probation for a period of seven years. The court records note that Respondent's sentence was a downward departure from sentencing guidelines. The court withheld an adjudication of guilt. At the administrative hearing, Respondent provided the only testimony directly related to the events that resulted in the criminal charges. At some point prior to 2004, Respondent joined a computer dating service in order to meet people for social activities and possible relationships. The dating service charged a monthly fee of $20. Users could post personal information and engage in online chats with other users. In joining the service, Respondent was required to attest to the fact that he was at least 18 years of age, and he presumed that other persons utilizing the service would be subject to the same requirement. While using the online chat service, Respondent became acquainted with another individual, and the two decided to meet. Based on the online discussion, Respondent believed that the other individual was of college age. Respondent drove to an unidentified location where he met and picked up the individual. Respondent testified that the person's appearance, including facial hair and the clothing worn, gave no indication that the individual was not of legal age. Respondent testified that he had "one date" with the individual. Several days after the meeting, Respondent was contacted by an investigator from Marion County who advised him that the individual was under the legal age of consent. There was no reliable evidence offered at the hearing as to the actual age of the other individual at the time the events occurred. Pursuant to the investigator's request, Respondent met with the investigator in Marion County, and was subsequently charged with the cranial offenses referenced herein. According to Respondent's probation officer, at the time of the hearing Respondent was in compliance with and was exceeding the terms of his probation. Respondent participates in mental health counseling with a therapist who has 20 years of counseling experience, including 18 years working with sex offenders. Respondent participates in weekly group therapy and in individual counseling and was described as a cooperative client.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order reprimanding Respondent William J. Flanagan, III. DONE AND ENTERED this 6th day of July, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 6th day of July, 2005.
The Issue Whether Petitioner was wrongfully terminated from her position as a custodial worker with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, an African-American female, was hired by Respondent in the fall of 1994, as a custodial worker and she continued in that position until October 17, 1995, when she was terminated. On or about October 12, 1995, Rollins College (Respondent) received two letters of complaint regarding Petitioner's conduct and work performance. One of these was from a group of students living in a dorm which Petitioner was assigned to clean. The other letter was from the parent of a student living in another dorm assigned to Petitioner. These letters were not the first complaints Respondent had received regarding Petitioner's work performance. After receiving the letters, Petitioner was placed on a three-day suspension by Tom Waters, Director of Respondent's Facilities Management Department. After investigating the complaints, Respondent, on October 17, 1995, terminated Petitioner's employment. Prior to the termination of her employment, Petitioner attended a training and safety meeting of custodial workers. During that meeting, Petitioner's immediate supervisor, Frank Pravdik placed his hand on Petitioner's uniform shirt and stated words to the effect that the shirt was "nasty." Pravdik was generally known to be a difficult person to work under. He was eventually terminated by Respondent because of his abrasive management style. Fredrick Wooden, called as Petitioner's witness, assisted with the management of the custodial workers prior to his retirement. He often disagreed with Pravdik's style of management. In the case of Petitioner, he did not believe that any disciplinary actions taken against her were unwarranted, and Respondent had legitimate grounds to terminate her employment. Wooden further believed that Pravdik treated all subordinate employees equally, if not with respect. On November 20, 1995, Petitioner filed a Charge of Discrimination with the Orlando Human Relations Department. The Charge of Discrimination indicated that Petitioner believed that Respondent discriminated against her because of her race. Petitioner testified that the Charge of Discrimination was incorrect. Petitioner did not actually believe that the termination of her employment was related to her race. However, she permitted a representative of the Orlando Human Relations Commission to complete for her the Charge of Discrimination. The Charge does not allege a claim of retaliation nor does it allege that Petitioner ever complained about Pravdik's behavior to Respondent. While Petitioner testified that she first visited the Orlando Human Relations Department prior to the date of her termination, the Charge is signed, dated and notarized on November 20, 1995, three days after the effective date of her termination. After the Commission issued a No Cause Determination in this matter, Petitioner filed a Petition for Relief. The Petition for Relief alleges that Respondent terminated her employment in retaliation for complaining about Pravdik. Petitioner again testified that the Petition for Relief was also incorrect stating her case was not about whether Respondent had a right to terminate her employment, but instead was about whether Pravdik violated her civil rights for impermissibly touching her person and calling her shirt "nasty."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 26th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of December, 2000. COPIES FURNISHED: Gloria J. Holloway 397 Chaucer Lane, South Lake Mary, Florida 32746 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Mark Van Valkenburgh, Esquire Winderweedle, Haines, Ward & Woodham 250 Park Avenue South, 5th Floor Winter Park, Florida 32789 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue presented for decision herein is whether or not the Petitioner timely filed his charge of unlawful employment discrimination with the Florida Commission on Human Relations. 1/
Findings Of Fact Based upon the evidence adduced at the hearing herein, including Petitioner's testimony, the following relevant facts are found. Petitioner, Richard L. Schmitt, was initially employed by the Respondent, City of Ft. Lauderdale Police Department, as a police officer on January 7, 1980. Petitioner's employment relationship was terminated on February 11, 1983. On February 6, 1984, Petitioner filed the instant charge of employment discrimination with the Florida Commission on Human Relations. Petitioner acknowledges that he was aided and assisted by counsel in filing unlawful discrimination charges since his separation from employment with Respondent, City of Ft. Lauderdale.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing the charge filed herein by Petitioner. RECOMMENDED this 21st day of February, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of February, 1985.
The Issue Whether Piper Aircraft, Inc. (Respondent), terminated Timothy Brooks (Petitioner) from his employment in retaliation for his complaints about the company’s treatment of Peggy Sue Pitts, a female employee who claimed sexual harassment. And, if so, whether Petitioner’s behavior was protected by law.
Findings Of Fact Petitioner is a male former employee of Respondent. His tenure with the company spanned several years. The quality of Petitioner’s work (that is, his production quality and volume) was deemed acceptable and was not the basis for discipline. Respondent laid Petitioner off in 2010 due to economic hardships of the company but rehired him in May of 2011. Thereafter, Petitioner worked continuously for Respondent until his termination in January of 2015. Respondent is a manufacturing company that employs 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year applicable to this case. Consequently, Respondent is an “employer” as defined by section 760.02, Florida Statutes (2015), during the time frame applicable to this case. Petitioner and another of Respondent’s employees, Peggy Sue Pitts, were close friends. As such, Petitioner became increasingly concerned regarding the treatment Ms. Pitts received in the work place. Petitioner believed Ms. Pitts was the victim of inappropriate conduct and that Respondent failed to take appropriate measures to protect Ms. Pitts from harassment and inequitable treatment. Additionally, over the course of his employment with Respondent, Petitioner became concerned that employees were not treated equally in terms of compensation for the work being performed. His informal assessment led to the opinion that Ms. Pitts and others were paid less for doing the same work that others were paid more for completing. On more than one occasion Petitioner voiced his thoughts regarding the workplace inequities to management. Eventually, Petitioner’s conduct in attempting to intercede on behalf of Ms. Pitts and others led to a verbal warning documented by a Performance/Behavior Improvement Notice that notified Petitioner he was inappropriately involving himself in the personal issues of his co-workers to the detriment of the workplace. Essentially, Respondent wanted Petitioner to mind his own business. The warning noted above was issued on March 10, 2014. At the time of the warning noted above, Petitioner was directed to contact Respondent’s Human Resources Office if he felt that the company needed to be made aware of a concern. Respondent did not want Petitioner raising issues with co-workers to stir up matters that should be addressed elsewhere. Petitioner refused to sign the warning notice. Petitioner continued to discuss the perceived inequities with co-workers. On July 10, 2014, Respondent issued a written warning, Performance/Behavior Improvement Notice, which cited similar matters as before. Petitioner was warned that it was his “last chance” to stop meddling in the business matters of others. Further, Petitioner was transferred to another department within the company. In response to the second reprimand, Petitioner met with James Funk, Respondent’s chief operating officer, and expressed his concern that he had been unfairly treated. Mr. Funk advised Petitioner to take his issue to the company’s Peer Review Committee. The Peer Review Committee had the authority to review employee disciplinary actions up to and including termination. Moreover, if the committee determined that Petitioner had been unfairly treated, its finding and recommendation to the Respondent would be accepted. In this case, however, the Peer Review Committee did not find the reprimand to be inappropriate. The “last chance” warning became the final disciplinary ruling on the matter. Over the course of the next four or five months Ms. Pitts, who was by now Petitioner’s girlfriend or fiancé, continued to be frustrated by her perception of the treatment she received in the workplace. On the morning of January 8, 2015, Ms. Pitts decided to resign from her employment with Respondent. Ms. Pitts asked Petitioner to turn in her employee badge and stamp for her. On the afternoon of January 8, 2015, Petitioner went to the executive offices to talk to Mr. Funk regarding Ms. Pitts’ resignation. Kathy Flynn, Mr. Funk’s executive assistant, assisted Petitioner and gave him Mr. Funk’s email address. During the course of his exchange with Ms. Flynn, Petitioner expressed his displeasure with Jimmy Barnett and Tim Smith, whom he blamed for the perceived treatment Ms. Pitts had endured. In discussing the matter, Petitioner expressed his anger and desire to “beat the shit out of someone.” Petitioner called Mr. Barnett and Mr. Smith “pieces of shit.” Ms. Flynn memorialized the comments later that afternoon. Next, Petitioner went to Mr. Barnett’s office and turned in Ms. Pitts’ badge and stamp and told Mr. Barnett that Ms. Pitts was quitting. Petitioner told Mr. Barnett that he was so angry he could throw him (Mr. Barnett) out the window. In response, Mr. Barnett called Mr. Smith and asked for a meeting with Petitioner. Mr. Barnett and Petitioner joined Mr. Smith in Smith’s office. When offered a seat, Petitioner declined and stated he was too upset. Mr. Barnett asked Petitioner to confirm his previous comments and he did. Petitioner confirmed that he was upset to the point of throwing Mr. Barnett out the window. Given Petitioner’s agitated state and verbal threats, Mr. Barnett and Mr. Smith wrote notes to Mr. Funk recommending that Respondent issue a suspension and written warning to Petitioner. Instead, Mr. Funk determined that Petitioner’s conduct violated his “last chance” warning. Taken in totality, Petitioner’s comments to Ms. Flynn and his comments to Mr. Barnett and to Mr. Smith evidenced to Mr. Funk that Petitioner should be removed from the workplace. To that end, Mr. Funk authorized a Notice of Employment Termination on January 12, 2015, and Respondent officially ended Petitioner’s employment with the company on that date. Petitioner refused to sign the notice. Petitioner timely filed a charge of discrimination with the FCHR regarding his termination and asserted he had been terminated in retaliation for his complaints regarding the company’s sex discrimination against another employee (Ms. Pitts). On May 20, 2016, FCHR issued its determination of no reasonable cause. After Petitioner timely filed a petition challenging that decision, the matter was forwarded to the Division of Administrative Hearings for a disputed-fact hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s claim of discrimination. DONE AND ENTERED this 6th day of January, 2017, 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 6th day of January, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Adrienne E. Trent, Esquire Adrienne E. Trent, P.A. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 (eServed) Ashley M. Schachter, Esquire Baker & Hostetler, LLP Suite 2300 200 South Orange Avenue Orlando, Florida 32801 (eServed) Patrick M. Muldowney, Esquire Baker & Hostetler LLP Post Office Box 112 Orlando, Florida 32802 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed)
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c) and 1012.795(1)(i), Florida Statutes (2006),1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(4)(c), and 6B-1.006(5)(a), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Weiss holds Florida Educator Certificate 845839, covering the areas of elementary education and English to speakers of other languages, which was valid through June 30, 2008. Mr. Weiss has an application pending for a professional certificate in the area of educational leadership. At all times material to the Administrative Complaint, Mr. Weiss was employed as a computer teacher at Tice Elementary School (Tice Elementary) in the Lee County School District (School District). He worked primarily with third, fourth, and fifth-grade students. The School District has a policy which prohibits the use of the School District’s computers for viewing inappropriate content. The School District’s Regulation 3.41, entitled “Acceptable Use Policy Governing Internet and Technology Access,” provides: The following procedures shall be followed for governing Internet and technology access. Failure to adhere to these regulations shall result in suspension and/or revocation of access to District information resources pending formal investigation and could result in termination of employment (staff) or suspension/expulsion (student) from the School District. * * * (2) All users are prohibited from: (a) Deliberate access or transmission of obscene, indecent, abusive, or defamatory or otherwise offensive material in any form. The School District maintains an internet filtering system on the School District’s computers. The filtering system is called Chaperone and is used to monitor all accounts using the School District’s network. If a user of the School District’s network visits a known adult-content site, Chaperone blocks access and alerts the School District of the incident. Chaperone also looks for patterns in the access to content which appears to be adult-related, even if the website being viewed is not on the list of inappropriate sites. If Chaperone detects a pattern of behavior involving the viewing of inappropriate sites, a technical support person at the school where the computer is located will be alerted. The alerts sent to the school detail the username, IP address, website, time, and date of the incident. An alert is not typically generated the first or second time an inappropriate site is viewed, but is generated when a pattern of behavior develops. Access to a website is recorded by the central office of the School District. If Chaperone does not detect anything inappropriate about the website reviewed, no alert is sent to the school. All users in a school have a unique user ID to identify them on the network. Mr. Weiss’ user ID at Tice Elementary was “RobertWe.” Mr. Weiss’ classroom was the computer laboratory. The classroom contained computers which were used by the students, and Mr. Weiss also had a computer for his use as the teacher. At times the number of students exceeded the number of computers in working order, and a student would use Mr. Weiss’ computer during class. The laboratory was open to any teacher or class when it was not otherwise occupied by Mr. Weiss’ class. On November 1, 2006, Chaperone generated a report and sent an alert to Amanda Jones, Tice Elementary’s technology support specialist, notifying her that a computer at the school had been used to access inappropriate material. The report identified the username associated with the incident as RobertWe. The computer involved was the computer assigned to Mr. Weiss. Ms. Jones gave the report to the assistant principal at Tice Elementary, Denise Fitzpatrick. Ms. Fitzpatrick went to Mr. Weiss’ classroom and found Mr. Weiss in the classroom. Ms. Fitzpatrick deferred in the matter to the principal of Tice Elementary, James Jackson. Mr. Jackson went to Mr. Weiss’ classroom and found Mr. Weiss on a computer viewing a site called Sparksvideos.com. Weiss claimed that he was looking for videos for the students to use. He told Mr. Jackson that inappropriate materials had “popped up” on his screen and that he had deleted the inappropriate materials immediately. Mr. Jackson gave Mr. Weiss an oral reprimand and warned Mr. Weiss to be careful in what he viewed because young children were present in nearby classrooms. Mr. Weiss’ claim that the inappropriate materials were “pop-ups” is without merit. Pop-ups are intrusions on a website from a third-party, and the viewer usually has no control over the intrusion. Pop-ups differ from “solid site” in that the solid site stays on the screen and does not open new windows without user interaction. Ms. Jones was asked to pull up the list of sites that were involved with the November 1, 2006, incident to determine if Mr. Weiss’ explanation of pop-ups was true. The videos that she pulled up were video clips of different women. Ms. Jones took the list of sites involved in the incident home to view on her unfiltered computer. She found that the sites were not pop- ups, but were videos of females engaging in sexual activity. Mr. Weiss’ assertion that he deleted the pop-ups as soon as they came up is false. The Chaperone report showed that during the time period in which inappropriate materials were being accessed, Mr. Weiss remained on the computer sites for approximately 12 minutes. On January 10, 2007, Chaperone sent another report to Ms. Jones at Tice Elementary, alerting her of inappropriate activity. Ms. Jones reported the activity to Dwayne Alton, the technology director for the School District. He instructed Ms. Jones to look through each computer in the school to determine which computer was involved. Ms. Jones and Ms. Fitzpatrick went to Mr. Weiss’ classroom and found Mr. Weiss alone. A search of the computers in the classroom turned up a computer which had accessed inappropriate sites. Mr. Weiss told Ms. Fitzpatrick that it was probably a student in one of his third grade classes. He identified the student, and Ms. Fitzpatrick went to question the student. The student identified by Mr. Weiss was a student whose primary language was Spanish, not English. The student barely spoke English and did not appear to have the level of technological knowledge or the communication skills necessary to access the inappropriate materials. The student stated that he had accessed the Disney site, and his claim is supported by the Chaperone report. Mr. Weiss asserts that possibly a student could have confused the website with the name of a cartoon character and accessed the inappropriate material by accident. Such an assertion is without merit. The Chaperone report shows that the account involved accessed several inappropriate sites between 9:28 a.m. and 9:38 a.m. One of the same adult websites was accessed by the same account at 8:50 a.m., belying the appearance of an accident. Mr. Weiss’ claim that a student accessed the inappropriate materials is not credited. Ms. Fitzpatrick took the list of sites involved in the January 10, 2007, incident and viewed the sites at her home. She found them to be inappropriate, including hundreds of small, sexually explicit images. It is concluded that on January 10, 2007, Mr. Weiss accessed the site containing the sexually explicit images. On January 12, 2007, another Chaperone report was generated based on activity from a computer in Mr. Weiss’ classroom. Ms. Jones became concerned that Mr. Weiss may have been using a student account to mask his usage of the computer. She contacted Mr. Alton, who told her to wait until a pattern of activity occurred and have Ms. Fitzpatrick go to the classroom while the activity was occurring. Another Chaperone report was generated, and Ms. Fitzpatrick took the report and went to Mr. Weiss’ classroom. She found Mr. Weiss alone on the computer. When she came into the room, he minimized the window that he was viewing on the computer. She put the report on his desk and told him that there was a problem. Mr. Weiss responded that he had been looking up the word “boobs” because a student had accessed it during class. However, the search term that triggered the Chaperone report was “blow job.” The Chaperone report listed the activity being generated by Mr. Weiss’ account. Mr. Weiss offered to share his internet browsing history with Ms. Fitzpatrick. After Mr. Weiss left for the day, Ms. Fitzpatrick and Ms. Jones went to Mr. Weiss’ classroom to check the computer to see which sites had been accessed. The history had been deleted. The computer could not be restored back in its entirety to an earlier date because there was no restore data to use. Ms. Jones ultimately used a third-party software to bring back a list of the files viewed. Ms. Jones and Ms. Fitzpatrick recorded the list of files and reviewed them. There were thousands of files, many containing image files from inappropriate sites. About 70 percent of the files were sexual in nature and about 30 percent were jokes. Mr. Weiss had accessed these inappropriate sites. Mr. Weiss attempted to blame students for accessing inappropriate sites. He maintained that he kept a log of incidents in which students were accessing inappropriate sites. The log was never found, and, prior to being confronted with his own access to inappropriate sites, Mr. Weiss never mentioned a log to administrative staff at Tice Elementary or that students were accessing inappropriate sites. Mr. Weiss’ testimony that he maintained a log is not credible. Mr. Weiss resigned from his employment with the School District by letter dated February 5, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Robert E. Weiss guilty of violating Subsections 1012.795(1)(c) and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(4)(c), and 6b-1.006(5)(a) and revoking his certificate for six years. DONE AND ENTERED this 14th day of November, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 November, 2008.
The Issue Whether Respondent employer is guilty of an unlawful employment practice against Petitioner based upon mental disability.
Findings Of Fact The final disputed-fact hearing began on time. Petitioner was present, as was the attorney for Respondent. Petitioner appeared pro se and responded clearly and affirmatively to the undersigned's questions, stating that she knew that she could be represented by an attorney but for reasons of her own she chose to represent herself. After explaining the duty to go forward, the burden of proof, and the order of proof, the undersigned inquired of both parties whether any further explanation was necessary; whether they had any questions; and whether the undersigned could do anything to make the process easier on either of them. At that point, Petitioner gestured to a piece of paper and requested to meet with Respondent's counsel for purposes of negotiating a settlement. A brief recess was granted for that purpose, and the undersigned left the hearing room. Upon returning to the hearing room, the undersigned inquired whether a settlement had been reached and was informed that one had not been reached. Petitioner then announced that, "Since they won't settle, I have no more to say." The undersigned inquired at length to be certain Petitioner understood that: she could call witnesses; she could testify on her own behalf; and she could present documents, either through her own testimony or that of others. Petitioner stated that she understood but did not want to call witnesses or testify. She gestured at what appeared to be her proposed settlement document, but which could have been something else, stating that she only had a document. The undersigned explained that very few documents could be called "self-authenticating" and gave a brief explanation of what type of testimony is necessary to lay a predicate to put any document into evidence. Petitioner said she did not wish to testify. She did not offer her piece of paper. The undersigned explained that if Petitioner did not testify and did not offer her single document, she could not prevail, and that based upon the allegation in her Petition that she has a "mental disability/handicap," the undersigned needed to be assured that Petitioner understood that unless she testified to something, called witnesses to testify, or offered some exhibits, the undersigned would have no choice but to enter a recommended order of dismissal. Petitioner assured the undersigned that she understood and refused to proceed.
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 Complaint of Discrimination and the Petition for Relief herein. DONE AND ENTERED this 1st day of August, 2008, 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 August, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michele B. Brown, pro se 2634 North Point Circle, Apt. B Tallahassee, Florida 32308 Rhonda S. Bennett, Esquire Brooks, LeBoeuf, Bennett Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
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 7th day of December, 1993, at Tallahassee, Florida. DANIEL 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 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
The Issue Whether the Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes, in dismissing the Petitioner.
Findings Of Fact The Petitioner, Lynda D. Wynn, is an African-American female who was hired by the Office of Greenways and Trails (OGT), a division of the Department of Environmental Protection (DEP), on September 21, 2001, as an Other Personnel Services (OPS) employee. She was paid $14.00 per hour. OPS employees do not enjoy career service protection, and may be discharged without cause except that they cannot be discharged for a reason contrary to law. The Petitioner had been employed by the DEP in another capacity in another division of the agency prior to her employment with OGT's public information office. She was discharged from the first position and re-employed in the Public Information Office (PIO) when Dianne Redd, the head of the PIO was out on leave. Redd had no input into the hiring of the Petitioner, and returned to find Wynn on her staff. The Petitioner was employed as a Public Information Specialist. No evidence was received regarding the qualifications for this position. The Petitioner's previous position was as a planner and her education and experience is principally in this area. Upon reporting for work, the Petitioner was assigned with other employees of OGT to clean up an area in the rear of the agency's headquarters' building to create a walking trail. This was outside, physical labor clearing brush, spreading wood chips, and preparing the trail. Many of the people in the office avoiding working on this project, but the Petitioner worked on the project frequently in order to meet the dedication deadline. This was her welcome to OGT's PIO. In addition to working on the project, she was tasked to solicit donations for a luncheon to accompany the opening to coincide with Green Way's Month in October. Leading up the various activities for Greenway's Month, there were staff meetings. At one of these staff meetings, the head of the public information office, Dianne Redd, asked the Petitioner to pick a historic character, research the person's life, and role play that person in preparation for opening of the Palatka Visitor's Center to "see how you'll fit in." The Petitioner choose Mary McLeod Bethune as her character. Bethune was famous African-American educator who was the first African-American woman to hold high office in the Federal government. She is famous in Florida as the founder of Bethune-Cookman College. The Petitioner, along with others in the office, prepared displays and characters in keeping with historic characters like folk-healers or herbalists and historic personalities like Bethune. The Petitioner and others created displays and exhibits and developed costumes appropriate to their characters for their participation in the opening of the OGT office in Palatka. A master plan for the location of various exhibits was prepared by Shelton Ansley, who did not go to Palatka. Ms. Redd, the Petitioner, and many of the others in the office made the trip to Palatka to participate in the opening of the visitor's center. The group broke in two, and the Petitioner, Mary Spivey, and Susan Walker stayed at the visitor's center and Redd and some other employees went out to find some additional props for the opening which featured women in Florida history. The master plan prepared by Ansley was not provided to the Petitioner and the others setting up the exhibits. They did not receive specific guidance from Redd on how to set up their displays, and they set them up inside the visitor's center. By the time Redd returned, their displays were nearly completely set up. Redd had determined previously, but had not communicated to the Petitioner and Spivey that the space inside the center was being reserved for local exhibitors. There is conflicting testimony about Redd's reaction; however, she had her employees strike their displays and prepare to move them outside. Regardless of whether she was angry with the Petitioner and Spivey, Redd was not happy. Spivey, who portrayed an herbalist, pointed out that her exhibit contained leaves and light materials that were subject to being blown away outside. Redd retained Spivey's exhibit inside. The Petitioner was asked to move her exhibit to an area adjacent to a rustic, board and batten structure housing a large pump. This structure was the approximate size of a sharecropper's cabin. The Petitioner pointed out to Redd that putting the Bethune exhibit next to such a structure would send the wrong message about Bethune who was the antithesis of a sharecropper. The Petitioner told Redd that she rather not to display the exhibit than display it next to the "outhouse."1/ Redd permitted the display to be left in the van and not displayed; however, the local exhibitors did not materialize and the display was set up later inside the visitor's center. It is unclear who decided to display the exhibit and who set it up; however, it was setup inside the visitor's center. Sherry Graves portrayed Marjorie Kinnan Rawlings, and prepared her costume; however, she did not complete her display. Julie Roberts elected to portray a farmer's daughter, and developed a costume which she wore to the event. No disciplinary action was taken regarding Graves' failure to complete her project. Some items were collected on the porch to provide the rustic farm atmosphere, but it was not developed whether Robert's was expected to do more and failed to. The opening concluded on Saturday evening, and everyone loaded the vehicles to return to Tallahassee. As everyone was leaving, Redd thanked them for their efforts and told them that they could take a half-day off on Monday, but to call in and advise the office whether they would be taking the morning or afternoon. It is unclear whether this instruction was delivered directly to the Petitioner by Redd, or through one of the other employees. The Petitioner called in on the following Monday. There is a conflict about the message that was left by the Petitioner on Redd's answering machine. It was erased. The Petitioner stated that she said that she said she would not be in and if the office needed her, they could reach her at her home. Redd stated the Petitioner called her and left a message that she would not be in that Monday morning, but would call back. The Petitioner did not attend work on Monday. OPS employees have regularly assigned hours of work, and do not earn leave. However, they do earn overtime, and the time worked on Saturday constituted overtime. Agencies develop internal policies for the payment of overtime, but generally employees must make prior arrangements to take time off from work. Redd testified regarding the Petitioner's termination. Redd terminated the Petitioner because she took all of Monday off when Redd only authorized employees to take off half-a-day. Redd had had previous problems with the Petitioner and her attendance. The Petitioner claimed, among other things, that others in the office messed around with her "in and out" sign. An Employment Termination Critique was completed by Redd on the Petitioner. This form reflects that the Petitioner failed to accomplish assignments, that her work product was below expectations, that her work was not accurate, and that she failed to report for work regularly and punctually. The Petitioner did not agree with the assessment as reflected in her comments on the form. Redd pointed to the Petitioner's failure to type labels, tables, and invitations as examples of tasks that took too long to complete. Redd also stated that there were problems with the Petitioner failing to sign out three or four times. Redd indicated that Petitioner's display on Bethune was not very good. There was no specifics of the Petitioner's failure to be accurate, and no documentation of counseling on these failings. The Petitioner was employed by the PIO for between five and six weeks. During the first couple of weeks, as stated above, the Petitioner was engaged in building the office trail. The Petitioner was the only African-American employee of the six persons employed in the PIO. There are only three other African-American employees employed state-wide by the office of OGT. There are thirty-five employees in the Tallahassee office of OGT. African-Americans are not proportionally represented in the OGT.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner's Claim for Relief be dismissed. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2003.
