The Issue The issues for determination in this case are: Whether the City of Altamonte Springs (City) violated Sections 760.10(1)(a), F.S., by discriminating against Albert Robinson (Robinson) on the basis of his race (Black) or his national origin (Jamaican), with respect to compensation, terms, conditions, or privileges of employment; Whether the City violated Section 760.10(7), F.S., by discriminating against Robinson in retaliation for his opposition to a practice which is an unlawful employment practice under this section or because he assisted or participated in any manner in an investigation, proceeding, or hearing under this section; and If such violations did occur, what relief is appropriate pursuant to Section 760.10(13), F.S.
Findings Of Fact Petitioner, Albert H. Robinson is a black male, over 18 years of age, born in Jamaica, West Indies. Respondent, the City of Altamonte Springs, is a municipal corporation organized and existing under the Laws of the State of Florida, and admits that it is an "employer" for purposes of the Human Rights Act of 1977, as amended, sections 760.01-760.10 F.S. Robinson's account of how he arrived in the United States approximately seven years ago is bizarre, but uncontroverted, and for purposes of this proceeding is deemed true. In Jamaica, Robinson had been affiliated with the ruling People's National Party. He held the government post of Development Director in the "New Development Agency" and was in charge of approximately 300 underprivileged persons. He was also president of a youth organization within the party, and was involved in organizing youth activities and selecting members to visit Cuba as a party representative. At some point he was approached by an American embassy attache from the CIA who recruited him to provide under-cover information on the party. When that involvement became publicly exposed, he was forced to flee the country. Robinson and his family lived for awhile in Panama and other Latin American countries. When they decided to emigrate to the United States, the U.S. Government made arrangements for Mrs. Robinson and the children to enter through Miami and for Mr. Robinson to cross the border "illegally" at Brownsville, Texas. He was given authorization to work and temporary asylum. He is currently awaiting disposition of his petition for a more permanent status. Through other relatives in Florida, Robinson ended up in Altamonte Springs. At the time that he was hired by the City in September 1984, Robinson presented a letter from the INS permitting him to work during the pendency of his asylum petition. The City was thus aware of his national origin and non- citizen status. Robinson was hired as a laborer in the city water distribution division on September 24, 1984. He received two personnel evaluations during his probationary period, both "average," with every factor rated "average," and few comments. On February 7, 1985, he was promoted from laborer to utility serviceworker, a more responsible position. The serviceworker is generally assisted at a job site by the laborer, who does most of the digging. The Dixon Personnel Board hearing In April 1985, Robinson assisted a black coworker, Patrick Dixon, at his hearing before the City Personnel Board. Dixon and another black utilities worker, Carl Wilder, had been accused of making obscene and inappropriate gestures to two white women while the men were on city duty. Wilder was given a one-day suspension. Dixon, who already had a negative performance record, was given a two-day suspension. Dixon appealed the discipline to the Personnel Board. Robinson's involvement at the hearing on April 3rd was to sit behind Dixon and assist with the documents. Robinson, who had no firsthand knowledge of the incidents, did not testify. Carl Wilder did testify on behalf of Dixon. The Personnel Board, in a unanimous decision by all members present, upheld the disciplinary action. Robinson believed that Patrick Dixon had been the victim of a racial vendetta. Dixon testified in this proceeding that he, also, feels that the charge was racially motivated, yet nothing in the written documents related to his appeal supports that contention. The basis for his appeal was the insufficiency of the evidence against him and his contention that he was a bystander while Wilder, the actual perpetrator, received a lesser penalty. Shortly after the hearing Dixon was terminated for absenteeism. He did not file a discrimination complaint nor take any other action against the city. Wilder is still employed by the city, and in 1987, was promoted from laborer to serviceworker. The performance evaluation On May 3, 1985, Robinson received his first performance evaluation as a utility serviceman. His overall rating by his reporting supervisor, George Simpkins, was "average." However, he received "below average" in four categories: "ability to carry out instructions/orders"; "conduct"; "directs the work of subordinates effectively"; and "ability to make decisions within his authority." The comments in explanation of these ratings related to Robinson's failure to follow operating procedures, his temper and conflict with fellow employees, and his dictatorial manner in dealing with subordinates. Robinson was not pleased with the evaluation and wrote a letter to the Assistant Director of Public Works, Ronald Howse, asking to discuss it. Howse suggested that the discussion take place with Larry Alewine and George Simpkins, who were the supervisors responsible for the evaluation. Alewine was Simpkins' immediate supervisor. The discussion took place. Robinson now claims that Larry Alewine asked him why he followed Patrick Dixon to City Hall and claims that Alewine blamed the evaluation on his involvement with Dixon. Alewine denies this and cannot recall any notoriety with regard to Robinson's association with Dixon. Not following procedures and problems with fellow employees Robinson's difficulties in working with others and in following procedures are well-documented throughout his 1985 and 1986 employment with the city. In June 1985, he received a notice of remedial action after placing a water meter in a location where the customer wanted it, rather than where he had been directed to place it. The customer was happy, but under the city's procedures, the serviceman does not have the authority on his own to change the supervisor's direction. On November 4, 1985, Robinson had an altercation with his supervisor, Larry Alewine, regarding a meeting that Robinson wanted with Chris Hill, the recently-appointed director of the city's water distribution division. Alewine attempted to convey Hill's directive that Robinson put his request in writing, but Robinson became loud, yelled at Alewine and started to leave. When Alewine attempted to call Robinson back to discuss the matter, Robinson retorted that he (Alewine) wasn't his daddy. Right after the incident Robinson apologized for getting loud and Alewine explained that he would still have to "write him up," because he had refused to come back in the building and was hollering. Robinson claims that the incident occurred prior to 7:30 A.M., when he was still on his own time, but this claim is unsupported by Alewine or any of the other several witnesses. On November 26, 1985, Robinson and Carl Wilder were at a job site trying to locate a buried water meter. Wilder, as the laborer, was doing the digging. Robinson, his superior, insisted that Wilder keep digging in a place where Wilder did not believe the meter was located. Both men's tempers flared and Wilder called the supervisor to the site to prevent further argument. Because it was near the end of the day, Robinson was excused and Wilder was taken back to the city garage. Chris Hill spoke with both Robinson and Wilder and determined that no disciplinary action was warranted. He told Wilder that if he had any complaints or grievances about Robinson, he would have to put them in writing. Chris Hill asked other employees if they had problems working with Robinson; he did not, as alleged by Robinson, solicit written statements against Robinson from other employees in the division. Chris Hill Most of Robinson's claims of discrimination by the city are directed toward Chris Hill, who, in October 1985, was placed in charge of the city's water distribution division. The City Manager, Philip Penland, was concerned about the management of the division. The Dixon/Wilder incident was an example. Larry Alewine and George Simpkins, both white Americans, were considered to be weak leaders. Robinson and Carl Wilder were identified as employees with whom there had been problems. Chris Hill started working for the City of Altamonte Springs in 1977 as temporary summer help and laborer. He gradually worked his way up through various levels of management and was highly regarded by his supervisors and by Philip Penland as a competent and capable employee, with a positive, "can-do" attitude. He was regarded as a tough manager who could obtain top performance from his employees. In addition to his duties at Altamonte Springs, he also is in charge of water plant operations in the neighboring towns of Eatonville and Maitland. Lack of tact and finesse in dealing with people, including subordinates, have been considered Hill's weak points. Hard times in the Water Distribution Division These characteristics and Hill's direction to shape up the division led to some tense months in the division. Larry Alewine, whose management style was certainly more relaxed, openly referred to Hill as "God" and "asshole." Alewine's position had been downgraded as a result of the reorganization, and he eventually left the city in 1987 after his position was eliminated from the budget. George Simpkins left a bitter resignation notice when he resigned in October, shortly after Chris Hill's appointment. In February 1986, Larry Alewine prepared an evaluation of Robinson which was reviewed, consistent with procedures, by Chris Hill. Hill did not believe the evaluation was strong enough, in light of his knowledge of the incident with Wilder and other minor problems with fellow employees. Both Hill and Scott Gilbertson, the Assistant Director of Public Works, met with Alewine and suggested that the evaluation should be changed. When Alewine declined, Chris Hill changed the evaluation. The evaluation, dated 3/6/86, rates Robinson overall as "Employee needs improvement." The written comments are very similar to those made by George Simpkins on the May 1985 evaluation; that is, the quality of his work was deemed generally good, but his conduct, ability to follow instructions, and ability to get along with fellow employees was noted as the real problems. While it is not apparent from the evaluation itself and the testimony in this proceeding how much of the evaluation was completed by Larry Alewine, it is clear that at least some of the negative written comments were made by him. (Respondent's exhibit #2.) The meeting with management officials and its aftermath Robinson wrote a protest of his evaluation which precipitated a meeting with himself, Chris Hill, Scott Gilbertson, Philip Penland, and the City Personnel Director, Sam Frazee. The evaluation was discussed; Robinson was told that his signing the evaluation only acknowledged its receipt and that he could provide his written notations on the back of the evaluation regarding portions with which he disagreed. The group also discussed an appointment Robinson had made with the city's worker's compensation physician. He had attempted to arrange his own follow-up visit for treatment of a work-related injury. The city's policy required that the appointments with the city's physician be made after notification to the supervisor. While explaining his actions, Robinson gave contradictory versions of what he had been told by the nurse in the doctor's office regarding the procedures. His testimony at hearing was also confused and inconsistent on this point. On direct, he testified that he had been told that authorization from the city is not necessary for follow-up visits. On rebuttal, however, he stated that the nurse had told him that the city personnel department would have to be notified, but not his foreman. (TR, Vol I, p. 77, Vol IV, p. 324-325). In the course of the same meeting, Robinson made allegations of wrongdoing by Larry Alewine, stating that Alewine had a meeting with his employees and encouraged them to write grievances against Chris Hill and had called Hill an "asshole" and "God." The City Manager considered these allegations to be serious and promised Robinson that an investigation would be made. The meeting then broke up. Ed Haven, an officer with the Professional Standards Bureau of the City Police Department was assigned to investigate the allegations of misconduct. This bureau normally conducts personnel-related internal affairs investigations and considers them administrative, not criminal. The investigation was initially inhibited by Robinson's refusal to answer Officer Haven's questions unless the investigation was expanded to include Chris Hill as well. Robinson was then ordered by the City Manager to participate. The inquiry sustained the allegations that Alewine had called Hill "asshole" and "God." This investigation spawned a second investigation as to whether Robinson had ever told another employee that he lied about Alewine in order to get an investigation against Chris Hill. The issue was never resolved, but Officer Haven found that a "preponderance of evidence indicates Robinson was untruthful during this investigation...," that Robinson did have a conversation with an employee, Barry Beavers, but denied it. (Petitioner's composite exhibit #1, Memorandum of Internal Inquiry #86-9998-03, April 15, 1986). The lead Utility serviceworker positions In Spring 1986, the city created two supervisor positions in the Water Distribution Division, titled "lead utility serviceworker," to supervise and oversee the work of the utility workers and their laborers. All three utility serviceworkers applied for the jobs: Robinson, Ronnie Oliver (Black American) and Barry Beavers (White American). Robinson was never considered a viable candidate and was interviewed as a matter of courtesy. Oliver and Beavers were chosen. Robinson concedes that Beavers was qualified and properly promoted, but he disputes Ronnie Oliver's qualifications. Ronnie Oliver began work one month after Robinson, in October 1984. He worked under Robinson as a laborer for some time and he freely acknowledges that Robinson taught him a lot. Oliver also had considerable personal initiative and taught himself with the use of materials he acquired from Larry Alewine. Oliver's performance evaluations were substantially better than Robinson's; by May 1986, the time of the promotion, he was evaluated as an "Outstanding" employee. Robinson had, in fact, been on the job less than Oliver, as he had sustained a work-related injury in December 1985, and was out for weeks at a time. He had not been cleared for full-time duty when he was interviewed and was absent from work when the positions were filled. Light duty Robinson alleges that he was given "make-work" light duty when he was returned to work after his injury, and was later denied light duty. The city furnishes injured employees with light duty on a case-by-case basis, depending on the capabilities and physical condition of the individual and the needs of the employer. Robinson was first assigned floor sweeping duties in June after his recurring back problems. Later he was given the task of painting an area near Hill's office. An assistant was assigned to paint the high and low portions of the wall. He was also given a chair to sit on and rest his back. This was the lightest duty available at the city at time. Other employees including a black who had cancer, were also given routine maintenance chores. While painting, Robinson injured his neck, shoulder and hands. He never returned to work after this injury in June 1986. The city informed him in July and August that it did not have light duty available. In September 1987, the City agreed to pay Robinson $47,000.00 (including $7,000.00 to his attorney), to settle his worker's compensation claim of permanent back injury. He has since applied for reemployment. As of the hearing in this proceeding, the city was reviewing his request for reemployment. This request is not at issue here. Various grievances In Spring 1986, as the result of some publicity about the arrest of illegal aliens, the city reviewed the work authorization status of its employees. Since Robinson had initially given the city a letter from INS stating that he was eligible to work pending an application for political asylum, he was asked again for authorization. He refused at first, and claimed this was harassment. He also claimed that he was subject to derision for being a CIA spy. He had told some fellow employees about his past and the news circulated. The employees mostly did not take the matter seriously, but in an employee meeting, someone asked Chris Hill whether it was true that Albert was a CIA spy. He replied that this was what Robinson claimed. At the same employees' meeting, Hill also stated that he did not think that Robinson was going to be around much longer. He made this remark based on his knowledge of Robinson's disciplinary problems. Hill was strongly reprimanded for this remark. He did not have the authority to terminate Robinson, and management had not taken steps to terminate him. Robinson has attributed various derogatory statements and epithets to Chris Hill. He claims that Hill said that no one would take the word of a "nigger" against him and that he didn't want Americans to take orders from a Jamaican. Hill vigorously denies these statements and no credible evidence was produced to support Robinson's claims. Nor was credible evidence presented of Robinson's claim that on July 3, 1986, Hill lost his temper and spat in his face. At hearing on November 2, 1987, Robinson, through his attorney, withdrew his allegation that he was defrauded of sick leave through a forged signature. (TR Vol IV, p. 293-294.) Summary of Findings Beyond his own unsubstantiated claim that Alewine told him so, there is no evidence that Robinson's problems with the city were the result of his rather inconspicuous involvement at the Patrick Dixon hearing. His problems clearly began when he was promoted to a position of some authority over others and his temper, loud mannerisms and difficulty working with others became an issue. Beginning with his response to his first slightly negative personnel evaluation, Robinson's reaction to every event in his employment, major and minor, was lengthy, rambling, confused and confusing written grievances, memoranda and letters. Robinson also carried a tape recorder to memorialize his encounters and (in his words) "...to intimidate people from molesting me..." (TR, Vol I, p. 243). Robinson's inconsistent accounting and mixing of facts in his scenario of alleged discrimination fail to make sense. Pressure was applied to blacks and whites, alike; of the four employees targeted as "problems," the two whites are gone (Alewine and Simpkins) and one black (Wilder) has been promoted. Evidence is clear that there were serious management problems in the city's Water Distribution Division in 1985, and the atmosphere which prevailed with reorganization of the division and Hill's arrival could very well have fueled Robinson's paranoia. His vehement protestations and repetitious and rambling litany of wrongs are either a sincere confused perception, or a deliberate attempt to manipulate a situation, which because of justifiable criticism of his job performance, was becoming increasingly uncomfortable. Nevertheless, his myriad allegations of discriminatory harassment, retaliation and of unlawful failure to promote, are unsupported by competent evidence.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Albert Robinson's charges that the City of Altamonte Springs violated subsections 760.10(1)(a) and (7), F.S., by harassment failure to promote, and retaliation, be DISMISSED. DONE and RECOMMENDED this 16th day of February, 1988, in Tallahassee, Florida. MARY CLARK 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 16th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2482 The following constitute my specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact 1-5. Addressed in summary form in paragraph 3. Adopted in paragraphs 4. and 5. Addressed in paragraph 5. Adopted in part in paragraph 8. The account of discussion with Alewine is rejected as contrary to the weight of credible evidence. Adopted in part in paragraphs 6.-8., otherwise rejected as contrary to the weight of credible evidence. Adopted in paragraphs 6.-15. Addressed in paragraph 12. The characterization of Simpkins' motives and the mandate to fire the four employees are rejected as contrary to the weight of evidence. Addressed in paragraphs 15. and 16. Adopted in part in paragraph 18., otherwise rejected as unsupported by the weight of evidence or immaterial. 14-16. Rejected as contrary to the weight of evidence, except for the comment about Robinson being terminated. See paragraph 34. Rejected as cumulative, unnecessary and argumentative (rather than factual). Addressed in paragraph 14.; otherwise rejected as contrary to the weight of evidence. Rejected as unnecessary. Addressed in paragraph 13., otherwise rejected as contrary to the weight of evidence and unnecessary. Adopted in substance in paragraph 19. Addressed in paragraph 21. Rejected as contrary to the weight of evidence. Addressed in paragraph 21. Addressed in paragraph 22. Addressed in paragraph 25; otherwise rejected as unnecessary and unsupported by the competent evidence. Rejected as unnecessary. Addressed in paragraphs 33 and 34, otherwise rejected as contrary to the evidence. Addressed in paragraphs 26. through 28. Addressed in paragraphs 29. through 30. Rejected as contrary to the weight of evidence. Rejected as unnecessary. Addressed in paragraph 31. 34-35. Rejected as irrelevant. The "fraud" charge was withdrawn. See paragraph 36. 36-37. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. 6-12. Adopted in paragraphs 6. through 8. 13-15. Rejected as cumulative. 16-22. Addressed in paragraphs 15. and 16., otherwise rejected as unnecessary. 23. Adopted in paragraph 13. 24-27. Addressed in paragraph 14. 28-34. Addressed in paragraph 19. 35-38. Adopted in substance in paragraph 20. 39-40. Adopted in paragraph 21. Rejected as unnecessary. Adopted in paragraph 22. Adopted in paragraph 23. 44-49. Adopted in paragraphs 24. and 25. in substance. 50-60. Rejected as cumulative and unnecessary. 61-66. Addressed in paragraph 32. 67-69. Addressed in paragraph 33. 70-72. Addressed in paragraph 34. 73-89. Addressed in paragraphs 26.-28.; otherwise rejected as unnecessary. Adopted in substance in paragraph 35. Adopted in paragraph 28. Adopted in paragraph 29. 93-94. Adopted in substance in paragraph 29. 95-96. Adopted in substance in paragraph 30. Rejected as cumulative. Adopted in paragraph 30. 99-102. Adopted in substance in paragraph 31. 103-110. Rejected as irrelevant. The "fraud" charge was withdrawn at hearing. See paragraph 36. COPIES FURNISHED: Tobe Lev, Esquire Egan, Lev & Siwica, P. A. Post Office Box 2231 Orlando, Florida 32802 David V. Kornreich, Esquire Muller, Mintz, Kornreich, Caldwell, Casey, Crossland, & Bramnick, P. A. Suite 1525, Firstate Tower 255 South Orange Avenue Orlando, Florida 32801 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue in this case is whether Petitioner was retaliated against in violation of the Florida Civil Rights Act of 1992 (FCRA), chapter 760, Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the District by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). On July 1, 2016, the District began operating the educational programs at FCTC, due to the dire financial situation which had developed at the college. In taking over the programs at FCTC, the District immediately recognized that the administrative staff at FCTC was bloated and needed to be streamlined. Further, because FCTC would now be operated by the District, the District endeavored to evaluate FCTC’s structure to determine how it could operate more like a District school, including with respect to personnel structure. The District set out to reorganize and restructure FCTC to align it with the District and address administrative redundancy and financial issues. To facilitate this transition and evaluation, the District placed all administrative employees at FCTC on temporary contracts, effective July 1, 2016. This decision was made sometime in June 2016. On the morning of July 1, 2016, all employees of FCTC were called to a meeting held by Dr. Joseph Joyner, the District Superintendent. At that meeting, Dr. Joyner introduced Cathy Mittelstadt as the interim principal. At the conclusion of the meeting, all administrative personnel, including Petitioner, were offered temporary employment contracts, for a term of approximately six months. The contracts could be terminated by either party with two weeks’ notice. No administrative employee was placed on a longer temporary contract. The temporary employment contracts, including Petitioner’s, began on July 1, 2016, and terminated on December 21, 2016. Petitioner’s temporary employment contract expressly incorporates District Board Rule 6.10(3). Board Rule 6.10(3) concerns temporary employment with the District, and provides that temporary employees work for a limited amount of time. The rule does not state that temporary employees enjoy an expectation of employment beyond the contract term. As the interim principal, Ms. Middelstadt was tasked by the District with evaluating the structure of FCTC to determine how it could be streamlined to address budget and financial issues and also bring it in line with how other District schools operated. The elimination of positions at FCTC was contemplated as part of this evaluation. Every administrative position at FCTC was evaluated for potential elimination. Ultimately, Ms. Mittelstadt was responsible for recommending to the District’s Executive Cabinet (Executive Cabinet) how FCTC should be restructured. As part of this process, Ms. Mittelstadt was also responsible for recommending to the Executive Cabinet those positions that would be eliminated as part of the restructuring process. The Executive Cabinet did not reject any of Ms. Mittelstadt’s recommendations, but rather, accepted them without change. The Executive Cabinet would not have taken any action with respect to any employee working at FCTC without a recommendation from Ms. Mittelstadt. Ms. Weber had limited involvement in the restructuring process. She provided ministerial assistance to Ms. Mittelstadt during this process, but she was not responsible for, or involved in, the decision as to how the school would be restructured, or for any recommendations regarding the same. FCTC employees were kept informed as to the status of restructuring during the process. Ms. Mittelstadt and Ms. Weber did not tell any administrative employee at FCTC, including Petitioner, that they could expect their contract would be renewed or that they would retain their positions past the term of their temporary employment contract. Petitioner understood that he was being appointed to a temporary employment contract not to extend past December 21, 2016. Ms. Mittelstadt made the determination as part of the restructuring process that Petitioner’s position should be eliminated, and that his temporary employment contract would be allowed to expire pursuant to its terms. Ms. Mittelstadt recommended this course of action to the Executive Cabinet, which approved it. Through Ms. Mittelstadt’s evaluation and assessment of the needs of FCTC, she determined that a full-time grant writer was not necessary for FCTC. Certain tasks related to grants obtained by the School District, including accounting related tasks, are handled in the District’s main office, and the remaining tasks related to grants are handled at particular schools by a different position, career specialists. Indeed, no other District school employs a full-time grant writer. In furtherance of the District’s decision to streamline administration at FCTC and realign it with how other District schools operated, Ms. Mittelstadt determined that the grant writer position occupied by Petitioner, as well as another type of position at FCTC, the program manager position, should be eliminated, and the duties performed within those positions subsumed within the career specialist position, as in other District schools. The District distributed a vacancy announcement for the Career Specialist position to all FCTC employees, including Petitioner. The announcement included a job description for the position. The job description and vacancy announcement were used to fill the position. The job description provides that grant writing and management, encompassing Petitioner’s duties as a grant writer, are part of the duties, among others, of a career specialist. Petitioner did not apply for this position. Petitioner was informed at a meeting on November 18, 2016, that his contract would be allowed to expire effective December 21, 2016, and not renewed. Present at this meeting, in addition to Petitioner, were Ms. Mittelstadt, Ms. Weber, and Brennan Asplen, the District’s Deputy Superintendent for Academic & Student Services. At the meeting, Petitioner was provided a notice indicating that his temporary employment contract was expiring pursuant to its terms. Petitioner was permitted to work through the remainder of his contract term with no diminution in benefits or pay. Petitioner requested to be placed in another position at FCTC at this time, but was informed there were no vacancies posted for him to be moved to, that the District was not placing non-renewed employees into positions, and that he could apply to any position he liked when it was posted. One position, a Case Manager in the Career Pathways program, was funded from a grant, and that position was technically vacant under the grant. However, FCTC was in a hiring freeze at the time, as Ms. Mittelstadt made the decision to not fill the Case Manager position given, and during, the extensive realignment and assessment of FCTC whose budget was being scrutinized at a deep level. The District did not place any other non-renewed employees into positions. The Case Manager position was eventually advertised in April 2017. Petitioner did not apply for the position despite being informed of it and having nothing restricting him from doing so. Petitioner’s work performance played no role in the decision to eliminate his position. Ms. Mittelstadt and Ms. Weber both indicated that they did not retaliate against Petitioner for any reason. In fact, Petitioner was not the only person whose position was eliminated. Ms. Mittelstadt also recommended that six or seven other positions also be eliminated. Furthermore, approximately 12 to 15 FCTC employees resigned, and their positions were eliminated. Had those employees not resigned, their positions still would have been eliminated and those employees’ contracts would have been allowed to expire. Petitioner filed the complaint or charge, at issue in this proceeding, with the FCHR on December 22, 2016 (December 22nd Complaint). In it, Petitioner alleges that he was retaliated against in violation of the FCRA. While Petitioner was not represented by counsel at the time that he filed the December 22nd Complaint, he obtained representation from a lawyer thereafter, and during the FCHR’s investigation of this complaint. This was not Petitioner’s first complaint filed with FCHR concerning his work at FCTC. Just before the District began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed a complaint (June 27th Complaint) with the FCHR also alleging retaliation. The June 27th Complaint was received by the FCHR on June 28, 2016. Petitioner introduced no evidence showing that at the time the decision was made to place individuals on temporary employment contracts, that the District was aware of his June 27th Complaint. Petitioner alleges in the December 22nd Complaint that the District terminated his employment because he engaged in protected activity under the FCRA. Petitioner does not allege in the complaint that he was subjected to a hostile work environment or harassment due to any retaliatory animus on the part of the District. Rather, Petitioner only alleges that he believes he frustrated his supervisor at various times, not that he was subjected to a hostile work environment. On August 17, 2017, the FCHR issued a no-cause determination. On September 20, 2017, Petitioner filed a Petition for Relief from Unlawful Employment Practice, initiating the instant proceeding. In the Petition, Petitioner largely alleges that he believes the District submitted false information to the FCHR and that the District was guilty of various acts of fraud and abuses. Specifically, Petitioner alleged: Not only did the SJCSD lie about its relationship with FCTC, the SJCSD deliberately lied about my position working collaboratively with other SJCSD personnel assigned to grants administration and my unique ability to assist the SJCSD in avoiding mistakes that they were driven to make, mistakes that rose to the point that they became criminal. The SJCSD committed to a path of making such criminal errors with federal funds and falsifying their account of why they fired me. I have assembled sufficient evidence to show that the SJCSD is guilty of violating the Racketeer Influenced and Corrupt Organizations Act and that they fired me as a whistle blower having abundant evidence of their crimes committed against the public interest for the personal benefit of key administrators. In his Petition, Petitioner did not identify reasons why he believes the FCHR’s “No Reasonable Cause” finding was without merit. And other than his alleged retaliatory firing, Petitioner does not identify any other adverse effects that he suffered as a result of the SJCSD “criminal” activities, or allege that he was subjected to a hostile work environment. Petitioner alleged for the first time at hearing that the District subjected him to a hostile work environment in retaliation for engaging in protected activity. He alleged this hostile work environment centered on three actions. First, that the District did not provide him a copy of a harassment complaint filed by another employee concerning him in a timely manner, and did not set up the meetings he requested to address that complaint the way he wished. Second, that District personnel did not provide him access to “SunGard” software. And, third, that District officials asked him to sign a form related to grants that he did not wish to sign. Regarding the first allegation, sometime prior to July 1, 2016, Renee Staufaccher filed a complaint with Stephanie Thomas regarding Petitioner’s conduct. This complaint was lodged while the District was not operating the programs at FCTC. District officials told Petitioner that complaints lodged during this time period should be referred to FCTI. Once the District began operating the programs at FCTC, Petitioner reached out to Ms. Weber for a copy of Ms. Staufaccher’s complaint. Ms. Weber took steps to obtain that complaint, and it was provided to Petitioner within roughly two weeks of his request, despite Ms. Weber being out of the office one of those weeks. Petitioner requested to meet with Ms. Staufaccher and Ms. Thomas regarding the nature of the complaint and his concerns about whether the complaint was authentic. Ms. Staufaccher was no longer employed at FCTC within a matter of days of this request. Petitioner also requested to meet with Ms. Thomas only a matter of days before she ceased working at FCTC. Petitioner was not afforded the meeting or other items requested because the matter concerned old, not ongoing events occurring prior to the time the District began operating FCTC. Petitioner did not interact with, or report to, Ms. Staufaccher or Ms. Thomas during this time, and neither supervised him. Petitioner never disclosed to the District that he was suffering continued harassment at the hands of Ms. Staufaccher or Ms. Thomas subsequent to July 1, 2016. Petitioner offered no evidence that his request was handled differently from any other District employee, and Ms. Weber credibly testified he was treated the same as any other District employee in this regard. Regarding the second allegation, Petitioner alleged at the hearing that the District did not provide him access to SunGard, a computer program that had some relation to the performance of his job duties. At hearing, Petitioner represented that he was never provided access to this program. However, he later conceded that he did have access to this program during his employment. Specifically, prior to being given direct access to this program, Petitioner was provided access to the information in the program through the assistance of another District employee. This provided Petitioner with access to the information he needed to perform his job, including generating reports. Accordingly, it was not necessary for Petitioner to have direct access to SunGard to perform his job duties. The District was not authorizing extensive access to SunGard during this time because it was in the process of creating new systems and processes to bring FCTC in line with the District’s standards. In short, Petitioner was still able to perform his job, despite his complaint that he was not given direct access to SunGard. As to Petitioner’s third complaint, on or about October 2016, Jena Young, formerly employed in the District’s accounting office, asked Petitioner to sign a form related to grant accounting. Ms. Young was not Petitioner’s supervisor. Petitioner stated that he did not want to sign the form because he believed there was incorrect information on the form. Petitioner was not forced to sign the form, and was not told he must sign the form or face adverse consequences. Ultimately, he did not sign the form. The District maintains a rule governing harassment in the workplace. The rule provides a complaint procedure for employees to complain of harassment. The rule provides multiple avenues for employees to report harassment, and provides that complaints will be investigated and discipline meted out for employees impermissibly harassing others in violation of the rule. The rule prohibits retaliation against an employee who files a complaint. Notably, Petitioner never filed a harassment complaint about conduct occurring subsequent to July 1, 2016, despite his being aware of the rule. Petitioner’s protected activity at issue in this case concerns his June 27th Complaint and varied grievances that he filed while he was an employee at FCTC prior to July 1, 2016. Petitioner only offered three grievances into evidence--his first grievance, his ninth grievance and his tenth grievance-- all lodged prior to July 1, 2016, and all concerning the conduct of administrators at FCTC while it was still operated by FCTI and not the District. Petitioner’s first grievance was filed on May 21, 2015, alleging that FCTC’s then-president, Sandra Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and in e-mails. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner’s ninth and tenth grievances, both filed on June 13, 2016, allege that Ms. Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s Human Resources Director, and Ms. Stauffacher, were complicit in that nepotism. Indeed, Petitioner testified that the thrust of these grievances was that members of potential protected classes did not get to interview for jobs at FCTC, not because of those protected classes, but because they were not Ms. Fortner’s friends or family. Ms. Mittelstadt had not seen the grievances that Petitioner filed, and had no knowledge of the June 27th Complaint when she determined that his contract be allowed to expire pursuant to its terms and his position eliminated. Petitioner introduced no evidence that Ms. Mittelstadt ever saw any of his grievances or the June 27th Complaint at the time she made the decision to eliminate his position. Ms. Mittelstadt credibly testified that none of Petitioner’s grievances, requests for grievances, e-mails related to grievances, or his June 27th Complaint played any role in her recommendation that his position be eliminated.
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 the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 28th day of June, 2019, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Gregory Ryan Lulkoski 212 River Island Circle St. Augustine, Florida 32095 (eServed) Michael P. Spellman, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Jeffrey Douglas Slanker, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Robert J. Sniffen, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK 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 12th day of April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of age and retaliating against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Mr. Meikle is an African-American male. At hearing, Mr. Meikle withdrew his claim of age discrimination. Mr. Meikle is only pursuing the claim of retaliation. Mr. Meikle was employed with the Radisson Hotel (Radisson), which was owned by Hotels Unlimited. Mr. Meikle’s supervisor at the Radisson was Harland McPhun, who was the Assistant General Manager. Mr. McPhun’s supervisor at the Radisson was Diane Gray, who was the General Manager. During his employment at the Radisson, Mr. Meikle was promoted from a cook to the Kitchen Director. He was very proud of being in the position of Kitchen Director. Mr. McPhun had not encountered any problems with Mr. Meikle being on time for work or being a “no-show” for work as scheduled. However, Mr. McPhun had encountered problems with Mr. Meikle in other areas, such as Mr. Meikle's providing his sister, who was employed at the front desk of the Radisson, with larger portions of food than the other employees; and being in places other than the kitchen area talking, i.e., at or near the front desk. Mr. McPhun gave Mr. Meikle verbal warnings, regarding the incidents, but never documented any of the verbal warnings. At some point in time, Hotels Unlimited decided to convert the Radisson to a Double Tree Hotel (Double Tree). The Double Tree’s structure required the position of a Food and Beverage Manager, who would supervise the food and beverage personnel, kitchen staff, and restaurant servers. Gerald Brown was hired as the Food and Beverage Manager in January 2008. Mr. Brown began his employment before the completion of the conversion from the Radisson to the Double Tree. On February 14, 2008, Mr. Brown held his first staff meeting with the entire staff over whom he had supervision. Mr. Meikle was late for the staff meeting. On February 16, 2008, Mr. Brown issued a “Disciplinary Document” indicating that he was giving Mr. Meikle his first written warning for being late at the meeting. Mr. Meikle admits that he was late for the meeting. The Disciplinary Document was signed by Mr. Meikle (the date of the signature was not completed), by Mr. Brown, as the Manager (the date of the signature was not completed), and by Ms. Gray, as the General Manager, on February 18, 2008. Additionally, on February 16, 2008, Mr. Brown issued another Disciplinary Document indicating that he was giving Mr. Meikle his first written warning for failing to follow rules and direction involving four different matters about which Mr. Brown had repeatedly counseled Mr. Meikle on several occasions, but were not being adhered to by Mr. Meikle. The Disciplinary Document was signed by Mr. Meikle (the date of the signature was not completed), by Mr. Brown, as the Manager, on February 16, 2008, and by Ms. Gray, as the General Manager, on February 18, 2008. On February 25, 2008, Mr. Brown issued a Disciplinary Document for an incident that occurred on February 23, 2008, a Saturday night. Mr. Meikle was scheduled to work, but he departed the kitchen and the hotel property without informing and obtaining permission from the manager. Hotels Unlimited’s policy required the informing of the manager in order for the manager to take appropriate steps to make adjustments to accommodate the absence. Mr. Meikle was entitled to a break, but he failed to notify the manager of his absence in accordance with the policy. The Disciplinary Document included a statement that “Disciplinary Action to be decided by the General Manager.” The Disciplinary Document was signed by Mr. Meikle on February 26, 2008, by Mr. Brown, as the Manager, on February 25, 2008, and by Ms. Gray, as the General Manager, on February 26, 2008. Regarding Mr. Meikle’s absence from work on Saturday evening, February 23, 2008, he was working an 18-hour shift, without anyone to relieve him, which meant that he was unable to take a break. He was exhausted and needed to take a break. Before Mr. Brown was hired, Mr. Meikle was working the 18-hour shift, and after Mr. Brown was hired, Mr. Meikle agreed to continue working the 18-hour shift. Mr. Brown did not wish to disrupt what was already in place, so he agreed to allow Mr. Meikle to keep the 18-hour shift. It was not unreasonable for Mr. Brown to maintain Mr. Meikle on the 18-hour shift, as Mr. Meikle requested. On that same day, February 25, 2008, Mr. Brown issued a Disciplinary Document for an incident that occurred on February 25, 2008. Mr. Meikle raised his voice and became very loud, resulting in guests being disturbed. As Mr. Meikle had been absent from work on Saturday evening, February 23, 2008, Mr. Brown was inquiring of Mr. Meikle the reason for his (Mr. Meikle’s) absence. Further, during the conversation, Mr. Brown raised several other concerns. Mr. Meikle raised his voice and became very loud, which Mr. Brown determined was disturbing the guests. Mr. Brown requested Mr. Meikle to remove himself from the dining area. The Disciplinary Document was signed by Mr. Brown on February 26, 2008. Mr. Meikle refused to sign the Disciplinary Document where the employee’s signature is indicated; but, he (Mr. Meikle) noted on it, “Refuse to sign because I did what I was told,” and signed his name under the statement. Each Disciplinary Document indicated that Mr. Meikle’s termination was effective “2/29/08.” Mr. Brown did not indicate a date for termination on any Disciplinary Document and could offer no explanation as to why or how each Disciplinary Document contained such information. Furthermore, no testimony was presented as to why or how each Disciplinary Document contained such notation. Mr. Brown contacted Ms. Gray, recommending the termination of Mr. Meikle. Ms. Gray did not approve the recommendation; she wanted to continue to work with Mr. Meikle. On February 25, 2008, a letter, bearing the same date, from Mr. Meikle was faxed to Hotels Unlimited’s Human Resources. Among other things, Mr. Meikle notified Human Resources that he was working in a hostile work environment created by Mr. McPhun, providing examples of what he considered inappropriate action and conduct by Mr. McPhun; that Mr. McPhun “strongly dislike[s]” him “for whatever the reason”; that Mr. McPhun was taking food from the hotel and that he (Mr. Meikle) had reported it to the general manager; that all of his (Mr. Meikle’s) current problems at work stemmed from Mr. McPhun, providing examples of the problems that he (Mr. Meikle) had encountered2; that Mr. McPhun was the cause of all of his problems at work; that he (Mr. Meikle) had no one to ask for help; that Mr. McPhun was out to get him (Mr. Meikle) fired; that everyone was biased against him (Mr. Meikle) because of Mr. McPhun; and that a copy of the letter would be forwarded to the EEOC and the FCHR. Ms. Gray was notified by her superior that Human Resources had received a letter from Mr. Meikle, but she was not notified of the content of the letter nor did she receive or view a copy of the letter. Her superior told her to talk with Mr. Meikle and resolve the problem. Hotels Unlimited’s Employee Handbook, Employment Policies & Practices section, provides in pertinent part: Equal Employment * * * If you suspect discriminatory or harassing actions on the part of the Company or any other employee, you should immediately notify your General Manager or Corporate Department Head, as applicable, or, if you prefer, a Company Officer. Such notification will be held in confidence to the extent possible. Discriminatory behavior or action by any employee is cause for discharge. * * * Sexual and Other Forms of Harassment Policy Statement: Hotels Unlimited, Inc. is committed to a work environment in which all employees are treated with respect and dignity. It is the policy of Hotels Unlimited, Inc. to provide a work environment that is free from discrimination and harassment. Action, words or comments based on an individual’s sex, race, color, religion, sexual orientation, national origin, age, disability, marital status, citizenship or any other characteristic protected by law – either overt or subtle – are demeaning to another person and undermine the integrity of the employment relationship. . . . * * * Harassment on the basis of any other protected characteristic is also strictly prohibited. Such harassment is defined as verbal or physical conduct that denigrates or shows hostility toward an individual because of his/her race, color religion, sex, sexual orientation, national origin, age, disability, marital status, citizenship or any other characteristic protected by law, and that has the purpose or effect of creating an intimidating, hostile or offensive work environment; has the purpose or effect of unreasonably interfering with an individual’s work performance; or otherwise adversely affects an individual’s employment opportunity. * * * Administration of Policy: * * * It is unlawful to retaliate in any way against anyone who has complained about harassment. Any incident of retaliation should be reported in the same manner as an incident of harassment. Any employee who engages in such retaliation will be subject to disciplinary action up to and including discharge. All allegations of discrimination, harassment, or retaliation will be subject to prompt, thorough and confidential investigation. All investigations will be designed to protect the privacy of, and minimize suspicion toward, all parties involved. . . . The Employee Handbook provided protection against employment practices for statuses beyond those set forth by law.3 In the early morning hours of February 29, 2008, Mr. Meikle was awoken by a telephone call from a co-worker inquiring as to why he (Mr. Meikle) was not at work. Mr. Meikle informed his co-worker that he was off that day, but his co- worker advised that he (Mr. Meikle) was scheduled to work. Mr. Meikle telephoned Mr. Brown, who informed Mr. Meikle to be at work. Mr. Meikle reported to work, but failed to report for his shift as scheduled. Regarding Mr. Meikle’s failure to report to work on time for his scheduled shift, all work schedules for Food and Beverage, during Mr. Brown’s tenure, were typed and posted, one week in advance. The work week for Food and Beverage was Monday through Sunday. The posted work schedule for the week of February 25, 2008, was prepared, typed, and posted by Mr. Brown and indicated that Mr. Meikle was required to work on Monday, February 25, 2008, and Tuesday, February 26, 2008; was not required to work on Wednesday, February 27, 2008, and Thursday, February 28, 2008; but, was required to work on Friday, February 29, 2008, specifically, from 5:00 a.m. to 2:00 p.m. Mr. Meikle reviewed a work schedule for the week of February 25, 2008, that was typed and hand-written. The work schedule indicated that it was prepared by Mr. McPhun and that he (Mr. Meikle) was not required to work on Friday, February 29, 2008. Based on that work schedule, Mr. Meikle did not believe that he had to report to work on February 29, 2008. However, Mr. Meikle was required to report to work on February 29, 2008, and work from 5:00 a.m. to 2:00 p.m. He failed to report to work for his shift as scheduled.4 No dispute exists that, at no time previously, had Mr. Meikle failed to report to work for his shift as scheduled. On February 29, 2008, Mr. Meikle was terminated for failing “to be at work on time for [his] schedule [sic] shift.” A Termination Report dated February 29, 2008, was signed by Mr. Brown, by Mr. Meikle, and Ms. Gray. Mr. Brown made the determination to terminate the employment of Mr. Meikle, and Ms. Gray agreed. Mr. McPhun did not participate with Mr. Brown and Ms. Gray in the determination to terminate the employment of Mr. Meikle. At the time of Mr. Meikle’s termination, Mr. Brown was not aware of Mr. Meikle’s letter to Hotels Unlimited’s Human Resources.
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 finding that Hotels Unlimited/Double Tree did not retaliate against Marshall Meikle in violation of the Florida Civil Rights Act of 1992, as amended and dismissing his petition for relief. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 23rd day of November, 2009.
Findings Of Fact Respondent, Lori Goldston, was employed by the Petitioner, City of Clearwater, for approximately seven and one-half years as a Building Construction Inspector II. On April 13, 1994, Respondent was placed on administrative leave and on April 21, 1994, she was terminated and all pay and other benefits were terminated as of 4:00 p.m. on April 21, 1994. Specifically, Respondent was terminated for alleged violations of Rule 14, Sections 1(b), (d), (k), and (1) of the Civil Service Rules and Regulations of Respondent, to-wit: (b) Is incompetent in the performance of the specific duties of [her] position. (d) Has been careless or negligent in the care of the property of the City; or has participated in the unauthorized use thereof. Has been . . . guilty of conduct un- becoming a City employee defined as scandalous or disgraceful conduct while on or off duty where such conduct tends to embarrass the City or bring its service into public disrepute. Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given . . . by [her] superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or the public. During the week of April 4, 1994, Tom Chaplinsky received two complaints that a City vehicle was observed leaving the city limits with a magnetic sign covering the City seal. The complainants related that the driver appeared to be Respondent and that the vehicle was heading north on alternate route 19 when it was so observed. Vick Chadora, assistant central planning director, requested that Chaplinsky investigate the complaints. Chaplinsky along with Kevin Garriot, a building code analyst, initiated an investigation to check Respondent's inspection schedule and job sites for the day of April 11, 1994. Chadora and Chaplinsky reviewed Respondent's inspection schedules and job sites on April 11, 1994, and discovered that most of Respondent's inspections were completed by mid-morning. Chadora then instructed Chaplinsky to check Respondent's residence which is located north of Palm Harbor, approximately 8 to 10 miles outside of the city limits. During mid-morning on April 11, 1994, Chaplinsky parked near the end of the dead end street on which Respondent's residence is located. He saw what appeared to be her city vehicle but was unable to make a positive identification. On Tuesday, April 12, 1994, Chaplinsky again found that a majority of Respondent's inspections had been completed by mid-morning. Chaplinsky contacted her by radio at approximately 11:00 a.m., to determine her location and she replied that she was in Clearwater Beach. Chadora drove to the beach area while Chaplinsky and Garriot drove to Respondent's residence between 11:00 and 11:15 a.m. Messrs. Chaplinsky and Garriot parked at the entrance to the dead end street where Respondent resides and waited. At approximately 11:45 a.m., Chaplinsky and another staff assistant began trying to reach Respondent by radio. At approximately 12:55 p.m., Respondent answered her radio. At that time, Respondent was asked to investigate a complaint on the beach. At approximately 1:20 p.m., Messrs. Chaplinsky and Garriot observed Respondent in her city vehicle, with the City seal covered, leaving her neighborhood. They lost Respondent in traffic but later caught up with her at the site of the complaint. At that time, the City seal on her vehicle was no longer covered. On April 13, 1994, Messrs. Chaplinsky and Garriot again drove to Respondent's residence during mid-morning and waited at the entrance to her street. Respondent was observed leaving the City in the city vehicle with the City seal covered. At approximately 2:55 p.m. on April 13, 1994, with Messrs. Chaplinsky and Garriot present, Respondent was advised by Chadora that two people had complained that she was using her city vehicle with the City seal covered while leaving the city limits. Before Chadora could complete his inquiry, Respondent immediately denied that it was her. Upon Respondent's repeated and adamant denial, Chadora told her that he and Garriot has observed her leaving her residence on Tuesday, April 12 and Wednesday, April 13 in the City vehicle. Upon being confronted with that information, Respondent admitted that they had caught her in a lie and she admitted that she did leave the city limits in the city vehicle. Respondent indicated that she was trying to complete a construction project at home in order to re-finance and satisfy a balloon note which was coming due and the lender was insisting that certain renovations be completed prior to closing. During 1990, Respondent was disciplined for leaving the city limits and going to her home. At that time she was specifically advised that she should not leave the city limits to return home in the city vehicle without first obtaining permission from her supervisor. For that offense, Respondent was suspended for four days. Petitioner has a system of progressive discipline in effect which is utilized to discipline employees who engage in conduct contrary to the City's rules and regulations. An employee who violates the rules accumulates points under the disciplinary system. An employee who receives up to 60 points within a specified period (24 months), can be subjected to discharge. Respondent accumulated 140 points for the alleged infractions that she received for leaving the City limits during the days April 11-13, 1994. Petitioner also has a liberal sick leave policy which employees may avail by demonstrating need to use sick leave. Respondent did not advise Petitioner that she was suffering from any medical disability or other infirmity which would warrant the utilization of sick leave prior to her discharge. Respondent maintained that she failed to advise Petitioner of her need for sick leave -- she suffers from severe depression which is prompted by a chemical imbalance in her brain -- because she did not want other employees to know about her problems as she feared it would be common knowledge among her colleagues. Respondent attempted to show that she was being treated unfairly and more harshly than other employees had been treated for similar misconduct. Specifically, Respondent related an incident wherein an employee threw a temper tantrum during a grievance meeting, tossed a beeper against a bookcase and was generally insubordinate when he was questioned about an infraction. Petitioner explained that that employee "blew up" when he was confronted about a simple rule infraction and that employee was suspended as was Respondent when she was first disciplined for leaving the City in a vehicle without authorization in 1990. Respondent failed to show that she was treated more harshly or that she was the recipient of disparate treatment by Petitioner. Respondent demonstrated that the other employee was similarly treated when Petitioner was disciplined in 1990. Moreover, that employee was subjected to discharge when he later violated the city's rules and regulations (a drug offense-employee failed a urinalysis screen). Petitioner had no way of knowing prior to April 21, 1994, that Respondent requested or was otherwise in need of "an accommodation" due to her health in April of 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order dismissing Respondent from her position of a Building Construction Inspector II effective April 21, 1994. DONE AND ENTERED this 28th day of February 1995 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 28th day of February 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1, adopted as modified, paragraphs 2, 18, and 19, Recommended Order. Paragraph 3, rejected, unnecessary. Paragraph 4, adopted as modified, paragraph 18, Recommended Order. Paragraph 7, rejected, irrelevant. Paragraph 8, conclusionary and argument. Paragraph 11, adopted as modified, paragraph 22, Recommended Order. Respondent's Proposed Findings of Fact. Paragraph 5, rejected, contrary to the greater weight of evidence, paragraph 16, Recommended Order. Paragraph 8, rejected, irrelevant. Paragraph 11, rejected, contrary to the greater weight of evidence, paragraphs 2, 14, and 19, Recommended Order. Paragraph 13, rejected, contrary to the greater weight of evidence. Paragraphs 15 and 16, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraph 17, adopted as modified, paragraphs 17-20, Recommended Order. Paragraph 18, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraphs 19-22, rejected, irrelevant and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Robert McCormack, Esquire Prestige Professional Park 2655 McCormick Drive Clearwater, Florida 34619 Karleen DeBlaker City Clerk City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The City of Madison employs approximately 60 full time employees who serve under the general supervision of the City Manager, who has identical fringe benefits as all other employees. The City Commission employes the City Manager and is the ultimate authority and decision making body. The City Commission is composed of elected officials who serve without compensation. A representation petition was filed seeking a certificate of representation by Local Union 2865, AFL-CIO as the exclusive bargaining agent for all full time employees of the City of Madison except for professional employees, managerial employees and confidential secretarial employees. The Public Employer refused to grant the request. A consent election was rejected. A Motion to Dismiss and/or Strike Petition for Certification was entered into evidence over the objection of the Petitioner and a Motion to Quash said Motion to Dismiss and/or Strike Petition for Certification was denied. Testimony was taken as to whether there was such solicitation by managerial employees to initiate the showing of interest. Testimony was taken and final action on the Motion is referred to PERC for action. If the Motion to Dismiss is denied, the determination must be made as to whether the hereinafter enumerated job positions as set forth in Exhibit 3 should be considered managerial and excluded from the unit. No agreement was reached on such employees. Each employee whose job description is set forth in Exhibit 3 works a standard 8:00 a.m. to 5:00 p.m. five day work week, but each is expected to get their respective job done and in the event of an emergency work overtime. The City Commission sets the wages and each reports directly to the City Manager. Each has the same fringe benefits except those who need a truck and radio are furnished one for job use only. Each such employee hears grievance matters on those under him and if the problem cannot be worked out, the parties go to the City Manager who acts as final arbitrator and who acts on a recommendation for termination. Each such employee submits a budget and then sits with the City Manager in making up the budget and keeps with the administration of the budget. Each of the following persons have been funded with the job description and entered in Exhibit 3 and testimony from the City Manager indicates that a meeting for clarification and explanation was planned and thereafter a meeting of these nine employees on a monthly basis. The City Manager stated that in the event of a bargaining situation he would call together these employees for indirect and direct input but that he would prefer not to try to negotiate a contract himself inasmuch as this would put him in conflict with employees and that he would rely on these persons for input and any mollification of policy or procedures. (a) Special Project Supervisor. This work involves the direction of a maintenance or construction crew performing road and utility construction and maintenance work. This employee may hire, promote, demote and assign work and is responsible for directing a crew of skilled and unskilled workers in routine maintenance or construction of streets, roadways and utilities. Duties include inspecting equipment and machinery used to ensure proper operation and checking street and roadway utilities for defects or problems. At times this employee may serve as relief equipment operator. He may also perform other duties as required by the City Manager. Four persons work under the Special Project Supervisor but he may obtain help from other departments when necessary. (h) Fire Chief. This employee is directly responsible for protection against fire and for firefighting activities within the jurisdiction. This employee may hire, promote, demote or assign work and is responsible for directing and supervising skilled and unskilled firefighters in the routine maintenance of facilities and equipment. He coordinates the activities of firefighters, inspects station house and equipment, responds to fire alarms and other rescue activities. This employee may also perform other duties as required by the City Manager. (c) Construction Supervisor. This employee directs one or more departments and/or construction crews engaged in the construction of city streets, roadways, bridges and related facilities. The employee may hire, promote, demote and assign work. The work involves the supervision of several types of heavy equipment operators as well as the skilled and unskilled labor activities. The employee may perform other duties as required by the City Manager. (d) Executive Secretary. Excluded as managerial employee. (e) Gas Supervisor. This employee directs the maintenance and construction crew performing gas and utility maintenance and construction. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance of gasolines, services and utilities. Duties include inspecting equipment and checking for defects and when necessary serving as relief operator and supervising the moving of right of ways. This employee may perform other duties as required by the City Manager. (f) Sewage Plant Supervisor. This employee directs the maintenance and construction crew performing sewage plant lines and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance or construction of sewer or water related facilities. Other duties include inspecting the equipment and machinery used to ensure proper operation and checking for defects or other problems. This employee may perform other duties as required by the City Manager. (g) Water Supervisor. This employee directs the maintenance and construction crew performing water, sewer and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising the crew of skilled and unskilled workers in the routine maintenance and construction of water and sewer facilities and ocher utility services. Duties include inspecting equipment, serving as relief operator when necessary, supervising the moving of right of ways. The employee may perform other duties as required by the City Manager. (h) Grounds Keeper. This is work directing small crews engaged in the care and maintenance of grounds and yards. The employee may hire, promote, demote, assign work and is responsible for the overall maintenance of the grounds and yards in the City. The employee may perform other duties as required by the City Manager. (i) Shop Superintendent-Mechanic. Excluded as a non-managerial employee. (j) Warehouse Supervisor. This employee is involved in the record keeping, inventory control and the operation of the purchasing department. The duties are in general, a bookkeeper and storekeeper. He performs other duties when required by the City Manager. (k) Police Chief. This employee is responsible for the direction and administration of law enforcement activities. He may hire, promote, demote, assign work and is responsible for directing and supervising skilled and unskilled police officers and other activities involved in law enforcement. He is responsible for inspection of the stationhouse and equipment. He responds to calls for assistance. Other duties may be required by the City Manager or Mayor in case of Marshall Law. In accordance with Florida Statute 447.307(3)(a), and Florida Administrative Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 30 day of April, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard Cox, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 David Bembry, Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Ben Patterson, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 Edward B. Browning, Jr., Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Chairman Public Employee Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to make an appearance at hearing.
Findings Of Fact On September 2, 2010, the undersigned issued the Initial Order in this case. The Initial Order was not returned as undeliverable to Petitioner. The Initial Order directed Petitioner to coordinate a joint response to provide the undersigned with certain information within seven days, or to file a unilateral response if a joint response was not possible. Petitioner did not respond to the Initial Order. On September 9, 2010, Respondent's counsel filed a Notice of Appearance. Respondent's counsel also filed a Response to Initial Order and Motion for Summary Hearing. On September 14, 2010, the undersigned issued an Order Denying Motion for Summary Hearing. The order was not returned as undeliverable to Petitioner. On September 14, 2010, the undersigned issued a Notice of Hearing, scheduling the hearing for October 18, 2010. That same day, the undersigned issued an Order of Pre-hearing Instructions. Neither one of these documents was returned as undeliverable to Petitioner. On October 6, 2010, Respondent filed its Notice of Filing Witness List. On October 8, 2010, Respondent filed a Separate Proposed Pre-hearing Statement. Petitioner did not file a response to the pre-hearing instructions. Petitioner did not contact the undersigned's office regarding any problem with commencing the hearing as scheduled. Accordingly, the undersigned traveled to Panama City, Florida, to conduct the hearing on October 18, 2010. When the hearing commenced, Respondent's counsel made an appearance, advising that Respondent and all of Respondent's witnesses were prepared to go forward with the hearing. Because Petitioner was not present, the undersigned decided to wait an appropriate period of time for Petitioner to make an appearance. In the meantime, the undersigned's office made an attempt to contact Petitioner by telephone. As a result of that telephone call, the undersigned understood that Petitioner would not be attending the hearing. The hearing was adjourned. As of the day that this Recommended Order of Dismissal was issued, Petitioner has not contacted the Division of Administrative Hearings, in writing or by telephone, to explain her failure to appear at the hearing.
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 the Petition for Relief. DONE AND ENTERED this 21st day of October, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2010. COPIES FURNISHED: Lesa Patterson 177 North Charlene Drive Panama City, Florida 32404 William C. Henry, Esquire Burke, Blue, Hutchison, Walters, and Smith, P.A. 16215 Panama City Beach Parkway Panama City Beach, Florida 32413 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
