The Issue The issues in this case are, first, whether a section of an application form, which was adopted as a rule, is an invalid exercise of delegated legislative authority; and, second, whether portions of an outdated online version of the same application form constituted an agency statement defined as a rule, which was not adopted in accordance with (and thus violated) Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Petitioner Thomas Filippi ("Filippi") desires to be issued an Educator's Certificate authorizing him to teach in the public schools in the State of Florida. Accordingly, on or about March 1, 2005, Filippi filled out and signed an Application for Florida Educator's Certificate. Through this application, Filippi sought to become certified to teach Chemistry (Grades 6-12) in the Florida public schools. Filippi mailed his application to the Department of Education ("Department"), where it was received on March 7, 2005. Question No. 22 of the application, on the subject of professional sanctions, comprised four subparts, and asked the following: Have you ever had any professional license (a driver's license is not a professional license) or professional certificate, including a teaching certificate, sanctioned by the issuing agency in this or any state? Sanction is defined to include: suspension; revocation; discipline, such as issuance of a reprimand or fine; or otherwise conditioned, such as placed on any restriction or probation. [2] Have you ever resigned, surrendered, or otherwise relinquished a professional license or certificate in this or any state? [3] Is there any action pending in this or any state against a professional license or certificate that you hold or held? [4] Is there any action pending in this or any state against an application for a professional license or certificate that you have on file? (A determination of academic ineligibility is not considered denial of a license or certificate.) (Bracketed numbers added.) Beneath these questions, for the applicant whose answer would be "yes," were lines on which to identify, with respect to any sanction(s) prompting the affirmative response, the "State," "Year," "License or Certificate," "Issuing Agency," and "Reason." Over the next seven months, on April 12, 2005; May 16, 2005; and October 11, 2005, Filippi filed three additional applications for licensure with the Department, each one seeking certification in a different subject or subjects. Filippi's second, third, and fourth applications (collectively, the "Online Applications"), unlike his first, were completed and submitted electronically via the internet. The Online Applications were identical to each other in form, but differed somewhat from Filippi's first application. This was because, in December 2004, the State Board of Education ("SBE") had adopted an updated version of the application for a teaching certificate, which form was duly incorporated by reference into, and made a part of, Florida Administrative Code Rule 6A-4.0012. Due to an oversight, however, the Department had not revised the online application to reflect the most recent changes to this form——and would not do so until October 2006, when it discovered the mistake. Consequently, Filippi's first application was made on the then-current form; his Online Applications, however, despite having been submitted later in time, were made on an older version of the form. There was a question in the Online Applications dealing with professional sanctions. The inquiry, however, contained only three subparts rather than four, as had Question No. 22 of the first application Filippi had submitted. The following shows the differences between the Online Applications (which the Department inadvertently had neglected to update), on the one hand, and Filippi's first application (which used the then- current form), on the other, by underlining the language that was not in the Online Applications (but should have been), and striking through a word ("denial") that was in the Online Applications (but should not have been): Have you ever had any professional license (a driver's license is not a professional license) or professional certificate, including a teaching certificate, sanctioned by the issuing agency in this or any state? Sanction is defined to include: denial; suspension; revocation; discipline, such as issuance of a reprimand or fine; or otherwise conditioned, such as placed on any restriction or probation. [2] Have you ever resigned, surrendered, or otherwise relinquished a professional license or certificate in this or any state? Is there any action pending in this or any state against a professional license or certificate that you hold or held? [3] Is there any action pending in this or any state against an application for a professional license or certificate that you have on file? (A determination of academic ineligibility is not considered denial of a license or certificate.) A YES or NO answer is required by Florida Law. If YES, you must give the information requested for each sanction. (Bracketed numbers added.) The Commissioner of Education ("Commissioner"), as head of the Department, decided that Filippi should not be permitted to teach in Florida. Among the reasons for the Commissioner's preliminary decision to deny Filippi's application for a teaching certificate was the Commissioner's belief that Filippi willfully had failed to disclose, in his applications for a teaching certificate, certain material facts, including information concerning the adverse actions that had been taken, respectively, against his applications for licensure as a teacher in the states of West Virginia and Pennsylvania. In this proceeding, Filippi alleges that the question regarding professional sanctions in the first application he submitted was an invalid existing rule. Filippi asserts that the question was invalid for several reasons. First, he argues that the SBE lacks rulemaking authority to ask an applicant for a teaching certificate about any previous professional sanctions he might have suffered, much less about any adverse actions that might be pending elsewhere against some other application(s) for licensure of the applicant. Second, he contends that the professional-sanctions question empowers the Department to deny an application merely because of an action pending elsewhere against another application of the applicant, even though such pending action (of itself) would not authorize the Education Practices Commission ("EPC") to revoke a teaching certificate. Third, Filippi insists that the question regarding professional sanctions was impermissibly vague. With regard to the Online Applications, Filippi charges that the SBE violated the rulemaking procedure prescribed in Section 120.54, Florida Statutes, because (Filippi contends) the question regarding professional sanctions in the Online Applications constituted an agency statement meeting the legal definition of the term "rule," which rule-by-definition (Filippi claims) the SBE was required promptly to adopt formally as a rule.
The Issue Whether Respondent, Jean M. Hovey, willfully violated Subsection 106.143(1)(a), Florida Statutes (2008), as alleged in the Order of Probable Cause dated August 26, 2009, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Respondent was a candidate for Winter Springs, Florida, city commission in 2008. Respondent was a first-time candidate for public office. She evidenced her decision to enter the city commission race by qualifying on August 28, 2008, one day prior to the deadline to qualify. A component of qualifying is the candidate's assertion that they have read and understand the requirements of Chapter 106, Florida Statutes. As a result of her late filing, Respondent had only five or six weeks to actively campaign. Responding to the advice of volunteer advisors, on September 4, 2009, Respondent hired Denise Ryser to manage her campaign. Ms. Ryser had previously managed a successful city commission race and was managing two other Winter Springs city commission races. Ms. Ryser was qualified to manage a city commission campaign. Ms. Ryser's initial focus was to prepare a campaign mailer. It was important that the mailer be presented to the voters as quickly as possible. Respondent provided the biographical information for the mailer; Ms. Ryser did the graphics, layout, color selection, and the "marketing" of the mailer. Several layouts/mock-ups of the mailer were prepared by Ms. Ryser and submitted to Respondent for approval. Each layout/mock-up submitted to Respondent contained the statutorily-mandated disclaimer. Subsection 106.143(1)(a), Florida Statutes, requires that: Any political advertisement that is paid for by a candidate and that is published, displayed, or circulated prior to, or on the day of, any election must prominently state: "Political advertisement paid for and approved by (name of candidate), (party affiliation), for (office sought)." After Respondent finally approved what she believed to be the final layout/mock-up, Ms. Ryser, on September 19, 2008, electronically forwarded a layout/mock-up to a printer in Miami. Inexplicably, the layout/mock-up forwarded by Ms. Ryser did not contain the statutorily-mandated disclaimer. This failure was attributed to a transmission error. Because Ms. Ryser perceived a need for "handouts" to be distributed by Respondent at personal appearances, Ms. Ryser, on the same day, September 19, 2008, ordered 100 additional mailers from a local printer. These mailers contained the statutorily- mandated disclaimer. When the Miami printer returned the mailers to Ms. Ryser, without further examining the mailers, she took them directly to a "mail-house" in Winter Park, Florida, to be mailed to 11,000 registered Winter Springs, Florida, voters. They were mailed on October 2, 2008. Respondent did not receive a mailer, as she was not on the mailing list. Ms. Ryser received a mailer at her home on Saturday, October 3, 2008. It was not until Sunday, October 4, 2008, that she noticed the absence of the statutorily-mandated disclaimer. Ms. Ryser immediately called Michael Ertel, Seminole County, Florida, supervisor of elections, and advised him of the error. Mr. Ertel did not testify. However, the parties stipulated that he would have testified that he advised Ms. Ryser to remail the mailer with the proper disclaimer and destroy the remaining mailers without the disclaimer. On Monday, October 6, 2008, Ms. Ryser discarded the mailers in her possession. At Ms. Ryser's direction and paid for by her, the mail-house printed the appropriate disclaimer on the remaining 3,000 mailers in its possession and mailed them to voters. On Tuesday, October 7, 2008, Respondent attended a candidates' night at Highland's in Winter Springs, and mailers were available to the public at this event. Unrefuted testimony indicates that Respondent's mailers, without the statutorily- mandated disclaimer, were available to the public at this meeting. Respondent did not learn that the mailers did not have the statutorily-mandated disclaimer until October 8, 2008, when she and her volunteer campaign advisors confronted Ms. Ryser about the error. Ms. Ryser acknowledged that the failure to include the statutorily-mandated disclaimer was her error and that Respondent was unaware of the error until October 8, 2008.
The Issue The issue is whether the Florida Commission on Human Relations has jurisdiction to determine whether Respondent committed an unlawful employment act against Petitioner in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a black female who was employed by Respondent as a press finisher. Petitioner worked for Respondent from January 1999 through June 4, 1999. Petitioner's work attendance was sporadic due to personal problems. Petitioner eventually developed a medical condition requiring surgery. At Petitioner's request, Respondent allowed Petitioner to work part-time. In March 1999, Petitioner's doctor performed a biopsy on Petitioner. When Petitioner returned to work, she jokingly commented that the doctor had taken a chunk of meat out of her. Respondent's manager responded in a similar tone by asking Petitioner if she felt lighter. Petitioner was insulted by the manager's comment. The next week, Petitioner confronted Respondent's manager about the comment. Respondent's manager sincerely apologized for hurting Petitioner's feelings. Respondent subsequently reprimanded the manager for her insensitive remarks. On or about April 5, 1999, Petitioner filed a complaint with the Escambia-Pensacola Human Relations Commission. Petitioner alleged that Respondent had engaged in racial discrimination for the following reasons: (a) Respondent's manager made rude comments to Petitioner concerning her biopsy; (b) Respondent's manager called a customer an "ignorant nigger" in Petitioner's presence on one occasion and refused to wait on black customers on other occasions; and (c) Respondent's manager cut Petitioner's hours, then became angry when Petitioner wanted to leave work as scheduled. Petitioner underwent bladder surgery in April 1999. Petitioner's doctor released her to return to work on May 3, 1999. Petitioner returned to work part-time on May 4, 1999. On or about May 20, 1999, Petitioner filed a form entitled Additional Information Form for Potential Charging Party with the Escambia-Pensacola Human Relations Commission. The form alleges that Respondent's staff was harassing her, discriminating against her on the basis of race, and engaging in retaliation by calling her mother's home. Petitioner indicated on the form that she had no direct evidence to support her claim of discrimination. The greater weight of the evidence indicates that Respondent called Petitioner's mother because Petitioner provided Respondent with that number. Respondent made the telephone calls to determine why Petitioner had not called or shown up for work. Petitioner continued to work part-time for Respondent until June 4, 1999. At that time, Petitioner advised Respondent's manager by telephone that she would no longer be able to work due to her health. There is no evidence that Respondent treated Petitioner differently from other employees regardless of their race. The greater weight of the evidence indicates that Respondent did not discriminate on any basis against Petitioner, other employees, or Respondent's customers. At all times relevant to this proceeding, Respondent never employed more than 15 people. In fact, Respondent employed ten full-time, on-site employees and two officer/administrator employees who reside out-of-state. Even with a high turnover of part-time/short-time employees, Respondent did not have a payroll in a single week of more than 15 employees from January 1998 through June 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief based on a lack of jurisdiction. DONE AND ENTERED this 2nd day of April, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Gloria Hackworth 712 West Laura Street Pensacola, Florida 32501 Charles G. Johnson, President Debonair Cleaners, Inc. Post Office Box 55594 Jackson, Mississippi 39296 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether the discipline imposed on Respondent, John Enrico (“Enrico”), by Petitioner, City of Cape Coral (the “City”), was appropriate.
Findings Of Fact Based upon the oral testimony and other evidence presented at final hearing, the following findings of fact were made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated thereto. Enrico is employed by the City as an instrumentation supervisor in the Water Reclamation Division of the City’s Utilities Department. He has been employed for an indeterminate number of years, but is a “director level” employee.1/ The City suspended Enrico for one week without pay pursuant to the City of Cape Coral Code of Ordinances, Article III, Division 7, entitled Discipline of Regular Employees. (Pertinent sections of the Code of Ordinances are set forth in the Conclusions of Law, below.) The alleged violation was primarily based on an email Enrico sent on June 7, 2012. The June 7 email was sent to Jeff Pearson and copied to Brian Fenske. The June 7 email states in its substantive body: Jeff and Brian, As a courtesy, I am affording both of you a small glimpse into a potential future. If you decide to discipline me regarding my communications outside of this department, please find below what is just the beginning of the resistance you will meet in public forums and otherwise. As a friend, not as a contemporary [sic], I strongly advise you both not to pursue your current course of action, as it would be embarrassing and detrimental to the cities [sic] interests. Please feel free to call me and discuss the matter. Distinct Regards, There was other information attached to the June 7 email, including some narrative by Enrico concerning his rationale for sending an earlier email, excerpts from OSHA regulations and the City Code, and other legal information about quasi-judicial matters, freedom of speech, and the International Covenant on Civil and Political Rights. It is not clear whether the additional information was supposed to be support for Enrico’s actions, or a description of the “resistance” the email recipients could expect to meet in the future if they decided to discipline Enrico. In order to better understand the June 7 email, some discussion of the background leading up to the email is necessary. Early in calendar year 2012, the City began looking at a product called Multitrode. The product was to be used within the City’s sewage system to, inter alia, control, monitor, or report data regarding usage. The system would have an impact on the equipment and services overseen by Enrico. Enrico was directed by Fenske to install the program via email dated May 18, 2012. Enrico was apparently leaving for a two-week vacation just hours after he received the email. He attempted unsuccessfully to contact his superiors to express some concerns he had about how the Multitrode was going to be implemented. Enrico felt that the system had some potential to do harm to the water reclamation system if installed or used incorrectly. He was not able to reach his superiors. Failing to reach his superiors, Enrico sent an email dated May 23, 2012, to Jody Sorrels, a civil engineer employed by the City.2/ The email was copied to Jeff Pearson, Brian Fenske, Dennis Morgan, Oliver Clark, Michael Hines, and Margaret Krym (the City Manager). Except for Krym, all of the recipients of the email were within Enrico’s chain of command in his area of employment. Krym was intentionally copied on the email by Enrico because he wanted someone outside his chain of command to know about his concerns. The Utilities Department did not report directly to the City Manager. Enrico had been disciplined previously for violating the chain of command protocols. The May 23 email contained Enrico’s reasons for why he did not think the Multitrode should be implemented. He did not believe the program was appropriate or the best use of the City’s money. He was concerned that if implemented improperly, it might even cause significant problems for the wastewater system. The email suggests that it is in response to an earlier telephone conversation between Enrico and Sorrels. Enrico’s supervisors were concerned that Enrico had intentionally chosen to copy the City Manager on the May 23 email. Inasmuch as Krym was not within Enrico’s chain of command and had no direct connection to the utilities department, the supervisors felt like Enrico was again attempting to circumvent protocol and create dissension within the City. As a result, the supervisors began to discuss what sort of discipline should be imposed against Enrico for sending the May 23 email. After various discussions between Enrico and his supervisors, cooler heads prevailed. A meeting was held on June 19, 2012, wherein Enrico retreated from his stance and acknowledged the impropriety of sending an email to the City Manager concerning issues outside her area of concern. During his testimony at final hearing, Enrico denied that he had acknowledged it was wrong to copy Krym on the email. The most persuasive evidence is that he did acknowledge his error. At the conclusion of the June 19 meeting, the participants shook hands and it was decided that no discipline would be imposed against Enrico. Enrico’s acknowledgement of his error was a key reason for his superiors’ decision not to impose discipline. However, before the June 19 meeting, Enrico issued the June 7 email. That email followed a June 6, 2012, email, wherein Enrico notified Jeff Pearson that he needed to talk to Pearson concerning the Multitrode program. The June 6 email ended with Enrico stating, “I need a response (phone call) from you by 9AM EST today to discuss the matter, or I may be forced to escalate the issue appropriately.” The June 7 email appears to be the escalation he warned Pearson about. The June 6 email references “Mr. Sorrels [sic] unwarranted and unprofessional email response.” Sorrels had sent an email to Enrico concerning Enrico’s May 23 email. Sorrels’ email included the statement, “I have neither the time nor inclination to entertain an email chain concerning your [Enrico’s] metathesiophobia or ideophobia.” Metathesiophobia is the fear of moving or making changes. The origin of the word meta is Greek (meaning to change), thes is Latin (meaning setting) and phobia is Greek (meaning fear). Ideophobia is an anxiety disorder characterized by the irrational fear or distrust of ideas or reason. Enrico denied being afflicted with either condition. On June 5, 2012, Enrico had responded to Sorrels, copying Pearson and Fenske on an email accusing Sorrels of libel and defamation. Enrico’s email said that Sorrels’ failure to verbally apologize and write a retraction of his statements by June 8 would result in Enrico referring the matter to the city attorney and his own attorneys to seek unspecified damages. This exchange was followed by the aforementioned June 6 and June 7 emails. The June 7 email was apparently the last straw for Enrico’s supervisors and they decided to impose discipline against him. After discussions with the human resources department and city attorney, the city manager approved a one-week suspension without pay as the appropriate sanction. Enrico denies the June 7 email was intended as a threat, but that is how it was perceived by his superiors. The language in the email about the “beginning of the resistance you will meet,” and telling his superiors that “I strongly advise you not to pursue your current course of action” are both, however, certainly threatening in nature. Though, Enrico said that he did not threaten physical harm, thus there was no threat at all, his testimony is not persuasive. In defense of his actions, Enrico claims the City violated his free speech rights under the United States Constitution, his fair labor practices rights under the State Fair Labor Law, and his rights under the Florida Whistleblower’s Act, among other things. None of those defenses are germane to the issue in this proceeding, nor does DOAH have jurisdiction over those laws. It is clear Enrico knows his area of employment and may have some legitimate concerns about the Multitrode system that was implemented. He may have personal feelings about the fiscal propriety of the City’s use of the Multitrode system. Enrico may not particularly like his superiors. However, those feelings do not justify the use of threats.
The Issue Whether Respondent violated Section 760.10(1), Florida Statutes, by terminating Petitioner's employment with Respondent because of her race (African-American) and/or color (Black).
Findings Of Fact Petitioner, Charmaine Lewinson-Evans, was employed by Respondent, Gambro Healthcare, Inc., from November 2001 until June 2002, in the position of center director at the Ocoee, Florida, facility (Ocoee facility). The center director was the highest administrative job at the Ocoee facility. Petitioner was hired as an exempt employee, earning approximately $51,000 per year in salary. Petitioner is an African-American female and a member of a protected class. Respondent is an employer, as defined by the Florida Civil Rights Act (FCRA). Petitioner had been hired by Scott Yerger (Yerger), regional director for Respondent. He was Petitioner's immediate supervisor to whom she reported daily. At the time Yerger hired Petitioner, she had represented through the interview, her resume, and application for employment that she had an extensive nursing background, had functioned as a charge nurse, and had supervised professional and non-professional staff, as well as functioned as a team leader. However, at the time of her hire, Petitioner did not have the requisite management skills to run the Ocoee facility. Michelle Lee (Lee) was also employed by Respondent as a center director. Lee is currently the center director of the Orlando Southwest Clinic. She is also an African-American female and has reported to Yerger for the past several years. Center directors had monthly meetings wherein various matters were discussed, including monthly reports that were due to the regional director. These meetings were conducted by Yerger. Petitioner testified that she does not recall ever discussing monthly reports in the center director meetings. Lee testified that there were routine reports due each month by the center directors and that Yerger always went over the reports at each monthly meeting. Yerger testified that there were monthly meetings and that he went over the monthly reports that the center directors were to have prepared, both prior to April and after April 2002. Petitioner's failure to recall ever discussing the monthly reports at the center director meetings is not credible. Lee's testimony is credible. At the time of Petitioner's hire and for a period of time up to April 2002, all center directors had monthly reports due to Yerger by the 15th of each month. Yerger made it clear to the center directors how important it was to have the monthly reports in by the 15th of each month. The monthly reports prepared by the center directors for the regional director were vital to the operation of the clinic and the company. In April 2002, the monthly reports for the center directors changed in format, and Yerger sent out a template to all center directors for use in preparing the monthly reports. In the April 2002 center director monthly meeting, the template for the new monthly reports, which had been the subject of the e-mail previously sent to all center directors, was discussed. Petitioner testified that these monthly reports were derived from financial information she did not have and that it would take up to two days to prepare the reports. In fact, the monthly reports required of the center directors did not require financial information or a review of payroll records in order to prepare them. Any financial information necessary was already on the reports and had been placed there by Yerger. The only information required was clinical in nature and staffing reports. In fact, Petitioner did have access to financial information, if necessary, as well as instruction by Respondent as to financial information. Petitioner's role was to make certain the reports were due on time. Petitioner was also instructed on the items in the center director's checklist by use of a preceptor method. Petitioner's primary preceptor was Lee. Petitioner was instructed on patient statistics, patient liability reports, staff schedules, and erythropoietin (EPO) survey reports at healthcare plan meetings, and she was taught to close payroll and report statistics at the quarterly Quality Assurance (QA) meeting. Lee mentored Petitioner on how to do the monthly and other reports. Petitioner was trained in the same manner as all of the other center directors on the new monthly report format and how to complete the reports. During the time Petitioner was a center director, there was a total of seven center directors working under the supervision of Yerger. Petitioner was the only center director who turned in her monthly reports late without seeking prior approval to be late and without prior notification. The only center director that had difficulty with preparing the monthly reports was Petitioner. In April 2002, Petitioner received a raise from Respondent at the same time that all annual raises were given to employees. Petitioner had been with Respondent for only four months. She had not been employed long enough to warrant a formal review; as such, she was provided a standard raise of 3.5 percent. On April 10, 2002, Yerger received a letter from Rex Buchanon, M.D., medical director, indicating serious concerns about the direction of the Ocoee facility managed by Petitioner. After receipt of the letter, Yerger spoke with Petitioner about the contents. Improvement was immediately required of the Ocoee facility and Petitioner. Yerger offered to oversee the responsibilities for corrective actions and staff interviews. He directed Petitioner to focus on clinical issues. During this conversation on April 10, 2002, Yerger provided Petitioner with a series of items to complete and perform. These included cleaning and organizing her office in preparation for the visit by the Divisional President Scott Bartos; establishing a patient services committee to deal with patient complaints; completing the paperwork for Suzanne Giordano with Human Resources; locating Susan Bittner's transfer paperwork; and having the staff rounding reports pulled and ready for a Friday meeting with Elpidio Abreu, M.D. Dr. Abreu was coming to the Ocoee facility to specifically address the issues raised in the letter from Dr. Buchanon. Yerger asked Petitioner, the night before the scheduled meeting with Dr. Abreu, to pull the rounding reports and some of the QA information for him and Lee. Lee was subbing for Petitioner, who was not going to be present at the meeting. When Yerger, Lee, and Dr. Abreu arrived for the meeting the following day, no reports had been pulled, and Dr. Abreu had to wait while Lee and Yerger pulled the reports. Following the meeting on April 10, 2002, Petitioner did not clean up her office or remove the post-it notes, boxes, or clutter as requested. Petitioner did not set up the patient services committee as directed by Yerger. Five of the seven items mandated by Yerger were not completed by Petitioner by early May 2002. On May 8, 2002, Yerger held a meeting with Petitioner and went over matters that needed correcting and improving. Yerger considered this a Performance Improvement Plan. Yerger told Petitioner that although she had started out meeting expectations, she was falling behind. Yerger discussed with Petitioner her lack of follow through with tasks and initiatives that Respondent put out; her failure to complete them; her failure to meet the deadlines provided; and her failure to ask for any assistance from Yerger or to notify him of any difficulties with the reports. He also advised her that she continued to have difficulties in interactions with the staff and that she needed to maintain a professional manner with the staff at all times. He also reminded her that her body language was such that she would cross her arms and shake her head while staff were talking or giving their side of the story and, thus, she was not creating an environment for them to discuss issues. He also stated that the corrective actions process was supposed to be productive and that she was creating an opposite effect by her actions. Petitioner was given 30 days to make improvements in the areas outlined in the May 8, 2002, conversation. Contrary to Petitioner's assertions, Yerger did not ask Petitioner during the May 8, 2002, Performance Improvement Plan discussion to change places with Suzanne Giordano (Giordano). Such would have been highly ineffective and counter-productive to flip-flop positions at Ocoee facility like what was described by Petitioner in her testimony. Yerger did inquire in the May 8, 2002, meeting whether Petitioner was happy in her job as center director and whether she wanted to consider a different role in the company, but not in management. Following the Performance Improvement Plan meeting of May 8, 2002, Petitioner did not show improvement in the areas discussed. After the meeting, Petitioner continued to submit late reports, incomplete reports, and wrong reports and did not provide notification in advance of the reports being late. Petitioner acknowledged that her performance in the preparation of reports was not proficient and that she was still submitting the reports late, even after the meeting. After the Performance Improvement Plan discussion of May 8, 2002, Petitioner's attitude deteriorated. She became angry and upset and focused only on Yerger's not thinking she could perform her job. Other workers thought she was rude and abrasive. Yerger personally observed her being rude to other people and co- workers. Even when the reports were coming in late or were incomplete or wrong, Yerger would call Petitioner about this fact. However, no improvement of Petitioner's performance took place. Yerger did not have any difficulties with other center directors over performance, late reports, incomplete reports, or wrong reports. Several of the remaining seven center directors were African-American. Yerger received a written and verbal complaint from Giordano, charge nurse at the Ocoee facility, regarding Petitioner's request for Giordano to back date short-term care plans in violation of Respondent's internal policies. Anyone that is required to correct an entry in the short-term care plans is required to mark through the entry with a single line and note the "error" and put one's initials on the correction with a date. It would be improper and considered a falsification of the records to back date a document or care plan. The care plans required a nurse's signature on them contemporaneous with the date the action was taken, in order for the care plans to be complete. Several of the care plans containing the signature or initials of Petitioner were incomplete and had corrections not properly noted, in violation of Respondent's policy. Petitioner alleged that there had been a discriminatory motive in the assignment of Lee as her roommate for the center director conferences to be held in Nashville, Tennessee, and that Yerger was responsible. However, the evidence established that Yerger had nothing to do with the assignment of roommates at the Nashville conference held in June 2002. The roommate assignments were not racially motivated but were designed to accommodate the buddy system that had existed between Lee and Petitioner. After Petitioner did not show improvement following the 30-day period after May 8, 2002, Yerger, in conjunction with Loretta Castillo (Castillo), divisional human resources manager for the Southeastern Division, via telephone, discussed with Petitioner on June 21, 2002, her lack of improvement. In this conference, Petitioner admitted to Yerger that she had not been performing her job as center director up to Respondent's standards. It was determined that Petitioner would be terminated from her position as center director. During this meeting, Petitioner never complained or raised that any action by Respondent or Yerger was racially motivated. The decision to terminate Petitioner was based on Petitioner's failure to show improvement. The areas of poor performance were noted in the memorandum prepared by Yerger dated June 21, 2002, and executed by Petitioner on June 25, 2002. Petitioner had been informed she needed to have demonstrated improvements in her leadership and management skills. The memorandum outlined that Petitioner failed to demonstrate improvement and that she continued to struggle in providing leadership to employees and patients. Petitioner had recently reacted to an employee-related situation improperly by suspending an employee without further investigation or counseling with Human Resources or Yerger prior to the suspension. Petitioner's decision was based on her belief that the employee had been insubordinate to her, which was not the case. Petitioner had demonstrated poor judgment and failure to make sound decisions. Further, Petitioner had not demonstrated improvement in the areas covered by her Performance Improvement Plan of May 8, 2002. She had been unsuccessful in bridging the professional relationship with the medical doctors and staff. Yerger continued to hear about Petitioner's lack of professionalism. Based on Petitioner's inability to manage the Ocoee facility and to correct outstanding issues identified on May 8, 2002, she was terminated on June 25, 2002. The decision to terminate Petitioner was not based on her race or color, or any other impermissible factor. Petitioner was aware that Respondent had a policy for employees who felt that actions of an employee were racially motivated and for reporting any such complaint. During her employment with Respondent, Petitioner never availed herself of Respondent's policy for complaints regarding discrimination against any employee. Prior to her termination and the filing of the Equal Employment Opportunities Commission (EEOC) and FCHR charge, Petitioner never complained to anyone that any action against her had been the result of any racial animus by Yerger, nor had she expressed any such beliefs to Lee. Petitioner had been offered the opportunity of continuing to work for Respondent, but in a non-management position and not at the Ocoee facility. Petitioner declined such an option. Petitioner presented no evidence of any comparators or other center directors in regards to their treatment, performance, or handling by Respondent or Yerger. Petitioner did not present any evidence of racial motivation by Respondent during her case in chief; nor did Petitioner present any evidence of any comparators who were white who were treated any differently as a result of similar conduct on the part of Petitioner. Giordano was not a valid comparator of Petitioner since she was a charge nurse, a non- management hourly employee. Petitioner had no knowledge nor did she present any evidence of how Yerger treated the other center directors, how well they performed their jobs, how well they prepared the monthly reports, their leadership and management skills, who they may have roomed with during the Nashville conference, or that she was treated differently in regards to being able to hire employees. In fact, Petitioner testified that she had been authorized to hire employees, contrary to her EEOC charge statement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES Petitioner's Charge of Discrimination and dismisses her complaint. DONE AND ENTERED this 8th day of December, 2003, in Tallahassee, Leon County, Florida. S 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 8th day of December, 2003. COPIES FURNISHED: Charmaine Lewinson-Evans 9165 Pristine Circle Orlando, Florida 32818 John C. Stivarius, Jr., Esquire Epstein, Becker & Green, P.C. Resurgens Plaza, Suite 2700 945 East Paces Ferry Road Atlanta, Georgia 30326-1380 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 Whether the agency statement listed on the Department of State's (DOS or the Department's) webpage under "Frequently Asked Questions" regarding translation of petitions for constitutional amendment is an unpromulgated rule.
Findings Of Fact DOS has general supervision and administration of Florida's election laws. As Florida's chief election officer, the Secretary of State has a responsibility to obtain and maintain uniformity in the interpretation and implementation of the election laws. This function is accomplished through the Division of Elections. Hometown Democracy is a Florida corporation and political action committee. It is the sponsor of a citizen's initiative to amend the Florida Constitution, with an approved petition serial number 05-18 (the Petition). DOS is responsible for the content of the website at http://election.dos.state.fl.us/initiatives/faq.shtml. The website contains a section entitled "Frequently Asked Questions." One of the questions (and answer) included on the website is the following: Can we print our petition in Spanish? Yes. However, the Division of Elections does not proof it; that is the committee's responsibility. On or about March 24, 1994, the Division of Elections issued Advisory Opinion DE94-06. In that Advisory Opinion, the Division stated in part: As to your second question, a Spanish translation of a previously approved initiative petition in English need not be submitted in writing to the Division for format review. The Division has neither the responsibility nor the authority to verify that the wording of the Spanish translation is the same as the English version. That responsibility rests with the sponsor of the initiative. To reduce potential differences in interpretation that could result from a language translation, however, it is suggested that the Spanish language version be printed on the reverse side of the approved English language form. DOS provided the text of proposed constitutional amendments, including citizens' initiatives, to various Florida newspapers for publication prior to the 2004 general election. The citizens' initiatives were those for which the requisite number of signatures had been collected and which had been approved for placement on the ballot. DOS has published the text of proposed constitutional amendments being placed on a statewide ballot in both English and Spanish, including citizens' initiatives where the sponsor has not submitted a Spanish version of the petition to the Department of State for review. On or about September 22, 2005, Floridians for Stem Cell Research and Cures, Inc., submitted a Spanish version of a citizens' initiative, serial number 05-22, to the Division of Elections. On December 13, 2005, the Division of Elections responded to the Floridians for Stem Cell Research and Cures, Inc., that it would not undertake review of the format of the Spanish version of citizens' initiative serial number 05-22. The Department of State has adopted Florida Administrative Code Rule 1S-2.009, "Constitutional Amendment by Initiative Petition." The Rule was adopted to implement Sections 100.371 and 101.161, Florida Statutes, and has been in existence in some form since 1979. Relevant portions of the current version of the Rule state: 1S-2.009 Constitutional Amendment by Initiative Petition. Submission of Initiative Petition. Any proposed initiative amendment to the State Constitution to be placed on the ballot shall be submitted by the sponsoring political committee to the Division of Elections for approval as to format prior to circulation of the proposed initiative amendment. Such submission shall be in writing and shall include a copy or a facsimile of the proposed form to be circulated. No initiative petition form for signatures may be circulated unless approved by the Division of Elections. Requirements and Approval of Initiative Form. The Division shall review the initiative petition form solely for sufficiency of the format and shall render a decision within the seven (7) days following receipt. The Division shall not review the petition form for legal sufficiency. The format of the petition form is deemed sufficient only if the petition form: Is printed on separate cards or individual sheets of paper. The minimum size of such forms shall be 3 inches by 5 inches and the maximum shall be 8 1/2 inches by 11 inches. Is clearly and conspicuously entitled at the top of the form "Constitutional Amendment Petition Form." Includes adequate space for the signee's name, legal residential street address, city, county, date of birth, signature, and date of signature. Contains the ballot title that shall not exceed 15 words and the ballot summary of the proposed amendment or other public measure that shall not exceed 75 words in length as prescribed in subsection (4). Conspicuously contains the full text of the amendment being proposed including the article and section being created or amended, preceded by a ballot title and ballot summary. If the text must be printed on both sides of the form, it shall be clearly indicated that the text is continued or begins on the other side. Contains space for only one elector's signature. The Division will not approve petition forms providing for multiple signatures per page. Is marked, in accordance with Section 106.143, F.S., governing political disclaimers, with "paid political advertisement" or contains the abbreviation "pd. pol. adv." and identifies the name of the sponsoring political committee, and the name of the entity paying for the advertisement if different from the name of the sponsoring political committee. Contains space, in accordance with Section 106.19(3), F.S., for the name and address of a paid petition circulator, in the event the petition form is gathered by a paid petition circulator. In 2006, Rule 1S-2.009 was amended to include the following subsection: (7) Changes. Any change to a previously approved petition form shall be submitted to the Division of Elections for review. No person or entity other than the sponsoring political committee of the previously approved petition form can submit a change or changes to the previously approved petition form. The Division of Elections must approve any material change to a previously approved petition form. A material change constitutes a change in the wording of the text of the proposed amendment, the ballot title, or ballot summary, or a change in punctuation or layout, or a change to the political disclaimer. Any material change submitted for approval to a previously approved initiative petition constitutes a request for approval of a new petition form and shall be assigned a different serial number upon approval by the Division of Elections. [Emphasis supplied.] The description of a "material change" contained in subsection (7) does not include a translation of a previously approved citizens' initiative. After the adoption of subsection (7), a political action committee seeking to circulate a translation of a previously submitted citizens' initiative would need to submit the translation to the Division because it would constitute a change, but a translation, standing alone, would not constitute a material change. Hometown Democracy hired a professional translation service to prepare a certified Spanish translation of the Hometown Democracy Petition. Hometown Democracy made an inquiry of the Division of Elections to determine the accuracy of the Spanish translation of the Petition. On August 30, 2006, Hometown Democracy submitted the Spanish translation of the Petition, seeking approval to circulate it for signatures of registered voters and for verification by Supervisors of Elections in order to qualify for the general election ballot. On or about September 8, 2006, the Director for the Division of Elections responded to Hometown Democracy's August 30, 2006, letter and stated in part: The format of the Spanish version of this petition appears to follow the format of the originally approved petition, with no evident material change. No review of the legal sufficiency of the text of the proposed amendment has been nor will be undertaken by the Division of Elections. The Division has never approved a Spanish translation of an approved citizens' initiative petition form. As of the date of hearing, there has been no challenge to the accuracy of the translation secured by Hometown Democracy.
The Issue Whether Respondent, First Coast Technical College (Respondent) retaliated against Petitioner, Gregory R. Lulkoski (Petitioner) in violation of the Florida Civil Rights Act of 1992 (FCRA), section 760.01-760.11, Florida Statutes?1/ Secondary issues raised by Respondent are whether the St. Johns County School Board (School Board) is immune from Petitioner’s allegations, and, if not, whether the School Board was Petitioner’s employer during the relevant period.
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 School Board by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). A charter technical school is a creature of Florida statute, distinct from school boards and districts, including those school districts in which they are located, which act as the sponsor of the school. FCTI and the School Board entered into a charter which governed the operating relationship between them. The last operative charter between FCTI and the School Board became effective July 1, 2013. The School Board was the sponsoring entity of FCTC under the charter. The School Board had no involvement in the day to day operations of FCTC when it was operated by FCTI. FCTI had its own management team and board of directors. FCTI had its own articles of incorporation, employment handbook, organizational structure, management plan, human relations (HR) director and department, and its own legal counsel. FCTC’s president, Sandra Raburn-Fortner, entered into a contract of employment with FCTI. No one from the School District is on FCTI’s organizational chart. FCTI and FCTC management, and not the School Board, were responsible for the daily operations of FCTC and all personnel matters of FCTC employees. FCTI had its own procedure in its employee handbook for reporting discrimination and harassment. FCTC employees were designated as School Board employees solely for wage payments, benefits, and collective bargaining purposes under the charter. For this reason, FCTC employees received checks and tax documents from the School Board and the School Board remitted contributions to the Florida Retirement system on their behalf. FCTI reimbursed the School Board for these pass-through expenditures, and the School Board charged FCTI a fee for this service. The School Board’s only involvement in personnel- related decisions of FCTC was the ministerial act of the School Board superintendent signing off on employment decisions made by FCTI officials, which were then placed on the consent agenda of the School Board to be approved at its next meeting. This process--which was necessary given the fact that FCTC employees were designated as School Board employees under the charter for wage payment, benefits, and collective bargaining purposes-- involved ensuring the statutory requirements to take an employment action were met, but did not involve second-guessing the merits of the personnel decisions made by FCTI. Indeed, the charter expressly provides that the School Board assigns and FCTI assumes and retains all responsibility for FCTC employees, including responsibility for the selection and discipline of employees, and all other aspects of the terms and conditions of employment at FCTC. Petitioner submitted his application for employment to FCTC. Petitioner had an FCTC e-mail address and not a school district e-mail address. The School Board was the signatory to some grant applications for funding to be expended at FCTC, however, FCTI was responsible for fulfilling the obligations relating to the grant awards, and appropriately utilizing those funds at FCTC. The School Board was not involved in the day to day administration of programs funded by those grants at FCTC. During the spring of 2016, district personnel became aware of financial irregularities at FCTC through its monitoring of FCTI’s unaudited financial statements. Under state statute, the School Board was required to take certain actions as the sponsor of FCTC when put on notice that FCTC might be in a deteriorating financial condition. The School Board investigated those irregularities and found significant financial mismanagement and budgetary shortfalls at FCTC under FCTI’s administration. On May 3, 2016, the School Board declared that the school was in a deteriorating financial condition. This declaration triggered statutory obligations on the part of the School Board and FCTC to develop a corrective action plan to address these issues. On May 26, 2016, the School Board served a notice of financial emergency stating that it had reason to believe that there was a financial emergency at FCTC and that there was no way to save FCTC other than to terminate the charter and begin operating the programs at FCTC itself. The School Board Superintendent sent a letter to FCTI’s board on June 8, 2016, detailing the findings of the School Board’s investigation into FCTC and the financial issues plaguing the school. On June 14, 2016, FCTI’s board voted to terminate the charter with the School Board and cease operating the programs at FCTC, effective June 31, 2016. On June 15, 2016, the School Board voted to approve an agreement to terminate the charter with FCTI and to take over the programs at FCTC effective July 1, 2016. As part of this transition of the responsibility for operating FCTC, the School Board and FCTI entered into an agreement specifically stating that any liabilities of FCTC arising prior to July 1, 2016, would not be assumed by the School Board. Just before the School Board began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed his Complaint with FCHR. In that Complaint he alleges that he was retaliated against for engaging in protected activity. Petitioner specifically listed two discrete instances of alleged protected activity in his Complaint: I am being discriminated against on the basis of retaliation by my employer. I began employment with Respondent on 11/7/2007, as a Case Manager and most recently as a Grant Writer. On 5/21/2015, I filed a formal grievance due to harassment and nepotism; creating a hostile work environment. This grievance was investigated internally but I never received a response. On 6/30/2015, I filed a second grievance after experiencing retaliation by my Supervisor, Renee Stauffacher. Up to date, both grievances remain unanswered and I continue to experience harassment and retaliation. Petitioner’s claim of discrimination was based solely upon a charge of retaliation. Petitioner did not allege that he was discriminated against based upon race, religion, age, marital status, or any other protected class. Petitioner filed the first grievance referenced in the FCHR Complaint on May 21, 2015, alleging that FCTC’s then- president, Sandra Raburn-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 over e-mail. 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 does not allege in this grievance that he was mistreated by any School Board employee, and he did not direct the grievance to anyone at the School Board. Petitioner filed this grievance with FCTC’s human resources office. In his second grievance, filed June 26, 2015, Petitioner alleges that Renee Stauffacher, his supervisor at the time, retaliated against him for naming her in his May 21, 2015, grievance by giving him an evaluation on June 26, 2015, that contained some information or statements with which he disagreed, even though he thought the evaluation itself was good and that he was given high numbers. No one from the School Board was involved in this evaluation. When Ms. Stauffacher gave Petitioner this evaluation, she was an employee of FCTC and not the School Board. Petitioner alleges that Sandra Raburn-Fortner retaliated against him for his first two grievances by giving him another position. That change, from “Career Pathways Supervisor” to “Grant Writer” occurred on or about August 4, 2015. Petitioner’s salary did not change. At this time, Ms. Raburn-Fortner, who had a contract with FCTI, was an FCTC employee, and not an employee of the School Board. Later, in the Spring of 2016, Petitioner submitted numerous other grievances, a total of nine more, to FCTC officials and FCTI’s board. Petitioner only introduced his ninth and tenth grievances into evidence at the final hearing. Both are similar. Those grievances, both filed on June 13, 2016, allege that Ms. Raburn-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. Both grievances state that Petitioner believed he was disclosing violations of equal employment opportunity law. During the time that Petitioner submitted these additional grievances, the School Board was in the process of investigating the financial irregularities at FCTC. Petitioner submitted some of these grievances to School Board officials, who told him he needed to take his concerns to the FCTI Board who was still operating FCTC at the time pursuant to the charter. None of Petitioner’s complaints, including those relayed to the School Board and its officials, concerned complaints of discrimination based on a protected class, or retaliation for complaining about discrimination based on a protected class. Petitioner stated he believed he was reporting equal employment opportunity violations in alleging Ms. Raburn-Fortner was hiring or favoring friends and family, because this action prohibited members of many different protected classes from getting a fair shot at positions that would go to family, friends, or associates of Ms. Raburn-Fortner. Petitioner admits all protected classes were treated similarly in this regard and that all protected classes lacked equal access to positions if they were not friends or family of Ms. Raburn-Fortner. While Petitioner does not allege any discrete instances of retaliation that occurred after his title change, Petitioner also contends that he was harassed, including that he felt harassed about how data at the school was handled, the pressure put on him by financial difficulties brought about by the administration of FCTI, and that he was given the cold shoulder by peers. By May 2016, Ms. Raburn-Fortner was no longer working at FCTC.
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 5th day of September, 2018, 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 5th day of September, 2018.
