The Issue The issue for determination is whether Respondent, as a result of his plea of nolo contendere to the offense of theft, failed to maintain the good moral character requisite to continued certification as a law enforcement officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is Darrian S. Paige, holder of Certificate Number 14-85-502- 04. He is certified as a correctional officer. On May 26, 1989, Respondent and his wife, accompanied by their two year old son, were shopping in Macclenny, Florida. They entered a commercial establishment known as Shoe City. A store clerk, Stacy Davis, observed Respondent enter Shoe City, and, in keeping with the custom of the store, observed that Respondent was wearing a worn pair of shoes similar to boat shoes or "dock siders." After entering, Respondent went to the back of the store by himself. In a few moments he reappeared from the back of the store and walked toward the store's front entrance. Because he walked close to the store clerk's position behind an over- hanging counter, Davis was unable to see Respondent's feet as he walked toward the front entrance. However, as Respondent reached the store's front entrance, Davis was able to observe that Respondent was now wearing what appeared to her to be a pair of new shoes. She saw Respondent walk into a nearby Wal-Mart store. Davis went to the back of the store where Respondent had been. She discovered a pair of old shoes in a shoe box and immediately went to another store employee and expressed her belief that Respondent had stolen a pair of new shoes. Law enforcement personnel were contacted and two officers from the Baker County Sheriff's office soon arrived. Davis relayed her observations to the officers and went with them to Wal-Mart where she pointed out Respondent. Respondent was wearing a new pair of shoes. Although Respondent informed the sheriff's deputies that he was a correctional officer and had not stolen any merchandise, he was arrested. On June 22, 1989, County Court Judge D.L. Griffis withheld adjudication of guilt and imposition of sentence with regard to Respondent's nolo contendere plea to the charge of theft of the shoes. Respondent paid a total amount of approximately $25. This sum represented restitution for the shoes in question and payment of court costs. At the final hearing, Respondent maintained he purchased the shoes he was wearing at the time of his arrest from a sidewalk vendor after he left Shoe City and before he entered the Wal-Mart Store. Respondent claimed that he put his old shoes in his automobile. Due to his demeanor while testifying, Respondent's testimony is not credited. Respondent's wife testified at the final hearing and attempted to corroborate her husband's story regarding the sidewalk vendor encountered after the couple left Shoe City. Her demeanor while testifying, as well as conflicts between her and her husband's testimony, 1/ prevent her testimony from being credited.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes; suspending his Certification for a period of six months; and, upon completion of the period of suspension, placement of his Certification on probationary status for a period of two years upon such terms and conditions as may be deemed appropriate by Petitioner. RECOMMENDED this 18th day of July, 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1991.
The Issue The issue is whether Respondent discriminated against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner, Mike Ostrom, was employed by Respondent, Beachers Lodge Condo Association, Inc., as a maintenance man for approximately seven years until his termination on March 23, 2012. Respondent is a Florida condominium association, located at 6970 A1A South, St. Augustine, Florida 32080. James W. Gilliam is the licensed community association manager for Respondent, is 78 years old, and has many years of property management experience. Petitioner filed a Complaint of Discrimination on the grounds of his age (55) and disability (eye surgery) with the Florida Commission on Human Relations (Commission) on March 23, 2012. Following an investigation, the Commission issued a Notice of Determination: No Cause on September 27, 2012. Petitioner filed a timely appeal of the Commission's determination on October 19, 2012. The petition was referred to the Division of Administrative Hearings, and a final hearing was conducted on December 11, 2012, in St. Augustine, Florida. Petitioner's work as a maintenance man involved numerous duties, including general maintenance to the grounds and buildings, painting, repairing balconies and other structures not requiring a general contractor, electrical work, and maintaining the pool. Petitioner worked alone much of the time. Prior to the arrival of Mr. Gilliam as the association manager, Petitioner had a good working relationship with the former manager, Steve Burdick. Under Mr. Burdick's supervision, Petitioner had more freedom to perform his maintenance work without what he calls "interference." Mr. Gilliam is more of a "hands on" supervisor than the previous manager had been. Petitioner was resistant to the constant checking on his work by Mr. Gilliam. He believed Mr. Burdick recognized his experience and left him alone to perform his daily tasks with passive supervision. Mr. Gilliam, as a new manager with Respondent, was given instruction by the association president, Joanne Dice, on behalf of the board of directors, to more closely supervise the maintenance staff. In Petitioner, Mr. Gilliam saw a good employee who "liked to do things his way." Mr. Gilliam estimates that Petitioner would do about 90 percent of the assigned tasks differently from how he would prefer them done. Mr. Gilliam tried to get Petitioner to come around to his way of doing things because he was responsible to the board of directors for properly maintaining the property. Mr. Gilliam believes he did not harass Petitioner, but does remember upsetting him on one occasion when he called him "Michael" rather than his given name of "Mike." After Petitioner made clear the fact that he preferred to be called "Mike," Mr. Gilliam never called him "Michael" again. Mr. Gilliam gave clear instructions as to how he expected the tasks assigned to Petitioner be performed, yet Petitioner continued to do things his way. Mr. Gilliam often had a certain order or priority for performing required maintenance tasks which Petitioner regularly failed to follow. After Petitioner had eye surgery and was placed on limited duty by his physician, Dr. Oktavec, Mr. Gilliam confirmed the light detail in a letter dated March 19, 2013, so that Petitioner would not suffer further injury to his eye through over exertion. Ms. Dice was elected president of the board of the condo association in 2010. She lives in Gainesville, Florida. On three separate occasions (July 26, October 27, and November 3, 2011), she drove from Gainesville to St. Augustine to discuss Petitioner's complaints of alleged harassment by Mr. Gilliam. She believed that Mr. Gilliam's job was to establish priorities and assign tasks to be completed. Sometimes, due to inclement weather and other factors, priorities would have to shift. Ms. Dice observed that Petitioner complained that he did not need anyone to tell him how to perform his job. She noted that Beachers Lodge Condominiums is a large property that requires the cooperation of all employees along with the board of directors to maintain it to the standards expected by the owners and their guests. For a year, Ms. Dice and Mr. Gilliam tried to help Petitioner improve his performance, eliminate any deficiencies, and brighten his attitude, all to no avail. A few months after the final meeting Ms. Dice held with Petitioner, she agreed with Mr. Gilliam that Petitioner's behavior could no longer be tolerated and that he should be terminated for cause. The March 23, 2012, letter from Mr. Gilliam terminating Petitioner's employment was explicit in its reasons for termination. The letter offered 13 reasons for the termination and addressed all charges made by Petitioner against Mr. Gilliam. The reasons may be summarized as follows: On October 11, 2011, Mr. Gilliam gave Petitioner a list of daily and weekly duties which he acknowledged having received. Petitioner complained about receiving such a list. On October 25, 2011, Mr. Gilliam gave Petitioner a disciplinary letter for having falsified his timecard on October 19, when Mr. Gilliam observed Petitioner driving down A1A at a time he said he was still at work. Petitioner requested owners send letters to Mr. Gilliam that he was giving Petitioner too much direction and that Petitioner was doing a good job, another indicator of not taking direction. On October 14, 2011, Petitioner did not complete a washing task he was assigned, but went on to perform another task he deemed more important. Again, on March 13, 2012, Mr. Gilliam issued Petitioner a letter addressing corrective action for not following instructions. Petitioner accused Mr. Gilliam of jerking him by the coat in front of witnesses. No witnesses came forward to support this claim. Mr. Gilliam listed issues with Petitioner's work ethic in the March 13, 2012 letter. Petitioner had broken a floor during cleaning which was cited in the March 13 letter. Another refusal to take guidance was listed in the March 13 letter. Mr. Gilliam advised Petitioner that that the failure to correct his behavior concerning following direction would lead to "additional correction." Petitioner refused to sign this letter. Petitioner had been previously advised that he was to engage in light activity based upon his physician's prescription, and as set forth in a March 19 letter from Mr. Gilliam. On March 23, 2012, a St. Johns County deputy came to the office of the association and advised Mr. Gilliam that Petitioner had filed a complaint for assault against him, which the deputy determined not to be a criminal matter. Petitioner applied for unemployment compensation after receiving the March 23 letter terminating his employment. His claim was denied by the Department of Economic Opportunity, since he had been terminated for misconduct. He is currently in the process of losing his home and has only found work with his church for 7-8 hours a week. Petitioner admits that he stood up for himself when he disagreed with Mr. Gilliam by cursing him, calling him names, and writing complaint letters to condo owners and board members. Petitioner claims he was discriminated against by his 78-year-old boss, Mr. Gilliam, who allegedly said, "if you were 30 and not 50, you could do this job better." This alleged statement was not corroborated by any witnesses and was denied by Mr. Gilliam. Petitioner alleges that Mr. Gilliam discriminated against him by making fun of him after he had eye surgery. The letter dated March 19 shows that Respondent recognized the eye injury and surgery and warned Petitioner to engage in only light duty as ordered by his doctor. No witnesses testified to the alleged derogatory comments concerning Petitioner's vision. Respondent was never made aware of any claim of discrimination against Petitioner based upon his alleged disability. Their understanding was that Petitioner needed surgery on his eyes which was performed successfully by his physician and corrected the problem. Petitioner was not replaced by a younger employee when he was terminated. Respondent continued with just one full-time maintenance man and two part-timers. The roster of employees for Respondent shows that the remaining maintenance men are ages 56, 45, and 23. Petitioner is seeking $800,000 in lost wages, yet provided no evidence to support an award of that magnitude should he be successful in his discrimination claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 9th day of January, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 9th day of January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James W. Gilliam Beachers Lodge Condo Association, Inc. 6970 A1A South St. Augustine, Florida 32080 Mike Ostrom 900 South Rodriguez Street St. Augustine, Florida 32095 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did Respondent, Office of Criminal Conflict and Civil Regional Counsel (Regional Counsel), discharge Petitioner, Christine Leinonen, because of a handicap in violation of section 760.10(1)(a), Florida Statutes (2012)?1/
Findings Of Fact Based on the evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Regional Counsel is a state agency that provides legal representation to individuals whom a public defender's office cannot represent because of conflicts. The office represents indigent criminal defendants, parents and guardians in child dependency proceedings and parties in Marchman (involuntary treatment for substance abuse) and Baker Act (involuntary commitment for mental illness) cases. Ms. Leinonen is a former police officer who has been a member of the Florida Bar since 1999. In August of 2012, she had been working as an attorney with Regional Counsel for approximately two and one-half years. Ms. Leinonen represented parties in dependency proceedings for Regional Counsel. Her employment with Regional Counsel, until her discharge, was satisfactory. She also had never been the subject of complaints by clients, opposing counsel, witnesses, judges, or other court personnel. Regional Counsel discharged Ms. Leinonen on August 16, 2012. Ms. Leinonen's supervisor at the time and all times relevant to this matter, Elisabeth Lewis, made the termination decision. Ms. Lewis is now deceased due to cancer. The interactions that ended with Ms. Leinonen's termination began in April 2012. Ms. Leinonen is a long-distance runner. Sometime in April 2012, Ms. Leinonen noticed a pain that she attributed to a bruised heel. Ms. Leinonen completed the Boston Marathon on April 16, 2012. The bruised heel did not cause her pain or problems during the race or in her training. Ms. Lewis and other co-workers knew that Ms. Leinonen was a runner and had completed the Boston Marathon. Ms. Leinonen described the pain from her bruised heel as comparable to a toe blister. It was not disabling. But some shoes aggravated the pain. Ms. Leinonen identified five pairs of shoes that she could wear comfortably without pain. Three pairs were sandals. Two pairs were sandal-like with partially enclosed toes. Two pairs of the sandals had heels of approximately one inch. One pair had a one and one-half inch heel. The other two pairs of shoes had heels of about one-half an inch. Ms. Leinonen saw her physician, Marta Escobar Klapprot, on May 25, 2012. She reported completing the Boston Marathon and feeling well. She denied having any acute complaints, including any complaint about her bruised heel. On May 25, 2012, Ms. Leinonen saw Dr. Eberto Pineiro to follow up on restless leg syndrome problems. At that visit, she also reported completing the Boston Marathon and doing well. Ms. Leinonen reported some weakness in her legs, but did not report any problems attributed to a bruised heel. Ms. Leinonen twice signed documents acknowledging receipt of the Regional Counsel's dress code guidelines, once on January 12, 2010, and once on June 5, 2012. The phrase "dress code guidelines" refers to the Appearance section of the Regional Counsel's Employee Handbook. The dress code guidelines state that "[e]mployees are expected to be neat and clean in appearance and dress in appropriate business attire . . . ." The policy explicitly permits "dress or casual shoes including sandals" for women. It prohibits "sweat pants, shorts (including business shorts) or leggings" for men and women. From mid-June through August 2012, of the five pairs of shoes she had been wearing, Ms. Leinonen could only wear the pair she refers to as the Avon toner sandals without pain from her bruised heel. Although she refers to the toner sandals as "Avon," they are marked "Curves." The "toner sandal" sole is made of a soft, spongy material with a contoured foot bed and a heel height of approximately one inch. The sandal has two straps. One broad gray strap, trimmed in violet, rises from the rear of the shoe and crosses over the front of the ankle. The other strap, gray and unadorned, begins in the same place as the ankle strap and flows toward the front of the shoe to join the sole in a traditional sandal's thin strap that fits between the great toe and the adjacent toe. The sole of the sandal is light gray on top and dark gray on bottom with a strip of violet, matching the trim of the broad ankle strap, separating the soles at the rear half of the sandal. Sometime in early August, Ms. Leinonen walked by Ms. Lewis who was outside taking a cigarette break with Kim Kikta. Ms. Kikta was the supervisor of the administrative support staff. She had no supervisory authority over Ms. Leinonen. That day Ms. Leinonen was wearing the toner sandals. Ms. Lewis said, "Christine, what's with the shoes?" Ms. Leinonen replied that they were therapeutic. Ms. Lewis said, "Get them off." Ms. Leinonen proceeded to her car. For the next week or so, Ms. Leinonen did not wear the toner sandals, wearing wedge-heeled shoes instead. She iced her heel periodically during the day when in her office. On Monday, August 13, 2012, Ms. Leinonen worked a nine and one-half hour day, on her feet the entire day, wearing a heeled shoe. At the end of the day, she experienced shooting pains going up her foot. The next day was a seven-hour day on her feet. Ms. Leinonen wore the toner sandals. The following day, Wednesday, August 15, 2012, Ms. Leinonen wore the toner sandals again because she was in pain, and her ability to walk was impaired. She also wore a vintage, plaid garment that she had owned and worn in professional contexts for over 20 years. The garment is a loose-fitting knee length item with buttons on one side. The garment is not a full skirt. It is a divided skirt similar to shorts with a broad flap in the front that makes it indistinguishable from a skirt from the front. From the rear, an observer can see that the garment is divided, like shorts. Depending upon the fashion era, garments like this one have been known as "skorts" or "culottes." Ms. Leinonen had worn the garment to work at the Regional Counsel's office many times, to court, and to mediations without comment or criticism. Ms. Leinonen's supervisor, Ms. Lewis, was not in the office on August 15, 2012. On that day, Ms. Kikta observed Ms. Leinonen wearing the plaid garment. Ms. Kikta walked into Ms. Leinonen's office and, in her words, "confronted" Ms. Leinonen and told her that the plaid garment was a pair of shorts and that she was not allowed to wear it at the office. Credible convincing evidence does not establish that Ms. Kikta had any supervisory authority over Ms. Leinonen or other attorneys. Ms. Leinonen disagreed with Ms. Kikta's conclusion that the garment was a pair of shorts. They argued briefly. Ms. Leinonen, who was in pain and being corrected by an individual who was not her supervisor, was irritated and displayed the irritation in the tone and volume of her voice. Ms. Kikta did not refer to Ms. Leinonen's toner sandals in this encounter. Ms. Kikta was upset. She told attorney Amilee Kalapp about her confrontation of Ms. Leinonen. Ms. Kalapp was a misdemeanor attorney who had been working with the Regional Counsel for approximately five weeks. Weeks before, Ms. Lewis had generally advised Ms. Kalapp that Ms. Kalapp would be in charge of the office when Ms. Lewis was absent. Ms. Leinonen was not advised of this, however. The evidence indicates only that Ms. Kalapp and Ms. Kikta were aware of Ms. Lewis's delegation of authority to Ms. Kalapp. There is no evidence that Ms. Lewis advised employees of the delegation or that Ms. Leinonen was aware of it. Ms. Kalapp texted Ms. Lewis about the situation and asked if she could tell Ms. Leinonen she had to change clothes before she could go to court. Ms. Lewis texted back that Ms. Kalapp could. Ms. Kalapp then confronted Ms. Leinonen and told her that her garment was not appropriate for court or mediations and that she had to change before going to either. Ms. Leinonen disagreed and reported that she had conducted some research indicating the garment was a pair of "culottes," not a "skort" or shorts. Ms. Kalapp said that did not matter and that Ms. Leinonen had to change. Ms. Leinonen, who was in pain, was upset and raised her voice slightly. Ms. Kalapp left Ms. Leinonen's office. A little later, Ms. Leinonen came to the doorway of Ms. Kalapp's office and repeated her view of the nature of the challenged garment. She did not yell or create a disturbance. Ms. Leinonen told Ms. Kalapp that she would leave. She also told her that she knew Ms. Kalapp would call Ms. Lewis and that the toner sandals she was wearing were therapeutic. Ms. Kalapp said she was not talking about the shoes that day. Ms. Leinonen said she would not damage her foot for the job and that she would not return to work until she obtained authority from a doctor to wear therapeutic shoes. Ms. Kalapp told Ms. Leinonen that she should do whatever she thought was best for her health. Ms. Leinonen then left. The following day, August 16, 2012, Ms. Leinonen sent Ms. Lewis a text advising that she would not be in because of medical reasons. Staff and attorneys routinely communicated with Ms. Lewis by text message, including about taking leave. This was a common and accepted practice in the office. Ms. Leinonen's August 16, 2012, text message stated: Good morning! I told Amy [Kalapp] yesterday that's [sic] I was going to be out sick until I could be seen by a doctor who could give me medical clearance to be able to walk wearing therapeutic shoes. I followed your directive to stop wearing my shoes which tirned [sic] out to be to my detriment. As such I am on medical leave of absence. I have an appointment with my doctors [sic] office who has to then refer me to a specialist. Ms. Lewis replied: "You are not on approved leave[;] your attendance at a 10:30 meeting is mandatory." Ms. Leinonen responded: I am sick and cannot make it to your meeting. I have sick time, annual time, and comp time available to me and I am entitled to use them. I have shooting pains going up my leg and I'm unable to walk without therapeutic shoes. I don't want to cause further damage to my foot. So until I can get proper medical clearance I will not be in to work. Thank you. Credible and convincing evidence does not establish any further communications or efforts to communicate between Ms. Lewis and Ms. Leinonen until Ms. Lewis sent the following letter on August 16, 2012, by email and U.S. mail. The letter states: Effective immediately, you are being dismissed (August 16, 2012) from your position as Assistant Regional Counsel with the Office of Criminal Conflict and Civil Regional Counsel for the Second District. This action is being taken due to insubordination and conduct unbecoming a public employee. Please return any State equipment you may have in your possession to the office and also make arrangements to retrieve any personal items that may be in the building during normal business hours, Monday through Friday, 8:00 a.m. to 5:00 p.m.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition for Relief of Christine Leinonen. DONE AND ENTERED this 25th day of July, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 25th day of July, 2013.
Findings Of Fact Petitioner McGowan was dismissed from his position as State Trooper by Respondent by letter dated 31 January 1978 (Composite Exhibit 1) which recites that the action in dismissing Petitioner is based upon Petitioner's violation of General Order No. 43 2.1C, Insubordination, third offense, and Rule 22A- 7.10(7)(a) Florida Administrative Code. McGowan was advised of his right to file a grievance pursuant to the agreement between Florida and the PBA or appeal the dismissal to the Career Service System. McGowan opted for the former and during the course of that hearing raised the issue before the Arbitrator that G.O.'s 40 and 43 were rules and invalid because not promulgated as required by Chapter 120 Florida Statutes. Respondent contested the jurisdiction of the Arbitrator to resolve this question, the parties stipulated that this issue be submitted to DOAH for determination, and the Petition here involved was filed. G.O. 40 relates to physical fitness of members of the Florida Highway Patrol and, after pointing out that weight control is an important part of physical fitness, provides in pertinent part: Members shall maintain control of their weight in relation to their height, age, and body build. There are several charts and tables available indicating the ideal or desirable weight based on the above factors. The maximum allowable weight by height for all ages and body builds for the members of the Florida Highway Patrol shall be those used by the Federal Bureau of Investigation. See G.O. 41, Appendix A. Exception to the maximum limits may be made for members who have a large amount of muscle weight (without excessive fat) and a physician certifies that the individual is not overweight due to excess fat. Failure to comply with the maximum weight limits will result in a low rating for personal appearance on the employee evaluation form and disciplinary action may be taken for violation of this regulation, as provided in G.O. 43. G.O. 43 contains guidelines for establishing standards of disciplinary actions and for appeals to the Career Service Commission. Guidelines for disciplinary actions are contained in Section 2.1 of G.O. 43 which provides in pertinent part: C. Guidelines: The following guidelines are established to insure that all supervisors are being reasonably consistent in taking disciplinary actions against employees involved in similar situations. These guidelines may be expanded or modified from time to time to meet changing conditions and to make their use more effective. They shall be followed generally; however, it is realized that some of the offenses and deficiencies will be more frequent in some cases, and the supervisor may take or recommend another course of action. In no case will these guidelines be binding on the Department as the disciplinary action it shall take. G.O. 43 goes on to provide in the recommended table of Disciplinary Actions following the above quoted provision that for the third offense of insubordination the offender may be dismissed. By letter dated August 10, 1976 (Composite Exhibit 1) Petitioner was advised by Respondent that he was 60 pounds overweight, that his doctor had stated Petitioner's back problem is greatly aggravated and brought about by the overweight problem, and he was directed to make a concerted effort to reduce weight. By letter dated April 7, 1977 (Composite Exhibit 1), Petitioner was suspended from duty for 8 hours without pay for insubordination based upon failure to lose weight as directed in the August 10 letter. By letter dated September 28, 1977 (Composite Exhibit 1) Petitioner was suspended from duty for 16 hours without pay for insubordination for not conforming to weight regulations. By letter dated January 31, 1977 (Composite Exhibit 1) Petitioner was dismissed for the third offense of Insubordination for not conforming to weight regulations. On one or more occasions petitioner was granted sick leave by reason of back problems associated with being overweight.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent discriminated against the Petitioner because of his alleged disability.
Findings Of Fact The Petitioner, Charles H. Miller, was employed by the Respondent, Department of Transportation, for approximately 15 years. In October 1999, Mr. Miller injured his ankle in a work-related accident. He experienced chronic pain and mobility limitations as a result of the accident and continually received medication and psychological and/or physical therapy to help relieve the symptoms of his condition. Mr. Miller wore a brace on his injured foot and took various narcotic pain relievers. On May 2, 2001, Petitioner began seeing Lewis Fabrick, Ph.D., a licensed clinical social worker. Dr. Fabrick determined that Mr. Miller was suffering from depression, anxiety and stress that resulted partly from the pain from the physical injury and partly from the side effects of the medication. However, the Department was not aware of the nature or extent of Mr. Miller's mental or emotional issues. Prior to December 2000, Mr. Miller reported directly to Thomas Malerk, the State Materials Engineer. At that time, Mr. Miller was acting as the data center manager and supervised several other employees. Around November 2000, Mr. Malerk assigned another employee to supervise Mr. Miller and eliminated Mr. Miller's supervisory responsibilities. Mr. Miller's pay and benefits were not affected by this change. Mr. Malerk took this action to correct problems with the data center that had resulted in complaints about Mr. Miller and the data center. Mr. Miller's physical condition was not a factor in Mr. Malerk's decision to change Mr. Miller's job. In December 2000, Mr. Miller complained to the Department's ombudsman that coworkers were making fun of his ankle brace and physical limitation. Mr. Miller alleged that Mr. Malerk had joked about Mr. Miller needing a boot on the other foot to match and that the personnel officer, John Cooper, would pretend to "draw like a cowboy" in a manner that ridiculed Mr. Miller's condition. Mr. Miller also alleged that another co-worker, Gale Page, was harassing him by making fun of his physical limitations. Neither Mr. Cooper or Mr. Page had any supervisory responsibility over Mr. Miller. After receiving Mr. Miller's complaint, the ombudsman contacted Mr. Cooper and Mr. Malerk to inform them of Mr. Miller's concern. At approximately the same time, Mr. Miller also told Mr. Cooper that he was being harassed by Mr. Page, Mr. Malerk, and Mr. Cooper. When Mr. Cooper asked Mr. Miller to specifically identify the harassment that had occurred, Mr. Miller only specifically reported that Mr. Page had made fun of his walk or his leg. Mr. Cooper then informed Mr. Malerk of Mr. Miller's complaint and approached Mr. Page. Mr. Cooper told Mr. Page that he should refrain from making comments about Mr. Miller's condition. When Mr. Malerk learned of Mr. Page's remark to Mr. Miller, he reprimanded Mr. Page and requested that he apologize or otherwise clear the matter. Mr. Malerk also discussed the matter with Mr. Miller. Mr. Malerk apologized to Mr. Miller for anything he might have said that was insensitive and asked Mr. Miller if he had made any inappropriate remarks. Mr. Miller told Mr. Malerk that they did not have a problem and that he considered the matter with Mr. Page closed. Other than the incident with Mr. Page, and the accompanying accusations involving Mr. Malerk and Mr. Cooper, neither Mr. Cooper or Mr. Malerk had any reason to believe that any Department employee might be harassing Mr. Miller or making jokes about his injury or condition. Contrary to Mr. Miller's claim, the evidence does not indicate that either Mr. Malerk or Mr. Cooper even made fun of Mr. Miller's condition. Mr. Miller and Mr. Malerk have known each other since 1997 and were friendly with each other. On May 22, 2001, the Department dismissed Mr. Miller. The decision to dismiss Mr. Miller was based upon a number of violations of the Department's conduct standards, including Mr. Miller's insubordination, absence without authorized leave, display of an uncooperative or antagonistic attitude, and a violent outburst by Mr. Miller on May 21, 2001, when he was advised of the Department's intention to dismiss him. The issues relating to Mr. Miller's dismissal were fully litigated in a proceeding before the Public Employees Relations Commission, which culminated in a Recommended Order and Final Order upholding the Department's decision to dismiss Mr. Miller for violation of the Department's conduct standards. Mr. Malerk was responsible for requesting Mr. Miller's dismissal. Mr. Malerk requested Mr. Miller's dismissal for the violations of the Department's conduct standards that were included in the dismissal letter and was not motivated to request his dismissal in any part by Mr. Miller's physical problems.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
Findings Of Fact Respondent is a cooperative association of 54 farm members that is engaged in the State of Florida in the business of harvesting sugar cane and the milling of raw sugar for its members. Respondent is divided for organizational purposes into a mill division and an agricultural division. Petitioner's employment with Respondent was exclusively with its agricultural division. The agricultural division is divided into a harvesting department, a transportation department, and an equipment maintenance and repair department. The equipment maintenance and repair department has a service center, three field operations, a truck and trailer maintenance repair shop, and a machinery maintenance repair shop. There are approximately 300 vehicles owned by Respondent, including large tractor trailers used for hauling sugar cane. Petitioner was initially hired on September 29, 1975, in the transportation department as a tractor-trailer operator. In November 1976, Petitioner was promoted to assistant truck foreman where his primary duty was dispatching trucks to haul harvested sugar cane from the field to the mill. This is a responsible position that involves calculation of the tonnage requirements of the mill which must be coordinated with the availability of product and drivers. In the early 1980's Petitioner began having problems with his immediate supervisor, LaVaughn Milligan. These problems continued to escalate since the supervisor believed that Petitioner was trying to undermine his authority and was making promises to the drivers that he could not keep. By 1985, Mr. Milligan was dissatisfied with Petitioner's job performance and was prepared to recommend the termination of his employment. At all times pertinent to these proceedings, Edward Mayo was the head of Respondent's maintenance and repair department. In 1985, a vacancy occurred in the position as truck and trailer maintenance and repair shop supervisor. There is a conflict in the evidence in that Petitioner testified that Mr. Milligan and Mr. Mayo asked him to accept the transfer, but Mr. Mayo testified that Petitioner requested the transfer. The testimony of Mr. Mayo is accepted as being more credible and it is found that Petitioner asked Mr. Mayo for a transfer to this vacant position. Mr. Mayo was aware of the problems that Petitioner was having with Mr. Milligan, but he decided to transfer Petitioner to this position despite these difficulties. Mr. Mayo recognized that Petitioner's difficulties with Mr. Milligan may have been the result of a personality conflict between the two men and he wanted to give Petitioner the opportunity to prove himself. The position Petitioner assumed in 1985 was the position he held when his employment was terminated. The truck and trailer repair and maintenance shop is responsible for the maintenance and repair of all of Respondent's vehicles and employs approximately 22 mechanics. Respondent was aware that Petitioner had no training or experience as a mechanic, and he was specifically instructed to make no mechanical decisions. Petitioner's responsibilities included the requisitions of parts, supplies, and equipment for his shop and the supervision of mechanic's work schedules. He was to act in a personnel management and administrative capacity. Petitioner satisfactorily performed his duties during his first year in the position. In late 1986, his job performance began to deteriorate and several complaints from different sources were made to Mr. Mayo about Petitioner's poor performance. Mr. Mayo became concerned about Petitioner's job performance and frequently discussed his concerns with Petitioner. Prior to October 1987, Respondent was unaware that Petitioner had a medical problem. Petitioner had been hospitalized in June 1987 while he was on vacation, but Respondent did not learn of that hospitalization until after October 1987. In October 1987, Petitioner was hospitalized for depression and for detoxification from his addiction to antidepressant drugs. Unknown to Respondent, Petitioner had been, for several years, suffering from anxiety, depression, and paranoia. Petitioner had experienced hallucinations and had been treated by several different physicians. He had been taking drugs for his conditions for some eight years, including Ativan, an antidepressant in the benezodiazpine family of drugs, to which he became addicted. Petitioner returned to work following his hospitalization in October 1987. He told Mr. Mayo that his hospitalization was related to the prolonged use of medication. Following return from his hospitalization in October 1987, Petitioner's job performance deteriorated to the point that he was unable to function at work and he could not perform his job. Petitioner had difficulty concentrating, demonstrated a short term memory deficit, and lacked energy. Petitioner began making mechanical decisions that he was not qualified to make and which posed a safety hazard. On December 10, 1987, Petitioner met with Dale Stacy, Respondent's Vice President of Agricultural Operations, Ray Campbell, Respondent's Personnel Manager, and Mr. Mayo. Petitioner was advised as to the deficiencies with his job performance. Respondent was willing to assist Petitioner and placed him on sick leave with pay until his doctors certified that it was medically sound for him to return to work. Medical assurances were requested out of a legitimate concern for the safety of Petitioner, Respondent's employees, and the general public. On December 22, 1987, Dr. Adele MacKay, Petitioner's psychologist, informed Respondent's assistant personnel manager that Petitioner was very anxious about being out of work and that she thought it would be best for Petitioner if he were allowed to return to work. Respondent was advised by Dr. Mackay that Petitioner may need support. On December 24, 1987, Petitioner was permitted to return to work. Mr. Mayo, Mr. Campbell, and Mr. Stacy continued to be concerned about Petitioner's ability to safely perform his job, but they also wanted to accommodate Petitioner because he was a long term employee. To achieve these ends, Arnie Raaum, Mr. Mayo's assistant and one of Petitioner's supervisors, was assigned the primary responsibility of monitoring Petitioner's performance to ensure that safety was not compromised and of providing assistance to Petitioner if necessary. In Mr. Raaum's absence, Louis Boglioli, another supervisor in the maintenance and repair department, was to perform these duties. In the absences of both Mr. Raaum and Mr. Boglioli, Mr. Mayo was to perform these duties. Between the time Mr. Raaum, Mr. Boglioli, and Mr. Mayo were assigned these duties and the termination of Petitioner's employment, Mr. Raaum spent considerable time in both monitoring Petitioner's performance and in correcting errors made by Petitioner. This assignment detracted from the ability of Mr. Raaum to perform his regular duties. Petitioner's condition and his ability to safely perform his job continued to deteriorate between December 1987 and December 1988. Despite Mr. Raaum's close supervision, many safety related incidents occurred which were the result of Petitioner's job performance. These incidents were documented in Petitioner's employment file, but there was no injury to any person or significant damage to property. By late 1988, Petitioner's condition had deteriorated to the point where he was unable to perform his job. He was unable to comprehend, remember, or follow instructions. In December 1988, Mr. Mayo, who had been following Petitioner's job performance, determined with Mr. Campbell and Mr. Stacy that Petitioner could not perform his job. Mr. Mayo had lost confidence in Petitioner's ability as a supervisor and felt that safety was being compromised by Petitioner's continued employment. Other job possibilities with Respondent were considered, but each possibility was rejected for legitimate business reasons. Petitioner believed that he had had a "nervous breakdown" and that he was capable of working in a position with less stress than his position as supervisor of the maintenance and repair shop. Because of this belief, Petitioner requested that he be transferred to his former position as an assistant truck foreman. This request was refused because of his previous difficulties in performing that job, because he was not capable of performing supervisory work, and because the position was not vacant. There were no supervisory level positions vacant that Petitioner was capable of filling. Petitioner's employment with Respondent was terminated on December 28, 1988, and he was given two months severance pay. Petitioner's termination was not a disciplinary matter for willful misconduct. Rather, Petitioner's employment with Respondent was terminated because Petitioner was not capable of performing his job duties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charge of discrimination against Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of October, 1990. CLAUDE B. ARRINGTON 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 19th day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-3, 5, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 6 are rejected as being contrary to the greater weight of the evidence and to the findings made. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraphs 8-16 are rejected as being legal conclusions. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-10, 13, 15-16, 18-20, and 25 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6, 11-12. 17, and 21-24 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 26 are rejected as being recitation of testimony. The proposed findings of fact in paragraphs 27 and 28 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Isidro M. Garcia, Esquire Law Office of Joseph A. Vassallo, P.A. 3501 South Congress Avenue Lake Worth, Florida 33461 Margaret L. Cooper, Esquire Ruth P. Clements, Esquire Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive, Suite 1100 Post Office Drawer E West Palm Beach, Florida 33402 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird Acting Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 NOTICE Of RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
The Issue Is Respondent employer guilty of an unlawful employment practice, pursuant to Section 760.10, F.S., for discrimination on the basis of handicap, to wit: diabetes?
Findings Of Fact At all times material, Petitioner was employed part-time at Respondent Jackson County Hospital as an x-ray aide. In this position, he transported patients to and from the x-ray department. Petitioner had diabetes when he was hired by Respondent. He disclosed his diabetes on his initial health information sheet. The employer was aware of Petitioner's diabetes when he was hired. However, on his initial health information sheet Petitioner also represented his health status as "excellent" and denied having any physical condition which impaired his body as a whole. He further represented that he had no defect "which may prevent your performance in the job. . . ". Accordingly, the employer did not know that he had a handicap, if any, when it hired Petitioner. While he was employed as an x-ray aide, Petitioner had two "reactions" on the job due to his diabetes, and he was laid off immediately prior to having a third "reaction." Petitioner did not describe the nature of his diabetic "reactions", and no other record evidence revealed their symptomatology. Nonetheless, Petitioner felt that he did his job well and got along well with everyone. This testimony was unrefuted. Indeed, both of Respondent's witnesses acknowledged that Petitioner performed his job duties acceptably. Petitioner went to Respondent hospital's emergency room as soon as he had these reactions. He assumed that some of the x-ray technicians whom he worked with in the hospital x-ray department talked to Wayne Austin, the head of the x-ray department, about his situation. No other witnesses supported his assumption. No forms reporting either of Petitioner's "reactions" were received by Jim L. Treglon, Respondent hospital's assistant administrator. Wayne Austin knew of Petitioner's diabetes but had no knowledge of either of Petitioner's "reactions" prior to laying him off. When Mr. Austin laid Petitioner off on August 15, 1994, he told Petitioner that it was due to the hospital's economic restructuring. Petitioner believed, upon the basis of conversations with other employees who were not called to testify, that he was laid off due to his diabetes. According to Mr. Treglon and Mr. Austin, the employing hospital underwent a personnel restructuring process by reduction of work force for financial reasons, and Petitioner was laid off as part of the larger financial conservation scheme. Petitioner had the least seniority and was a part-time employee, so his position was eliminated. There is no evidence that Petitioner's position was ever recreated or refilled. At the same time Petitioner's position was eliminated, another x-ray aide with more seniority was allowed to work weekends only, thereby reducing the hours for which that aide was paid. It is possible, but not proven, that this other aide's hours were eventually increased or restored when the hospital's economic situation improved. At the same time Petitioner's position was eliminated, the x- ray department's clerk-secretary was allowed to resign, and that position was not filled. As part of the employer's restructuring process, a total of 17 employees were eliminated from the employer's total work force based only upon seniority at approximately the same time Petitioner's position was eliminated. Mr. Treglon testified that as of the date of formal hearing, the employer employed at least 40 people who have disclosed disabilities. The definition of "disability", as used in his testimony, was not given.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein and determining that Petitioner recover nothing thereby. DONE and ENTERED this 26th day of March, 1996, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, 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 26th day of March, 1996.
The Issue The issue is whether the time limit that would otherwise bar Petitioner’s claim of alleged discrimination in violation of Subsection 760.10(1), Florida Statutes (2006),1 is tolled by the doctrine of equitable tolling.
Findings Of Fact Respondent is a public university located in Gainesville, Florida. Petitioner was an employee of Respondent until October 11, 2006, when Respondent terminated Petitioner’s employment on the grounds that Petitioner had allegedly participated in the falsification of employee time records. Respondent deleted Petitioner’s name from the payroll records and stopped paying Petitioner. No continuing employment relationship existed after October 11, 2006. Respondent notified Petitioner of the proposed termination of employment by letter dated August 25, 2006. Respondent conducted two predetermination conferences on September 5 and October 5, 2006. Petitioner was represented by counsel in each predetermination conference.2 Shortly after the termination of Petitioner’s employment on October 11, 2006, Petitioner, through his attorney, filed a grievance against Respondent. The grievance was resolved against Petitioner in a final arbitration decision that was issued on October 3, 2007. Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (the Commission) on December 27, 2007, approximately 442 days after Respondent terminated Petitioner from his employment on October 11, 2006. Subsection 760.11 requires Petitioner to have filed the Charge of Discrimination within 365 days of the alleged unlawful employment practice that occurred on October 11, 2006. A preponderance of the evidence does not support a finding that the factual prerequisites for equitable tolling are present in this case. For the reasons stated hereinafter, a preponderance of the evidence does not show that Petitioner was misled or lulled into inaction, was in some extraordinary way prevented from asserting his rights, or timely asserted his rights mistakenly in the wrong forum. Petitioner did not mistakenly assert his claim of discrimination in the arbitration proceeding. The grievance decided by arbitration did not allege that Respondent discriminated against Petitioner. Nor did Petitioner allege discrimination at anytime prior to the termination of his employment, including the two predetermination conferences. Respondent did not mislead or lull Petitioner into inaction. Respondent did not represent to Petitioner that Petitioner had to wait until the conclusion of the arbitration proceeding before Petitioner could file a claim of discrimination. When Petitioner filed the grievance and participated in the arbitration, Petitioner was represented by counsel. At no time did either Petitioner or his attorney contact Respondent and ask if he could, or could not, file a claim of discrimination during the arbitration proceeding. Respondent did not, in some extraordinary way, prevent Petitioner from asserting his claim of discrimination. Respondent did not delay the arbitration unnecessarily. The delay in the arbitration was caused, in relevant part, by the unavailability of counsel for Petitioner. The first available date for all of the arbitrators was April 19, 2007. On April 17, 2007, one of the arbitrators cancelled the arbitration for medical reasons. The next available date for all of the arbitrators was August 31, 2007. The arbitration hearing occurred on August 31, 2007. The arbitrators issued the decision on October 3, 2007. The Charge of Discrimination which Petitioner filed with the Commission on December 27, 2007, does not raise any fact that was not known to Petitioner before the expiration of 365 days after the termination of employment on October 11, 2006. By July 19, 2006, Petitioner was aware of the facts on which Petitioner bases his claim of a hostile work environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Charge of Discrimination as untimely for the reasons stated in this Recommended Order. DONE AND ENTERED this 20th day of July, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 20th day of July, 2009.
