The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her disability and by retaliating against her, and if so, what, if any, relief is Petitioner entitled to receive.
Findings Of Fact Petitioner is Respondent's former employee who began working for Respondent in 1993. Petitioner was most recently assigned to the warehouse in eastern Jacksonville, Florida, where she worked from October 2000 until September 2007. When she first transferred to the warehouse, Petitioner worked as the Return-to-Vendor (“RTV”) Clerk. As the RTV Clerk, Petitioner was responsible for shipping out returned merchandise to vendors and shipping salvaged items to the salvage companies. In 2004, Petitioner transferred to the Receiving Clerk position. Petitioner remained in the Receiving Clerk position until September 19, 2007, when she began a medical leave of absence. Jason Zook became the manager of the warehouse in May 2005. As the Warehouse Manager, Mr. Zook is responsible for overseeing the entire warehouse, including the Receiving Department. Mr. Zook is familiar with the requirements of the Receiving Clerk position because he previously worked in that position at another warehouse. Michael Sinanian is one of the Assistant Warehouse Managers. Mr. Sinanian transferred to the warehouse as an Assistant Warehouse Manager in 2002. Prior to becoming an Assistant Warehouse Manager, Mr. Sinanian worked in the Receiving Department at other warehouses for a little over two and a half years. During that time, Mr. Sinanian worked as a Receiving Manager, a Receiving Supervisor, an RTV Clerk, and a Receiving Clerk. The Receiving Department is located at the back of the warehouse. The warehouse is approximately the length of a football field from front to back. At all times material here, the Receiving Department at the warehouse had four positions: Receiving Manager, Receiving Clerk, Receiving Secretary, and Forklift Driver. In 2007, Deborah Lenox was the Receiving Manager, an employee named Sonya was the Receiving Secretary, Petitioner was the Receiving Clerk, and an employee named Valdean was the Forklift Driver. The Receiving Secretary and the Receiving Clerk have different job responsibilities. The Receiving Secretary is responsible for answering the phone, making vendor appointments, logging the appointments, dealing with paperwork, creating and printing out receiving tags, and logging shipment information into Respondent's computer system. The Receiving Clerk is responsible for counting and checking merchandise against freight bills, opening boxes and cartons with a box knife to verify and count the product, stacking bed-loaded merchandise or merchandise from damaged or unacceptable pallets onto approved pallets, separating mixed items from pallets for checking, wrapping pallets with plastic wrap in preparation for movement onto the warehouse floor, loading merchandise and emptying pallets onto trucks using a manual pallet jack or hand cart, and cleaning and clearing the receiving dock of any debris and trip hazards. Each of these essential job functions requires standing, which is consistent with the job analysis for this position. Respondent has written job analyses, which identify the essential functions of each job and are used to assist the Company, the employee, and the employee’s doctor in determining if the employee can perform the essential functions of his/her job with or without reasonable accommodations. Respondent does not remove or eliminate essential job functions, but will sometimes modify the manner in which the function is to be completed. Respondent will not displace another employee from his position in order to accommodate a disabled employee. A pallet of merchandise can be as much as 60 inches high. A typical pallet coming in the warehouse is a 60-inch cube. An electric pallet jack is a double pallet jack and is approximately 18 feet long. In order to operate an electric pallet jack, an employee has to stand and lean in the direction that she wants the machine to go and turn the handle. There is no seat on an electric pallet jack. Petitioner’s original foot condition was due to osteomyelitis, an infection of the bone. Between 1998 and 1999, Petitioner had four surgeries to address her foot condition. A surgeon placed an artificial plastic bone in Petitioner's foot in July 1999. In September 1999, Petitioner returned to work with medical restrictions that prevented her from standing for long periods of time and from lifting more than 25 or 35 pounds. At some point thereafter, while Petitioner was working at one of Respondent’s warehouses in Memphis, Tennessee, her podiatrist changed her restrictions to add limitations against cashiering, stocking, and inventory. Petitioner understood that the reason for these additional restrictions was that she was not able to do these tasks to the extent they required her to stand for a prolonged period of time. Petitioner’s medical notes stated that she was able to use her discretion as to her limitations, which Petitioner understood to mean that she could sit and rest her foot as needed. Each of these restrictions was permanent. Mr. Zook, Ms. Lenox, and Mr. Sinanian were all aware that Petitioner had medical restrictions relating to her foot condition that prevented her from standing for prolonged periods of time. They were aware that Respondent had agreed to allow Petitioner to sit down when she felt it was necessary, without first having to ask for permission. Despite her restrictions, Petitioner is able to ride her bike, go the grocery store, and work out at the gym. During the relevant time period, Petitioner worked out at the gym approximately four days a week. Her work-out routine included warming up on an elliptical machine for approximately 15-to-20 minutes or walking approximately one mile on the treadmill and using a leg press machine. Respondent performs inventory twice a year. It takes an inventory at all warehouses in February and August. The inventory process begins on Friday night and continues until the following Wednesday. The back-stock is counted on Friday night after closing and the stock on the sales floor is counted on Saturday night after closing. The post- audit process begins on Sunday morning before the warehouse opens to its members and continues on Monday morning. The Saturday night inventory count is more labor- intensive and is considered “all hands on deck.” The Saturday night inventory requires the staff to count approximately $9 million worth of inventory during roughly a five-hour period. On Saturday, Respondent assigns two employees to count the items in each aisle at the same time. The employees double- check each other’s counts. If there is a discrepancy between the employees’ counts, both will recount the items until their counts agree. If there are discrepancies after the Saturday counts between the physical counts and the computer records, the items are recounted during the Sunday post-audit. If variances still remain after the three counts, then the variances are researched during the Monday post-audit. For the Monday post-audit, Respondent only focuses on the larger-quantity, higher-dollar discrepancies. When researching the discrepancies from the variance reports, employees have to perform the following tasks: (a) count items on the floor or up in the steel racks; (b) verify bin tags; (c) research billing, shipment, and return-to-vendor records on Respondent’s computer system; and (d) check the receiving paperwork in an effort to locate and correct the source of the discrepancy. Some items will have been sold between the Saturday night count and the Monday post-audit process. Therefore, the Monday post-audit team also may have to research the sales history on a computer and back out the Sunday sales from the total count. The variance reports reflect the aisle where the item is located, the item count from the inventory count, the computer system count, and the amount of the variance. Employees are typically assigned to work in one department of the warehouse, which may require them to walk from aisle to aisle within that department. In order to assist the Monday post-audit team, the team is permitted to use computers throughout the warehouse. Employees can sit down at the computers when they are researching the variances in item counts. It can take anywhere from 15-to-30 minutes to research one item. The duties involved in the inventory post-audit process are similar to the job duties of the Receiving Clerk position. However, the post-audit does not require as much standing and is less physically demanding because the focus during post-audit is on researching the sources of the variances, rather than simply receiving, counting, and checking- in shipments. In selecting employees to work on the Monday post- audit team, Respondent prefers to schedule people who are familiar with Respondent’s return-to-vendor and receiving processes. Respondent also selects employees who are knowledgeable about Respondent’s AS-400 computer system. In February 2007, Petitioner worked the Saturday night inventory. During that time, she counted the bread then worked at the control desk. Petitioner's job at the control desk was to key-in inventory count sheets into Respondent’s computer system. Petitioner did not view this assignment as inconsistent with her restrictions against working inventory because she was seated for most of the time. In August 2007, Mr. Sinanian was responsible for the post-audit processes, including the scheduling of employees to work post-audit. Due to the requirements of post-audit, Mr. Sinanian selected people who, like Petitioner, were familiar with Respondent’s AS-400 computer system. Approximately 20 employees worked during the Monday post-audit. Mr. Sinanian and Ms. Lenox knew that Petitioner could use her discretion to sit down whenever she felt it was necessary. They had no reason to believe that the post-audit process was inconsistent with Petitioner’s medical restrictions. Therefore, she was selected to work the Monday post-audit. On Saturday, August 25, 2007, Petitioner was again assigned to count bread and then assist with keying inventory count sheets into the system. Petitioner was able to sit down while she was working at the control desk keying the inventory count sheets. Petitioner did not consider her Saturday assignments inconsistent with her restrictions. Petitioner did not work or perform any inventory or post-audit, inventory-related duties on Sunday, August 26, 2007. On Monday, August 27, 2007, the post-audit process lasted from approximately 5:00 a.m. until 10:00 a.m. Petitioner’s shift began at 5:00 a.m. After Petitioner clocked in, she reported to the control desk, where Mr. Sinanian assigned her to check variances for approximately 6 items in Department 14, the sundries department. The sundries department runs along the back right side of the building near the Receiving Department. The sundries department includes items like paper towels, cleaning chemicals, laundry detergent, water, juice, and soda. Petitioner was assigned to research variances between the physical counts and the computer system’s counts for Swiffers, dog bones, dog beds, water, soda, and paper towels. During the August 2007 post-audit process there were at least 18 computers for the employees to use. The computers were located in the Receiving Department, the front office, at the membership desk, and at the podium on the front-end. Employees were free to use any available computer and were able to sit down at most of the computers while researching items. Petitioner never had to wait to use a computer. Petitioner went to whichever computer was closest to her at the time to verify items. After she finished researching all of the items on her variance sheet, Petitioner, like all of the other employees who worked post-audit, met with Mr. Sinanian at the control desk at the front of the store to explain her findings. There was a chair at the control desk for Petitioner to sit in while meeting with Sinanian. The process of meeting with Mr. Sinanian took anywhere from 10-to-30 minutes. Other than discussing her assignment for the day and the post-audit research results, Mr. Sinanian did not have any other discussions with Petitioner on August 27, 2007. Petitioner was able to use her discretion to sit down during post-audit. She was never told that she could not sit down nor was she reprimanded for sitting down. Petitioner admits that she used her discretion to sit down at least twice during post-audit and to kneel down a couple of times. Petitioner also took a 15-minute break during the post-audit process, during which she sat down. After Petitioner finished working post-audit at approximately 10:00 a.m. on August 27, 2007, she returned to the Receiving Department, but left shortly thereafter to take her lunch break. Petitioner’s lunch break lasted for approximately a half-hour. Petitioner walked from the back of the warehouse, where the Receiving Department is located, to the front of the warehouse, where the break room is located, to take her lunch and walked all the way back after the end of her break to return to work. After returning from lunch, Petitioner began working on the UPS shipment. It was a busy day in the Receiving Department, as the UPS shipment had arrived with approximately 72 packages stacked on one pallet that was taller than Petitioner. Because Petitioner felt unable to stand, she could not check in the entire UPS shipment. As a result, Petitioner took it upon herself to take the UPS invoices and input the invoices into Respondent’s computer system, which is one of the Receiving Secretary’s job responsibilities. At some point thereafter, Ms. Lenox asked Petitioner why she was logging in items into Respondent’s computer system, rather than receiving the UPS shipment. Petitioner told Ms. Lenox that her foot was hurting and that she could not stand. Ms. Lenox told Petitioner to take her break and, when she returned from break, they would see how Petitioner’s foot was feeling. Petitioner walked to the front of the warehouse, where she took her second 15-minute break in the break room. Petitioner was able to sit with her foot up during her break. After returning from her break, Petitioner reported to the Receiving Department and told Ms. Lenox that she did not feel she could not stand any longer that day. Petitioner asked if there was something she could do other than her receiving duties. Ms. Lenox told Petitioner that if she could not stand, then Ms. Lenox did not have any more work for her and told her that she should go home. Accordingly, Petitioner went home approximately one hour before her shift ended. Petitioner reported to work the following day, Tuesday, August 28, 2007, at 5:00 a.m. and worked her entire shift. At some point after her shift started that day, Petitioner told Mr. Sinanian that Ms. Lenox would not allow her to take a break during post-audit. Petitioner also told Mr. Sinanian that her foot was swollen and hurting. She took off her shoe to show him her foot. Mr. Sinanian did not see anything unusual about Petitioner’s foot. He did not see any swelling, graying, or a red bump. From the conversation with Petitioner, Mr. Sinanian did not understand that her foot was hurting due to a new injury. Therefore, Mr. Sinanian did not fill out an incident report. Petitioner’s and Mr. Sinanian’s conversation lasted approximately two minutes. At some point after speaking with Petitioner, Mr. Sinanian asked Ms. Lenox if, at any point during post-audit, she told Petitioner that Petitioner could not take a break. Ms. Lenox denied Petitioner’s allegation. Mr. Sinanian had no reason to doubt Ms. Lenox. Petitioner continued to work her job as Receiving Clerk after August 28, 2007. She continued to use her discretion to rest her foot on an as-needed basis. When possible she would sit in a chair to work. She used the electric pallet, letting her foot hang off the platform. Petitioner waited three weeks to seek medical treatment from her podiatrist in West Palm Beach, Florida. She finally saw her doctor on Monday, September 17, 2007. At her appointment, Petitioner’s podiatrist gave her a note that stated, “DUE TO ARTHRITIC CONDITION, CYNTHIA IS UNABLE TO STAND FOR LONG PERIODS OF TIME AND IT IS MEDICALLY NECESSARY FOR HER TO BE OFF HER FOOT FOR 3 WEEKS. DUE TO THE FLARE UP.” Petitioner understood that her podiatrist wanted her to stay off her foot for a few weeks and to be in a sedentary position during that time. Petitioner also understood that these temporary restrictions were more limiting than her prior permanent restrictions. Petitioner reported to work on September 18, 2007, and told Ms. Lenox that her doctor did not want her standing. Ms. Lenox told Petitioner that they would need to speak with Mr. Zook about her restrictions when he arrived at work that day. In the meantime, Ms. Lenox permitted Petitioner to sit down and work on summary sheets. After returning from lunch, Petitioner met with Mr. Zook about her new temporary restrictions. The meeting lasted about an hour or more. Based on Mr. Zook’s prior experience working as a Receiving Clerk, his understanding of the essential job functions of that position, and Petitioner’s podiatrist’s statement that she needed to be off her foot for three weeks, he did not believe that Petitioner could perform the essential functions of that position without violating her doctor’s restrictions. Mr. Zook, nevertheless, asked Petitioner how she thought she could do her job from a seated position. Petitioner did not have any suggestions. There were no available sedentary positions in the warehouse at that time that could have accommodated Petitioner’s no-standing restrictions. As a result, Mr. Zook explained to Petitioner that based on her doctor’s restrictions, which required her to be in a sedentary position, he did not have any work for her at that time. Mr. Zook did not believe that Petitioner’s temporary no-standing restrictions prevented her from working in any capacity. Mr. Zook explained to Petitioner that she could take a leave of absence and return to work after her temporary restrictions expired. Because Petitioner’s restrictions were temporary, Mr. Zook did not contact Respondent’s Human Resources Department to schedule a job accommodation meeting. Despite Mr. Zook’s statement, Petitioner returned to work the following day and performed some work for a period of time. After Mr. Zook arrived at the warehouse, he went back to the Receiving Department and asked Petitioner why she was at work. Mr. Zook reminded Petitioner that he did not have any work for her to do at that time and that he could not allow her to work in violation of her doctor’s restrictions. After speaking with Mr. Zook, Petitioner clocked out, signed some paperwork, and left the building. Petitioner did not return to work after September 19, 2007. On October 15, 2007, Petitioner saw her podiatrist again. Petitioner’s podiatrist extended her temporary no- standing restriction for another six weeks. Petitioner understood, however, that her no-standing restrictions remained temporary at that time. Petitioner applied for and received short-term disability (“STD”) benefits beginning around the end of September 2007. Petitioner used paid time off until the STD period benefits began.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order dismissing the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009. COPIES FURNISHED: Hnin N. Khaing, Esquire Henrichsen Siegel, PLLC 1648 Osceola Street Jacksonville, Florida 32204 Kathleen Mones, Esquire Seyfarth Shaw LLP 1545 Peachtree Street Northeast, Suite 700 Atlanta, Georgia 30309 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding, as stipulated at the hearing, is whether the Petitioner has been subjected to discrimination on account of a handicap or disability.
Findings Of Fact The Petitioner at times pertinent hereto was an employee of North Florida Evaluation and Treatment Center in Gainesville, Florida. She began working for that entity in 1985. Her position was that of Unit Rehabilitation Treatment Specialist. This required her to work with residents of the treatment and evaluation center. Her duties involved such things as helping move residents, and carrying food trays up and down stairs to residents. Sometime in 1993, the Petitioner suffered a back injury, the result of which has caused her to have chronic, substantial pain in her back and leg. The injury apparently occurred in the line of duty on the job with the Respondent agency. The Petitioner missed some time from employment for these medical reasons and in December of 1993, was placed on light duty status at work due to the medical restriction recommended by her doctor. This light duty status involved such restrictions on her full employment activities as doing only light lifting and restricted use of stairs. Her light duty restrictions involved a great many of her "resident contact- type" activities of her job such as meal monitoring, delivery of meals, escorting residents, handling laundry, medication delivery and the like because of the restriction against use of the stairs, as well as heavy lifting. She was on this light- duty status for approximately three years when, in November 1996, a doctor told her, and she informed her employer, that she could no longer climb more than four flights of stairs per day. Since all treatment buildings at the facility where she worked had at least one flight of stairs, this severely restricted her ability to perform her daily job functions. Nevertheless, she was maintained on light duty status in order to accommodate her disability. In December 1996, her doctor further restricted her employment status to no climbing of stairs at all. At that time, the Respondent temporarily assigned her to duty in the pharmacy in order to accommodate her inability to climb stairs or lift significant weight, as well as because there was a staff vacancy in the pharmacy. In February 1997 that assignment to the pharmacy ended because the staffing need there had ended. A person qualified and experienced in the pharmacy duties involved was hired. The Respondent then attempted to find a suitable position to accommodate the Petitioner's disability within the department's district. The job search was unsuccessful. Since there was no permanent position available outside the treatment area where the Petitioner worked, which could accommodate her disability, the Respondent requested a new status report from her doctor. Consequently, on February 5, 1997, the Petitioner's doctor stated that she was able to climb one flight of stairs in an eight hour day. The Respondent, therefore, continued to employ her on light duty in accordance with this restriction to one flight of stairs climbed in an eight-hour day, during the Petitioner's regular shift. She was allowed to work in her normal building location during her regular shift with this restriction with the result that other employees had to assume the duty she would normally have in her position as a unit treatment and rehabilitation specialist, which involved carrying medications, food or other items, climbing stairs, as well as handling patients or residents. She worked on this regular shift with these light-duty restrictions approximately three more months because the Respondent employer expected that situation to be temporary. Thereafter, however, her doctor advised that there would be no foreseeable change in that restriction in the future and he considered her physical limitations to be continuing indefinitely. Because of this more or less permanent restriction imposed by her doctor, the Respondent took the position and advised her, on May 22, 1997, that it believed that she was unable to perform a significant number of essential job functions required of unit treatment and rehabilitation specialists on the day shift. The Respondent advised her that it believed that she was unable to perform most meal-monitoring functions, to escort residents, handle laundry and do most supervised activities out of the building as well as crisis intervention, medication delivery, monitoring and "coverage" of other buildings. Consequently, the Respondent informed the Petitioner that it would no longer be able to assign her to light duty on the day shift because it did not feel that she could perform sufficient of her duties to reach an adequate performance level. Other employees were having to perform many of her duties on a more or less permanent basis. The Respondent did advise her that it felt her needs could be reasonably accommodated (as well as the needs of the employer) by changing her schedule to the night shift. The night shift has a much lower level of activities, with no regular duties out of the building and virtually no necessity for resident contact. The Respondent advised the Petitioner of this proposal to change her duties to the night shift and gave her time and an opportunity to respond and either accept or reject the position on the night shift. The Petitioner submitted a doctor's note on May 8, 1997, stating that she would not be able to work on the night shift and the Petitioner declined the position due to this and to family-related reasons. Consequently, the Respondent felt it had no choice but to start termination of the Petitioner's employment. The Respondent candidly told the Petitioner that this did not involve her misconduct and that it was not trying to discredit her in any manner. However, the Respondent was unable to keep her in her position because it was beyond her physical capabilities, even after according her a much longer than normal light duty status. In fact, unrefuted testimony shows that, normally, light duty status is accorded for a four to six-month period and the Petitioner was given that benefit or accommodation for approximately four years. In any event, the Respondent found that the position occupied by the Petitioner was beyond her physical capabilities, that the safety of residents and other personnel in the building required that every employee be able to fully perform essential job standards and functions and that the Petitioner could not do so. Thereafter she was given an opportunity to meet with the Respondent to discuss and propose any alternatives, but after these opportunities elapsed she was terminated from her position on or about June 3,1997. There is no question that the Respondent knew the Petitioner had a disability. Indeed that disability was accommodated by light duty for more than four years. The testimony of Ellen Young and Sue Tennant, testifying for the Respondent, establishes that the normal course of a light-duty assignment, in the case of a disability, is for a period of four to eight months. Thus, the Respondent went far beyond the norm in according more than four years of light duty. Indeed, thereafter, the Respondent gave her a temporary re-assignment to the pharmacy and thereafter sought to find another position she could occupy and perform well enough, with her disability, to no avail. The Respondent also sought to continue her in its employ by re-assignment of her to the less strenuous night shift. She refused this re-assignment due to her doctor's restrictions on her activities, as well as for personal and family reasons (she simply did not want to work at night). It is also the norm, according to the Respondent's unrefuted testimony, through the above two named witnesses, that light duty is a concept which means that such a disabled person cannot perform a small portion of his or her job. It does not mean that such a person can be maintained in employment for a long period of time or indefinitely when she cannot perform a large portion of the duties of the job. It was established by the preponderant evidence consisting of these witnesses' testimony that the Petitioner was unable to perform a large portion of the duties of her position and that other employees on her shift had to perform a significant portion of her duties. In summary, the Respondent made every reasonable effort to accommodate her disability and to continue her in employment, short of simply creating an entirely new position tailored to her disability limitations (and for that reason). It thus reasonably accommodated her disability limitations or tried to.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 11th day of September, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 11th day of September, 2001. COPIES FURNISHED: Maxie Broome, Jr., Esquire 3120 Atlantic Boulevard Suite Two Jacksonville, Florida 32207-8814 Dennis M. Flath, Esquire 1200 Northeast 55th Boulevard Gainesville, Florida 32641-2759 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for determination is whether Petitioner has just cause to terminate Respondent's employment as a custodian.
Findings Of Fact Petitioner is responsible for hiring, overseeing, and terminating employees in the school district. Respondent has been employed by Petitioner as a custodian since September 13, 2002. Respondent worked at Dunbar Middle School (Dunbar) until August 6, 2010, when she was involuntarily transferred to Lexington. Respondent worked at Lexington from August 2010 until her suspension on April 2, 2013. Respondent's personnel file documents that throughout her employment as a custodian, she has had problems with displays of disrespect and insubordination to her fellow employees and superiors. Respondent's disrespect and insubordination have been a consistent theme in written warnings and reprimands, incident reports, and conference summary reports. Respondent has been repeatedly advised in writing of the concerns with her behavior, instructed to stop the unacceptable behavior, and advised of disciplinary consequences if the behavior did not stop. The writings in turn refer to verbal communications with Respondent about the same subject addressed in the writings. The writings also reflect a consistent theme of Respondent's problematic behavior arising when a superior would attempt to address a problem with Respondent's job performance. For example, Respondent would be told to clean certain areas, but Respondent would fail to follow the directives, and then Respondent would become agitated and loud when confronted regarding her failure to follow the cleaning directives. The first memorandum, dated January 9, 2004, was issued by Respondent's then-supervisor, Carlos Morales: Despite previous conversations regarding your job responsibilities as a member of the custodial staff at [Dunbar], it has become necessary for me to apprise you in writing of a serious concern regarding your insubordination . . . On Monday, January 5, 2004, you were asked to vacuum all offices, rooms, and hallways of the administrative wing. Upon checking the administrative wing on the morning of January 8th, many areas appeared in need of vacuuming. During my discussion with you regarding this matter, your verbal, agitated response became loud, accusatory and insubordinate . . . It was then noted you were approaching other school personnel regarding the discussion and your accusations. Employees who are insubordinate are subject to disciplinary action. I sincerely want you to be successful at [Dunbar,] but this requires more effort in your assigned duties. The teachers, staff, and students depend on you to do your part in making this a clean and safe learning environment. Respondent's performance evaluation for the 2003-2004 contract year echoed Mr. Morales' concern, by finding that Respondent "inconsistently practiced" effective communications with co-workers and supervisors. The comments informed Respondent that she needed "to work on her communication in times of questions of job requirements." The same inconsistent rating in the same category, with similar comments, appeared in Respondent's evaluation for 2004-2005. Respondent received good performance evaluations for contract years 2005-2006 and 2006-2007. No behavior problems were documented in her personnel file during that time. Respondent's performance evaluation for 2007-2008, completed in March 2008, found that although Respondent's job performance was "adequate," her punctuality and attendance "continue to be" areas needing improvement. Later that same year, in June 2008, an incident report was prepared by the assistant principal to document an incident between Respondent and her then-supervisor, Pete Torres. According to the report, Mr. Torres tried to discuss a concern with Respondent about her chronic tardiness, but Respondent "became very loud and disrespectful towards her supervisor, Mr. Torres." The assistant principal met with Respondent to discuss the incident, and determined that Respondent "was disrespectful towards her supervisor. Disrespect towards any school employee will not be tolerated. Any type of future disrespect will result in [a] documented performance letter." Respondent was advised that a documented incident report would be placed in Respondent's personnel file. Respondent's performance evaluation for 2008-2009 found Respondent's performance inconsistent in the areas of punctuality and communications with co-workers and supervisors. The comments noted inconsistencies with Respondent's "interpersonal skills and attendance issues." Shortly after this performance evaluation, on July 23, 2009, the assistant principal prepared another incident report to document an incident involving Respondent. According to the documentation, at a mandatory meeting and training session for all of the custodians with district zone manager Debbie Greene to review summer cleaning processes and procedures, Respondent "became very loud, disrespectful and belligerent towards her direct supervisor, head custodian Randy McMillan." The assistant principal held another meeting with Respondent to discuss the incident, and he determined that Respondent was disrespectful towards her supervisor. He also reminded Respondent that "this was the second documented incident involving disrespect towards a supervisor in the past two years." Respondent was told again "that this behavior is unacceptable and would not be tolerated." Respondent was advised that this documented incident report would be placed in her personnel file. For the 2009-2010 contract year, Respondent's performance evaluation continued to reflect issues in the communications areas. Respondent was rated as "inconsistent" in the following areas: "responds appropriately to praise and constructive criticism"; and "communicates effectively with coworkers, supervisors, and school-based staff." The comments regarding these ratings were: "Ms. Rice continues to have trouble responding appropriately to constructive criticism. Cooperating with supervisors continues to be an area of focus." The documentation in Respondent's personnel file from her years at Dunbar portrays a pattern of similar behavior by Respondent in her dealings with a number of different supervisors. This documentation put Respondent on notice that her behavior was not acceptable. Nonetheless, Respondent did not take away from her years at Dunbar that her behavior was not acceptable and needed to change. When Respondent was asked if she recalled having problems with her supervisors and other employees at Dunbar, she responded: Of course I've had problems with -- from the other school, but it was only by speaking my opinion because if someone asked me something I'm going to tell them how I feel, but it's not nothing about like cursing them or whatever, just let them -- I'm giving them my answer. And then the way I talk, they say that I be disrespectful to them because I have a hot-pitched tone voice, but I don't mean no harm on nothing I say. I just trying to express my opinion. Even when I talk, I talk with my hands and it don't mean that I'm trying to be rude or nothing, I'm just used to expressing my feelings. Respondent was involuntarily transferred to Lexington shortly after the beginning of the 2010-2011 contract year. The circumstances of this transfer were not established in the record. Respondent began working as a custodian at Lexington on August 9, 2010. She worked during the day over the summer, as did all of the custodial staff. When school was in session, Respondent was assigned to what was variously described as the afternoon, evening, or night shift (hereafter referred to as the "night shift"), working from 2:00 p.m. until 10:00 p.m. At Lexington, the building supervisor was in charge of the custodial department, and was the direct supervisor of the custodial staff. The work hours for the building supervisor position were from 8:30 a.m. to 4:30 p.m. Therefore, during the school year, the building supervisor's work day overlapped with the night shift by only two and one-half hours. After the building supervisor left for the day, the head custodian served as acting supervisor of the night shift custodians. The head custodian was considered the liaison between the building supervisor and the custodians. The head custodian would receive instructions and directives from the building supervisor in the afternoon, and the head custodian was responsible for giving directives to the night shift custodians and supervising their work to ensure that they carried out the directives. The head custodian position at Lexington was not a managerial position; the head custodian did not have authority to discipline the other custodians. However, by all accounts, the head custodian was vested with authority to give directives to the custodians working the night shift. The head custodian was reasonably expected to act as supervisor of the night shift custodians after the building supervisor left each day. Otherwise, these employees would be left unsupervised for two- thirds of their work day. During Respondent's first year at Lexington, the building supervisor was Jack Duffy and the head custodian was Rosa Valentin. According to Respondent, that year was "okay," in that she did not have any problems at work. However, according to Respondent's performance evaluation, which recorded her absences and tardy days through March 2011, Respondent missed a lot of work. In fact, the evaluation comments refer to a meeting with Respondent in February 2011 to address concerns with her attendance; improvement in Respondent's attendance was noted in the month following that meeting. Respondent had only been working at Lexington for seven months when assistant principal Jason Peters drafted Respondent's performance evaluation for the principal, Linda Caprarotta, to review and sign, in accordance with the standard practice. For this short period of time, during which Respondent frequently was absent and late, Respondent's performance was found inconsistent in the areas of using leave only when necessary and punctuality, but her job performance otherwise was found to be effective. However, the Lexington principal was not satisfied with the overall performance of the custodial department for the 2010- 2011 contract year, because the school was not being cleaned well. Ms. Caprarotta determined that the building supervisor, Mr. Duffy, lacked appropriate management skills. She found him to be too lax with the custodial staff. He was not comfortable supervising, giving directives, or confronting the custodians when their work was unsatisfactory. Therefore, Mr. Duffy was let go at the end of the 2010-2011 contract year. On July 6, 2011, Ms. Caprarotta hired Mack Farmer to replace Mr. Duffy as the Lexington building supervisor. Mr. Farmer had the management experience Ms. Caprarotta was looking for, having run his own cabinet manufacturing company for 25 years. Ms. Caprarotta informed Mr. Farmer of her expectations for better-quality cleaning services for her school, and her expectation that he would exercise stronger supervisory responsibility than the prior building supervisor to ensure that custodians were doing their jobs. The credible evidence supports a finding that before Mack Farmer was hired, the custodial staff at Lexington had a relatively easy time, with little expected or demanded of them by the building supervisor. The night shift workers, including Respondent, essentially had free rein to do things their own way, but their own way was not getting the job done. As Respondent put it, "Really I wasn't sure that they was watching me or anything, but they never told me that I wasn't -- that I needed to do better or anything[.]" Although Respondent's attendance had improved after a meeting was held in February 2011 to address the problem, the improvement was short-lived. In addition, problems had become apparent with Respondent's performance when she was there working. On July 13, 2011, Ms. Caprarotta and Mr. Peters held a meeting with Respondent "to address absenteeism/tardiness and work performance." The meeting was documented in a conference summary performance report and placed in Respondent's personnel file. According to the report, with regard to Respondent's work performance issues, Respondent was reminded that she was "expected to work thoroughly and continue to work/clean during her designated work times." Respondent testified that everything fell apart after Mr. Duffy was replaced with Mr. Farmer. Respondent was not happy with the change, and did not agree with it: Q: You heard Ms. Caprarotta, she wasn't happy with Mr. Duffy, she didn't think that he was requiring satisfactory services from the custodial staff, you heard that, right? A: Yes, I did. Q: And do you agree that it's the principal's choice as to who she wants as the building supervisor? A: Well, I don't agree, but I know that that's what I heard that that's mandatory that the principal have all the say-so on who she wants to be hired in her system. * * * Q: Okay. So whatever reason she had for replacing Mr. Duffy, is that your concern? A: No, it's not my concern, but it come down to my concern whenever she replaces Mr. Duffy and end up -- it's a stress-free environment and then it's very stressful on the people that I'm working under. According to Respondent, Mr. Farmer approached her on his first day of work and told her that he knew who she was and that she had better be careful because they were trying to get rid of her. The more credible testimony was a bit different from Respondent's description. Ms. Caprarotta credibly testified that when Mr. Farmer was first hired, she talked to him about the broader issue of the lack of cleanliness and need for better management of the custodial staff. She briefed Mr. Farmer about all of the staff members whom he would be supervising; Respondent was included, but not singled out. Mr. Farmer credibly testified that he spoke with Respondent not on his first day, but shortly thereafter, to tell her that she needed to change her behavior and improve her performance or she was going to lose her job. He had many conversations with Respondent, trying to get her to do her work, be a team player, and improve her behavior. Respondent acknowledged that she took away from Mr. Farmer's comments to her that she needed to improve: "I figure I better do a good job." In August 2011, shortly after Mr. Farmer began as building supervisor, Respondent was involved in an altercation with Rosa Valentin, then-head custodian. Respondent was called in for a conference with the principal, assistant principal, and Mr. Farmer. A conference summary performance report dated August 10, 2011, documented the incident and the conference, at which Respondent was reminded that one of her job requirements was that she must have the ability to work well with others, and that Respondent was expected to do so. Respondent was informed that her failure to comply will result in further disciplinary actions. The altercation addressed by the August 2011 conference summary performance report was described in somewhat-conflicting terms by several witnesses. The more credible testimony established that Respondent confronted Ms. Valentin, who was weeding the flower beds next to the school building. Another custodian was standing next to Ms. Valentin. Respondent made negative comments critical of Ms. Valentin, questioning why Ms. Valentin was not making the other custodian help with the weeding, and suggesting that Ms. Valentin would have made Respondent help if it were Respondent standing next to her. Respondent and Ms. Valentin argued, and Respondent called Ms. Valentin a "b****." Ms. Valentin went inside to the main office to report the incident to the principal. Respondent followed Ms. Valentin into the main office, where Respondent resumed her verbal assault on Ms. Valentin. Respondent was the instigator and the aggressor, and her behavior was completely inappropriate. Respondent did not deny the essential facts of this altercation. She did not deny having called Ms. Valentin a "b****." This incident stands in marked contrast to Respondent's testimony that she was never disrespectful and was just expressing her opinions. A custodian calling a head custodian a "b****" is no mere expression of opinion. Respondent's friend, Claytrina Griffin, another custodian who was with Respondent during the altercation, testified without a great deal of credibility that she did not see anything wrong with Respondent's comments. However, Ms. Griffin admitted that, unlike Respondent, she did not say anything to Ms. Valentin because whether Ms. Valentin required the other custodian to help her weed or not was none of Ms. Griffin's business. Shortly after this incident, Ms. Valentin requested to be moved to the day shift for personal reasons, even though that would mean she could no longer be the head custodian whose job was to supervise the night shift custodians. Ms. Valentin's request was granted, and her position was downgraded to a regular custodian at a lower pay grade. After advertising and interviewing candidates for the head custodian position, Jeff Hancock, who was a custodian at a different school, was hired as Lexington's new head custodian. Mr. Farmer and Mr. Hancock had specific ideas about how the cleaning should be done by the custodians. Just as Respondent expressed her dislike for the new, more demanding building supervisor, Respondent also made clear that she did not like the new head custodian. Ms. Griffin echoed Respondent's sentiments, complaining that Mr. Farmer and Mr. Hancock were demanding. Ms. Griffin complained that Mr. Hancock would spend too much time (which she quantified as five minutes), hanging around to tell Ms. Griffin what to do and how to clean, and repeating the same directive over and over. Both Respondent and Ms. Griffin testified that Mr. Farmer and Mr. Hancock had their own ideas regarding how they wanted the custodians to clean and neither Mr. Farmer nor Mr. Hancock liked it when Respondent or Ms. Griffin would clean their own way, as they apparently had been able to do when they had enjoyed lax supervision or no supervision at all. The key difference between these two custodians, however, is that Ms. Griffin would keep quiet and would just do her work in the way that Mr. Farmer and Mr. Hancock wanted it done. As a result, Ms. Griffin was able to finish her assigned cleaning duties by the end of her shift, even when she and the other custodians at work had to absorb extra duties because of absent workers. Respondent did not respond appropriately to being told how to do her work by Mr. Farmer and Mr. Hancock. Instead, Respondent responded with displays of the same type of behavior for which she had been taken to task when she worked at Dunbar. On December 16, 2011, Ms. Caprarotta issued a letter of reprimand to Respondent for being insubordinate and disrespectful to her supervisor, Mack Farmer, on December 7, 2011. Mr. Hancock was out that day, so Mr. Farmer stayed at work for the night shift. Mr. Farmer gave Respondent specific directions regarding cleaning her assigned rooms, telling her that she was to go into each room and clean it completely before going to the next room. Instead of following directions, Respondent went up and down the hallway, complaining and yelling at Mr. Farmer. Mr. Farmer directed Respondent to stop, but she continued. Respondent yelled at Mr. Farmer from one end of the hallway to the other, and followed him until she was in his face, yelling at him that he gave her too much work. If Respondent had not wasted the time she should have spent cleaning to walk up and down the hallway, loudly "expressing her opinion" to her supervisor, she might have found there was not too much work. That same night, in the middle of her shift, not during a break, Respondent went to Mr. Farmer's office to fill out a vacation request. Mr. Farmer instructed her to stop; he told her that she should not take the time to fill out a vacation request when she had not finished her cleaning assignments. Respondent ignored his directive, and kept filling out her request. As Mr. Farmer aptly described it, "This was [Respondent] doing what she wanted to do instead of doing her job." As a result of Respondent's failure to follow Mr. Farmer's multiple directives on just this one day, Respondent failed to complete her cleaning duties by the end of her shift. In the December 16, 2011, letter of reprimand, Ms. Caprarotta noted that Respondent had engaged in the same kind of insubordinate and disrespectful behavior on January 5, 2004, June 26, 2008, July 23, 2009, and August 8, 2011, and each time, Respondent's outbursts targeted a different supervisor. Ms. Caprarotta gave Respondent the following directives: Effective immediately, you are expected to treat your supervisor with respect. At no time should you be screaming or yelling in the work environment. You are expected to follow directives given to you by your supervisors. You are expected to finish all work assigned. Failure to comply with this directive will result in further disciplinary action up to and including termination. Despite the directives in the December 16, 2011, letter of reprimand, Respondent engaged in the same type of behavior, which was the subject of another conference summary performance report issued on February 16, 2012, and placed in Respondent's personnel file. The subject of this conference was Respondent's disrespect toward Jeff Hancock, the head custodian, described in the summary as Respondent's "Designated Supervisor . . . when the Building Supervisor is not present." When Mr. Hancock had given Respondent directives, she refused to listen to him and was rude and disrespectful. Respondent had to be reminded again that she was required to work well with others and was required to respect her designated supervisor by following directions. In the early spring of 2012, Mr. Peters drafted Respondent's performance evaluation for the 2011-2012 contract year. This evaluation reflected a marked deterioration from the prior partial-year's evaluation, consistent with the documented problems added to Respondent's personnel file. Respondent did not improve in the dependability section, receiving two inconsistent ratings. In the job skills section, Respondent's performance was deemed inconsistent in all five areas measured. Likewise, Respondent's performance was inconsistent in five of the seven areas in the interpersonal skills section; her two effective ratings in this section did not involve communications or interactions with others; instead, Respondent was found effective in dressing in an appropriate manner and being clean and neat in appearance. The evaluation comments reflected that Respondent "had issues with respecting authority," although, as before, she had shown improvement following the most recent meeting. In addition, Respondent was told that she needed "to improve her quality of work and be more efficient." Finally, her problems with tardiness and absences were noted. In May 2012, the Lexington principal made a referral to the DPSE to investigate Respondent for misconduct, including excessive absenteeism, disrespect, and insubordination. The principal testified that she made the decision to make the referral to the district level because all of the school-level meetings, discussions, written reports, and reprimands had been ineffective in bringing about sustained improvement in Respondent's behavior and performance. The details of the 2012 investigation were not established in the record. However, in accordance with the collective bargaining agreement between Respondent's union, the Support Personnel Association of Lee County (SPALC), and Petitioner (hereafter referred to as the SPALC agreement), the investigation file was provided to Respondent and her union representative, and then a predetermination conference was held. The predetermination conference in July 2012 was attended by Ranice Monroe, director of the DPSE, Respondent, and her union representative, Mr. Rushlow. In the predetermination conference, Respondent and her representative were given the opportunity to respond to the investigation material. The 2012 investigation concluded with a finding of probable cause to take disciplinary action against Respondent. Respondent received a formal letter of reprimand as disciplinary action for excessive absenteeism. In addition to the formal disciplinary action, Petitioner took other action to address Respondent's disrespectful and insubordinate behavior. Mr. Rushlow and Ms. Monroe went to Lexington to work with Respondent for the purpose of retraining, or "coaching," her. They gave Respondent instructions on how to relate to, and communicate better with, people. As Ms. Monroe recently reminded Respondent (in the 2013 predetermination conference that was the precursor to this disciplinary action), the hope was that Respondent would respond to this informal coaching assistance by improving her behavior.2/ Instead of improving her behavior in response to the coaching assistance, Respondent made no effort to change, because she continued to deny that there was any problem with her behavior: Q: Do you remember Mr. Rushlow and others coming out to the school and to try to coach you on how to relate to other people? A: They had to come and coach me simply because they was making false accusations so I had to go to the meeting and attended the meeting. That don't mean that happened. That do not mean that I talk back to them and that don't mean that happened. The ones that say that I talked back, it was just that I was expressing and giving them my point of view. But disrespecting them? That wasn't really no disrespect[.] According to the Lexington principal, after the July 2012 predetermination conference, Respondent had clear instructions to return to work, work hard, and keep her comments to herself; however, Respondent did what she was told for only about two weeks. She then fell into her old pattern of refusing to take instruction from her supervisors, Mr. Farmer and Mr. Hancock, and talking back to them. As an example, Ms. Caprarotta got involved in an incident in September 2012 when Respondent would not listen to Mr. Hancock's instructions regarding the order in which Respondent was supposed to clean her assigned rooms. On several occasions, the kitchen science teacher had complained that her room was not being cleaned and she had to sweep and mop it herself. Meanwhile, Respondent was not able to regularly finish her cleaning assignments by the end of her shift, but Mr. Hancock would require her to clock out and leave her work unfinished, because overtime pay was not allowed without prior approval. In an attempt to partially address these problems, Mr. Hancock instructed Respondent to clean the kitchen science classroom first, but Respondent responded rudely, yelling at him. Ms. Caprarotta was informed, and spoke with Respondent about the incident. Respondent told the principal that "that man does not have to tell me what I need to do; you should hear what he says to me, he treats me like a slave." When Ms. Caprarotta asked what exactly she meant by that, Respondent replied: "He keeps trying to tell me what to do." Ms. Caprarotta informed Respondent that Mr. Hancock is her supervisor during the night shift and she had to listen to him and comply because her rooms were not getting clean every night. At this point, Ms. Caprarotta instructed Mr. Hancock to keep Mr. Farmer, Mr. Peters, and herself informed regarding Respondent's behavior and job performance. In addition, she and Mr. Peters began following up to inspect areas where cleaning problems were called to their attention, so that they could judge for themselves. While Respondent contends that she was being unfairly targeted for scrutiny, the credible evidence established that Respondent's performance was reasonably subjected to scrutiny, brought on by Respondent's own failure to perform well, and by her inappropriate outbursts directed to her supervisors when they tried to address the problems with her work. On November 20, 2012, Mr. Farmer inspected the school and provided Mr. Hancock with an inspection report that listed items and areas not cleaned sufficiently during the previous evening shift. The boys' and girls' bathrooms on the first floor, which were Respondent's assigned areas, were on the report, with specific items listed that were not cleaned.3/ Mr. Farmer also reported the cleaning deficiency to Mr. Peters, and had Mr. Peters personally inspect the first floor bathrooms. Mr. Peters agreed with Mr. Farmer's report that the bathrooms had not been cleaned properly. Mr. Hancock gave Respondent the list of items that she had failed to clean adequately the previous day. Respondent did not complete the items on the list that day, and Respondent took leave the next day, so Mr. Hancock had to finish the cleaning. Although Respondent first claimed that she was completely unaware that there were any problems with the quality of her cleaning in the fall semester of 2012, she admitted that she remembered Mr. Hancock going over a list of things that had not been cleaned in the bathrooms. Respondent minimized the problems, claiming that they were nothing substantial. Respondent's claim was not credible; Mr. Farmer observed such problems as not emptying and cleaning the feminine sanitary receptacles, and not cleaning dirt and grime on stall doors and door handles that was built up to the point where it was clear that the cleaning had not been done properly in weeks. On one afternoon after school in mid-October 2012, then-assistant principal Lisa Eastridge went to the "time-out room" to return some books. She found the room locked, with the lights off. She unlocked and entered the room, and started walking across to put away the books she was returning, when she was startled to see that Respondent was there, seated at a student desk, with her head down on the desk. At about the same time, Respondent realized that Ms. Eastridge was in the room and jumped up. Ms. Eastridge asked Respondent if she was all right, and Respondent said she was fine. Ms. Eastridge put the books down and left. Thereafter, she checked with Mr. Farmer to find out if Respondent was on her break at the time, and confirmed that it was not Respondent's break time. The next day, after Respondent learned that Ms. Eastridge had spoken to Mr. Farmer about the incident, Respondent sought out Ms. Eastridge to tell her that she had not been sleeping. Ms. Eastridge told Respondent that she did not tell Mr. Farmer that Respondent had been sleeping, but told him that she found Respondent in the time-out room with the door locked and lights off, and Respondent's head down on the desk. At the hearing, Respondent claimed that Ms. Eastridge was lying about this encounter, although Respondent offered no reason why Ms. Eastridge would lie. Respondent claimed that the actual encounter between herself and Ms. Eastridge in the time- out room was over the summer, that there were no desks in the time-out room because they had been removed so the floors could be done, that Respondent was in the bathroom off of the time-out room, and that Ms. Eastridge found her there when she exited the bathroom. While the encounter Respondent described may have also occurred, Ms. Eastridge's description of a different encounter in mid-October 2012 was credible, and not credibly refuted by Respondent. Later in October 2012, Ms. Eastridge was exiting a stairwell when she observed Respondent in a confrontation with Mr. Farmer. They had their backs to her, and so they did not see her. Mr. Farmer was speaking politely and softly, attempting to go over the cleaning procedures with Respondent, explaining that she needed to clean the home science classroom first and then make sure the bathrooms are clean. Respondent responded loudly and disrespectfully, yelling at Mr. Farmer that she knew what she was supposed to be doing, and arguing with him as he was gently trying to explain why she needed to clean the areas in a certain order. Ms. Eastridge stood there for a moment to see if she needed to intervene, but Respondent and Mr. Farmer proceeded down the hallway away from Ms. Eastridge, so she just went on her way. Ms. Eastridge also observed Respondent in similar confrontations with Mr. Hancock. On one occasion during the 2012 fall semester, Ms. Eastridge came upon Respondent and Mr. Hancock in the hallway outside of the custodial office. Mr. Hancock was trying to talk to Respondent about making sure to clean the bathrooms properly. Respondent, however, was being very loud and argumentative, yelling and screaming at Mr. Hancock. Ms. Eastridge stopped to ask Mr. Hancock if she needed to intervene and assist. Respondent attempted to downplay the confrontation, saying that they were just having a conversation. Ms. Eastridge advised Respondent that she needed to conduct her conversations in a peaceful, quiet, respectful tone of voice, not yelling and screaming at Mr. Hancock. Respondent was involved in another confrontation with Mr. Hancock on December 19, 2012. At the beginning of her shift that day, Respondent had cleaned the courtyard adjacent to the cafeteria, wiping down the outdoor tables and removing the trash. She then joined the other custodians to clean the cafeteria. Respondent noticed that teachers were bringing food out to the courtyard, and she learned that they would be meeting with parents for a parent-teacher organization (PTO) meeting. Respondent got angry and started yelling at Mr. Hancock across the cafeteria that she was not going to clean up again after the teachers were done. Respondent admitted that she asked Mr. Hancock "what type of head custodian are you," and told him that it was dumb to send her out to clean the courtyard when the teachers were going out to mess it up again.4/ Respondent did not believe she was disrespectful to Mr. Hancock: "I'm only expressing and all I told him was that was a dumb -- you know, like that was a bad choice that you made[.]" After Respondent "expressed her opinion" that Mr. Hancock was a bad head custodian who made dumb choices, Mr. Hancock just walked away. Respondent followed him to make sure he was not going to report what she had said to the principal. Mr. Hancock testified credibly that Respondent was shouting at him that he had better not report her to the principal. On December 21, 2012, Mr. Farmer inspected the classrooms before the winter break. He found that several classrooms in Respondent's assigned areas had not been dusted, cleaned, or vacuumed for quite some time. Mr. Farmer had Ms. Caprarotta inspect the rooms, and she found them noticeably dirty, with corners full of dust, dirt, and paper scraps, and shelves and counters "filthy with dust." When Mr. Farmer spoke with Respondent about these problems, Respondent blamed the teachers for doing things in the classrooms to make them so dirty. Mr. Farmer ended up cleaning the rooms himself. Mr. Farmer testified credibly that Respondent was repeatedly insubordinate to him by refusing to follow his directives, and by telling him that he was not her boss and could not tell her what to do. When Mr. Farmer tried to tell Respondent to do her job, she would laugh at him and tell him that she was going to bring harassment charges against him. Respondent denied that she ever told Mr. Farmer he was not her boss, but admitted telling him that "he really not no professional on being no building supervisor. He might have supervised where he had his cabinet shop, but you're not doing it right." Respondent also denied laughing at Mr. Farmer, but admitted threatening him with harassment charges when he would tell her to do her job. As evident from the following exchange, Respondent ultimately admitted that she did not accept direction from either Mr. Hancock or Mr. Farmer, even though she acknowledged that Mr. Farmer was her direct supervisor; Respondent then tried to blame the union for her own refusal to follow Mr. Farmer's directions, as if the union somehow had led her to believe she could be insubordinate: Q: Barbara, do you not believe that a supervisor or boss should be able to direct the people that they supervise? A: I believe so. That's why I give Ms. Caprarotta so much respect because she's our boss, but because she acted like a boss, she performed like a boss. But Mr. Farmer and Mr. Hancock, they didn't perform like they should be telling me nothing, and I should have went to the principal. I didn't never do it. I should have went to the principal with all of this, but I never did it. * * * Q: Doesn't it mean anything to you based on the respect that you have for Ms. Caprarotta that she hired Mr. Farmer and that should mean something? A: Well, as we talking now it means something now. I have respect now. But then I wasn't thinking that way. I wasn't thinking that way. I was only thinking that she's just my boss, no one else, because the union kept throwing in my face that John [sic: Jeff] Hancock, he's not your boss, he can't tell you this, and this all I was going on. You know, you know, like miss -- like Bob Rushlow said, oh, I'm gonna file a grievance I don't even know what all the half of this stuff is. Q: Do you feel like the union misled you? A: That's right. I feel like they did. Maybe I wouldn't be doing the type of acts like I was doing. Ms. Caprarotta credibly testified to the lengths that Lexington personnel went to in their attempts to curb Respondent's misbehavior and improve her work performance, including in the performance conferences detailed above and in informal conferences with Respondent and union representatives. In one of the informal conferences with Respondent and her union representative during the 2012 fall semester, attended by Ms. Eastridge, Respondent got angry and belligerent in response to Ms. Eastridge's description of Respondent's confrontation with Mr. Farmer (addressed in paragraph 50 above). Respondent slammed her hands on the table angrily and yelled at Ms. Eastridge that she was not even there. Ms. Caprarotta personally met with Respondent many times to address the numerous incidents brought to her attention during the 2012-2013 contract year. Ms. Caprarotta tried to coach, counsel, and direct Respondent to control her temper, listen to her superiors, and just do her work. Ms. Caprarotta told Respondent that if she did not heed the warnings she had been given time and time again, she was going to lose her job. Ms. Caprarotta testified that she liked Respondent and tried hard to get her on track. For a brief period after each time they met, Respondent's performance and attitude would improve. However, Respondent would always slide back into the unacceptable pattern of disrespect and insubordination directed to the head custodian and the building supervisor, and not doing a good job cleaning her assigned areas. On January 9, 2013, Ms. Caprarotta gave Respondent a 30-day notice that she would be reassigned to the day shift. The principal made this decision because she believed it was necessary to micromanage Respondent, keeping her under the watchful eyes of the principal, assistant principals, and building supervisor. There was not really a day-shift position for another custodian, and the reassignment would leave the night shift short one custodian. This move was, therefore, not so much of a solution or chance for redemption as it was a gesture of defeat. Before the reassignment went into effect on February 11, 2013, the Lexington principal made a referral to the DPSE, requesting that Respondent be investigated for insubordination and inadequate job performance.5/ As Ms. Caprarotta explained to the DPSE investigator: I have been in an administrative position for the past 16 years. I have spent more time dealing with [Respondent] than I have with any others combined. The situation is continual with little to no progress. . . . [When the shift change goes into effect], I will have to micromanage her all day every day. . . . I do not need her during the day and the night shift will now be a person short, however, I will not tolerate the insubordinate and unprofessional behavior towards my staff any longer. Respondent was under the impression that she was doing well on the day shift. However, the arrangement could not last; Respondent's job position was needed for the night shift, for cleaning empty classrooms and bathrooms when students and teachers were gone for the day. Respondent made clear in her testimony at the hearing that she is unwilling to change her behavior. During the 2012- 2013 contract year, up to the date of her suspension, Respondent was repeatedly confrontational and disrespectful with her direct supervisor, with the head custodian when he was her acting supervisor, and with at least one assistant principal. Respondent repeatedly refused to follow reasonable directives from her direct supervisor. Respondent repeatedly refused to follow reasonable directives from the night-shift acting supervisor. Respondent repeatedly refused to follow reasonable directives from the principal, such as the directive that Respondent must take direction from the head custodian. Respondent attempted to establish at hearing that the 2013 investigation took her by surprise, because she had no idea that anyone had a problem with the quality of her work or with her behavior during the 2012-2013 contract year. This claim was not credible, and was refuted by Respondent's own testimony that was diametrically opposed to the claim of surprise. Respondent testified that she knew that her performance was under scrutiny, because Mr. Farmer and Mr. Hancock watched everything she did and picked on every little thing. Quite plainly, then, Respondent was aware that her supervisors were not pleased with the quality of her work, but she did not attempt to address their criticisms. Instead, Respondent viewed the criticisms and cleaning directives as provocation for her to respond angrily and disrespectfully. According to Respondent, Mr. Farmer and Mr. Hancock made her be disrespectful and insubordinate to them; they knew that if they gave her directions, she would "snap" and refuse to follow their directions. As Respondent described it: It was always whatever you have to do they would -- while I'm doing it they would steady coming in repeating the same thing over just torturing me when I already done heard them say it. And so that make me -- provoke me to snap and say I done heard that, just get out of my face, I done heard that or something like that. It's just like it was a ongoing, never stop situation on just nagging me, that's all. So it made me felt like . . . I was doing my job, but how can I finish in time if they steady come every other 30 minutes in the room saying speed up or saying the same thing over, I want you to do this or then the next one will say the same thing. Notwithstanding Respondent's perception, a supervisor's directives to a subordinate employee regarding how the supervisor wants the employee to carry out his or her job does not constitute "nagging." Rather than treating such directives as nagging or as provocation that had to be met with a harsh response to "get out of my face," Respondent should have curbed her tongue, accepted the supervision, and followed the directives as part of Respondent's job responsibility. Respondent was not entitled to free rein to work in the manner she saw fit, nor was Respondent entitled to harshly criticize her supervisors when they sought to direct Respondent in the manner in which she was to carry out her job. No credible evidence was presented to establish that the directives given to Respondent by either Mr. Farmer or Mr. Hancock were unreasonable. Instead, Respondent just disagreed with how her supervisors wanted her to perform her assignments, and bristled simply because they would tell her what they wanted her to do. For example, when Respondent was having trouble cleaning all of her assigned rooms by the end of her shift, Respondent was directed to clean her rooms in a certain order so that the most important rooms, or the rooms that had been the subject of complaints (such as the home science classroom), would be done first. Respondent disagreed with this directive, and rather than simply following orders, she argued with the directive, violated the directive, and then argued some more. Respondent told her supervisor, Mr. Farmer, that he was not qualified for his job and had no business telling her how to clean. At the hearing, Respondent stubbornly stuck to the mantra that she was only expressing her opinion when asked, and did not intend any disrespect. Respondent's claim was not believable. Surely, Respondent does not expect anyone to believe that Mr. Farmer asked Respondent for her opinion regarding whether he was qualified to supervise her. Respondent's comments were blatantly disrespectful and grossly insubordinate. Perhaps Respondent was capable of doing a good job cleaning, but with all of the time and energy she spent complaining, criticizing, and talking back to her supervisors, she proved incapable of doing her work in the remaining time. And even though Respondent acknowledged that she had problems finishing her assigned work by the end of her shift, Respondent reacted badly whenever her supervisors would tell her to hurry up, that she needed to pick up the pace in order to finish in time. Respondent reacted to such comments as provocation for another round of angry responses, yelling at her supervisors that she did not need to hear "that junk" and that they should "get out of her face." Respondent attempted to blame her inability to finish her assigned cleaning duties by the end of her shift on the extra cleaning duties she had to absorb when other custodians were absent or tardy. Respondent attempted to prove that the custodial staff at Lexington had an unusually high number of absences and tardy days during the 2012-2013 contract year, and therefore, her inability to finish her cleaning was the fault of administration for not hiring more staff. The credible evidence did not prove Respondent's theory. Attendance data was offered only for the 2012-2013 contract year; no comparative data was submitted for other years. Testimony by school officials was that the custodial staff always took a good number of days off, especially near weekends and holidays, and they were entitled to their leave time; 2012-2013 was not considered to be an unusual year in this regard. Although the attendance data offered by Respondent showed a fair amount of absences in 2012-2013, most of the absences by night shift custodians did not take place until after February 8, 2013, which was Respondent's last day working the night shift. Respondent pointed to one custodian, in particular, who missed many whole and partial days due to an on-the-job injury. However, most of those absences were after February 8, 2013. Therefore, the absences of custodial staff were not shown to be the cause of Respondent's recurring inability to finish her assigned cleaning duties when she was on the night shift through February 8, 2013. Significantly, the only other regular night shift custodian to testify, besides Respondent, said that she has always finished her assigned cleaning duties by the end of her shift, even when she has extra cleaning duties to make up for other custodians who are not working. During the 2012-2013 contract year, up until Respondent's suspension, Respondent repeatedly was told of the shortcomings in the quality of her work, from not cleaning the bathrooms properly, to not vacuuming and mopping the home science classroom floors, to not vacuuming and dusting her assigned classrooms, to not finishing her assigned cleaning duties by the end of her shift. Moreover, Respondent was well aware of the repeated confrontations she had with the head custodian, custodian, with the building supervisor, and with assistant principal Eastridge.6/ Respondent has no one but herself to blame for minimizing or trivializing these incidents, and ignoring the many warnings and chances she was given. Inexplicably, despite all the warnings Respondent had been given that her misbehavior was unacceptable and could result in termination, Respondent decided that she did not have to take the warnings seriously, because she did not think her misbehavior was unacceptable as she had been told repeatedly: I felt like disrespecting wasn't -- if you disrespect somebody, you got to be really cursing somebody out, or this here and that, or if for me to get to get to this far I have to done stole something or demolished the school or something. In terms of process, the evidence established that Petitioner followed the procedural requirements of section 7.10 of the SPALC agreement, by conducting an investigation in early 2013 upon request of the Lexington principal, by providing the investigative file to Respondent and her union representative in advance of the predetermination conference, and by conducting a predetermination conference on March 14, 2013, at which Respondent and her representative had the opportunity to respond to the investigation material. The result of that process was the Petition, and Respondent has had every opportunity in this proceeding to put Petitioner to its burden of proof and to present evidence in defense of the charges against her. As is evident to some extent from the hearing transcript, Respondent's testimony and demeanor at hearing only served to corroborate the testimony of Lexington personnel describing Respondent's chronic misbehavior. Despite numerous instructions by the undersigned and by Respondent's own lawyer, Respondent comported herself as follows: she would not listen to questions; she gave answers that did not match the questions or that went far beyond the questions; she criticized questions directed to her instead of answering; she repeatedly offered comments when there was no pending question; she repeatedly interrupted; she was angry and belligerent at times, and impatient at other times, at one point announcing to her own lawyer in the middle of his questioning: "I want to go home."7/ Respondent's lack of self-control on display at hearing added credence to the testimony of numerous witnesses describing Respondent's chronic misbehavior that was at the heart of the charges against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order terminating the employment of Barbara Rice. DONE AND ENTERED this 20th day of December, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 December, 2013.
Findings Of Fact Upon consideration of the relevant oral and documentary evidence, the following facts are found with regard to the issues in dispute. Overall organization. Exhibit No. 5, prepared by the City Manager, is an organizational chart of employees of the City. Excluding the first block of employees under the city commission, the office manager, library director, the police department chief and uniformed officers, the fire department (which consists of volunteers only) and the superintendents of the remaining five departments, there are approximately fifty-two employees of the City. The City Manager is the chief administrative officer of the City, and all employees are ultimately responsible to him. There is a uniform pay grade classification plan throughout the City and all full time employees work a forty hour week, though their actual working schedules may differ. There are two pay schedules. Most employees are paid weekly, though some, including the office manager department, are paid biweekly. Employees receive their pay checks either at the City Hall or the city warehouse, whichever is closer to their place of employment. If an employee desires to wear a uniform, the City pays one-half of the cost of such uniform. Office manager department staff. There are nine staff members of the office manager department who are hired and fired by the office manager. The basic function of this department is finance and accounting, and the employees do basically clerical type work.. Typical responsibilities of this department include preparation of the payroll, collection of utility bills, payment of bills for purchase and supplies, and record-keeping. Eight staff members work in City Hall and one works at the city warehouse. These employees share the same hours and fringe benefits -- vacations, sick leave policy, group hospitalization, retirement plan -- as other city employees, and are paid every other week. The office manager herself does the City Manager's confidential work. Another secretary of this department devotes approximately twenty-five percent of her time doing typing or other work for the City Manager. No college degree or other specialized training is required for a position within the office manager department. All office manager staff employees have access to city personnel records, as does everyone else who inquires. It was not known whether or not such employees would have access to labor relations policy data, inasmuch as the City has no prior bargaining history. Library assistants. There are two library assistants, one full time and one part time, under the direct supervision of the library director. The full time assistant works a forty hour week and participates in the same benefits as other full time city employees. The library is open a half day on Saturday. The old library building has been torn down and a new library building is planned. During the interim, one assistant is detailed to do clerical work in the city warehouse. The City Manager testified that there is presently no job description for library assistants, but that there is no educational or previous training requirement for the positions. Their duties include assisting the public and the library director. It was not known whether they actually and independently participated in the ordering of new books for the library. Radio dispatchers. There are six radio dispatchers who are housed in the police station and are under the direct supervision of the Chief of Police, who hires, fires and disciplines them. These employees share the same benefits and work the same number of hours as other city employees. They rotate their schedules so that one dispatcher is always on duty, twenty-four hours a day, seven days a week. All emergency calls, including police, fire and general government utility calls, are relayed through a radio dispatcher. Standard operating procedures are furnished them by the superintendents of the various departments. Dispatchers do not wear uniforms and do not carry weapons. There is no formal training requirement to qualify as a dispatcher, though apparently they must be federally registered in much the same manner as a CB operator. There is no ranking system among them and no head or chief dispatcher. While there is a jail at the police station, dispatchers have no contact with or authority over prisoners housed therein. The City Manager knew of no dispatcher duties other than receiving and relaying emergency calls. In accordance with F.S. s447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Done and entered this 2nd day of June, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Suite 300 Tallahassee, Florida Mr. Stanley E. Marable Frank and Meyer, P.A. 500 Flagship Bank Building Tampa, Florida 33602 Mr. Harrison C. Thompson, Jr. Shackleford, Farrior, Stallings & Evans, P.A. P.O. Box 3324 Tampa, Florida 33601
The Issue Whether the suspension of Petitioner was authorized by statutes and rules and was for "good cause shown."
Findings Of Fact Petitioner, Mary Futch, has been employed as a Resident Life Assistant by the Sunland Center in Orlando, Florida, for six (6) years. She has attained permanent status in that classification. Mary Futch was suspended without pay from 2:45 P.M., Friday, January 21, to 11:15 P.M., Thursday, February 3, 1977, for confining a resident to a hazardous area resulting in injury to the resident. The letter of suspension was by certified mail, dated January 21, 1977, and signed by Noel Windsor, Superintendent. Delores Holmes has been a resident of the Sunland Center at Orlando since 1974. She is a well-developed white female weighing approximately 110 pounds. She is a "self-abuser" in that she violently abuses herself. When she is abusing herself, injuring herself, it is difficult to control her actions. On the evening of January 12, 1977, Delores Holmes was violently abusing herself. In the course of self-abuse, Miss Holmes was injured by breaking a window. The Petitioner, Mrs. Futch, had placed the resident, Miss Holmes, in a corner of the ward in order to keep her calm and quiet. She placed a floor mat in front of the resident to try to prevent her movement and to keep her in a quiet corner. One side of the corner of the room was a wall; the other side of the corner in which Miss Holmes was placed was a large window area. Some time after Miss Holmes had been placed in the corner, she screamed and broke the glass in the window. Petitioner heard the scream and the breaking of glass and rushed to her aid and called two others. The three tried to hold Miss Holmes and to put cold compresses on the wounds, but a doctor was needed to treat the injuries. The Petitioner, Mrs. Futch, had a good relationship with the resident, Delores Holmes. She had taught her to be affectionate, to dress herself, among other simple tasks. Prior to being placed in Mrs. Futch's care, she was unable or unwilling to perform these acts. The mat which was placed across the corner of the room in which Miss Holmes had been placed was a floor pad which measures approximately 5 feet by 6 feet and is made of a lightweight material. The mat was placed in front of Miss Holmes to prevent her from abusing herself or leaving the corner. However, it was not such a barrier that would have confined Miss Holmes had she chosen to leave. 7 . The room in which the residents lived had three large windows, including the window that was located in the corner in which the Petitioner had plated the resident, Delores Holmes. The area in which the Petitioner, Mrs. Futch, had placed Miss Holmes was no more hazardous than the other areas at the room. Obviously the room was not intended as a place in which retarded residents would live, but had not been considered as a hazardous area.
Recommendation Reverse the suspension of Petitioner, Mary B. Futch. DONE and ORDERED this 10th day of November, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1977. COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Department of Administration 530 Carlton Building Tallahassee, Florida 32304 Douglas Whitney, Esquire 1350 North Orange Avenue Winter Park, Florida 32789 Ben R. Patterson, Esquire 1215 Thomasville Road Tallahassee, Florida 32303
Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. 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 19th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
Findings Of Fact On December 17, 1981, the Respondent Department of Transportation published an advertisement announcing a vacant position for a welder at its Orlando Maintenance Yard. This advertisement specified that applicants must possess either a welder's certificate or have at least one year's welding experience. Applicants for the position had to be certified as eligible prior to the date of their employment interview. The closing date of this initial advertisement for the welder's position was established as January 5, 1982. The Department did not receive any applications for this position prior to the closing date of January 5, 1982. The Petitioner first heard about the welder's position from a friend who was working for the Department. The Petitioner went to the Orlando Maintenance Yard and read about the position on the shop bulletin board. After obtaining a chauffeur's license as required by the position, the Petitioner filed an application for the position on January 10, 1982, after the closing date for the advertisement. On January 19, 1982, the Petitioner was certified as eligible for the position of welder. On January 27, 1982, the Department readvertised the position, establishing a closing date of February 10, 1982. This advertisement was identical to the initial advertisement published on December 17, 1981. Although the Petitioner's application was received between the closing date of the first advertisement and the initiation of the second advertisement, his application was considered for the welder's position. The Petitioner was interviewed by C. P. Bronson, Sid Bronson, and W. O. Downs between January 19 and February 10, 1982. Petitioner, a black male, had the required welder's certificate and 14 years' experience as a welder. The Petitioner could execute drawings and designs, do layouts, and cut metal, which he could weld into a finished product. The welder's position had become vacant due to the promotion of the incumbent in August or September 1981. Shortly after the incumbent was promoted, C. P. Bronson spoke with John Mierstein, a white male employed at the Orlando Maintenance Yard as a mechanic, and urged Mierstein to apply for the welder's position. In September 1981, Mierstein filed an application in an attempt to become certified as a welder. Mierstein was notified that he was not qualified for a position as a welder because of lack of experience. Mierstein reapplied and, following the advice of C. P. and Sid Bronson, listed among his experiences "all-purpose welder." Mierstein was again notified that he was not qualified for the position. Mierstein had been employed by the Department of Transportation as a mechanic on July 7, 1981. Prior to that time, Mierstein had worked for eight years for the Orange County School Board. For three years, while he was with the School Board, Mierstein repaired playground equipment and gates. Welding duties were approximately 60 percent of his work time. While working for the Department, Mierstein worked with heavy equipment and mowing equipment. His welding duties were approximately 50 percent of his time. In addition, Mierstein's other duties involved rebuilding transmissions and engines on this equipment. While with the Department, Mierstein's welding duties had increased from 40 percent of the time to 60-to-70 percent of the time after the incumbent left the position of welder. The Bronsons spoke separately with Mierstein about the welding position, but, because of their knowledge of his welding work and their familiarity with his work habits, they did not conduct a formal interview. The Petitioner was interviewed by W. O. Downs, Sid Bronson, and C. P. Bronson. After the interview, Downs and the Bronsons met together and collectively arrived at a numerical rating of the Petitioner's scores in each of the nine categories reflected on the Department's Applicant Selection Guide. These categories included qualifying minimum training and experience, communication skills, motivation and interest in position, interpersonal relationships, appearance, knowledge and skills of occupational subject, education, planning and organizational skills, and ability to accomplish assignments. W. O. Downs never participated in an interview of Mierstein. Mierstein's scores on the Applicant Selection Guide were arrived at between C. P. and Sid Bronson; therefore, although the Petitioner's Exhibit 2-A indicates that all three individuals interviewed Mierstein, the evidence reflects that Mierstein was never formally interviewed by W. O. Downs. Pete Bronson, shop foreman of the Orlando Maintenance Yard, regularly encouraged his employees to seek promotion. He also assisted his employees in filling out their applications and obtaining eligibility for promotion. In the case of Mierstein, Pete Bronson spoke with a supervisor in the Orange County School Board maintenance system about Mierstein's work as a welder, specifically the amount of time Mierstein spent welding in his position with the School Board. This conversation took place before Mierstein filed his second application. This information was reported to John Dollar, former maintenance engineer for the Department of Transportation. . . . Two days prior to Mierstein's promotion to the position in question on February 10, 1982, Dollar telephoned the Department's district personnel director, Susan Bickley to obtain a certification of eligibility for Mierstein. Ms. Bickley telephonically approved Mierstein's training and experience based upon Dollar's representation that Mierstein had spent 60 percent of his time with the School Board performing welding duties. Based upon Mierstein's performance with the School Board for over three years and with the Department of Transportation for seven months, Ms. Bickley determined that Mierstein had over a year's experience in welding and therefore was eligible for the position. Ms. Bickley was authorized to certify applications for noncompetitive positions. In addition to his duties as a welder, Mierstein had experience in mechanical repairs upon the various pieces of equipment used by the Department and maintained at the shop. Ms. Bickley also provided certain information concerning the Department's hiring practices. The Department has a conciliation agreement with the FHWA to hire 50 percent minority employees in all new hiring situations. In fiscal year 1981-82, 50 percent of all new hires were minorities, and in fiscal year 1982-83, 55 percent were minorities (not including female employees). The Department had an Upward Mobility Program as set forth in Rule 14- 17.06, Florida Administrative Code. This policy provided that the Department should give priority to Department employees when they applied for a position. The Petitioner was not hired as a result of Mierstein's promotion into the vacant position.
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 denying the Petition for Relief from an Unlawful Employment Practice and dismissing Petitioner's complaint of discrimination. DONE and RECOMMENDED this 6th day of December, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1983. COPIES FURNISHED: Harry L. Lamb, Jr., Esquire 738 West Colonial Drive Post Office Box 7085-A Orlando, Florida 32854 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
Findings Of Fact Petitioner, Mose Howard, Jr., was hired by the Respondent, K-Mart Corporation, as a night maintenance man at its store number 7339 located at 2620 N. Hiawassee Road in Orlando, Florida on July 10, 1984. According to Mr. Howard, his job was to help clean up after the store closed for the evening and to -notify the store authorities if and when the alarm went off during that period. His duty hours were from 9:00 p.m. to 7:00 a.m., Monday through Friday. He worked at the store for approximately six weeks during which time, according to him, he was never told by anyone in authority that his work was unsatisfactory. On August 16, 1984, Mr. Howard was called in by Mr. King who advised him that his work was not satisfactory. Mr. Howard contends that at the time in question, Mr. Ring gave him two pieces of paper to sign and advised him that if he didn't perform better, he'd be laid off. At the time, Mr. Howard looked at the papers and determined that his name was on them, but nothing else. The form in question was a Personal Interview Record consisting of two pages and Mr. Howard contends that that portion of the record dealing with the summary of discussion held between the parties at the interview was left blank. According to Mr. Howard, he signed the form in blank because he thought it was merely a notice that he was being placed on probation. In fact, though he may not have known it, he was on a probationary period from the time he was hired. During the course of the discussion, Mr. King advised him that the store had been receiving complaints about his work from undisclosed sources and also information that he had been sleeping on the job. Mr. Howard categorically denies having slept on the job at any time during the period of his employment and Respondent produced no evidence that he had. He admits, however, that his cleaning duties may have been, from time to time, accomplished in a less than satisfactory fashion. From time to time, when he was cleaning up paper and other debris from under the counters, crews of the contractor hired to maintain the floors in the store, whose job it was to strip and re-wax the floors periodically, were working on other aisles of the store. He contends that when this crew would go from one aisle to another, they would turn off and on the lights. Because he could not turn the lights on where he was working if the crew had previously turned them off, it was too dark for him to see and clean up well. He believes that it was this inability to clean up properly because of lack of lighting that formed the basis of the complaints against him. In addition, he states, the burglar alarms would periodically sound and when this happened, it would be necessary for him to call someone to come in and turn them off. This caused him to lose work time because when the alarm sounded, he felt he had to stop working and leave-the store because, had he stayed in there, the police might think he was breaking in. While denying, unequivocally, that he ever slept on the job, Mr. Howard admitted he would sit down from time to time in the break room but only on his two 15 minute breaks or during his 30 minute meal period. There were other times, he admits, that because of the lighting situation, he was unable to work in the store while the floor crew was there. In that case, he would sit down and wait until the crew would finish where it was working and he could go back to work. Sometimes this would be for an hour or even a couple of hours and during the period of enforced break from sweeping, he would try to find something else to do like cleaning the restrooms. In this regard, according to Mr. King, the cleaning of the restrooms was an integral part of Petitioner's responsibilities and his accomplishment of these duties was also periodically and repeatedly unsatisfactory. After the personnel interview conducted on August 16, 1984, Mr. Howard finished work for the evening and left. When he returned the following evening, a Friday, he was called in by another supervisor and advised that he was discharged. He says that at this point he was not given any reason for his discharge. However, he waited around outside the store until the closing time of 9:30 p.m. (approximately a half-hour after he came to work and was fired), went into the office, and picked up his paycheck from Payroll. The check he received that night was for all that was owed him up to the end of the pay period. A few days later, (the following Monday), he went back and was given another check for the day and a half wages owed him for the new pay period up until he was discharged. Mr. Howard denies having received a call in advance to advise him his work was unsatisfactory nor was he given a reason for being fired. Nonetheless, he did not question the basis for his firing either on August 17, or the following Monday, but merely accepted the pay due him and left. Even though Mr. Howard says he was not given a reason for his discharge and does not know why he was fired, he is convinced the discharge action was taken on the basis of his race because he always did his duty to the best of his ability and worked extra hours without pay on many occasions. It is because of his own satisfaction with his duty performance that he contends his discharge must have been racially motivated. However, he admits that no one from K-Mart Corporation or the store in which he worked ever gave him any indication of a desire to get rid of him or other black employees. Further, during the period of time he worked there, he never heard any racial comments or slurs from any employees, either upper management or low level, except from one young stockboy who used the term "nigger" frequently. He admits to being told on one occasion by an employee of the contractor that he had missed an area in his sweeping and had to go back and do it again and, on several occasions, he observed areas he missed and went back and cleaned them on his own, but aside from those instances, he contends no one from the corporation ever complained to him about the way he was performing his duties until the night of August 16, 1985, when he was interviewed by Mr. King about his performance. Even on that occasion, according to Petitioner, there were few specifics in Mr. King's comments. As he remembers it, Mr. King merely stated that he was deficient in keeping the floors, the walls, the restrooms, etc. clean but Mr. Howard states that these allegations are all lies. Mr. King, on the other hand, indicates that when Mr. Howard was hired, he was fully briefed on the nature and scope of his duties and was taken around the store and shown where and how things were to be done. At that time, the routine janitorial. duties such as wet mopping the floors, cleaning the restrooms and the cafeteria, and the other items of a similar nature were clearly made known to him. In the interim, Mr. King has personally discussed his performance, which was not up to par with Mr. Howard on at least three or four separate occasions, including in his comments such things as the stools not being kept clean, the floors not being mopped, spots being left on the mirrors. These duties and others of a similar nature were solely the responsibility of the Petitioner on the nights he worked. On each occasion, Mr. King found Petitioner's attitude to be negative. Mr. Howard gives the impression he feels he is performing satisfactorily and if management doesn't like the way he's doing his job, that's too bad. Though Mr. Howard contends that the problems he faced in accomplishing his duties were caused by the low availability of light in the store after closing hours due to the actions of the contractor's crew, he never complained to anyone about this. He didn't feel he had to say anything to the contractor's employees because he did not work for them and he felt that they could see the problem because it was obvious. He also contends that he cleaned the ladies' room as he was required to do and that any unsatisfactory condition may well have been caused by two white contractor's employees who would sleep in there from time to time. Again, he did not say anything to the contractor or anyone else about this because he thought what was happening was obvious. Petitioner's deficiencies and the counselings he received for them ultimately culminated in the personal interview reduced with a written memorandum on August 16, 1985. At that time, Petitioner was told that if he didn't improve, it would be necessary to get someone else to do the job. The personal interview on August 16, 1984 was the last effort on the part of K-Mart management to get Petitioner to do a better job. The description of his deficiencies, according to Mr. King, was placed on the interview form before the interview and was given to Petitioner to read at the time. Mr. King is quite certain that Petitioner looked at the form containing these comments and signed it. The personnel manager for the store was present at the time. When the work was not done properly that August 17, 1984 when he came to work, he recommended Petitioner's termination to the store manager. The other assistant manager, Mr. Avera, concurred in this recommendation on the basis that Petitioner was simply not getting the job done. Mr. King unequivocally denies that his recommendation for termination was racially motivated. He has, in the past, recommended only one other termination of an employee. This employee was white. The list of all employees terminated by this K-Mart store from August , 1983 through November, 1984, with reasons therefor, reflects that of the three other night maintenance personnel terminated during that period, two were white and one was black. The reasons for termination include sleeping on the job, unsatisfactory performance and drug possession. Of the fifteen total employees discharged during the period, at least ten were white, four were black, and one is not identified by race. On balance it is clear that Mr. Howard was terminated not as a result of any racial motivation but simply because he was a probationary employee and management was dissatisfied with his performance during the period of probation. Mr. Howard rejects Mr. King's evaluation of him on the basis that Mr. King did not personally supervise his work and that his analysis is based on matters outside his personal knowledge. He contends that his work was always done to the best of his ability and he does not accept the possibility that his performance could have resulted in his termination. Nonetheless, he does not know if any other black maintenance employees were discriminated against or, for that matter, if any other black employees in any job were discriminated against at this facility. Mr. Howard denies signing the separation report that was prepared on the night of his discharge even though, admittedly, it bears his signature. It is for this reason as well as because of his denial that any detail was included on the interview report when he signed it that a question is raised as to the accuracy of his analysis of the situation. In substance, there is ample evidence with specifics to establish the legitimate ground of inappropriate performance as the basis for his discharge and very little evidence other than his allegation to support a claim of racial prejudice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Petition of Mose Howard, Jr. be denied. RECOMMENDED this 30th day of September, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED Mose Howard, Jr. 67 West Michael Gladden Blvd. Apopka, Florida 32703 Janice Paulsen, Esq. International Headquarters K-Mart Corporation 3100 West Big Beaver Road Troy, Michigan 48084 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303 Aurelio Durana General Counsel Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, FL 32303
The Issue The issues are whether the Respondents committed unlawful employment practices against Petitioner, and if so, to what relief is she entitled.
Findings Of Fact In the spring of 1994, Respondent CSD began operating a residential detention program for juvenile offenders pursuant to a contract with the Department of Juvenile Justice. The purpose of the program, commonly known as Hamilton House, was to provide redirection to the lives of its youthful residents/clients. Hamilton House had 48 beds divided between two dormitories. Respondent CSD assigned each resident to the appropriate dormitory, level six or level eight, depending on the type of security and rehabilitative services required. The program included an educational program as well as facilities for vocational and recreational activities. Respondent CSD employed Petitioner, a 51 year-old white female, as a resident advisor at Hamilton House from March 24, 1994 through June 30, 1996. Petitioner initially worked the 11:00 p.m. to 7:00 a.m. shift in the level six dormitory. At times she served as the acting shift supervisor though she was not paid a supervisor's wages. When Petitioner began working for Respondent CSD, she lived with her elderly mother, Lotus Musgrove, whose colon cancer was in remission. At that time, Mrs. Musgrove was able to live independently and did not need a caretaker. On April 24, 1994, some of the clients managed to gain access to a bottle containing an alcoholic beverage. Petitioner and other employees received a verbal warning for failing to adequately monitor the behavior and movement of the clients. A training letter was placed in each employee's personnel file. In May of 1995, Respondent CSD hired Bobby Williams, Sr., as a resident advisor in the level eight dormitory. Mr. Williams is a black male. He eventually assumed the position of shift supervisor for the entire facility. There is no evidence that Petitioner sought this full-time position or a similar supervisory position at any time during her employment with Respondent CSD. In October of 1995, some of the clients accused Petitioner and another staff member of inappropriate conduct including, but not limited to, furnishing them with prohibited magazines and movies. As a result of the allegations, Respondent CSD suspended Petitioner and her co-worker without pay on October 18, 1995. By letter dated October 20, 1995, Respondent CSD advised Petitioner in writing that there was insufficient evidence of misconduct to warrant termination of her employment. However, the letter stated that Petitioner had violated company policy and procedure by allowing a youth to leave his room for extended periods after curfew. Respondent CSD paid Petitioner and her co- worker for the time they were suspended during the internal investigation. Respondent CSD subsequently reassigned Petitioner and her co-worker to work in a different dormitory and on a different shift. The change in time and location of their work shift was necessary to ensure there was no contact between them and the clients who had accused them of improper conduct. Petitioner was assigned to work the 3:00 p.m. - 11:00 p.m. shift in the level eight dormitory. In a written statement dated October 23, 1995, Petitioner objected to the change in her shift. She preferred to continue working the 11:00 p.m. - 7:00 a.m. shift. She asserted that, during the day, she took care of her 78 year-old mother who had cancer. Respondent CSD did not immediately honor Petitioner's request. On or about November 24, 1995, Petitioner voluntarily purchased some supplies in the amount of $20.98 from a retail store. The supplies included the following: hand sprayers, cotton swabs, hydrogen peroxide, rubbing alcohol, highlighters, marker, Sharpies, and other miscellaneous items. Petitioner requested reimbursement from Respondent CSD because she intended to use the supplies at work. Respondent CSD declined to reimburse Petitioner for the supplies. There is no evidence that Respondent CSD ever authorized the purchase of the supplies. On December 11, 1995, a resident in the level eight dormitory attempted to discard a container of contraband tobacco. Petitioner detected his effort and responded appropriately. She received a letter of commendation for exemplary action which was placed in her personnel file. On January 23, 1996, the Office of the Inspector General of the Department of Juvenile Justice made a formal and final determination that "[i]t is inconclusive that staff members Julie Toughton and Alice Musgrove engaged in improper conduct with clients." On or about February 1, 1996, Petitioner took a box of pens and pencils from a client's desk. The client became upset and exhibited inappropriate behavior toward Petitioner. As a result of the client's tantrum, Petitioner took token-economy points from the client. Petitioner filed a written complaint dated February 4, 1996, with Respondent CSD after learning that one of her supervisors, Mike Myers, changed the client's point sheet. Petitioner's February 4, 1996, statement also asserted that Supervisor Myers was mishandling clients' mail. She complained that he was logging clients' mail and making the clients read their personnel mail to him. According to Petitioner, handling client mail was the responsibility of "line staff." On one occasion in February 1996, Petitioner was 30 minutes late reporting to her assigned duty station in the dormitory. She spent that time in the administration building because she refused to work with one of her co-workers. Supervisor Myers was responsible for changing Petitioner's time sheet to reflect a 30-minute deduction in regular time. On another occasion in February 1996, Petitioner and other employees worked two hours of overtime due to a crisis situation with one of the clients. Petitioner elected to "bank" the overtime rather than receive time-and-one-half of overtime pay. The other employees chose to receive overtime pay. Petitioner was off from work on February 22-23, 1996. When Petitioner arrived at work on February 24, 1996, her time sheet was not with the time sheets of other employees. Petitioner's time sheet was locked in a supervisor's office until February 26, 1996, because the supervisor was not at work. There is no indication in the record whether Petitioner's time sheet was locked up inadvertently or due to a dispute over Petitioner's wages. On March 1, 1996, Petitioner filed a written grievance with Respondent CSD regarding her pay. She claimed that Supervisor Myers was harassing her and discriminating against her by changing her time sheet without her knowledge. Specifically, Petitioner complained that Mr. Myers cheated her out of 30 minutes of regular time on one occasion and two hours of overtime on another occasion. She complained that her time sheet was locked in a supervisor's office for four days. On March 4, 1996, the Program Director, Dale Edwards, agreed that Petitioner should not be penalized for one-half hour of regular pay because she was in the administration building during the disputed time. Additionally, Mr. Edwards directed Supervisor Myers not to change an employee's time sheet without prior approval. He also requested that Petitioner furnish documentation that the company owed her for the two hours of overtime. Mr. Edwards was under the mistaken impression that the dispute over Petitioner's time sheet had been resolved. In March of 1996, Petitioner was working the midnight shift in dormitory eight consistent with her written request dated October 23, 1995. On March 18, 1996 and March 27, 1996, Petitioner made written requests for a change to the 7:00 a.m. - 3:00 p.m. shift. Petitioner specifically wanted to replace a Ms. Aikens on the morning shift. Respondent CSD did not honor Petitioner's request. However, there is no evidence showing that Ms. Aiken's position was ever filled, and if so, whether Respondent CSD selected a person of a different race or a younger to file the position. Petitioner was absent from work between April 8, 1996, and April 16, 1996, on April 22, 1996, and on April 29, 1996, due to illness and/or medical appointments. While she was absent, her inner-office mail box became so full that the mail had to be removed. The administrative manager gave Petitioner's mail to her supervisor. On April 23, 1996, Supervisor Myers completed Petitioner's annual performance appraisal for the period March 14, 1995 through March 14, 1996. Petitioner disagreed with the determination that she had difficulty communicating with others. Petitioner's mental health counselor, Christine Clark, sent Mr. Edwards an unsolicited letter dated April 23, 1996. According to the letter, Ms. Clark was treating Petitioner for family/employment related stress reduction. The letter states as follows in pertinent part: Due to the demands of her home environment, caretaking of her elderly mother who is dying from colon cancer, I am recommending that Ms. Musgrove be reassigned new working hours, namely a day schedule of approximately 8:00 AM until 5:00 PM in order to effectively and efficiently facilitate the evening and night care of her mother. In addition, Ms. Musgrove appears to have unresolved issues regarding her personnel file and salary still due to her for 30 minutes or .5 hour pay as well as two hours uncompensated work from several weeks ago. I personally read your approval for this compensation but apparently this has still not yet been indicated on her pay check. There also remain the allegations of her misconduct charges that appears not to be fully resolved. As an employee she does have the legal right to have these fully addressed and challenged. From my understanding that although the misconduct charges have been dropped, there are still areas that compromise Ms. Musgrove's reputation as a resident advisor. Mr. Edwards did not disclose the contents of Ms. Clark's letter to any employee of Respondent CSD other than his superiors, who advised him to get a release from Petitioner before responding to the letter. After receiving Ms. Clark's letter, Mr. Edwards had a telephone conversation with Petitioner's mother because Petitioner was not at work or at home. During the conversation, Mr. Edwards inquired about the mother's health. Mr. Edwards learned that Mrs. Musgrove's cancer had been in remission since 1993 and that she no longer required assistance with daily living activities. Mr. Edwards did not disclose any information regarding Petitioner's employment status, medical condition, or personal business to Mrs. Musgrove. Petitioner's sister placed an unsolicited telephone call to Mr. Edwards several days after he talked to Mrs. Musgrove. The purpose of the call was to thank Mr. Edwards for his concern over Mrs. Musgrove's health. During the telephone call, Mr. Edwards and Petitioner's sister did not exchange any information relating to Petitioner's employment, medical condition, or personal business. On April 29, 1996, all staff at Hamilton House received a memorandum advising them as follows, in pertinent part: As a result of the recent competitive bid conducted by District 3, Department of Juvenile Justice, Gator Human Services has been awarded the contract to operate the Hamilton County Youth Treatment Complex starting July 1, 1996. The memorandum also included information regarding the transfer of operations to the new service provider. Respondent CSD advised employees that, if requested, it would supply Gator Human Services the name, position title, hire date, and current salary of each employee of record. Respondent CSD stated that no other information would be given to the new organization without the consent of the employee. On May 1, 1996, Mr. Edwards wrote two memoranda regarding Petitioner's pay. First, Mr. Edwards directed the administrative manager to pay Petitioner for .5 hours of regular wages out of the company's petty cash fund and to get a receipt for the payment. Second, he directed the resident life manager to allow Petitioner to leave work two hours early (with pay) at a time of her choosing within the next work week. Petitioner could not "bank" the time indefinitely because Respondent CSD's contract was scheduled to expire on June 30, 1996. Mr. Edwards phoned Petitioner at home on May 2, 1996, to request a written release so that he could respond to Ms. Clark's letter. Petitioner wrote that release on May 3, 1996. The release gave Mr. Edwards permission to disclose confidential information to Ms. Clark. On May 3, 1996, Petitioner signed a written acknowledgment that receipt of $4.06 in payment for .5 regular hours would end the issue of the .5 regular hours owed to her. On May 10, 1996, Respondent Gator informed the staff at Hamilton House of the procedure for handling applications for employment with Respondent Gator's new program, Tiger Success Center. Applications were due on or before May 28, 1996. Interviews were to be scheduled between May 28, 1996, and June 7, 1996. Applicants would be advised of the final selections and employment offers by June 14, 1996. Respondent Gator requested that each applicant take a copy of their most recent performance appraisal to their employment interview. By letter dated May 13, 1996, Mr. Edwards responded to Ms. Clark's inquiry. First, he explained that questions regarding Petitioner's compensation had been resolved. Second, he stated that letters from the Department of Juvenile Justice and from the Office of the Inspector General had been added to Petitioner's personnel file, clearing her of all misconduct allegations. Third, he explained that the day shift would be the least desirable shift in terms of stress reduction because the activity level of the residents is highest during the day. Mr. Edwards also revealed that Petitioner's mother was treated successfully for cancer in 1993 and that her current health failed to support the need for a change in Petitioner's shift. Finally, Mr. Edwards noted that he had to consider the needs of the residents and other staff. A copy of Ms. Clark's inquiry and Mr. Edwards' response were placed in Petitioner's personnel file. Neither of the documents were disclosed to unauthorized persons. On May 22, 1996, the employees at Hamilton House received another memorandum advising them that after June 30, 1996, Respondent CSD would no longer operate the facility. The employees were encouraged to apply for employment with the new organization. Petitioner was scheduled for an employment interview on May 30, 1996. However, the interview was rescheduled because she was unable to keep the appointment. Petitioner's application for employment with Respondent Gator is dated May 31, 1996. She also furnished Respondent Gator with copies of three performance appraisals. Petitioner's signature on the application authorized Respondent Gator to make inquiries of references and former employers regarding her general character and past performance. There is no evidence that Respondent Gator ever made any such inquiries about Petitioner. A panel of three people representing Respondent Gator interviewed Petitioner. The panel asked her the same questions that they asked other applicants. Petitioner was very negative and critical of the existing program and Respondent CSD during her interview. After the interview, each member of the interview panel tallied their score sheets independently. All three agreed that Petitioner should not be given further consideration for employment with Respondent Gator because of her negative attitude and low interview scores. On June 13, 1996, Petitioner received a memorandum from Respondent Gator stating that the company was unable to offer her a position of employment. That same day, Respondent Gator offered employment to every other Hamilton House staff applicant except one black male, Mr. Humphrey. Respondent Gator hired a black female, Latasha Bristol, who worked in the level eight dormitory with Petitioner. Ms. Bristol is younger than Petitioner. However, she was not hired to replace Petitioner. Respondent Gator hired Ms. Bristol to work in the level six dormitory. Respondent Gator offered an employment position to a white female, Lucy Oxendine. Ms. Oxendine was over 60 years old at the time. She declined to accept a job with Respondent Gator for personal reasons. Mr. Edwards was hired by Respondent Gator to continue as program director after July 1, 1996. However, neither he nor any other employee of Respondent CSD shared any information about Petitioner with Respondent Gator or had any input into Respondent Gator's decision not to hire Petitioner. Respondent Gator based its decision not to employ Petitioner solely on the results of her interview which was very negative. On June 14, 1996, the staff at Hamilton House received a memorandum stating that anyone interested in accepting employment with Respondent Gator must sign up on June 19, 1996. On June 14, 1996, Petitioner's doctor faxed a medical excuse to Respondent CSD stating that Petitioner could not return to work for an undetermined period of time. The document indicates that Petitioner's diagnosis involved anxiety, depression, and work-related stress. The doctor commented that Petitioner was the primary caretaker of her mother who was terminally ill with cancer. The doctor's June 14, 1996, fax was received by Respondent CSD in the administrative manager's office. It was on her desk for a brief period of time before it was delivered to Mr. Edwards. There is no credible evidence that any employee of Respondent CSD disclosed the contents of the fax to unauthorized persons. Petitioner's doctor did not give her permission to return to work until after July 1, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Charges of Discrimination against both Respondent CSD and Respondent Gator. DONE AND ENTERED this 23rd day of July, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998. COPIES FURNISHED: H. B. Stivers, Esquire Levine and Stivers 245 East Virginia Street Tallahassee, Florida 32301 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by Respondent due to Petitioner's gender in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was employed as a payload operator by Respondent, a fertilizer manufacturer, at the time of her employment termination in August of 1996. Petitioner’s job duties included scooping fertilizer onto the pay loader, or front-end loader, and dropping the fertilizer into a “hopper” for subsequent loading into rail cars. Petitioner was expected, along with other payload operators, to perform other duties, including the cleaning of work areas when she ceased her loading function. During Petitioner's employment, a union contract existed between Respondent and the International Chemical Workers Union of which Petitioner was a member. The union contract governed overtime assignments, pay structure, shift structure, disciplinary/termination procedures and lay-offs, among other things. Respondent paid Petitioner and gave her breaks, contrary to her allegations, in the same manner as other employees. Governed by the union contract during the busy 1995-96 period, Respondent assigned work to employees on many different shifts. The plant operated 24 hours a day, seven days a week. Overtime requirements were based on business necessity. All employees worked the same number of hours regardless of the shift to which they were assigned. Petitioner never formally complained to anyone regarding displeasure with shift assignments. Neither salary nor number of work hours were affected by Petitioner’s assignments to different work shifts. Petitioner and other employees worked the same number of hours. Petitioner took breaks just like other employees. Changes from shift to shift experienced by Petitioner had nothing to do with her gender. The union contract governed how Respondent assigned overtime to its employees. The contract established a procedure that distributed overtime hours evenly and fairly among all of Respondent's employees. Those procedures were adhered to by Respondent and all employees were given overtime opportunities in an equal manner without regard to gender. On one occasion, Petitioner complained about her overtime assignment. She felt that she should have been called into work on a day when another operator (male) was called to come in and work. Respondent had attempted to contact Petitioner at contact numbers provided by Petitioner, without success. Safety equipment was distributed to all employees. Petitioner signed a check list indicating that she had received or knew how to request safety equipment. A pair of boots requested by Petitioner on one occasion had not yet arrived, but did arrive before the conclusion of the business day. The delay in delivery of Petitioner's requested boots to her was not related to her gender. Petitioner complained that adverse comments were made to her on the job by male workers. The alleged comments ranged from women should only do "clean up work" to "if you don't smoke or drink, we don't need you in this department." All of the alleged comments were roundly denied by Petitioner's co-workers at the final hearing. The credibility and candor of the testifying co-workers establishes that the adverse comments were not made. One incident in which Petitioner complained about her work assignment resulted in the general foreman's immediately contacting Respondent's human resource department. A meeting was then held with Petitioner to address the situation. The foreman felt confident that Petitioner would voice any additional concerns if the situation did not change. Petitioner never voiced further concerns to the foreman. Petitioner alleged that she was denied the right of free speech at a meeting attended by her, Respondent representatives, and union representatives. As established at the final hearing, she was told by the union representative to remain quiet and let him do the talking if Respondent representatives made Petitioner angry. However, the union representative did not instruct Petitioner to otherwise remain silent. Under the union contract, Respondent could terminate employees who received three reprimands within a 12-month period. Petitioner was aware of this procedure. Petitioner had numerous instances of work-related misconduct and received more than three reprimands in a 12-month period. Counseled on June 4, 1995, for damaging a payloader, Petitioner received a reprimand on July 18, 1995, for again damaging a payloader. Petitioner was counseled again on August 14, 1995, for failure to communicate with the shipping operator. On October 16, 1995, Petitioner received a second reprimand for poor work performance for mixing discarded product with good product, a violation of Respondent policy. Petitioner received her third reprimand on February 28, 1996, for loading hot fertilizer, a violation of Respondent's policy. The difficulty of loading fertilizer before it cooled was the later removal of the hot product which would harden upon cooling into a concrete-like substance. Petitioner was given a second chance and not fired upon receiving her third reprimand in a 12-month period. Management hoped that Petitioner would seek to improve her work performance. Petitioner refused to help clean the plant on July 10, 1996, and was counseled by her supervisor. On July 25, 1996, she received a verbal warning for failure to report an accident. In August of 1996, Petitioner received her final reprimand for failure to attend a company meeting at the proper time and for again loading hot product. Petitioner's employment was terminated. The various reprimands imposed on Petitioner were from different supervisors at different times. None of the reprimands were based on Petitioner's gender. After a complete review of Petitioner's case, the union representative determined that Respondent had properly terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 12th day of October, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Artie Johnson 2672 Northwest 6th Drive Jennings, Florida 32053 Mary L. Wakeman, Esquire McConnaughhay, Duffy, Coonrod, Pope, and Weaver, P.A. Post Office Drawer 229 Tallahassee, Florida 32302-0229 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
