The Issue The issue to be determined is whether Respondent, Alexander Roy, is guilty of violating section 1012.795(1)(d), (f), (g) and (n), Florida Statutes (2011). If violations are found, the appropriate penalty must be determined.
Findings Of Fact Respondent holds Florida Educator Certificate 1035877, covering the areas of mathematics, middle grades integrated curriculum, and social studies, which is valid through June 2015. At all times material to the allegations in the Administrative Complaint, Respondent was employed by the St. Lucie County School Board (SLCSB) as a mathematics teacher at Manatee Elementary School, also known as Manatee K-8 School. On or about January 13, 2012, Respondent was arrested in Osceola County, Florida, as the result of allegations that Respondent used an internet provider and “knowingly persuaded, induced, enticed and coerced an individual who had not attained the age of eighteen years, to engage in sexual activity.” The allegations were based on the probable cause affidavit of Kevin Kulp, Special Agent for the Florida Department of Law Enforcement, who worked on the undercover operation giving rise to Respondent’s arrest, which stated that Respondent contacted a person on-line that he believed to be the mother of a 13-year-old girl in order to have sex with both the mother and the daughter. The “mother” and the “daughter” were undercover police officers. As a result of Respondent’s arrest, a search warrant was executed to search Respondent’s residence in St. Lucie County, Florida. According to Detective Longson, the search revealed that Respondent possessed approximately 75-100 images of minors engaged in explicit sexual conduct. The analysis of the information seized at Respondent’s home also included photos and videos of a teenage girl, approximately 16 years old, engaged in explicit sexual acts with Respondent. On January 17, 2012, as a result of his arrest, Respondent was placed on temporary duty assignment at his home. On or about March 5, 2012, Respondent was charged by indictment with one count of Enticing and Attempting to Entice a Minor to Engage in Sexual Activity in violation of 18 U.S.C. § 2422(b), and four counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(B). A Superseding Indictment containing the same charges was filed May 31, 2012. On March 27, 2012, he was suspended without pay by the SLCSB because of the federal criminal charges against him. On April 10, 2012, Respondent was terminated from his employment by the SLCSB, based upon his inability to report for work because of his imprisonment. On or about June 15, 2012, Respondent was tried in federal court before a jury. He was found guilty of all five counts. On September 12, 2012, United States District Court Judge K. Michael Moore adjudicated Respondent guilty on all five counts, and sentenced him to life in prison as to Count 1, and 120 months of incarceration as to each of Counts 2 through 5, with the penalty for all five counts to be served concurrently. Upon release, Respondent is to be placed on probation for life, a condition of which is to comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901. et seq.), as directed by the probation officer, the Bureau of Prisons, or any state sex offender agency in a state in which he resides, works, is a student, or was convicted of a qualifying offense. Also included in the Special Conditions of Supervision are that Respondent may not possess or use any computer, with the exception of pre-approved use in connection with authorized employment; that Respondent shall not have personal, mail, telephone, or computer contact with children under the age of 18; that Respondent shall not be involved in any children’s or youth organization; and that Respondent shall participate in a sex offender program. Respondent’s arrest, prosecution, and conviction were covered by the media, in the newspaper and on the radio, television, and internet. Respondent’s conviction significantly impairs Respondent’s effectiveness as a teacher in the community. Respondent’s certification is for middle school grades. The prohibition from having contact with children under the age of 18 makes it impossible for him to hold employment as a teacher in the public school system. As stated by Maurice Bonner, the Director of Personnel for St. Lucie County Schools, “[t]here is absolutely no way that the students and the parents and the community would have any faith in him being alone in a classroom with kids even for one minute. And he would not be able to effectively be in a classroom. Or be on campus, period, where there are children present.” His testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent guilty of all four Counts in the Amended Administrative Complaint and permanently revoking his certification. DONE AND ENTERED this 2nd day of August, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2013. COPIES FURNISHED: David Holder, Esquire J. David Holder, P.A. 387 Lakeside Drive Defuniak Springs, Florida 32435 Alexander Roy, Register # 99238-004 United States Penitentiary Post Office Box 24550 Tucson, Arizona 85734 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent violated the Florida Civil Rights Act of 1992 by committing unlawful employment practice (discrimination) on the basis of Petitioner's sex (female), National Origin (Hispanic), handicap when it terminated Petitioner from employment, or on the basis of sexual harassment.
Findings Of Fact As noted above in the Preliminary Statement, the parties have entered into an Agreement of Settlement and Mutual and General Release. Their agreement, in pertinent part, includes the following: "DM, on the one hand, and JBF (under the name Joe Blasco Cosmetics), on the other hand, are parties to proceeding which took place before the State of Florida Division of Administrative Hearings, in Case No. 01- 2328, on about June 28, 2001, with respect to DM's claims of discrimination against JBE (the"Action"). Each of the parties hereto considers it to be in its best interest, and to its advantage, forever to settle, adjust, and comprise all claims and defenses which have been, or could have been, asserted in connection with the employment relationship, the Action, and/or in an other action or proceeding arising out of any employment or other relationship between the parties hereto. The terms of this Agreement are contractual, not a mere recital, and this Agreement is the result of negotiation between the parties, each of whom has participated in the drafting hereof, through each of the parties' respective attorneys. Diana Morales shall dismiss with prejudice Case No. 01-2328 pending before the State of Florida, Division of Administrative Hearings. Diana Morales agrees to execute and file any and all documents necessary to dismiss her claim and advise any and all documents necessary to dismiss her claim and advise any investigative bodies, administrative bodies and/or courts that she has withdrawn, dismissed and resolved any and all claims with Joe Blasco Cosmetics, Joe Blasco Enterprises and/or Joe Blasco." The parties' stipulated settlement agreement constitutes an informal disposition of all issues in this proceeding.
The Issue The first issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011), as alleged in the Administrative Complaint. If so, the second issue for consideration is what penalty should be imposed for such a violation.
Findings Of Fact At all times relevant to this proceeding, Respondent was a certified law enforcement officer, having been issued Law Enforcement Certificate Number 194525 by the Criminal Justice Standards and Training Commission. At the time of the incident in question, Respondent was employed by the FHP. For an unspecified time prior to July 11, 2011, Respondent was involved in a relationship with a woman named Tamarah Rasmussen. For some period, she shared his home with him. However, in the weeks or months preceding July 11, 2011, the couple’s relationship had deteriorated, and Respondent wanted it to end. He had, however, allowed her to remain in the home “as a friend.” On July 10, 2011, the couple had a fight, and Respondent left the house. On July 11, 2011, Respondent returned to the home after his work shift, and told Ms. Rasmussen that he wanted their relationship to end. Respondent told her he wanted to sleep in a separate bed, and took the mattress pad off of a bed in a bedroom downstairs and put it on a separate bed upstairs. Ms. Rasmussen reacted by taking the mattress pad off of the second bed and throwing it out the window. Respondent retrieved the mattress pad. Ms. Rasmussen then poured a container of water on the bed where Respondent intended to sleep. Respondent turned on the video function on his cellular phone and asked Ms. Rasmussen about her actions. She responded by telling him he was a fool and an idiot, and that he was crazy. In what can be gleaned from the tape, Respondent asked her to take her things and leave. Instead, Ms. Rasmussen approached Respondent trying to get his phone as he started to go upstairs, and began hitting him. He can be heard on the cell phone recording repeatedly asking her to stop. Ms. Rasmussen repeatedly answered “no,” and “this was good enough for you last night,” and the sound of her striking Respondent can be heard clearly. This altercation occurred as Respondent attempted to retreat up the stairs. At one point, Respondent exclaimed that Ms. Rasmussen had hit him in the face, and Ms. Rasmussen responds, “yeah, I did.” Respondent and Ms. Rasmussen end up in what appears to be a walk-in closet upstairs. At that point, Respondent told Ms. Rasmussen that she was “going down,” and that he would “arrest her myself.” Respondent appeared to be out of breath. Ms. Rasmussen responded by telling him repeatedly that she was not under arrest and he was not arresting her for anything. She told him several times to stop, and to “get off of her,” stating that she could not breathe. Eventually, she told him that he had won, and asked him to help her up. Ms. Rasmussen testified that Respondent dragged her up the stairs, hitting her head on the stairwell on the way up. She testified further that he slammed her against the wall, handcuffed her behind her back, and was sitting on top of her while he did so, and while she pleaded with him to stop. According to her, Respondent hit her several times during the time they were in the closet, and then dragged her back down the stairs by the chain on the handcuffs. She also stated that Respondent threatened to kill her, saying that if he did so he could dispose of her body in the pond on the property and no one would know unless they drained the pond. Respondent, on the other hand, testified that Ms. Rasmussen began hitting him around the head and neck, and he was retreating up the stairs in an effort to get away from her, telling her repeatedly to stop. He testified that once they reached the closet, he told her he was arresting her and placed her hands behind her back in order to handcuff her. When she told him he was not arresting her for anything, he warned her not to “make me Taze you,” and finished placing the handcuffs on her wrists, behind her back. Respondent denied sitting on Ms. Rasmussen, saying that he knelt on one knee with one foot flat on the floor, and with Ms. Rasmussen secured between his legs, as he learned in law enforcement training. While Ms. Rasmussen testified that he dragged her down the stairs of the house and then threw her down the outside steps, Respondent testified that he carried her down the stairs of the home so as not to injure her, but that she was resisting him. While the taped recording contained sounds indicating that Respondent was being hit by Ms. Rasmussen going up the stairs, the same is not true with respect to the descent. Ms. Rasmussen can be heard telling Respondent to stop, but there is no sound that can be attributed to her head banging against the wall or anyone being dragged down the stairs. Once they were both downstairs, Respondent called in a “1024” on his FHP radio, which means “officer in jeopardy, send help as soon as possible.” The consensus of those officers testifying was that this call is rarely used and is the equivalent of “calling the calvary,” because the officer needs help immediately. Both Rasmussen and Respondent exited the home once the 1024 call was placed. Rasmussen testified at hearing that Respondent offered to take the handcuffs off of her and she refused the offer, saying that she wanted the responding officers to “see me exactly this way.” She got in his truck, which was parked near his locked law enforcement vehicle, and shut the door to get out of the rain. Law enforcement responding to the 1024 call were Marcus Bailey, an investigator with the Bay County Sheriff’s Office; FHP Major Eddie Johnson; and Lieutenant Davis Ward of the Bay County Sheriff’s Office. Their arrival at the home was approximately twelve minutes from the call being received by the FHP dispatcher. The Bay County Sheriff’s Office conducted the investigation of the matter, and because a law enforcement officer was involved, the investigation was conducted by supervisors. As a result of the incident, Respondent was placed on administrative duty on July 11, 2012, and terminated from the FHP July 16, 2012. The officers who responded all saw the video of the cell phone recording, which was also played several times during the course of the hearing. While, curiously, two of the three refer to Respondent as “taunting” Ms. Rasmussen at the beginning of the video, the video does not display or record anything that the undersigned could describe as taunting. It portrayed Respondent expressing dismay at Ms. Rasmussen’s behavior; Respondent requesting that she get her things and leave; Ms. Rasmussen’s angry response; the sounds of Ms. Rasmussen hitting Respondent; Responding placing her under arrest and reciting her rights; and Ms. Rasmussen’s angry response and cries for help and for Respondent to let her go. Respondent’s supervisor, Sergeant Ronnie Baker, testified that Respondent was a great employee who went “above and beyond,” and who prior to this incident (which Sergeant Baker did not witness), had no complaints against him. Sergeant Baker, among others, testified that Ms. Rasmussen had a reputation for untruthfulness. The undersigned reviewed the tape several times. It is of limited assistance in deciphering what is, in reality, an event where the only witnesses are the participants, Respondent and Ms. Rasmussen. However, after listening to the tape and observing the demeanor of witnesses (both at hearing and in the tape), Ms. Rasmussen’s account of the incident is simply not credible. The sounds on the tape clearly support the testimony that Ms. Rasmussen was hitting Respondent repeatedly as they went up the stairs. There are no corresponding sounds to support her contention that he slammed her head into the wall or dragged her down the stairs. Moreover, the pictures of Ms. Rasmussen do not clearly depict bruising or swelling consistent with her description of the incident. There are slight red marks on Ms. Rasmussen’s wrists, but they do not provide clear and convincing evidence that he dragged her anywhere, much less down the stairs. The marks on her arms are just as likely to indicate her resisting his efforts to carry her down the stairs. Moreover, her claim that he threatened to kill her and dispose of her body in the pond on the property is totally inconsistent with Respondent’s actions in placing a 1024 request for assistance, and waiting at the front of the property for assistance to arrive. The Administrative Complaint charges Respondent with use of excessive force by slamming Ms. Rasmussen’s head and/or placing handcuffs on the victim tightly and/or dragging her down the stairs while handcuffed. There is no clear and convincing evidence that Respondent slammed Ms. Rasmussen’s head against anything; that he put the handcuffs on her too tightly; or that he dragged her down the stairs while handcuffed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of January, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2013. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Philip S. Spaziante (Address of record) Sandra Renee Coulter, Esquire Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gerald M. Bailey, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing and apparent intent to withdraw her request for an administrative hearing.
Findings Of Fact The Notice of Hearing in this case was issued on May 22, 2012, setting the hearing for July 17, 2012, at 9:30 a.m., by video teleconference at sites in Tallahassee and Fort Myers, Florida. Also, on May 22, 2012, an Order of Pre-hearing Instructions was entered. Respondent timely complied with the pre-hearing requirements by filing a witness list and exhibit list and tendering its proposed exhibits, all of which were served on Petitioner. Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits. Petitioner spoke by telephone with a secretary at DOAH on July 16, 2012, the day before the scheduled hearing, and indicated that she had sent a letter withdrawing her hearing request; however, to this day, no such letter has been received. Petitioner was advised to send another written statement confirming that she was withdrawing her hearing request, and she indicated she would do so by facsimile that day. However, no such facsimile was received by DOAH. After hours on July 16, 2012, a typed, but unsigned letter, was sent by facsimile to counsel for Respondent. The letter appears to have been sent by Petitioner and states that she wished to cancel the hearing scheduled for July 17, 2012. Petitioner did not make an appearance at the scheduled hearing at the start time or within 25 minutes after the scheduled start time. While it would have been better practice for Petitioner to file a written, signed statement with DOAH to withdraw her hearing request, it is found that Petitioner intended to withdraw her hearing request, and that is why Petitioner did not appear at the scheduled hearing. Petitioner should have made her intentions clear sufficiently in advance of the scheduled hearing to avoid the inconvenience and expense of convening a hearing by video teleconference and assembling all of those who were prepared to go forward.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. DONE AND ENTERED this 3rd day of August, 2012, 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 3rd day of August, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Todd Evan Studley, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 Natalie Goldenberg Post Office Box 7388 Fort Myers, Florida 33911
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
The Issue Whether the Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, Lakeyta Givens, is a black female, and was first employed by the Respondent on February 6, 2001. The Petitioner had no experience in the business of re- financing real property; however, the Petitioner was trained by the Respondent, and was given one promotion and a pay-raise. She became sufficiently knowledgeable and productive that she was tasked to train other employees. After she had been with the company for nearly two years, her supervisor wanted to step down for personal reasons. This opened up a position with greater responsibility and increased pay. The Respondent was a closely held corporation owned and operated by Anthony and Rachel Catanzeriti. Anthony Catanzeriti was the manager of the office and was there daily. His wife, Rachel, was the president of the corporation and was not there on a daily basis. She did, however, exercise primary control over the company. Anthony Catanzeriti asked the Petitioner if she would be interested in moving into the supervisor's position at a salary of $15.00 per hour, a raise of $5.00 per hour. The Petitioner indicated that she would be pleased to make the move. Mr. Catanzeriti indicated that his wife would have to approve the promotion, and that he would talk to her about the promotion. There was no action on the promotion for a long time. The Petitioner was concerned about the status of her promotion. The Petitioner heard during this time that Rachel Catanzeriti had stated that she "would not have a nasty nigger work in the company." The Petitioner asked to speak about her promotion with Mr. and Ms. Catanzeriti, but because of various mutual indispositions a meeting was delayed. On February 3, 2003, Rachel Catanzeriti came in to do some personnel work, and a meeting was arranged at which Mr. Catanzeriti was not present. From the content and progression of this meeting, it was clear that the Petitioner was concerned that she was not being promoted because of her race. The Petitioner immediately confronted Ms. Catanzeriti about the purported racial slur. Ms. Catanzeriti denied having made such a remark; however, she immediately became angry. The meeting never addressed the promotion because of Ms. Catanzeriti's anger. In an effort to de-escalate the situation, the Petitioner walked out of the office. Ms. Catanzeriti followed the Petitioner out of the office and between buildings continuing the heated exchange. The Petitioner asked her to discuss the racial epithet, and Ms. Catanzeriti, replied, "Let's talk about your big fat ass." Very shortly after this comment and within the same argument, Ms. Catanzeriti fired the Petitioner. Subsequently, the supervisor's position was filed by a white female, whom the Petitioner had previously trained. The Petitioner's work record was good, and her attendance was regular. She was unable to find employment until April 2004. After the Petitioner had been fired, U S Mortgage, Inc., was closed by the Office of the State's Attorney. The Petitioner reported that Mr. Catanzeriti was currently imprisoned out of state, and Ms. Catanzeriti was living in Texas.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter its final order directing that the Respondent desist from discriminatory employment practices and awarding the Petitioner $4,800.00 in damages for lost wages. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lakeyta Givens Post Office Box 293 Sanderson, Florida 32087 U S Mortgage, Inc. 28 West Macclenny Avenue, Suite 14 Macclenny, Florida 32063 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be determined in this case is whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered.
Findings Of Fact Petitioners Diana Sexton and Freddie Sexton were carriage drivers for Gam-San, Inc., which was known by the fictitious name of St. Augustine Transfer Company. They conducted ghost tours and history tours in the historic district of St. Augustine. No evidence was presented regarding Mr. Sexton's race or either Petitioners' age. At the time of the incident giving rise to this proceeding, Diana Sexton had worked for Respondent for approximately one and a half years. Freddie Sexton has worked for the company in the same type of position for a shorter period of time. Petitioners are married to each other. Petitioners drove carriages pulled by horses, and gave tours to the public. They sometimes stayed overnight at the barn owned by Respondent in order to water the horses. They did not have permission to stay at the barn, but Ms. Sexton considered it to be a benefit in exchange for watering the horses at night. Diana Sexton acknowledged that Petitioners had been informed that they were expected to find another place to stay before the end of the "Nights of Lights" (although no explanation was provided regarding what time frame this entailed), but denied that Petitioners were ever told to leave or not to stay at the barn. Employees hired by St. Augustine Transfer were usually hired as carriage drivers, stall people, or barn managers. Both stall people and barn managers were paid minimum wage. Carriage drivers, like waitresses, receive tips from customers as part of their pay. Generally, with tips, drivers are the highest paid employees of the business. It would not be considered a promotion to go from a position as driver to either stall person or barn manager. Petitioners did not work on December 25, 2007. They apparently spent the night at the barn the night before and left the work premises in the morning. At some time in the evening, Petitioners returned to the business premises, ostensibly to retrieve some of their belongings that were in the barn. While they were present on the property, the police came, indicating that they had received a call complaining of a disturbance. Petitioners were believed to be the cause of the disturbance and were asked to leave. Petitioners refused to leave without speaking to Stuart Gamsey, and denied creating any type of disturbance. Eventually they left the premises at the insistence of the police. They claim they were not allowed to return to retrieve their belongings for several days, and were discharged from their jobs. The evidence is in conflict over what, if anything, was occurring on the premises of the business the evening of December 25, 2007. However, the more credible admissible evidence indicates that at least two calls were made to Stuart Gamsey, the then owner of St. Augustine Transfer Co. The calls involved complaints about Petitioners' drinking, yelling, and generally creating a disturbance on the property. One call was made by police officers on the scene. Mr. Gamsey had not given Petitioners, or any other employees, permission to stay on the premises when not working. He could not say whether there was actually a disturbance on the premises, but confirmed that in response to the calls he received, he asked the police to do "whatever it took" to get Petitioners to leave the property. His goal was simply to end whatever disturbance might be occurring. Petitioners' employment was terminated by St. Augustine Transfer. It is not entirely clear from the evidence presented whether the December 25, 2007, incident formed the basis for the termination or whether other factors were involved. It is clear, however, that Petitioners resisted leaving the premises at a time when they did not have permission to be there. Stuart Gamsey sold the business in the summer of 2008. He currently has no responsibility for the hiring practices of St. Augustine Transfer Co. or its successor. No competent, credible evidence was presented indicating that any other employee was allowed to stay on the premises outside of work hours. Petitioners also claim that Mr. Sexton was discriminated against based upon his marital status because someone, presumably another employee, left K-Y jelly in his carriage, and on one occasion, a patron tipped another employee to make sure she could ride in his carriage and engage in inappropriate behavior designed to seduce him. However, no competent, credible evidence was presented to show who placed the K-Y jelly in Mr. Sexton's carriage or for what purpose, if any, it was left. Likewise, no competent, credible evidence was presented to support the allegation that placing the patron in Mr. Sexton's carriage was for any discriminatory purpose. No evidence was presented regarding any other proceedings of any type involving Petitioners and Respondent.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioners' Petitions for Relief and denying Respondent's Motion for Attorney's Fees. DONE AND ENTERED this 20th day of January, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2009. COPIES FURNISHED: Freddie J. Sexton Diana J. Sexton Post Office Box 105 St. Augustine, Florida 32084 Regina Sargeant, Esquire 2820 US 1 South, Suite F St. Augustine, Florida 32086 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 is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Phillips is a person of the masculine sex. He was employed as a maintenance foreman at Respondent Martin Stables South, Inc. (Martin Stables), of Reddick, Florida, from May 19, 2005, until June 27, 2005. Edmund Martin is the president of Martin Stables. He is also the only stockholder. Mr. Martin is aware of the number of employees working at Martin Stables. He testified that Martin Stables had less than 15 employees during the period May 19, 2005 to June 27, 2005. Moreover, he testified that Martin Stables never employed 15 or more employees in the current year, or in the year preceding May 19, 2005. He further stated that Martin Stables had never employed as many as 15 employees at any given time. Mr. Phillips provided no evidence contradicting this assertion.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations dismiss the Petition. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John L. Phillips Post Office Box 771011 Ocala, Florida 34477 David A. Glenny, Esquire Bice Cole Law Firm, P.L. 1333 Southeast Twenty-Fifth Loop Suite 101 Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race, subjected Petitioner to a hostile work environment, or retaliated against Petitioner in violation of the Hillsborough County Human Rights Ordinance 00-37, Section 4(1)(a)(1).
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is an African-American female and filed a complaint with the Board alleging that Respondent engaged in race, color, and gender discrimination; retaliation; and the creation of a hostile work environment. Respondent is an employer within the meaning of Section 16. Respondent operates a car dealership and is in the business of selling and servicing new and used automobiles and trucks in several states, including Florida. Respondent was not Petitioner's employer. Petitioner was a temporary worker during the relevant period, and her employment contract was with an employment agency. No written employment contract existed between the parties to this proceeding. The employment agency paid Petitioner, and Respondent paid the employment agency. The employment agency assigned Petitioner to Respondent from January 13 through January 23, 2004. Other than Petitioner’s uncorroborated testimony, there is no written or other evidence that Respondent intended Petitioner’s temporary assignment either to become a permanent position or to last for six weeks. The fact-finder finds the testimony of Petitioner to be less than credible and persuasive. From January 13 until January 21, 2004, Petitioner worked at Respondent's Tampa office at Lexus of Tampa Bay located on North Dale Mabry Avenue, Tampa, Florida. Respondent transferred Petitioner to its office at Lexus of Clearwater, Florida, on January 21, 2004, and terminated the assignment from the employment agency on January 23, 2004. The termination of assignment occurred in Pinellas County, rather than Hillsborough County, Florida. Petitioner began her assignment at Lexus of Tampa Bay on January 13, 2004, as a receptionist. Respondent paired Petitioner with Ms. Mary Ann Browne, a full-time receptionist and Caucasian female. Respondent charged Ms. Browne with training Petitioner in the responsibilities of a receptionist. Petitioner alleges that Ms. Browne engaged in unprofessional conduct during the 10 days she trained Petitioner. The unprofessional conduct, according to Petitioner's testimony included "racial undertones." For example, Ms. Browne asked Petitioner why, "Black people are all family, cousins, sisters, brothers." Petitioner responded, "Don't ask me. I wouldn't be that black." Ms. Browne allegedly stated aloud that two female employees who hugged in greeting each other were lesbians. Ms. Browne allegedly called another African-American employee a "pimp" and referred to an Hispanic employee as a "macdaddy." The fact-finder does not know the meaning of the term "macdaddy," or even how to spell the term, and the record does not provide an adequate definition or spelling. Ms. Browne allegedly referred to homosexual customers as "flamers." Finally, Ms. Browne allegedly engaged in threatening physical behavior by tossing items at Petitioner across the reception desk. No one but Petitioner heard the alleged racial and sexist comments by Ms. Browne or witnessed the physically aggressive behavior. The preponderance of evidence does not establish a prima facie showing of discrimination or retaliation. Nor does the preponderance of evidence show that Respondent subjected Petitioner to a hostile work environment. Finally, a preponderance of the evidence does not show that Respondent engaged in a discriminatory practice. The evidence of Ms. Browne's conduct consists of Petitioner's testimony and a diary that Petitioner created contemporaneously with the acts Petitioner attributes to Ms. Browne. No other employees at Lexus of Tampa Bay witnessed the events evidenced in Petitioner's testimony and diary. Ms. Browne left her employment with Respondent in the fall of 2004 and did not testify. Ms. Toni Davis, now Ms. Toni Scotland, was a receptionist during part of the relevant time but was not present during the entire time because she was being promoted to a position in accounting. Ms. Scotland did not recall any improper behavior by Ms. Browne in 2004. The Investigative Report based its recommendation of a finding of cause on statements attributed in the Report to then Ms. Davis and the documentation of the disciplinary action taken by Respondent against Ms. Browne. However, Ms. Scotland testified that she did not recall being contacted by an investigator for the Board and denied making any statements to the investigator. The investigation took approximately 3.5 years to complete because the investigator is the only investigator for the Board and because the investigator suffered a heart attack during the investigation. At the hearing, the testimony of the investigator concerning statements he attributed to Ms. Scotland, also Ms. Davis, was vague and sparse and is less than credible and persuasive. A preponderance of the evidence does not show that Respondent is responsible for the acts Petitioner attributes to Ms. Browne. Petitioner complained to her employment agency about the conduct of Ms. Browne. The employment agency notified Respondent, and Ms. Helene Ott, the supervisor at the time, interviewed both Petitioner and Ms. Browne on January 19, 2004. The only complaint made by Petitioner to Ms. Ott on January 19, 2004, was that Ms. Browne went to the break room to bring back a drink in separate disposable drink cups for Ms. Browne and Petitioner. Upon returning with the drinks, Ms. Browne told Petitioner that Ms. Browne had spit in Petitioner's cup. Petitioner did not tell Ms. Ott that Petitioner witnessed Ms. Browne spit in the cup. Petitioner's version of events changed at the hearing. Petitioner testified that she saw Ms. Browne spit in Petitioner's cup. Petitioner testified that Ms. Browne offered to refill the cup Petitioner already had on the receptionist desk, grabbed the cup, stood, drew up a large volume of spit from deep in Ms. Browne's throat, and let the long volume of liquid drop into Petitioner's cup in full view of Petitioner. Petitioner further testified in tears that she stated repeatedly to Ms. Browne, "Give me back my cup!" The foregoing testimony of Petitioner is less than credible and persuasive. The fact-finder is not persuaded that any reasonable person would have wanted Ms. Browne to return the cup. The cup was a disposable cup from the vending area which was of no value to Petitioner. Petitioner did not relate this version of the events to Ms. Ott when Ms. Ott investigated Petitioner's complaints on January 19, 2004. The version of events that Petitioner related to Ms. Ott on January 19, 2004, is consistent with the contemporaneous account by Mr. Browne. When Ms. Ott interviewed Ms. Browne on January 19, 2004, Ms. Browne admitted that she told Petitioner she had spit in Petitioner's cup when Ms. Browne returned from the vending area to the reception desk with Petitioner's drink. Ms. Browne also admitted to engaging in offensive language, offensive commentary about customers, and unprofessional conduct. A preponderance of evidence does not show that Respondent created or fostered a work environment that was hostile toward Petitioner. On January 19, 2004, Ms. Ott issued a written counseling/final warning to Ms. Browne for her use of “offensive language, offensive commentary about customers, and unprofessional conduct.” The disciplinary action advised Ms. Browne that any further misconduct would result in the termination of her employment. On January 20, 2004, Ms. Ott interviewed Petitioner again concerning additional complaints from the employment agency. Petitioner told Ms. Ott that Ms. Browne used vulgar and unprofessional language, but Petitioner did not state to Ms. Ott that Ms. Browne made racial or sexist comments. On January 21, 2004, Ms. Ott needed to fill another temporary vacancy at Lexus of Clearwater. Ms. Ott asked Petitioner to go to Clearwater, and Petitioner went to the Clearwater office voluntarily. Respondent ended the employment agency assignment on January 23, 2004. Ms. Ott described Petitioner’s performance as “very good." On January 23, 2004, Ms. Ott offered to write a letter of reference for Petitioner. Ms. Ott told Petitioner that Ms. Ott would consider Petitioner for a position at Lexus of Tampa Bay or Lexus of Clearwater if the need arose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is not guilty of the allegations made by Petitioner. DONE AND ENTERED this 7th day of August, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2008. COPIES FURNISHED: Leslie P. Stokes 4714 Pleasant Avenue Palm Harbor, Florida 34683 Gail P. Williams Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Andrew Froman, Esquire Alva L. Cross, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602
