The Issue Whether Respondent, First Coast Technical College (Respondent) retaliated against Petitioner, Gregory R. Lulkoski (Petitioner) in violation of the Florida Civil Rights Act of 1992 (FCRA), section 760.01-760.11, Florida Statutes?1/ Secondary issues raised by Respondent are whether the St. Johns County School Board (School Board) is immune from Petitioner’s allegations, and, if not, whether the School Board was Petitioner’s employer during the relevant period.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the School Board by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). A charter technical school is a creature of Florida statute, distinct from school boards and districts, including those school districts in which they are located, which act as the sponsor of the school. FCTI and the School Board entered into a charter which governed the operating relationship between them. The last operative charter between FCTI and the School Board became effective July 1, 2013. The School Board was the sponsoring entity of FCTC under the charter. The School Board had no involvement in the day to day operations of FCTC when it was operated by FCTI. FCTI had its own management team and board of directors. FCTI had its own articles of incorporation, employment handbook, organizational structure, management plan, human relations (HR) director and department, and its own legal counsel. FCTC’s president, Sandra Raburn-Fortner, entered into a contract of employment with FCTI. No one from the School District is on FCTI’s organizational chart. FCTI and FCTC management, and not the School Board, were responsible for the daily operations of FCTC and all personnel matters of FCTC employees. FCTI had its own procedure in its employee handbook for reporting discrimination and harassment. FCTC employees were designated as School Board employees solely for wage payments, benefits, and collective bargaining purposes under the charter. For this reason, FCTC employees received checks and tax documents from the School Board and the School Board remitted contributions to the Florida Retirement system on their behalf. FCTI reimbursed the School Board for these pass-through expenditures, and the School Board charged FCTI a fee for this service. The School Board’s only involvement in personnel- related decisions of FCTC was the ministerial act of the School Board superintendent signing off on employment decisions made by FCTI officials, which were then placed on the consent agenda of the School Board to be approved at its next meeting. This process--which was necessary given the fact that FCTC employees were designated as School Board employees under the charter for wage payment, benefits, and collective bargaining purposes-- involved ensuring the statutory requirements to take an employment action were met, but did not involve second-guessing the merits of the personnel decisions made by FCTI. Indeed, the charter expressly provides that the School Board assigns and FCTI assumes and retains all responsibility for FCTC employees, including responsibility for the selection and discipline of employees, and all other aspects of the terms and conditions of employment at FCTC. Petitioner submitted his application for employment to FCTC. Petitioner had an FCTC e-mail address and not a school district e-mail address. The School Board was the signatory to some grant applications for funding to be expended at FCTC, however, FCTI was responsible for fulfilling the obligations relating to the grant awards, and appropriately utilizing those funds at FCTC. The School Board was not involved in the day to day administration of programs funded by those grants at FCTC. During the spring of 2016, district personnel became aware of financial irregularities at FCTC through its monitoring of FCTI’s unaudited financial statements. Under state statute, the School Board was required to take certain actions as the sponsor of FCTC when put on notice that FCTC might be in a deteriorating financial condition. The School Board investigated those irregularities and found significant financial mismanagement and budgetary shortfalls at FCTC under FCTI’s administration. On May 3, 2016, the School Board declared that the school was in a deteriorating financial condition. This declaration triggered statutory obligations on the part of the School Board and FCTC to develop a corrective action plan to address these issues. On May 26, 2016, the School Board served a notice of financial emergency stating that it had reason to believe that there was a financial emergency at FCTC and that there was no way to save FCTC other than to terminate the charter and begin operating the programs at FCTC itself. The School Board Superintendent sent a letter to FCTI’s board on June 8, 2016, detailing the findings of the School Board’s investigation into FCTC and the financial issues plaguing the school. On June 14, 2016, FCTI’s board voted to terminate the charter with the School Board and cease operating the programs at FCTC, effective June 31, 2016. On June 15, 2016, the School Board voted to approve an agreement to terminate the charter with FCTI and to take over the programs at FCTC effective July 1, 2016. As part of this transition of the responsibility for operating FCTC, the School Board and FCTI entered into an agreement specifically stating that any liabilities of FCTC arising prior to July 1, 2016, would not be assumed by the School Board. Just before the School Board began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed his Complaint with FCHR. In that Complaint he alleges that he was retaliated against for engaging in protected activity. Petitioner specifically listed two discrete instances of alleged protected activity in his Complaint: I am being discriminated against on the basis of retaliation by my employer. I began employment with Respondent on 11/7/2007, as a Case Manager and most recently as a Grant Writer. On 5/21/2015, I filed a formal grievance due to harassment and nepotism; creating a hostile work environment. This grievance was investigated internally but I never received a response. On 6/30/2015, I filed a second grievance after experiencing retaliation by my Supervisor, Renee Stauffacher. Up to date, both grievances remain unanswered and I continue to experience harassment and retaliation. Petitioner’s claim of discrimination was based solely upon a charge of retaliation. Petitioner did not allege that he was discriminated against based upon race, religion, age, marital status, or any other protected class. Petitioner filed the first grievance referenced in the FCHR Complaint on May 21, 2015, alleging that FCTC’s then- president, Sandra Raburn-Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and over e-mail. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner does not allege in this grievance that he was mistreated by any School Board employee, and he did not direct the grievance to anyone at the School Board. Petitioner filed this grievance with FCTC’s human resources office. In his second grievance, filed June 26, 2015, Petitioner alleges that Renee Stauffacher, his supervisor at the time, retaliated against him for naming her in his May 21, 2015, grievance by giving him an evaluation on June 26, 2015, that contained some information or statements with which he disagreed, even though he thought the evaluation itself was good and that he was given high numbers. No one from the School Board was involved in this evaluation. When Ms. Stauffacher gave Petitioner this evaluation, she was an employee of FCTC and not the School Board. Petitioner alleges that Sandra Raburn-Fortner retaliated against him for his first two grievances by giving him another position. That change, from “Career Pathways Supervisor” to “Grant Writer” occurred on or about August 4, 2015. Petitioner’s salary did not change. At this time, Ms. Raburn-Fortner, who had a contract with FCTI, was an FCTC employee, and not an employee of the School Board. Later, in the Spring of 2016, Petitioner submitted numerous other grievances, a total of nine more, to FCTC officials and FCTI’s board. Petitioner only introduced his ninth and tenth grievances into evidence at the final hearing. Both are similar. Those grievances, both filed on June 13, 2016, allege that Ms. Raburn-Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s human resources director, and Ms. Stauffacher, were complicit in that nepotism. Both grievances state that Petitioner believed he was disclosing violations of equal employment opportunity law. During the time that Petitioner submitted these additional grievances, the School Board was in the process of investigating the financial irregularities at FCTC. Petitioner submitted some of these grievances to School Board officials, who told him he needed to take his concerns to the FCTI Board who was still operating FCTC at the time pursuant to the charter. None of Petitioner’s complaints, including those relayed to the School Board and its officials, concerned complaints of discrimination based on a protected class, or retaliation for complaining about discrimination based on a protected class. Petitioner stated he believed he was reporting equal employment opportunity violations in alleging Ms. Raburn-Fortner was hiring or favoring friends and family, because this action prohibited members of many different protected classes from getting a fair shot at positions that would go to family, friends, or associates of Ms. Raburn-Fortner. Petitioner admits all protected classes were treated similarly in this regard and that all protected classes lacked equal access to positions if they were not friends or family of Ms. Raburn-Fortner. While Petitioner does not allege any discrete instances of retaliation that occurred after his title change, Petitioner also contends that he was harassed, including that he felt harassed about how data at the school was handled, the pressure put on him by financial difficulties brought about by the administration of FCTI, and that he was given the cold shoulder by peers. By May 2016, Ms. Raburn-Fortner was no longer working at FCTC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 5th day of September, 2018, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2018.
The Issue The issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner based on his race, contrary to Section 760.10, Florida Statutes (2005).
Findings Of Fact Respondent is an employer as defined in Section 760.027, Florida Statutes (2005). Prior to July 1, 2005, Respondent operated the following rehabilitation programs: (a) Tallahassee-Leon County Human Services (TLC) serving outpatient adults in downtown Tallahassee, Florida; (b) a residential program for women and their children known as Sisters in Sobriety (SIS), which is located on Respondent's campus in Woodville, Florida; (c) a foster care program for teenage girls that Respondent houses in the St. Mark's Cottage, which is located on Respondent's campus in Woodville, Florida; (d) a foster care program for teenage boys that Respondent houses in the St. Mark's Lodge, which is located on Respondent's campus in Woodville, Florida; and (e) residential rehabilitation programs, which were located on Respondent's campus in Greenville, Florida. Sometime in July 2005, Respondent sold its Greenville Campus to another corporation. Petitioner is an African-American male. At all times relevant here, Petitioner worked full-time as the Director of Operations at Respondent's Woodville Campus. On August 19, 2002, Petitioner acknowledged receipt of Respondent's Equal Employment Opportunity/Anti-harassment Policy Statement, which states as follows in relevant part: Any employee who believes that she/her has been harassed or discriminated against in violation of this policy should report the problem immediately to the Director of Human Resources. Respondent's Human Resources Policies and Procedures manual states as follows in relevant part: Statement of Affirmative Action It is the policy of DISC Village, Inc., to provide equal opportunity for employment, training, promotion, compensation and all conditions of employment for individuals without regard to race, color, religion, sex, national origin, age except as provided by law, prior history of emotional, mental, drug or alcohol disability or physical disability. DISC Village will maintain a specific program to maintain and promote non-discrimination in accordance with the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990. Any perceived act of discrimination should be reported to the site director and the Human Resources Director . . . immediately. Anti-Harassment Policy DISC Village, Inc. is committed to maintaining a work environment that is free of unlawful harassment and will not tolerate any form of harassment or unlawful discrimination against our employees by anyone. Employees must report any form of harassment, especially sexual, to their direct supervisor and the Human Resources Director . . . as soon as possible. Upon hire, all new employees will receive a copy of the agency Anti-Harassment Policy & Procedure with signoff. At all times relevant here, Qua' Keita Anderson, an African-American female, was a counselor at Respondent's Woodville Campus. Ms. Qua' Keita Anderson worked in the SIS program. Ms. Qua' Keita Anderson's direct supervisor was Joni Morris-Anderson, Respondent's Director of Women's Residential Services on the Woodville Campus. At all times relevant here, Lisa Bergeron worked for Respondent as Program Supervisor of DISC Adolescent Treatment Center on the Woodville Campus. Prior to July 1, 2005, Harry Rohr, a white male, was the Director of Residential Services at Respondent's Greenville Campus and Woodville Campus. Mr. Rohr was Petitioner's direct supervisor, even though Mr. Rohr spent most of his time at the Greenville Campus prior to July 2005. Petitioner was in charge of the Woodville Campus when Mr. Rohr was not available. After July 1, 2005, Mr. Rohr spent most of his time at Respondent's Woodville Campus. Mr. Rohr made this change because Respondent no longer operated programs on the Greenville Campus. The sale of the Greenville Campus did not cause a change in title or job responsibilities for Petitioner or Mr. Rohr. At all times relevant here, Tom Olk, a white male, was Respondent's Chief Executive Officer. Mr. Olk's office is located in Respondent's administrative facility in Tallahassee, Florida. However, Mr. Olk frequently makes on-site visits to Respondent's Woodville Campus. At all times material here, Lou Logan was Respondent's Deputy Director and head of Respondent's Human Resource Department. Mr. Logan is a white male. Mr. Logan's office is located in Respondent's administrative facility in Tallahassee, Florida. In March 2004, Respondent was in the process of opening the foster care program on the Woodville Campus. Several staff members, including Petitioner, participated in refurbishing an old home as a residence for the foster children. Respondent's staff was hanging curtains when Mr. Logan paid an impromptu visit to the old home. The curtains were printed with African animals, including monkeys. When Mr. Logan stated how nice the curtains looked, a staff member made some comment about the monkeys in the curtains. Another staff member commented about Petitioner having a big role in the decorating project. Mr. Logan then stated, "Oh, Lester is always monkeying around." Mr. Logan made the statement in the spirit of the moment to show how happy he was that the staff was doing such a good job. Petitioner complained to Mr. Olk that Mr. Logan had called him a monkey. Mr. Olk discussed the incident with Mr. Logan and Petitioner, concluding that Mr. Logan had not called Petitioner a monkey. Mr. Olk properly determined that Mr. Logan never intended to make a racially derogatory comment about Petitioner and that Petitioner had taken Mr. Logan's statement out of context. In early June 2005, Petitioner called Ms. Qua' Keita Anderson at home on her day off to discuss some performance issues she was having at work. The conversation took an inappropriate turn when Petitioner asked Ms. Qua' Keita Anderson if she had a "sexual stress reliever." On August 3, 2005, Petitioner picked up a female teenage resident of St. Mark's Cottage from Respondent's offices in Tallahassee, Florida. Petitioner transported the female youth, alone and unsupervised, in his personal vehicle to look for a job. In so doing, Petitioner violated Respondent's policy relative to the transportation of residents and/or patients of the opposite gender. On August 3, 2005, Harry Rohr and Lisa Bergeron observed the same young female client leaning over Petitioner's shoulder at his computer desk in very close proximity to Petitioner's body. Petitioner did not maintain appropriate physical boundaries with the young girl. On August 3, 2005, Mr. Rohr spoke to Petitioner about his violation of the transportation rules and his failure to maintain appropriate physical boundaries with the female client. Mr. Rohr then wrote a memorandum to memorialize the conversation. In the memorandum, Mr. Rohr advised Petitioner to refrain from being alone with any of the teenagers and to concentrate his efforts on the boys of St. Mark's Lodge. Shortly thereafter, Respondent approved Ms. Qua' Keita Anderson's request for a transfer from the Woodville Campus to the TLC Campus. Ms. Qua' Keita Anderson wanted to work in downtown Tallahassee, Florida, because she was beginning graduate school and needed a smaller, less stressful caseload. On one occasion, Petitioner and Ms. Qua' Keita Anderson had lunch together at a picnic table on the Woodville Campus. On another occasion, Petitioner ordered take-out meals for Ms. Qua' Keita Anderson and himself. Ms. Qua' Keita Anderson paid Petitioner for her meal when she picked it up in Petitioner's office. There is no persuasive evidence that Petitioner ever paid for Ms. Qua' Keita Anderson's lunch, on or off the Woodville Campus. Upon realizing that Ms. Qua' Keita Anderson's last day at the Woodville Campus was approaching, Petitioner telephoned her at home. During the conversation, Petitioner told Ms. Qua' Keita Anderson that she "owed him something" before she transferred. Ms. Qua' Keita Anderson replied that she did not owe Petitioner anything. Petitioner then asked Ms. Qua' Keita Anderson to have lunch with him before her last day at work on the Woodville Campus. Ms. Qua' Keita Anderson did not agree to have lunch with Petitioner. Petitioner telephoned Ms. Qua' Keita Anderson one additional time at work. During the call, Petitioner again asked when Ms. Qua' Keita Anderson was going to have lunch with him. Ms. Qua' Keita Anderson advised Petitioner that she was uncomfortable having a personal lunch outside of the office. Once again she refused Petitioner's invitation. On August 8, 2005, Ms. Qua' Keita Anderson complained to her supervisor, Ms. Joni Morris-Anderson. Ms. Qua' Keita Anderson and Ms. Joni Morris-Anderson are unrelated. Ms. Qua' Keita Anderson complained about Petitioner's inappropriate sexual remark, his telephone calls to her home, his insinuation that she "owed him something" before she transferred, and his insistence that she have lunch with him. Ms. Qua' Keita Anderson repeated her complaint in the presence of Ms. Bergeron, who advised Ms Morris-Anderson to report the incidents to Mr. Rohr. Ms. Qua' Keita Anderson prepared a written statement and submitted it to Mr. Rohr. The statement reflected her "concern" about Petitioner's behavior, which made her feel uncomfortable and harassed. On August 8, 2005, Mr. Olk visited the Woodville Campus. During that visit, Mr. Olk and Mr. Rohr met with Petitioner to discuss Ms. Qua' Keita Anderson's sexual harassment complaint. The meeting also included a discussion involving Petitioner's unsupervised transportation of a female resident and his failure to maintain appropriate physical boundaries with the same female resident. Mr. Olk explained to Petitioner that Ms. Qua' Keita Anderson's complaint raised serious issues, which required an investigation. Mr. Olk advised Petitioner that if he did not participate in the investigation, he could resign or be terminated. In regard to Ms. Qua' Keita Anderson's allegations, Petitioner stated that "it didn't happen that way." He did not make any other statement except to say that “he needed time to think." Mr. Olk had another scheduled meeting on the Woodville Campus. Mr. Olk asked Petitioner to read Ms. Qua' Keita Anderson's complaint and to discuss it with Mr. Olk upon his return from the other meeting. Petitioner then asked Mr. Rohr if he could have the rest of the day off. Mr. Rohr denied this request because Mr. Olk wanted to continue his discussion with Petitioner and because Mr. Rohr wanted Petitioner to begin the cross-training of Jonetta Chukes. Ms. Chukes is a white female. Prior to July 1, 2005, Ms. Chukes worked in Respondent's office in Tallahassee, Florida, as a Medicaid specialist. Until the Greenville Campus was sold, Ms. Chukes also provided some paperwork services for the programs on the Greenville Campus. Sometime in July 2005, Respondent decided to let Ms. Chukes work part-time in the administrative office in Tallahassee, Florida, and part-time too as a secretary on the Woodville Campus. Additionally, Respondent wanted Ms. Chukes to cross-train in the following areas: (a) the client intake process, formerly exclusively performed by Petitioner; (b) the billing process, formerly exclusively performed by another secretary on the Woodville Campus; and (c) the workforce application process. Cross-training is important to Respondent to ensure that its programs function smoothly when any particular person is not at work. Ms. Chukes did not immediately begin working part-time on the Woodville Campus after Respondent made the decision about her new responsibilities. Ms. Chukes happened to begin that transition on August 8, 2005. When Mr. Olk and Mr. Rohr returned from the other meeting, they intended to finish their conversation with Petitioner. However, they could not locate Petitioner. They soon learned that Petitioner had turned in his keys and employer-provided cell phone, submitted a written letter of resignation, and left the campus. Petitioner never informed anyone that he believed Mr. Rohr was discriminating against him. Mr. Olk was very disappointed that Petitioner did not stay on the premises to complete their discussion. Mr. Olk believed Petitioner was a valuable employee with potential for career advancement. Mr. Olk encouraged Petitioner to pursue his undergraduate degree, which is a requirement for upper management. Respondent reimbursed Petitioner for his tuition at Tallahassee Community College. Respondent does not normally pay for its employees to attend college. In this respect, Petitioner was treated more favorably than his Caucasian counterparts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this July day of 20th, 2006, 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 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 July, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lester Levon Hall 3871 Gaffney Loop Tallahassee, Florida 32305 Amy Reisinger Harrison, Esquire Lindsay A. Connor, Esquire Ford and Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202
The Issue Whether the Petitioner demonstrated just cause for the dismissal of the Respondent from employment as a teacher.
Findings Of Fact In a Joint Pre-Hearing Stipulation, the parties agreed to the following facts: At all times material hereto, Respondent, Marlon J. Pearce was employed by Petitioner as a school teacher within the school district of Miami-Dade County, Florida, assigned to Lawton Chiles Middle School. Respondent was employed by Petitioner pursuant to the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, and subject to the rules and regulations of the State Board of Education and of the School Board in accordance with § 1012.33(6)(a), Fla. Stat. (2002). At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to § 4(b) of Article IX of the Constitution of the State of Florida and § 1001.32(2), Fla. Stat. (2002). On November 5, 2000, a conference-for- record (CFR) was held with the Respondent by the principal at North Glade Elementary School. On March 7, 2001, another CFR was held with the Respondent by the principal at North Glade Elementary School. On March 15, 2002, a CFR was held with the Respondent at the School Board's Office of Professional Standards. On May 28, 2002, a meeting was held with the Respondent at the School Board's Office of Professional Standards. At its regularly scheduled meeting of June 19, 2002, the School Board took action to suspend and initiate dismissal proceedings against the Respondent. John Schoeck is currently and for the last two years has been the Principal of North Hialeah Elementary School. For the preceding five years, he was the Principal at North Glade Elementary School. While at North Glade, Mr. Schoeck hired the Respondent, Mr. Pearce, to teach physical education. (Tr. 13) After a November 5, 2000, conference-for-record (CFR) with Mr. Pearce, Mr. Schoeck issued certain directives to Mr. Pearce. Among those directives were the requirement for professional conduct with parents, students and staff, and prohibitions on using profanity, on making verbal or physical threats to parents, students or staff members, and on having verbal or physical confrontations with coworkers. (Tr. 18, 208- 209, P-6) Mr. Schoeck also referred Mr. Pearce to the Employee Assistance Program based on interpersonal behavior observed on the job. (Tr. 9, P-5) An allegation that the Respondent hit a student in the back with his fist was unsubstantiated, in March 2001. The Respondent testified that the student was loud, easily influenced and had an attitude. (Tr. 185) Another student at North Glade Elementary School became involved in a rock-throwing incident with the Respondent. The Respondent described the student as defiant. He testified that after the student threw a rock and hit him, he grabbed her arm to make eye contact, but after she "started going wild and shaking," he let her go and she fell to the ground. There was testimony that her shirt was torn when she reached the principal's office, but the Respondent denied that it was ripped when she left him. (Tr. 186-188, 212-213) On March 7, 2001, Mr. Schoeck held another CFR with Mr. Pearce, as a result of certain allegations by a student and his mother that Mr. Pearce called the student a "punk." Mr. Schoeck found Mr. Pearce insubordinate and reiterated the directives issued after the November conference. (Tr. 24-25, 209-210, 215-216, P-9) The Miami-Dade Schools Police Department ("the school's police") investigated several students' complaints alleging that Respondent had subjected them to corporal punishment. The police found the complaints to be unsubstantiated. Each time there was an incident, the Respondent was reminded of the School Board's policy prohibiting corporal punishment. (Tr. 32-33) Late in the 2000-2001 school year, the Respondent was reassigned to the region office and, subsequently, for the 2001- 2002 school year to Lawton Chiles Middle School (Tr. 33 and Joint Pre-Hearing Stipulation) On November 7, 2001, a charge of verbal abuse, for calling a student "stupid," was substantiated against the Respondent. (Tr. 219, P-17) The Respondent testified that what he said was "stop acting stupid" because the student was loud and saying she knew why he had been fired from his other job and was quoting the Bible. (Tr. 197-198) He also said that, in the heat of the moment, he also called her stupid. (Tr. 200) On November 8, 2001, the Respondent violated the School Board policy against "unseemly conduct, or the use of abusive and/or profane language in the workplace," by using the word "nigga." (Tr. 60-67 and P-16) The Respondent testified that the racial slur was made "under his breath" and not intended to be heard by students. He testified that what he said was "you're going to drive a nigga crazy," and that the comment was directed to himself, not the student. (Tr. 195) The Respondent testified that he told a student "If I was your dad, I would ring your neck," because the student was disruptive, defiant and not following directions. (Tr. 195-196, 218-219) In December 2001, a student was playing with a toilet valve and water was squirting out on the floor in the boys' locker room. After the student left the stall and walked over towards him, the Respondent grabbed him by the neck and shoved him. After an investigation by the school's police, the charge was found to be substantiated. (Tr. 69-88, 113-117 and P-18) The Respondent testified that he grabbed the student's shoulder but did not push him. (Tr. 201-202) Although the student had stopped spraying water at the time he confronted him, the Respondent considered his intervention appropriate because the wet floor created a safety concern. (Tr. 205, 214-215, 217-218) At the same time, other students began slamming locker doors in the locker room. The Respondent called the students involved "a bunch of assholes," and said "If you do this one more time, I could lose my job for hurting you." (Tr. 69-88, 113-117 and P-18) About the same time, the Assistant Principal at Lawton Chiles Middle School, Alberto Iber, received a complaint from the parents of another student. While he was playing with an injured student's aluminum walker, the Respondent grabbed him to try to retrieve the walker and pushed him to the ground. He also said to the student "fuck you." Charges of corporal punishment and the use of profanity were substantiated. (Tr. 93-112 and P-19) The Respondent admitted that he pulled the student down after saying "This is going to be the final time I ask you to sit down." (Tr. 204) He said he used the "f" word under his voice. (Tr. 205) When the Respondent was first assigned to Lawton Chiles Middle School, the Principal, Karen Robinson met with him to discuss the previous incidents at North Glade Elementary School and to discuss expectations that he would abide by the School Board's rules. Each time there was an incident involving the Respondent, Ms. Robinson called the District's Professional Standards Office which referred the matters to the school's police to conduct the personnel investigations. (Tr. 119-133, 219-220) After the fourth personnel investigation at Lawton Chiles Middle School, Ms. Robinson contacted the personnel director for the region. She was concerned that the incidents involving the Respondent were escalating from inappropriate verbal to more serious physical interactions with students. As a result, she recommended that Respondent's employment be terminated. (Tr. 135-136 and P-21) Barbara Moss, the District Director in the School Board's Office of Professional Standards, agreed with Ms. Robinson's and the region personnel director's recommendations to terminate the Respondent's employment. (Tr. 164-165, P-22 and 23) Ms. Moss, in turn, recommended that the School Board terminate Respondent's employment. She met with Respondent to notify him of the proposed action. (Tr. 165-166) The Superintendent of Schools also recommended that the School Board take action to terminate Respondent's employment and notified the Respondent of that recommendation. (P-24 and 25) The Superintendent also notified the Respondent when the School Board, at its meeting on June 19, 2002, took action to suspend and initiate dismissal proceedings against him for misconduct in office, gross insubordination, willful neglect of duty, and violation of School Board Rules 6Gx13-4.108, on Violence in the Workplace; 6Gx13-4A-1.21, on Responsibilities and Duties; and 6Gx13-5D-1.07, Corporal Punishment - Prohibited. Notice of the availability of an administrative hearing to contest the action was also included. (P-24 through 26)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order sustaining Respondent's suspension without pay on June 19, 2002, terminating Respondent's employment, and denying the Respondent back pay. DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2003. COPIES FURNISHED: Merritt R. Stierhelm, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 1244 Turlington Building Tallahassee, Florida 32399-0400 Luis M. Garcia, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade - Law Department 2200 Biscayne Boulevard, 5th Floor Miami, Florida 33137
The Issue Whether Respondent Gulf Coast Community College (Respondent or the College) violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes, by subjecting Petitioner Derek A. Robinson (Petitioner) to discrimination in employment or by subjecting Petitioner to adverse employment actions in retaliation of Petitioner’s opposition to the College’s alleged discriminatory employment practices.
Findings Of Fact Petitioner is an African-American male. The College is a public institution of higher education located in Panama City, Florida. In 1998, Petitioner was hired by the College to work in its custodial department as a custodian. Petitioner held that position until his termination on February 11, 2009. The College's custodial department is part of the College's maintenance and operations division (collectively, ?Maintenance Division?) managed by the campus superintendent. The two other departments within the Maintenance Division are the maintenance and grounds departments. During the relevant time period, there were approximately 40 to 50 employees in the Maintenance Division. Of those, there were approximately 21 to 28 custodians in the custodial department. Most of the custodians were African-Americans and there were only three Caucasian custodians. The Caucasian custodians were Tom Krampota, Josephine Riley, and Tommy Gillespie. Custodial staff typically work shifts beginning at 2:00 p.m. and ending at 10:00 p.m., Monday through Friday. They are generally assigned housekeeping duties for a specific building. In addition to Monday through Friday, the College is also open on most weekends. Prior to 2001, the College began designating one employee to work a non-rotating weekend shift. Unlike other custodians, the designated weekend custodian worked from 10:00 a.m. to 10:30 p.m. on Fridays and 6:00 a.m. to 6:30 p.m. on Saturdays and Sundays. The weekend custodian was not assigned to a particular building, but rather worked in various buildings as needed and was to be available to open doors to campus buildings during weekend hours. Petitioner was the designated weekend custodian from 2001 until his duties were changed in September 2008. Dr. John Holdnak, who worked for the College for 26 years in various capacities, including four years as Director of Human Resources, was the one who established the position of designated weekend custodian. Dr. Holdnak served as the College's Vice-President for Administration Services for his last eight years of employment with the College until leaving in July, 2008. As vice-president, Dr. Holdnak reported directly to the president of the College, Dr. James Kerley. Sometime prior to 2008, Dr. Holdnak observed that the departments in the Maintenance Division were underperforming, not adequately supervised, and failing to meet expectations. Dr. Holdnak observed that the Maintenance Division employees took excessive breaks and showed lack of effort in their work. For example, mold was found in some of the classrooms, an open window with a bird's nest was found in another, maintenance orders were backlogged, and Dr. Holdnak received a number of complaints from faculty and College employees regarding the Maintenance Division's level of service. As a result of Dr. Holdnak's observations, the College removed the campus superintendent from his position because of the superintendent's inability to manage line supervisors, provide leadership, or supervise personnel. After that, Dr. Holdnak personally supervised the Maintenance Division for a time in order to assess and develop a solution to the problem. Based upon Dr. Holdnak's assessment, the College sought applications for a new campus superintendent who could change and clean-up the culture of the Maintenance Division. At the time, the three department supervisors within the Maintenance Division were: Carlos "Butch" Whitehead for maintenance, Dan Doherty for custodial, and Ronny Watson for grounds. All three supervisors were Caucasian. The vacancy for the campus superintendent position was advertised. Dr. Holdnak encouraged John Westcott to apply for the campus superintendent position because he had previously worked with Mr. Westcott on a College construction project and was impressed with his vigor and work ethic. Mr. Westcott, a Caucasian, applied. So did custodial department supervisor, Dan Doherty, and three other candidates. Mr. Westcott disclosed on his application that he had been convicted of a felony twenty years prior to his application. Dr. Holdnak determined that Mr. Westcott's prior conviction would not impact his candidacy for the position. The applicants were screened by a selection committee composed of a number of College employees from various divisions, including Petitioner. Of the five applicants who applied, the selection committee's first choice was John Westcott, who was qualified for the position. Petitioner did not agree with the selection committee's first choice and was not impressed with Mr. Westcott during the screening process because Mr. Westcott referred to himself as the "terminator." Based upon the selection committee's first choice and the conclusion that Mr. Westcott satisfied the necessary criteria to change the Maintenance Division's culture, Dr. Holdnak recommended that the College hire John Westcott as the new campus superintendent. John Westcott was hired as campus superintendent in January 2008. Once Mr. Westcott was hired, Dr. Holdnak specifically directed him to take control of his departments, ?clean up the mess? and hold his mid-level supervisors responsible for their subordinates' results. Dr. Holdnak instructed Mr. Westcott to take a hands-on approach, physically inspect and visit the buildings to ensure cleanliness, increase effectiveness, stop laziness, and decrease work order backlogs. During his tenure, Mr. Westcott increased productivity and reduced backlogs. Mr. Westcott took more initiative than previous superintendents with cleaning and maintenance, and he conducted weekly walkthroughs. While Mr. Westcott was campus superintendent, the backlog of 400 work orders he had inherited was reduced to zero. During Mr. Westcott's first month as campus superintendent, he had an encounter with a Caucasian employee named Jamie Long. On January 31, 2008, Mr. Westcott issued a written memorandum to Mr. Long as a follow-up from a verbal reprimand that occurred on January 28, 2008. The reprimand was Mr. Westcott's first employee disciplinary action as campus superintendent. According to the memorandum, the reprimand was based upon Mr. Long's confrontation and argument with Mr. Westcott regarding the fact that Mr. Westcott had been ?checking-up? on him. According to the memorandum, Mr. Westcott considered "the manner in which [Mr. Long] addressed [him as] totally inappropriate and could be considered insubordination." Mr. Long disputed Mr. Westcott's version of the incident and later sent a letter to College President Dr. Kerley dated June 23, 2008, complaining about "the alleged incident of insubordination" and the "almost non-stop harassment by John Westcott." There was no mention or allegation in the letter that John Westcott was racist or had discriminated against anyone because of their race. After Dr. Holdnak left the College in July 2008, John Mercer assumed his responsibilities. Mr. Mercer, like Dr. Holdnak, had the perception that custodial work was below par based on complaints and personal observations. He therefore continued to direct Mr. Westcott to address these deficiencies to improve the custodians' performance. Petitioner was the designated weekend custodian when Mr. Westcott was hired. In February 2008, Dr. Holdnak discovered a problem with the amount of paid-time-off Petitioner received as a result of his weekend schedule. The problem was that if a holiday fell on a weekend, Petitioner would take the entire weekend off, resulting in a windfall of 37.5 hours in additional paid-time- off for Petitioner over other employees because his work hours on the weekends were longer. In order to correct the problem, in approximately March 2008, Petitioner was placed on a similar holiday pay schedule as all other employees. At the time, the then-director of the College's Department of Human Resources, Mosell Washington, who is an African American, explained the change to Petitioner. According to Mr. Washington, Petitioner was not happy about the change in his holiday pay schedule. Petitioner, however, does not blame Mr. Westcott for initiating the change. Because of the change in his holiday pay schedule, Petitioner was required to work or use leave time for the additional working hours during the Fourth of July weekend in 2008. Petitioner called and asked to speak with Mr. Westcott regarding the issue. During the phone call, Petitioner used profanity. After being cursed, Mr. Westcott hung up the phone and then advised Mr. Washington, who told Mr. Westcott to document the incident. The resulting written reprimand from Mr. Westcott to Petitioner was dated July 11, 2011, and was approved by Mr. Washington. When Mr. Washington presented Petitioner with the written reprimand, Petitioner refused to sign an acknowledgement of its receipt and abruptly left the meeting without any comment. Petitioner did not tell Mr. Washington that he believed he was being targeted or discriminated against because of his race. In addition to setting forth Mr. Westcott's version of what occurred, the written reprimand advised Petitioner that the College had a grievance procedure, and also stated: I have an open door policy and will gladly address any concerns you may have whether personal or job related. If you have a grievance, tell me, but in the proper manner and in the proper place. Petitioner did not take advantage of either the College's grievance procedure or Mr. Westcott's stated open door policy. The College maintains an anti-discrimination policy and grievance policy disseminated to employees. The College's procedure for employee grievances provides several levels of review, starting with an immediate supervisor, then to a grievance committee, and then up to the College's president. Under the College's anti-discrimination policy, discrimination and harassment based on race or other protected classes is prohibited. Employees who believe they are being discriminated against may report it to the Director of Human Resources. Likewise, harassment is prohibited and may be reported up the chain of command at any level. Petitioner acknowledged receipt of the College handbook and policies on August 17, 2007. In addition, both the College President, Dr. Kerley, and Vice President, John Mercer, maintain an ?open door? policy. After receiving the July 11, 2008, written reprimand, Petitioner spoke to both Dr. Kerley and Mr. Mercer, at least once, on July 15, 2008. Petitioner, however, did not tell them that he had been discriminated against because of his race. In fact, there is no credible evidence that a report of race discrimination was ever made regarding the July 11, 2008, written reprimand prior to Petitioner's termination. Petitioner, however, did not agree with the July 11, 2008 written reprimand. After speaking to Dr. Kerley and Mr. Mercer, Petitioner met with Jamie Long, the Caucasian who had earlier received a write-up from Mr. Westcott, for assistance in preparing a written response. The written response, dated August 4, 2008, and addressed to Mr. Washington, Mr. Westcott, and Mr. Mercer, stated: On July 25, 2008, I was called into Mosell Washington's office and was given a written letter of reprimand from John Westcott, the Campus Superintendent, which states that on July 3, 2008, I had used profanity in a phone conversation with him regarding my 4th of July work schedule. From the schedule that I received in February, from Mosell Washington, I believed I was off that weekend. I am writing this letter to dispute Mr. Westcott's version of our conversation and to protest the letter of written reprimand. Mr. Westcott says in the reprimand that I was insubordinate to him and had used profanity. I did not use profanity, and I do not believe that I was insubordinate in any manner to him during our brief conversation. I feel that my work record and my integrity speaks for itself. I have never been insubordinate, or been a problem to anyone until John Westcott, and had I known that I was supposed to be on the job that weekend, I would have been there. Mr. Washington, Mr. Westcott, and John Mercer all deny receiving the written response. In addition, contrary to the written response, at the final hearing, Petitioner admitted that he used profanity during the call and said ?ass? to Mr. Westcott. Moreover, the written response does not complain of race discrimination, and Dr. Kerley, Mr. Mercer, Dr. Holdnak, Mr. Washington, and Mr. Westcott all deny that they ever received a complaint of race discrimination regarding the incident. Evidence presented at the final hearing did not show that the written reprimand given to Petitioner dated July 11, 2008, was racially motivated, given in retaliation for Petitioner’s statutorily-protected expression or conduct, or that a similarly-situated non-African-American who used profanity to a supervisor would not be subject to such a reprimand. Mr. Westcott generally worked a more traditional Monday through Friday schedule and, because of Petitioner's weekend work schedule, had minimal contact with Petitioner. In fact, Mr. Westcott would not usually be on campus with Petitioner, except Fridays, and the two men rarely spoke until Petitioner's work schedule was changed in September 2008. During the weekends that he worked at the College, Petitioner was on-call and expected to return communications to his pager or mobile phone, even during his lunch breaks, regardless of his location. On Friday, August 22, 2008, after receiving a request from faculty member Rusty Garner, Petitioner’s supervisor Dan Doherty asked Petitioner to clean the music room floor. On Sunday afternoon, August 24, 2008, Mr. Mercer and Mr. Westcott were working when they received word from Mr. Garner that the music room floor had not been cleaned. After unsuccessful attempts to reach Petitioner by cell phone and pager, both Mr. Mercer and Mr. Westcott drove around the College campus to find him. They were unsuccessful. The reason Petitioner could not be reached was because he had left campus and had left his telephone and pager behind. According to Petitioner, he was on lunch break. Mr. Mercer and Mr. Westcott found another employee, Harold Brown, to help prepare the music room for Monday. Mr. Mercer was upset because he had to take time out from his own work to find someone to complete the job assigned to Petitioner. That same afternoon, Mr. Mercer reported the incident by e-mail to Mr. Washington and requested that appropriate action be taken. On August 27, 2008, Petitioner’s supervisor, Dan Doherty, issued a written reprimand to Petitioner for the August 24th incident. No evidence was presented indicating that the written reprimand was racially motivated, or that a similarly situated non-African-American who could not be located during his or her shift would not be subject to such a reprimand. In September 2008, Dr. Kerley unilaterally determined that no single employee should work his or her entire workweek in three days. He believed this schedule was unsafe, and not in the best interests of the college. He therefore directed Mr. Westcott and Mr. Mercer to implement a rotating schedule for the weekends. Mr. Westcott was not in favor of the change because it meant additional scheduling work for him to accommodate new rotating shifts. No credible evidence was presented that the schedule change was because of Petitioner’s race, or made in retaliation for Petitioner’s statutorily-protected expressions or actions. From August 27, 2008, through January 2009, there were no other disciplines issued to Petitioner or reported incidents between Petitioner and Mr. Westcott. In December, 2008, a group composed of most of the custodial employees, including Petitioner, conducted a meeting with the College's president, Dr. Kerley, and vice-president, Mr. Mercer. The group of custodians elected their new supervisor James Garcia, an Asian-Pacific Islander, as their spokesperson for the meeting. The custodians' primary purpose for the meeting was to address complaints regarding Mr. Westcott’s management style, his prior criminal conviction, and approach with employees. They felt that Mr. Westcott could not be pleased. Various concerns about Mr. Westcott expressed by the employees were condensed into three typed pages (collectively, ?Typed Document?) consisting of two pages compiled by Jamie Long and his wife Susan Long which contained 12 numbered paragraphs, and a third page with six unnumbered paragraphs. Mr. Garcia did not transmit the Typed Document to the president or vice- president prior to the meeting. Neither Jamie Long nor his wife attended the meeting. During the meeting, Mr. Garcia read several of the comments from the Typed Document and Dr. Kerley responded to each comment that was read. Mr. Garcia did not read through more than the first five of the 12 items listed on the Typed Document. The Typed Document was not reviewed by the president or vice-president and they did not retain a copy. Petitioner asserts the comment listed in paragraph 9 on the second page of the Typed Document constitutes a complaint or evidence of racial animus. Although not discussed at the meeting or reviewed by Dr. Kerley or Mr. Mercer, paragraph 9 states: During a recent candidate forum, Westcott used the term ?black ass? in regard to School Superintendent James McCallister. This was heard by at least two witnesses. Q. Are such racial slurs and inappropriate, unprofessional behavior condoned and acceptable? Mr. Westcott denies making the alleged statement referenced in paragraph 9 of the Typed Document. No evidence of other racial remarks allegedly made by Mr. Westcott was presented. There is no evidence that the College or its administration condoned the alleged statement. President Kerley, Vice President Mercer, and Mr. Washington all gave credible testimony that they were not made aware of the statement and that, if the statement in paragraph 9 of the Typed Document or any alleged racial discrimination by Mr. Westcott had been brought to their attention, immediate action would have been taken. As a result of custodial employees’ complaints about Mr. Westcott’s management style, Dr. Kerley and Mr. Mercer required Mr. Westcott to attend several sessions of management training. In addition, Dr. Kerley counseled Mr. Westcott against using harsh tactics and rough language that may be acceptable on a construction site, but were not appropriate on a College campus. On February 9, 2009, Mr. Westcott observed both Petitioner and a co-worker leaving their assigned buildings. He asked their supervisor, Mr. Garcia, to monitor their whereabouts because he thought that they appeared to not be doing their jobs. Mr. Westcott also told Mr. Garcia that, although the two workers may have had a legitimate reason for walking from their assigned buildings, he had not heard anything on the radio to indicate as much. The next day, on February 10, 2009, Mr. Garcia told Petitioner that Mr. Westcott had wanted to know where they had been headed when they left the building the day before. Petitioner responded by saying that if Mr. Westcott wanted to know where he was, Mr. Westcott could ask him (Petitioner). Later that day, Petitioner spoke to Mr. Washington on campus. Petitioner was very upset and said to Mr. Washington, ?What’s wrong with Westcott? He better leave me alone. He don’t know who he’s messing with.? Later that same afternoon, Petitioner had a confrontation with Mr. Westcott. According to a memorandum authored that same day by Mr. Westcott: I [John Westcott] had stopped outside the mailroom to talk with Beth Bennett. While talking with her I observed Derek [Petitioner] leave Student Union West. After seeing me, he returned to Student Union West and waited outside the door. Beth walked toward the Administration building and I headed through the breezeway. Derek approached me and said that he had heard that I wanted to ask him something. I asked him what he was talking about. He said that I wanted to ask him where he was going the evening before. I said ok, where were you going? Derek said that it was ?none of my f_ _ _ ing business.? I told him that since I was his supervisor, that it ?was? my business. At this time, he stepped closer to me in a threatening manner and said ?if you don’t stop f_ _ _ ing with me, I’m going to f_ _ _ you up.? I told him that if he would do his job, that he wouldn’t have to worry about me. He replied ?you heard what I said--- I’ll f_ _ _ you up?, as he walked back into SUW. I left the breezeway and went to John Mercer’s office to report the incident. Mr. Westcott’s testimony at the final hearing regarding the incident was consistent with his memorandum. While Petitioner’s version of the confrontation is different than Mr. Westcott’s, at the final hearing Petitioner admitted that Mr. Westcott had a legitimate question regarding his whereabouts and that he failed to answer the question. And, while he denied using the specific curse words that Mr. Westcott attributed to him, Petitioner testified that he told Mr. Westcott to leave him the ?hell? alone because he was doing his job. While there is no finding as to the exact words utilized by Petitioner to Mr. Westcott, it is found, based upon the testimonial and documentary evidence, that on the afternoon of February 9, 2009, Petitioner was confrontational towards Mr. Westcott, that Petitioner refused to answer a legitimate question from Mr. Westcott, that Petitioner demanded that Mr. Westcott leave him alone even though Mr. Westcott had a legitimate right to talk to Petitioner about his job, and that Petitioner used words that threatened physical violence if Mr. Westcott did not heed his warning. After Mr. Westcott reported the incident to Mr. Mercer, both Mr. Mercer and Mr. Westcott went to Dr. Kerley and advised him of the incident. Dr. Kerley believed the report of the incident and that Petitioner had threatened Mr. Westcott. Mr. Washington was then informed of the incident. After reviewing Petitioner’s employment history, including Petitioner’s recent attitude problems, as well as Mr. Washington’s own interaction the same day of the latest incident, Mr. Washington concluded that Petitioner should be terminated. Mr. Washington gave his recommendation that Petitioner be terminated to Dr. Kerley, who adopted the recommendation. The following day, February 11, 2009, Mr. Washington called Petitioner into his office and gave him a memorandum memorializing Petitioner’s termination from his employment with the College. The memorandum provided: This memorandum is written notification that because of a number of incidents which the administration of the college deems unprofessional, adversarial, and insubordinate, you are hereby terminated from employment at Gulf Coast Community College, effective immediately. At the time that he presented Petitioner with the memorandum, Mr. Washington provided Petitioner with the opportunity to respond. Petitioner told Mr. Washington, ?It is not over.? Petitioner did not state at the time, however, that he believed that his termination, change of schedule, or any disciplinary action taken against him were because of racial discrimination or in retaliation for his protected expression or conduct. Further, at the final hearing, Petitioner did not present evidence indicating that similarly-situated non-African- American employees would have been treated more favorably than was Petitioner for threatening a supervisor. Further, the evidence presented by Petitioner did not show that the decision to terminate him was based on race or in retaliation for protected expression or behavior, or that the facts behind the reason that Petitioner was fired were fabricated. Following his termination, Petitioner met with both Dr. Kerley and Mr. Mercer and apologized for acting wrongly. The empirical record evidence of discipline against College employees in the Maintenance Division during Mr. Westcott’s tenure does not demonstrate a tendency by Mr. Westcott or the College to discriminate against African- American employees. The majority of disciplines and the first discipline taken against Mr. Long by Mr. Westcott were administered to Caucasians. In total, Mr. Westcott only reprimanded five employees. Of these, three were Caucasian -- Mr. Long, Mr. Whitehead, and Mr. Doherty. Despite the fact that the majority of the custodians were African-American, only two African-Americans were disciplined -- Petitioner and Harold Brown. During Mr. Westcott’s employment, the only two employees who were terminated were Petitioner and a white employee, Mark Ruggieri. Excluding Petitioner, all African-American witnesses testified that Mr. Westcott treated them equally and not one, except for Petitioner, testified that they were treated differently because of their race. The testimony of Petitioner’s African-American co-workers is credited over Petitioner’s testimony of alleged discrimination. Harold Brown’s discipline was based upon the fact that he gave the College’s master keys to an outside third-party contractor. Although Mr. Brown disagreed with the level of punishment he received, in his testimony, he agreed that he had made a mistake. Mr. Brown further testified that he did not believe African-Americans were targeted. According to Mr. Brown, Mr. Westcott did not discriminate against him because of his race, and ?Westcott was an equal opportunist as far as his behavior? and ?seemed agitated towards everybody when he was in his moods.? Mr. Garcia was the lead custodian when Petitioner was terminated and is currently the College’s custodial department supervisor. While several employees told Mr. Garcia that they did not like Mr. Westcott’s management style, Mr. Garcia never heard a racist comment and testified that Mr. Westcott was strict and threatened the entire custodial and maintenance staff. Butch Whitehead believes that Mr. Westcott attempted to get him and his maintenance crew ?in trouble.? He had no personal knowledge of the manner in which Mr. Westcott treated Petitioner. Mr. Whitehead's testimony does not otherwise support a finding that Mr. Westcott was a racist or that the College discriminated against Petitioner because of his race. Tom Krampota, a Caucasian and longtime employee and former supervisor, agreed that Mr. Westcott was firm with all custodians and complained about everybody, but was not a racist. Lee Givens, an African-American, testified that his custodial work was monitored because Mr. Westcott took issue with dust and cleanliness, but that if he did his job Mr. Westcott did not bother him. Mr. Givens did not testify that he felt discriminated against because of his race, but rather stated that Mr. Westcott made the job hard for ?all the custodians.? Horace McClinton, an African-American custodian for the College, provided a credible assessment of Mr. Westcott in his testimony which summarized how Mr. Westcott treated all of his subordinates: There were certain things that he wanted us to do that we should have been doing already, and he was just there to enforce it . . . he did not think anybody was doing their job . . . . He was put there to make sure we were doing our job . . . . I don't think he was a racist. Mr. McClinton further testified that all Maintenance Division employees, including Caucasian supervisors, were afraid of Westcott because it was ?his way or the highway.? Latoya ?Red? McNair testified that he was being monitored like the other custodians but did not believe it was because of race. Just as Petitioner’s co-workers’ testimony does not support a finding that Mr. Westcott was a racist, Dan Doherty’s deposition testimony does not support a finding that Mr. Westcott’s actions against Petitioner were because of race. A review of Mr. Doherty’s deposition reflects that Mr. Doherty has no first-hand knowledge of actual discrimination. Mr. Doherty stated, ?I don't know? when asked how he knew Westcott was motivated by race. Nevertheless, according to Mr. Doherty, five African-Americans were singled out, including Petitioner, Mr. McClinton, Mr. Givens, Mr. McNair, and Mr. Brown. Two of these alleged ?victims? outright denied that Mr. Westcott treated them unfairly because of race. The others did not testify that they believed Mr. Westcott treated them differently because of race. Mr. Doherty testified that besides the five identified, the remaining African-Americans were not criticized or targeted. Mr. Doherty also conceded that it was possible that Mr. Westcott just did not like the five custodians. Further, despite the fact that Mr. Doherty was written up by Mr. Westcott more than any other employee, including Petitioner, Mr. Doherty never reported Mr. Westcott for discrimination and did not state in his exit interview from the College that Mr. Westcott was a racist or complain that race was an issue. Rather than supporting a finding that Mr. Westcott was motivated by race, Mr. Doherty’s testimony demonstrated that the problems he had with Mr. Westcott were similar with those pointed out by others—-namely, that Mr. Westcott had a prior criminal conviction, had a harsh management style, and closely scrutinized all workers. While Petitioner and Mr. Long contend that they raised the issue of discrimination with the College's management, the College's president, vice-president, director of human resources, former vice-president, and superintendent all deny receiving a report of discrimination or that any employment action was based on race or in retaliation. Mr. Long’s testimony that he complained of race is not substantiated because he did not witness any discrimination first hand. He also never documented his alleged concerns about racial discrimination prior to Petitioner's termination. In addition, in his testimony, Mr. Long admitted that he never heard Mr. Westcott use a racially discriminatory term. Likewise, Petitioner never documented alleged discrimination until after being terminated. Considering the evidence presented in this case, and the failure of Petitioner and Mr. Long to document alleged complaints when an opportunity was presented, it is found that the allegations of reported complaints of discrimination by Mr. Long and Petitioner are not credible. Further, the testimony from Petitioner’s co-workers and supervisors, which indicates that Mr. Westcott was harsh with all employees but not racially discriminatory, is credited. It is found that Petitioner did not show that any employment action by the College or Mr. Westcott against him was based on race. Rather, the evidence presented in this case demonstrates that Petitioner was not targeted or treated differently from any other employees based upon race. The evidence also failed to show that Petitioner was retaliated against because of his protected expression or conduct. In sum, the evidence did not show that Petitioner was subject to racial discrimination or wrongful retaliation, and Respondent proved that Petitioner was terminated for engaging in a pattern of unprofessional, adversarial, and insubordinate behavior, including a threat to his supervisor’s supervisor, John Westcott.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 6th day of December, 2011.
Findings Of Fact On January 2, 1992, Petitioner commenced an action in federal district court pursuant to the federal Age Discrimination in Employment Action ("ADEA"), 29 U.S.C. 621, et seq. The summons and complaint were not served upon Respondent until May, 1992. By statute, the filing of said federal action stayed the matter pending before the Florida Commission on Human Relations. 29 U.S.C. Section 633(a). Petitioner could have but did not bring an age discrimination claim under Chapter 760, Florida Statutes, in his federal court case. On February 23, 1993, the United States District Court for the Middle District of Florida entered an order granting summary judgment for Respondent, Grumman Aerospace Corporation against Petitioner George E. Stolworthy. The district court held that "there is simply no evidence that Plaintiff's termination was motivated by a discriminatory intent on the part of the Defendant. Petitioner appealed the decision of the District Court to the Eleventh Circuit Court of Appeal. On or about February 14, 1994, the Eleventh Circuit affirmed the District Court's order of summary judgment. Mr. Stolworthy's claim of age discrimination before the Florida Commission on Human Relations arises out of the same common nucleus of operative facts as his age discrimination claim in federal court. Both cases allege age discrimination in the termination of Petitioner's employment. All of the issues in this case were decided in favor of Respondent by the United States District Court, Middle District of Florida, on February 23, 1993. The district court held that Respondent did not discriminate against Petitioner. The district court's decision was affirmed by the Eleventh Circuit Court of Appeal on February 14, 1994. That decision effectively resolves this matter either through the doctrine of res Judicata or collateral estoppel. Therefore, the Petition for Relief should be dismissed and jurisdiction relinquished to the commission for entry of the appropriate final order. Finally, Petitioner was aware that he commenced an action against the Respondent herein in federal district court alleging violations of the ADEA and involving the same set of operative facts before the administrative hearing was held in February 13, 1992. At the time of the hearing, Respondent's counsel was unaware that Petitioner had commenced the aforementioned lawsuit. Additionally, neither Petitioner nor his counsel advised the Florida Commission on Human Relations or the Hearing Officer of the initiation of the federal lawsuit. Rather, Petitioner, through his counsel, continued to file documents with the Division in violation of Section 120.57(1)(b), Florida Statutes. Specifically, Petitioner pursued the instant action for an improper purpose knowing full well that the agency's jurisdiction should have been suspended, and could only have intended to improperly harass Respondent; to improperly utilize the Divisions hearing process for either discovery for the federal case or a trial run for the federal case; to improperly cause needless increase in the cost of the litigation to Respondent; and to improperly waste this agency's time. Respondent incurred attorney's fees and costs and expenses in the amount of $13,506.39 dollars. Moreover, after review of the transcript and evidence in this case it is clear that this action had no basis in fact or law and was therefore frivolous in nature. Therefore Respondent is entitled to an award of attorneys fees and costs in the amount of $13,506.39.
The Issue Whether Petitioner's termination from employment by Respondent on June 15, 2005, was discriminatory in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2005), due to Petitioner's race (African American).
Findings Of Fact Petitioner, a Black female, was employed by Respondent from November 23, 1998, until her termination on June 14, 2005. Petitioner had performed her duties as a housekeeper adequately during her employment period and had no major disciplinary reports in her record. Her annual reviews indicate she was a fair employee. She had a history of tardiness, but seemed to be getting better in her last years of employment. Petitioner had received a verbal warning notice on March 8, 2005, relating to an altercation with another employee, Katrina Stevens. It appears Petitioner did not instigate the confrontation nor did she actively participate in the argument between Stevens and another employee. She simply happened to be standing nearby when it occurred. A verbal warning notice is preliminary to a reprimand. The other employee, Martine Lane, received a reprimand for the incident. On June 8, 2005, Petitioner received another verbal warning notice, this time for instigating negative remarks toward her supervisor. The gravamen of her complaint about the supervisor was that a certain co-worker had been named Employee of the Month instead of Petitioner. Petitioner became more defiant towards her supervisors and management toward the end of her employment. She would not help out other employees when asked, preferring to tend to her own work area, even when her work was completed. She also made derogatory comments to the co-worker who had won Employee of the Month. When Petitioner's behavior did not change, a decision was made to terminate her employment. It was a difficult decision because good housekeepers were hard to find and Petitioner's work product had always been acceptable. Petitioner had always been well-liked and respected by fellow employees. Both co-workers and management had encouraged Petitioner to apply for supervisory positions when they opened. Her supervisors indicated that, with some training, she could handle a supervisory position. The decision to terminate Petitioner from employment was made by the Executive Housekeeper, Steve Jensen. He relied upon input from other management. On June 18, 2005, Petitioner was stopped from clocking in when she came to work. She was told to report to Jensen's office, which she did. At that time Jensen asked her whether she was still happy with her job, then told her she was being terminated. The reasons given were that she was not supportive, not a team player, and had become more belligerent to management. No mention of race was made as a basis for her termination and none seems to have existed. Petitioner was advised she would be entitled to vacation pay, but it was later discovered she had already used up her available vacation time. Respondent subsequently called Petitioner to offer her a different job, but Petitioner had no interest in returning to work for the company. Respondent has anti-discrimination policies in place, is an equal opportunity employer, and employs minorities in supervisory positions. Interestingly, however, there were no other Black housekeepers employed while Petitioner was working. When a supervisory position opened, Respondent would attempt to fill the position from within its existing employee pool. Two such positions opened when Petitioner was employed. Seven then-current employees applied for those positions, including Petitioner. Of the seven, four had prior supervisory experience; Petitioner did not. Two of the applicants had been with the company longer than Petitioner. Five of the seven applicants had computer knowledge and skills; Petitioner did not. Petitioner is the only candidate who admitted a fear of heights, a minor consideration for the position. Petitioner is the only candidate who stated she could not work on weekends. Petitioner was clearly not the best applicant for the job based on comparison to other candidates. Petitioner did not provide any evidence that her race was a basis for her termination from employment. None of her witnesses provided credible statements concerning discrimination. In fact, her witnesses by and large did not see any discrimination by management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 5th day of January, 2007. COPIES FURNISHED: Diane Hawkins 1556 University Lane, Number 407 Cocoa, Florida 32922 Theodore L. Shinkle, Esquire GrayRobinson, P.A. 1800 West Hibiscus Boulevard, Suite 138 Melbourne, Florida 32901 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
