The Issue The issue is whether Amalgamated Transit Union Local 1395 (“the Union”) committed an unlawful employment practice against Petitioner (“Addie L. McMillan”) by failing to provide her with the same level of advocacy provided to Union members and non-African-Americans.
Findings Of Fact Ms. McMillan is a 55-year-old, African-American female who had worked at ECAT for 22 years. She began as a part-time beach trolley operator and progressed to becoming a full-time bus driver. The Union and ECAT had a labor agreement1/ in place between October 23, 2013, and September 30, 2016 (“the labor agreement”). Article 52 of the labor agreement had a policy regarding the use of cell phones by ECAT employees and provided as follows: While on duty the use of cellular phone or any other personal communication device is limited as follows: SECTION 1: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other Company motor vehicle is prohibited while the vehicle is not secured. Push to talk communication devices issued by the Company may be used for work related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. Note – Secured definition: Vehicle must be in neutral/park position and emergency brake on. SECTION 2: If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable) or in a safe location with the bus secure. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. SECTION 3: The use of a cellular phone or other communication device by an employee while on the shop floor or during work time (unless previously approved) is prohibited, other than a Push to Talk communication device issued by the Company for work related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. SECTION 4: Disciplinary Action: Failure to comply with any portion of this policy may result in disciplinary action as follows: Violation of Section 2 or Section 3 of this Article: 1st offense: 3-day suspension 2nd offense: Termination Violation of Section 1 of this Article: 1st offense: Termination On the morning of July 29, 2015, Ms. McMillan was driving a route that went through the Naval Air Station in Pensacola, Florida. At that time, the navy base had been on alert status for approximately one month. As a result, every vehicle entering the navy base had to be searched, and that caused Ms. McMillan’s bus to run behind schedule. At approximately 10:30 that morning, Ms. McMillan needed to use a bathroom and called a dispatcher via a radio provided by ECAT. The dispatcher contacted by Ms. McMillan was not receptive to her request for a bathroom break and cut off communications. Because Ms. McMillan was unsuccessful in re- establishing contact with the dispatcher over the radio, she used her personal cell phone to call a coworker, Elaine Wiggins. Ms. McMillan was hoping that Ms. Wiggins could assist her with contacting an ECAT general manager. At this point in time, the bus driven by Ms. McMillan was in traffic and moving. In other words, it was not “secured” by being in the neutral/park position with the emergency brake on. Diane Hall was an assistant general manager for ECAT during the time period at issue, and Ms. Hall talked to Ms. McMillan via Ms. Wiggins’ cell phone. Ms. Hall stated to Ms. McMillan that the route she was driving had a pre-arranged break point at a bowling alley and that Ms. McMillan could use a bathroom there. It is possible that Ms. McMillan would not have suffered any consequences for her violation of the cell phone policy but for a customer complaint provided to ECAT on July 28, 2015. On July 28, 2015, at 12:25 p.m., Roberta Millender, a customer service representative at ECAT, received a phone call from a customer who reported that the bus driver for Route 57 had left the bus at approximately 11:00 a.m. in order to smoke a cigarette, even though the bus was 25 minutes behind schedule. Ms. McMillan also drives that route. ECAT’s buses are equipped with video cameras. Therefore, ECAT reviewed the videotape from that particular bus in order to investigate the complaint. Because the bus videotapes are on a continuous loop, ECAT had to pull video corresponding to days before and after July 28, 2015. While looking for the incident on July 28, 2015, that led to the customer complaint, an ECAT employee noticed that Ms. McMillan was using her cell phone on July 29, 2015. There is no dispute that Ms. McMillan is not the bus driver who took the cigarette break on July 28, 2015.2/ On July 30, 2015, ECAT began an investigation of Ms. McMillan’s cell phone use. ECAT notified Ms. McMillan that she would continue to work during the investigation. ECAT terminated Ms. McMillan on August 3, 2015, for violating section 1 of Article 52 of the labor agreement. Article 5 of the labor agreement sets forth the procedures that ECAT and the Union follow in order to resolve labor issues. Pursuant to Section 2 of Article 5, Michael Lowery, the President of the Union, filed an “Official Grievance Form” (“the McMillan grievance”) with Mike Crittenden, ECAT’s General Manager. Ms. McMillan had reservations about Mr. Lowery handling her grievance. Because she had not joined a recent strike and was not a Union member, Ms. McMillan feared that Mr. Lowery would not use his best efforts on her behalf. However, Mr. Lowery handles the majority of the grievances, and he handles all of the grievances involving termination.3/ The McMillan grievance stated the following: The employee does not dispute the offered video and will stipulate that she used her personal cellphone while operating a transit bus while not secure. This professional bus operator understood the Company policy but did not clearly understand the proper procedure to request assistance to disembark her motor coach while under tremendous physical bodily stress to relieve herself of a bodily function. Operator McMillan understood the procedure to request a 10-7 (Operator off Motor Coach) but was concerned with her bodily stress and finding a safe, clean rest room which was continuing to cause significant additional stress. The Company has clearly FAILED to work at providing known secure, clean, safe facilities for professional bus operators to utilize while operating ECAT buses. The Union has brought this topic forward to Management numerous times and no action has been taken to formulate the needs of the professional bus operators on many bus routes including the bus route that Operator McMillan was driving on the day in question. Operator McMillan was dealing with other related stress on that particular run. The military base was under alert and traffic was extremely backed up. She was dealing with one Dispatcher Supervisor and had reached agreement with him on how to proceed on the bus route. But when another Dispatch Supervisor came on duty it was clear that neither of those Supervisors had shared information on dealing with Route 57 with the military heighten[ed] alert. The new Dispatch was difficult to communicate with about established procedures set earlier with another Dispatcher. This did not help the already adverse or very demanding circumstance. Mr. Lowery concluded the grievance by asking that ECAT rescind its termination of Ms. McMillan, pay her lost wages and benefits, and remove any discipline from her file. Ordinarily, the first step in resolving a grievance involves settlement discussions between ECAT officials and the Union. However, because Ms. McMillan’s grievance involved a termination, it went directly to Mr. Crittenden for his consideration. Via an e-mail dated August 4, 2015, Mr. Crittenden notified Mr. Lowery that he was “denying this grievance and upholding the termination of the subject employee.” Because Ms. McMillan’s grievance was denied, the next step in the process called for the Union to decide whether it wanted to submit the grievance to arbitration.4/ As part of this next step, Mr. Crittenden prepared a draft version of a “Last Chance Agreement” for the Union to review. A Last Chance Agreement is an agreement between an employee, ECAT, and the Union. The draft Last Chance Agreement prepared by Mr. Crittenden contained the following provisions: The employee violated the Company’s cell phone [policy] which is a serious safety infraction that warrants immediate termination. In lieu of terminating her employment, the Employee’s discipline record will reflect this infraction as suspended without pay from August 3, 2015 to August 14, 2015 and returning to work on August 17, 2015 upon acceptance of this agreement, and placed on a twelve month probation/Last Chance Agreement. The employee will retain her rate of pay and security. The employee understands that in the event she violates company policy by being charged with any infraction that warrants immediate termination, her employment will be terminated without any further consideration. This agreement will be in effect for a period of twelve (12) months from the date of signature. The Employee attests that her signature below was in no way coerced by any party or by the representative of any party. By entering into this agreement, the employee acknowledges that she has read and considered each of the provisions of this Agreement and that she voluntarily enters into this Agreement with full knowledge of the consequences. This Agreement is made on a one-time only, non-precedent basis that shall not be used or referred to in any future discipline or termination case or during any grievance/arbitration hearings between the parties. Mr. Lowery presented the proposed Last Chance Agreement to the Union’s legal counsel, and the Union had an issue with the seventh provision’s reference to “non-precedent basis.” Mr. Lowery attempted to reach an agreement with Mr. Crittenden for amending that provision, but his efforts were unsuccessful. Mr. Crittenden would not consent to the removal of that language. Ms. McMillan was disturbed by the fact that she had no input into the Last Chance Agreement proposed by Mr. Crittenden and that it was not presented to her for approval. However, after the Union decided not to accept Mr. Crittenden’s proposal, Ms. McMillan’s approval or disapproval became irrelevant. As noted above, a Last Chance Agreement involves three consenting parties: the employee, ECAT, and the Union. Thus, even if Ms. McMillan had been satisfied with the Last Chance Agreement proposed by Mr. Crittenden, it would not go into effect without the Union’s approval. In order for the Union’s Executive Board to vote on whether to refer Ms. McMillan’s case to arbitration, Mr. Lowery put Ms. McMillan’s grievance on the agenda of the Executive Board’s August 23, 2015, meeting. The five members of the Executive Board who were present and eligible to vote unanimously recommended against pursuing arbitration for Ms. McMillan’s grievance because her case lacked merit. As for why Ms. McMillan’s case lacked merit, Mr. Lowery testified that Well, basically, it’s pretty simple, we negotiated the policy in the labor agreement, and this was a video. And the video showed that she had clearly violated the policy. And so from there, it was going to be very difficult, based on that evidence, that we were not going to be able to go forward. And that’s why the membership voted not to go forward. The Executive Board’s recommendation was considered by the full Union membership later that day, and the Union voted to accept the Executive Board’s recommendation. When asked to explain why the Union elected not to arbitrate Ms. McMillan’s grievance, Mr. Lowery testified that Simply it’s the severity of the policy, which was it’s in the labor agreement. It was negotiated between the Union and the company. And because they had a solid video, we would not be able to demonstrate a way to achieve a victory in that arbitration case. And, potentially, because it’s in the Labor Agreement, that would be used against us in an arbitration because we negotiated it. We negotiated the policy. When subsequently asked a very similar question, Mr. Lowery reiterated that Well, basically, it’s pretty simple, we negotiated the policy in the labor agreement, and this was a video. And the video showed that she had clearly violated the policy. And so from there, it was going to be very difficult, based on that evidence, that we were not going to be able to go forward. And that’s why the membership voted not to go forward. The Union has not arbitrated any grievances in which a driver has been terminated for using a cell phone while a bus was not secured. Including Ms. McMillan, four drivers have been terminated for violating section 1 of Article 52 since the labor agreement has been in place. Three of those drivers were African-American (two females and one male), and one was a Caucasian female. Mr. Crittenden was unaware of any driver being retained by ECAT after violating the cell phone policy.5/ In addition to Mr. Crittenden, Ms. McMillan called three other ECAT employees who were unaware of any bus driver being retained after violating the cell phone policy. Mr. Lowery represents every grievance to the best of his ability, and he represented Ms. McMillan’s grievance to the best of his ability. The greater weight of the evidence demonstrates that he handled Ms. McMillan’s grievance no differently than any other grievance.6/ Mr. Lowery did not consider Ms. McMillan’s race or religion in the course of representing her.7/ The Union did not discriminate against Ms. McMillan based on her race or non-union status. In addition, to whatever extent that Ms. McMillan is alleging that she was discriminated against on any other grounds, there is no evidence to support such allegations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Addie L. McMillan’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 31st day of May, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 31st day of May, 2017.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employee based on the incident that occurred on May 16, 2007.
Findings Of Fact Respondent, Julius Balogh, has been employed with Petitioner, Lee County School Board ("the District"), since October 17, 2002. He is currently assigned as a Bus Operator in the Transportation Department. Respondent's annual contract with Petitioner was renewed for each of the school years: 2003- 2004, 2004-2005, 2005-2006, 2006-2007, and 2007-2008. Since Respondent commenced working for Petitioner in October 2002, he has received five annual performance assessments. With the exception of Respondent's first year when he received three scores of "inconsistently practiced" out of 32 areas targeted for assessment, Respondent always scores at an "effective level of performance" in all areas targeted for assessment. The "comment" section for Petitioner's 06/07 performance assessment stated he was "a good worker, helpful, dependable and a joy to work with." On his 05/06 assessment, the assessor wrote in the "comments" section "Great job. Julius takes personal satisfaction in job and cares about his students. Continues to grow." During the five years Respondent has been employed with Petitioner, he has had a perfect attendance record. Aside from the present charges, he has never before been the subject of any disciplinary action. Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statues (2007), and is governed by the Collective Bargaining Agreement between the School Board and the Support Personnel Association of Lee County ("SPALC"). The standard for the discipline of support personnel is "just cause," pursuant to Article 7 of the SPALC Agreement. On May 16, 2007, Respondent reported for duty at 4:49 a.m. He completed his morning shift at 10:07 a.m. He was then required to submit to a random drug and alcohol screening, which he passed. After dropping-off all students at their bus stops, Respondent was returning to the bus compound while following his regularly-scheduled route. While on duty and in uniform, Respondent parked his bus in front and entered the San Carlos Package Store. Respondent's stated reason for entering the store was for the intended purpose of purchasing an herbal extract product called St. Hubertus for his wife. St. Hubertus is an herbal product that Respondent's wife administers to herself daily, in her evening cup of tea, to alleviate digestive problems and stomach pain resulting from various medications she is prescribed. St. Hubertus is 35 percent alcohol by volume. Respondent and his wife regularly purchase St. Hubertus while visiting their country of origin, Hungary. Edith Balogh returns there annually for medical treatment. Edith Balogh's Hungarian physician first recommended St. Hubertus for her some 10 to 15 years ago to relieve her stomach pain. Edith Balogh had exhausted her annual supply of St. Hubertus sometime prior to May 2007. Although she and Respondent were scheduled to fly to Hungary on May 21, 2007, she was experiencing severe stomach pain and related symptoms. She, therefore, had asked her husband to attempt to procure the product locally. Respondent unsuccessfully sought to obtain the product at several stores prior to May 16, 2007. Ultimately, Respondent was told by a pharmacist that he might be able to find the product at the San Carlos Package Store. Since the San Carlos Package Store was located on Respondent's direct route to the bus compound, and because the weather was intemperate, Respondent did not want to backtrack after concluding his shift. Respondent decided to stop at the San Carlos Package Store for the purpose of purchasing the St. Hubertus product. Before stopping at the package store that day, Respondent had not used either of his two 15 minute breaks. He stopped at the store at approximately 6:45 p.m., clocked out of work at 7:17 p.m., and drove the approximately four miles from the store to the compound before clocking out. Respondent thus did not exceed the personal time Petitioner otherwise allowed its employees for their daily breaks. When Respondent inquired about the availability of St. Hubertus, the sales clerk advised him that he would have to order it and it would take three to six weeks to receive it. Respondent explained the urgency of obtaining the product, and the clerk recommended a similar product called "Jagermeifter." Respondent purchased two 50 ml bottles of Jagermeifter. The label on the bottles of Jagermeifter were in German and English. Respondent speaks German. The label described the product in German as "noble herb tea extract." The label also stated, in English, that the product contained 35 percent alcohol by volume (70 Proof). Respondent purchased the two bottles of Jagermeifter, placed them in a ziplock bag, secured them in his briefcase, and returned to his bus. Respondent then drove directly to the bus compound. As Respondent was pulling into the compound he received a cell phone call from the afternoon supervisor, Robert Schwartz, advising him that he was observed purchasing liquor and that he was suspended from operating the bus. Respondent clocked out and went home. Joe Howard, another supervisor, checked Respondent's bus for open alcohol containers the following day and found no such evidence. As had previously been approved, Respondent did not return to work prior to his departure for Europe. Respondent took the Jagermeifter product home with him on May 16, 2007, and presented it to his wife. Edith Balogh used the Jagermeifter as a substitute for St. Hubertus, and while it was not as effective as St. Hubertus, the Jagermeifter product did help to alleviate her stomach pain. Respondent testified that he believed he was purchasing a medicinal product, not an alcoholic beverage, when he bought the two small bottles of Jagermeifter. Respondent credibly explained that the reason he purchased the product was not for personal consumption, but for his wife's medicinal use. Respondent testified that he no longer consumes alcohol. Edith Balogh, Respondent's wife of 54 years, confirmed that Respondent does not drink alcohol and has not consumed any for approximately 45 years. Joe Howard's (Howard) testimony relating to Respondent's alleged admission that he would often purchase a "medicinal" product for his and his wife's consumption is not reliable. He did not make notes of the conversation, which occurred some eight months before the hearing. He offered conflicting testimony about who was present when the conversation occurred and was imprecise about whether Respondent admitted to regularly consuming Jagermeifter or whether he merely was admitting to intending to consume one of the bottles of the product purchased on May 16, 2007. Howard also failed to mention the alleged admission in the course of Petitioner's investigation. The greater weight of the evidence supports the testimony of Respondent and his wife that Respondent does not consume alcohol. Therefore, there is insufficient evidence to believe that Respondent intended to consume any of the Jagermeifter himself. Although Respondent's motive for purchasing the Jagermeifter product was for a medicinal purpose to alleviate his wife's chronic stomach pain, the product was not sold in a drug store as an over-the-counter medicinal product. The product was marketed and sold as an "alcoholic beverage" in a package store. The words on the label, "noble herb tea extract," were only written in German. Respondent parked the school bus in front of the package store, entered the package store while in uniform, purchased an alcoholic beverage, took it back to his bus, and returned to the bus compound, all while on duty. Respondent's stated reason that he did not first return the bus, clock out, and then return to the package store in his own vehicle was because it was raining and he was in a hurry to get the product home to his wife, is unsatisfactory. Respondent's effectiveness in the school system was impaired by purchasing the product while on duty and in uniform and returning with it on the bus to the compound. Respondent was in possession of alcohol under circumstances that would affect the efficient operation of the District's business or the safety of its employees and students or the public. Petitioner has adopted disciplinary guidelines for transportation employees. Under the facts of this case, the proper penalty for Respondent's misconduct in this case is disciplinary action up to and including termination.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is Recommended that Petitioner, Lee County School Board enter a final order dismissing/terminating Respondent, Julius Balogh, from his position as an employee with the Lee County School District. DONE AND ENTERED this 18th day of March, 2008, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2008.
The Issue The issue is whether Seminole County School Board (Respondent) engaged in disparate treatment of Valeria Gaskin (Petitioner) such that the treatment of Petitioner constituted gender discrimination that resulted in a constructive discharge of Petitioner from her position with the school district.
Findings Of Fact Petitioner is a female who was hired by Respondent on November 25, 1991, as a school bus driver. At all times material to this case, Petitioner’s performance of her duties as a school bus driver relate to the ultimate issues of law and fact to be resolved. The employment relationship between Petitioner and Respondent was governed by a Collective Bargaining Agreement entitled “Agreement with the Seminole County Bus Drivers’ Association, Inc. and the School Board of Seminole County (union contract).” Respondent is the entity charged by law to operate the School District of Seminole County, Florida, and in that capacity entered into the union contract. Petitioner was charged with the responsibility of reading the union contract and complying with its terms. Petitioner acknowledged that she was directed to review the contract and familiarize herself with it not less than annually. The union contract required Petitioner to comply with school board policies related to her employment duties. Kenneth Lewis is Respondent’s Director of Transportation under whose leadership all school buses are operated and maintained. In the structure of the Transportation Department, Mr. Lewis is followed by Julie Murphy, Assistant Director of Transportation, who, in turn, supervises Area Managers who perform the daily supervision of bus drivers. At all times material to this matter, Kathy Dent was the Area Manager under whom Petitioner served. It is undisputed that Respondent’s policy prohibits the use of cell phones while driving a school bus. All school bus drivers are made aware of the policy and the policy is reiterated in the Transportation Handbook (handbook) and is discussed repeatedly throughout the school year during department meetings. Petitioner acknowledged that she was provided a handbook and knew that Respondent’s policy prohibited the use of cell phones by school bus drivers while on a school bus. On or about October 3, 2007, Ms. Dent met with the bus drivers under her charge (including Petitioner) to remind them of the policy against cell phone use while on school buses. On November 30, 2007, Ms. Dent met with Petitioner individually to advise her again that cell phone use was not permitted while driving a school bus. On January 17, 2008, Petitioner was involved in a vehicular accident and was talking on a cell phone at the time of the crash. Petitioner acknowledged that she was using a cell phone while driving on January 17, 2008, and that such use violated school board policy. In fact, because Petitioner’s school bus carried a digital video camera that recorded Petitioner’s actions on January 17, 2008, Petitioner knew that she could be terminated for cell phone use while driving a school bus. More specifically, at the time of the accident the video captured Petitioner exclaiming, "I’m going to lose my job because I’m on the cell phone." Subsequent to the accident Petitioner was on workers’ compensation/leave but returned to work to face a five-day suspension without pay for her violation of the cell phone policy. The letter advising Petitioner of the proposed punishment clearly indicated that the recommendation for a five- day suspension without pay from the Transportation Department would be forwarded to the school superintendent for review and action. The school superintendent accepted the recommendation and Petitioner was advised that she would serve the unpaid suspension on May 13, 14, 20, 21, and June 3, 2008. These were the first dates available after Petitioner returned to work. On May 7, 2008, a date that Petitioner was driving her bus on her designated route, a student complained that an ipod had been stolen. To attempt to solve the complaint, a law enforcement officer requested that the Transportation Department pull the video from Petitioner’s bus to see if it could reveal who might have taken the device. To that end, Assistant Director Murphy contacted Ms. Dent to ask her to retrieve the video and review it for the purpose requested. Ms. Dent pulled the video hard drive from Petitioner’s bus and viewed the footage for the purpose directed. Ms. Dent discovered conduct she had not expected. First, the video clearly showed that Petitioner continued to use her cell phone while on the school bus. Even in the face of her impending suspension, Petitioner disregarded the school board policy and the directives from her supervisor. Petitioner continued to talk on a cell phone while on the school bus. Second, the video clearly showed unbecoming conduct between Petitioner and another school bus driver, William Boone. During the video Mr. Boone can be seen approaching Petitioner while she is seated at the driver’s position, place his hand and arm under her skirt for an extended period of time, and then later giving her an unspecified amount of money before departing. This conduct occurred while Petitioner was in line awaiting the start of her bus duties. Students were not on the bus at the time. Given the unexpected discoveries on the video, both Petitioner and Mr. Boone were called to the transportation office to meet with Mr. Lewis. Beforehand, however, the video from Mr. Boone’s bus was retrieved to determine if any inappropriate conduct could be seen on it. The video did not disclose any such conduct. Mr. Boone was not observed using a cell phone while on his bus and no additional unbecoming conduct was depicted. On May 9, 2008, a meeting was conducted with Petitioner, Ms. Murphy, Ms. Dent, and Mr. Boone. Later Mr. Lewis joined the group. Petitioner and Mr. Boone were advised that their unbecoming conduct had been captured by the bus video. Additionally, Petitioner was advised that her continued use of a cell phone while on the school bus had also been shown on the video. The video spoke for itself. The video contained irrefutable evidence of the conduct described above. Petitioner and Mr. Boone were given the opportunity to see the video for themselves. Both employees displayed embarrassment and concern. Mr. Lewis advised Petitioner that her continued use of the cell phone was in violation of the school board policy and advised both employees that the unbecoming conduct that appeared to be of a sexual nature was also not acceptable. At some point Petitioner claimed that she and Mr. Boone had been involved in a romantic relationship for an extended period of time. Mr. Boone expressed concern that his wife would find out about the incident. Mr. Boone denied that he was engaged in sexual conduct but accepted that it appeared that way. Further, Mr. Boone who held a previously untarnished personnel record did not want to lose his job. Mr. Lewis advised both Mr. Boone and Petitioner that he would likely recommend termination for both of them. He did not ask for their resignations, did not attempt to intimidate them in any manner, but expressed concern at their lack of judgment. As to Petitioner, since the video depicted her continued use of the cell phone (an act not applicable to Mr. Boone), Mr. Lewis expressed serious issue with Petitioner’s behavior. Nevertheless, no one demanded that Petitioner resign her position with the school district. Later in the day, Petitioner and her union representative met with Mr. Lewis to review the allegations. Since Mr. Lewis did not change his position and the union did not seem supportive of her cause, Petitioner became upset. Ms. Murphy offered to speak to Mr. Lewis on Petitioner’s behalf to see if she would be eligible for another employment position within the school district. Petitioner was afforded additional opportunities to meet with her union representative and to determine what, if any, response she would make regarding the allegations. At that point in time, Petitioner knew or should have known that the conduct depicted on the bus video would lead to the recommendation from Mr. Lewis to the school superintendent that Petitioner’s employment as a bus driver be terminated. Petitioner knew or should have known based upon the previous disciplinary action against her that her supervisors could not take disciplinary action against her based upon their authority. Moreover, for Petitioner to be terminated, the school superintendent would have to make the recommendation to the school board for its action. In this case, that recommendation never happened. Instead, Petitioner submitted a letter of resignation to Ms. Murphy. Additionally, Petitioner stated to Ms. Murphy that she did not want Ms. Murphy to look for another employment opportunity within the school district for her. Petitioner’s letter of resignation selected May 30, 2008, as its effective date. It is undisputed that Petitioner continued to use a cell phone in violation of the school board policy despite being aware of the consequences for violation of the policy. Mr. Boone also faced disciplinary action for his part in the recorded conduct. As previously indicated, Mr. Boone had an unblemished record with the school district prior to the conduct described in this cause. He had worked for the school district almost 20 years without serious incident of any kind. Ultimately, Mr. Reichert, the Executive Director of Human Resources and Professional Standards for the Respondent, determined that there was insufficient evidence against Mr. Boone to recommend his termination to the school board. Instead, Mr. Boone was suspended without pay for five days. Mr. Boone did not challenge that decision and duly served his suspension. Mr. Boone did not admit that he had fondled Petitioner but did acknowledge that his conduct was unbecoming a school board employee. While more direct in admitting what occurred between Mr. Boone and herself, Petitioner also acknowledged that their behavior was inappropriate. Petitioner argues that both employees should have been treated similarly. Further, Petitioner maintains that Mr. Boone received better treatment, that is to say, less severe disciplinary measures, than she. Petitioner claims that her resignation was influenced by gender discrimination and ultimately a constructive discharge based upon the disparate treatment she received when compared to Mr. Boone. Petitioner did not file a complaint against the school board at the time of the incident claiming that her resignation was being coerced or was involuntarily tendered. At the time of resignation, Petitioner did not know what disciplinary action would be taken against Mr. Boone. Additionally, Petitioner knew or should have known that she could contest any disciplinary action brought against her and that she would be entitled to a hearing. Finally, Petitioner knew or should have known that her union could advise her and participate (as guided by their decision) in any disciplinary action against her based upon the terms of the union contract. Petitioner did not attempt to withdraw her letter of resignation prior to its effective date. Petitioner and Mr. Boone are no longer on friendly terms. Petitioner timely filed her claim with the FCHR seeking relief based upon gender-related disparate treatment. She maintains that conditions of her job environment constitute a constructive termination of her employment with Respondent. FCHR issued its determination of no cause and Petitioner timely pursued the instant administrative action.
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 claim for relief as she was not treated in a disparate manner, did not experience a hostile work environment, and did not establish that she was qualified to continue her position as a bus driver for Respondent. DONE AND ENTERED this 15th day of April, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 15th day of April, 2010. COPIES FURNISHED: Serita D. Beamon, Esquire Seminole County School Board Legal Service Department 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Jerry Girley, Esquire The Girley Law Firm 125 East Marks Street Orlando, Florida 32803 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Bill Vogel, Ed.D. Superintendent Education Support Center 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on March 27, 2018.
Findings Of Fact On March 27, 2018, Petitioner filed a Charge of Discrimination with FCHR and alleged therein that Respondent committed an unlawful employment practice by discriminating against him on the basis of race, national origin, and age. Petitioner’s Charge of Discrimination states, in part, the following: During my time with LYNX, I satisfactorily performed the essential job duties of my position. Notwithstanding my performance, I was fired with only two weeks left on my training. I was subjected to discrimination based on my age, race and nationality as further described below. I believe I was fired because LYNX treated [me] disparately due to my Jamaican nationality and my age of 68 years. They manufactured classes of improper driving which could be disputed by all of the cameras that are on the training buses. They gave me only one week to improve my driving. Petitioner was born in 1949 and was 68 years old when he commenced his employment with Respondent. Petitioner was born and educated in Jamaica and lived in the country for a significant portion of his adult life. Respondent speaks with an unmistakable Caribbean accent. Petitioner’s ethnicity and race derive from the African diaspora, and for purposes of the instant proceeding his race is that of a Black person. On or about June 14, 2017, Respondent extended to Petitioner a conditional offer of employment to work as a full- time bus operator. The terms of Respondent’s conditional offer of employment to Petitioner provide, in part, as follows: All offers of employment are contingent upon the satisfactory completion of the following: acceptable criminal history background check and motor vehicle record, employment verification and Department of Transportation (DOT) physical examination (that is good for a minimum of one year) including a negative drug screen. All employees must complete a 120-day introductory period. Should the results be unsatisfactory, according to LYNX’ standards, your offer of conditional employment with LYNX will be reviewed and may be revoked. The job description for Petitioner’s position as a bus operator provides as follows: JOB SUMMARY: Bus Operators transport passengers by operating any type of motor coach on regularly scheduled links and chartered service, observing all state and municipal traffic laws, observing all safety rules and strictly adhering to time schedules. DUTIES: Performs DOT pre-trip inspections. Answers passenger questions courteously. Calls out stops. Issues slips for fare refunds. Issues and collects transfers. Observes all state and municipal traffic laws. Observes all safety rules. Strictly adheres to time schedules. Monitors fare and ticket collection. Verifies that appropriate passes are being used. Writes daily reports such as transfers collected, coach mileage, special fares and tickets collected, time cards for hours worked and completes memorandum cards. Completes trouble card for mechanical difficulties of bus assigned. Performs other duties of similar nature as may be required. Completes Bus Condition Reports. REQUIRED KNOWLEDGE, SKILLS AND ABILITIES: Skills in customer service. Ability to effectively communicate in English, both verbally and in writing. Ability to physically sit for extended periods of time. Ability to pass a drug screen. Must possess a valid Florida Commercial Driver License (CDL), Class A or B with a Passenger endorsement and airbrakes. Ability to communicate in English on the work site. Ability to maintain DOT physical for one year. MINIMUM EDUCATION AND EXPERIENCE: Must be at least 21 years of age. High School diploma or GED required. Clean driving record. Full-time: Ability to work days, nights, weekends, holidays, split shifts, split days off and any hours assigned. Part-time: Ability to work mornings, afternoons and/or weekends. Not allowed to work over 30 hours per week. This description in no way states or implies that these are the only duties to be performed by the employee occupying this position. Employees will be required to follow any other job-related instructions and to perform any other job-related duties requested by their supervisor. Petitioner, as a condition of employment, was required by Respondent to complete an employment application. Petitioner noted on his employment application that he worked as a “Driver Guide” for Holland Alaska Princess for the period March 17, 2016, through May 24, 2016. According to Petitioner, his primary duties with Holland Alaska Princess were driving “tourists to scenic and historical locations in Alaska, USA, Yukon and British Columbia in Canada and informing guests on the highlights and history of each location toured.” Other than his employment at Holland Alaska Princess, Petitioner did not list on his LYNX employment application other jobs or experiences which required that he possess a CDL, Class A or B, with a passenger and airbrakes endorsement. According to the “experience questionnaire” completed by Petitioner during his LYNX new employee orientation, Petitioner noted that he had possessed his “CDL with passenger endorsement” for 16 months, and over the “course of [his] CDL career” had only driven an “MCI coach bus” for three months. Although Petitioner met the minimum qualification of possessing a valid CDL with appropriate endorsements, he, nevertheless, had limited practical experience in the operation of buses such as those operated by Respondent. On or about August 23, 2017, Petitioner, after completing the employment related background check and related matters, was hired by Respondent as a full-time bus operator. As a condition of employment, Respondent required Petitioner to attend “LYNX Training University (LTU).” Wilfredo Acosta, for more than seven years, has worked as a training instructor at LTU where he conducts “new operator” training sessions. According to Mr. Acosta, LTU is not a driving school where employees are taught how to drive a bus, but is, instead, an assessment opportunity where LYNX evaluates its new employees to ensure that they have “basic knowledge” regarding the proper way to operate buses utilized by the company. On September 15, 2017, less than a month after being hired, Respondent terminated Petitioner’s employment with the company due to “unsatisfactory job performance.” Maria Colon, who works as Respondent’s manager of organizational development and training, outlined in a memorandum to Petitioner the company’s reasons for the employment decision. The memorandum provides as follows: On September 8, 2017, you met with the manager and trainer concerning your unsafe driving practices. Your daily student operator evaluation forms were reviewed with you and the following dates were discussed: 8/28 Right turns too short, jumped a curb and drifted to the right side not maintaining the bus centered. 8/29 Right turns too short, jumped a curb and drifted to the right. 8/31 Right turns too short and jumped curb. 9/7 Right turns too short not using pivot point. 9/8 Unsatisfactory report was given for not slowing down for school zone when yellow light was flashing. Continued to make right turns too short with contact to the curb. Continued to drift to the right and did not maintain proper hand position on steering wheel or use of mirrors. At that time you stated that you were a driver for a long time and you knew how to drive. I informed you that LYNX’ priority is safety and my job was to ensure only those students that demonstrate consistent, safe driving practices would graduate from the LYNX Bus Operator Training Program. You felt the trainers were targeting you and [you believed that] with time you can improve. We agreed to give you until Friday, September 15th to improve your driving. If no improvement was noticed you would be terminated from the program. On September 15, 2017, you once again met with the manager and trainer to review your progress: 9/13 Unsatisfactory report for improper securing of the bus. Unsatisfactory report for obstructing traffic at an intersection. Continued to make right turns too short and jumped the curb. 9/15 Continued to drift to the right side not maintaining the bus centered. Failed to properly signal when approaching railroad crossing. Since you have continued to have unsafe driving practices with no signs of improvement, I have decided to terminate you from the LYNX Bus Operator Training Program. During the evaluation period referenced above, Petitioner’s driving deficiencies were personally observed by LYNX employees Karamchand Lowhar, Charles Rapier, Wilfredo Acosta, and Margaret McCoy. Each employee credibly testified during the final hearing regarding Petitioner’s driving deficiencies, and their testimony is credited. Petitioner contends that he is a bus driver of considerable experience, and the driving deficiencies cited by LYNX employees are exaggerated, fabricated, or both. Petitioner asserts that each of his bus training sessions was video- recorded, and that the most credible evidence of his driving performance lies therein. There is no indication that when Petitioner met to discuss his driving deficiencies with Respondent on or about September 8, 2017, he specifically requested either then, or thereafter, that the video recordings of his driving performance be evaluated and preserved. The evidence establishes Respondent’s vehicle video recording system preserves video for 30 days, and after such period, the video recordings are overwritten with new footage. Petitioner’s testimony that he has extensive commercial driving experience is undercut by the employment application and experience questionnaire that he completed as part of the pre- employment process. Petitioner admits in both documents that he has very limited experience with operating a bus. Petitioner, however, in prosecuting the instant action, and in his pre- termination meeting with Ms. Colon on September 15, 2017, represented that he is a bus driver of considerable experience. These inconsistencies are damaging to Petitioner’s credibility. Petitioner’s credibility also suffers from his factually inaccurate statement regarding when his employment was terminated in relation to the end-point of his 120-day probationary period. Petitioner’s Charge of Discrimination states that he “was fired with only two weeks left on [his] training.” Petitioner attempts to bolster his claim of discrimination by inferring that for more than three months, he met, or even exceeded, Respondent’s performance expectations, and that Respondent’s discriminatory animus was only revealed when Respondent, without sufficient justification, terminated his employment as a bus operator. The evidence establishes, however, that Petitioner was hired on or about August 23, 2017, and his employment with LYNX ended approximately three weeks later because of his poor performance during bus operation training sessions. Petitioner’s suggestion that he was meeting, or even exceeding, Respondent’s performance expectations during his probationary period is not supported by the evidence. Other than Petitioner’s testimony, which is not credible, there is no proof, either circumstantial or direct, that Respondent’s asserted grounds for terminating Petitioner’s employment are merely a pretext for unlawful discrimination.
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 finding that Respondent, LYNX Transportation, did not commit an unlawful employment practice as alleged by Petitioner, Leebert Lawrence, and denying Petitioner’s Charge of Discrimination. DONE AND ENTERED this 4th day of October, 2019, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 4th day of October, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Leebert Lawrence Apartment 211 7511 Solstice Circle Orlando, Florida 32821 (eServed) Cindy Ann Townsend, Esquire Bell & Roper, P.A. 2707 East Jefferson Street Orlando, Florida 32803 (eServed) Michael John Roper, Esquire Bell & Roper, P.A. 2707 East Jefferson Street Orlando, Florida 32803 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact The Communication Workers of America (CWA) is an employee organization and the St. Petersburg Junior College is a public employer. In June, 1976, CWA was attempting to organize various employees at SPJC. To facilitate getting their message to the employees and the group for which representation was sought, CWA inquired of SPJC about renting a classroom. Initially CWA was advised that no bar to renting the room was foreseen; however, the following day CWA was advised by SPJC that they would not rent the use of a classroom to CWA. Thereafter on June 14, 1976 CWA submitted a written request (Exhibit 3) to SPJC requesting rental of a room any weekday between July 19 and July 30. No written response to this request was made but upon oral inquiry CWA was advised that they would not be able to rent the room. In April, 1975 the President of SPJC issued a memorandum (Exhibit 6) to managerial employees advising that union activities were being conducted on the campus and that they should be on the lookout for various signs of union activities. Examples of what to look for were given. A union organizer at SPJC, Ms. Marcia Warden, was the principal complaining witness in these proceedings. She testified she was being followed by "supervisory" personnel each time she came on SPJC campus and was thereby prevented from having access to the employees. There were only two employees in the unit solicited by CWA that were excluded from union participation by reason of their managerial status. Another witness, an employee of SPJC, never saw either of these two employees in the vicinity of Ms. Warden the 10 or so times she observed Ms. Warden on the campus. At the beginning of the organization drive notices of union organizational meetings were removed from campus bulletin boards. However, after October the union was allowed to post on these bulletin boards notices of union meetings. This authorization was memorialized in a letter to Ms. Warden dated October 18, 1976 (Exhibit 9). Thereafter on October 31, 1976, Ms. Warden advised PERC that as a result of this change in SPJC's policy, no further amendments would be made to their unfair labor practice charge (Exhibit 7). Prior to the end of 1976 a settlement agreement was executed between SPJC and CWA (Exhibit 8). During the organization drive SPJC did not cooperate with the CWA to facilitate their task. A list of employees was not given to CWA until after a law suit was brought by CWA. A full list of employees was provided CWA 7 days prior to the election. Ms. Warden also testified that by refusing to rent the union a room SPJC removed CWA from access to the employees other than at the parking lot where she was being watched by supervisors. An employee of SPJC in the proposed unit testified that she received numerous notices in the mail at her home address and that Ms. Warden had visited her at her home on organizational business. SPJC's policy regarding renting classrooms to non-profit organizations is contained in Exhibit 5. Most such organizations that apply to lease meeting space from the college are successful in doing so. The only exceptions noted at the hearing were a karate group that had previously done some property damage, a gay liberation group, and the CWA. Meetings had been held between SPJC and a previous group attempting to represent the college employees called the Career Services Employment Council. No meetings were held with that organization subsequent to July, 1976 and no evidence was presented that the group was ever allowed to rent college space for Organizational meetings. No evidence was presented that union representatives were barred from SPJC campus, that reasonable diligence on the part of union organizers would have been unsuccessful in Obtaining the names and addresses of employees in the proposed unit, or that the employer actively interfered with CWA Communicating with its employees during non-working hours. On the other hand SPJC did not cooperate with CWA so as to facilitate the Organizational efforts of the CWA. CWA requested the use of a room at SPJC during working hours, i.e. from 1 to 4 P.M. and meetings held during those times could have interfered with the program of the college. However the union proposed these hours in order to have access to the largest shift of employees in the proposed bargaining unit who normally reported for duty at 2:50 P.M. Subsequent to 3:00 P.M. CWA proposed to meet with the shift that came off duty at 2:50 P.M. All proposed findings of fact submitted by Respondent are treated in the findings herein submitted or were considered immaterial to the issues to be resolved.
The Issue Whether Petitioner, Kurt Shannon, was subject to an unlawful employment practice by Respondent, Amalgamated Transit Union, Local 1593, based on his race in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a former bus operator for the Hillsborough Area Regional Transit (“HART”). Petitioner worked for HART from 2006 through January 2014. At all times relevant to this proceeding, Petitioner was a member in good standing with the Union. Petitioner joined the Union in 2006 as soon as he was eligible. The Union is the bargaining unit for HART. The Union has approximately 350-600 members. The Union’s membership consists of a majority of African-American and Latino members. The Union’s executive board is also majority African-American and Latino. HART terminated Petitioner based on an incident that occurred on December 6, 2013. At the time, Petitioner was operating his bus and had stopped to allow passengers to board. A young male patron climbed onto the bus and attempted to pay his bus fare with a pass card. The patron’s pass card would not work. Petitioner questioned the patron as to whether his pass card was expired. The patron became unruly and began cursing. Petitioner admonished him and ordered him off the bus. Immediately, thereafter, Petitioner left his seat (revealing he was not wearing his seatbelt) and followed the patron off the bus. Petitioner explained that he wanted to ensure that the patron did not attempt to re-enter the bus. When he stepped off the bus, however, Petitioner recounted that the two men exchanged heated words. Without warning, the patron lunged at Petitioner and hit him in his face. Petitioner testified that he could not retreat. Therefore, he punched the patron back in an attempt to defend himself. Several bus passengers stepped in to stop the fight. One of them called the police. Upon learning of the incident, HART initiated termination proceedings. HART asserted that Petitioner should never have left his seat. Instead, once the patron exited the bus, Petitioner should have closed the bus door and proceeded on his route. HART charged Petitioner with three infractions: use of threat or force, other than self-defense (a class “A” violation which may result in termination); disorderly/inappropriate conduct by leaving his seat and following the patron off the bus (a class “B” violation); and failing to actively and properly engage in work duties/responsibilities by not having his seat belt fastened (a class “C” violation). On January 14, 2014, HART formally notified Petitioner that it was terminating his employment. HART dismissed Petitioner based on the class “A” violation. HART and the Union are parties to a collective bargaining agreement entitled Contract Between Hillsborough Area Regional Transit Authority and Amalgamated Transit Union Local 1593 (the “Bargaining Agreement”). The Bargaining Agreement provides a grievance procedure to process complaints by aggrieved HART employees. The grievance procedure culminates in final and binding arbitration. The Union is required to process grievances for its members. Following his termination, Petitioner requested the Union take his case to arbitration. The Union executive board agreed. The Union timely notified HART that it was initiating the grievance process to contest Petitioner’s discharge. Petitioner’s grievance culminated in an arbitration hearing which was held on December 9, 2014. The crux of Petitioner’s complaint of unlawful discrimination, as more fully set forth below, is that the Union did not provide an attorney to represent him at his arbitration hearing. Instead, then-Union President James Saunders, a non- lawyer, decided to personally represent Petitioner at the arbitration. Unfortunately for Petitioner, his arbitration was not decided in his favor. Petitioner testified at the arbitration and asserted that his actions were simply self-defense. The Arbitrator agreed that Petitioner did not commit the alleged class “A” violation of assault because the evidence failed to show that Petitioner had placed the patron in fear of imminent harm. However, the Arbitrator concluded that Petitioner did commit two class “B” violations by leaving his seat and exiting the bus, and by gesturing in a provocative manner towards the patron. Moreover, the Arbitrator found Petitioner’s testimony to be less than credible because his version of events was inconsistent with his prior statements and other relevant evidence. Under the Bargaining Agreement, Article 74, Section 1, the penalty for two class “B” violations in close proximity includes discharge. Consequently, on or about March 13, 2015, the Arbitrator issued an opinion denying Petitioner’s request for relief and upholding the termination. At the final hearing, Petitioner asserted that he lost his grievance proceeding because of inferior representation at the arbitration hearing. Petitioner complained that President Saunders did a very poor job of defending him. Petitioner thought President Saunders was ineffective and unprepared, and made no effort on his behalf at the hearing. Petitioner complained that President Saunders did not offer any substantive comments and failed to present Petitioner’s primary defense to the Arbitrator--that Petitioner was not the aggressor and did not initiate the confrontation. As an example, Petitioner claimed that President Saunders did not offer the police report into evidence which would have supported his version of the incident.2/ Neither did President Saunders contest HART’s witnesses’ testimony or argue for a more appropriate punishment based on similar incidents. At the final hearing, Petitioner insisted that he had a good case. He asserted that he would have prevailed at the arbitration if he had an attorney representing him.3/ Petitioner claims that the Union deliberately decided not to provide him an attorney based on his race. Petitioner testified that the Union obtained attorneys to represent other Union members at their arbitration hearings. Petitioner did not believe that the Union took his case seriously. President Saunders was not present at the final hearing. Henry Marr, the Union’s financial secretary, testified regarding why President Saunders represented Petitioner instead of an attorney. Mr. Marr explained that the Union is not required to retain an attorney to represent its members in grievance proceedings. It is only required to provide representation. Mr. Marr relayed that the Union has conducted many hearings with non-lawyer representatives.4/ Mr. Marr recounted that in Petitioner’s grievance proceeding, after the Union agreed to take the case to arbitration, President Saunders decided that Petitioner’s matter did not warrant an attorney. Mr. Marr expressed that the Union felt comfortable with President Saunders’ decision to represent Petitioner himself. President Saunders had significant experience advocating for Union members. The Union had arranged for President Saunders to receive training from the George Meany Institute in Maryland on how to advocate for employees in arbitrations. President Saunders had also participated in many arbitration hearings on behalf of Union members. Mr. Marr believed that President Saunders’ decision to represent Petitioner himself was appropriate because Petitioner’s grievance did not present any technical questions and did not involve the application or interpretation of Florida Statutes. In 2015, following Petitioner’s arbitration decision, President Saunders resigned from his post with the Union. The Union replaced him with its vice-president, Daniel Silva. At the final hearing, President Silva testified regarding President Saunders’ decision to represent Petitioner. President Silva opined that President Saunders was sufficiently knowledgeable and experienced to present Petitioner’s case. President Silva also relayed that financial concerns factor into the Union’s decision on whether to provide private legal counsel to represent members. The Bargaining Agreement states that each party “shall bear the cost of preparing and presenting its case.”5/ The Union is conscious of the need to conserve its funds whenever possible, including attorneys’ fees. At the final hearing, Petitioner presented the names of three other Union members for whom the Union provided legal counsel at arbitration hearings. Petitioner did not provide details regarding the circumstances of HART’s employment actions or whether the underlying facts of each matter were substantially similar to his incident. At the final hearing, the Union conceded that for most arbitration hearings it offers its members the services of an attorney. However, President Silva testified that President Saunders represented at least one other white Union member at an arbitration in November 2014. This member, Robert Rackham, did not prevail at his arbitration.6/ President Silva and Mr. Marr testified that Petitioner’s race had no bearing in President Saunders’ decision not to assign an attorney to represent Petitioner at his arbitration hearing. Rather, President Saunders made his decision because he believed he could competently represent Petitioner on his own. Mr. Marr testified that he is not aware of any decision the Union has made based on a member’s race. Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that the Union discriminated against him based on his race in violation of the Florida Civil Rights Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, the Union, did not commit any unlawful employment practice against Petitioner and dismiss his Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 2nd day of December, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 December, 2016.
The Issue Whether Respondent discharged Petitioner in violation of Section 760.10, Florida Statutes (1991).
Findings Of Fact The Petitioner, Aubray Grandison (hereinafter "the Petitioner" or Grandison"), is a black male, and began working as a casual local driver at the Pensacola, Florida terminal facility of the Respondent, Consolidated Freightways Corp. of Delaware (hereinafter "the Respondent" or "CF") in October, 1987. (Tr. 10, 71; R. Ex. 5 and 6) 1/ CF is an interstate trucking carrier, transporting general commodity freight to and from various locations throughout the United States, including its Pensacola terminal facility (Tr. 63-64). At CF's Pensacola terminal, it employs a terminal manager (who is generally responsible for the terminal operation), an account manager, a dock foreman, a part-time office clerk, and a number of local drivers, both casual and regular. At all times material herein, the Terminal Manager at the Pensacola facility was Ken Webb (Hereinafter "Webb"). (Tr. 63-64. As of June 14, 1989, CF employed nine regular drivers at the Pensacola terminal, of whom seven were white, and two (or 22%), Robert Sparks and Aubray Grandison, were black. At this time, the Company also utilized four casual local drivers, of whom two were white and two (or 50%) were black (Tr. 65-66; R. Ex. 11). At all times material herein, Respondent had in effect a Company-wide EEO policy, insuring equal employment opportunity without regard to race, color, age, religion, sex, handicap or national origin. (Tr. 68; R. Ex. 3). Local drivers at CF's Pensacola terminal were assigned various duties to include unloading incoming freight, properly loading and delivering freight to CF customers in the Pensacola area, picking up freight from customers to be delivered, and properly completing their paperwork for all their activities. The duties were the same for both casual and regular drivers (Tr. 69, 75). The difference between casual drivers and regular drivers was that regulars had seniority rights and were guaranteed 40 hours per week (unless on lay off), whereas casual drivers had no guarantee of hours or seniority rights, and were called on as needed for about 30 hours per week. CF's drivers at the Pensacola terminal, including Petitioner, were covered by a collective bargaining agreement, the National Master Freight Agreement and Southern Conference Area Local Freight Forwarding Pick Up and Delivery Supplemental Agreement, and were represented by a labor union, Teamsters Local 991 based in Mobile, Alabama (Tr. 69; Burnthorn dep. 8-9). The Local 991 business agent representing CF's Pensacola drivers was Jerry Burnthorn, and the shop steward was Larry Douglas. (Tr. 70-71, Burnthorn dep. 7). Grandison worked as a casual driver for approximately one year, and during this time, his job performance was very good, including his performance with respect to the delivery of freight and the proper completion of paperwork relating to his loads of freight. His performance was good enough that Terminal Manager Webb recommended that he be hired as a regular driver, notwithstanding an unfavorable reference from a previous employer (Tr. 74, 81-82). Grandison became a regular driver, effective October 25, 1988. (Tr. 78-79; R. Ex. 1, 7). CF experienced no problems with Grandison's performance until approximately three months after he became a regular driver. Beginning in approximately February, 1989, Webb began experiencing various problems in Grandison's performance, particularly with respect to the misdelivery of freight and the improper completion of his paperwork relating to his loads of freight. (Tr. 82; R. Ex. 9). CF did not have a formal training program for its personnel to teach them how the various paperwork was to be completed. The paperwork required was relatively complex as revealed in the extensive testimony of Webb about Grandison's errors. Grandison received several verbal warnings in February and early March, 1989. During the course of the next six months, he received a number of written reprimands in accordance with the collective bargaining agreement. On March 13, 1989, Grandison received a warning letter for a preventable accident on February 20, 1989. This accident originally was ruled nonpreventable by Webb because the police investigated and issued no citation. Webb was overruled by the Company's safety officer because the company paid a claim to the driver of the other vehicle. (Tr. 89-91; R. Ex. 10). On March 31, 1989, Grandison received a warning letter for a misdelivery of freight on March 27, 1989, involving a tire delivered to the wrong customer. The tire was clearly marked with the destination. (Tr. 99-103; R. Ex. 11) On March 31, 1989, Grandison received a warning letter for failure to follow instructions by misdelivering freight, involving two loads of freight, each cross-delivered to the wrong customer. (Tr. 103-104; R. Ex. 12). On March 31, 1989, Grandison received a warning letter for failing to follow instructions on March 29, 1989, by failing to list the pro numbers for freight he picked up on his daily P&D Trip Manifest. The pro numbers identify the freight which the driver picked up. (Tr. 104-105; R. Ex. 13). On March 31, 1989, Grandison received a warning letter for failing to follow instructions on March 23, 1989, by not properly completing a bill of lading upon which he failed to write the date and "CFWY" as required by Company policy. (Tr. 105-106; R. Ex. 14). On March 31, 1989, Grandison received a warning letter for failing to follow instructions on March 23, 1989, by not properly completing eight different bills of lading by failing (1) to note the number of forklift moves, which the Company uses to properly bill the freight (Tr. 106-111; R. Ex. 15), and (2) failing to note the number of pieces of freight picked up on each bill. (Tr. 112-114; R. Ex. 16). On March 31, 1989, Grandison received a warning letter for threatening a work slow down on March 30, 1989. (Tr. 199; R. Ex. 17). On April 17, 1989, Grandison received a warning letter (reduced to verbal warning) for failing to follow instructions on April 7, 1989, by not noting that pick up was a single shipment pick up on the pro number. The Company must have this information in order to bill the customer a surcharge for a single shipment pick up. (Tr. 120-121; R. Ex. 18). On April 17, 1989, Grandison received a written warning (reduced to verbal warning) for failure to follow instructions on April 14, 1989, by failing to complete the required documentation and failing to place the required "refused" sticker on freight that was refused receipt. As a result, the Company did not have a record of why the freight was refused. (Tr. 121-122, R. Ex. 19). In conjunction with the April 17, 1989 letters, Webb met with Business Agent Burnthorn, Shop Steward Douglas, and Grandison. Webb agreed to reduce the written warnings to verbal warnings, in exchange for an agreement from Grandison that he would attempt to complete his paperwork properly from that point on. (Tr. 122-123). On May 25, 1989, Grandison received a suspension letter suspending Petitioner for two days without pay for the misdelivery of freight on May 16, 1989. (Tr. 126-127; R. Ex. 20). Grandison filed a grievance under the collective bargaining agreement contesting this suspension, but the grievance was denied. (Tr. 26-27, 129). On June 30, 1989, Grandison received a warning letter for failing to follow instructions on June 20, 1989, by not showing a single shipment pick up on his pro number. (Tr. 131; R. Ex. 21). On June 30, 1989, Grandison received a suspension letter imposing a five day suspension without pay for the misdelivery of freight on June 22, 1989. (Tr. 132; R. Ex. 22). On August 4, 1989, Grandison received a warning letter for failing to follow instructions on July 24, 1989 by failing to sign the delivery receipt as required by Company policy. (Tr. 133; R. Ex. 23). On August 4, 1989, Grandison received a warning letter for failing to follow instructions on August 1, 1989 by not properly completing two delivery receipts. (Tr. 133; R. Ex. 24). On August 24, 1989, Grandison received a warning letter for failing to follow instructions on August 23, 1989, by not completing several dock expedite write ups while unloading freight at the CF depot. These are necessary in order to properly reroute the freight. (Tr. 133-139; R. Ex. 25). On September 8, 1989, Grandison received a warning letter for failing to follow instructions on September 5, 1989, by failing to record the seal number removed from a trailer on the Terminal Unloading Check Sheet. This is required by the Company's security policy. (Tr. 140-141; R. Ex. 26). On September 8, 1989, Grandison received a warning letter for failure to follow instructions on September 7, 1989, by dropping a 500 pound piece of medical equipment on the ground while attempting to load the equipment on the customer's truck with a forklift, and causing $7,000 of damage to the equipment. (Tr. 141-142; R. Ex. 27). This incident was personally witnessed by Terminal Manager Webb. (Tr. 196). On September 21, 1989, Grandison also received a suspension letter for misdelivering freight to a customer (Scotty's, Inc.) on September 11, 1989. However, Grandison contested this suspension by filing a grievance. In an informal meeting at the terminal with Grandison and Business Agent Burnthorn, Webb agreed to withdraw the suspension and give Grandison another chance. (Tr. 144-145; R. Ex. 28). On October 12, 1989, Grandison received a suspension letter imposing a five day suspension without pay for the misdelivery of freight to a customer on October 2, 1989. (Tr. 148; R. Ex. 29). On October 19, 1989, Grandison was discharged by CF for two separate misdeliveries of freight, one involving a shipment to Babbage's on October 10, 1989 and another involving a shipment to Eglin Air Force Base on October 16, 1989 (Tr. 152-156; R. Ex. 31). The Babbage's misdelivery allegedly involved Petitioner's failure to deliver 3 of 7 boxes in a delivery to Babbage's, and the Eglin misdelivery allegedly involved in failure to deliver ten boxes of phones in a 32 box shipment. According to Webb, on October 28, 1989, he received a call from an employee of Babbage's, a retail store, complaining that only four of seven boxes had been delivered. Webb advised the woman that he had a receipt she had signed for seven boxes. She advised him she did not have a copy of the receipt, but that she only received four boxes. Webb had a search conducted, and found three boxes for delivery to Babbage's. The lady wrote Webb a letter stating she had only received four of seven boxes. (Tr-152.) According to Webb, on October 16, 1989, the Respondent was suppose to deliver 32 phones to Eglin AFB. The Respondent called to get an exception number to permit him to deliver 22 of 32 items and reflect 10 items short. The 10 cartons he was supposedly short where found on his truck when he returned to the depot. (Tr.-155) Terminal Manager Webb advised Grandison of the reason for his discharge at the terminal with Shop Steward Douglas present. Webb also personally handed to Grandison a copy of his discharge letter. When Grandison refused to sign CF's copy of the letter acknowledging receipt of it, Webb, also mailed him a copy via certified mail with a copy also being sent to the local union in accordance with the collective bargaining agreement. Grandison's copy of the letter was returned unclaimed, but the local union received its copy. (Tr. 157-158; R. Ex. 31). Grandison filed a grievance contesting his discharge on October 30, 1989. (Tr. 158; R. Ex. 32). Grandison's grievance was heard by the Southern Multi-State Grievance Committee in Ft. Lauderdale, Florida on January 16, 1990. Grandison, who was present at this hearing and testified in his own behalf, was represented by Business Agent Burnthorn. CF was represented by Labor Relations Representative Bill Jenkins. (Burnthorn dep. 18-20). In accordance with Article 45 of the collective bargaining agreement, the Committee was an impartial arbitration panel comprised of an equal number of management and labor representatives, neither of whom was affiliated with either CF or Local 991. (Burnthorn dep. 12-14, 19). After hearing the evidence presented by both sides, the Committee denied Grandison's grievance and upheld his discharge. (Tr. 162; R. Ex. 33; Burnthorn dep. 21). This decision was final and binding on both sides. (Burnthorn dep. 15; R. Ex. 4, p. 124). Although the transcript of the Committee's proceeding was introduced, the Committee only records its ruling. Discharge of an employee is addressed in Article 46 of the collective bargaining agreement. Under this provision, there were certain dischargeable offenses (such as dishonesty or using or being under the influence of alcohol, narcotics or drugs while on duty) without a prior warning. For other offenses, the contract required that the Company give the employee one prior written warning prior to discharging the employee (R. Ex. 4, p. 127; Burnthorn dep. 22- 23). In order to uphold Grandison's discharge under the contract, the Committee had to find that he was properly discharged for the violations stated. (Burnthorn dep. 21). In the case of Grandison's dismissal for misdelivery of freight, he had received more than one written warning, and also had been suspended on two occasions, prior to being discharged for the same offense. (Burnthorn dep. 23-25, Ex. 4). Grandison could have asserted a grievance under Article 37 of the collective bargaining agreement alleging race discrimination with respect to his discharge (R. Ex. 4, p. 98; Burnthorn dep. 30). He did not do so. Although Burnthorn did not uncover any evidence that CF was motivated by racial prejudice during his investigation of Grandison's discharge, he wasn't investigating this is because it was not alleged in the grievance. (Burnthorn dep. 30). After Grandison was discharged, CF hired two regular drivers at the Pensacola terminal, Joe Fendley (white) on December 11, 1989, and Jessie Smith (black) on December 29, 1989 (R. Ex. 2). These drivers replaced both Grandison and driver Dean Dallas (white) who had retired shortly before Grandison's discharge (Tr. 163-164). It cannot be determined whether Grandison was replaced by the black or the white under the facts. CF disciplined other employees at the Pensacola terminal, both white and black, for offenses similar to those for which Grandison was disciplined. For instance, written warning letters were issued on various occasions to drivers Robert Sparks (black) (R. Ex. 34), Steve King (white) (R. Ex. 35), Terry Ward (white) (R. Ex. 36), and Jimmy Foley (white) (R. Ex. 37, TR. 164-165). Terminal Manager Webb also had suspended white drivers for infractions, including Larry Douglas and Steve King (Tr. 166), and had discharged a white supervisor, Jimmy Hines. (Tr. 166). Grandison showed that on one occasion he was charged with misdelivery but hadn't misdelivered the load. Grandison showed that Pat Gordon at Babbage's signed a receipt for seven packages. He returned the phones from Eglin because the NCO in charge would not accept the phones. The parties stipulated that the Petitioner had suffered a reduction of $5.50/hour in pay as a result of his discharge. (Tr. 46).
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED: That the Commission enter its final order dismissing Petitioner's petition. DONE and ENTERED this 20th day of August, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 20th day of August, 1992.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Thomas P. Crapps, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s failure to appear at the scheduled hearing, which was deemed to be a voluntary dismissal with prejudice. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Cycle Exchange LLC d/b/a Cycle Exchange, be granted a license for the sale of motorcycles manufactured by Astronautical Bashan (BASH) at 14540 North Florida Avenue, Tampa (Hillsborough County), Florida 33603, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed June 7, 2011 8:28 AM Division of Administrative Hearings DONE AND ORDERED this — o) day of June, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Interim Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this. 3 day of June, 2011. wt Vinayak, Dealer ok Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: Carlos Urbizu Mobility Tech, Inc. d/b/a Charlie’s Scooter Depot 5720 North Florida Avenue, Unit 2 Tampa, Florida 33604 Wendy Yu Peace Industry Group (USA), Inc. 6600B Jimmy Carter Boulevard Norcross, Georgia 30071 Patcharee Clark Cycle Exchange LLC 14540 North Florida Avenue Tampa, Florida 33613 Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
The Issue Whether Respondent committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is a black male and is an African-American. He was employed by Respondent in 2005 and continued his employment until May 2009. Petitioner worked the area of the property known as “Fun World.” Petitioner was a ride attendant and was assigned to operate one of the rides available to the public in the park. Respondent is a flea market and family amusement park, operated for the public on Highway 17-92, in Sanford, Florida. At the time of the allegations of this case, Respondent had approximately 24 employees: ten Caucasian, ten black or African-American, and four Hispanic. Fun World has a number of rides described in the record of this case. Petitioner’s assignment varied based upon the need of the park. Petitioner was assigned to the Tilt-A-Whirl ride, at the times most pertinent to the allegations of the case. A series of incidents ultimately led to Petitioner leaving employment at Fun World. First, Petitioner described an incident wherein he was in need of using the restroom. He did not see his supervisor or another ride attendant who could watch his ride, but due to his personal need, he left his station unattended. A second employee observed the unattended ride and told a company manager that Petitioner had left his ride with people waiting and, thereby, made the ride unavailable to the public. Thereafter, Petitioner and the other ride attendant, a Caucasian male, exchanged harsh words. Based upon Petitioner’s admission of what he said, Petitioner received a warning and counseling regarding his behavior and verbal threat to the co- worker. A second incident resulted in Petitioner's being sent home, because he attempted to clock-in late. Respondent has a strict policy that requires employees to clock-in at a designated time. If an employee is going to be late, he must call in advance of the clock-in time and advise a supervisor or manager that he will be late. On one date mentioned by Petitioner, he was on time to work, and in the general vicinity of the time clock, but was technically late to the clock-in process. Respondent sent Petitioner home and advised him he was not needed that day. Another employee was allowed to clock-in after Petitioner had been denied. That worker, a high school football player, had called in to let Respondent know he would be five minutes late. Petitioner and the football player are the same race. Based upon what he believed was disparate treatment, Petitioner determined that Respondent’s management was “out to get him.” First, Respondent had taken the Caucasian co-worker’s side in the dispute arising from the unattended ride issue. Secondly, Respondent had allowed an employee, who was much later than he, to clock-in. Respondent’s acts regarding Petitioner’s assertions had nothing to do with Petitioner’s race. Moreover, Petitioner’s race had nothing to do with why he ultimately left employment with Respondent. The final issue came to light after the aforementioned incidents. Respondent received a telephone tip that Petitioner was selling ride tickets off property. In theory, Petitioner failed to turn in tickets at the ride site, then pocketed tickets for resale off property. To follow up on the allegation, Respondent audited the Tilt-A-Whirl ride tally sheets to compare the number of riders to the number of tickets turned in by Petitioner. Simply stated, Petitioner was required to keep tabs on the number of riders based upon the hour, the ride, and the type of rider (ticket holder or banded pass) before each ride started. For up to eight times per hour, the ride could be operated, and, for each ride, the designated information was to be entered on the tally sheet. At the end of the day, Petitioner was to turn in the tally sheet with his notations for all of the pertinent data. Tickets turned in for the ride were to be placed in the ticket box. The number of tickets in the box should correspond to the tally sheet data. The ticket box was locked and was to be opened by management. Petitioner’s tickets did not match the tally sheet data. When confronted with the discrepancy, Petitioner was given the option of leaving employment or having Respondent call in law enforcement to address the ticket discrepancy. Petitioner clocked out and left the property. Respondent did not act based upon Petitioner’s race, but due to the fact that it was concerned that tickets were missing and unaccounted for from Petitioner’s ride.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 15th day of November, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 15th day of November, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Timothy J. Faison Post Office Box 470572 Lake Monroe, Florida 32747 Sid Levy Flea World 610 North Orange Avenue Orlando, Florida 32801 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The petitioner, William L. Strine, began employment with the Miami Transit Company, a private company, operating the Miami Transit bus system on or about November 26, 1948 in the position of stock clerk. The Petitioner was employed with that entity until February 9, 1962 when he became an employee of Dade County upon the purchase of the Miami Transit Company by the county. The Petitioner was then permitted to purchase his service time between November 26, 1948 and February 9, 1962 as creditable service under the Florida Retirement System. The county, through the Metro Dade County Transit Authority, which had the authority to perform day-to-day management and operation of its bus service with its own employees, or to contract for such management service with private companies, chose the latter option and on or about October 1, 1964 contracted with National City Management to provide all the day-to-day management and operation services for, and instead of, the Metro Dade County Transit Authority. On or about that date Mr. Strine became an employee of National City Management. National City Management is a private company and a subsidiary of National City Lines, which is primarily in the bus transportation business. Its home offices are in Chicago, Illinois and it is still in existence and in the bus transportation business at this time. National City, then, performed all tie day-to-day management and operations for the Dade County Transit Authority's bus service pursuant to that management service contract through March 1, 1975. On October 15, 1974 however, the county adopted Ordinance No. 74-92, wherein it adopted a program to place the public transportation system under the directorship of the county manager by merging the bus system with the rapid transit development program. As a result of thin development, the management service contract with National City Management Company was not renewed. The purpose of this ordinance was to phase out the private management of the county's bus service and to revert to day-to-day management and operations by full-time county employees. The county at all times had the legal authority to conduct its own management and operation of the subject bus service; however, it contracted away the right to National City Management Company during the times the subject service contract was valid. In enacting Ordinance No. 74-92, contrary to the position of the Respondent, the county did not establish dual or parallel positions to those occupied and performed by the management and employees of National City Management because, by contract, only National City could perform those functions and fill those employment positions during the viable life of the contract. The transition period between full management and operations under National City Management and the inauguration of full control and management by the county and its employees was only a five month period and the only possibility of any duplication in employment positions would have been within that five month period, which is a temporary situation. Certainly the county never did, and never intended to establish dual or parallel employment and management positions for the transportation system when it was contractually obligated to let National City do all of that. Thus, the Petitioner in returning to county employment on March 1, 1975 was not moving laterally to a duplicate or parallel position in government from the identical position still existing with the private employment entity, but rather transferred from a position and functions which no longer existed with the private entity to an identical position and functions which had newly arisen with the public employer, Dade County, with the expiration of the contract. Dade County has the authority to grant retroactive sick leave, vacation leave, and longevity benefits to the Petitioner, which it did, but it has no authority to grant retroactive retirement benefits in the Florida Retirement System. The Division of Retirement contends that in considering whether to grant such benefits, it considers whether a contract exists specifying the terms by which the employees of a private entity are to become public employees and considers whether employees must be employed with the government agency taking over the private functions in order to maintain their jobs. It bases its contention primarily on the belief that the employees of National City were not required to transfer to county employment and those who did, in this case the Petitioner, merely voluntarily transferred to a parallel or duplicative job in public employment. In this instance, however, the Petitioner had effectively no real choice but to transfer to employment with the county since his position and all transit management operations of National City were abolished by the enactment of the subject ordinance, coincident to the expiration of the contract and because the effect of the ordinance was to supplant entirely the bus service management and operations duties performed by National City personnel with county personnel. No job commensurate with his skills and expertise remained with any other employer in that locality. Upon the passage of the subject ordinance and the expiration of tie contract with National City, the county was free to create a position of Chief Accountant, or financial officer, for it transit system and hire someone other than Strine to fill that position and perform those duties, which would have been a duplication of Strine's duties and functions; however, the county elected not to do so, but transferred Strine, with is duties and functions over to its employ. No other employees were affected by the transfer because all who had been performing similar management duties had died or retired on or before tie time of the pertinent change of management in March, 1975. The Petitioner will have to pay thousands of dollars to the Division of Retirement in order to buy the eleven years creditable service time. There will be no financial or actuarial detriment imposed by that procedure on the Division of Retirement or the beneficiaries of its retirement system.
Recommendation Having considered the competent, substantial evidence in the record, the foregoing Findings of Fact and Conclusions of Law, as well as pleadings and arguments of counsel, it is RECOMMENDED that the Petitioner, William L. Strine, be permitted to purchase and receive past service credits from the Florida Retirement System for the period October 1, 1964 to March 1, 1975 pursuant to Section 121.081(g) Florida Statutes. DONE and ENTERED this 17th day of December, 1980 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1980. COPIES FURNISHED: Denis Dean, Sr., Esquire Dean and Hartman, P.A. New World Tower, Penthouse Suite 100 North Biscayne Boulevard Miami, Florida 33132 Stanley M. Danek, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C- Box 81 Tallahassee, Florida 32303
