The Issue The issues for consideration in this hearing are whether the Respondent discriminated against the Petitioner in employment because of his national origin, and whether Respondent unlawfully retaliated against Petitioner by discharging him from employment.
Findings Of Fact At all times pertinent to the issues herein, Respondent, CCCS, was a nonprofit charitable corporation engaged in providing personal financial and credit counseling in Tampa, affiliated with the United Way. It is an employer within the meaning of the Human Rights Act of 1977 and Title 7 of the Civil Rights Act of 1964, as amended. CCCS has adopted, and had in effect at all times pertinent herein, a written policy of equal employment opportunity and affirmative action. This policy is outlined in a personnel policy manual prepared by CCCS which is provided to all employees and which was provided to Petitioner. In August, 1991, CCCS management decided to hire an individual to fill the vacant accounts manager position. Initial screening of applicants was conducted by Gloria Jackson who interviewed several candidates, including Petitioner, and recommended three of these to the President, Diane Trithart. Petitioner, Emmanuel Ebeh, was one of the three recommended and was the successful candidate selected by Ms. Trithart. At the time, Petitioner, who is black and a native of Nigeria, was residing, with his family, at Metropolitan Ministries because he was unable to provide housing and sustenance for his family without employment. He had no experience in either personal financial management or employee supervision. Up until that time, he had worked as a cook, a kitchen helper, a mail room clerk, and a pipe-fitter's helper. However, even with his lack of supervisory experience and an absence of supervisory training, Ms. Trithart felt he should be afforded this opportunity. Petitioner's immediate supervisor was Ms. Jackson. She assisted Petitioner and his family in their move into government assisted housing, even to the extent of having her husband rent a truck to help move Petitioner's personal belongings and the furniture donated by Metropolitan Ministries to their new home. Once installed in the job, Petitioner was provided with a six weeks training program, including a syllabus, to assist him in making the transition into his new position. Nonetheless, it appears that during his training period, Petitioner had difficulties accomplishing his job tasks. Within six weeks, Ms. Jackson met with him to discuss errors made in client deposit entries and at that time, provided him with written procedures to follow. She gave him a two week warning confirmed in a written memorandum dated September 17, 1991, the date of the counseling. On September 26, 1991, Ms. Jackson followed up the two week warning period with another memorandum which noted the continuation of existing problems in Petitioner's department and which extended the warning period to October 4, 1991. Mr. Ebeh continued to experience job difficulties. At first, one of his employees, Ms. Warhul, tried to cover for him, but was unable to continue to do both her own job and his. As a result, she contacted Ms. Jackson and described the situation as she saw it. Ms. Jackson then tried to discuss the matter with Mr. Ebeh. However, whenever she did, he would insist on speaking with Ms. Trithart about the issues, claiming he felt it necessary to resist Ms. Jackson's directions. Ms. Trithart promptly and explicitly explained to Mr. Ebeh that his unjustified resistance of Ms. Jackson's direction constituted insubordination and would not be tolerated. Nonetheless, he continued to resist any guidance from Ms. Jackson, whether in the form of direction or constructive correction, becoming defensive and contending that his intentions were good and he was being misunderstood. He claims that Ms. Jackson was always on his back. Petitioner's performance problems were not isolated however, nor were they restricted to incidents with Ms. Warhul. He frequently had problems with misplaced files, posting entries to wrong accounts and other errors of a similar nature which were observed by other CCCS employees. On one occasions, Ms. Jackson asked Petitioner to prepare a letter to creditors who had worked with CCCS in the past but who were not currently participating in their program. She specifically requested that Petitioner let her review a draft of the letter before it was dispatched. Notwithstanding that direction, Petitioner prepared a letter, dated March 4, 1992, which contained a number of grammatical errors and misstatements of procedure and policy, and dispatched it to approximately 2,500 creditors without allowing Ms. Jackson or anyone else in authority to review or approve it. He thereafter left a note on the desk of Mary Jennus, CCCS' education coordinator, advising her that Ms. Jackson and Ms. Trithart wanted her to make changes in the letter and enclosures. This was not so. On March 19, 1992, Ms. Trithart called a meeting with Petitioner, Ms. Jackson and Ms. Jennus to discuss this letter, and at which she orally reprimanded Petitioner both for sending it out without authority and for the inappropriate use of her name in giving false instructions to Ms. Jennus. This meeting was subsequently memorialized by memorandum. Though management contended Petitioner's letter adversely impacted on the agency's image, he asserts it had good results in that some income was realized. On March 30, 1992, Ms. Jackson prepared a written evaluation covering Petitioner's performance for the prior six months. This report indicated Petitioner had continuing problems in the performance of his duties and in his supervision skills. It also called for a further review in 90 days to assess his progress in meeting the requirements of his job. Petitioner refused to sign this evaluation and requested a meeting with Ms. Trithart. Though a note by Ms. Jackson on the evaluation indicates she would arrange that meeting, it cannot be determined if, in fact, such a meeting took place. However, on April 13, 1992, Petitioner prepared a memorandum to operations personnel in which he alludes to "miserable and harsh treatment from management and especially our boss." He also noted the possibility his employees might not be satisfied with his treatment of them and solicited their comments and complaints to him or to the assistant director. This memo discomfited at least one of his employees, Ms. Warhul, who took exception to it in writing. Ms. Mosley also disagreed with his conclusions regarding a harsh working environment and thought it inappropriate for him to send out such a memo without consulting the other employees in the department. He was the department head, however, and his memo, though it might be considered ill advised and somewhat inflammatory, was from him to the people in his department. He did not claim his conclusions were theirs nor did his comments accuse them of misconduct. A meeting of all operations personnel was called by Ms. Trithart for April 13, 1992, the date of that memo. All employees were given the opportunity to express their concerns and it became apparent that not all operations personnel agreed with Petitioner in his characterization of their work environment. The memorandum of that meeting indicates his subordinates see Petitioner as an individual who broods over situations and lets things build up to a point where he writes a memo rather than discussing the problem. An example of this is Petitioner's note on a memo dated April 13, 1992 encouraging all employees to take their lunch break and reminding them that only time before and after normal duty hours may be considered for compensatory time off. Petitioner describes this memo as "inconsiderate treatment" and concludes it was directed at him because he was not taking lunch breaks because he "was sad and depressed because of how [he] was constantly humiliated." After the meeting on April 13, 1992, Ms. Trithart again reviewed Petitioner's file and determined that in light of his most recent infractions, including the unauthorized creditors letter and the false instructions to Ms. Jennus, and his continuing performance mistakes, it would be best to terminate his employment. Her rationale was that he could not be an effective supervisor if he felt, as he clearly did, that he did not have the support of either his employees or his supervisors, and this was compounded by his insubordination which, she believed, undermined the morale in his department and Ms. Jackson's authority as his supervisor. He was, therefore, discharged on April 13, 1992. None of the employees who testified indicated, nor was there any other independent evidence to establish, that Petitioner had been treated any differently while employed by CCCS than any other employee. By the same token, save the personal impressions testified to by Petitioner, there was no indication that either race or national origin played any part in the decision to terminate his employment and it is found they did not. To the contrary, the evidence is clear that the decision to terminate Petitioner's employment with CCCS was based on his failure to meet required standards in the performance of his duties and nothing more. The same is true regarding his claim that his discharge was in retaliation to his complaint in his April 13, 1992 memo regarding what he perceived as the harsh working environment both he and his subordinates had to endure. In that regard, it is found that the memo in question is, in itself, insubordination and evidence of the improper work climate created by the Petitioner rather than his employers. Had he truly felt the treatment given him was harsh, miserable and unfair, the grievance procedures outlined in the personnel manual he had been given would have provided an appropriate avenue for adjustment as opposed to the inflammatory and insubordinate action he took. Petitioner claims his supervisors did not uniformly apply company standards. He asserts he has been treated differently from white employees who were treated with kindness and politeness and when found to have committed errors in their performance, were given time to improve. For example, he cites the case of a Ms. Sweeny who refused to sign an acknowledgment of error and who was merely demoted instead of discharged. In his case, he notes, he met with hostility. He claims no concern was given to the legal issues involved in his situation and he was discharged right away. This is, however, not the case. The evidence is quite clear that Petitioner was counselled on several occasions and evaluated formally during his period of employment with no discipline taken against him. Only when he published the insubordinate memo of April 13, 1993 was action taken. On the basis of that memo and the record of his substandard prior performance, Ms. Trithart decided to discharge him. Petitioner also claims that Ms. Warhul and others who testified against him were engaged in a conspiracy to hide the unhealthy atmosphere which existed. He asserts he was told by Ms. Warhul she would not support him when he wrote his memo because she was afraid of losing her job. It is his contention that she and he were previously close. In actuality, though she was under his supervision, she gave him much of the training he received. He believes that she and many other employees do not like Ms. Jackson but are afraid to say so. Petitioner offered no independent proof of this contention, however, and it is found to be unsupported. Petitioner also takes exception to the claim by CCCS's management that his English was hard to understand. He claims that during the entire 8 months he worked there, his English was never criticized until such time as the decision was made to discharge him. At that time, he contends, he was told that he did not project the proper image the company desired. Mr. Ebeh also notes that he was constantly confronted with a situation where his immediate supervisor would approve something he did and then deny it. Ms. Jackson would approve in advance something his department proposed and then, when it was not well received, deny approving it. Petitioner claims that because of the actions of CCCS's management, he has undergone great stress. When he applied for the position with the firm he and his family were homeless and he admits he was helped considerably by the job and the company personnel. However, he claims he did not get all the help for free and asserts he has paid back for what he received during those first few weeks. He also claims that he has been maligned by company personnel who reported to his job service counsellor that he was soliciting money from coworkers and that he had a bad body odor. These comments humiliated him and he notes that they did not come about until after he complained to Ms. Trithart. Petitioner has no job now and no income and claims to be suffering from health problems. As of April, 1993, a Department of Health and Rehabilitative Services physician noted that he is suffering from raised cholesterol which interferes with his employment "for the present." His total monthly income for himself, his wife and his four sons is $600.00, out of which he must pay approximately $300.00 in rent and $113.00 for utilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that a Final Order be entered dismissing Emmanuel Ebeh's Petition for Relief from the alleged unlawful employment practices of discrimination based on race or national origin, and of retaliation filed against the Respondent CCCS. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 25th day of June, 1993. COPIES FURNISHED: Emmanuel B. Ebeh 4002 East Pocahontas, #110 Tampa, Florida 33610 James R. Freeman, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 E. Kennedy Blvd., Suite 1000 Tampa, Florida 33602 Sharon Moultry, Clerk Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
The Issue The issue in this proceeding is whether Respondent's certification as a law enforcement officer should be disciplined.
Findings Of Fact On October 5, 1989, Respondent was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer, holding certificate #11-89-002-01. In February 1990, Samuel O. Best was employed as a police officer by the City of Port St. Joe Police Department. During the early part of February, Respondent accompanied a woman to a local motel where the two shared a room and engaged in sexual intercourse. While the two were in the room, the Respondent thought the woman smoked two and one-half cigarettes. The items she smoked looked like normal cigarettes. However, Respondent was not paying close attention to the woman's activities or any odor of the smoke because he had his mind on more prurient matters. As the two prepared to leave the room, the Respondent, as was his habit, straightened the motel room. The woman had dropped one of her cigarettes on the floor and Respondent picked up the cigarette and placed it in his pocket. The Respondent forgot about the cigarette in his pocket and kept it for approximately two or three days. Around February 8, 1990, the afternoon of the second or third day after his liaison with the woman in the motel, Respondent went to his father's home and sat on the front porch. The Respondent was on duty. While contemplating the bleakness of his life, in part due to the intense personal problems he was having with his wife, Respondent, who was a heavy smoker, began looking for a cigarette to smoke. He found the motel woman's cigarette in the pocket of a shirt he had worn for three days. He pulled it out, looked at it and lit it. During this activity the "insurance man" was walking up to the house. Officer Best thought the substance in the cigarette was tobacco. However, it tasted like perfume and he put the cigarette out after one puff. He then left the porch to get his father for the insurance man. There was an absence of any competent and substantial evidence reflecting the identifying the substance contained in the cigarette as marijuana. Additionally, no changes in Respondent's behavior were noted by any of his fellow officers or supervisors at any time surrounding the events on February 8, 1990. On February 22, 1990, Chief Richter of the Port St. Joe Police Department received a citizen complaint regarding the Respondent. The insurance agent complained that he had observed the Respondent in police uniform on the porch of the Respondent's father's home smoking. That same day, Chief Richter contacted the Respondent and directed him to come to Chief Richter's office to discuss the complaint. Upon his arrival in Chief Richter's office, Chief Richter told the Respondent what the citizen had alleged. 1/ Chief Richter asked the Respondent if he would answer questions regarding the allegation. The Respondent voluntarily agreed. The initial discussion between Officer Best and Chief Richter lasted approximately 20 to 25 minutes. Officer Best's interpretation of what Chief Richter told him was that the Chief had decided that Officer Best had been smoking marijuana. Officer Best thought his Chief would not misinform him, and he did not argue with Chief Richter over the issue of whether or not the substance was marijuana. However, Officer Best did not know with any certainty what the substance was that he had inhaled briefly while sitting on his father's front porch. After the initial discussion, Chief Richter then placed the Respondent under oath and began to question him while tape recording the interrogation. From Respondent's point of view, the reference to marijuana during the interrogation was merely a convenient label for referring to the cigarette he briefly puffed on his father's front porch. Neither the reference or his responses to questions using the term marijuana was intended to be an admission of knowing drug use. Given the Respondent's demeanor at the hearing, it is understandable under the facts of this case, that even with some training in drug identification, Respondent was not able to identify the substance in the cigarette and that he was also very submissive to what he believed to be a superior officer's view of the matter. As a result of the Respondent's statement, he was discharged from his employment with the Port St. Joe Police Department. However, even with the dismissal, the overwhelming evidence in this case is that Respondent remains of good moral character and remains capable of performing his duties and working with his fellow officers. Moreover, the evidence fails to demonstrate that Respondent at any time knowingly possessed or ingested marijuana. Given these facts, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the amended Administrative Complaint filed against Samuel O. Best be dismissed. RECOMMENDED this 31st day of December, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1991.
The Issue The issue in this case is whether the City of Clearwater properly dismissed Respondent, Diane C. Hashil, from her employment as a Toll Booth Attendant for inefficiency in the performance of duties, in violation of Rule 14, Section 1, paragraph (c), of the Civil Service Rules and Regulations of the City of Clearwater.
Findings Of Fact Respondent, Diane C. Hashil, was employed as a Toll Booth Attendant at the Sand Key Tollbooth by Petitioner, City of Clearwater, (the City), from July of 1992 until May 24, 1995. During the course of Respondent's employment with the City, Respondent has been the subject of numerous disciplinary actions, resulting in counseling, written reprimands, and suspensions. Beginning on December 6, 1993, and continuing through May 24, 1995, twelve disciplinary actions were taken against Respondent for charges including repeated discourtesy to customers, insubordination, failure to comply with verbal instructions, failure to follow policies regarding nonpayment of tolls, and entering the cash drawer of another employee without permission. Respondent's disciplinary action history includes the following actions: 1) On December 7, 1993, Respondent received a written warning for a Level 4, #2 offense (insubordination); 2) On December 21, 1993, Respondent was suspended for two days for a Level 2, #2 offense (discourtesy); 3) On January 26, 1994, Respondent was suspended for three days for a Level 2, #2 offense (discourtesy); 4) On August 10, 1994, Respondent received a letter of reprimand for a Level 1, #1 offense; 5) On January 12, 1995, Respondent received a letter of reprimand for a Level 4, #2 offense (insubordination); 6) On January 17, 1995, Respondent was given a letter of reprimand for a Level 2, #1 offense; 7) On March 9, 1995, Respondent was suspended for two days for a Level 3 offense (productivity); and, 8) On March 15, 1995, Respondent was suspended for five days for a Level 4, #2 offense (insubordination). In April of 1994, Respondent's employment with the City was terminated; however, the City reversed this decision, and Respondent subsequently remained in her position. On November 1, 1994, Respondent received an unsatisfactory performance evaluation. The primary basis for this evaluation was Respondent's continued discourtesy to patrons which had resulted in disciplinary actions against Respondent during the evaluation period. The City's employee performance ratings policy requires that an employee receiving an unsatisfactory rating be reevaluated in three months. On February 13, 1995, at her three-month follow-up reevaluation, Respondent again received an unsatisfactory performance rating. The basis for this evaluation was that Respondent had received repeated reprimands for insubordination, failure to follow rules, and entering the cash drawer of another employee without permission. On March 9, 1995, as a result of her unsatisfactory reevaluation, Respondent received a two-day suspension, and twenty disciplinary points. On March 15, 1995, Respondent was suspended for five days for insubordination. Respondent's appeal of these suspensions was upheld through the City Manager stage. Respondent did not seek further review of these suspensions. On May 5, 1995, at her second follow-up reevaluation, Respondent again received an unsatisfactory performance rating. Under the City's policy this unsatisfactory rating was automatic because Respondent had been suspended for five or more days during the rating period. In addition the second follow-up performance evaluation stated that Respondent filed a false police report alleging a customer had defrauded her, that Respondent entered the cash drawer of another employee without permission, and that Respondent was responsible for low morale of the other employees at the Sand Key Tollbooth. Respondent admits that she entered the cash drawer of another employee without permission, and that she kept a daily log of the activities of other employees which contributed to the low morale at the Sand Key Tollbooth; however, Respondent believed other employees were allowed to violate rules, and that she was being unfairly disciplined because she was female and not a member of the union. The evidence does not support a finding that other employees were allowed to violate rules, nor that Respondent was treated differently than other employees. The evidence does not reflect that Respondent was subjected to disciplinary actions because of her gender or her failure to join a union. During her employment at the Sand Key Tollbooth, Respondent received more complaints from customers and other employees than any other tollbooth attendant. Because Respondent had received two consecutive three-month reevaluations with an unsatisfactory rating, she was subject to termination under the City's policy. In addition, because Respondent had accumulated excessive disciplinary points she was subject to termination under the City's Guidelines for Disciplinary Action. The performance evaluations and the disciplinary actions taken with regard to Respondent were appropriate and consistent with those given other employees. Following her five-day suspension, Respondent filed a report alleging various rule violations of other employees. The City investigated Respondent's allegations and required three employees to attend counseling with regard to cash drawer procedures. The evidence does not support a finding that the City singled out Respondent for disciplinary actions. The City allowed Respondent to serve her five-day suspension over two pay periods to lessen the financial impact of her suspension. The City Harbormaster has employed other females within the department without incident. As of October 1995, the City has eliminated the position of tollbooth attendant because of the construction of a new Sand Key bridge which will, upon completion, be toll free. The City has assisted former tollbooth attendants in attempting to secure other positions of employment with the City. Subsequent to her termination, Respondent applied for a meter reading position with the City, but was not hired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The City of Clearwater Civil Service Board enter a Final Order dismissing Respondent from her position of employment with the City of Clearwater. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of November, 1995. RICHARD HIXSON 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 29th day of November, 1995. APPENDIX As to Petitioner's Proposed Findings: 1 - 12. Accepted and Incorporated. As to Respondent's Proposed Statement of Facts: Accepted, except that unauthorized entry into another employee's cash drawer violated City rules and regulations. Rejected as irrelevant. Rejected as not supported by the evidence. COPIES FURNISHED: Leslie K. Dougall-Sides, Esquire Paul Richard Hull, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Diane C. Hashil 1527 South Prospect Avenue Clearwater, Florida 34616 Ms. Cynthia Goudeau City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department, an executive agency of the State of Florida, is an employer as that term is defined in Section 760.01(6), Florida Statutes. Vickers is a black male who at all times material to this proceeding was employed by the Department. Vickers was first hired as a COI at the Mayo Correctional Institution, Lafayette County, Florida, on or about October 30, 1987, and transferred to the Madison Correctional Institution, Madison County, Florida, on or about February 19, 1988. At all times material to this proceeding, Vickers held permanent status within the Career Service System, enacted and authorized under the laws of Florida. On April 28, 1989, Vickers was promoted from COI in food service to COII in food service. Vickers was placed on a nine-month probationary status insofar as the promotion was concerned. Vickers was selected for this promotion over two other white candidates. The interview team consisted of Eric Holt, Cathy Leggett and Aubrey Dean. Then-Superintendent, Terry Hicks selected Vickers for the promotion on the recommendation of the review committee. In the position of COII in food service, Vickers was responsible for supervising staff and inmates in the preparation of food at the Madison Correctional Institution. Vickers would supervise as many as three correctional officers and as many as 20-30inmates. Among those under Vicker's supervision was COI, Janice Lingenfelter and inmate Jeffery Lausin. On or about August 15, 1989, Lingenfelter made a complaint to COII Nellie Cunningham that Vickers had been sexually harassing her. Lingenfelter then made a written complaint to Hicks, who then requested that an inspector from the Department's Inspector General's Office be assigned to investigate the allegations. CO Inspector II William Dotson was assigned to investigate the allegations made by Lingenfelter. Dotson began his investigation on August 17, 1989, by interviewing several witnesses including Lingenfelter, Cunningham, Lausin and Vickers. Dotson's investigative report was completed and sent for review to the Inspector General of the Department on October 3, 1989. It was determined through Dotson's investigation that there was evidence to support Lingenfelter's claim of sexual harassment against Vickers and a failure by Vickers to maintain a professional relationship with staff and inmates under his supervision. Dotson's report was sent to Hicks at Madison Correctional Institution sometime between October 4, 1989 and November 1, 1989. By letter dated November 1, 1989, Vickers was notified that disciplinary charges were being brought against him for violating certain Department rules pertaining to sexual harassment and failure to maintain a professional relationship with inmates under his supervision. That letter, signed by Hicks, also advised Vickers of his right to request a conference, prior to any final action being taken, at which he could present evidence to refute or explain the charges against him. Vickers requested and was given a conference held on November 28, 1989. At that conference, Vickers was represented by counsel and presented a statement to Hicks regarding the charges against him. Vickers was notified by letter dated December 6, 1989 that he would be suspended for five days without pay for his violation of the rules cited in the charging letter of November 1, 1989. On or about August 18, 1989, Vickers was reassigned from food service to security. Hicks made this reassignment due to the investigation into allegations of sexual harassment against Vickers which had originated in food service. After reviewing Dotson's investigative report, and after hearing Vickers' response to the charges against him, Hicks made the decision to demote from COII to COI. The demotion was effective December 15, 1989. At the time of the demotion, Vickers was in probationary status as a COII. Hicks determined that Vickers had exhibited an inability to properly supervise the inmates and staff under his supervision. An inmate in food service had patted a female correctional officer in food service (Lingenfelter) on the buttocks. Hicks attributed this lack of discipline on the part of the inmate to poor supervision by Vickers. On or about December 15, 1989, Vickers was given a below standards performance appraisal written by Eric Holt, his supervisor. On the front of the appraisal was the indication that it was a probationary appraisal. Personnel Manager Leggett told Hicks that it should be a special performance appraisal rather than probationary, but Hicks did not change the appraisal prior to giving it to Vickers. This performance appraisal was incorrectly titled "probationary" rather than "special", and later determined to be invalid. Vickers was not given an annual performance appraisal on his anniversary date (October 30, 1989) because he was in a probationary status. While the failure to give a timely and appropriate employee performance appraisal may be a violation of the Career Service System Rules, Chapter 22A-9, Florida Administrative Code, this not would prohibit the Department from demoting an employee who is on probationary status because of a promotion, if there were legitimate, nondiscriminatory reasons for the demotion. Vickers has never received a Performance Appraisal wherein he was rated at less than an "Achieves Level", other than the Performance Appraisal entitled "probationary" which was later determined to be invalid for reasons other than the rating of Vickers' performance. Vickers appealed his suspension and demotion to the Public Employees Relations Commission (PERC). A hearing was held, since it was determined that PERC did have jurisdiction to review Vicker's suspension but not his demotion. Under the personnel rules governing state employees, a person who is in probationary status in a class may not appeal his or her demotion from that class. After hearing and weighing the evidence and argument of both parties, the Hearing Officer entered a Recommended Order dated March 2, 1990 wherein it was found that the Department had proven the charges against Vickers by a preponderance of the evidence, and therefore, just cause existed for discipline. The Hearing Officer also determined that the five-day suspension should not be reduced, specifically citing the seriousness of the offense as it related to his duties and responsibilities. A Final Order was issued by PERC on May 2, 1990 adopting the Hearing Officer's Recommended Order in its entirety and dismissing Vicker's appeal. Approximately January 3, 1990, interviews were held to fill the position of COII in food service from which Vickers had been demoted. Of the eleven applicants, two were black males, one was a black female, five were white males, and three were white females. One of the black males cancelled his interview, while the other "declined F.S." (food service). The black female was promoted to a position with the Hamilton Correctional Institution. Larry Pickels, a qualified white male, was selected for the position. Neither the "invalid Performance Appraisal" nor Hick's decision to demote Vickers were motivated by Vickers' race or sex, to wit: black and male. The Department has produced sufficient admissible evidence to show that it had a legitimate, nondiscriminatory reason for demoting Vickers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, recommended that the Commission enter a Final Order finding that Petitioner, Curtis Vickers, was not demoted due to his race or sex in violation of Section 760.10, Florida Statute, and that the Petition for Relief be dismissed. RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of February, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5279 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings On Proposed Findings Of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(1); 2(2,3); 3(4); 4(14); 5(2,19); 6(11); 7(7,18); 8(7); 11(10); 12(17); 13-14(16); 15-16(15); 18(14); 19(12); 20-21(14); 27(7,8); 31(16). Proposed findings of fact 9 and 10 are a restatement of testimony rather than a finding of fact, but see Finding of Fact 8. Proposed findings of fact 17, 28 and 32 are unnecessary. Proposed findings of fact 22-26, and 33 are neither material nor relevant. Proposed findings of fact 29 and 30 are more in the way of an argument than findings of fact. Proposed finding of fact 34 is neither material nor relevant, unless it is shown that Vikers' demotion was discriminatorily movitated. Specific Rulings On Proposed Findings Of Fact Submitted by the Respondent 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number inparenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(2); 2(4,5); 3-14(6,7,8,9,10, 11,12,13,14,17,18 and 19, respectively). COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahssee, FL 32399-1570 Gary L. Asbell, Esquire McMurry & Asbell 1357 East Lafayette Street Suite C Tallahassee, FL 32301 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Ernest L. Reddick, Esquire Assistant General Counsel Florida Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500
The Issue The issue in this case is whether the Respondent has committed the violations as charged.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. In July 2008, Respondent was hired by Petitioner as a sanitation equipment operator. At the time, Respondent was given a copy of the employee handbook. Receipt of this document was acknowledged by Respondent. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resources Policy Manual. The July 16, 2010 letter, which informed Petitioner of his termination, cited to the following provisions of the Human Resources Policy Manual, which state as follows: Section F-4 Disciplinary Offenses * * * (4) Conduct Unbecoming an ECUA Employee Any act or activity on the job or connected with the job which involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee's effectiveness as an ECUA employee, or that adversely affects the employee's ability to continue to perform their job, or which adversely affects the ECUA's ability to carry out its assigned mission. Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. The seriousness of the conduct which constitutes a "conduct unbecoming an ECUA employee" offense determines the appropriate penalty. Further, the repetition of the same or similar conduct may lead to progressive discipline. If an employee repeatedly engages in conduct unbecoming, but the acts or conduct which are unbecoming are dissimilar to each other, cumulative discipline may be imposed. * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes. This may include, but is not limited to, misuse of position, giving or accepting a bribe, discrimination in employment, or actual knowledge of and failure to take corrective action or report rule violations and employee misconduct. The termination letter concluded that the facts and circumstances surrounding Respondent's conviction of a third- degree felony constitute a violation of the above-quoted provisions. On November 30, 2009, Respondent was arrested and charged with 1) "sexual assault/sexual battery, victim over 12 years of age, physical force"; and 2) "cruelty toward child abuse without great harm." On June 16, 2010, the State filed a nolle prosequi regarding the first charge of sexual assault/sexual battery, victim over 12 years of age, physical force. Thus, this charge was dropped, resulting in no conviction of this charge. Also on June 16, 2010, Respondent pled nolo contendere/no contest to the second charge of cruelty toward child abuse without great harm. This plea resulted in a conviction of this charge, which is a third-degree felony. The court placed Respondent on probation for three years. Ronald Ross is a deputy with the Escambia County Sheriff's Office. In October 2009, Deputy Ross worked in the special victims unit concerning crimes of a sexual nature against children and the elderly. Deputy Ross interviewed Respondent on October 30, 2009, regarding the incident that led to criminal charges being filed. At the time of the interview, Respondent was not under arrest. The interview took a little over an hour. During the interview, Deputy Ross described the allegations: that Respondent touched and fondled the breast and vaginal area of a 16-year old victim; that his finger penetrated the victim's vagina; and that Respondent exposed his penis to the victim. According to Deputy Ross, Respondent initially denied all of the allegations, but, as the interview went on, he admitted to some of the allegations. That is, Respondent admitted to touching the girl, denied exposing himself, and asserted that the girl was a willing participant in the encounter. Despite Respondent's initial reluctance to admit to the offense, Deputy Ross described Respondent as very cooperative during the interview. At hearing, Respondent did not wish to discuss the specific facts and circumstances of the incident in detail, which is his right. He insists, however, that he was not looking for trouble, that the "young lady" approached him, and that he pled out only because he did not have the financial resources to pay his attorney to go to trial. Despite the above, Respondent is remorseful for his actions. Respondent is concerned that the investigation of this incident conducted by ECUA was not complete. In particular, he is concerned that ECUA relied only on the Deputy's investigative interview of him, and did not review depositions in the court file that led to the prosecutor dropping the more serious charge. He also questions whether he is the only ECUA employee with a third-degree felony who was fired. There is no evidence in the record to establish whether Respondent was treated any differently than other employees who were convicted of offenses of the same category, i.e., third degree felonies. Respondent had a felony conviction prior to becoming employed by ECUA. In 2000, Respondent was convicted of a drug conspiracy charge and served a prison sentence for that crime. He disclosed his criminal background to ECUA when he was hired. Randall Rudd is the Sanitation Director for ECUA. He was aware of Respondent's prior conviction, but despite this, made the decision to hire Respondent in 2008. When Mr. Rudd learned of Respondent's 2010 conviction, he became concerned that this conviction could have an impact on Respondent's job. Specifically, Respondent was assigned yard trash collection. This involved regular interaction with the public, in that customers regularly ask questions of the sanitation operator, and the driver is often the only employee on the truck. In addition to the conviction itself, Mr. Rudd was concerned about the nature of the offense, Respondent's contact with the public, how the public might view ECUA, and potential liability to ECUA. Mr. Rudd acknowledged that Respondent was a good employee who never had any problems dealing with the public, and that his decision to terminate Respondent was not an issue of job performance.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utility Authority find that Respondent violated its Human Resource Policies F-4 (4) and (33) and impose such discipline on Respondent as determined appropriate under the provisions of the Human Resource Policy Manual. DONE AND ENTERED this 4th day of November, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 November, 2010. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Ron E. Williams 7041 Andros Drive Pensacola, Florida 32506 Richard C. Anderson, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
The Issue The issue in this case is whether Petitioner's application for licensure as real estate sales associate should be granted.
Findings Of Fact On February 28, 2011, Mr. Poppell filed with the Commission an application for licensure as a real estate sales associate. In his application, Mr. Poppell stated that he was pleading not guilty to current charges of "trafficking, possession and receiving stolen property." By letter dated April 7, 2011, Mr. Poppell sent to the Commission the Alabama Uniform Incident/Offense Report relating to his arrest in Tuscaloosa, Alabama, on September 12, 2010, for trafficking in illegal drugs and unlawful possession of a controlled substance. At the time of his arrest, Mr. Poppell was a student at the University of Alabama. The criminal case against Mr. Poppell is currently pending, and Mr. Poppell does not anticipate that it will be resolved until 2012. Mr. Poppell, who is 22 years old, posted bail of $175,000. He currently lives in Florida and owns a pizza and sub restaurant with his mother in Niceville, Florida. On July 14, 2011, the Commission filed a Notice of Intent to Deny Mr. Poppell's application. The Commission's denial was based on Mr. Poppell's criminal history as revealed in his application and the unpersuasive testimony or evidence presented by Mr. Poppell as an explanation or mitigating factors. The Commission cited the following statutory basis for denying Mr. Poppell's application: Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S. * * * F. Found guilty of a course of conduct or practices which show applicant is so incompetent, negligent, or dishonest that money, property and rights of others may not safely be entrusted to applicant. 475.25(1)(o), 475.181 F.S. * * * M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. Additionally, the Commission cited section 455.213(3), Florida Statutes (2011),1/ as an additional ground for denial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Mr. Poppell's application. DONE AND ENTERED this 1st day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 1st day of December, 2011.
Findings Of Fact The Town and The Parties The City of Opa Locka is an incorporated municipality within Dade County, Florida. It is approximately 4.5 square miles, with a population of approximately 14,000, and some 5,000 registered voters. If this case is a valid example, citizens of Opa Locka actively and enthusiastically are involved in the local political process. The process can become lusty and raw with acrimony. Timothy Holmes, a citizen of Opa Locka and full-time community activist, receives disability income and is otherwise unemployed. From time to time he has provided various services or errands for attorney, James Greason, and at one time he had cards printed identifying himself as an investigator for Greason. His primary activities in recent years have been related to non- compensated membership on several municipal boards and committees. From approximately 1982, until its abolition in December 1988, Timothy Homes was on the Opa Locka Code Enforcement Board. He was then appointed to the Zoning Board of Appeals. He was on that board in 1989 when he decided to run for the city commission in the 1990 elections, for the seat occupied by Ollie B. Kelley. He did not formally file for the election until early 1990, and it is unclear when his intent was made known, but he had previously endorsed candidates in opposition to seated board members. Ollie B. Kelley is employed as a baker for the Dade County School Board. She is currently vice-mayor of Opa Locka and has served on the commission since 1986. Robert Ingram is a visiting professor at Florida Memorial College and is mayor of the City of Opa Locka, having served in that elected office for approximately 5 years. He previously served as Opa Locka police chief from 1980 to 1985. For the past three years, L. Dennis Whitt has been city manager for the City of Opa Locka. Daniel Reyes was employed as assistant to the city manager, L. Dennis Whitt, from November 28, 1989 until November 30, 1990, when he was terminated for various alleged wrongdoings. Holmes' Removal From The Board When Dennis Whitt came to the city in the middle of June 1989, he was made aware of Timothy Holmes' activities. Holmes exhibited behavior which Whitt considered inappropriate for an official of the city. Whitt received complaints and questions about Holmes as to perceived conflicts between his function as a board member and his services to Attorney Greason, who was representing parties in litigation against or involving the city. Holmes also was alleged to have gained access to city facilities based on his public office, but in furtherance of outside interests. Holmes wrote letters to the newspaper criticizing the city commission and was heard berating the commission in their meetings, calling them "Papa Doc, Mama Doc and Baby Doc", in an unflattering reference to former Haitian dictators. This latter incident was particularly irritating to Commissioner Kelley. She approached Whitt and asked whether something could be done. In response, Whitt researched the city charter for the procedure for removal of board members; he drafted an affidavit of charges based on his conversations with Commissioner Kelley and his own personal observations. He met with Commissioner Kelley on September 27, 1989 and gave her the affidavit. Although Dennis Whitt understood that board members could be removed for cause, the existing procedures applied to employees of the city, so he developed the language of the affidavit from the city's personnel rules, citing violations of a "standard of conduct", "insubordination" and "disgraceful conduct", "antagonism", interference with the proper "cooperation of employees", and use of his official capacity to solicit attorneys in litigation with the city and to conduct a private investigation of a city employee. (Petitioner's Exhibit #7) Commissioner Kelley signed the affidavit; it was presented to the full commission at the September 27th meeting; and the commission unanimously voted (with Kelley abstaining, because she brought the charges) to suspend Timothy Holmes from the Zoning Board of Appeals. The action, reflected in Resolution No. 5138, also set a public hearing on removal for November 8, 1989. At Holmes' request the hearing was continued to a later meeting, January 10, 1990. In the meantime, Dennis Whitt was instructed to conduct an investigation and bring together witnesses and evidence for the hearing. The hearing on removal of Timothy Holmes commenced at 7:00 p.m. on January 10th and proceeded into the early hours of the morning of January 11th. Timothy Holmes was represented by counsel, James H. Greason. The city was represented by its city attorney, Teretha Lundy-Thomas. Ms. Kelley testified, and did not participate as a voting member of the commission. Two law enforcement officers also testified. Three members of the public, including former mayor John Riley, testified on behalf of Timothy Holmes. The Commission voted to sustain the allegations regarding general insubordination and similar charges, but the last two charges regarding misuse of office failed for lack of majority vote. After votes on the separate charges, Dennis Whitt informed the commission that Holmes' removal from the board would need to be finalized with a resolution. The meeting was recessed to allow the city attorney and city manager to prepare the resolution. When the commission reconvened, the resolution removing Timothy Holmes passed 4-0, again with Commissioner Kelley abstaining. Holmes' Complaint To The Ethics Commission Holmes was convinced that his removal was a political vendetta. At some point after the public hearing he was in Attorney Greason's office and met Daniel Reyes. Reyes mentioned that he was with the city when the hearing took place and in Reyes' opinion, the removal in January 1990 was wrong. Reyes had heard Holmes and others referred to as "V.C." or "Viet Cong" - political enemies to be eliminated. Holmes was delighted to get information which he felt confirmed his own suspicions. Reyes executed an affidavit, dated June 11, 1991, stating among other matters, that "In January, 1990, Affiant, while so employed [as assistant to the city manager] witnessed City Manager L. Dennis Whitt and Mayor Robert Ingram conspire together to formulate changes which were used to remove Timothy Holmes as a member of the Opa-Locka Zoning Board . . . " (Petitioner's exhibit #3) That affidavit and an affidavit executed by Timothy Holmes were attached to a Commission on Ethics complaint form executed by Timothy Holmes on October 23, 1991. The affidavits and complaint to the Ethics Commission were prepared with the assistance of James Greason. At some point the above-referenced date on Reyes' affidavit, "January 1990", was struck through, and "September 1989" was substituted. Reyes initialed the change. The "corrected" date on Reyes' affidavit made the affidavit false, since Reyes was obviously not employed by the City in September 1989. He initialed the change at Greason's direction and never really looked at the date or considered it. Reyes was employed at the time of the removal hearing, but not when the process was first initiated. He was present when the resolution for removal was drafted during the January meeting's recess, but admittedly had no personal knowledge of the drafting of the initial affidavit by Whitt or the suspension resolution. The substance of Timothy Holmes' complaint to the Commission in Ethics was that Kelley, Ingram and Whitt conspired to remove him for actions protected by the First Amendment and for the purpose of discrediting him and politically damaging him in the November 1990 municipal election. He based the complaint on his own perception of the political climate and on what he understood were specific first-hand observations by Whitt's former assistant, Daniel Reyes. On January 29, 1992, the Commission issued its public report and order dismissing complaint: . . . On Friday, January 24, 1992, the Commission on Ethics met in executive session and considered this complaint for legal sufficiency pursuant to Commission Rule 34-5.002, F.A.C. The Commission's review was limited to questions of jurisdiction of the Commission and of the adequacy of the details of the complaint to allege a violation of the Code of Ethics for Public Officers and Employees. No factual investigation preceded the review, and therefore the Commission's conclusions do not reflect on the accuracy of the allegations of the complaint. The Commission voted to adopt the legal sufficiency analysis of its Executive Director, a copy of which is attached. Accordingly, this complaint is dismissed for failure to constitute a legally sufficient complaint with the issuance of this public report, which shall include the complaint and all documents related to the complaint. . . . The Petition for Fees and Costs Richard Venditti has handled legal matters for the City of Opa Locka and its officials in the past. He served as special master on contract with the City and also represented a couple of commissioners who were being investigated on charges by a private citizen. He represented Dennis Whitt in an action brought by Daniel Reyes for punitive damages related to his employment termination. When Whitt, Kelley and Ingram were served with Timothy Holmes' complaint to the Ethics Commission, they consulted individually with Richard Venditti. No papers or responsive pleadings were filed by or on behalf of respondents prior to the Ethics Commission's dismissal of the complaint. However each respondent was reasonably concerned and sought their attorney's advice. Petitions for costs and attorney's fees were filed with the Commission on Ethics on behalf of respondents, Kelley, Whitt and Ingram on February 28, 1992. Richard Venditti and L. Dennis Whitt drafted the petitions with information supplied primarily by Whitt. On March 11, 1992, Richard Venditti submitted individual bills to Whitt, Kelley and Ingram in the respective amounts of $1,665.00, $690.00 and $690.00. Most of the time reflected on the bills' itemization relates to the recovery of fees. The bills have not been paid, and the respondents are each unclear as to whether the city will pay the bills for them. They understand that they are personally responsible if the city does not pay the bills. Summary of findings Timothy Holmes filed his complaint with the advice and active assistance of an attorney. He was convinced that since his removal did not relate to specific misdeeds as a Zoning Board member, the removal was politically motivated and was in retaliation for zealous exercise of his rights as a citizen. He relied on those personal convictions and on statements by Daniel Reyes, whom he chanced to meet in his attorney's office and who gave him what appeared to be reliable inside information. Further investigation would have required his confronting the very persons he believed had conspired against him. The handwritten, "corrected" date on Reyes' affidavit was an error, but not Holmes' error. It apparently was an effort by someone other than Holmes to conform the statement to the date the process was initiated. Reyes, himself, explained that the "conspiracy" he witnessed was at the time of the removal hearing. This explanation is consistent with Whitt's testimony regarding the temporary recess required to draft the removal resolution. Reyes, and not Holmes, was negligent in checking the date on his affidavit before he initialled the change. Reyes presence when Dennis Whitt and the City Attorney drafted the removal resolution during the hearing recess makes it easy to understand why he felt the resolution was a foregone conclusion: it was. Each charge against Timothy Holmes had just been voted up or down, and the resolution, according to the city manager, was a necessary final step in the process. For good reason, the vote for removal was then beyond any doubt. The claim that Ollie Kelley had no knowledge of the facts in the affidavit of charges was based on Ms. Kelley's unfamiliarity with some of the terms used by Dennis Whitt in the draft. She was required to read the charges both at the meeting when suspension was voted and at the removal hearing. She stumbled over words such as "antagonistic". These were terms from the city's personnel manual and, although they may not have been part of Ms. Kelley's vocabulary, when explained to her they adequately expressed her personal concerns about Holmes' activities. It is neither necessary nor appropriate here to unravel the tangled web of political intrigue woven by the allegations and counter-allegations of the parties in this proceeding. Like Commissioner Kelley who was ignorant as to how to proceed but instinctively felt that something was wrong, Timothy Holmes reasonably relied on the advice of others in pursuing a remedy for relief. Timothy Holmes was misguided, but was not, himself, malicious.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter its Final Order denying fees and costs to Robert B. Ingram, Ollie B. Kelley and L. Dennis Whitt. DONE and RECOMMENDED this 11th day of September, 1992 in Tallahassee, Leon County, Florida. MARY CLARK 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 11th day of September, 1992. APPENDIX The following are rulings made pursuant to Section 120.59(2) F.S. the parties proposed findings of fact. Findings of Fact Proposed by Ingram, Kelley and Whitt: Adopted in substance in paragraph 7. and 3. Rejected as unnecessary or immaterial. Adopted in part in paragraph 2, otherwise rejected as unnecessary or immaterial. Adopted in part in paragraph 3, otherwise rejected as immaterial. and 7. Adopted in substance in paragraph 14. 8. - 13. Rejected as immaterial, since Holmes' reliance on Reyes was reasonable and consistent with his own perception of the events leading to his removal. 14. - 19. Rejected as unnecessary or immaterial. Adopted in substance in paragraphs 4 and 9. Adopted in part in paragraphs 10 and 26. Adopted in substance in paragraph 5. 23. - 25. Rejected as unnecessary. 26. Adopted in paragraph 19. 27. Rejected as unnecessary. 28. Adopted in paragraphs 6 and 7. Adopted in paragraph 9. Adopted in paragraphs 10 and 11. Adopted in paragraph 13. 32. - 34. Rejected as unnecessary. 35. Adopted in substance in paragraph 19. 36. - 40. Rejected as unnecessary. Findings of Fact Proposed by Holmes 1. - 3. Rejected as unnecessary. Addressed in conclusions of law. Adopted in paragraph 18. The legal argument is rejected as contrary to prior ruling by the Commission. - 7. Legal argument rejected as provided in paragraph 5, above. The conclusion is adopted generally in paragraphs 23- 27. Adopted in "Recommendation". COPIES FURNISHED: Richard Venditti, Esquire 250 Bird Road, Ste. 102 Coral Gables, FL 33146 Timothy Holmes 275 Seaman Avenue Opa Locka, FL 33054 James H. Greason, Esquire 4165 NW 135th Street Opa Locka, FL 33054 Tracey Maleszewski Clerk & Complaint Coordinator Ethics Commission Capitol, Room 2105 P.O. Box 6 Tallahassee, FL 32302-0006 Bonnie J. Williams, Executive Director Commission on Ethics The Capitol, Room 2105 P.O. Box 6 Tallahassee, FL 32302-0006
Findings Of Fact The Petitioner, James Lee Church, is a white male who has been an employee of the Respondent, Department of Corrections since May of 1990. The Petitioner was originally employed as a Correctional Probation Officer, but in June of 1991 accepted a voluntary demotion to Human Services Counselor and relocation to Lake Correctional Institution, LCI, in order to attend graduate school in Orlando, Florida. In early 1993, the Petitioner applied for promotion to a position of Correctional Probation Officer I, also referred to as a classification officer, at LCI. Although this would have been a promotion from the position which he held, this is the same entry level position from which he had earlier taken a voluntary demotion in order to relocate. It can be inferred that the Petitioner was familiar with the job duties of the position which he had earlier held at another institution which included counseling inmates, computing gain time, setting up inmate work assignments, educational goals and social/religious programs. In March, 1993, Paula Hoisington, a black female, was Classification Supervisor at LCI, and reviewed all thirty applications for the Classification Probation Officer I position for which the Petitioner had applied. The Petitioner's qualifications exceeded the required educational and practical experience, and he had been previously employed by the Respondent in a similar position prior to relocating to LCI. Ms. Hoisington and the Petitioner discussed his application before the selection was made, and Ms. Hoisington advised the Petitioner that she was not putting his name forward for the promotional opportunity because she was aware he had applied for another position. The Petitioner queried Ms. Hoisington regarding whether that meant he would get the other position, and she advised him that it did not. The Petitioner advised her that he really was serious about putting his name forward for the instant promotion and desired to be interviewed. Ms. Hoisington excluded the Petitioner for the interview process which is required for recommendation for the promotion, and selected eight applicants (four white males, two black males, one white female, and black female) to be interviewed by the panel making promotional recommendations to the Superintendent of LCI. The panel recommended three candidates, two black males and one white male, and the Superintendent selected Willie McKinnon, a black male to fill the position. Mr. McKinnon had been employed as a correctional officer for eight years and a classroom teacher for three years prior to that, and possessed a degree in sociology and had worked as a social worker. In March 1993, the Petitioner applied for the promotional position of Human Services Supervisor at LCI, the position which had been discussed with Ms. Hoisington. This position required oversight of Tier II substance abuse program at LCI and supervising LCI personnel and staff provided by an outside vendor. Ms. Hoisington again selected the applicants to the interviewed, and this time included the Petitioner in the list. She also prepared the synopsis of each applicant's background and experience which was provided to each member of the panel. The panel consisted of a white female, two white males, and Ms. Hoisington. It recommended three applicants, two black females and one white male to the Superintendent, who selected the black female. The person selected had worked as a Human Services Counselor for three and one half years, and been employed previously by the Department of Health and Rehabilitative Services and had a degree in criminology. Ms. Hoisington and another member of the panel gave the Petitioner a bad score on the interview because he was perceived as arrogant and pompous because he acted as though he was the best candidate for the position. In October 1993, the Petitioner received a promotion to Correctional Probation Officer I. In March 1994, the Petitioner applied for promotion to Correctional Probation Officer II. The Petitioner was interviewed for this promotional opportunity, but was not selected by the panel who recommended a white female, a black female, and a white male to the Regional Administrator, who was the appointing authority. A white female was selected from the individuals recommended. In December 1993, the Petitioner applied for the promotional position of Correctional Probation Specialist, a new position overseeing various substance abuse programs throughout Region III (Central Florida) of Respondent. The application was made before the Petitioner's charge of discrimination by Ms. Hoisington was made to the Commission in January 1994. In the interim, Ms. Hoisington had been promoted to the Regional staff, and in her new position selected the persons to be interviewed for the position of Correction Probation Specialist for which the Petitioner had applied. Again, Ms. Hoisington put together the resumes for the panels consideration and served on the panel. The Petitioner protested Ms. Hoisington's participation in this process to the Respondent through its counsel, and suggested to Respondent's counsel that it was a conflict of interest for Ms. Hoisington to serve on the panel, which included of two white females and Ms. Hoisington. The Respondent refused to take Ms. Hoisington off the panel which recommended one black male and one white female for the position. The hiring authority, a white male, selected a white female who had worked for the Department nine years to fill the position. The Petitioner had a degree in biology, had teaching experience, was a certified correction probation officer, had work experience in West Virginia as a classification supervisor, and had work experience in North Carolina administering and monitoring grants and grant moneys to daycare providers. He had worked in the Tier II drug program during his employment by the Department, and would have been qualified by education and experience for a supervisor's position in this area. The Petitioner was promoted to Correctional Probation Officer II in September 1994. Classification of jobs and validation of requirements for positions in career service was performed by the Department of Administration during the initial period of Petitioner's employment by Respondent, and by the Department of Management Services later in his employment pursuant to statute. The questions used by interview panels for positions within the Department are part of a qualification examination. These examination questions have not been validated relative to the various jobs within the Department of Corrections, and validated to determine their ability to accurately predict job performance by applicants. They are used by panels to assess the applicants and are scored; however, there is a subjective component to the assessment of applicants as revealed by the low grades received by the Petitioner for "arrogance" by panel members in his interview for the Human Services Counselor Supervisor position. Attitude was not a "scorable" component of the test, yet it was determinative in the minds of two of the evaluators. There is no evidence that the questions were racially biased, or that they were the basis of racial discrimination against the Petitioner. The Petitioner's supervisor, Ms. Ramirez, did make statements to Ms. Hoisington which indicated that he was not a team player; however, she also advised Ms. Hoisington that Petitioner did his job as she instructed him to do it. Ms. Hoisington testified regarding this, and Ms. Ramirez' affidavit is not inconsistent with Ms. Hoisington's testimony. The Department is an employer. The Department has been determined to have discriminated against Hispanic and black females in hiring for certain positions which are not at issue in this case. There is no evidence that the Department has discriminated generally in the past against white males in its hiring practices. The only evidence presented on racial discrimination is that outlined above.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Petitioner's complaint be dismissed. DONE and ENTERED this 15th day of June, 1995, 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 15th day of June, 1995. APPENDIX CASE NO. 94-4480 The parties filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings Proposed Order Paragraph 1-3 Subsumed in specific findings. Paragraph 4 No evidence was received that Ms. Hoisington's refusal to place Petitioner's name on the interview list was a violation of Departmental rules. Paragraph 5 Subsumed in Paragraph 4. Paragraph 6-8 Subsumed in Paragraph 19. Paragraph 9 Irrelevant. Paragraph 10 Subsumed in Paragraph 18. Paragraph 11 Cannot be determined from the information provided and is irrelevant. Paragraph 12-20 All of these findings relate to the fourth promotional opportunity, in which a white female was recommended by the panel and hired. The Petitioner failed to make a showing of racial prejudice in this instances, about which evidence was received because it supported the previous allegations; however, the Petitioner did not plead retaliation in his complaint and no findings will be made on allegations about retaliation. Paragraph 21,26-28,30 Subsumed in Paragraph 18. Paragraph 22 Subsumed in Paragraph 17. Paragraph 23-25,29 Legal arguments. Respondent's Findings Proposed Order Paragraph 1-4 Paragraph 1-4. Paragraph 5 Rejected as contrary to more credible evidence. Paragraph 6,7 Paragraph 5. Paragraph 8a,8b,9 Paragraph 6,7,8,9. Paragraph 10,11,12 Paragraph 10,11. Paragraph 13 Paragraph 12,13. Paragraph 14 Subsumed in Paragraph 18. Paragraph 15 Subsumed in Paragraph 15. COPIES FURNISHED: James Lee Church 907 Foresthill Drive Clermont, FL 34711 Susan Schwartz, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Louis A. Vargas, General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500
The Issue The issues in the case are whether the Respondent violated Florida Administrative Code Rule 11B-27.005(3)(b), and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent held Correctional Certificate number 44905. On June 29, 2005, the Respondent signed a Stipulation and Settlement Agreement (Agreement) related to an Administrative Complaint filed by the Petitioner in a previous disciplinary proceeding against the Respondent (Criminal Justice Standards and Training Commission Case Nos. 20073 and 20242). The Respondent was represented by legal counsel during the 2005 proceeding. The Agreement imposed a one-year probationary period commencing 15 days from the entry of a final order. The Agreement was approved and adopted by the Petitioner as stated in a Final Order dated November 21, 2005.1 The Respondent's probationary period commenced on December 6, 2005, and ended one year later. Among the conditions set forth in the Agreement was the following requirement set forth at paragraph 4: As a condition of probation, the Respondent shall provide staff with proof of successful completion of a Commission-approved ethics training course. The Respondent failed to submit any proof that she had successfully completed a Commission-approved ethics training course by the expiration of the probationary period. On December 6, 2006, a staff specialist assigned to monitor the Respondent's compliance with the requirements of probation sent a letter by regular U.S. Mail to the Respondent's last known address (Jonquil Court in Naples, Florida), reiterating the requirement to submit the information related to completion of the approved ethics training course. The staff specialist received no response to the letter. The staff specialist then accessed state driver license records to ascertain whether the Respondent's address had changed and observed that the Respondent had a new address. The staff specialist sent a second letter to the Respondent about a month after the first, this time by certified mail to the address on the driver license records (12th Street Northeast, in Naples, Florida). The certified letter was returned on February 23, 2007, as unclaimed. Postal service documentation indicated that three unsuccessful attempts were made to deliver the letter. Based on the apparent failure to comply with the ethics training course requirement, the Petitioner instituted a disciplinary proceeding against the Respondent. A notice of the probable case hearing scheduled for June 12, 2006, was sent by regular mail to the Respondent at the same address to which the certified letter had been sent. The Respondent received the correspondence related to the probable cause hearing and contacted the Petitioner. The Respondent failed to supply proof of successful completion of a Commission-approved ethics training course prior to the June 12, 2007, probable case hearing, and the Administrative Complaint at issue to this proceeding was entered. In response to the Administrative Complaint, the Respondent submitted a letter dated August 30, 2007, which stated as follows: To Whom it [sic] May Concern: Diana Hall completed PHI-3301 Philosophy at Hodges University as part of her associate degree. The associate degree she completed gave her the choice between Ethics and Philosophy. Philosophy and Ethics are both humanities classes. Please allow the substitution of Philosophy for the required Ethics class based on the category of both classes being a humanity requirement. Thank you. Sincerely, [Signature] Kimberly Morehouse Registrar Hodges University The letter does not identify when the Philosophy course was taken. At the hearing, the Respondent testified that she took the course during the winter of 2006. A grade report indicated that the course was taken in the fall of 2005, and the Respondent also acknowledged that the course could have been taken in 2005. The Respondent graduated from Hodges University with an associate degree in Nursing/Medical Assistant on June 10, 2007. She completed the requirements for the degree in December 2006. The grade report indicates that in addition to the Philosophy course, the Respondent took a course in Medical Terminology and a course in Medical Office Procedures during the same term. The evidence establishes that the Respondent has failed to comply with the probationary condition requiring submission of proof that she completed an ethics training course approved by the Petitioner. There was no credible evidence that the Respondent made any attempt to verify whether the Philosophy course would comply with the probationary requirement that an ethics training course be successfully completed prior to taking the course. The Respondent testified that she provided the information related to the Philosophy course to her legal counsel, but there was no evidence that the Respondent made any attempt to ascertain whether the course had been accepted by the Petitioner as meeting the probationary condition. There was no credible evidence that the Philosophy course completed by the Respondent specifically addressed any ethical issues specifically related to law enforcement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order revoking the Respondent's correctional certificate. DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 15th day of November, 2007.
The Issue Whether the Department of Revenue has violated the requirements of Section 120.54(1)(a), Florida Statutes, by failing to adopt the June 1998 edition of its Code of Conduct and the July 1995 edition of its Disciplinary Procedures and Standards as rules pursuant to the rulemaking procedures of Section 120.54, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the Prehearing Stipulation of the parties, the following findings of fact are made: Facts which the parties admitted and which required no proof1 The Department of Revenue is an agency within the meaning of Section 120.52(1), Florida Statutes. Ms. Obinyan was a career service employee of the Department until she was discharged on January 12, 1999. Ms. Obinyan has standing to challenge the June 1998 edition of the Code of Conduct Guidelines, Department of Revenue Policy Statement #1141-2 ("Code of Conduct"), and the July 1995 edition of the Disciplinary Procedures and Standards, Department of Revenue Policy Statement #1141-9. The Code of Conduct and the Disciplinary Procedures and Standards are official policy statements of the Department. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements of general applicability that are generally and equally applicable to all Department employees and were applicable to Ms. Obinyan when she was an employee of the Department. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements that prescribe and implement policy. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements that are intended by their own effect to require compliance. The Department has a policy and practice of requiring all of its employees to sign a written acknowledgement of receipt of the Code of Conduct and the Disciplinary Procedures and Standards and an acknowledgement that the employee understands that his or her violation of any of the conduct standards contained in the Code of Conduct or in the Disciplinary Procedures and Standards shall be grounds for disciplinary proceedings pursuant to the disciplinary action procedures contained in the Disciplinary Procedures and Standards. It is the Department's policy and practice to require its employees to comply with the procedures and standards reflected in the Code of Conduct and the Disciplinary Procedures and Standards. It is the Department's policy and practice, in administering discipline, to follow the disciplinary procedures set forth in the Disciplinary Procedures and Standards and to apply the disciplinary standards set forth therein to avoid disparity as to the type and severity of discipline administered for the violations specified in the Disciplinary Procedures and Standards. It is the Department's policy and practice to take disciplinary action in accordance with the Disciplinary Procedures and Standards when an employee violates the Code of Conduct or the disciplinary standards contained in the Disciplinary Procedures and Standards. The Department has taken disciplinary action against its employees, including Ms. Obinyan, pursuant to the disciplinary procedures and standards in the Disciplinary Procedures and Standards since its adoption in 1995. The Department has not adopted the Code of Conduct or the Disciplinary Procedures and Standards as rules or initiated the rulemaking process to adopt either of these statements as a rule. Additional facts established by the evidence The Code of Conduct compiles in one twenty-page document both conduct prescribed or proscribed in statutes and rules and conduct which is prescribed or proscribed by Department policy. It is not intended to be all-inclusive, but an employee is subject to disciplinary action if he or she fails to conform to the provisions contained in the Code of Conduct. The proposed Code of Conduct was submitted to the Governor and Cabinet, as agency head, for review prior to implementation. The Department's Disciplinary Procedures and Standards contain forty-five standards, and violation of any of these standards is grounds for disciplinary action. The disciplinary procedures must be complied with whenever discipline is to be administered to career service employees of the Department. The proposed Disciplinary Procedures and Standards were submitted to the Department of Management Services for approval prior to implementation, as required by Rule 60K-9.002, Florida Administrative Code. The proposed procedures and standards were approved by the Department of Management Services after they were reviewed for consistency with the standards of other agencies and after they were submitted to the American Federation of State, County, and Municipal Employees (AFSCME) for review and comment. The Code of Conduct and the Disciplinary Procedures and Standards do not apply to anyone other than the Department's employees and include disciplinary standards and conduct prescriptions and prohibitions unique to those employees. The provisions of the Code of Conduct and the Disciplinary Procedures and Standards are detailed and precisely describe the disciplinary procedures, disciplinary standards, and prescribed and proscribed conduct which govern the Department's employees.
