The Issue Whether Respondent should be terminated from her employment with the Seminole County School Board.
Findings Of Fact Mack has been employed by the School Board for six years. During the 2001-2002 school year, Mack was a school lunch assistant assigned to Seminole High School. Her immediate supervisor was John Caldwell (Caldwell). Mack received satisfactory evaluations of her work for Petitioner until April 2002, when she received an evaluation from Caldwell criticizing her in several areas. On April 12, 2002, a Friday, Mack was upset about her evaluation, showed her evaluation to fellow workers and loudly complained about her evaluation. She was becoming disruptive to the cafeteria operations. Caldwell called Mack into his office to discuss her behavior. She became loud, and Caldwell had to call the Assistant Principal. Mack was sent home. Caldwell did not tell her not to come back, and, at that time, did not tell her that he was going to recommend that she be terminated. On Monday, April 15, 2002, Mack called her workplace and said that she was sick and was going to the emergency room. On April 16, 2002, Mack called in and spoke to Janelle Harris (Harris), who was Caldwell's assistant. Mack told Harris that she had the flu and would not be coming to work. The policy for a food service worker at Seminole High School who was going to be absent from work because of sickness was that the worker was to call either Caldwell or Harris and notify them of the absence. The telephone in Caldwell's office has voice mail capabilities; thus, if Caldwell or Harris were not in the office, the sick employee was to leave a message on the voice mail. Caldwell and Harris were the only two persons who had access to the code to retrieve messages from the voice mail. On April 17, 2002, Mack was absent from work, but did not call in and give an explanation for her absence. Mack continued to be absent from work without calling in. On April 26, 2002, Mack came to the school office and picked up her paycheck. She did not go to the cafeteria and tell Caldwell or Harris why she had not been at work. Learning that Mack had gone to the school to pick up her check, Caldwell called Mack at her home. Mack told Caldwell that she had called in and left a voice mail. No messages were left on the voice mail by Mack between April 17 and April 26. Caldwell explained to Mack that she was required to call in unless she was in the hospital or could not talk. Daniel Andrews (Andrews), the Director of Food Services, prepared a letter to be sent to Mack under Caldwell's signature. The letter, dated May 2, 2002, advised Mack that she had continued to be absent without calling in to notify Caldwell of her absence and to provide a reason for the absence. The letter further advised her that three days of absence without leave required a penalty of termination. Mack was requested to contact Caldwell by noon on May 7, 2002, or the case would be referred to Andrews. Mack did not receive the letter until May 8, 2002; however, she never contacted Caldwell concerning the letter. By letter dated May 10, 2002, Andrews advised Mack that because of her continued absences without leave and her failure to provide justification for her absences that he would be requesting that her termination be recommended to the School Board. Mack received this letter on May 18, 2002. By letter dated May 20, 2002, Paul Hagerty, Superintendent of Public Schools for the School District of Seminole County, Florida, advised Mack that he would be appearing before the School Board on May 28, 2002, and recommending that she be suspended without pay. He further advised her that at the June 11, 2002, School Board meeting he would file a recommendation that her employment be terminated effective June 12, 2002. Mack contacted Andrews by telephone and left a voice mail. On May 21, 2002, Andrews returned her call, and Mack told him that she had gotten the voice mail when she tried to call Caldwell but did not leave any messages. Andrews would have accepted a reasonable explanation from Mack for her absences when she talked to him on May 21, but she did not provide any plausible reason for not notifying Caldwell of her absences nor did she ever provide any documentation from a doctor that she had been ill during her absences. Mack told Andrews that she did not care if her employment was terminated. By letter dated May 25, 2002, Mack requested a hearing on the decision to terminate her employment. Mack did not request a hearing concerning the recommendation for her suspension. On May 28, 2002, the School Board suspended Mack, effective May 29, 2002. Mack had a job at a local barbeque restaurant during the evening hours. While she was absent from her job at Seminole High School, she continued to work at the barbeque restaurant. The Non-Instructional Personnel of Seminole County Board of Public Instruction, Inc., and the School Board have entered into a collective bargaining agreement, effective July 1, 1997, through June 30, 2002, covering the wages, hours, and the terms and conditions of employment of the public employees within the bargaining unit. The collective bargaining agreement applies to Mack's employment with the School Board. Article VII, Sections 5, 11, and 15 of the collective bargaining agreement provide: Section 5. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present: * * * 10. Improper use of sick leave. Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. Section 15 Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommend for termination. The School Board interprets the collective bargaining agreement to mean that each day an employee is absent without leave is a separate offense. At no time did the School Board issue Mack a written reprimand, one-day suspension, or a five- day suspension prior to her termination, as set forth in Section 15 of the collective bargaining agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dorothy Mack was absent without leave, suspending her for one day, and issuing a reprimand. DONE AND ENTERED this 10th day of April, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 10th day of April, 2003. COPIES FURNISHED: Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A. 215 West Verne Street, Suite D Tampa, Florida 33606 Sandra J. Pomerantz, Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jim Horne Commissioner of Education Department of Education 325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by failure to hire Petitioner due to age and/or handicap.
Findings Of Fact Respondent Department of Agriculture and Consumer Services is an agency of the State of Florida and is an "employer" as defined by Section 760.02(7), Florida Statutes. Petitioner's Charge of Discrimination and Petition for Relief are based on his age and/or handicap as they relate to his not being hired as an Operations and Management Consultant II - SES, for position no. 42001640, at Respondent's Forestry Youth Academy. The Forestry Youth Academy is a low-risk, residential facility for juvenile offenders, which is operated by Respondent's Division of Forestry, pursuant to a contract with the Department of Juvenile Justice (DJJ). The Minimum Requirements published for the employment position at issue were: A Bachelor's Degree from an accredited college or university and four (4) years of professional experience in systems analysis, management analysis, program planning, program research, program evaluation, engineering or administrative work. A Master's Degree from an accredited college or university can substitute for one (1) year of the required experience. Professional or nonprofessional experience as described above can substitute on a year- for-year basis for the required college education. This means that the minimum requirements for the position at issue were to have earned a bachelor's degree from an accredited college or university and have four years of professional experience in systems analysis, management analysis, program planning, program research, program evaluation, engineering or administrative work. A master's degree from an accredited college or university could substitute for one year of the four years of professional experience. Professional or nonprofessional experience as described above could substitute on a year-for-year basis for the required college education. Therefore, an applicant with a bachelor's degree and four years of the specified professional experience could qualify. Likewise, an applicant with a bachelor's degree and a master's degree would need only three years of the specified professional experience to qualify, and an applicant without any college education would need four years of professional or non-professional experience (substituted for the college education) and four years of specified professional experience to qualify, i.e. a total of eight years of the specified experience. The Major Duties and Responsibilities of the position at issue, as advertised, were: MAJOR DUTIES AND RESPONSIBILITIES: This is independent and complex administrative and consultative work providing operational and management coordination for an agency. Reviews administrative policies, procedures, guidelines and related directives to be implemented; evaluates impact on operations; identifies potential problems; recommends appropriate action. Assists Coordinator to develop and monitor the Contract with the Department of Juvenile Justice, including Quality Assurance Codes and Standards for the care, custody, and treatment of juveniles. Coordinates with the Department of Juvenile Justice in the selection of juveniles with regard to the admissions process and discharge process. Identifies statewide operational problems in the implementation of administrative service policies and procedures or program policies and procedures. Investigates, assesses, analyzes and makes recommendations to resolve issues and problems presented by administrators. Provides direction, guidance and counsel to administrators and their staffs in the management and operation of service programs and responsibilities. Performs firsthand, on-site analysis of operational problems of service programs; serves on interdisciplinary staff teams to develop optimum resolutions; carries out the implementation of solutions. Consults with staff members to develop solutions for programmatic operational problems. Performs related work as required. The vacancy advertisement also included the following language: SPECIAL NOTE: If you need an accommodation because of a disability in order to participate in the application/selection process, please notify the contact person in advance. We hire only US citizens and lawfully authorized alien workers. AN EEO/AA EMPLOYER Requirements: Certifications Drivers License Occupation MANAGEMENT ANALYSIS Education Bachelors (or equivalent Work experience) Job Type Full Time Region/County Levy County Years of Experience 3-5 years Percent of Travel 1-25% The position at issue was initially advertised as an "Internal Agency Opportunity" with a closing date of April 19, 2006. (Stipulated Fact 1.) The position was subsequently re-advertised as "Open Competitive," with a closing date of May 19, 2006. (Stipulated Fact 2.) This was done at the direction of the Division of Forestry Director, Mike Long, in order to expand the potential pool of prospective candidates. The parties stipulated that Petitioner applied for the position on or about May 6, 2006. (Stipulated Fact 3.) Exhibit R-2, shows that Petitioner "signed electronically using password" on May 6, 2006. The parties stipulated that Petitioner's application, among others, was rejected in favor of the successful candidate, Dwight Poole (age approximately 36; disability unknown). (Stipulated Fact 5.) No evidence demonstrated that Mr. Poole has any handicap/disability. The parties did not stipulate that Petitioner is handicapped/disabled. Petitioner's testimony is the only cognizable evidence of his present alleged handicap. Petitioner testified, without medical corroboration, that he has a history of being unable to work due to impairments brought on by schizophrenia and/or schizoid personality disorder, first diagnosed in the late 1970's.1/ Petitioner described his alleged handicap as being unable to have any intimate human contact and being unable to interact with others in a significant way for 25-30 years. He testified that he could not relate to others as most people can relate to others. While the foregoing portion of Petitioner's testimony is unrefuted, Petitioner comported himself appropriately and with considerable legal finesse throughout the three hours of final hearing herein. This, and his employment history as found infra (see Findings of Fact 28-37) does not support his contention that he is legally handicapped within the purview of Chapter 760. The parties stipulated that Petitioner is a member of a protected class in that he is over the age of 40. (Stipulated Fact 6.)2/ The employment application submitted by Petitioner for the position at issue did not disclose Petitioner's age. (R-2) However, in response to written interview questions, Petitioner disclosed that he had graduated from high school in 1966. This information is in Petitioner’s handwriting and bears his stipulated interview date of May 15, 2006. (R-4) Petitioner was interviewed by Robert King, Respondent's Coordinator of the Forestry Youth Training Program, on or about May 15, 2006. (Stipulated Fact 4.) Petitioner met the minimum qualifications for the contested position. (Stipulated Fact 7.) Mr. King interviewed 18 applicants for the position herein. He ranked Petitioner thirteenth out of 18 applicants. He ranked Dwight Poole, an employee at the Forestry Youth Academy for nearly eight years, as first out of the 18 applicants. Mr. King's typed priority sheet, which ranked the 18 candidates he interviewed (R-6) and Mr. Poole's handwritten and signed interview question sheet (Part of R-3), each show that Mr. King interviewed Mr. Poole on April 20, 2006. Another typed item is labeled "Florida First Application" (Part of R-3), and bears a date of May 28, 2006, which date, if it refers to the date the application was first submitted, would demonstrate that successful candidate Poole did not apply for the position at issue until more than a month after he had interviewed with Mr. King.3/ However, the May 28, 2006, date on this exhibit bears no “signed electronically” notation as appears on Petitioner’s application. (See Finding of Fact 10 and Exhibit R-2.) Therefore, on the successful candidate’s so-called application, the May 28, 2006, date could symbolize almost anything, including but not limited to, the most recent date Mr. Poole's application was printed in preparation for hearing. Upon orders from Director Long, Beth Vaughn, Manager of the Department of Agriculture and Consumer Services' Administrative Unit in Tallahassee, journeyed to the Forestry Youth Academy in Ocala and interviewed the three candidates whom Mr. King had ranked highest. Ms. Vaughn concurred with Mr. King's top ranking of Dwight Poole. She was not aware of any candidate's age or that any candidate had a handicap. On May 31, 2006, Ms. Vaughn sent to Assistant Director Jim Karels, a written recommendation for a 15 percent (rather than the traditional promotional 10 percent) salary increase for Mr. Poole. Therein, she stated that Mr. Poole had been continuously employed by Respondent since November 27, 1998, and related his work history and exceptional skills and experience. (Exhibit R-7). (See also Findings of Fact 39-46.) Ms. Vaughn’s recommendation logically would have been made after she interviewed Mr. Poole, using Mr. King’s ranking sheet, and before Mr. Poole actually assumed the vacant position. Director Long is based in Tallahassee. He made the final selection of Dwight Poole for the contested position. Assistant Director Karels’ recommendation of Dwight Poole played a big part in Mr. Long's ultimate selection of Mr. Poole for the position at issue. However, no written recommendation by Mr. Karels is in evidence. The date of Mr. Long’s final selection of Mr. Poole also is not in evidence, but Mr. Long was not aware of any candidate's disability status or the age of any candidate when he made his selection of Dwight Poole. The best date that can be assigned for Mr. Poole's assuming the contested position is June 7, 2006, the date handwritten in the printed "official use" portion of his application. (R-3) That means that he assumed the position with only seven years and five months of specialized experience with the Respondent. However, Mr. Poole's application shows he had earned an AA Degree in 2005; served as a youth counselor on a cruise line for six months in 1994; served as a Behavioral Science Specialist with the United States Army for three years; and had held several years of managerial positions in stores, working with computer inventories. (See Finding of Fact 44.) In addition to the contested position herein, Petitioner has not been hired by Respondent and other State agencies for other positions for which he has applied. Petitioner feels this is because people do not like his resume, see him as too old, or because his MBA degree is stale. He testified that he “can only assume” that his age or handicap have something to do with his lack of success. There is no disability status indicated for any of the 38 Florida Youth Academy employees as of September 13, 2006. (Stipulated Fact 9.) Respondent Employer interprets the Americans With Disabilities Act (ADA) as prohibiting any employer from collecting information on people with disabilities. Because of this interpretation, Respondent does not keep records of which employees or job applicants are, or are not, legally disabled, pursuant to the ADA. Respondent does not even keep a record on the item in evidence of which employees or job applicants are otherwise physically impaired/handicapped/disabled. The records in evidence do not even list any workers who are temporarily on medical leave or out on workers’ compensation. Therefore, there is no way to assess, from the parties’ stipulation or from the items in evidence, whether Respondent has in place an effective affirmative action plan pursuant to Section 503, of the Rehabilitation Act of 1973. However, Exhibit R-11 shows that the federal Equal Employment Opportunity Commission (EEOC) has investigated Petitioner's allegations that Respondent is in violation of Section 503, and that the EEOC has determined that there was insufficient evidence to show a violation. In any case, federal Section 503 compliance is a "non-issue" in this proceeding pursuant to Chapter 760, Florida Statutes. Respondent Agency has in place a policy prohibiting discrimination in the recruitment, hiring, and employment of persons based on race, color, sex, creed, national origin, political opinions or affiliations, disability, marital status, or age. Its policy is contained in a handbook, and supervisors are required to attend educational courses on non-discrimination up to three times per year. Respondent also widely disseminates job vacancy notices and tries to affirmatively post vacancy notices in a number of locations which would appeal to persons in the named categories. Sometimes, Respondent's supervisors work with the Department of Education, Division of Vocational Rehabilitation, to educate or hire that Agency's clients. (See also Finding of Fact 7.) Petitioner's employment application included an employment history covering July 1, 1974, through May 6, 2006. Petitioner's application related that from July 1, 1974, until June 1, 1979, Petitioner worked for Electro-Com Corp. as a project/operations manager. There was a gap in Petitioner's application from June 1, 1979, to April 1, 1980. Petitioner testified that during this period be became a street person. Petitioner's application related that from April 1, 1980, until January 1, 1996, Petitioner was self-employed as a portfolio/property manager, buying and selling stocks and bonds and managing all aspects of a small portfolio of real property. Petitioner testified that his family had entrusted two real estate properties to him for his own support and that his family managed the portfolio when he could not do so during this period. He further testified that he lived in a van in the woods during part of this period. Petitioner's application related that from January 1, 1996, until March 1, 2004, Petitioner was pursuing his Batchelor's and Master's degrees. Petitioner has, in fact, obtained a batchelor's degree and an MBA. Petitioner's application related that from April 13, 2004, until January 28, 2005, Petitioner was employed as a substitute teacher in the Marion County School District. Petitioner's application related that from January 29, 2005, until March 31, 2005, Petitioner was employed in Orlando by the State of Florida, Department of Financial Services, as a Financial Examiner of funeral homes and cemeteries. His stated reason for leaving that employment was that the commute to Orlando was too difficult and that the lack of safe, affordable housing in Orlando made relocation to Orlando undesirable. Petitioner's application accounted for a gap in employment by indicating he was on disability from August 1, 2005 to February 1, 2006, and was "ready for employment" status thereafter. (Stipulated Fact 8.) More specifically, Petitioner listed his job title as "Ready for Employment" and his duties and responsibilities as "currently ready for employment status with the Florida Department of Education Vocational Rehabilitation Service." On his written interview questions, there was the question, "Are there any gaps in employment of six months or longer on your application since leaving high school? If yes, please explain. (Month/Year.)" Petitioner wrote in "I've been on disability since 3/1/05. I am currently certified as being able to work by Florida Vocational Rehabilitation." Dwight Poole's employment application contains his employment history from May 1, 1989 to April 10, 2006. Mr. Poole served approximately three years in the United States Army as a Behavioral Science Specialist from 1989 until 1992. Between 1992 and 1998, Mr. Poole held warehouse jobs involving computerized inventories, management skills, and coordinating several locations of auto parts stores. Since November 27, 1998, Mr. Poole has worked exclusively for Respondent's Division of Forestry at the Florida Youth Academy, acquiring the specific skills and expericne required or desired by the advertisement. In 1998, Mr. Poole began working at the Forestry Youth Academy as a House Parent. In 2002, he was promoted to the position of administrative assistant, reporting to Robert King, who interviewed all the job applicants for the present position at issue. Mr. King was better acquainted with Mr. Poole than with the other applicants for the position at issue when he interviewed them. (See Findings of Fact 17 and 19.) From 2003 to 2006, Mr. Poole's title was "HSPS", with a wide range of duties organizing a treatment team, ensuring security, and overseeing numerous operational procedures and evaluations, and he reported to Ms. Jill Hartl. In 2005, while continuously employed by Respondent, Mr. Poole earned an AA degree in psychology from Central Florida Community College. Mr. Poole's appointment to the position at issue herein was his fourth promotion by Respondent since 1998. During that time span, he has twice been selected as "staff of the year" (the equivalent of “employee of the year”), and once he was selected "teacher of the year" at Forestry Youth Academy. Mr. Poole also has received an award from DJJ. He was an integral part of the Academy's achieving "Deemed Status" by DJJ in 2005. "Deemed Status" is the second highest ranking that a residential program can receive. At the time of interviewing for the contested position, and currently, Mr. Poole was/is familiar with the policies and procedures of DJJ as they relate to operations of the Forestry Youth Academy. He has helped develop policies for case management, mental health, substance abuse services, emergency mental health, substance abuse crisis intervention, and suicide prevention. Likewise, he was/is familiar with quality assurance codes and standards of DJJ. He also helped develop the Forestry Youth Academy's continuity of operations plan. Petitioner has never worked in a 24-hour residential facility. He has no familiarity with DJJ policies and procedures relative to such facilities. He has no experience developing or monitoring a contract with DJJ. He is unfamiliar with DJJ quality assurance codes and standards. He has no familiarity with the Forestry Youth Academy or with the Academy's admission or discharge process. Petitioner has never worked with juveniles in the criminal justice system. He has never served on an interdisciplinary staff to develop optimum resolutions. With regard to Petitioner's experience in "review[ing], assess[ing], analyz[ing], and making recommendations to resolve issues or problems presented by administrators," (see Finding of Fact 6) Petitioner's most relevant experience was in the late 1970's.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 13th day of September, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2007.
The Issue Petitioner's charge of discrimination alleges that the Orange County School Board discriminated against her on account of her age and race when the school board dismissed her in July 1994. Although the school board told her that she was dismissed because she did not have a college degree, allegedly another (white) employee without a degree was not dismissed. Petitioner alleges that, in violation of policy, the school board did not assist her to find another position and that since her dismissal younger employees were hired in positions in which she could have worked. The issue in this case is whether Petitioner was discriminated against, as alleged, and if so, what relief is appropriate.
Findings Of Fact Petitioner Ada J. Sims is an African-American female born October 28, 1934. She resides in Orlando, Orange County, Florida. During the 1993/94 school year, Ms. Sims was employed as an occupational specialist by the Orange County School Board (OCSB). She was assigned to Cypress Creek High School. Ms. Sims worked for the OCSB for 26 years; the first 4 or 5 were in clerical positions, and the last 22 years were as an occupational specialist at various schools. Ms. Sims does not have a college degree. Sometime during the 1993/94 school year, Ms. Sims was offered and accepted an early retirement opportunity. She expressed her intent to retire effective December 1994. The last day of school was the end of May 1994. At that time Ms. Sims understood that she still had a job at Cypress Creek High School for the beginning of the 1994/95 school year. Sometime during the early summer in 1994, the superintendent of schools and the OCSB realized the need to reduce instructional positions in order to keep expenditures within an available budget. The certification area, "occupational specialist," was identified for the reduction in force. On or about July 19, 1994, Cypress Creek assistant principal Cathy Thompson spoke to Ms. Sims by telephone to inform her that she was no longer employed and that she should call the personnel department for further information. Ms. Sims was upset and called the personnel office. She also visited the office, wrote letters to the school board chairperson and superintendent, and contacted the Classroom Teacher Association. Ms. Sims felt that people were evasive and non-responsive. No one helped her find other employment. Sometime between August and December 1994, Ms. Sims began receiving her retirement benefits. Since then, she has been employed only part-time: briefly for a newspaper and now with Haitian Social Services. In her complaint of discrimination, Ms. Sims is claiming $15,000 in lost wages and $5,000 for "pain and suffering." Mary Bailey is employed by the OCSB Division of Human Resources. A former classroom teacher and principal, she has worked for the OCSB for 33 years. Ms. Bailey was the supervisor for the reduction in force which eliminated Ms. Sims' position. There were approximately 12-15 occupational specialist positions in the OCSB in May 1994. All but 2 or 3 were eliminated. In determining which positions were eliminated the incumbent's job history was reviewed to determine seniority. White and African-American employees were laid off. The only employees retained were those with college degrees who could obtain a teaching certificate and be placed in a regular instructional position. Ms. Sims, without a college degree, did not qualify for this placement. There was no consideration of age or race; the regular OCSB policy and collective bargaining agreement procedures were applied. No one offered Ms. Sims a clerical position or other non-instructional position; she was told she could apply for another position on her own. Elaine Manfriede, the white employee who Ms. Sims claims was retained, found a clerical position on her own. Ms. Manfriede's occupational specialist position was eliminated.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter its final order dismissing Ada J. Sims' charge of discrimination and Petition for Relief. DONE AND ENTERED this 12th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1998. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 Ronald Blocker Orange County School Board Post Office Box 271 Orlando, Florida 32802 Ada Sims 1601 Crooms Avenue Orlando, Florida 32805 Frank C. Kruppenbacker, Esquire Post Office Box 3471 Orlando, Florida 32801-3471 Dr. Donald Shaw, Orange County Superintendent of Schools Post Office Box 271 445 West Amelia Street Orlando, Florida 33802-0271
The Issue The issue in this case is whether Petitioner should be granted an exemption from disqualification from employment with a private contractor providing adult day training to developmentally disabled clients of Respondent.
Findings Of Fact From April 2016 to October 2016, Petitioner Bertha Delaney ("Delaney") was employed by Cypress Place, Inc. ("Cypress"), a private, nonprofit corporation that provides services to developmentally disabled clients, and operates under the regulatory jurisdiction, of Respondent Agency for Persons with Disabilities ("APD"). Delaney was hired by Cypress as a receptionist, and her responsibilities included answering the phones, handling clerical tasks such as maintaining attendance sheets and filing, and assisting other employees as needed. Cypress operates an adult day training program, which offers "adult day training services" to APD clients. Such services include "training services that take place in a nonresidential setting, separate from the home or facility in which the client resides, and are intended to support the participation of clients in daily, meaningful, and valued routines of the community. Such training may be provided in work-like settings that do not meet the definition of supported employment." § 393.063(1), Fla. Stat. There is no persuasive evidence showing that, during her employment with Cypress, Delaney ever had face-to-face contact with a client while performing adult day training services. She was not, therefore, a "direct service provider" as that term is defined in section 393.063(13), Florida Statutes. Delaney did, however, have incidental, in-person interactions with clients, the evidence establishes, occasionally assisting clients in need of immediate help. Thus, although Delaney did not provide training services to clients, she provided some services in the broader sense of "helpful acts." In early August of 2016, an incident involving a client occurred at Cypress's facility, which the Department of Children and Families ("DCF") investigated. In the course of the investigation, the DCF investigator interviewed Delaney and learned that, because the subject client had appeared to be limping on the day in question, Delaney had helped the client walk from the bus to the building. At the time, Delaney had not yet undergone level 2 background screening because Cypress had not instructed her to do so. Rather, in or around April 2016, when she was hired, Cypress had required Delaney to go to the police department for a local criminal background check, which she did. Delaney, in fact, did everything that Cypress asked her to do with regard to background screening. Soon after (and perhaps because of) the DCF investigation, Cypress directed Delaney to submit to a level 2 background review, which she did.1/ And so it happened that in late August 2016, a search of Delaney's criminal history was performed, and the results were forwarded to DCF, which administers the background screening process for APD. By letter dated October 3, 2016, DCF notified Delaney that it had discovered her criminal conviction on a charge of grand theft of the third degree, to which she had pleaded no contest on June 13, 2001. This crime is a "disqualifying offense" under the applicable screening standards, which means that Delaney is ineligible to work as a direct service provider without an exemption from such disqualification. DCF advised Delaney that she needed to quit her job at Cypress and obtain an exemption from disqualification if she wanted to resume working there. Delaney promptly resigned her position with Cypress. Delaney then sought an exemption from disqualification from employment, submitting her Request for Exemption to DCF in November 2016. By letter dated March 17, 2017, APD informed Delaney that it intended to deny her request based solely on the ground that Delaney had "not submitted clear and convincing evidence of [her] rehabilitation." In other words, APD determined as a matter of ultimate fact that Delaney was not rehabilitated, which meant (as a matter of law) that the head of the agency had no discretion to grant an exemption.2/ APD did not, as an alternative basis for its proposed agency action, articulate any rationale for denying the exemption notwithstanding a showing of rehabilitation, assuming arguendo that such had been made. Delaney initiated the instant proceeding, hoping to prove her rehabilitation. The undersigned has considered the evidence as it relates to the statutory criteria for assessing rehabilitation, and makes the following findings of fact as a predicate for the ultimate determination. The Circumstances Surrounding the Criminal Incident. In or around September of 2000, Delaney stole cash receipts from her employer, Blockbuster Video, totaling approximately $13,800.00. She was soon arrested and charged with grand theft of the third degree, a felony offense as defined in section 812.014, Florida Statutes. At the time of the offense, Delaney, then 25 years old, was experiencing financial difficulties raising two young daughters. Although married, Delaney managed the household mostly on her own, as her husband, an interstate truck driver, was often on the road. Exercising what she now acknowledges was poor judgment, Delaney stole her employer's funds to ease her personal financial burden. On June 13, 2001, appearing before the Circuit Court in and for the Eleventh Judicial Circuit of Florida, Delaney entered a plea of nolo contendere to the criminal charge, was convicted by plea (adjudication withheld), and was sentenced to two years' probation with orders to make restitution in the amount of $13,778.00 to Blockbuster. Delaney completed her term of probation and complied with all of the other conditions imposed by the court, including the payment of restitution. The Time Period That Has Elapsed since the Incident. The disqualifying offense was committed about 17 years ago. Delaney thus has had ample time to restore her reputation and usefulness to society as a law abiding citizen following her conviction, and to mature into an older, more responsible adult. The Nature of the Harm Caused to the Victim. Delaney did not cause personal injury to any person in the commission of her crime. She was ordered to make restitution to the victim, and did, although the details of this transaction are not available in the record. Therefore, the economic harm caused by Delaney's theft appears to have been minimal. The History of the Applicant since the Incident. Since her conviction, Delaney has completed a training program to become a patient care technician and obtained a license to practice in Florida as a certified nursing assistant. She has held positions in these fields and performed admirably. Delaney lives with her two adult daughters, son-in-law, grandson, and fiancé; her current family situation is stable, both emotionally and financially. Her civil rights have been restored. She has not reoffended or otherwise run afoul of the law. APD severely faults Delaney for a so-called nondisclosure in her response to a question on the exemption request form concerning previous employment. The form asks the applicant to "provide your employment history for the last three years." Delaney answered, in relevant part, by stating: "I have not been employed for the last three (3) years." She followed this statement by describing employment predating "the last three (3) years" and explaining that an ankle injury in May 2013 (which required multiple surgeries to repair), together with the attendant convalescence and rehabilitation, had kept her out of the workforce for a couple of years. APD argues that Delaney lied about her employment history——it is undisputed that she had, in fact, worked (for Cypress) during the three years preceding her request for an exemption——and that this alleged "lie" proves Delaney had known not only that she was required to undergo level 2 background screening before taking the job with Cypress, but also that such screening would reveal her disqualifying criminal conviction, and that, therefore, to avoid detection, she had worked without being screened, in knowing violation of law. Put aside for the moment the issue of fact regarding whether Delaney "lied" about her employment history. APD's argument (that this "lie" is proof of Delaney's knowing violation of the background screening law) is illogical. For even if (as a matter of fact3/) Delany were required to be screened, and even if (as a matter of law4/) the background screening statutes were personally violable by an applicant or employee, Delaney's allegedly fraudulent answer to the employment history question does not rationally lead to the conclusion that she knew either of these premises to be true. Moreover, as discussed in endnote 1, it is unacceptable for an agency to rely upon an applicant's alleged violation of a regulatory statute as grounds to deny an exemption request where such alleged violation has never been proved in an enforcement proceeding. This is because any person charged with committing a disciplinable offense must be served with an administrative complaint and afforded clear notice of the right to a hearing, at which, if timely requested, the agency must prove the alleged wrongdoing by clear and convincing evidence. APD wants to skip all that and just have the undersigned find here, for the first time, that Delaney clearly violated section 393.0655 by working at Cypress for at least six months without being screened. See Resp.'s PRO at 9. That's not happening. The only relevant finding in this regard, which the undersigned makes, is that Delaney has never been found to have violated section 393.0655 by working at Cypress for at least six months without being screened. As for the alleged "lie," APD's position that Delaney's response to the employment history question was knowingly and intentionally false (by omitting reference to Cypress) does not make sense, because DCF already knew (from investigating an unrelated matter) that Delaney had worked for Cypress, and Delaney knew that DCF was aware of this fact when she filled out the form. That cat was out of the bag. At hearing, Delaney testified credibly and convincingly that she had not intended to mislead DCF. It is clear that she interpreted the question as asking about her employment during the three years before the job from which she had been disqualified (as opposed to the three years before completing the exemption request form). She misunderstood the question, to be sure, but it was an honest mistake, and the undersigned can appreciate how a person in Delaney's shoes could conclude that the job from which one has recently been disqualified does not "count" towards her employment history for purposes of seeking an exemption from disqualification. Delaney's testimony in this regard is corroborated by the fact that she submitted to DCF, as part of her exemption request package, two letters of recommendation from employees of Cypress, written on Cypress letterhead, attesting to her good character. These letters, taken together, make it clear that Delaney had recently been an employee of Cypress. Obviously, if Delaney had intended, knowingly, to deceive DCF by concealing her employment with Cypress, she would not have provided these letters. APD argues that one of these letters, from Rashard Williams, which is dated October 27, 2016, does not specifically indicate that Delaney ever worked at Cypress——and thus does not bolster Delaney's testimony that she never intended to conceal the fact that she had. To reach this conclusion one must discount the writer's statement that "Ms. Delaney has proven herself to be reliable, trustworthy, and compassionate both as a person and as an employee." If the Williams letter were the only written recommendation from a Cypress employee, however, the undersigned would consider APD's interpretation to be, while certainly not the best or most reasonable, at least plausible in view of Mr. Williams's additional comments about how well Delaney took care of his grandmother in a capacity, apparently, other than as an employee of Cypress. But the companion to the Williams letter, a recommendation from Mark Chmiel dated October 24, 2016, leaves no room for doubt that Delaney was a recent employee of Cypress. A short, two-sentence excerpt suffices to support this finding: "Bertha is an invaluable addition to our agency [i.e., Cypress,] and she has fulfilled the potential of her position far better than anyone before her. Her moral character is beyond reproach and I have no qualms about trusting her with our clients."5/ The letters of recommendation that Delaney furnished DCF refute the notion that she knowingly omitted Cypress from her employment history with the intent to mislead DCF. They prove, instead, that Delaney took for granted DCF's knowledge of her work for Cypress, for she was certain DCF already knew about it. In turn, that foundational assumption (which, in fact, was true) prompted Delaney to provide a history of her employment during the several years leading up to the job with Cypress. The undersigned finds that Delaney is not guilty of knowingly withholding material information from DCF in response to the question about her previous employment. Finally, the undersigned observes that APD, in its preliminary decision-making, impermissibly allowed speculation and conjecture to take the place of facts. In forming its intent to deny Delaney's application, APD took into account the "possibility that Ms. Delaney was trying to protect Cypress Place from demonstrating that they were in violation of the screening laws" as well as the "possibility that Rashard Williams might have tried to hide the fact [sic6/] that there was a violation of the screening requirements by Cypress Place." Resp.'s PRO at 10 (emphasis added). On the basis of this rank speculation, APD conjectured that "Ms. Delaney was willing to collude with [Cypress employees] in order not to spotlight their violation of the licensing law." Resp.'s PRO at 18. APD proved none of this imaginative guesswork. Circumstances Showing Applicant Poses No Danger. Yvonne Ginsberg, the executive director of Cypress, testified in support of Delaney's application. Ms. Ginsberg stated that Delaney was an "excellent" employee and affirmed that she had "no qualms" about Delaney's returning to work at Cypress once an exemption has been secured. The undersigned credits Ms. Ginsberg's testimony as to Delaney's character. In addition, Delaney submitted the written character references of Messrs. Chmiel and Williams, which were discussed above. These documents credibly attest to Delaney's trustworthiness, integrity, and ethical behavior. The undersigned finds without hesitation that Delaney would likely not present a danger in the future if an exemption from disqualification were granted. Ultimate Factual Determination The undersigned has determined, based on clear and convincing evidence, including sufficient persuasive evidence of rehabilitation, that Delaney should not be disqualified from employment because she is, in fact, rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Bertha Delaney the exemption from disqualification for which she is, in fact, eligible. DONE AND ENTERED this 18th day of August, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 August, 2017.
The Issue The issue is whether Respondent is sleeping in class and failing to supervise his students, so as to violate the prohibitions against misconduct in office and incompetence, as provided by Florida Administrative Code Rule 6A-5.056.
Findings Of Fact Respondent has been employed by Petitioner as a classroom teacher for 12 years, all at Cypress Bay High School. During his teaching career, he has taught physical and earth science, except, on occasion, when he has been assigned to teach biology. He has earned exclusively satisfactory marks on each of his annual evaluations, including his most current evaluation. On the evening of April 8, Respondent and his wife were up all night with their special-needs daughter. The next morning, Respondent reported to work punctually and taught his first period course. Respondent was exhausted from lack of sleep the previous night. While seated in his chair between classes, he lifted his eyes toward the heavens, emitted a quiet sigh, and prayed silently for the strength to get through the day at work. His head tilted back and his eyes closed, Respondent was lost in prayer as the students filtered into the classroom.1/ Although in a deeply relaxed state, Respondent could hear the students taking their seats and preparing for class to start. Stirring slightly at the bell signifying the start of class, Respondent emerged from his prayerful reverie after no more than two minutes into second period; he was in this state for no more than four minutes immediately prior to the bell. On these facts, it is impossible to infer from the evidence that Respondent was sleeping at the start of class. He was disengaged, though, so, as he began instruction, he appropriately apologized for his inattention for what was no more than the first couple of minutes of class and explained that he and his wife had had a rough night with a sick child. At all material times, the white board at the front of the classroom was full of written material, and the students had bellwork to perform at the start of every class. There were no behavioral problems during the time that Respondent had failed to give the class his undivided attention, and his inattentiveness did not affect learning that day.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 13th day of January, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 13th day of January, 2014.
