The Issue The issues in this case are whether Petitioner has, pursuant to section 435.07, Florida Statutes, demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children or developmentally disabled persons; and, thus, whether the intended action to deny an exemption from disqualification from employment is an abuse of the agency’s discretion.
Findings Of Fact By letter dated December 15, 2016, Respondent issued its notice of proposed agency action by which it informed Petitioner that her request for exemption from disqualification was denied. A timely Petition for Formal Administrative Hearing involving disputed issues of material fact was filed on behalf of Petitioner. After filing the hearing request, Petitioner responded to the Initial Order, and the final hearing was scheduled on a date provided by Petitioner. Thereafter, Petitioner failed to comply with the Order of Pre-hearing Instructions and failed to appear at the final hearing. Based on Petitioner’s failure to appear and offer evidence, there is no evidentiary basis on which findings can be made regarding whether Petitioner proved her rehabilitation from the disqualifying offense such that Petitioner would not present a danger to children or developmentally disabled people served in programs regulated by Respondent.
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 denying Petitioner, Amy Vieland’s, request for an exemption from disqualification. DONE AND ENTERED this 16th day of March, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2017. COPIES FURNISHED: Amy Vieland Post Office Box 11256 Shadyhills, Florida 34610 Jeannette L. Estes, Esquire Agency for Persons with Disabilities Suite 422 200 North Kentucky Avenue Lakeland, Florida 33801 (eServed) Michele Lucas, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether the Respondent discriminated against Ruby D. Johnson on the basis of a handicap in violation of the Human Rights Act of 1977, as amended?
Findings Of Fact The Petitioner began employment with the Respondent at its Lake City, Florida, plant during 1977 or 1978. The Respondent manufactures metal parts for automobiles. The Petitioner was employed by the Respondent as a parts assembly worker. At the time the Petitioner began employment with the Respondent, she informed the Respondent that she did not have any handicap. On June 28, 1984, the Petitioner was accidently struck on the head with a broom by another employee while at work. She was struck with the straw end of the broom. The Petitioner did not return to her job for approximately two months after being struck on the head. The Petitioner was treated by George G. Feussner, M.D. When Dr. Feussner authorized the Petitioner's return to work, he recommended that she not be required to perform any work requiring standing or leaning, climbing or operation of dangerous equipment for approximately three to four weeks. In September, 1985, the Petitioner experienced dizziness and fell while at work. In a letter dated October 2, 1985, Dr. Feussner informed the Respondent of the following: Despite and [sic] extensive evaluation of this lady, I cannot find objective findings to go along with her symptoms. I believe that she should be able to return to work at her regular job, but I still think that it would be dangerous considering her emotional dedication to her symptoms she is likely to injure herself if she works around dangerous equipment or at heights. She should therefore find a job that does not involve these activities... The Petitioner, when she tried to return to work, was not allowed to work because she had filed a workmen's compensation claim as a result of her alleged condition. This claim was being disputed by the Respondent's workmen compensation insurance carrier. On October 31, 1985, the Respondent laid off several employees with seniority equal to or greater than the Petitioner's seniority. Employees were laid off because of a lack of work. The Petitioner would have been laid off also, but was not because of the disputed claim over workmen's compensation. In November, 1985, the Petitioner's workmen compensation claim was denied. At that time the Petitioner was informed that she was also being laid off. In October, 1986, the Respondent began recalling the employees it had laid off in November, 1985. The Petitioner was not recalled, however, because of the restrictions on the Petitioner's ability to work. The Petitioner filed a Petition for Relief from an Unlawful Employment Practice with the Commission in October, 1986. On November 13, 1987, the Commission issued a Notice of Determination: No Cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations enter a final order denying the Petitioner's Petition for Relief. DONE and ENTERED this 7th day of September, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1988. COPIES FURNISHED: Ruby D. Johnson 1802 North Georgia Street Lake City, Florida 32055 William B. Hatfield Supervisor of Human Relations ITT Thompson Industries - Metal Division Post Office Box 928 Valdosta, Georgia 31603-0928 Donald A. Griffin Executive Director Commission On Human Relations, Florida 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Commission On Human Relations, Florida 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1025 =================================================================
Conclusions By Administrative Complaint dated December 1, 2009, the Agency for Persons with Disabilities charged Respondent, Bonnie’s Group Home, with three counts of violating Chapter 393, Florida Statutes, and Rule 65G-2.012(23)(c), Florida Administrative Code. The matter was referred to the Division of Administrative Hearings for a hearing. Before the hearing could be held, the parties advised the Administrative Law Judge that a Settlement Agreement had been reached and asked him to dismiss the cause with prejudice. On May 13, 2010, the Administrative Law Judge entered an Order Closing File and relinquished jurisdiction to the Agency for entry of a final order. Based on the foregoing and being otherwise fully advised in the premises, it is hereby ORDERED that the Settlement Agreement and Release entered into by the parties, a copy of which is attached hereto, is hereby ADOPTED AND APPROVED, The parties shall comply with and be governed by the terms and conditions of the Settlement Agreement and Release. Failure to comply with the Settlement Agreement and Release may result in further judicial proceedings. Fines provided for in the Settlement Agreement shall be paid to the Agency within ninety (90) days of the date of this Final Order and shall be mailed to: Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, FL. 32399-0950 APD-11-4670-FO | 1 Filed June 23, 2011 2:26 PM Division of Administrative Hearings DONE AND ORDERED, this 272 day of , 2011, in Tallahassee, Leon County, Florida. Mac bl Fu cer Agency for Persons wit Oi abilities Information about some sources of possible legal assistance may be found at: http//apd.myflorida.com/customers/legal/resource-listing.htm Copies furnished to: Steven Messer, Esq. Claudia Llado, Clerk Messer & Messer, Law Offices Division of Administrative Hearings 1555 St. Lucie West Boulevard, Northwest Ste. 202 Port St. Lucie, Florida 34986 Laurel Hopper, Esq. APD Area 15, Area Administrator Department of Children and Family Services CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of this Final Order was provided to the above- wi individuals at the listed addresses, by U.S. Mail or electronic mail, this X3 day of , 2011. CA _ - { fy f Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 APD-11-4670-FO | 2
The Issue Whether Petitioner, Robert F. Cameron, was subjected to an unlawful employment practice by Respondent, Osceola County, based on his disability, race, or national origin in violation of the Florida Civil Rights Act. 1 All statutory references are to Florida Statutes (2020), unless otherwise noted.
Findings Of Fact Petitioner brings this action alleging that the County discriminated against him based on his disability, race (white), and national origin (Canadian). Specifically, Petitioner asserts that the County failed to provide him a reasonable accommodation to allow him to participate in the application and selection process for a County job. The County is a political subdivision of the State of Florida and under the governance of the Osceola County Board of County Commissioners. At the final hearing, Petitioner testified that he is a disabled individual with at least seven disabilities. Pertinent to this matter, Petitioner stated that he is partially deaf in one ear which limits his ability to hear.4 In addition, Petitioner relayed that his disability(ies) affect his normal life in that he has frequent medical appointments and requires an increased number of restroom breaks. On October 15, 2019, Petitioner, who is from Canada, applied for the position of Budget Analyst II (the "Analyst Position") with the County. The Analyst Position falls within the County's Office of Management and Budget Department ("OMB"). The OMB is responsible for preparing the County's 2 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). 3 Petitioner filed a revised version of his post-hearing submittal on October 9, 2020, which the undersigned considered as Petitioner's Proposed Recommended Order in writing this Recommended Order. 4 At the final hearing, Petitioner initially strenuously objected to identifying his specific disability, asserting that his right to privacy protects him from having to disclose personal medical information, except as requested by a medical professional. annual budget, as well as analyzing and evaluating budget transfers for the County Commissioners. The County initiated the recruitment process for the Analyst Position by posting the opening on the website www.governmentjobs.com on October 14, 2019. Petitioner found the posting on the website and submitted his application through the same. At total of 15 individuals applied for the position, including Petitioner. The application window for the Analyst Position closed on October 21, 2019. Thereafter, the County's Human Resources Department screened the 15 applications to ensure the interested persons met the minimum qualifications for the job. Eleven applicants, including Petitioner, possessed the required qualifications. The Human Resources Department forwarded those 11 applications to the OMB for consideration. The OMB reviewed the 11 applications and selected three individuals to interview. These applicants included Petitioner (a white male), Lizette Rivera (a Hispanic female), and Sean Lower (a white male). Thereafter, the Human Resources Department set up a panel of five County employees to interview the candidates. Petitioner learned that he was being considered for the job on Thursday, October 24, 2019. That morning, the County called Petitioner at his home in Canada to inquire whether he was available for an interview the next day, Friday, October 25, 2019. Damaris Morales, an administrative assistant in the OMB, made the call. This case centers around what was said during that morning phone call. Petitioner and Ms. Morales left the conversation with vastly different impressions of what transpired. The Phone Call According to Petitioner Petitioner testified that Ms. Morales called him at a most inopportune time. His home phone rang at 8:44 a.m. At that moment, Petitioner was rushing out of his apartment to reach a 9:00 a.m. doctor's appointment. In fact, Petitioner had already started his car with an automatic starter, and it was running in his driveway. After he heard his phone ring, however, he turned back to answer the call. Petitioner answered the phone and greeted the caller. The caller identified herself as "Tamaris" from Osceola County.5 Ms. Morales then informed Petitioner that she was calling to set up an interview for the Analyst Position. Petitioner initially expressed to Ms. Morales that her call was "great" news. He then explained that he was running out the door to a medical appointment. Therefore, he asked if she would email him details about the interview, and he would respond to her as soon as he returned home. Ms. Morales informed Petitioner that the interviews would take place the next day (Friday). Petitioner was alarmed at the short notice. He explained to Ms. Morales that he was currently at home in New York state and could not travel to Florida for an in person interview the next day. Ms. Morales replied that she could arrange a telephone interview. Petitioner then asked Ms. Morales when the interview on Friday was scheduled. Ms. Morales relayed that she would email him the specific information when she obtained the time from her manager. Petitioner stated that he would "clear my schedule tomorrow for that interview." Petitioner then signed off saying, "Thank you. I do have to run. Sorry." Ms. Morales hung up the phone first. The conversation lasted 1 minute and 30 seconds. As Petitioner left for his doctor's appointment, he was under the impression that Ms. Morales would email him imminently regarding available times for the Friday telephone interview. The Phone Call According to Ms. Morales At the final hearing, Ms. Morales described a vastly different conversation with Petitioner. As further discussed below, Ms. Morales's 5 At the final hearing, Petitioner testified that he heard Damaris Morales state her name as "Tamaris." initial impressions of Petitioner from that phone call ultimately led the OMB to decide not to interview Petitioner for the Analyst Position. When Petitioner answered the phone, Ms. Morales testified that Petitioner's "aggressive" tone quite startled her. In a "loud" voice, Petitioner declared, "Yeah. What do you want? I don't have time to talk right now. I've got to be somewhere." Ms. Morales was not expecting such an abrupt and jarring reception. After a few seconds of stunned silence, Ms. Morales explained to Petitioner that she was calling about his application for the Analyst Position. Continuing in his harsh tone, Petitioner replied, "I have somewhere I need to be right now. Send me all the information via email. I am in Niagara Falls, New York." Petitioner then hung up the phone first without providing Ms. Morales his availability for a Friday interview. The whole conversation took less than 30 seconds. At the final hearing, in response to Ms. Morales's testimony, Petitioner suggested that she may have overheard an exchange between him and his son, Stewart, with whom he lives. Petitioner explained that, as he was leaving his apartment, his son called out from his bedroom asking whether the bathroom was free. Petitioner yelled back, "What do you want, Stewart? I am leaving." Petitioner explained that his phone may have malfunctioned and engaged Ms. Morales' call without him actually picking up the receiver. Petitioner strongly denied that he directed the comment "what do you want?" at Ms. Morales. Petitioner also theorized that if he spoke in a loud tone with Ms. Morales, it may have been due to his disability. As indicated above, Petitioner testified that he is deaf in one ear. Petitioner explained that Ms. Morales was talking very fast during their phone call. In responding to her questions, Petitioner was not trying to be abrupt or argumentative. However, he was in a rush to reach his appointment and was frustrated at the delay. Continuing with Petitioner's story, after the phone call, as Thursday morning progressed into Thursday afternoon, Petitioner did not receive an email back from Ms. Morales. Therefore, around 2:15 p.m., Petitioner called the County to speak with her. He was forwarded to her office phone, where he left a voicemail. In his message, Petitioner expressed that he was available for an interview any time the next day (Friday). He also left his Skype contact information. Time continued to pass on Thursday. With no response over the next two hours, at 4:14 p.m., Petitioner again called for Ms. Morales. This time, he was able to reach her. Petitioner inquired about his interview time for Friday. Ms. Morales momentarily demurred, telling Petitioner that she had to check with her manager. After several minutes, Ms. Morales came back on the line. She then told Petitioner that the Friday interviews were "full up." When Petitioner asked about an interview on another day, Petitioner claims that Ms. Morales promptly "slammed the phone down in my ear." Ms. Morales, on the other hand, testified that after she informed Petitioner that no interview times were available on Friday, Petitioner got angry and threatened her with a "legal matter." Petitioner then hung up on her. Petitioner was not content to let the matter drop. Therefore, on Friday morning at 9:47 a.m., he emailed the County Manager, Don Fisher, to complain about the County's Human Resources Department and the OMB. In his email, Petitioner summarized the events from the previous day. Petitioner focused on the fact that Ms. Morales told him that she would provide him an interview time. Then, when he contacted her Thursday afternoon, Ms. Morales informed him that the interviews were "full up," and he would not be offered an opportunity to interview for the Analyst Position. Petitioner sent Mr. Fisher follow-up emails at 10:01 a.m. and 10:03 a.m. In the first follow-up email, Petitioner stated: I am disabled and covered under the ADA Act. I make this request for accommodation under the ADA Act. At 10:10 a.m., Petitioner sent an email to another County employee, Maria Colon, the Director of the Human Resources Department and the County's Americans with Disability Act ("ADA") coordinator. In this email, Petitioner stated: You are the designated ADA Act Coordinator, but you are discriminating against me and denying my ADA rights to accommodation under the ACT and Title VII. I formally ask for this interview to be rescheduled and Oscola [sic] County to stop this discrimination. Attached to this email, Petitioner included a copy of his Ontario Disability Support Program Certificate of Disability ("ODSP Certificate"). At the final hearing, Petitioner explained that the ODSP Certificate, which was determined in 2013, is proof of his disability. Petitioner's certificate states: Your file with the Disability Adjudication Unit has been adjudicated and you have been found to be a person with a disability as defined in the Ontario Disability Support Program Act. 1997. At the final hearing, Petitioner expounded on the reasons for his request, explaining that he sought an accommodation to enable him to conduct a telephonic interview because his disability prevented him from driving from Canada to Florida to interview in person. Furthermore, as a disabled person, he needed more time to prepare and participate in the recruitment process. The specific accommodation he desired was to be allowed to interview by telephone on Monday, October 28, 2019. Not hearing a response from Ms. Colon by Friday afternoon, at 3:03 p.m., Petitioner dispatched another email to her. He again attached his ODSP Certificate. In this email, Petitioner wrote that "your staff member Tamaris" refused to schedule an interview and then "hung up the phone on me." Petitioner also repeated that he was "requesting reasonable accommodation for the Budget Analyst II position." Ms. Colon called Petitioner shortly after his second email. During this call, Petitioner informed Ms. Colon that he was disabled, and he needed a telephone interview for the County job opening. Petitioner added that he was located out of state, and he could not travel to Florida in time for an in-person interview. Petitioner further declared that the County was discriminating against him because of his disability and his national origin. Ms. Colon advised Petitioner that she would look into his concerns and get back to him. Petitioner claims that Ms. Colon ended this conversation by slamming the phone in his ear. During this call, despite Ms. Colon's request, Petitioner refused to identify his specific disability. At the final hearing, Petitioner asserted that the law protects those with disabilities from having to disclose their actual medical conditions. He said that, to safeguard their privacy, the disabled do not have to reveal their disability, except to the limited extent necessary to relate the disability to the requested accommodation. At 6:01 p.m. on Friday evening, Ms. Colon emailed Petitioner stating, "Per our phone conversation, I will look into your concerns and get back with you on Monday." By late Monday morning, October 28, 2019, however, Petitioner had not heard from Ms. Colon. Therefore, he sent her two emails. At 11:43 a.m., Petitioner wrote, "When is my interview? I am not available tomorrow." With no response to this first email, at 3:48 p.m., Petitioner wrote, "As per your reply above, you indicated my accommodation request under the ADA and interview time would be dealt with today. It is 4 pm EST. Please respond." Petitioner then signed off, "I am available for an interview 10am to 11 am tomorrow and then on Wednesday, Thursday or Friday." Petitioner received a response from Ms. Colon at 6:10 p.m., Monday evening. In her email, Ms. Colon wrote: I had the opportunity to look into your concerns. To be honest, customer service is very important in the Budget Analyst II role, and we're assessing those skills in every contact with candidates. The OMB Department had concerns about the way you handled the call and treated the employee that contacted you on October 24th for the purpose of scheduling an interview. Therefore, the Department has moved forward with other candidates. Petitioner was most displeased at Ms. Colon's email, and at 6:54 p.m., he responded: I did nothing except indicate I was available for an interview. Regardless none of this over-rides the ADA and my rights to employment and accommodation. I will be discussing your actions, the "OMB" in denying my constitutional and ADA rights, my Title VII rights with [a County attorney] tomorrow. If they fail to resolve this, then I will be suing you personally, Tamaris, the OMB and the County on a substantial indemnity basis for well in excess of $500g. Petitioner ended the email with "See you soon in court." Six minutes later, at 7:01 p.m., Petitioner sent another email to Ms. Colon. In this message, Petitioner stated: I must commend you for trying to deflect the egregious violation of my rights through trying to claim my rights to an interview are somehow superceded [sic] by this department withdrawing an interview based on race, geography, nationality and disability … in a call in which this Tamaris said and I quote – "we are full up" … . I asked her to leave my interview time through an email. If that qualifies as "poor customer service" then you have a very BIG legal problem using that as a diversion for blantant [sic] discrimination based on race, color, nationality, and disability. Petitioner ended this email with, "I will be happy to take you to Federal Court not the Courthouse right across the street. See you soon in court." Petitioner wrote Ms. Colon once more at 7:03 p.m. In this email, Petitioner accused Ms. Colon of "a blatant discrimination of interest in applying the ACT. Your superiors told you to deny me my rights under the ADA and you did so." Petitioner then declared that he was going to "sue you personally. … Trust me on that." After Monday, October 28, 2019, Petitioner never heard back from Ms. Morales or Ms. Colon regarding his application for the Analyst Position. Consequently, Petitioner claims that the County, by refusing to respond to his request for a telephone interview, denied him his rights under the FCRA and the ADA. At the final hearing, Petitioner vehemently denied that he was rude to Ms. Morales or during his call with Ms. Colon. Petitioner professed that he was perfectly polite to Ms. Morales. In addition, he asserted that Ms. Morales's testimony that he hung up the phone on her is totally false. Petitioner also contended that he did not threaten Ms. Colon with legal action as a means of intimidation. He was just exercising his rights as a disabled person. Petitioner further charged that the County's excuse for removing him from consideration was based on a misconstrued comment overheard during a brief phone call. Petitioner insists that his single utterance, "What do you want (Stewart)," cannot and should not justify the County's discriminatory action. The County ultimately hired Lizette Rivera for the Analyst Position. Petitioner alleges that the decision to hire Ms. Rivera is evidence of the County's female employees working together to eliminate white, male candidates. Petitioner maintains that Ms. Morales, a Hispanic female, favored another Hispanic (nondisabled) female (Ms. Rivera) for the Analyst Position. Consequently, Petitioner claims that Ms. Morales rigged the process and discriminated against Petitioner. At the final hearing, the County did not dispute that, while the OMB initially considered Petitioner for the Analyst Position, it quickly decided not to interview him for the job. The County also confirmed that the OMB did interview, and ultimately hire, Ms. Rivera to fill the Analyst Position. Regarding the County's decision not to interview Petitioner, after the initial phone call, Ms. Morales testified that she was quite startled by Petitioner's rude and unprofessional conduct. She immediately reported the conversation to her supervisor, Sharon Chauharjasingh, who is the Director of the OMB. Ms. Morales expressed to Ms. Chauharjasingh how shocked she was by Petitioner's behavior. Ms. Morales further relayed that because Petitioner was "in a rush," he did not provide her his availability for a telephone interview. Consequently, she had no information which would allow her to schedule him for an interview on Friday. Ms. Morales's testimony describing the telephone interaction with Petitioner was credible and is credited. Petitioner admitted to parts of Ms. Morales's versions, including that fact that he was in a rush and that he yelled, "what do you want?" Other than the two phone calls with Petitioner on Thursday, October 24, 2019, Ms. Morales was not involved in the OMB's decision not to interview Petitioner or to hire Ms. Rivera. (Those decisions belonged to Ms. Chauharjasingh.) Ms. Morales did not participate on the interview panel for either Ms. Rivera or Mr. Lower. Ms. Morales further testified that at no time during her phone calls with Petitioner did he inform her that he had a disability, or that he needed an accommodation to participate in the interview process. Ms. Chauharjasingh also testified at the final hearing. Ms. Chauharjasingh initially explained that the OMB is tasked with preparing the County's annual budget of approximately $1 billion. The person who fills the Analyst Position will work in the OMB. The duties of the Analyst Position include reviewing the budgets of the different County departments, as well as assisting those departments with budget questions and preparation related tasks. The Analyst Position will also review budgetary impacts and projections, and be prepared to personally discuss these issues with County representatives. In addition, the Analyst Position will interact daily with other staff members and occasionally contact outside companies and the public. Regarding the hiring of Ms. Rivera, Ms. Chauharjasingh disclosed that, because she oversees the OMB, she was responsible for selecting the person to fill the Analyst Position. For this opening, Ms. Chauharjasingh was the individual who narrowed down the applicants to the shortlist of three individuals including Petitioner, Ms. Rivera, and Mr. Lower. In selecting these candidates, Ms. Chauharjasingh looked at each applicant's past experience as a budget analyst, as well as their aptitude to efficiently assume the job duties. Based on their resumes, Ms. Chauharjasingh believed that each finalist was qualified for the Analyst Position. After selecting the three candidates, Ms. Chauharjasingh asked her assistant, Ms. Morales, to call each applicant and set up an interview. Ms. Chauharjasingh asked Ms. Morales to schedule the interviews for either Friday, October 25, 2019, or Monday, October 28, 2019. At the final hearing, Ms. Chauharjasingh represented that the County routinely interviews job applicants by telephone. Ms. Chauharjasingh further testified that the decision not to continue the interview process with Petitioner was hers. Ms. Chauharjasingh recounted that on Thursday morning, October 24, 2019, Ms. Morales came into her office looking "shaken up." Ms. Morales reported that she had just spoken to Petitioner, and he yelled at her and was rude and unprofessional. Ms. Chauharjasingh had never heard of a job candidate reacting the way Ms. Morales described. Ms. Morales has never complained to her about any other applicant. Based on Ms. Morales's interaction with Petitioner, Ms. Chauharjasingh immediately decided to remove Petitioner from consideration for the Analyst Position. She therefore directed Ms. Morales to "move on" from Petitioner and not to communicate with him any further. Instead, Ms. Morales was to only schedule interviews with the other two candidates (Ms. Rivera and Mr. Lower). The County's panel of five interviewers, which included Ms. Chauharjasingh, conducted an in-person interview of Ms. Rivera on Friday, October 25, 2019, at 11:30 a.m. Mr. Lower was interviewed, in person, on Monday morning, October 28, 2019, at 9:30 a.m. Following the interviews, the panel ranked the candidates, and then sent the list to Ms. Chauharjasingh. Ms. Chauharjasingh extended the offer of employment to Ms. Rivera, who was the top-ranked candidate. Ms. Chauharjasingh concluded her testimony by asserting that Petitioner's disability played no role in her decision not to interview him. Ms. Chauharjasingh explained that, at the time she decided to terminate the interview process with him, neither she nor Ms. Morales had any knowledge or information regarding Petitioner's disability. Instead, the sole basis for removing Petitioner from the shortlist was Ms. Morales' interaction with him during her initial phone call. Ms. Chauharjasingh testified that, based on the specific responsibilities of the Analyst Position, personal traits such as good communication skills, decorum, and telephone etiquette are very important. For example, the Detailed Job Posting for the Analyst Position includes a Physical Demand Requirement of "Expressing or exchanging ideas by spoken word or perceiving sound by ear." Consequently, upon hearing Ms. Morales's description of Petitioner's attitude and behavior during the telephone call, Ms. Chauharjasingh decided that the County did not need to consider Petitioner's application any further. In her testimony, Ms. Colon expressed that she had no part in the OMB's decision not to interview Petitioner. She became involved in this matter only after she received Petitioner's email, addressed to her as the County's ADA coordinator, on Friday morning, October 25, 2019. Ms. Colon stated that after she read Petitioner's email, she did not immediately respond because she first wanted to determine what exactly had transpired between Petitioner and Ms. Morales the previous day. Ms. Colon spoke with both Ms. Morales and Ms. Chauharjasingh on Friday. From these conversations, Ms. Colon heard that Petitioner was "rude" during Ms. Morales's first telephone call. Further, Petitioner was so "abrupt" that Ms. Morales was not able to offer him an interview time. Ms. Morales also informed Ms. Colon that Petitioner did not mention a disability or request an accommodation during either of their calls. Regarding her own phone call with Petitioner on Friday afternoon, Ms. Colon described an experience very similar to Ms. Morales's. Ms. Colon testified that the conversation was "not pleasant." As with Ms. Morales, Ms. Colon recounted that Petitioner was "agitated," loud," and "extremely unprofessional." During the exchange, Petitioner also threatened to sue her and the County. Regarding her email to Petitioner on Monday evening, October 28, 2019, in which she wrote that, "The OMB Department had concerns about the way you handled the call and treated the employee that contacted you on October 24th," Ms. Colon stated that the decision not to schedule Petitioner for an interview was made on October 24, 2019. Specifically, after talking with Ms. Morales and Ms. Chauharjasingh, Ms. Colon learned that Ms. Chauharjasingh had decided not to interview Petitioner immediately after Ms. Morales reported to her regarding Petitioner's rude and unprofessional interaction with her during their first phone call. As a final witness, Ms. Fatima Lozano testified regarding her participation on the interview panel for the Analyst Position. Ms. Lozano described herself as a Human Resources "generalist" with the County. Ms. Lozano has taken part in a number of interviews of applicants for County employment. She relayed that the County routinely conducts telephonic interviews. Ms. Lozano repeated that, when hiring employees, the department responsible for the position sets up the interviews and selects the winner. For the Analyst Position, the OMB selected the applicants who would interview for the job. Regarding scheduling the interviews for the Analyst Position, Ms. Lozano testified that, on October 21, 2019, she received a calendar invite requesting her availability. The interviews then took place on Friday, October 25, 2019, at 11:30 a.m. and Monday, October 28, 2019, at 9:30 a.m. While the above findings chronical the key aspects of Petitioner's discrimination claim, Petitioner also raised several other complaints against the County. Petitioner was exceedingly frustrated by the County's failure to schedule his interview through the www.governmentjobs.com website. At the final hearing, Petitioner elicited testimony from several County employees that, although the County pays a hefty annual fee to recruit employees through governmentjobs.com, the County only uses the website to solicit applications. Petitioner was "shocked" to learn that the County did not take advantage of the website's functions to schedule interviews with candidates. Petitioner was also "stunned" at the County's attempt to schedule his interview with less than one day's notice. Petitioner found the practice unprofessional and unacceptable. Petitioner represented that the standard process used by governmentjobs.com is to email a notification to the job applicant at least four to seven days prior to the agreed interview time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the County discriminated against Petitioner based on his disability (handicap), race, or national origin. Instead, the credible evidence establishes that the decision not to interview Petitioner was made without knowledge of his disability prior to his request for an accommodation, and without regard to his race or national origin. The decision to not interview Petitioner was based solely on his own behavior, considered rude and unprofessional, effectively disqualifying him from the job. Accordingly, Petitioner failed to meet his burden of proving that the County committed an unlawful employment practice against him in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Robert F. Cameron, did not prove that Respondent, Osceola County, committed an unlawful employment practice against him, and dismissing his Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Robert Finley Cameron 1 Churchill Street, Apartment 10 St. Catharines, Ontario, Canada L25 2-P3 C (eServed) Frank M. Townsend, Esquire Osceola County Attorney's Office 1 Courthouse Square, Suite 4700 Kissimmee, Florida 34741 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact Respondent, Edward Willison Carroll, III, is currently eligible for licensure and is licensed in this state as a Credit Life, including Credit Disability Insurance Agent; General Lines - Property, Casualty, Surety and Miscellaneous Lines Agent; General Lines - Motor Vehicle Physical Damage and Mechanical Breakdown Agent; Ordinary Life, including Health Insurance Agent; Health Insurance Agent; and Automobile and Inspection and Warranty Association Salesman. On March 10, 1980, respondent filed a verified application with petitioner for examination as a General Lines Agent (Property, Casualty, and Miscellaneous Lines) . Question number 13 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. On May 28, 1982, respondent filed a verified application with petitioner for examination as an Ordinary Life including Disability Agent. Question number 15 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. Respondent's answers to question 13 on the March 10, 1980, application and question 15 on the March 28, 1982, application were false. On December 11, 1970, the State Attorney for the Second Judicial Circuit of the State of Florida, filed an information with the circuit court which charged that respondent did on December 3, 1970, in Leon County, Florida ... knowingly commit a lewd or lascivious act in the presence of Alice Leigh Divita, a female child under the age of fourteen years, to-wit: of the age of six years, without intent to commit rape upon said child, contrary to Section 800.04, F.S. On March 9, 1971, respondent entered a plea of guilty to the crime of fondling, as charged in the information. The court withheld adjudication of guilty and imposition of sentence, and placed respondent on probation for a period of three years. At hearing, respondent conceded that he had been charged with the aforementioned felony. He averred, however, that his failure to disclose such charge on his applications was not intended to be deceitful but was premised on his belief that he could properly answer no to such inquiries because adjudication of guilty had been withheld. While respondent may reasonably have believed that he could respond in the negative to an inquiry concerning felony convictions, his contention that he held an honest belief that he could also respond in the negative to inquiries about whether the had ever been charged with a felony is not persuasive. But for the foregoing charge, respondent has not been charged or convicted of any other felonies. Nor, has the respondent been shown to have engaged in any improprieties as an insurance agent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending respondent's licensure and eligibility for licensure for three months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2 & 3. Addressed in paragraph 2. 4 & 5. Addressed in paragraph 3. 6. Addressed in paragraph 5. 7 & 8 Addressed in paragraph 6. 9 & 10. Addressed in paragraphs 7 and 8. 11. Addressed in paragraph 9. 12-14. Rejected as not relevant. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services 413-B Larson Building Tallahassee, Florida 32399-0300 Thomas L. Neilson, Esquire 105 West Fifth Avenue Tallahassee, Florida 32303 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue is whether the Division of Administrative Hearings has subject matter jurisdiction over the issues raised in Petitioner's Charge of Discrimination.
Findings Of Fact Petitioner's discrimination statement dated February 18, 1997, states as follows: I believe that I was discriminated against when the sheriff's department used illegally obtained information from my employer and a relative of mine working in the department, to give negative references and information to the general public. Petitioner has never applied for employment or been employed by the Suwannee County Sheriff or his office. Petitioner's claim apparently arises out of a family dispute between the Petitioner, her mother, Lotis Musgrove, and her sister, Eyvonne M. Roberson, who works for the Suwannee County Sheriff's Department. The family dispute is not related to the Petitioner's employment with the Suwannee County Sheriff.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss Petitioner's Petition for Relief. DONE AND ENTERED this 20th day of May, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1998. COPIES FURNISHED: Linda G. Bond, Esquire Powers, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317-2186 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Charmin Christensen, Director Suwannee County Personnel 200 South Ohio Avenue Live Oak, Florida 32060 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent, as a covered employer under the Florida Civil Rights Act, Sections 760.01 through , Florida Statutes (2008),1 committed an unlawful employment practice against Petitioner.
Findings Of Fact The Parties Respondent is a constitutional officer and employer subject to the jurisdiction of the Florida Civil Rights Act. On or about July 2, 2001, Respondent, upon the recommendation of Tom Kay, then director of Respondent's Information Technology ("IT") Department, hired Petitioner as a desktop support analyst in the IT Department. The desktop support analyst position, like all positions with Respondent, is an at-will position. Petitioner was 64 years of age when he was hired by Respondent. During his initial years of employment with Respondent, until about late 2005, Petitioner reported to and was supervised by Mr. Kay. After Mr. Kay resigned in November or December 2005, Petitioner reported to Greg Brock, the IT director. Throughout his employment as an IT desktop support analyst, Petitioner was knowledgeable regarding computer applications and his employer's policies regarding use of computers. The essential functions of the desktop analyst position included adhering to and following the principles of the Clerk's Office, and complying with and supporting the mission of the Clerk's Office and the goals and objectives of the IT Department. The Policies and Guidelines Respondent established detailed Information Security Policy Guidelines regarding the use of network resources. Section 5.6 of the Security Guidelines prohibits employees from using network resources for "obscene or suggestive messages or offensive graphical images." Additionally, Section 5.7 of the Guidelines prohibits employees from deliberately downloading or uploading certain materials, including materials of a "sexually explicit nature" or "material which adversely affects the employee's or user's ability to do his or her job or . . . the [Clerk's] office's ability to carry out its assigned mission." Respondent developed and approved a Personnel Handbook which governs, among other matters, employee use of various types of equipment. Section 1.16 addresses the "Care and Use of Equipment," including computers, Internet access and email, which are the property of the Clerk's Office. The policy prohibits employees from using those computers for personal purposes and, specifically, prohibits the use of such equipment in ways "that may be disruptive, offensive, or harmful to morale." Section 1.16 further provides that Respondent's objective with regard to this policy is "to maintain a workplace free from harassment and sensitive to the diversity of its employees." IT Team Building Exercises While IT director, Mr. Kay instituted sports-based office games for team-building. Mr. Kay believed that these activities would boost morale, promote camaraderie, and facilitate communication among staff in the office. Mr. Kay considered the team-building activities to be an effective tool in leading a group of IT people, who typically are introverted by nature, prone to going to their "corners," and not interacting very much. JeanMarie Walsh, then assistant to Mr. Kay, coordinated some of the team-building activities, including the fantasy football game. While serving in that capacity, Ms. Walsh prepared football pool ballots at lunchtime on Friday for Monday morning bragging rights and temporary use of a team hat. She also occasionally used the office computer for email reminders and did so at the direction of Mr. Kay, believing it was not inconsistent with the Clerk's Office policies. The sports "picks" were done primarily during off-duty times and involved only incidental (five to ten minutes a day) use of staff time or the Clerk's Office equipment. This incidental use of equipment in connection with authorized team-building activities did not constitute unauthorized personal use of Respondent's equipment. Mr. Kay opined that the team building activities and use of staff and equipment in connection with those activities were within his rights as IT director. The Chief Deputy Clerk, Janet Cantees ("Chief Deputy Cantees"), knew that the IT Department employees participated in the sports-based team-building exercises initiated and implemented by Mr. Kay. Furthermore, at no time were these team-building activities proscribed by the employer. Respondent was generally aware of the team-building exercises in the IT Department and cautioned Mr. Kay to make sure no money was involved in the activities. She also advised him that employee participation in the team-building exercises was to be on a purely voluntary basis. In accordance with Respondent's instructions, no money was exchanged in regard to these sports team-building activities, and no IT employee was required to participate in the sports activities. The team-building sports activities in the IT Department concluded prior to July 2007. The use of team-building exercises is not unique to the IT Department, but is used with other employees in the Clerk's Office. For example, Chief Deputy Cantees had developed and used other team-building exercises for managers and staff who worked in different locations in the county. Some IT employees also participated in a "Clerk Shirt Everyday" activity, which was to encourage employees to wear their official "clerk shirts." The person who wore a "clerk shirt" that was a color not worn by anyone else that day was the winner of the activity. The winner was given one or two dollars by each participating employee to buy donuts the next day for the work group. Policy Violation Related to Use of Computers In or about early July 2007, Ms. Walsh, an employee in the IT Department telephoned Petitioner from her office. After he did not answer his phone, Ms. Walsh went to Petitioner's work area where she observed him on the computer in the Miami Hurricane football chat rooms. Ms. Walsh then reported to IT Director Brock that Petitioner was not answering his phone and told him what she had observed. On or about July 5, 2007, after Ms. Walsh reported seeing Petitioner in the Miami Hurricane chat rooms, Mr. Brock had Petitioner come to his office. Mr. Brock then told Petitioner that he should not be visiting what Brock believed to be the Miami Hurricanes football web chat rooms on Respondent's computer. During this meeting, Petitioner denied that he had visited such chat room as had been reported. On or about July 25, 2007, while in the area in which Petitioner worked, Ms. Walsh observed Petitioner at his computer. At that time, Ms. Walsh saw an inappropriate image on Petitioner's 24-inch computer screen. The inappropriate image was in clear view of Ms. Walsh and any other employee present in the adjacent working area. When Ms. Walsh saw the inappropriate image, she was concerned that a female vendor working nearby might be exposed to the explicit image. Ms. Walsh was embarrassed and shocked by the image she saw on Petitioner's computer screen and, thus, said nothing to Petitioner. Instead, Ms. Walsh immediately reported what she had witnessed to Mr. Brock. When Ms. Walsh initially told Mr. Brock about the image she had witnessed on Petitioner's computer screen, she described it as "offensive" to "a woman." During their brief conversation about the image on Petitioner's screen, Ms. Walsh was uncomfortable and embarrassed talking about the image. As a result, neither Mr. Brock, nor Ms. Walsh discussed the image in any detail other than confirming it was of a sexual nature. On July 25, 2007, after Ms. Walsh complained about the inappropriate image on Petitioner's computer screen, Mr. Brock conducted an inspection of Petitioner's computer. As a result of that inspection, Mr. Brock found on the hard drive two offensive photos, referenced as "Jugsy.jpg" and "cheappussy.jpg." The "Jugsy.jpg" photo found in Petitioner's computer depicts a young woman, mouth open, clad in a bra or bikini top, clutching her breasts, most of which were exposed, and pushing them together. The "cheappussy.jpg" photo found in Petitioner's computer depicts a man holding or dangling a hairless cat, which appears to be dead, in the air by its head. The offensive photos were found among other photos depicting Petitioner and his friends, and/or acquaintances of his, engaged in social or sports activities, including the University of Miami Hurricane events. The offensive photos found by Mr. Brock were located in a place on Petitioner's computer associated with his user name/login and were copied to the computer into Petitioner's profile or personal directory. Furthermore, based on Mr. Brock's inspection, there was no indication that the offensive pictures had been tampered with or modified by anyone else. At all times relevant hereto, there were ten or eleven employees in the IT Department, all of whom had administrative passwords that allowed them to access any of the Clerk's Office computers. The IT employees needed this access in order to perform their authorized job responsibilities. Because the IT employees had access to all computers, it is possible that any IT employee could have accessed Petitioner's computer. However, there is no evidence that this ever occurred. At all times relevant hereto, Mr. Brock had the experience and expertise to run a report of computer activity and to conduct a forensic analysis of Petitioner's computer to determine the history of the images. However, based on the findings of Mr. Brock's initial investigation of Petitioner's computer, he determined that such analysis or report was not necessary. On July 26, 2007, Mr. Brock showed Ms. Walsh the images he found saved in Petitioner's computer. At that time, Ms. Walsh identified the picture labeled "Jugsy.jpg" as the offensive image she had seen on Petitioner's computer. At this proceeding, Ms. Walsh testified that the image she saw on Petitioner's computer screen in July 2007 was a topless female in partially unzipped jean shorts. Undoubtedly, there is a difference in the image Ms. Walsh described in her testimony, which was two years after the incident, and the "Jugsy.jpg" photo she identified the day after she saw the image. This difference or discrepancy may be attributed to several factors including the following: (1) the lapse of time, two years, between Ms. Walsh's seeing the image and testifying at this proceeding; (2) the brief time that Ms. Walsh actually saw the image on Petitioner's screen; and/or (3) the brief time she looked at the "Jugsy.jpg" photo when it was shown to her by Mr. Brock. Notwithstanding the foregoing difference in Ms. Walsh's description of the image she saw on Petitioner's computer screen and the photo she identified as that image, Ms. Walsh's testimony that she saw an offensive image of a woman on Petitioner's computer screen is found to be credible. Significantly, Ms. Walsh's complaint led to an investigation, which found that there were offensive photos stored in Petitioner's computer (the one provided to him by the Clerk's Office). Decision to Terminate Petitioner's Employment In personnel matters regarding employment termination, the process begins with the unit manager or director discussing and reviewing the situation with Edith Peacher, manager of Human Resources ("HR"). After the matter is reviewed, the director or manager typically makes a recommendation in consultation with HR Manager Peacher. That recommendation is then conveyed to Chief Deputy Cantees, a key decision maker, who reviews the matter and then communicates her decision/recommendation to Respondent. Ultimately, Respondent has "veto authority" over the recommendation and/or decision of the chief deputy clerk. Consistent with Respondent's personnel practices, after Ms. Walsh identified the picture that she believed she saw on Petitioner's computer screen, Mr. Brock conferred with the HR manager. During the meeting with HR Manager Peacher, Mr. Brock advised her of Ms. Walsh's complaint, his investigation, and the photos he had retrieved from Petitioner's computer. Mr. Brock also told HR Manager Peacher that a few weeks before, he had spoken to Petitioner about using his computer to go to chat rooms. HR Manager Peacher, with input from Mr. Brock, drafted a Termination Notice dated July 26, 2007, for violations of the Clerk's Office's policies, procedures and professional conduct and standards. HR Manager Peacher then recommended to Chief Deputy Cantees that Petitioner's employment be involuntarily dismissed from the Clerk's employ. The July 26, 2007, Notice of Termination cited the prior disciplinary action; the July 5, 2007 verbal counseling; and references the two photos/images described in paragraphs 24 and 25 as deliberate and inappropriate use by an IT employee of the Clerk's Office computer equipment, justifying termination of employment. Section 4.02 of the Clerk's Personnel Handbook provides that "[e]mployment with the Clerk . . . is on at will basis," but states that "the Clerk may utilize progressive discipline in an effort to work with the employee." Under this provision, the option of using progressive discipline is discretionary, not mandatory. In the instant case, HR Manager Peacher believed that the display of offensive images on Petitioner's computer screen was an "egregious" situation and one which warranted immediate termination. On July 26, 2007, Mr. Brock and HR Manager Peacher met with Petitioner and reviewed the Notice of Termination and the pending recommendation for dismissal with Petitioner. When confronted with the allegation regarding the offensive images found in his computer, Petitioner stated "matter of factly" that someone "may" have placed the photos on his computer. However, he offered no reason for his implication that someone else "may" have tampered with his computer. Nonetheless, HR Manager Peacher told Petitioner that Respondent could investigate and find out if someone else had placed the images in his computer, but Petitioner did not request further investigation. At the July 26, 2007, meeting, Petitioner signed the Notice of Termination and indicated that he "read the Notice but did not agree with it in any way, shape or form." HR Manager Peacher conveyed to Chief Deputy Cantees the substance of the meeting with Petitioner and her belief that no errors of fact had occurred. After listening to HR Manager Peacher's presentation of the facts, Chief Deputy Cantees asked HR Manager Peacher and Mr. Brock several follow-up questions about the incident (i.e., the validity of the complaint, if and how Petitioner's computer had been checked, etc.). Chief Deputy Cantees was satisfied with the information HR Manager Peacher provided to her, as well as the responses to her questions that were provided by HR Manager Peacher and Mr. Brock. Both HR Manager Peacher and the Chief Deputy Cantees relied on Mr. Brock's experience and expertise in computer forensics in determining the origin of the offensive images found on Petitioner's computer. Based on her discussions with HR Manager Peacher and Mr. Brock and her review of the record, Chief Deputy Cantees concurred with the recommendation of termination and the Clerk gave final approval. Petitioner was 71 years old when he was terminated from his employment with Respondent. The person hired to replace Petitioner was an individual estimated to be in the mid-40 to mid-50 range. Prior to the incident involving Petitioner, neither Respondent, nor the HR manager had received reports of, or knew of incidents of, employees having inappropriate (sexual) images on their computers. Therefore, no employees in the Clerk's Office have ever been disciplined for that offense. Medical Condition of Petitioner In 2002, Petitioner was diagnosed with a melanoma that required office surgery and other pre-cancerous lesions that also required treatment. The surgery and all other treatments were performed in the doctor's office and required no hospitalization. Between 2002, when he was first diagnosed with a melanoma and through July 2007, Petitioner has continued to be treated for skin cancer. During this five-year period, Petitioner's condition and his treatments for that condition have not significantly affected or, otherwise, limited Petitioner's ability to work or to engage in most activities. During the five-year period since he was diagnosed with skin cancer, Petitioner had regular check-ups, some of which may have resulted in his doctor's performing certain in-office medical procedures. Other than those in-office procedures, Petitioner's treatment for his condition consists of applying various salves, creams, and/or lotions to his skin. Finally, as a result of his medical condition, Petitioner had been directed to stay out of the sun. Because Petitioner must now stay out of the sun, he is no longer able to participate in daytime activities that he previously enjoyed doing and/or had been able to do (i.e., going to the beach and to his grandson's soccer and softball games). During his employment with the Clerk's IT Department, Petitioner never requested leave under the Family Medical Leave Act. Moreover, there is no indication that his medical condition affected his attendance at work. In fact, between January and July 2007, Petitioner saw his physician only about six times. Petitioner never notified Respondent, Mr. Brock, or Chief Deputy Cantees that he had skin cancer. Furthermore, none of them knew or suspected that Petitioner had skin cancer or any other medical condition. Finally, Petitioner's co-workers were unaware of his medical condition. While employed in the IT Department, Petitioner had several conversations with HR Manager Peacher. Petitioner recalled that during one of those conversations, HR Manager Peacher referred him to a dermatologist or assisted him with a medical referral. At this proceeding, HR Manager Peacher did not recall giving Petitioner the name of a dermatologist, but acknowledged that she may have done so. HR Manager Peacher explained that she speaks to numerous employees throughout the workday about various personnel-related matters and provides them with such assistance when requested to do so. Despite having several discussions with Petitioner during his employment with the Clerk's Office, HR Manager Peacher was unaware of his medical condition. Alleged Disability Discrimination Respondent conducted general meetings with employees every other month. During those meetings, Respondent covers a variety of topics with employees, all of which are on a printed agenda and later sent to employees by e-mail. The Agenda for the June 22, 2007, employee meeting included a three-page overview of the employee compensation package offered to Respondent's employees that included the following introductory statement: "Part of offering a competitive benefits plan is being proactive in maintaining a healthy lifestyle. Each of us must take the responsibility to live healthy lives, and, in return, our insurance costs will be minimized." During that meeting, Respondent read that language verbatim. In reading the above-quoted language, Respondent's intent was to encourage employees to address "preventable issues," such as smoking, overeating, and not exercising. However, in the charging document, Petitioner alleges that the above-quoted language meant Respondent wanted to hire only "healthy employees." Petitioner's interpretation distorts and misconstrues the above-quoted comments made by Respondent. Further, there is no evidence to support Petitioner's allegation that Respondent wanted to hire only healthy employees. Also, those comments do not, in any way, relate or refer to employees with disabilities and cannot reasonably be construed to do so. Claim of Age Discrimination Petitioner received such inquiries periodically and complained about the practice from time to time. For example, in a June 8, 2007, email to HR Manager Peacher, Petitioner complained about a phone call from ACS Recovery Service ("ACS"), a third-party health benefits coordinator. Petitioner perceived the ACS inquiries regarding Medicare eligibility as age discrimination. Sarasota County Government Benefits Manager Steve Marcinko testified credibly that ACS provides coordination of benefits services for Aetna, Sarasota County Government's third-party administrator. To carry out its responsibility, ACS is authorized to contact the employees to determine whether alternate insurance coverage, including Medicare, may be available to cover a claim that is otherwise the responsibility of the Sarasota County Government. Among those contacted by ACS are group health plan participants who are "post-65 and Medicare-eligible." The purpose of these contacts is to verify whether the participants are "active" or "retired" employees. Such verification assists in determining whether the group health plan or Medicare has primary or secondary responsibility for the benefits of those individuals. The inquiries by ACS are not age-based, except as they relate to an individual's Medicare eligibility, and are not conducted at the direction of the Clerk. When conducting these inquiries, ACS does not copy the individual's employer or former employer about such inquiries.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, Michael L. Coyle's, Petition for Relief. DONE AND ENTERED this 24th day of February, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 24th day of February, 2010.
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue The issue in this case is whether Petitioner has, pursuant to section 435.07, Florida Statutes, demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children or developmentally disabled persons and, thus, whether the intended action to deny an exemption from disqualification from employment is an abuse of the agency’s discretion.
Findings Of Fact By letter dated October 13, 2016, Respondent issued its notice of proposed agency action by which it informed Petitioner that her request for exemption from disqualification was denied. A timely Petition for Formal Administrative Hearing involving disputed issues of material fact was filed on behalf of Petitioner. After filing the hearing request, Petitioner responded to the Initial Order, and the final hearing was scheduled on a date provided by Petitioner. Thereafter, Petitioner failed to comply with the Order of Pre-hearing Instructions and failed to appear at the final hearing. Based on Petitioner’s failure to appear and offer evidence, there is no evidentiary basis on which findings can be made regarding whether Petitioner proved her rehabilitation from the disqualifying offense such that Petitioner would not present a danger to children or developmentally disabled people served in programs regulated by Respondent.
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 denying Petitioner, Kyanna Raquel Dixon’s, request for an exemption from disqualification. DONE AND ENTERED this 27th day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 27th day of January, 2017. COPIES FURNISHED: Kyanna R. Dixon Post Office Box 454 Quincy, Florida 37353 Kyanna Dixon 1720 Bordeaux Boulevard Tallahassee, Florida 32303 Jeannette L. Estes, Esquire Agency for Persons with Disabilities Suite 422 200 North Kentucky Avenue Lakeland, Florida 33801 (eServed) Michele Lucas, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue is whether Respondent engaged in the practice of discrimination against Petitioner when terminating him from employment as a firefighter due to a medical condition.
Findings Of Fact Petitioner, Jonathan Race, was employed by Respondent, Orange County Fire Rescue Department, since January 1989, and worked in the Operations Division as a Lieutenant/EMS Supervisor. In this role, he managed, coordinated, and performed firefighting and emergency rescue services. In the mid-1990s, Petitioner was diagnosed with atrial fibrillation which ultimately resulted, in July 2001, in his undergoing an open heart surgical procedure known as the "MAZE" procedure. Following the open heart surgery, Petitioner had a pacemaker installed in August 2001. Petitioner's cardiologist from 1997 to January, 2005, was Arnold Einhorn, M.D. Barry Portnoy, M.D., is a physician under contract with Orange County to perform annual physical examinations for members of the Orange County Fire Rescue Department. While Dr. Einhorn served as Petitioner's cardiologist, he had periodic conversations with Dr. Portnoy concerning Petitioner's cardiac condition. On May 20, 2003, Dr. Einhorn wrote a letter to Dr. Portnoy in which he stated that Petitioner, "continues to be on medical therapy with beta blockers and Digoxin and his underlying heart rate is in the 30s and this making him dependent on the pacemaker approximately 80% of the time." Dr. Einhorn concluded at that time that Petitioner needed to continue with his medications and use of the pacemaker. Petitioner, concluded, Dr. Einhorn, "is dependent on the pacemaker." On January 16, 2004, Dr. Portnoy conducted an annual physical for Petitioner. On February 6, 2004, Dr. Portnoy stated in his evaluation of Petitioner: "Classification deferred pending additional information. . . . Employee may continue in his/her present duties for no more than 30 days while awaiting further evaluation." On June 4, 2004, Dr. Portnoy completed his evaluation of Petitioner, imposing a restriction of "No functioning as a member of a team or independently where sudden incapacitation could result in harm to himself, risk to others, or mission failure." Dr. Portnoy placed Petitioner on light duty, which resulted in his assignment to an office job at fire headquarters. Respondent's policy dictates that, when an employee is placed on light duty, a medical review is conducted. After being placed on restricted or light duty, a medical review of Petitioner was commenced in June 2004. Respondent's medical review committee requested that Petitioner obtain from his cardiologist, Dr. Einhorn, information concerning Petitioner's cardiac condition. On January 5, 2005, Dr. Einhorn, at Petitioner's request, sent a letter to Dr. Portnoy in which he stated, in part, "We have been trying to wean the patient off beta blockers and Digoxin to see if the patient is still pacemaker dependent. He is now not on any Digoxin and Toprol and interrogation of his pacemaker revealed 30% atrial paced with 16 runs of atrial fibrillation." Based upon the information received from Dr. Einhorn by Dr. Portnoy, Respondent sent Petitioner a letter dated February 17, 2005, which stated that Respondent had determined there was a preponderance of evidence that restrictions placed on Petitioner by Dr. Portnoy would continue indefinitely and that Petitioner would not be able to return to his position in the Operations Division as Lieutenant/EMS Supervisor. Respondent concluded that under Article 34.11 of the Collective Bargaining Agreement, Petitioner would be medically separated from his employment with the County, effective March 26, 2005, at 19:30 hours. While on light office duty, Petitioner was given additional time to pursue other jobs with Orange County. Petitioner did not find another job with Orange County. On March 10, 2005, after Petitioner had received the February 17 letter from Respondent, Amish Parikh, M.D., wrote a letter "To Whom It May Concern", in which he stated that Petitioner "is now pacing only 0.8% of the time and it is not considered pacemaker-dependent. I believe the pacemaker is not a limiting factor in his ability to perform his job and he should be permitted to return to full duty without restrictions." Nothing in this letter makes reference to any medications Petitioner would be required to take in the future. On April 15, 2005, after Petitioner had been terminated from his employment with Respondent, Petitioner was examined by another cardiologist, Sunil M. Kakkar, M.D., who concluded that Petitioner was not pacemaker dependent and could return to full duties with Respondent. Neither Dr. Parikh nor Dr. Kakkar testified at the hearing. Their written reports appear to be based upon one visit by Petitioner with each of them. On March 23, 2005, Dr. Portnoy reviewed the March 10 letter from Dr. Parikh. Dr. Portnoy did not change his determination that Petitioner was pacemaker dependent after his review of Dr. Parikh's letter. Dr. Portnoy did not lift the restrictions he had imposed on Petitioner. At the time of hearing, Petitioner continued to take medications, both aspirin and Toprol, for his cardiac condition. David Hart worked as a firefighter with Respondent from March 16, 1981, through his voluntary retirement, with the rank of Engineer, on February 10, 2005. Mr. Hart was diagnosed with atrial fibrillation in 1992 and was treated for the condition with medications for the ensuing six years. Mr. Hart had a pacemaker implanted in October of 1998, and had the pacemaker in place through his retirement. While still employed by Respondent, Mr. Hart's private cardiologist, Dr. Filart, provided Respondent and Dr. Portnoy with information concerning the pacemaker, and determined that Mr. Hart was not pacemaker dependent. Based upon Dr. Filart's determination that Mr. Hart was not pacemaker dependent, Mr. Hart was not removed from duty or placed on restricted duty due to his pacemaker. Mr. Hart agreed that the decision with respect to pacemaker dependency should be made by the patient's cardiologist. Petitioner claims that he was discriminated against by Respondent due to disparate treatment between himself and David Hart. He alleges he is not pacemaker dependent, is similar to Mr. Hart, and, therefore, should not have been medically separated from his employment with Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that the Respondent did not discriminate against Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jonathan A. Race 1081 Dean Street St. Cloud, Florida 34771 Gary M. Glassman, Esquire Orange County Attorney's Office Litigation Section 435 North Orange Avenue, 3rd Floor Orlando, Florida 32801 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
