Findings Of Fact Respondent, Studebaker's Restaurant (Respondent), owns a 50's theme bar in Clearwater which offers entertainment and dancing and serves alcoholic beverages and food. Studebaker's has a nationwide policy, also followed at the Clearwater establishment, of restricting admittance to persons aged 23 and older. In the same building housing the Clearwater Studebaker's, Respondent also owns and operates a theme bar called the Palm Beach Club which is under common management and which is operated like Studebaker's except that the theme and music is contemporary and anyone who has attained the legal drinking age is allowed admittance. Petitioner, Ronald M. McElrath, is the coordinator for the Community Relations Board established under Chapter 99 of the City of Clearwater Code. He is approximately 38 years of age. In May or June 1985, McElrath witnessed an employee of the Clearwater Studebaker's refusing admission to a female on the basis that she was not at least 23 years of age. Investigating further, McElrath verified through the manager of the Clearwater Studebaker's that Respondent did have a policy restricting admission to the Clearwater Studebaker's to persons at least 23 years of age. Based on McElrath's knowledge and information, McElrath and the Community Relations Board attempted to conciliate with Respondent the alleged conflict between Respondent's age policy at the Clearwater Studebaker's and Chapter 99 of the City of Clearwater Code. By November 13, 1985, McElrath and the Community Relations Board concluded that their attempts at conciliation would not be successful, and the Community Relations Board filed a charge of discrimination against Respondent. That charge of discrimination was referred to the Division of Administrative Hearings and assigned Case No. 85-3513. On or about February 11, 1986, Case No. 85-3513 was dismissed and the file closed based upon the Community Relations Board's report that it was withdrawing its petition in the case and that an individual other than the Community Relations Board would file a separate petition as Charging Party. Actually, on or about January 9, 1986, McElrath, in his capacity as coordinator for the Community Relations Board, had filed a Supplemental Charge Of Discrimination against Respondent on the same alleged facts that formed the basis of Case No. 85-3513. McElrath's Supplemental Charge Of Discrimination was referred to the Division of Administrative Hearings on or about February 4, 1986, resulting in this case. McElrath has never attempted to file any other complaint under Chapter 99 of the City of Clearwater Code in his capacity as coordinator for the Community Relations Board. Because no further investigation was necessary and no further attempts to conciliate were reasonably likely to succeed, McElrath made no further investigation and made no further attempts to conciliate with Respondent after filing the Supplemental Charge Of Discrimination. Before filing of the Supplemental Charge Of Discrimination in this case, McElrath did not make a formal probable cause determination and did not serve notice of determination of probable cause on the Respondent. Respondent and its management has a commendable and appropriately implemented policy of being a responsible seller of alcoholic beverages for consumption on the premises. However, contrary to Respondent's assertions in this case, the policy of allowing only persons 23 years of age and older in the Clearwater Studebaker's is not significantly motivated by a desire to reduce alcohol-related traffic accidents. The primary motivation for the age limit is to establish and maintain an economically successful theme bar. Any contribution towards reducing alcohol related traffic accidents is an after thought rationalization. This was proven by Respondent's willingness to divert patrons younger than 23 next door to its Palm Beach Club where Respondent willingly serves them alcoholic beverages for consumption on the premises.
The Issue Whether Petitioner was wrongfully dismissed from his employment with the City of Clearwater.
Findings Of Fact On December 5, 1990, Truman Gooden was employed by the City of Clearwater as a truck driver and was assigned to pick up trash at Sand Key in Pinellas County. While driving the truck assigned to him on the beach below the high water line, the truck started to slide in loose sand, Gooden attempted to back and turn the truck away from the water, but was unsuccessful, and the truck slid into the water with the engine running. By the time Gooden extricated himself from the vehicle, the entire hood was under water (Exhibit X), the cab was full of water, and the engine was ruined. The total damage to the truck was approximately $22,000. Gooden reported the incident to his superior, and the vehicle was subsequently removed from the water by two tow trucks. Gooden testified that he had driven the truck in the same manner for several years performing the same tasks and had never encountered such a problem before. The tide was extremely low on December 5, 1990, and Gooden was driving the truck on the sand further seaward from the high water mark than normal. To perform the task, it was unnecessary for Gooden to drive very far seaward of the high water line, and Gooden's negligence in this regard was the proximate cause of the truck sliding into the water and becoming ruined. For this negligence, Gooden was assigned 20 disciplinary points. During the preceding two years prior to this incident, Gooden had received the following disciplinary actions for the following offenses: March 10, 1989 - counseling session: quitting work, wasting time March 23, 1989 - written warning: tardiness March 28, 1989 - 3 days suspension: unauthorized/ unexplained absenteeism April 4, 1989 - letter of reprimand: carelessness, vehicle accident June 20, 1989 - 4 days suspension: productivity not up to standards June 22, 1989 - less than satisfactory annual performance rating June 27, 1989 - letter notifying Gooden of accumulation of 60 points July 14, 1989 - letter of reprimand: vehicle accident Sept. 22, 1989 - less than satisfactory 3 month follow-up rating Nov. 13, 1989 - 6 days suspension: operating city vehicle without a license; failure to report lack of valid license April 16, 1990 - written warning: tardiness June 22, 1990 - less than satisfactory annual performance rating Aug. 10, 1990 - letter of reprimand: lack of personal hygiene Dec. 5, 1990 - current incident/recommendation for dismissal 10. At the time of the December 5, 1990 incident, Gooden had accumulated 60 disciplinary points and was given 20 disciplinary points for this incident. By letter dated January 27, 1989, Gooden was advised that he had accumulated 60 points since September 23, 1988, and any further disciplinary action within a 2-year time frame may be grounds for dismissal.
Recommendation It is recommended that a Final Order be entered sustaining the action of the City Manager in dismissing Truman Gooden from his position as truck driver for the City of Clearwater. ENTERED this 3rd day of June, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1991. COPIES FURNISHED TO: TRUMAN GOODEN 1144 ENGMAN STREET CLEARWATER, FL 33615 CYNDI GOUDEAU, CLERK CITY OF CLEARWATER POST OFFICE BOX 4748 CLEARWATER, FL 34618-4748 MILES A. LANCE, ESQUIRE POST OFFICE BOX 4748 CLEARWATER, FL 34618-4748
The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 20th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent, the City of Ormond Beach (the "City"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2009),1/ by discriminating against Petitioner based on his race or by discharging Petitioner from his employment in retaliation for engaging in protected conduct.
Findings Of Fact The City is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Petitioner, a black male, was employed by the City on August 28, 2001, and assigned to the streets section of the public works department. On October 1, 2003, Petitioner was transferred to the stormwater maintenance section of the public works department, where he worked until his dismissal on July 8, 2009. At the time of his dismissal, Petitioner's job classification was Maintenance Worker II. He reported directly to stormwater supervisor Larry Haigh, who in turn reported directly to environmental systems manager Kevin Gray. At most times, there were eight or nine employees in the stormwater section, including Darren D'Ippolito, a Maintenance Worker IV who worked as second in command to Mr. Haigh and therefore had supervisory authority over Petitioner. Mr. Gray described Mr. D'Ippolito as a "lead worker" who reported directly to Mr. Haigh. Mr. Haigh described the stormwater section's duties as follows: We try to keep anything from flooding, whether it's roads, houses, parking lots, businesses. And we keep all the drains clear and clean during rainstorms, hurricanes. We sandbag City buildings, doorways, you know, keep water out. We take care of streets that are-- that have flooding issues. We go back and find out why they have those issues, and then we fix those issues. Petitioner's primary assignment in the stormwater section was to operate the reach-out mower, which is a large tractor with an extended boom that is used to mow and remove vegetation from the slope angles on swales and ditches throughout the City. The reach-out mower is in daily use because the City has a contract with the Florida Department of Transportation to maintain local rights-of-way. The reach-out mower has an enclosed, air-conditioned cab with a radio, and is therefore considered a desirable assignment within the stormwater section. Many other assignments in the section involve working outside in all manner of weather. The City had no formal job title for "reach-out mower operator." The mower was merely one of the many duties to which a Maintenance Worker II could be assigned. During the course of his employment with the City, Petitioner was placed on performance probation three times. The last such probation, called a "conditional evaluation" by the City, was put in place on December 31, 2008, as the result of an unsatisfactory annual evaluation. The City's employee performance evaluation document is broken into eight categories: appearance; attendance; interpersonal skills; communication skills; achievement of objectives and job knowledge; use and care of equipment; work productivity; and compliance with rules and regulations. In each category, the supervisor rates the employee on a scale of one to five, with "one" meaning below the acceptable standards and "five" meaning that the employee exceeds standards. A score of "three" means that the employee meets the acceptable standard. A score of "two" means that the employee's performance falls between meeting standards and below standards. A score of "four" means that the employee's performance falls between meeting standards and exceeding standards. The employee's overall performance score is calculated by adding the point totals for all eight categories (giving double weight to the scores for "achievement of objectives and job knowledge" and "work productivity"), then dividing the total score by ten. The overall performance is then judged according to the following scale: 5.00 to 4.41 Outstanding 4.40 to 3.71 Excels 3.70 to 2.91 Meets Standards 2.90 to 1.91 Improvement Needed 1.90 to 0.00 Unsatisfactory On his December 31, 2008, evaluation, Petitioner received the following scores and comments: Appearance: 5 "Willis is always neat and clean and in the uniform provided to him." Attendance: 1 "Willis has used 65 hours of unscheduled personal leave time during this ratings period. This abuse of unscheduled personal leave has become a pattern since FY 05/06, FY 06/07 and FY 07/08." Interpersonal Skills: 1 "Willis does not relate to other coworkers effectively and makes little effort to establish rapport. Wills [sic] seems to let his emotions affect interpersonal relationships. Willis needs to work on getting along better with his coworkers." Communication Skills: 2 "Willis' verbal or written communications usually contain necessary information, but most of the time are not accurate. We have been working with Willis to try and change this problem." Achievement of Objectives & Job Knowledge: 2 "Willis understands the goals and objectives of this Department. Willis only handles what he is assigned to do. If Willis is on the Reach-out mower, he's fine. If not, Willis requires constant direction and supervision." Use and Care of Equipment: 4 "Willis generally maintains equipment and promptly reports any deficiencies to his supervisor." Work Productivity: 1 "Willis has no initiative whatsoever. This has been a problem in the past and has not changed. Willis will only do work assigned to him and nothing more. Willis handles few tasks without direct supervision." Compliance with Rules and Regulations: 3 "Willis is in violation of the City's attendance policy." Petitioner's score for his overall performance was 2.2, which placed him in the category of "Improvement Needed." Mr. Gray placed Respondent on a 180-day "conditional evaluation" probation, during which Petitioner would receive a written evaluation every 30 days. In a memorandum to Petitioner dated December 31, 2008, Mr. Gray explained the process as follows: Willis, on December 31, 2008, you were provided with your Annual Employee Performance Evaluation. In your evaluation five (5) areas of "improvement needed" or "below standards" were noted: Attendance Pattern for use of unscheduled personal leave abuse. Interpersonal Skills Pattern of inability to relate to co-workers. Communication Skills Pattern of insufficient verbal communication skills. Achievement of Objectives & Job Knowledge Pattern of non-"Reach-out Mower" related activities. Work Productivity Pattern of lack of initiative to complete any work not specifically assigned but warranted. During this 180 day conditional you will be evaluated by three (3) different superiors every thirty (30) days. The first evaluation will be completed by a Maintenance Worker IV, the second will be completed by the Stormwater Supervisor and the third evaluation will be completed by a Maintenance Worker IV. This succession will be followed for the remaining three (3)-- thirty (30) day evaluations. It is imperative that you realize that during your six (6), thirty (30) day evaluation period [sic] the supervisor responsible will be required to visually observe your work habits and demeanor regarding the above listed five (5) areas of concern. I will be reviewing all six (6), thirty (30) day evaluations prior to presenting them to you. During the evaluation process the immediate supervisor responsible for that evaluation will be present, along with myself. If during any of the evaluation periods you feel the need to discuss any areas of concern, please feel free to notify your immediate supervisor and myself. Additionally, it is to be noted that if during any one (1) of the six (6) Employee Performance Evaluations you receive a rating of "Unsatisfactory" [it] may result in additional disciplinary action, up to and including termination. At the hearing, Mr. Gray testified that he appointed three evaluators at Petitioner's request because Petitioner did not believe that his immediate superiors, Mr. Haigh and Mr. D'Ippolito, would give him a fair evaluation. Petitioner requested that a second Maintenance Worker IV, Ray Back, be appointed to evaluate his performance.3/ Petitioner testified that Mr. Haigh and Mr. D'Ippolito were best friends from high school. Mr. D'Ippolito persistently "nitpicked" Petitioner's job performance whenever Petitioner was not on the reach-out mower. Mr. D'Ippolito would tell Mr. Haigh that Petitioner's work was too slow, and criticize him for "petty stuff" such as failing to sweep out the shop or take out the garbage. Petitioner believed that he was taken off the reach-out mower at the time of his evaluation to afford his superiors an opportunity to hypercriticize his performance. Petitioner felt that Mr. D'Ippolito was harassing him by following him around and watching him perform his work assignments. In fact, it was part of Mr. D'Ippolito's supervisory job to observe Petitioner's performance. Petitioner believed that Mr. D'Ippolito's attitude towards him was rooted in racial prejudice, though he never heard Mr. D'Ippolito say anything that could be construed as racist. At the hearing, a former stormwater section employee, DeWitt Fields, testified that he heard Mr. D'Ippolito use the word "nigger" repeatedly. Mr. Fields, who is black and worked for the City during 2006 and 2007, stated that he had a meeting with Mr. Haigh and Mr. Gray to complain about Mr. D'Ippolito's apparent belief that because he was a supervisor, he could say anything he pleased. Mr. Haigh said to Mr. Fields, "You're black. Don't you use that word?" Mr. Fields denied using the word. Mr. Fields was unsure whether Mr. D'Ippolito was disciplined. Mr. Fields testified that he resigned from the City because of his perception that he had been wronged by the racism in the stormwater department. Neither party questioned Mr. Haigh or Mr. Gray about Mr. Fields' allegations regarding Mr. D'Ippolito.4/ Mr. Fields testified that another Maintenance Worker II, Richard Hernandez, a Caucasian Hispanic male, witnessed Mr. D'Ippolito use the word "nigger" and that Mr. Hernandez provided a written statement to his superiors, but neither party questioned Mr. Hernandez about those events when he testified at the final hearing. Petitioner's failure to seek corroboration of Mr. Fields' story from witnesses who were present and testifying at the hearing, coupled with Mr. Fields' status as a disgruntled former City employee who only vaguely explained the circumstances of his departure, leads the undersigned to discount the credibility of Mr. Fields' allegations. Petitioner had no first-hand knowledge of the incident involving Mr. Fields. Petitioner simply observed that Mr. D'Ippolito seemed to treat Petitioner and another black employee, Greg Lewis, differently than he treated the white employees. For example, when a storm was approaching, Petitioner and Mr. Lewis were always assigned to make sandbags or perform other manual jobs such as "digging and fetching." Petitioner stated that he was not given the same opportunities as white workers to learn to run the backhoe or perform other non-manual tasks. However, Petitioner also conceded that he spent upwards of 90 percent of his working hours operating the reach- out mower. Within the stormwater section, this was considered a plum assignment. Mr. Gray testified that other employees, including Mr. Lewis and Mr. Hernandez, had requested the reach- out mower assignment.5/ The tone of Petitioner's testimony, not to mention the substance of Mr. Haigh's testimony6/ and the written performance evaluations, establish that Petitioner was unhappy whenever he was required to do anything other than operate the reach-out mower. Petitioner claimed that he heard Mr. Haigh make a racist remark in the workplace. In August 2008, during the NFL preseason, Mr. Haigh was holding forth to some employees in the front of the shop regarding the Jacksonville Jaguars game he had watched the previous evening. Mr. Haigh was unaware that Petitioner was close enough to hear his comments. According to Petitioner, Mr. Haigh stated that he did not see any football that night, just "a bunch of monkeys running up and down the field." Mr. Haigh flatly and credibly denied ever having made such a statement. Petitioner testified that he complained to Mr. Haigh about Mr. D'Ippolito's harassment and nitpicking of his job performance, but that Mr. Haigh did nothing to address the problem because of his longstanding friendship with Mr. D'Ippolito. Petitioner testified that he complained to Mr. Gray about the fact that Mr. Haigh and Mr. D'Ippolito were treating him differently because he was black, and that Mr. Gray accused him of "playing the race card." Petitioner stated that on one occasion, Mr. Gray told him that he needed to "man up" and handle matters on his own. Petitioner testified that, unlike many of the other employees in the stormwater section, he did not "sit and just run my mouth." Petitioner said what needed to be said regarding the work at hand, but he did not engage in much social chat with his co-workers. Petitioner believed that his natural reticence led to Mr. Haigh's finding that Petitioner lacked rapport with his fellow employees. In May 2009, just before the Memorial Day weekend, a large "no name" storm approached Volusia County. On May 21, 2009, Volusia County enacted a countywide state of emergency. On Wednesday, May 20, 2009, prior to the formal declarations of emergency, the City began preparations for the storm. The stormwater section began preparing sandbags for residents, checking "hot spots" in the City's drainage system to be sure the drains were open and clear, taking levels on lakes and ponds, using the pump station to lower the level on the City creek to ensure adequate water storage, and fueling the City's vehicles and equipment for use during and immediately after the storm. Mr. Gray testified that the stormwater section performed the "main thrust" of the City's emergency preparations. On either Thursday, May 21 or Friday, May 22, 2009,7/ Mr. Gray convened a meeting of all employees in the stormwater section. Mr. Gray told all the employees that they should expect a call to come to work over the Memorial Day weekend. He instructed the employees to check their rain gear and to be sure their cell phones and pagers had fresh batteries. Each employee of the stormwater section, including Petitioner, was issued a pager. During routine periods, employees took turns having "pager duty" for seven days at a time. The employee on pager duty received an extra dollar per hour for being on call, and was the first person called in to respond to problems occurring outside of normal working hours. During emergencies such as major storms, everyone in the stormwater section was placed on pager duty. If an employee was paged, he was expected to call in and then to report to work unless excused by his superior.8/ Petitioner was well aware of the City's pager policy, as he had earlier agitated for a more equitable distribution of "pager duty" and the extra pay that it entailed.9/ At the meeting, Mr. Gray specifically invoked the universal pager duty requirement for the upcoming weekend. Every employee of the stormwater section was required to carry his pager and to call in to work if paged. On Saturday, May 23, 2009, the rainfall continued unabated, causing the City to enact its own local state of emergency. Mr. Haigh paged all of the stormwater employees. When they returned his call, he told them all to come in to work. All of the stormwater section's employees, including Petitioner, worked that Saturday. At the end of the day, Mr. Gray told the stormwater employees "to go home, get some sleep, but to have their pagers on in the event we had to go into the next mode." Petitioner testified that he had never heard Mr. Gray say that the stormwater employees should expect to work on Saturday. He came in only because an employee in a different section told him that employees were expected to work on Saturday. Petitioner further testified that he and Mr. Lewis worked late on Saturday. By the time Petitioner returned to the station and prepared to go home, no supervisors remained at the workplace. Petitioner stated that no one told him to report to work on Sunday or told him that he had pager duty on that day. On Sunday, May 24, 2009, Mr. Haigh again paged all of the stormwater employees, including Petitioner. All of the employees except Petitioner answered the first page and came in to work. Mr. Haigh paged Petitioner several more times and received no response. Mr. Haigh also telephoned Petitioner's home, where he lived with his parents. Petitioner's father answered the phone and told Mr. Haigh that Petitioner had not come home on Saturday night and he did not know where Petitioner was. Later in the day, Mr. Haigh sent Mr. Lewis to Petitioner's house to see if Petitioner was home. Petitioner did not respond to any of Mr. Haigh's pages and did not report to work on Sunday. Petitioner testified that after the long work day on Saturday, he went out of town to relax on Sunday, spending the day with his fiancée in Daytona Beach. Though he did not realize it at the time, Petitioner did not have his pager with him on Sunday. The Memorial Day holiday was observed on Monday, May 25, 2009. It was a holiday for City employees. At 7 a.m., Mr. Haigh began paging all of the stormwater employees for the third time. Every employee except Petitioner responded to the page, and all of those who responded came in to work with the exception of Mr. Hernandez, who asked Mr. Haigh if he could be excused from reporting in order to take care of a family matter. Mr. Haigh gave Mr. Hernandez permission to stay home. Petitioner testified that he had a telephone conversation with Mr. Lewis on Monday morning. Mr. Lewis told Petitioner that he was at work. Petitioner stated that this was his first inkling that stormwater employees had been called in to work on Sunday or Monday. At about 10:30 a.m., Petitioner phoned Mr. Haigh, who made it very clear that he was upset with Petitioner for failing to call in or show up on either Sunday or Monday. Mr. Haigh asked Petitioner whether he had noticed that it rained 20 inches over the weekend. Petitioner stated that he had been in Daytona, and it didn't seem that bad there. Mr. Haigh stated that Petitioner told him a story about having to help a relative put her furniture on blocks because her house was about to flood. Petitioner testified that his aunt's house was indeed flooded during the storm, but he did not help with her furniture and denied having told this story to Mr. Haigh. Mr. Haigh's testimony is credited on this point. Petitioner asked Mr. Haigh if the stormwater employees were working. Mr. Haigh answered in the affirmative, but told Petitioner not to bother coming in because they were wrapping things up at the station. Mr. Haigh then reported to Mr. Gray that Petitioner had failed to return numerous pages and did not report to work on Sunday. Petitioner testified that it was only after his conversations with Mr. Lewis and Mr. Haigh on Monday that he realized he did not have his pager. He speculated that he either misplaced it or lost it on the job Saturday. He never found it. Mr. Gray made the decision to recommend that Petitioner's employment with the City be terminated. In a June 24, 2009, memorandum10/ to Assistant City Manager Theodore MacLeod, Mr. Gray wrote as follows, in relevant part: . . . Since his Conditional Evaluation, Mr. Littles has been assigned to operate the "Reach-Out Mower" and does a satisfactory job most of the time. The problem that has arisen is when he is not mowing. Several years of evaluations reflect that his interpersonal skills when working with other employees are less than satisfactory. Mr. Littles consistently receives low marks on: Attendance Interpersonal Skills Communication Skills Achievement of Objectives & Job Knowledge Work Productivity During Mr. Littles' seven plus years of employment he has been placed on a thirty (30) day, a sixty (60) day and a one hundred eighty (180) day conditional Performance Evaluation status for several or all the above listed areas. The latest incident happened when he was unavailable during the recent storm and in direct violation of Administrative Policy 53, Compensation During Declared Emergency. Expectations for duty, including reporting requirements before, during and after the emergency event are quite clear and conveyed to all Public Works employees. On May 23, 2009, the City of Ormond Beach enacted a local state of emergency for the May 2009 Unnamed Storm. The administrative policy states employees are required to report or call in during a declared emergency. On Sunday, May 24, 2009, Larry Haigh, Stormwater Supervisor attempted to call Mr. Littles at his home at 9:29 a.m. and spoke to his father, Mr. Littles, Sr., who stated "he didn’t come home last night. Try his pager." Mr. Haigh then attempted to contact Mr. Littles via pager to report to work. Mr. Haigh made three attempts (9:30 a.m., 10:08 a.m. and 3:27 p.m.) to contact Mr. Littles. Mr. Littles did not respond to any [of] the pages. Mr. Littles was issued a new battery for his pager on Friday, May 22, 2009. Mr. Littles finally made contact with Mr. Haigh on Monday, May 25, 2009, at 9:57 a.m.... The Public Works staff is repeatedly informed that they must answer all after- hour calls and/or pages, especially during hurricane season or in this case the Declared Emergency. Mr. Littles is paid to carry the after-hour pager under GEA contract.[11/] In addition, Mr. Littles repeatedly avoids the chain of command procedures and bypasses Mr. Haigh and responds directly to myself without informing Mr. Haigh, who is his immediate supervisor. My response to Mr. Littles in almost all cases is "have you checked with Larry" or "you need to check with Larry." Mr. Littles is currently on a conditional status for substandard evaluations and since this is the fifth month of that time, it is felt that there should be marked improvement in the five (5) items listed above. Mr. Littles in my opinion and the opinion of his immediate supervisors has shown little or no improvement in any area except for attendance. Recently, during the May 2009 storm event, Mr. Littles and another employee were sent to an address that had received structure flooding to assist the homeowner in correctly sand bagging her property. When Mr. Haigh went to follow up on the operation with the homeowner, the homeowner made the comment "if these guys are temporary labor, I would not ever bring them back." On another recent occasion, Mr. Littles disabled one of the fuel keys the department uses for miscellaneous and diesel fueling at the Fleet Facility. Mr. Littles is fully aware of the proper fueling operations but in this instance he punched in numbers that were not required, which resulted in the key being disabled. In this emergency, this key was necessary for the fueling of the numerous stormwater pumps in operation. When Mr. Haigh asked the question, "who punched the numbers in the fuel system," Mr. Littles stated he didn’t know. Mr. Haigh contacted Peggy Cooper, Fleet Systems Specialist to have the key reactivated and requested information on who had placed the personal fuel key with the miscellaneous key. It appeared that it was Mr. Littles who had punched in the numbers 5957 on May 27, 2009, and was the last person to use the fuel keys.[12/] There are several additional instances that are troubling to me regarding Mr. Littles and should not be occurring from a seven year employee. His job knowledge and ability to perform his duties at this point should be satisfactory at minimum. I am therefore requesting that Mr. Littles employment with the City of Ormond Beach be terminated. At the hearing, Mr. Gray testified that he made the decision to recommend termination despite the fact that Petitioner still had one month to go on his 180-day conditional evaluation period. Mr. Gray noted that the last evaluation in June 2009 was the worst of the five that Petitioner received during his probation, and that Petitioner's failure to report on Sunday, May 24, was the final straw. Mr. Gray stated that if an employee were not on probation, failure to respond to a superior's page would call for a verbal or written reprimand if it were a first offense. However, Petitioner was on his third probation in seven years. Moreover, Petitioner had already received a written warning for failing to respond to radio and pager messages from Mr. Haigh on December 24, 2008.13/ Mr. Gray testified that he discussed the recommendation with Mr. MacLeod, the City official who would make the final decision on Petitioner's termination. Mr. Gray testified that they did not talk about Petitioner's allegations of racial discrimination because he was unaware of any such allegations. After receiving Mr. Gray's written recommendation, Mr. MacLeod informed Petitioner of his right to a predetermination conference at which he could present any information in his own defense. The predetermination conference was held on July 2, 2009. Petitioner attended the conference, accompanied by his GEA-OPEIU representative Mike Haller. Attending with Mr. MacLeod was the City's interim Human Resources Director, Jayne Timmons. Petitioner was afforded the opportunity to defend his actions over the Memorial Day weekend and as to the other incidents discussed in Mr. Gray's recommendation memorandum. After the conference, Mr. MacLeod made the decision to support Mr. Gray's recommendation. By letter dated July 7, 2009, Mr. MacLeod informed Petitioner that his employment with the City was terminated, effective July 8, 2009. The letter informed Petitioner of his right to appeal the determination to the City's Human Resources Board or, in the alternative, to utilize the grievance procedures under the GEA-OPEIU's collective bargaining agreement with the City. Petitioner did not appeal to the Human Resources Board, nor did he file a grievance under the collective bargaining agreement. At the hearing, Petitioner sought to explain the incident referenced in Mr. Gray's termination letter regarding the disabling of the fuel key. He essentially blamed the problem on Mr. Lewis, who had either forgotten his key or could not get his key to work. Petitioner lent his fuel key to Mr. Lewis, who could not make it work. Petitioner then tried, and could not make it work. The next thing Petitioner heard about the matter, Mr. Haigh was accusing him of intentionally disabling the fuel pump. Even if Petitioner's story regarding the fuel key is accepted, it does not establish that his superiors were wrong to discipline him. Petitioner concedes that he was involved in the incident that disabled the fuel key. When Mr. Haigh first looked into the matter, Petitioner denied knowing anything about it, which necessitated further investigation. Petitioner's lack of candor alone warranted discipline, particularly because it led to the waste of Mr. Haigh's time and that of Peggy Cooper, the fleet systems specialist who determined that Petitioner was the culprit. Petitioner testified that he was placed on the 180-day probation shortly after he went to City Hall to complain "about how I was unfairly treated, and all these bad evaluations that I had been getting from year to year, and I'm seeing guys that. . . pretty much, ain't doing anything. They just getting by. [I called it] favoritism from Mr. Haigh." 14/ He implied that the probation was in retaliation for his complaint. As noted at Finding of Fact 22, supra, Petitioner claimed that he brought his allegations of racial discrimination to Mr. Gray, who accused him of "playing the race card" and advised him to "man up." Mr. Gray credibly denied that Petitioner raised any issues of discrimination with him until Petitioner turned in his written comments on the December 31, 2008, evaluation. Petitioner's comments included the following: "For the last seven years I've been working with the City of Ormond Beach, I have experienced nothing but harassment, hostile & offensive blatant discriminatory behavior on the part of management . . ." Petitioner also requested a meeting with the City's Human Resources Director and the City Manager to discuss his comments. Mr. Gray testified that he did not read Petitioner's statement as alleging racial discrimination, given Petitioner's history of complaining about general "favoritism" in the stormwater section, but that he nonetheless forwarded Petitioner's meeting request to the City Manager and the Human Resources Director. At that point, the matter was out of Mr. Gray's hands. Mr. Gray had no idea what resulted from the meeting or whether it ever occurred.15/ Mr. Gray recalled Petitioner coming to him to complain about Mr. D'Ippolito, but not because of any racial animus. Petitioner's complaint, as also voiced to Mr. Haigh, involved the fact that Mr. D'Ippolito was "spying" on him. The testimony at the hearing, including Petitioner's, established that Petitioner refused to accept that Mr. D'Ippolito had supervisory authority over him and was supposed to be watching his work. The attempts by Mr. Gray and Mr. Haigh to explain this fact to Petitioner fell on deaf ears. Mr. Gray also recalled that Petitioner complained to him about favorable treatment received by Mr. Hernandez. The gist of Petitioner's complaint was that Mr. Hernandez would not get dirty. Petitioner complained that other workers, including Mr. Hernandez, came in from their day's work as clean as when they went out, whereas Petitioner was required to do the dirty jobs. Mr. Gray testified that he had no response to this complaint. Some jobs in stormwater require the worker to get dirty and others do not. Moreover, said Mr. Gray, some workers are able to "work clean" and others are not. Finally, Mr. Gray was somewhat puzzled by the complaint because Petitioner's regular assignment, operating the reach-out mower, was one of the "cleanest" jobs in the stormwater section. Mr. Gray noted that performing maintenance on the machine involved oil and grease, but that the operational aspects of the reach-out mower did not involve getting dirty. At the hearing, Petitioner testified that his complaint to Mr. Gray about Mr. Hernandez was not confined to the question of getting dirty. Petitioner stated that after receiving his own poor evaluation in December 2008, he complained to Mr. Gray about Mr. Hernandez receiving an outstanding evaluation in spite of having spent all year on the job doing nothing but studying to become a police officer. Petitioner testified that Mr. Hernandez was assigned to operate the Vac-Con, a machine that clears storm drains, and that the Vac-Con truck just sat in front of the public works department while Mr. Hernandez studied. Petitioner stated that Mr. Haigh was aware that Mr. Hernandez was studying on the job and did nothing about it. Mr. Hernandez sat there reading in front of the other employees and took his books with him when riding out on a job. Petitioner did not know whether Mr. Hernandez was ever disciplined for studying on the job. Mr. Hernandez testified that when he was in the police academy he did bring his books in and read them on the job. Mr. Haigh was unaware that Mr. Hernandez was studying on the job until Petitioner and a co-worker complained to someone at City Hall. At that point, Mr. Haigh counseled Mr. Hernandez to "knock it off" and confine his studying to the lunch hour. Mr. Hernandez complied with Mr. Haigh's instruction and that was the end of the matter. Mr. Hernandez' version of these events is more credible than Petitioner's. At the hearing, Petitioner attempted to make a case of disparate treatment as between himself and Mr. Hernandez, focusing on the fact that Mr. Hernandez did not come into work on Monday, May 25, 2009, and received no discipline, whereas Petitioner's failure to come to work the previous day was deemed the "final straw" and cause for his dismissal. In making this case, Petitioner disregards the fact that Mr. Hernandez answered Mr. Haigh's page and requested that he be allowed to remain at home. Unlike Petitioner, Mr. Hernandez was excused from reporting to work. Mr. Haigh was not pleased that Mr. Hernandez asked for the day off, but had no cause to discipline Mr. Hernandez. Mr. Haigh pointed out, "I knew where he was," meaning that he could call Mr. Hernandez in to work if the situation changed. Mr. Haigh had no idea where Petitioner was or how to contact him. Mr. Hernandez' employee performance evaluation for 2008 resulted in an overall score of 4.5, "outstanding" on the City's scoring scale. On each of the eight evaluation criteria, Mr. Hernandez received either a "4" or "5." His superiors included no negative comments or suggestions for improving his performance. Given Mr. Hernandez' overall job performance, it is understandable that the episodes complained of by Petitioner did not result in formal discipline of Mr. Hernandez or greatly affect his performance evaluation. The evidence at the hearing amply established that Petitioner was at best a marginal employee for the City. Mr. Haigh testified that the other employees in the stormwater section did not like to partner with Petitioner because he would not work. For most of the day, Petitioner operated the reach- out mower alone, but when he came into the office to make out his daily reports, Petitioner did not get along with his fellow employees. Mr. Haigh testified that it was hard to make sense of Petitioner's written reports. Mr. Haigh stated that when Petitioner was not on the reach-out mower, he required direction at all times. If a supervisor did not tell him what to do, Petitioner would do nothing. Mr. Haigh described his shock when a homeowner complained to him about the poor job a presumed "day laborer" had done, only to realize that the homeowner was talking about Petitioner. At the time of his dismissal, Petitioner was five months into the third performance-related probation of his seven years with the City. After the events of the Memorial Day weekend, it was not unreasonable for Mr. Gray to conclude that further efforts to improve Petitioner's job performance were futile. Petitioner offered no credible evidence that the City's stated reasons for his termination were a pretext for race discrimination. Petitioner offered no credible evidence that the City discriminated against him because of his race in violation of section 760.10, Florida Statutes. The greater weight of the evidence establishes that Petitioner was terminated from his position with the City due to poor job performance throughout the seven years of his employment. The greater weight of the evidence establishes that the City did not retaliate against Petitioner for his complaint to Mr. Gray about discrimination. The evidence established that Mr. Gray properly forwarded Petitioner's complaint to the City Manager and Human Resources Director. Though the record was unclear as to the outcome of the City's investigation, the fact remains that Petitioner continued to work for the City for another six months after his complaint. Aside from Petitioner's intuitions regarding some kind of "strategy" to fire him, there was no evidence that Petitioner's supervisors were acting in less than good faith in their attempts to shepherd him through the probationary period and encourage him to improve his performance and save his job. The evidence established that Petitioner was the author of his own misfortune.
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 the City of Ormond Beach did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 5th day of October, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2011.
Findings Of Fact At all times pertinent to the allegations contained herein, the Criminal Justice Standards and Training Commission, (Commission), was the state agency responsible for the certification of law enforcement officers in Florida. Respondent, Kenneth E. Beck, was a police officer, certified by the Petitioner, and employed by the City of Clearwater Police Department. In September, 1988, Joyce Ann Cooper Horten, currently of Easley, S.C., was residing in Clearwater, Florida. At that time, she was approximately 16 years old. On the evening in question, two of her friends, a boy and girl, had "egged" a neighbor's apartment and the neighbor called the police. In response to this call, the Respondent came to the scene and was talking to Ms. Horten's friends in back of the house. When he had completed his conversation with them, he told Ms. Horten he had to search her for a knife, and took her into a hallway where he put his hands up under her shirt and around her shoulders and sides. In addition, he touched her legs by putting his hands on both sides of each leg, running them all the way up to the crotch. After this search, Respondent took Ms. Horten into her apartment where he searched for the knife in the kitchen. Finding nothing, he took her into the bedroom, went into her closet, and looked through her clothes as well as through her chest of drawers. Finding nothing, Respondent then had Ms. Horten roll up her skirt from both the back and the front and when she did so, pulled her panties out from the front. When he did this, he could observe her pubic area though he did not touch her there. He then had her roll up her shirt, both in the front and the back. Since she was not wearing a bra, when she rolled up her shirt front, her breasts were exposed to his view. After finishing his search, he gave Ms. Horten his card, with his name on it, and went back outside to talk to the other young people. Ms. Horten did not think that what Respondent was doing to her was appropriate, but claims that since she was not familiar with the law, she did not know she could resist. Nonetheless, she later told her mother and the neighbor who had initially called the police. This neighbor apparently filed a report with the police and Ms. Horten thereafter taped a statement as to the matters previously discussed, a typed copy of which she subsequently signed under oath. At approximately 3:50 AM on April 16, 1989, Tara D. Grey, then a 17 year old college student, was driving her car eastward on Drew Street in Clearwater, Florida when she was pulled over by the Respondent who was in a police cruiser and in uniform. Initially he did not tell her why he had stopped her, but asked for her driver's license and registration, which he took back to his cruiser. After approximately 5 minutes, he came back and told her that her license did not check out and asked for additional identification which, he claimed, did not check out either. Finally, she gave him her social security card which seemed to satisfy him. After an extended series of questions regarding her drinking, her use of illegal drugs, or her prior arrest record, all of which she denied, he required her to get out of her car, after which he administered a sobriety test to her. He then asked if he could search her car, to which she consented. While he conducted the initial search, he asked her to stand behind the car, but then requested her to take the numerous items which were on the car floor out so he could see what he was doing. At time she was wearing a miniskirt and boots, along with a sweater, and when she did what he asked of her, she had to bend over and her skirt came up in the back, giving him a broad view of her posterior. When she finished cleaning out her car to his satisfaction, Respondent asked her with whom she lived and why she had other clothing in the car. After several other questions, he finally told her, after about 45 total minutes of interview, that she had been stopped because she was speeding. He then indicated he would have to follow her to her friend's home, (the place to which she was in progress when stopped), and kept her license while he followed her there. Before he allowed her to go into the house, he indicated he would have to frisk her, and in doing so, had her put her hands up on the top of his car. He then ran his hands across her shoulders and across her hips and bottom, but did not touch either her pubic area or her breasts. He also checked her socks and in doing that, felt her legs down in that area but did not run his hands up over her bare legs. After finishing the frisk, he drove off and Ms. Grey went into her friends's home. In April, 1990 Louise Ann Frattaruolo, Respondent's former mother-in- law, received a letter through the mail which, when opened, indicated that her husband had broken his word and must pay the penalty. The letter then went on to indicate that all the Frattaruolos must die. This letter was unsigned, but Mrs. Frattaruolo turned it over to her daughter, a police officer, who released it to the Clearwater Police Department. A latent fingerprint was developed on the envelope in which the letter was sent, which was subsequently analyzed and determined to be that of the Respondent. From the date of the postmark on the letter, the day it was mailed, to the day the fingerprint identification was made, there was absolutely no opportunity for Respondent to have handled either the letter or the envelope. Therefore, it is concluded that the envelope containing the letter was at least touched by the Respondent prior to mailing, and was most likely mailed by him. On October 30, 1990, Patrick J. Lombardi was working as a security officer at the Clearwater Mall and was approached by a man and lady who pointed out an individual allegedly exposing himself on a bench within the mall. Mr. Lombardi got his supervisor, Mr. O'Dell, and both officers observed an individual, subsequently identified as the Respondent, sitting on a bench, wearing bright yellow jogging shorts that were split up the sides. They observed him sitting in such a manner whereby whenever a woman or a group of women walked by, he would open his legs and then slap them together, and both officers observed that when he did this, his genitalia, which had been released from the inner lining of his shorts, would fall out onto the bench. To insure they were not making a mistake, the two officers went to one of the jewelry stores in the mall and contacted Janine M. Edwards, a clerk who they asked to walk by the individual and tell them what she observed. When she did so, she observed the Respondent open his legs and expose himself to her. She noted that the liner of his shorts had been pulled to one side allowing his penis and testicles to be fully exposed. She also observed Respondent do this in front of a couple, and she is convinced it was not accidental. Respondent appeared nervous and when she first saw him, he was hunched over. When he saw her, however, he turned toward her and opened his legs to show her his private parts. It is concluded, therefore, that his actions were intentional. Shortly thereafter, Respondent was observed by a mall employee leaving the mall and getting into a blue Ford automobile. The employee got the license number of the vehicle which was subsequently traced to the Respondent. Thereafter, Sgt. Joseph Tenbieg, of the Clearwater Police Department, put together a package of 5 or 6 photographs of individuals, including Beck, all of whom resembled the Respondent, which he showed, independently, to Officers O'Dell and Lombardi, as well as to Ms. Edwards. All three identified the photograph of the Respondent, which was taken from his police personnel records, as the individual who was exposing himself in the mall.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered revoking the Respondent, Kenneth E. Beck's certification as a law enforcement officer. RECOMMENDED this 29th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1991. COPIES FURNISHED: Elsa Lopez-Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kenneth E. Beck 28 Valencia Circle Safety Harbor, Florida 34695 James T. Moore Commissioner Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P.O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times relevant hereto, Michael Gieseke was employed by the City of Safety Harbor as a Laborer 3 in the Sanitation Department. He had been so employed for approximately nine months on February 1, 1991. On January 29, 1991, shortly before clocking out time, Gieseke was in the Sanitation Department breakroom with most of his coworkers. People were talking, laughing and, in general, relaxing following the day's work. The breakroom had six picnic-type tables at which the various employees were sitting. Respondent was sitting at one of these tables facing away from the table. Behind Respondent at the same table, Eric Davis was straddling the bench, and was engaged in conversation with Grover Smith, his and Respondent's supervisor. This conversation was fairly loud and punctuated by loud laughter by Davis. For several minutes this loud laughter had persisted very close to Respondent, and on one or more occasions Respondent had requested Davis stop shrieking in his ear. These protests were not honored by Davis. Several witnesses described Davis' laugh as often irritating. Finally, Respondent got up and picked up a broom near the time clock and returned to his seat with the broom handle resting on his shoulder, held in his right hand with the bristle part between him and Davis. Respondent swung the handle of the broom back and forth likewise moving the bristle end. In so doing, the bristle end of the broom struck Davis on the side of the head. As described by Davis, the blow was sufficient to make one aware he had been hit but not hard enough to make one cry. Davis jerked the broom aside and got up and put his hands around Respondent's neck. Realizing that participating in a fight could lead to dismissal, Davis refrained from tightening his grip on Respondent's neck and merely told Respondent not to do that again. During his rounds that day, Respondent had picked up a discarded razor- knife with which he had been cleaning his fingernails since entering the breakroom. This knife consisted of razor-like blades joined lengthwise which are encased in the sheath of the knife and extend from the sheath in a cutting position by pushing a button on the outside of the sheath and pushing the blade outward. This knife was held in Respondent's left hand with the blade extended approximately 1/2 inch. When Davis was hit by the broom and grabbed Respondent around the neck, one supervisor reminded Respondent that [for drawing a knife] a person would be fired, and another supervisor told both parties to knock it off, which they did. During this slight altercation, Respondent made no effort to use the knife or even threaten to use the knife. The following day, one of the supervisors who was in the breakroom when the altercation occurred reported the incident to the Director, Public Works Department, who had the incident investigated by Kurt Peters, Assistant Public Works Director. Peters is not a Division Director, but was authorized to investigate the incident by Wayne Logan, Jr., the Interim City Manager, Safety Harbor, with the authority to take all disciplinary action taken in this case. Following the investigation, Peters concluded that Respondent had been responsible for the incident and reported this to the City Manager who concurred. On Friday, February 1, 1991, with authorization from Logan, Peters told Gieseke that effective immediately he was being placed on unpaid leave for five days. On Monday, February 4, 1991, Gieseke was on unpaid leave, and the decision was made to terminate Gieseke's employment with the City. Accordingly, the letter to Gieseke dated February 4, 1991 (Exhibit 1) so advising him was sent to Gieseke's home address. This registered letter was not received by Gieseke from the post office, and he learned of the letter when he returned to pick up a pay check.
Recommendation It is recommended that Michael Gieseke be found guilty of violating Rule 24, Section C, Items 7 and 16, of the City of Safety Harbor Civil Service Rules, that the five day suspension be approved, that the subsequent dismissal for the same offense be disapproved and that Gieseke be restored to duty by the City of Safety Harbor with back pay for the period commencing at the conclusion of his period of suspension. ENTERED this 20th day of June, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1991. APPENDIX Proposed findings submitted by Petitioner are accepted, except for: Paragraph 5, second sentence that Respondent retracted the blade and lowered the knife. No evidence was presented that the blade was ever extended more than 1/2 inch or that Respondent raised the knife as if to use it against another. Paragraph 6, penultimate sentence, insofar as it intimates the decision of the City Manager to terminate Respondent was made on February 1, 1991. On February 1, 1991, the City Manager authorized the suspension of Gieseke for five days. COPIES FURNISHED TO: THOMAS M. GONZALES, ESQUIRE POST OFFICE BOX 639 TAMPA, FL 33601 JOHN K. FINCH, ESQUIRE WILLIAM WIGGINS, ESQUIRE 323 MAIN STREET SAFETY HARBOR, FL 34695
