Findings Of Fact The Business of Respondent The complaint alleges the Respondent admits and I find that the Respondent is a public employer within the meaning of Section 447.203, Florida Statutes. The Labor Organization Involved The Respondent disputes the complaint allegation that the Charging Party is an employee organization with the meaning of Section 447.203(10) of the Act. Evidence adduced during the course of the hearing establishes that the Charging Party is an organizational faculty at Brevard Community College which desires the betterment of teaching conditions at the college. It seeks to represent public employees for purposes of collective bargaining and in other matters relating to their employment relationship with the college. The Charging Party is registered with PERC and has petitioned PERC to determine its status as a bargaining representative. Testimony also indicates that employees are permitted to participate in the organizational affairs and a representation election was held on March 3, 1976, which Involved the Charging Party. Based on this undisputed testimony, I find that the Charging Party is an employee organization within the meaning of Section 447.203(10) of the Act. The Alleged Unfair Labor Practices Background Patrick D. Smith, is employed by Respondent as Director of College Relations and he also serves as the editor of a college communications organ called the Intercom. Smith's immediate superior is Dr. King, the College's President who has the final authority for determining the Intercom's content. The Intercom is distributed to faculty and staff members in their college mailboxes and is published weekly during the school year. The Intercom is printed in and distributed from Smith's office on campus. On January 21, 1976, Lewis Cresse (then the Charging Party's President and a BCC faculty member) called Smith at his office and advised that he (Cresse) would like to announce a meeting that the Charging Party would be having in the Intercom. Approximately one week later, Cresse met President King in the college's parking lot and specifically asked that the BCCFT (the Charging Party) be allowed to use the Intercom. King indicated that he had no intention of allowing the Charging Party to use the Intercom and it suffices to say that Smith denied Cresse the use of it for announcing a meeting that the Charging Party would soon be holding in the Intercom. It is by these acts, that the General Counsel issued his complaint alleging that the Respondent discriminatorily denied the Charging Party the use of the Intercom and the college bulletin boards as a means of communicating the Charging Party's announcements and meetings. In attempting to establish that the above acts constitute violations of Sections 447.501 and 447.301 of the Act, the General Counsel introduced testimony to the effect that the Brevard Vocational Association, an organization whose purpose is to maintain communications for the benefit of all vocational, industrial education instructors in Brevard County had been permitted useage of the Intercom. Evidence also established that individuals were allowed to advertise personal items which they desired to sell in the Intercom and that such useage included advertisements regarding rummage and garage sales and that the Brevard Chapter of Common Cause, an organization which seeks to improve the workings of government by making it more accountable to the citizenry had frequently utilized the college's bulletin system. The Respondent bases its defense on its position that including in the Intercom, a meeting notice for the Charging Party which not only gave the time and place of the meeting but also urged faculty members to attend would have possibly violated the Act, by giving illegal assistance to the union; and that in any event, the college was not required to run the employee organization's notice in a publication such as the Intercom. Smith informed Cresse of Respondent's decision not to permit the employee organization to use the Intercom as a communications organ and thereafter, no other requests to use Intercom was made by the employee organization. Based on Smith's undisputed testimony that he raised the issue with Dr. King, college President, whether the employee organization's request would be granted, and that he (King) raised the question with the college's attorney, I find that the Respondent's denial is an act which is properly chargeable to Respondent. In support of its position that the Respondent discriminatorily denied the Charging Party to utilize the Intercom, the General Counsel introduced the February 19, 1976 issue of Intercom which contained a statement to the effect that Lewis Cresse, a professor at the college, would be speaker at a monthly meeting of the Brevard Vocational Association. Another item included in the Intercom was a meeting notice for the American Welding Society wherein it was announced that Sam Reed was Granted permission to announce a meeting for the society. In both examples, it was noted that the Brevard Vocational Association and the American Welding Society are organizations which the Respondent's administration encouraged faculty and staff members to participate in and for which the college reimbursed employees for expenses resulting from out-of-town meetings. Respondent's position is that it works closely with the society in that it fulfills its educational mission by preparing instructors which ultimately fulfills the college's mission. The remaining complaint allegations concerns the issue of a discriminatory denial to the employee organization of access to the college's bulletin Boards. Evidence reveals that the college has a well established procedure for the approval of documents to be posted on the college's bulletin boards and that such procedures are enforced. Prior to posting, they must be approved by Mike Merchant, Manager of the Student's Center and that approval takes the form of either a rubber stamp which indicates approval which is thereafter initialed by Mr. Merchant, or he writes the work "approved" on the document with his initials and the date. The facts relative to this allegation stems from a request by the Charging Party to post campaign materials on bulletin boards throughout the campus. Dr. Kosiba, provost of the Cocoa Campus informed Mr. Merchant that this request should be denied and it was. This request was also denied based on Respondent's position that it was not obliged to honor union requests to post union meeting notices on its bulletin boards and further that the items requested were "promotional materials" which were in truth "highly controversial campaign literature intended to gain support for the union in the then upcoming election." The items introduced were (1) a bumper sticker which encouraged employees to vote for the union and (2) a red, white and blue document covered with banner, stars and an eagle entitled "working draft of proposed agreement." To sustain the complaint allegations, it must be shown that (1) the Charging Party made a request to use the Respondent's communication facilities which in this case involved the Intercom and its bulletin boards and a denial of such request, (2) that similar requests had been approved of a similar nature and (3) that other alternative means of access were not available to the Charging Party. As to the first point, there is no question but that the Charging Party requested and was denied permission to use the Respondent's bulletin boards and its communications organ, the Intercom. However, the record evidence fails to establish that the Respondent had honored similar requests by other organizations in the past. In fact, all of the evidence tends to establish that with respect to the items here in dispute, Respondent vigorously opposed unionization, as was its right, and to have permitted the Charging Party to use the bulletin boards and its communications organ here would have been tantamount to a passive approval of the very ideas to which it had vigorously objected to. Furthermore, records evidence established that the union had abundant opportunity and did in fact communicate extensively with the employees. Among these other alternative means were: The college permitted the Charging Party to hold campus wide meetings for the faculty and staff on campus during daylight hours. The college provided a bulk distribution table conveniently located near the post office which was regularly visited by faculty and staff members. The college had an established policy which would have permitted the Charging Party to designate a single bulletin board for the posting of announcements. The employee organization was able to communicate extensively with faculty and staff by the circulation of numerous documents that were delivered to staff offices. (See Public Employer's Exhibits #3 - #24). Via the "faculty and staff directory", the employee organization had access to all names, home addresses and phone numbers of all members of the bargaining unit. (See Public Employer's Exhibit #26). The employee organization had available the campus newspaper THE CAPSULE, for meeting notices, announcements, etc. Local newspapers disseminated in the Brevard County area reported extensively on the union's campaign and activities. (See Public Employer's Exhibit #24(a) through (t)). Based thereon, I find that the Charging Party had numerous alternative means to communicate with the employees and the record is void of any circumstantial evidence that the rights of employees were interfered with, restrained or otherwise coerced by the Respondent's conduct as set forth above. I shall therefore recommend that the complaint filed herein be dismissed in its entirety.
The Issue The issue in the case is whether Respondent discriminated against Petitioner in disciplinary matters and in termination of Petitioner's employment because of race or in retaliation for complaints filed against Respondent.
Findings Of Fact Health Management Associates, Inc. (HMA), is the parent company for Respondent Orlando HMA, Inc., d/b/a University Behavioral Center (UBC). UBC provides residential care and treatment to juveniles. At all times material to this case, Respondent employed Walter F. Gibson (Petitioner) as a mental health technician. Petitioner is black. Petitioner's job evaluations were acceptable, and there is no evidence that he did not meet the requirements of the job at the time Respondent hired him. On November 24, 2004, the parties filed a Statement of Agreed Facts that provides as follows: UBC is a residential treatment center that offers a variety of programs including a program to which patients are committed by the courts under the direction of the Florida Department of Juvenile Justice. Petitioner was a staff member at Respondent's UBC facility. In late November 2002, a UBC patient accused Petitioner of abuse. Pursuant to UBC policy, Petitioner was placed on one week administrative leave pending an investigation. Petitioner was ultimately exonerated by Florida's Department of Children and Families and returned to work. Petitioner was paid for the full term of his administrative leave. Petitioner's initial complaint was made to the Florida Public Employees Relations Committee ("PERC") on or about January 6, 2003. PERC forwarded the complaint to the Florida Commission on Human Relations ("FCHR"). Petitioner's initial Charge of Discrimination claiming retaliation, FCHR Number 23-01298 was dismissed with a "No Cause" determination on May 7, 2003. On January 13, 2003, Petitioner filed a second Charge of Discrimination. On May 23, 2003, Petitioner received a paid suspension after an alleged conflict with co-workers. On May 27, 2003, Petitioner asked to amend his Second Charge of Discrimination to allege retaliation. On October 7, 2003, Petitioner was found allegedly asleep and his employment was terminated later that day. On October 9, 2003, Petitioner amended his Charge of Discrimination alleging that his termination was due to his race and in retaliation of his complaining of discrimination. Respondent has a policy against discrimination. According to the employee handbook, Respondent "acknowledges the commitment to Equal Employment Opportunity Employment regardless of race" and other protected classifications. The handbook sets forth a procedure for resolving issues related to harassment. The handbook also sets forth a "problem-solving procedure" to utilize in resolving issues related to working relationships. Petitioner received a copy of the UBC employee handbook upon beginning his employment with Respondent. The problem-solving procedure sets forth a series of steps, including verbal discussions with an immediate supervisor and then, if necessary, a department manager. If the problem cannot be resolved at that level, an employee is to contact the Human Resources Director who may ask the complainant to submit the complaint in writing. The written complaint is subsequently forwarded to the Facility Administrator for review and resolution. Although Petitioner questioned the practice of late- signed group therapy session notes (discussed herein) there is no credible evidence that Petitioner followed the appropriate reporting process prior to filing the complaint at issue in this case. There is no evidence that Petitioner's concerns of discrimination based on race or in retaliation for complaints filed were the subject of any dispute resolution procedures identified in the employee handbook. During the time Petitioner was employed as a mental health technician at UBC, group therapy sessions were conducted twice daily for UBC residents. The therapist or mental health technician in charge of the session was responsible for making notes about the session. Petitioner believed that session notes were to be signed by the therapist or mental health technician in charge of the session when the notes were written. Nonetheless, on occasion, Petitioner was asked to sign his notes some time after the sessions were completed, because he had not signed them when he drafted the notes. For reasons unclear, Petitioner apparently believed that late-signed session notes constituted Medicaid fraud. Petitioner testified that at some point during the spring of 2002, he questioned his supervisor about the legality of late-signed session notes and was told to sign them. There is no evidence that any employee of Respondent asked Petitioner to sign notes for therapy sessions Petitioner did not conduct. There is no evidence of any legal requirement requiring that session notes be signed at the time they are drafted. On August 2, 2002, Petitioner received a verbal reprimand for numerous instances of tardiness to work. Petitioner asserts that the reprimand was discriminatory; however, the evidence establishes that other employees tardy to work, including white, black, and Hispanic employees, received verbal reprimands. Some tardy employees of various races were excused for reasons that were determined to be legitimate by Respondent. There is no evidence that any employee's race was a factor in whether or not tardiness was excused. There is no evidence that Petitioner's race was a factor in the reprimand. The verbal reprimand was not in retaliation for any pending complaints filed by Petitioner because he had not yet filed any complaints. Petitioner testified that in August 2002, he anonymously called Respondent's corporate compliance telephone number to inquire as to whether the practice of late-signed session notes was illegal. Respondent's records do not indicate that such a call was received, and there is no evidence that Respondent took any related action. In November 2002, one or more patients at UBC apparently called the abuse hotline operated by the Department of Children and Family Services (DCFS) and reported Petitioner for alleged abusive behavior. Petitioner suggests that the abuse allegation came, not from patients, but from administration sources in the facility. There is no evidence supporting the assertion, which is also contrary to the Statement of Agreed Facts. Standard UBC practice when an employee is reported to the abuse hotline is to move the employee to another unit pending resolution of the matter. An employee may be prohibited from interacting with children while the report is pending. Depending on the circumstances, an employee may be suspended. A legitimate report of abuse is cause for termination of employment. Petitioner received a three-day suspension after the abuse allegation reported to DCFS was relayed to UBC. Upon returning to UBC, Petitioner was assigned to work in a different unit. The suspension was intended to be a paid suspension, but through clerical error, Petitioner was not paid for the three days at the end of the regular pay cycle. Petitioner did not notify anyone in a position to correct the non-payment at the time the error occurred. There is no evidence that the failure to pay Petitioner for the three-day suspension period was because of his race. The suspension was not in retaliation for any pending complaints filed by Petitioner because he had not yet filed any complaints. The abuse report was subsequently determined to be unfounded. Because the report was unfounded, UBC did not consider the paid suspension to constitute disciplinary action. On December 23, 2002, Petitioner sent what he believed was an anonymous email from a personal Yahoo.com email account to Respondent's corporate headquarters. The email does not specifically mention the issue of late-signed session notes or alleged Medicaid fraud. The email seeks "support to help eradicate ongoing abuse towards employees and helpless youth at one of your hospitals." The email alleges unidentified illegal and unethical behaviors and unspecified violations of corporate policy. The only factual assertion set forth in the email relates to an allegation that the "hospital director" speaking at a meeting said, "he would not support any staff member that file charges against any youth who violently attacks them." Unbeknownst to Petitioner, the email he sent to Respondent's corporate headquarters contained Petitioner's name. On December 24, 2002, the corporate headquarters forwarded Petitioner's email to David Beardsley, the UBC Administrator and Chief Executive Officer. Petitioner's email was also forwarded for investigation to Wayne Neiswender, the Director of Human Resources for HMA, who was based in Naples, Florida. On January 6, 2003, Petitioner submitted a complaint to PERC seeking protection under the "Whistleblower Act." Petitioner testified that he filed a complaint with PERC after being verbally instructed to do so by someone in the Office of the Governor. On January 13, 2003, Petitioner filed a charge of discrimination with FCHR (FCHR Case No. 23-00981) alleging that Petitioner had been discriminated against on the basis of race by being verbally reprimanded for tardiness in August 2002 and for being suspended based on the abuse allegation in November 2002. Petitioner asserted that non-black employees who committed similar infractions did not receive the same discipline. In mid-January 2003, Mr. Neiswender traveled to Orlando and met with David Beardsley to discuss the letter. Mr. Neiswender's investigation focused on gathering information to identify specific instances of the alleged unethical or illegal activities that Petitioner claimed in his email were taking place at the facility. Mr. Neiswender met with Petitioner at a time and location chosen by Petitioner. Petitioner refused to cooperate with Mr. Neiswender's investigation and refused to provide any specific information related to alleged Medicaid fraud or any other unethical or illegal activities he claimed in his email were occurring at UBC. Mr. Neiswender learned from Petitioner that Petitioner had not received payment for the three-day suspension during the appropriate payment cycle. Mr. Neiswender informed the appropriate UBC personnel and a check was issued to Petitioner to cover the unpaid time. There is no evidence that Respondent's failure to compensate Petitioner for the suspension period was based on race or in retaliation for any complaint. There is no evidence that prior to Petitioner's telling Mr. Neiswender about the non-payment, anyone at UBC other than Petitioner was aware that he had not been paid for the suspension period. Mr. Neiswender met with other UBC employees during his investigation, but was unable to identify any specific instances of unethical or illegal behavior. Mr. Neiswender concluded that Petitioner's allegations were unsupported by fact. Because the allegations involved improper use of public Medicaid funds, the allegations were also investigated and ultimately dismissed by the Office of the Inspector General for the State of Florida. On February 28, 2003, Petitioner filed a Whistleblower's complaint with FCHR (FCHR Case No. 23-01298) alleging that since August 4, 2002, he had been suspended in November 2002, and "harassed as recently as January 25, 2003," in retaliation for reporting allegations of Medicaid fraud to the HMA corporate compliance telephone line and to PERC. The investigation by FCHR of Case No. 23-01298 was terminated by notice issued on May 7, 2003. The Notice of Termination sets forth Petitioner's right to appeal the termination of the investigation. Petitioner did not appeal the termination of the investigation. During May 2003, Petitioner was working in a UBC program unit identified as "Solutions." The Solutions unit is physically divided into two units ("Solutions I" and "Solutions II") separated by the nurses' station and doorway. Calvin Ross, a black man, was Petitioner's supervisor. On May 13, 2003, Mr. Ross directed Petitioner to stay out of the Solutions I unit, because a female patient in Solutions I alleged that Petitioner acted improperly towards her. Mr. Ross told Petitioner to remain in the Solutions II unit until the matter was resolved. Although Mr. Ross did not identify the female patient to Petitioner, Petitioner believed he knew who the complainant was. Later during the week, Petitioner had several encounters with the complainant, including two incidents at the nurses' station during which Petitioner twice directed the complainant (who was unaccompanied by staff) to return to her unit and to her room. On May 13, 2003, a third encounter between Petitioner and the complainant occurred when Petitioner was called temporarily into the Solutions I unit to assist in returning an unruly male patient to his room. After the situation with the male patient was resolved, Petitioner did not leave the Solutions I unit, but instead saw and began to talk to the complainant. At the time of the encounter, the complainant was outside her room. Petitioner directed her to return to her room. The complainant had permission from the Solutions I staff to be out of her room, a fact of which Petitioner was unaware. The complainant reacted negatively to Petitioner's direction and became very emotional, crying and screaming at Petitioner. Prior to her interaction with Petitioner on that day, the complainant's behavior had been appropriate and controlled. Petitioner then became involved in a confrontation with a Solutions I unit staff member (a white female) in front of unit patients when the staff member explained to Petitioner that the complainant indeed had permission to be outside the room. Petitioner was unhappy that other staff had not supported his instructions to the complainant and told the staff member that she was "unprofessional" and "inappropriate" in such a hostile manner as to cause the staff member to become emotionally upset and to leave the facility before the end of her shift. Petitioner then had yet another confrontation with a different staff member (a white female) on the same day during which Petitioner in front of unit patients told the staff member that she was incompetent, and accused the staff member of joining with patients to "get him." Mr. Ross investigated Petitioner's conduct towards the co-workers on the day in question, and determined that Petitioner's behavior warranted a paid suspension. Mr. Ross was not aware that Petitioner had any pending complaints against the facility at the time he imposed the suspension. Mr. Ross' supervisor and the facility's Human Resource Coordinator approved the suspension. The evidence fails to establish that the suspension was based on race or in retaliation for any pending complaints filed by Petitioner. The employee who left her shift early had a letter placed in her personnel file cautioning that another incident of early departure would result in termination of her employment. Petitioner was also required to complete a Performance Improvement Plan, which he did successfully in June 2003. In September 2003, Respondent became aware that a night employee was discovered sleeping during working hours in the lobby of the facility. The employee supposedly began sleeping during a work-break and did not awaken to return to his shift. Because of previous problems with patients leaving assigned rooms and wandering freely into each other's rooms when unsupervised, Respondent regards sleeping by employees during work hours to be a serious issue. Employees on break are permitted to nap in their cars, but the UBC employee handbook specifically states that "sleeping on the job" will not be tolerated. While investigating the September sleeping incident, Respondent learned that a unit night supervisor was in the practice of allowing employees to combine multiple break time and to sleep "off unit" for the period of the combined break time. Respondent initially intended to terminate the sleeping employee, but because the unit supervisor permitted the practice, the offending employee was reprimanded and warned that another incident of sleeping would result in termination. The night supervisor's practice was not acceptable to administrators of the facility, and a memo dated September 25, 2003, was issued to all employees, including Petitioner, prohibiting the practice of combining break time. The memo further stated as follows: Sleeping: No staff member is to sleep while on duty at UBC. This includes all 3 shifts. Staff on the evening and night shifts are paid an extra differential based on the fact that these hours are perhaps more difficult to work. No sleeping at any time while in the building. In October 2003, Petitioner was found asleep while sitting in a chair in a unit hallway. Two employees, a nurse- manager and an orderly, observed Petitioner sleeping. The orderly called Petitioner's name once to awaken him, but was unsuccessful. After she called his name again, he woke up. The evidence further establishes that Petitioner failed to complete two sets of the "quarterly rounds" (which are done every fifteen minutes) intended to assure that patients are safely in their assigned rooms. Petitioner testified that he was not asleep, but had merely "dozed off" for at most 20 seconds before awaking. Petitioner's testimony on this point is discredited due to the fact that the orderly had to twice call his name before he awoke, and to his failure to complete two sets of quarterly rounds (covering a period of 30 minutes). As a result of being found sleeping while on duty, Petitioner's employment was terminated. Since the September 2003 memo was issued, employees found sleeping on duty have been terminated. Such terminations have included white and Hispanic employees. There is no credible evidence that any employee found asleep on duty since the memo has continued to be employed at UBC. There is no evidence that Respondent's termination of Petitioner's employment was based on or related to his race, or in retaliation for any complaint filed by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Walter F. Gibson in this case. DONE AND ENTERED this 2nd day of March, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2005.
The Issue Petitioner University of Florida seeks to terminate Respondent, pursuant to Rules 6C1-1.007, 6C1-1.008, 6C1-7.018, and 6C1-7.048, Florida Administrative Code, for conduct alleged as follows: Abusing the faculty member-student relationship; Fostering, by example, an environment in which substance abuse is promoted to students whom Respondent supervises; Creating a hostile learning environment; and Retaliation in the course of a sexual harassment investigation.
Findings Of Fact In order to resolve the legal issues herein, it is not necessary to relate all the evidence taken, to relate the stipulated facts verbatim, or to record the entire sequence of events and all the opinions various witnesses expressed of one another. Accordingly, and in accord with Section 120.57(1), Florida Statutes, only material findings of fact have been made.3 In doing so, effort has been made to reconcile the witnesses' respective testimony so that all witnesses may be found to speak the truth, but where conflicts existed, the credibility issue has been resolved on the characteristics listed in Standard Jury Instruction, (Civil) 2.2b.4 Respondent was initially hired at UF on July 17, 1992, in a non-permanent position as a Research Scientist, at its main campus in Gainesville, Florida. Beginning April 1, 1997, and at all times material, Respondent was employed on the main campus as a non-permanent Assistant Professor in the Institute of Food and Agriculture Sciences (IFAS), Department of Fisheries and Aquatic Sciences, at UF. As such, Respondent was assigned teaching, research, and extension duties that include teaching undergraduate and graduate courses and mentoring students. Respondent did not hold tenure, but was in a tenure-earning status for nine years. Respondent is an ichthyologist and was employed in the specialized academic field of wildlife conservation genetics, within a limited professional community comprised of only approximately 100 professionals in the United States. Students, graduate students, and colleagues of Respondent understand that this is a tight-knit professional community and that Dr. Robert Chapman of the University of Charleston, South Carolina, is part of that "elite 100." As with any profession, networking is important to students' career paths. Anna Bass was never a UF student or a student of Respondent. However, she was directly employed by UF from March 1995 to the summer of 2000, as Respondent's lab manager. She worked for Respondent elsewhere prior to that period and has known him since approximately 1992 or 1993. As Assistant Professor, Respondent served as the Major Professor and Thesis Committee Advisor for UF graduate students Joel Carlin, Alicia Pearce, and Luiz Rocha. Currently, and at all times material, Joel Carlin was enrolled as an IFAS graduate student at UF. Alicia Pearce graduated from the UF-IFAS program in May 2001. Katherine Moore was never Respondent's student and never attended UF. However, Respondent had been on Ms. Moore's graduate thesis committee when she was a student at the University of Charleston. She graduated from that university approximately 1998-1999. Ms. Moore has been employed as a biologist at the National Ocean Service in Charleston, South Carolina, since 1990. The student-professor relationship is based on mutual trust and respect, with the student's best interest at heart, for either undergraduate or graduate students. As major professor and chair of thesis committees, Respondent has substantial power over the career paths of graduate students he has advised. Major professors are expected to serve as mentors to their students, providing guidance and acting as professional role models to assist and mold judgment. They are relied upon by students and former students for future educational, job, and research grant references. The graduate student-major professor relationship persists beyond graduation and often endures for a life-time. Graduates often continue original research in cooperation with their mentors and co-author professional research articles with them. Graduates frequently seek the counsel of their mentors for important professional post-graduate decisions. Among his students and colleagues, Respondent has a reputation for partying. His liquor of choice is tequila. He has held what are called "late night lab sessions" with his graduate students in off-campus Gainesville music clubs and bars. Student attendance at these "late night lab sessions" are not required, but it is understood they can be helpful for building both rapport and a career. Respondent also entertains, as do other professors, by serving food and alcohol in his home, so that students may meet and network with visiting speakers/ colleagues in their chosen field(s). During a party hosted by Respondent at his home in May of 1997, he served and consumed beer and tequila in the presence of adult IFAS students. He became inebriated at that party. Respondent, Mr. Carlin, and a visiting scientist, met at a music club in Gainesville and drank alcohol together on one occasion. In early June 2001, Respondent attended an informal going-away party for the same colleague at a Gainesville restaurant with Mr. Carlin and Mr. Carlin's undergraduate girlfriend. Alcohol was consumed and at the end of the evening, the three felt too inebriated to drive legally or safely. However, Respondent drove home and did nothing to prevent the others from driving home. Respondent's explanation for this last occasion was that he was under great emotional stress due to his wife's recent miscarriage. Respondent has consumed alcoholic beverages at off- campus locations at least 3-4 times per year with adult IFAS students whom he academically supervised. In 1998, when Mr. Carlin, an adult, was interviewing on the UF Campus at a morning appointment with Respondent for admission to the UF graduate program, Respondent invited him to meet that night, at approximately 11:00 p.m., with Respondent and his graduate students in a Gainesville establishment where they consumed alcohol. Attendance at the bar was not a quid pro quo for admission, and Mr. Carlin never thought it was. Mr. Carlin remained for the meeting and drinking and was ultimately admitted into the program. Respondent considered his invitation to be a friendly opportunity for Mr. Carlin to talk informally with other graduate degree candidates so that all concerned could determine if the fit was right for Mr. Carlin in the program he wanted to pursue at UF. Mr. Carlin did not object to the drinking, but he felt the late night hour was inconvenient, since he had expected to leave town after his morning interview, and unprofessional, since he never got to discuss dissertation ideas at that time with Respondent. Once, when Respondent had been in Charleston, South Carolina, helping Ms. Moore "finish up [her] Masters," they were at a post-reception party in Respondent's motel room. Other guests were drinking alcohol and smoking pot (marijuana). Dr. Robert Chapman was also present. Respondent and Dr. Chapman settled which of their names should appear first on a jointly- authored professional publication with a "tequila bottle toss." Each professor-author tossed an empty tequila bottle into the motel swimming pool from the motel room balcony. The man whose bottle hit closest to the pool's center, won. The date of this event is not clear, but apparently it occurred while Respondent was employed by UF. There is no reason to suppose UF students were present. Respondent has possessed liquor at off-campus professional conferences in the presence of adult UF students for whom he had some academic responsibility. Several years ago, at a professional reception held for Respondent, he autographed the closure strap at the back of the bra worn by a non-UF undergraduate female, approximately nineteen years old, who was flirting with him in the presence of Ms. Moore. Ms. Moore described the young woman as someone attending her first professional conference who was in awe of Respondent as a "star" in their field. Respondent admitted to making sexually suggestive witticisms to the undergraduate female at the time. No one took him seriously or was offended. Respondent has repeatedly possessed or smoked marijuana, a controlled substance under Florida law, in the presence of others with whom he was professionally associated.5 Use or possession of marijuana on campus offends UF's "drug-free policy." Use or possession of marijuana by a UF faculty member or student anywhere is considered "disruptive behavior" subject to UF discipline. See Rules 6C1-1.008(1)(m) and 6C1-7.048(1)(n), Florida Administrative Code, and the following Conclusions of Law. In June 2001, Respondent used marijuana at Mr. Carlin's house with Mr. Carlin and Mr. Carlin's live-in undergraduate girlfriend present. Respondent's explanation for this was that he was under great emotional stress due to his wife's recent miscarriage. Ms. Moore has observed Respondent smoke marijuana in the presence of students at most of the off-campus professional meetings they have attended over the years from 1992 to the present, but the students she referred-to probably attended universities other than UF. Ms. Pearce has observed Respondent smoke marijuana in the presence of UF students approximately 15 times. She did not specify the locations as on- or off-campus. While she was his student and in his UF office, on the UF campus, Respondent showed Ms. Pearce a "highlighter" pen that he carried in his pocket, which pen had a false bottom for hiding a stash of marijuana. Ms. Bass has smoked marijuana with Petitioner multiple times. She did not specify the location(s) as on- or off- the UF campus. In July 2001, Alicia Pearce was 29 years old. During her UF graduate studies, Respondent had been her major professor and thesis committee advisor. She had received her Master's Degree diploma from UF on May 5, 2001, and UF could not require her to complete any further requirements. (See Finding of Fact 8.) However, according to Dr. Richard Jones, UF Dean of Research, it was expected that after award of their degrees, former graduate students would place their theses in reviewed (preferably peer-reviewed) publications. Respondent had agreed that Ms. Pearce could present her thesis after graduation, due to her relocation to North Carolina. In order to present her paper after graduation, Ms. Pearce submitted her research paper abstract and her registration papers and fees for the American Society of Ichthyologists and Herpetologists (ASIH) Conference in February, 2001, before her graduation from UF. The conference was scheduled to be held on July 5-10, 2001, at State College, Pennsylvania (Penn State). Respondent also attended the July 5-10, 2001, ASIH Conference in the capacity of a UF-IFAS faculty member to, among other purposes, mentor his graduate students, Pearce, Carlin, and Rocha, all of whom were presenting papers at the conference. Respondent was not required to request leave, and did not request leave, from UF to attend the conference. He was on salary from UF while at the conference. Respondent was entitled to request a travel reimbursement from UF, as did Mr. Carlin, but elected not to do so. Respondent has attended the ASIH Conference approximately four times while employed by UF-IFAS. At the 2001 ASIH Conference, Ms. Pearce roomed in a dorm with Luiz Rocha. On July 6, 2001, Respondent used his credit card to purchase dinner and alcoholic drinks at a restaurant/bar in the Penn State Conference Center Hotel for a group of adult colleagues and adult students, including Carlin, Pearce, and Rocha. The ASIH Conference was being held in the hotel. The hotel was considered part of the Penn State campus. During dinner, Respondent made a sexually suggestive comment to Ms. Pearce, who was the only female present, and remarked that it could not be sexual harassment because she was no longer his student. Neither Ms. Pearce nor anyone else took him seriously or was offended. After dinner, Petitioner invited Ms. Pearce to his hotel room, along with another senior colleague, to discuss a tip Respondent had received several weeks earlier that a UF student had fabricated research. Respondent wanted the senior colleague's advice. He wanted Ms. Pearce's perspective because she had been in the lab during a relevant period of time. Their conversation in Respondent's hotel room lasted about an hour. During this period of time, marijuana was present in Respondent's hotel room. Respondent did not admit to bringing the drug with him to the conference, but the fact that marijuana was present in Respondent's hotel room means the contraband drug was in his constructive possession. Respondent admitted holding, sniffing, and/or smoking6 a "token toke" in the hotel during the dates of the 2001 ASIH Conference, and apparently in the presence of Ms. Pearce and the adult colleague. Marijuana use or possession is contrary to Penn State University's drug-free policy and rules. Respondent, his colleague, and Ms. Pearce next attended the official conference reception downstairs in the hotel. Alcohol was served and consumed. Later the same evening, Respondent and Ms. Pearce returned to his hotel room. Both had already drunk a great deal of alcohol and proceeded to drink more. They were observed alone together in the hotel room by Mr. Carlin, whom they sent away. Ms. Pearce became further inebriated during a long conversation with Respondent, which included discussion of her fear of doing the professional presentation coming up at the conference, past lab work, and intimate details of their respective married lives. She then passed out in the bathroom. Respondent knew Ms. Pearce was already partially inebriated and vulnerable before he took her to his hotel room, because she had begun to cause a scene at the conference's reception. Respondent also knew she had a history of irresponsible behavior with regard to alcohol because in May 2000, she and Mr. Carlin, high on alcohol, had telephoned Respondent's home repeatedly at approximately 2:00 a.m., in the morning. They then drove, in that condition, to Anna Bass's house, where they "crashed" for the night. Thereafter, Respondent had told them he was distancing himself from them; told them they should never call him again at that hour; and gave them extra lab work. On July 6, 2001, Respondent assisted Ms. Pearce from the hotel bathroom into one of his hotel room beds. It is undisputed that the couple then kissed and groped each other. Respondent's and Ms. Pearce's versions of what happened next, or how long it took, are fairly similar. Where they differ, the undersigned has balanced Ms. Pearce's candor and demeanor or lack thereof while testifying, her past experiences with marijuana and excessive use of alcohol, her expressed intent to go to the ASIH Conference with the purpose of indulging in heavy drinking, and her inability to recall the evening's events in sequence or in detail, against Respondent's testimony, which is discredited in part by his prior inconsistent statements and admissions. Having assessed their respective versions, it is found that: Respondent removed or dislodged Ms. Pearce's shirt and bra. Their groping progressed to Respondent's massaging Ms. Pearce's breasts and the two of them mutually massaging each other's genitals. At that point, Respondent broke it off and removed himself from the bed. Ms. Pearce then turned over and passed out or went to sleep. Respondent then went to sleep in another bed. About 4:00 a.m., Ms. Pearce awoke, dressed, and left the room, but since the shuttle bus had left, she was unable to return to her dorm. Respondent followed her to the lobby. She wanted to know if they had had intercourse. Respondent felt he was very clear in stating that no intercourse had occurred. However, Respondent's answer seemed non-specific to Ms. Pearce and did not satisfy her that intercourse had not occurred. She was very concerned, because she and her husband had been trying to conceive a child. However, she allowed Respondent to persuade her to return to his room to talk until 7:00 a.m., when the shuttle began to run again, and she then left the hotel. Respondent explained the July 6, 2001, sexual incident with Ms. Pearce as his being emotionally unstable due to his wife's recent miscarriage. Ms. Pearce did not say anything more to Respondent about their sexual incident until later on July 7, 2001, when she asked him not to tell anybody. He agreed that there was "no use in other people getting hurt." They behaved normally to each other in public throughout the next several days and were not alone together. Respondent helped Ms. Pearce prepare to present her paper later that weekend, and she did well for her first presentation on July 10, 2001. She presented Respondent with an autographed copy of her completed thesis after her presentation. The dedication warmly expressed her thanks to him for his mentorship of her. On Tuesday, July 10, 2001, the last day of the conference, after her presentation, Ms. Pearce also filed a criminal complaint with the Penn State University Police Department, alleging Respondent had sexually assaulted her. Respondent was confronted by two police officers and questioned extensively. He cooperated and provided a statement and blood for a blood test. He was not arrested or charged. Back in Gainesville, Respondent spoke to Mr. Carlin by telephone on July 13, 2001. Upon Respondent's inquiry, Mr. Carlin stated that he had learned of the Penn State investigation from Ms. Pearce when he drove her to the airport on July 10, 2001. Both Respondent and Mr. Carlin agreed Mr. Carlin had no first-hand knowledge of the situation. Respondent advised Mr. Carlin to stay way clear of the situation. On Monday, July 16, 2001, Respondent again spoke with Mr. Carlin by telephone. On that date, Respondent told Mr. Carlin that Mr. Carlin's and Luiz Rocha's names had also been of interest to the Penn State Police. Because Respondent said, "How would you like to be accused of rape?" Mr. Carlin could have interpreted this conversation as a threat. He did not. On July 22, 2001, Dr. William Lindberg, Respondent's Department Chairman, submitted his evaluation of Respondent's academic performance for the 2000-2001 academic year, which rated Respondent as overall "exemplary." This was a precursor to Respondent's getting tenure. Dr. Lindberg did not know about the events of the 2001 ASIH Conference when he submitted the evaluation. It is undisputed that Respondent is a "star" in "the elite 100," has published widely, is a popular professor, and has obtained valuable research grants for UF. On July 23, 2001, Ms. Pearce filed a complaint regarding Respondent with UF-IFAS. It was categorized as "sexual harassment." The investigation was cloaked in confidentiality. At the time of his July 13 and 16, 2001, telephone conversations with Mr. Carlin, Respondent could not have known that UF would be investigating him. On August 6, 2001, Ms. Pearce was interviewed by the UF investigator. On or about August 6-8, 2001, Mr. Carlin was interviewed by, and/or provided chronological notes to, the UF investigator and Dr. Lindberg. On August 8, 2001, Ms. Moore was interviewed by the UF investigator and related the "signing of the bra strap" event. On August 16, 2001, Respondent met with Dean Cheek, Dean Jones, Chairman Lindberg, and the investigator. Respondent saw notes on, or was made aware of, all or some of the statements made by those interviewed. He was informed that he probably would be terminated. He also was instructed to be circumspect and respectful in dealing with the situation and potential witnesses. Respondent and Dr. Lindberg shared a car back to their department after this meeting. On the ride, Respondent asked Lindberg what he should do about the paper he was co- authoring with Pearce. Lindberg told him that if he did not have much invested in it, the high ground was to step away. Lindberg did not recall Respondent's also asking what he should do about papers he co-authored with Carlin and Moore. Mr. Carlin was interviewed by Dr. Lindberg and the investigator again after Respondent met with the Deans. At hearing, Ms. Pearce presented speculations, but no credible evidence, that Respondent had done, or planned to do, anything to her in retribution for her sexual harassment charge. As of the disputed-fact hearing, Respondent had not removed his name from their joint paper. On August 17, 2001, Respondent telephoned Ms. Moore and told her to remove his name from the publication they had recently co-authored and were preparing for publication. He asked her never to contact him again because it was painful for him to talk to someone who told stories about him and he was tired of her complaints about her employer, who was a friend of his. Ms. Moore considered Respondent's telephone call to constitute her "professional excommunication." Respondent's withdrawal of his authorship created an awkward situation for Ms. Moore that necessitated her sending a letter of explanation to the publisher to clarify that Respondent's withdrawal was not due to a disagreement regarding her research results. The paper will be published anyway. Ms. Moore contacted Chairman Lindberg on August 23, 2001, and complained about Respondent's action and expressed her fear of further professional reprisals from Respondent. Dr. Lindberg agreed that if the withdrawal of Respondent's name became an issue with the publisher, he would write to the publisher for Ms. Moore and explain the situation in general terms. On August 14, 2001, Anna Bass was interviewed by the UF investigator. On August 19, 2001, Ms. Bass sent an e-mail message to Mr. Carlin which amounted to a diatribe against him and Ms. Pearce for speaking to the UF investigator. On August 28, 2001, a Notice of Proposed Dismissal was issued against Respondent by UF. On September 14, 2001, after learning that Respondent's dismissal had been proposed, Ms. Bass contacted Chairman Lindberg and charged Mr. Carlin with sexual harassment against her which allegedly occurred more than a year previous, when he and Ms. Pearce "crashed" at her home. (See Finding of Fact 34.) Ms. Bass denied that Respondent put her up to filing these belated charges. Respondent denied asking anyone to retaliate against, or speak to, Mr. Carlin for the purpose of preventing or altering the information Mr. Carlin gave in interviews with the UF investigator or UF authorities or to discredit his information. Respondent further testified that he did not ask Dr. Robert Chapman to author any correspondence related to the investigation. However, he admitted discussing his situation under the sexual harassment charges with Dr. Chapman. Respondent had problems with Mr. Carlin previous to the current investigation. On one occasion, he had to request that Mr. Carlin not annoy his female lab assistant. Respondent had previously disciplined Mr. Carlin for making annoying late night telephone calls to Respondent's home. (See Finding of Fact 34.) At the 2001 ASIH Conference, Respondent had approached Mr. Carlin about whether Mr. Carlin wanted to remain in competition for the Stoye Award, because of some concerns over the eligibility of his research. Mr. Carlin and Respondent have different understandings of what was involved in this discussion, but Mr. Carlin did not remove his name and Respondent did not interfere with that choice. Mr. Carlin went on to win the prestigious award. Some other members of "the elite 100" had also had a problem with Mr. Carlin concerning access to a limited supply of endangered species samples he and another graduate student needed. Mr. Carlin and the other researcher were in a race to publish their respective dissertations first. Dr. Robert Chapman was aware of the controversy. On Friday, September 14, 2001, after hearing about Respondent's proposed dismissal from employment, Dr. Chapman and Respondent had a telephone conversation during which they discussed Mr. Carlin. Respondent expressed his frustration at the complaint filed by Ms. Pearce and accused her of "filing false claims" against him. Respondent stated that Ms. Moore had made an unflattering anecdote and "contributed a story that portrayed [Respondent] in a negative light." Respondent also stated that Mr. Carlin had alleged that Respondent had harassed him. Dr. Chapman was then critical of the "ethics" of Mr. Carlin and described him as "shiftless." On Friday, September 14, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin expressing anger and shame and stating in part that, "I fear that your career is in severe jeopardy. No one I have talked to will hire you after this." These comments of Dr. Chapman were directed to the rare species sample controversy but mixed in with a diatribe about Respondent's situation, as if they were part of the same complaint. On Saturday, September 15, 2001, Dr. Chapman sent an e-mail message to Jimmy Cheek, UF-IFAS Dean of Academic Programs, accusing Mr. Carlin of aiding and abetting a shameful assault upon Respondent and questioning Mr. Carlin's "honor and integrity," referring to Mr. Carlin as "a slimy worm." In this same e-mail, Dr. Chapman stated that "Ms. Moore is a thief," and a radical feminist who was out to get Respondent. Apparently, Dr. Chapman sent a similar missive to Dean Jones. Respondent had provided the deans' names to Dr. Chapman and did not dissuade him from writing them. On Sunday, September 16, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin, apologizing for writing him in anger but not for what he had written to him on September 14, 2001. He told Mr. Carlin that his "first allegiance is to the professor" and advised him that "[I]nterviews with administrators are not an obligation. You have the right to decline and only the courts can force it." Dr. Chapman also stated that Mr. Carlin should talk with Respondent "about whether he should continue to serve as your professor" and further advised him to "take a low profile." While stating he would not circulate rare species sample rumors beyond those persons who knew of the rare species sample controversy before, and that he would be professional if asked about Mr. Carlin's competence, Dr. Chapman also stated he would volunteer nothing for Mr. Carlin. Dr. Chapman is a former employment supervisor of Mr. Carlin who strongly recommended him for admission to UF's graduate school on December 16, 1997. Mr. Carlin now feels he is unable to list Dr. Chapman as a reference because he questions Mr. Carlin's intellect and moral character and will accordingly give Mr. Carlin bad references rather than good ones. Mr. Carlin has great concern that Respondent has ostracized and vilified him for his role in the UF complaint review process. Mr. Carlin informed Chairman Lindberg that he fears his career is over and he has lost his place in his chosen academic field. Mr. Carlin also speculates that Respondent will now attempt to have his Stoye Award revoked, but there is no evidence Respondent has made any move in that direction to date. After Mr. Carlin was interviewed in the complaint review process, Respondent substituted his name for Mr. Carlin's name as the "corresponding author" on one of their current joint research publications which had been pending since June. He did not remove Mr. Carlin's name as first author. Changing the name of the corresponding author is not an unusual occurrence with regard to academic publications. In this case, it may benefit Mr. Carlin in getting published, because Respondent is friends with the publisher. However, the effect of the name-switch is that Mr. Carlin has lost control over the correspondence, putting Respondent in a position to delay or take the publication out of sequence for printing, if he chooses to retaliate against Mr. Carlin. On September 18, 2001, a Predetermination Meeting was held at Respondent's request. On October 8, 2001, UF issued its decision to dismiss Respondent effective October 10, 2001. Even after termination, sometime in December, 2001, Respondent was cooperating with input for a second publication he and Mr. Carlin co-authored. He has, however, begun to investigate the data behind Ms. Pearce's and Mr. Carlin's papers presented at the 2001 ASIH Conference. According to Chairman Lindberg, who testified by deposition, Respondent breached his professional ethics and student mentoring responsibilities by his behavior at the ASIH conference with Ms. Pearce. According to Dean Jones, Respondent's conduct at the ASIH Conference was contrary to UF-IFAS expectations of a responsible faculty member's interactions with students and abused the faculty member-student relationship.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the University of Florida enter a final order ratifying its termination of Respondent effective October 10, 2001. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2002.
The Issue Whether Petitioner’s substantial interests are affected by the decision of the Nassau County School Board (School Board) to eliminate her paraprofessional position, and whether the School Board’s decision to terminate her was lawful.
Findings Of Fact Based upon the stipulation of the parties, as recited in their Joint Pre-hearing Statement, and the Stipulated Record submitted by the parties, the following facts are found: Respondent was an educational support employee for Petitioner from the 1999-2000 school year through the 2017-2018 school year, during which time she received annual performance evaluations of satisfactory or higher. Her evaluation for the 2017-2018 school year, signed by her supervisor on April 6, 2018, recommended another evaluation in 12 months. Respondent’s position is covered by the Collective Bargaining Agreement Between the School Board of Nassau County, Florida, and the Nassau Educational Support Personnel Association (CBA), which provides in Article VII(C): “Upon completion of the probationary period as provided herein, and during the term of the employee’s normal work year, he/she shall not be terminated except for just cause.” Respondent became a post-probationary employee in August 2000. Respondent worked as a paraprofessional assigned to the guidance department of West Nassau High School (WNHS) from at least the 2011-2012 school year through the 2017-2018 school year, not as an instructional paraprofessional. In April 2018, WNHS Principal Curtis Gaus met with Respondent and told her that her position would be phased out as of the end of the 2017-2018 school year. Principal Gaus did not state that Respondent’s position was being terminated for a reason stated in the CBA, nor that Respondent’s employment was being terminated due to districtwide layoffs made for financial reasons. Respondent was not given written notice that her employment was being terminated for reasons outlined in the CBA, nor was she terminated for any such reason. Respondent was not relieved of her duties at the end of the 2017-2018 school year as part of a reduction in the number of employees on a districtwide basis for financial reasons. Superintendent Burns has never recommended to Petitioner that Respondent be terminated for just cause or for any other reason, nor has Petitioner itself taken official action to terminate Petitioner’s employment. Petitioner did not file a petition to terminate Respondent’s employment, stating the specific reasons Respondent was being terminated, or otherwise comply with the requirements of Florida Administrative Code Rule 28-106.2015. Respondent did not pursue arbitration or file a grievance, as permitted under the CBA. Petitioner has not identified what specific provision of the CBA Respondent could identify to support a grievance, if filed. The parties stipulated to the existence of certain portions of the CBA, but did not provide context that informs the scope of some of the provisions cited. Of particular relevance to this proceeding are the provisions contained in Article IV (Grievance Procedure); Article V (Vacancies, Transfers and Reduction of Personnel); and Article VII (Discipline of Employee). The pertinent portions of each are quoted below, with those portions to which the parties stipulated designated by italics, and those provision determined by the undersigned to be particularly relevant designated by being underscored. Article IV provides, in pertinent part: ARTICLE IV – GRIEVANCE PROCEDURE GENERAL The purpose of this procedure is to secure, at the lowest possible administrative level, resolution of any dispute which may arise concerning the proper interpretation and application of this contract. Both parties agree that these procedures will be kept as informal and confidential as may be appropriate at any level of the procedure. 1. Time limits. The time limits as called for herein shall be considered the maximum time limits to be used for grievance processing. Extensions may be granted by mutual agreement at level one or two. Each party shall attempt to expedite grievance processing. * * * 4. Processing. Grievances not timely filed or processed to the next step by the grievant, shall be considered settled. Grievances not timely responded to shall permit processing to the next step. * * * 6. Requirements. a. A grievance shall be filed in a timely manner and shall be an alleged violation, misapplication, or misinterpretation of a specific article or section of this Agreement. . . . * * * Procedures * * * 4. Step III Step III (Mediation of Termination) a. If the subject of the grievance is termination as the result of unsatisfactory evaluation [See Article VII section F] and the grievant is dissatisfied with the response at Step II or if no response is timely given, the grievant may, within ten (10) working days, notify the office of the Superintendent using the district’s grievance form, that s/he is requesting grievance mediation by the Federal Mediation and Conciliation Service (FMCS). * * * Restrictions and Limitations Evidence not produced in Step I or II by a party shall not be offered in mediation. The judgment of the evaluator leading to the rating shall not be mediated. However, the process may be subject to review. The mediator shall not have the power to recommend an addition to, subtraction from, or alteration of the terms of the agreement or to recommend the alteration of the evaluation results of the grievant. The mediator shall only have the authority to mediate the termination issue presented for mediation by the parties and shall not have the power or authority to create or alter the issue of the parties or the issue as perceived by each party. The employment of the grievant shall not be extended beyond the end of the contract year as the result of the time required for the grievance and mediation procedure. The final results of the mediation process shall be presented to the School Board for its final decision. The decision of the School Board shall be final unless appealed by the grievant to Step III B, Binding Arbitration. Step III b (Binding Arbitration) a. 1) If the grievant is dissatisfied with the response at Step II or if no response is timely given, the grievant may within ten (10) working days notify the Superintendent using the District’s grievance form, that the grievance is being arbitrated. * * * e. Restrictions and Limitations of Arbitration Evidence not produced in Step I or II by a party shall not be offered in Arbitration. The Arbitrator shall not have the power to add to, subtract from, or alter the terms of the grievant. In the case of a termination grievance the arbitrator shall not have the power to extend employment beyond the term of the affected employment year for the grievant’s classification. (emphasis added). Article V of the CBA addresses Vacancies, Transfers and Reduction of Personnel. The relevant sections provide as follows: F. Reduction in Personnel Reduction in force shall take place when the Superintendent of Schools: Announces that a reduction in force is to take place. Determines and announces the type of reduction to take place as: System-wide Building-wide Departmentally Any combination of 1), 2), and 3) herein by title and/or position Notifies any employee or employees that an employee or group of employees is being dismissed under this provision. Finally, Article VII of the CBA addresses discipline of employees. It provides in pertinent part: A person employed after the effective date of this Agreement shall serve a probationary period of 365 calendar days. During such probationary period he/she serves at the pleasure of the Board and may be disciplined and/or terminated at the discretion of the Board without further recourse. Upon completion of the probationary period and during the term of the employee’s normal work year, he/she shall not be terminated except for just cause. Provided that in lieu of termination and with the written consent of the employee, the employee may be returned to probationary status. The judgment of the evaluator in the performance appraisal of an employee shall not be subject to the grievance procedure of this Agreement. In the event a non-probationary employee is terminated as a result of unsatisfactory evaluation, such termination shall be subject to the grievance procedure of this Agreement. 1. The Board/Superintendent reserve the right to take disciplinary action, up to and including dismissal, against any employee based on the seriousness of the offense and the employee’s record. The CBA does not address non-renewal of year-to-year employees outside the context of discipline or a reduction in force announced by the Superintendent. Article XII of the CBA provides that the CBA “shall supersede any rules, regulations or practices of the Board which will be contrary to or inconsistent with the terms of this agreement.” It does not by its terms supersede any rights created by statute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Nassau County School Board enter a final order reinstating Respondent to her prior status as a non-probationary educational support employee with back pay and all other lost benefits she would have received had she not been improperly terminated. DONE AND ENTERED this 9th day of September, 2019, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 9th day of September, 2019.
The Issue The issues for determination are: (1) did the College of Central Florida (“CCF”) commit an unlawful employment practice by discriminating against Petitioner on the basis of age and/or sex; and (2) did CCF unlawfully retaliate against Petitioner by firing her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Howell began working in CCF’s lawn maintenance department on August 17, 2015. She worked 25 hours a week performing activities such as removing weeds, picking up debris, and maintaining the flower beds around CCF’s campus. CCF’s lawn maintenance department consisted of approximately 20 people, but Ms. Howell was the only female. At the time of the final hearing, Ms. Howell was 67 years old. Tommy Morelock, CCF’s director of facilities, made the decision to hire Ms. Howell. Ms. Howell claims that her co-workers mistreated her. For example, she asserts that there were at least three occasions when co-workers intentionally drove a four-wheel drive vehicle or a pickup truck into a golf cart driven by her. Another alleged incident involved a co-worker running a finger down her neck. In addition, Thomas Smith supposedly “flipped her off” on numerous occasions throughout her tenure at CCF and referred to her as a “f***ing c*nt.” In approximately August of 2016, after a co-worker allegedly used a vehicle to strike a golf cart driven by Ms. Howell, her fiancée, Newell Melton, called CCF in order to lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke with Katherine Hunt, one of Mr. Morelock’s subordinates and CCF’s manager of facility operations and construction projects. Ms. Hunt met with Ms. Howell soon afterward about these alleged incidents. Ms. Howell also described how her male co- workers would grab themselves between the legs. However, Ms. Howell did not indicate that those actions were directed toward her. Ms. Howell did not mention any improper conduct by Thomas Smith during her meeting with Ms. Hunt. In late 2016 or early 2017, Ms. Howell also met with Mark Sakowski, another of Mr. Morelock’s subordinates and CCF’s manager of plant safety and facility operations, about one of the vehicle incidents. Mr. Sakowski told Ms. Howell that he would talk to the co-worker in question and asked her to bring any future issues to his attention. Ms. Howell did not mention anything to Mr. Sakowski about Thomas Smith directing obscene gestures toward her. After the meeting, Mr. Sakowski spoke to employees within the lawn maintenance department about professionalism, safety, and having respect for others. Ms. Howell never filed a formal complaint with CCF about her co-workers’ alleged misconduct. At Mr. Morelock’s request, Ms. Howell met with him and Caroline Smith, CCF’s equity officer, on June 7, 2017, to discuss her complaints. During this meeting, Ms. Howell described: (a) how her co-workers would drive vehicles into golf carts she was occupying; (b) the incident in which a co-worker ran a finger down her neck; and (c) a rumor among her co-workers that she was planning to file a sexual harassment complaint. As CCF’s equity officer, Ms. Smith is responsible for investigating student and employee claims of discrimination or harassment. After hearing Ms. Smith’s description of the alleged incidents, she concluded that the allegations involved inappropriate “horseplay” rather than age and/or gender-based discrimination. She then explained CCF’s employee complaint procedure to Ms. Howell, but Ms. Howell declined to initiate a formal complaint. Ms. Howell did not mention Mr. Smith’s alleged misconduct during her meeting with Mr. Morelock and Ms. Smith. In a memorandum dated June 7, 2017, and addressed to Ms. Howell, Mr. Morelock wrote the following: As discussed in our 11:00 AM meeting today with the College Equity Officer, Mrs. Smith, to address your complaints regarding horseplay in the workplace, rumors, and possible harassment, I have met with the 3 employees in your complaint and have addressed these issues. Please let me know immediately if there are any further incidents or if you have any additional concerns. Mr. Morelock noted in the memorandum that Ms. Hunt, Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received a copy of Mr. Morelock’s memorandum shortly after their meeting. At approximately 12:30 p.m. on July 19, 2017, Ms. Howell was nearing the end of her workday and driving a golf cart. She crossed paths with a vehicle driven by Mr. Smith and noticed in her rearview mirror that Mr. Smith was directing an obscene gesture toward her.2/ Ms. Howell proceeded on her way to leaving the CCF campus. However, she reversed course and, with the assistance of another co-worker, spent approximately ten minutes driving around the CCF campus looking for Mr. Smith. Upon finding Mr. Smith at the back of the CCF campus planting junipers, Ms. Howell exited the golf cart and angrily told Mr. Smith to stop directing obscene gestures toward her. According to Mr. Smith, Ms. Howell went into a “tirade.” After confronting Mr. Smith, Ms. Howell left the campus without reporting this new incident to any supervisors. As far as she knew, none of the pertinent supervisors were available. Mr. Smith felt threatened and immediately sought out Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that he stop spreading rumors about her, and Ms. Howell supposedly stated that CCF, Mr. Smith, and Mr. Smith’s wife “would be sorry.”3/ Rather than obtaining Ms. Howell’s version of the confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock, who was on vacation at the time. Mr. Morelock recommended that they confer with CCF’s director of Human Resources and authorized them to resolve the matter as they saw fit. Mr. Sakowski and Ms. Smith called Ms. Howell on July 21, 2017, and notified her that she had been fired. The only explanation given to Ms. Howell was that she did not work well with supervisors and co-workers. Mr. Sakowski explained that he was concerned about his staff’s safety and that of CCF’s students: We take safety very seriously on the campus. And in this day and age with mass-casualty and active-shooter scenarios, we practice these drills on campus on an annual basis. And it did scare me that -- I did not want it [to] make national news. Mr. Sakowski was also concerned by the fact that Ms. Howell confronted Mr. Smith rather than reporting his obscene gesture to a supervisor: Instead of coming back onto campus after leaving her shift, she should have come into the building and either got myself or Ms. Hunt at that time and explained what had just happened instead of taking matters into her own hands. Because Mr. Morelock’s memorandum to Ms. Howell directed her to “[p]lease let me know immediately if there are any further incidents or if you have any additional concerns,” Ms. Hunt considered Ms. Howell to be insubordinate when she confronted Mr. Smith on July 19, 2017.4/ This was the first disciplinary action that CCF had taken against Ms. Howell. Since being fired by CCF, Ms. Howell has unsuccessfully applied for two positions, a greeter at a hospital and a landscaping technician at a local cemetery. While she considers herself to be retired, Ms. Howell is still looking for employment. Ultimate Findings Ms. Howell persuasively testified that Mr. Smith directed an obscene gesture toward her on July 19, 2017. However, the preponderance of the evidence demonstrates that CCF did not know nor should have known that Mr. Smith directed obscene gestures and/or language toward Ms. Howell. While Ms. Howell consistently testified that she did not discuss Mr. Smith’s conduct with Mr. Sakowski or Ms. Hunt, she gave conflicting testimony as to whether she reported Mr. Smith’s conduct to Mr. Morelock during their meeting on June 7, 2017. In contrast, Carol Smith, CCF’s equity officer, persuasively testified that Mr. Smith’s conduct was not discussed during that meeting.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2019.
The Issue Whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Madison County School District is a school district which consists of eight schools, serving approximately 2600 students. It employs approximately 400 people. Since 2012, Doug Brown has been the Superintendent of Schools for Madison County. Willie Williams is Respondent’s Chief Operations Officer. As part of his duties in that position, he serves as the head of the Human Resources Department, and is involved in the screening of applicants for positions within the district. He also serves as the human resources equity officer with responsibility for ensuring that the district’s procedures are followed in employment interviews and that all interview questions are asked in the same order and manner for all employment candidates. As an employer, Respondent established standard hiring procedures which included procedures for the advertising, screening, and interviewing for all open positions within the district. As part of such procedures, all applications for open positions with Respondent are screened by a screening committee prior to any interview by the Respondent. During screening, the committee reviews every application for completeness and for compliance with the requisite experience and certifications required for that position. Only those applicants who were determined by the screening committee to possess the requisite experience and certification and whose applications are determined to be complete are granted an interview with Respondent. Respondent also had a policy which prohibited retaliation and discrimination on the basis of gender. The policy provided a procedure for a complaint to be made by any person who believed they were a victim of retaliation or discrimination. Petitioner, who is male, is a former employee of Respondent. During his prior employment with Respondent, Petitioner was employed in a variety of positions until June 2012, when his annual contract expired and was not renewed. Following his non- renewal, Petitioner filed a Complaint of Employment Discrimination with FCHR, wherein he claimed race discrimination and retaliation. FCHR investigated Petitioner’s complaint and, on February 15, 2013, issued a Notice of Determination finding no cause to believe that an unlawful employment practice had occurred. Petitioner took no further action with regard to this complaint and FCHR’s determination became final. In July of 2013, Respondent had a vacancy for a Dean of Students/Lead Teacher ESE position. Pursuant to its collective bargaining agreement, Respondent first advertised the position internally for three days to current district employees for whom the open position would be a lateral transfer. Respondent did not receive any internal applications. Accordingly, Respondent subsequently advertised the Dean of Students/Lead Teacher ESE position to the public. The required qualifications for the Dean of Students/Lead Teacher ESE position were: Bachelors Degree or higher from an accredited educational institution. Certified in an education field. Minimum of three (3) years teaching experience. Applicant must be certified in ESE. Respondent required that applicants for the Dean of Students/Lead Teacher ESE position hold the general exceptional student education (ESE) certification that is currently offered by the Florida Department of Education. Respondent did not accept any grandfathered special education certifications other than the full ESE certification for this position. There was no evidence that this requirement was discriminatory or retaliatory toward Petitioner.2/ Around this same time, Respondent also had openings for other Dean of Students positions. Unlike the other Dean of Students positions available at the time, the Dean of Students/Lead Teacher ESE position was a hybrid position which would fulfill both the role of Dean of Students, as well as that of ESE teacher. As a result, the Dean of Students/Lead Teacher ESE position for which Petitioner applied required ESE certification while other Dean of Students positions did not. Petitioner, along with 22 other individuals, applied for the Dean of Students/Lead Teacher ESE position. The applicants for the Dean of Students/Lead Teacher ESE position were approximately half male and half female. On his application, Petitioner reflected that he held a varying exceptionalities certification in special education. He also held certification in the areas of driver’s education, law enforcement, mental retardation, and secondary school principal. The applications for the Dean of Students/Lead Teacher ESE position were screened in compliance with Respondent’s established procedures. During the screening committee’s review, the screening committee verified Petitioner’s certification coverage with the Florida Department of Education. The Department of Education confirmed that Petitioner possessed certification in the areas of mental retardation and varying exceptionalities, but did not have the general ESE certification that Respondent required. Based upon Petitioner’s application and the certification report obtained from the Florida Department of Education, the screening committee members agreed that Petitioner did not meet the required qualifications for the Dean of Students/Lead Teacher ESE position and screened him out of the interview process for such position. In fact, several applicants, both male and female, were screened out of the interview process for the Dean of Students/Lead Teacher ESE position due to not being qualified. The only applicants who passed the screening process and were granted interviews for the Dean of Students/Lead Teacher ESE position were those applicants who possessed the full ESE certification. There was no evidence that Respondent’s or the screening committee’s actions in processing these applications were discriminatory or retaliatory against Petitioner. The applicant who was ultimately selected for the Dean of Students/Lead Teacher ESE position was a female who was a current school board employee at the time of her application and who possessed the full ESE certification that Respondent required for the position. After learning that he had been screened out of the interview process for the Dean of Students/Lead Teacher ESE position, Petitioner met with Superintendent Brown and inquired as to why he was screened out of the interview process for such position. The Superintendent indicated to Petitioner that if he was qualified for the position he should have been interviewed and advised Petitioner he would look into the matter. Following such meeting, Superintendent Brown conferred with Willie Williams regarding the screening and interview process for the position at issue. The chief operating officer informed Superintendent Brown that Petitioner did not possess the required full ESE certification and that he was therefore not qualified for the position. After receiving this information, Superintendent Brown concurred that Petitioner was not qualified for the Dean of Students/Lead Teacher ESE position and took no further action in relation to the issue. In July 2013, Petitioner applied for a Dean of Students position with Respondent. This position did not require ESE certification. Eighteen individuals applied for the position. The applications for this Dean of Students position were also screened in compliance with Respondent’s established procedures. Petitioner was determined to be qualified for this position by the screening committee and received an interview. Petitioner, however, was not recommended for the position and the position was ultimately filled by an African American male. Subsequently, Petitioner applied for an open driver’s education position with Respondent for the summer of 2014. This position did not require ESE certification. Likewise, the applications for the driver’s education position were screened in compliance with Respondent’s established procedures. Petitioner was deemed qualified for this position by the screening committee and received an interview. The interview committee recommended Petitioner to Superintendent Brown for this position and Superintendent Brown subsequently presented that recommendation to the School Board. The School Board approved the Superintendent’s recommendation and Petitioner was hired for the position. Petitioner also applied for an Assistant Principal position with Respondent in July 2014. This position did not require ESE certification. The applications for the Assistant Principal position were screened in compliance with Respondent’s established procedures. Petitioner was determined to be qualified for this position by the screening committee and was offered an interview. Petitioner, however, did not respond to Respondent’s attempts to schedule that interview and thus was not interviewed for the position. Ultimately, Petitioner failed to present any evidence to show that he was, in fact, qualified for the Dean of Students/Lead Teacher ESE position or that he was screened out of the interviews for such position for any reason other than his failure to meet the required qualifications. Based on this lack of evidence, the Petition for Relief should be dismissed. Finally, in his Employment Complaint of Discrimination and Petition for Relief, Petitioner alleged that Respondent provided “false and defaming references as further acts of retaliation” and “a negative derogatory reference letter.” However, Petitioner presented no evidence in support of these allegations. To the contrary, the evidence showed that at some point in time, Petitioner requested that Superintendent Brown write a reference letter for Petitioner. Following that request, Superintendent Brown wrote a letter for Petitioner to provide to potential employers which recommended Petitioner for employment and stated that Petitioner had not had any disciplinary issues with Respondent. Given Petitioner’s failure to present any evidence to support his allegations of retaliation, the Petition for Relief should be dismissed
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Rights enter a Final Order finding that Respondent did not discriminate or retaliate against Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of November, 2014, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2014.
The Issue Whether Respondent engaged in discriminatory employment practices, or subjected Petitioner to harassment based on his race, in violation of the Florida Civil Rights Act (FCRA), when, as alleged in the Petition, Petitioner’s supervisor committed a battery against Petitioner with unwanted touching.
Findings Of Fact UWF is a public university within the Florida State University System. See § 1000.21(6)(f), Fla. Stat. Since January 2012, UWF has employed Mr. Lee, an African-American male, as an environmental services technician in the Building Services Department. His employment duties consist of custodial-type work. The Building Services Department is one of UWF’s departments that fall under the supervision of the Facilities Operations Department. 5 Associate Vice President, Administration and Facilities Operations Dr. Melinda Bowers (White Female) Vice President and CFO Dr. Steve Cunningham (White Male) At the time of Mr. Lee’s complaint, his supervisory chain of command, in descending order, was as follows: Director, Materials and Grounds Mr. Myles Sampson (African-American Male) Coordinator, Building Services Ms. Frankie Carlson (White Female) Environmental Services Supervisor Ms. Brenda Rivers (African-American Female) Environmental Services Technician Mr. Billy Ray Lee (African-American Male) The American Federation of State, County, and Municipal Employees (AFSCME) union at UWF represents the environmental service technicians and other employees in the facilities area. Mr. Lee became the president of the AFSCME union at UWF in the fall semester of 2014. Mr. Lee’s Petition focuses on an incident that occurred on May 16, 2017. On that date, Dr. Melinda Bowers conducted, as she did every quarter, a meeting for the environmental services technicians and others in the Building Services Department. When Dr. Bowers mentioned an update concerning an issue with the AFSCME union during this meeting, Mr. Lee interrupted and argued with Dr. Bowers.1/ Dr. Bowers asked Mr. Lee to meet with her after the meeting, or to set up a meeting to discuss his concerns at a different time. Mr. Lee left the meeting room, but returned shortly after the meeting concluded to speak with Dr. Bowers about the AFSCME union issue, or to schedule a meeting to discuss this issue. Dr. Bowers testified that when he returned, Mr. Lee was irate, raised his voice, and was spitting as he spoke. In an effort to calm Mr. Lee, Dr. Bowers briefly touched Mr. Lee on the arm with an “open hand.” Dr. Bowers wanted to understand what Mr. Lee was frustrated about and how she could help. Based on the testimony and evidence presented, Dr. Bowers did not impede or otherwise prevent Mr. Lee from leaving the meeting room. Dr. Bowers and others testified that she was a “touchy person.” The totality of this testimony demonstrated that Dr. Bowers routinely touched other employees in a benign manner, regardless of race or sex. That same day, Mr. Lee filed a report with the UWF Police Department, in which he contended that Dr. Bowers committed a battery against him.2/ Mr. Lee’s report did not indicate that he believed that the Dr. Bowers committed the alleged battery because of Mr. Lee’s race. Rather, it stated, “Dr. Bowers grabbed my arm to get me to continue to talk to her.” UWF Police Sergeant Walter Davis immediately investigated Mr. Lee’s report. As part of his investigation, Sergeant Davis met with all identified witnesses and took statements from each witness. After conducting his investigation, Sergeant Davis found there was a lack of probable cause that a battery occurred. Sergeant Davis’s report also stated: The alleged touching by Dr. Bowers was a form of a communicative gesture that was witnessed by Witnesses. Witnesses also stated Dr. Bowers touching of Lee consisted of an open hand, fingertip touch on his arm. When Dr. Bowers was told by Billy Lee not to touch him, Dr. Bowers ceased touching Lee. On May 16, 2017--and after the incident that formed the basis of Mr. Lee’s police report--Dr. Bowers met with her superior, Dr. Steve Cunningham, and Jamie Sprague of Human Resources, to discuss her concerns with Mr. Lee’s behavior and demeanor that day. During this meeting, the parties discussed that there were other incidents concerning Mr. Lee specifically related to his demeanor or temper that had occurred in the period of approximately one month previously. Those incidents included: April 10-21, 2017: Subcontracted painters that UWF hired complained that Mr. Lee harassed them while working; April 19, 2017: Mr. Lee confronted UWF employee Tiffany Nisenwonger off campus and, with an aggressive tone, told her that he believed there was unfairness at UWF; and May 8-15, 2017: On May 8, 2017, Mr. Lee interrupted a meeting between employees and their supervisors that he was not entitled to attend. On May 9, 2017, Mr. Lee interrupted a meeting between Frankie Carlson and Myles Sampson, and accused Ms. Carlson of illegally recording conversations with employees with her headphones. On May 9 and 15, 2017, Dr. Bowers received letters from UWF employees concerning Mr. Lee’s unprofessional behavior. Based on these incidents, on May 17, 2017, Dr. Cunningham decided to place Mr. Lee on administrative leave, with pay, pursuant to UWF Policy HR 18.02-06/16(5)(i), to allow time for an investigation. During this leave period, UWF prohibited Mr. Lee from entering UWF property without written permission from Dr. Cunningham.3/ Ms. Sprague conducted the investigation, which included a meeting with Mr. Lee to review each of these incidents. On June 8, 2017, Dr. Cunningham informed Mr. Lee, in writing, that Ms. Sprague had completed the investigation, and that Mr. Lee was permitted to return to work on June 12, 2017. Ms. Sprague’s investigation concluded that Mr. Lee violated several aspects of UWF Policy HR-22.00-2004/07 because of his behavior and demeanor. On June 29, 2017, Dr. Cunningham and Dr. Bowers submitted a memorandum to Ms. Sprague, after reviewing Ms. Sprague’s investigative report. Dr. Cunningham and Dr. Bowers found that Mr. Lee repeatedly violated UWF Standards of Conduct in HR-22.00, including: use of poor judgment; insubordination; lying/misleading; threatening or abusive language; and conduct unbecoming a university employee. Dr. Cunningham and Dr. Bowers recommended that UWF suspend Mr. Lee without pay for five working days, and require him to take and complete an anger management course. On June 30, 2017, UWF informed Mr. Lee that it intended to suspend him for five working days without pay, and provided him the right to a predetermination conference. Thereafter, UWF suspended Mr. Lee for five working days without pay. UWF made this decision after Mr. Lee filed his June 7, 2017, charge of discrimination with FCHR. Mr. Lee has not experienced any change in position or title since May 16, 2017. UWF presented evidence that it has awarded Mr. Lee with pay increases on several occasions. Mr. Lee presented no persuasive evidence that UWF’s decision concerning, or actions affecting, him, directly or indirectly, were motivated in any way by race-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race discrimination. Mr. Lee presented no persuasive evidence that UWF’s actions subjected him to harassment based on his race, and that such actions were sufficiently severe or persuasive to alter the terms and conditions of his employment to create a hostile or abusive work environment. There is no competent, persuasive evidence in the record upon which the undersigned could make a finding of unlawful race harassment.
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, Billy Ray Lee, did not prove that Respondent, University of West Florida, committed unlawful employment practices against him by engaging in discriminatory employment practices or subjecting Petition to harassment based on his race, and dismissing his Petition for Relief from unlawful employment practices. DONE AND ENTERED this 18th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 18th day of December, 2018.
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 Whether Respondent, Gordon Food Services, Inc. (GFS), discriminated against Petitioner, Nou M. Wall, based on her race (Asian), gender (female), and age (40) in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact Parties Ms. Wall, a 40-year old Asian female, began employment with GFS as a custodian in the Maintenance Department at the Plant City Distribution Center (Plant City Center) on January 6, 2013. As of the date of the hearing, Ms. Wall remained in this position of custodian. GFS is in the business of distributing food products and supplies to hospitals, schools, and restaurants. It is an “employer” as defined by section 760.02(7), Florida Statutes. GFS has distribution centers nationwide. The Plant City Center worksite is one million square feet. The Plant City Center is staffed by approximately 265 employees. This workforce is diverse, but Ms. Wall is the only Asian woman. Lemonde Rush, an African-American male, is the “Director of Warehouse” at the Plant City Center. He reports to a general manager, but oversees the staff, budget, operations, and safety issues related to the Plant City Center. He is involved in most disciplinary actions, either directly or indirectly, and makes the ultimate decisions regarding staffing, including hiring and terminations. Mr. Jim Reid, a Caucasian male, reports to Mr. Rush. He became Petitioner’s supervisor in January 2014, and has served as a GFS maintenance supervisor at all times relevant to Ms. Wall’s allegations. Mr. Reid is responsible for the maintenance team which is made up of two Maintenance Leads, three parts personnel, eight mechanics, and 13 custodians. Mario Bracero, a Hispanic male, was the Maintenance Lead for Petitioner’s custodial team. Mr. Bracero had no authority to hire, fire, or discipline Ms. Wall. Mr. Bracero reported to Mr. Reid. Mayra Vanacore is the Human Resources (HR) Generalist at the Plant City Center. She reports to E.J. Laviolette, who works at the GFS headquarters out of the state. Ms. Vanacore is in charge of employee relations, including investigations, leave, workers’ compensation, and recruiting and employee training. She does not make any decisions regarding hiring, disciplining, or termination, although she does facilitate and consulate with supervisors regarding these actions. Relevant Policies Although Ms. Wall executed an Acknowledgment of Receipt for an “Employee eHandbook and Code of Business Conduct (with Appendix A - Fraud Policy and Integrity Hotline Brochure),” neither party offered the Code of Business Conduct or the Employee eHandbook into evidence. No equal employment policy, disciplinary policy, anti-discrimination policy, anti-harassment policy, or employee complaint procedure was introduced into evidence. Based on Mr. Rush’s testimony, when GFS receives complaints from one employee against another, he would, if possible, facilitate a face-to-face meeting between the employees. If an employee is uncomfortable meeting with another employee, he would get the complaint in writing. Sexual harassment complaints by GFS employees are turned over to Ms. Vanacore in Human Relations to conduct the investigation if required. Ms. Vanacore keeps these investigations confidential. According to the GFS “Human Practice HR10 Policy” (HR Policy 10), to be eligible for open positions at GFS, GFS employees cannot have a formal documented disciplinary action issued against them within the past six months. Ms. Wall’s Job Duties There are 13 custodians at GFS who work in shifts. The work is divided among the custodians as equally as possible by square footage. As a custodian, Ms. Wall’s job duties involved cleaning tasks in her assigned area such as sweeping, mopping, addressing spills and leaks, sorting trash into plastic and cardboard, and emptying trash bins. GFS also evaluated its employees on Measurable Performance Criteria in the general area of “communication.” For Ms. Wall, these standards involved the handling of cleaning requests made from customers (employees from other departments) in the Plant City Center, including those made over radios. Specifically, included in the communication criteria was an expectation “to maintain a professional demeanor with internal customers, contractors, vendors, co-workers, and leadership.” According to GFS’ witnesses, the cleanliness of the Plant City Center was paramount to its business. GFS is subject to numerous food and safety standards because it distributes food products to commercial (i.e., restaurants) and government-run (i.e., schools and prisons) kitchens. GFS must pass regular periodic inspections and audits by government regulators and private auditors. GFS also keeps extensive documentation regarding its cleaning regiment. This documentation is necessary in case of a food recall or other irregularity so that GFS can show how specific food products were handled and stored. As a result, the custodial staff is constantly monitored and evaluated; their annual compensation is dependent on how GFS rates in these inspections and audits. In addition to her job duties, Ms. Wall was required to wear a GFS uniform and, when appropriate, safety equipment. According to the “Basic Job Performance Expectations” document for Custodial Maintenance employees, Ms. Wall was required to wear safety glasses in designated areas, and while working with chemicals and dangerous tools. Ms. Wall’s Work History and Performance Ms. Wall had perfect attendance, performed her cleaning duties well, and was a reliable employee. She, however, had a history of insubordination and not getting along with her co- workers. In September 2014, Ms. Wall was issued a “Written Notice of Corrective Action” (Corrective Action) for gossiping about her co-workers. Ms. Wall signed the document without comment. On June 24, 2015, Ms. Wall was issued a Corrective Action for Insubordination. As a result, she received a three- day suspension. The disciplinary action was triggered by Ms. Wall failing to wear safety glasses after being instructed to do so. Ms. Wall signed the document and stated she agreed with the terms, but contested additional details in the Corrective Action. On October 29, 2015, Mr. Reid held a coaching session with Ms. Wall regarding the way she answered customer service calls. GFS considered the coaching session a mentoring opportunity and not a disciplinary action, although it was documented by a memorandum and placed in her file. As established by Mr. Reid’s testimony, he counseled Ms. Wall because he had received complaints that she had been rude when answering custodial request calls, and he felt it would help Ms. Wall improve in the area of communications. Subsequent to the counseling session, Mr. Reid did not receive any complaints regarding Ms. Wall’s professionalism on the radio. On January 20, 2016, Ms. Wall received her semi-annual performance review, scoring 750 points out of 800. This is considered a good score. In the January 2016 review, Mr. Reid noted the following regarding work relationships: Michelle, the cooperation levels between you, customers and team members need to improve. * * * [Y]ou have some good qualities that you bring to the team but you also have some qualities that need improvement. . . . [Y]ou have times where you struggle to meet the expectations and lose focus of maintaining healthy relationships. On August 9, 2017, Mr. Rush and Mr. Reid met with Ms. Wall and issued her a Corrective Action (August 2017 Corrective Action) for gossiping and “harassing behavior that is creating an unproductive and hostile work environment for those that have to work with you.” This disciplinary action was issued after Mr. Rush received a complaint from a third-party vendor that Ms. Wall had a conflict with one of its employees (a non-GFS employee), and he had received approximately a dozen complaints from other GFS employees against Ms. Wall within a short timeframe. Ms. Wall also had confrontational interactions with members of the custodial team. Based on these complaints, Mr. Reid interviewed the complainants, obtained written documentation, and drafted the August 2017 Corrective Action with Mr. Rush. Based on the unrebutted testimony of Mr. Rush and Ms. Vanacore, the undersigned finds GFS did receive complaints about Ms. Wall, but makes no finding regarding the substance or veracity of those complaints.1/ The August 2017 Corrective Action was not vetted through Human Relations or Ms. Vanacore prior to being issued to Ms. Wall. The August 2017 Corrective Action also states, Consequences/Actions: Michelle, any future incidents of you making derogatory comments about your peers spreading rumor [sic] or your participation in harassing behavior is totally unacceptable and may be cause for further disciplinary action up to and including separation of employment. Additionally, it warned that if there are any other “additional performance or policy violation issues, you will be subject to further disciplinary action up to and including termination.” Upon receiving the August 2017 Corrective Action from Mr. Rush, Ms. Wall was upset and disagreed with it. In Ms. Wall’s next performance review on March 18, 2018, Mr. Reid instructed her to adhere to the GFS Code of Conduct, avoid gossip, and “challenge yourself to get more involved with your team members and build positive relationship[s] with them.” Other than the three-day suspension in 2015, there was no evidence Ms. Wall lost salary or a bonus for the Corrective Actions, counseling session, or her performance scores. Based on the wording of the Corrective Actions, HR Policy 10, and Ms. Vanacore’s testimony, all of the Corrective Actions made Ms. Wall ineligible for other positions at GFS for six months after they were issued. Therefore, as explained in the Conclusions of Law below, the undersigned finds the Corrective Actions are formal discipline, and constitute adverse employment actions. Based on the same reasoning, Ms. Wall’s counseling session and the performance reviews do not constitute adverse employment actions. Ms. Wall has been a good employee since the August 2017 Corrective Action. In June 2018, Mr. Rush sent Ms. Wall an email indicating she was doing good work in her area. In October 2018, Ms. Wall was offered a change in shifts and work areas, but she declined the move. In her PRO and at the hearing, Ms. Wall argued she suffered from a hostile work environment based on four separate incidents in November 2016, March 2017, May 2017 and August 2017; mistreatment by her superiors; and discriminatory comments from her co-workers. False Accusations GFS falsely accused Ms. Wall twice of violating company policy. The first accusation was for stealing company time in November 2016. Mr. Reid observed Ms. Wall taking a break at an unusual time. When he checked the time clock program to see if Ms. Wall had clocked out, it showed that she had not. Ms. Wall insisted she had properly clocked out before going on break. After reviewing the time clock program again with Ms. Wall, it showed Ms. Wall had in fact properly checked out. Mr. Reid was not aware the time clock program had a short delay; it had not updated itself when he had first checked it. Upon learning of his mistake, Mr. Reid apologized to Ms. Wall. The second incident was in April 2017. Mr. Bracero issued a “fail” note on Plaintiff’s work order, indicating Ms. Wall had failed to clean the smoke area and guard check area. The note was not considered discipline, but rather, feedback. It was the typical type of counseling a mechanic or custodian may get to alert the employee he or she needed to improve. Upon seeing the note, Ms. Wall denied she was responsible for the failure and offered proof that she was not scheduled on the day the “fail” was issued to her. After a review of the schedule, Mr. Rush determined Mr. Bracero had made a mistake and that Ms. Wall had been on vacation on the date in question. The “fail” was removed and Mr. Bracero and Mr. Reid apologized to Ms. Wall. After the time clock incident, Mr. Rush counseled Mr. Reid to familiarize himself with the time clock program. Regarding the false “fail,” Mr. Rush admitted Mr. Bracero had made a mistake in failing to take the schedule into consideration when inspecting and evaluating areas for satisfactory work. There was no evidence the time clock or “fail” incidents resulted in a Corrective Action or that Ms. Wall suffered any discipline, demotion, or financial detriment as a result of Mr. Reid’s and Mr. Bracero’s mistakes. Increased Workload On March 27, 2017, Ms. Wall complained to Mr. Reid about her workload. She did not claim she had more than other workers. Rather, she complained the increased workload would not allow her to complete her existing duties. As a result, her work area was eventually decreased. GFS offered credible evidence that the total workload at the Plant City Center had increased and it was short-staffed. As a result, all of the custodial crew had increased work. Ms. Wall did not offer evidence of the race, age, or gender of any other custodian. There was no credible evidence at the hearing that Ms. Wall’s workload was more than any of the other custodial workers. Mr. Bracero’s Conduct Ms. Wall also alleges that around March 2017, Mr. Bracero was watching her work, calling her when she was in the bathroom, and yelling at her. Although Mr. Bracero denied this behavior, it is clear from their testimony that Mr. Bracero and Ms. Wall have had a less than friendly working relationship. The undersigned finds Ms. Wall’s testimony regarding Mr. Bracero more credible and finds Mr. Bracero got upset with Ms. Wall, watched Ms. Wall, and called her while she was on break. There is no evidence, however, that Mr. Bracero’s conduct was related to Ms. Wall’s age, ethnicity, or gender. As a Maintenance Lead, Mr. Bracero’s duties were to take care of day-to-day situations on the floor, record attendance, monitor workflow, and assist the maintenance and custodial crews in performing their tasks. Watching the custodians, including Ms. Wall, and calling them on the radio were part of his duties. There was no evidence Ms. Wall had been singled out, or that Mr. Bracero treated other employees differently. Discriminatory Comments Ms. Wall alleges that Leon Bennett told her during their work shift that he was going to go online and order two Asian women, one for cleaning and one for his entertainment. There was no evidence of Mr. Bennett’s position or when he made this statement to Ms. Wall. Mike Parm had made a similar comment to Ms. Wall and asked her repeatedly if she would clean his house. When she declined, he told her he would order three Asian women: one for dishes, one for vacuuming, and one for himself. There was no evidence of Mr. Parm’s position or when this statement was made. GFS offered no evidence at the hearing contradicting Ms. Wall’s account of the comments made to her by Mr. Bennett and Mr. Parm.2/ The undersigned finds that based on Ms. Wall’s unrefuted testimony, and based on her demeanor at the hearing that Mr. Bennett and Mr. Parm made these offensive statements to her. At the meeting on Ms. Wall’s Corrective Action for gossiping in August 2017, Ms. Wall told Mr. Rush and Mr. Reid about these comments. This was the first time she had complained to anyone at GFS about any kind of discrimination. There is conflicting testimony about what happened next. Mr. Rush testified he told Ms. Wall he could not act on the information she gave him, and it would need to be addressed by HR. Mr. Rush states he passed the information on to HR. Ms. Vanacore’s testimony and the emails admitted into evidence show that Mr. Rush did not inform HR about Ms. Wall’s allegations against Mr. Bennett and Mr. Leon. Rather, Ms. Vanacore was on vacation during the August 9, 2017, meeting, and was approached by Ms. Wall when she returned. The undersigned finds it was Ms. Wall who raised the inappropriate comments by Mr. Bennett and Mr. Parm to Ms. Vanacore after she received the August 2017 Corrective Action. Regardless, after Ms. Wall told Ms. Vanacore she had been verbally harassed, Ms. Vanacore took Ms. Wall’s statement and asked her if she wished HR to investigate the claims. Ms. Wall indicated, “yes.” As a result, Ms. Vanacore alerted her supervisor, Mr. Laviolette, and they developed an action plan related to the investigation. During the investigation Ms. Vanacore communicated regularly with Ms. Wall. On August 23, 2017, Ms. Wall relayed an additional allegation to Ms. Vanacore that Mr. Bennett drove up to her in a golf cart and asked her, “want to go for a ride on my ride.” It was in this email to Ms. Vanacore that Ms. Wall gave more details about the previous comments made by Mr. Bennett and Mr. Parm. Ms. Vanacore and Mr. Laviolette conducted interviews with Mr. Bennett and Mr. Parm. Both denied making the comments to Ms. Wall. Ms. Vanacore then asked Ms. Wall if she had any other details or evidence regarding these statements. Ms. Wall gave Ms. Vanacore mixed signals by indicating to her she did not want anyone to know she had made the allegations, but also listing other people for HR to talk to. Eventually, HR did not interview any of the people Ms. Wall provided because they were not working at the time of the investigation. After conducting the investigation, Ms. Vanacore believed Mr. Bennett and Mr. Parm, and concluded there was no evidence to sustain Ms. Wall’s allegations. The undersigned finds that once Ms. Wall reported these statements to HR, GFS investigated the claims and closed the file. There was no evidence of any further offensive comments or adverse action after the August 2017 Corrective Action and investigation into the discriminatory comments. Ms. Wall continues to work as a custodian at the Plant City Center.
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, Nou M. Wall, did not prove that Respondent, Gordon Food Services, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 27th day of February, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 February, 2019.
The Issue The issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner based on his race, contrary to Section 760.10, Florida Statutes (2005).
Findings Of Fact Respondent is an employer as defined in Section 760.027, Florida Statutes (2005). Prior to July 1, 2005, Respondent operated the following rehabilitation programs: (a) Tallahassee-Leon County Human Services (TLC) serving outpatient adults in downtown Tallahassee, Florida; (b) a residential program for women and their children known as Sisters in Sobriety (SIS), which is located on Respondent's campus in Woodville, Florida; (c) a foster care program for teenage girls that Respondent houses in the St. Mark's Cottage, which is located on Respondent's campus in Woodville, Florida; (d) a foster care program for teenage boys that Respondent houses in the St. Mark's Lodge, which is located on Respondent's campus in Woodville, Florida; and (e) residential rehabilitation programs, which were located on Respondent's campus in Greenville, Florida. Sometime in July 2005, Respondent sold its Greenville Campus to another corporation. Petitioner is an African-American male. At all times relevant here, Petitioner worked full-time as the Director of Operations at Respondent's Woodville Campus. On August 19, 2002, Petitioner acknowledged receipt of Respondent's Equal Employment Opportunity/Anti-harassment Policy Statement, which states as follows in relevant part: Any employee who believes that she/her has been harassed or discriminated against in violation of this policy should report the problem immediately to the Director of Human Resources. Respondent's Human Resources Policies and Procedures manual states as follows in relevant part: Statement of Affirmative Action It is the policy of DISC Village, Inc., to provide equal opportunity for employment, training, promotion, compensation and all conditions of employment for individuals without regard to race, color, religion, sex, national origin, age except as provided by law, prior history of emotional, mental, drug or alcohol disability or physical disability. DISC Village will maintain a specific program to maintain and promote non-discrimination in accordance with the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990. Any perceived act of discrimination should be reported to the site director and the Human Resources Director . . . immediately. Anti-Harassment Policy DISC Village, Inc. is committed to maintaining a work environment that is free of unlawful harassment and will not tolerate any form of harassment or unlawful discrimination against our employees by anyone. Employees must report any form of harassment, especially sexual, to their direct supervisor and the Human Resources Director . . . as soon as possible. Upon hire, all new employees will receive a copy of the agency Anti-Harassment Policy & Procedure with signoff. At all times relevant here, Qua' Keita Anderson, an African-American female, was a counselor at Respondent's Woodville Campus. Ms. Qua' Keita Anderson worked in the SIS program. Ms. Qua' Keita Anderson's direct supervisor was Joni Morris-Anderson, Respondent's Director of Women's Residential Services on the Woodville Campus. At all times relevant here, Lisa Bergeron worked for Respondent as Program Supervisor of DISC Adolescent Treatment Center on the Woodville Campus. Prior to July 1, 2005, Harry Rohr, a white male, was the Director of Residential Services at Respondent's Greenville Campus and Woodville Campus. Mr. Rohr was Petitioner's direct supervisor, even though Mr. Rohr spent most of his time at the Greenville Campus prior to July 2005. Petitioner was in charge of the Woodville Campus when Mr. Rohr was not available. After July 1, 2005, Mr. Rohr spent most of his time at Respondent's Woodville Campus. Mr. Rohr made this change because Respondent no longer operated programs on the Greenville Campus. The sale of the Greenville Campus did not cause a change in title or job responsibilities for Petitioner or Mr. Rohr. At all times relevant here, Tom Olk, a white male, was Respondent's Chief Executive Officer. Mr. Olk's office is located in Respondent's administrative facility in Tallahassee, Florida. However, Mr. Olk frequently makes on-site visits to Respondent's Woodville Campus. At all times material here, Lou Logan was Respondent's Deputy Director and head of Respondent's Human Resource Department. Mr. Logan is a white male. Mr. Logan's office is located in Respondent's administrative facility in Tallahassee, Florida. In March 2004, Respondent was in the process of opening the foster care program on the Woodville Campus. Several staff members, including Petitioner, participated in refurbishing an old home as a residence for the foster children. Respondent's staff was hanging curtains when Mr. Logan paid an impromptu visit to the old home. The curtains were printed with African animals, including monkeys. When Mr. Logan stated how nice the curtains looked, a staff member made some comment about the monkeys in the curtains. Another staff member commented about Petitioner having a big role in the decorating project. Mr. Logan then stated, "Oh, Lester is always monkeying around." Mr. Logan made the statement in the spirit of the moment to show how happy he was that the staff was doing such a good job. Petitioner complained to Mr. Olk that Mr. Logan had called him a monkey. Mr. Olk discussed the incident with Mr. Logan and Petitioner, concluding that Mr. Logan had not called Petitioner a monkey. Mr. Olk properly determined that Mr. Logan never intended to make a racially derogatory comment about Petitioner and that Petitioner had taken Mr. Logan's statement out of context. In early June 2005, Petitioner called Ms. Qua' Keita Anderson at home on her day off to discuss some performance issues she was having at work. The conversation took an inappropriate turn when Petitioner asked Ms. Qua' Keita Anderson if she had a "sexual stress reliever." On August 3, 2005, Petitioner picked up a female teenage resident of St. Mark's Cottage from Respondent's offices in Tallahassee, Florida. Petitioner transported the female youth, alone and unsupervised, in his personal vehicle to look for a job. In so doing, Petitioner violated Respondent's policy relative to the transportation of residents and/or patients of the opposite gender. On August 3, 2005, Harry Rohr and Lisa Bergeron observed the same young female client leaning over Petitioner's shoulder at his computer desk in very close proximity to Petitioner's body. Petitioner did not maintain appropriate physical boundaries with the young girl. On August 3, 2005, Mr. Rohr spoke to Petitioner about his violation of the transportation rules and his failure to maintain appropriate physical boundaries with the female client. Mr. Rohr then wrote a memorandum to memorialize the conversation. In the memorandum, Mr. Rohr advised Petitioner to refrain from being alone with any of the teenagers and to concentrate his efforts on the boys of St. Mark's Lodge. Shortly thereafter, Respondent approved Ms. Qua' Keita Anderson's request for a transfer from the Woodville Campus to the TLC Campus. Ms. Qua' Keita Anderson wanted to work in downtown Tallahassee, Florida, because she was beginning graduate school and needed a smaller, less stressful caseload. On one occasion, Petitioner and Ms. Qua' Keita Anderson had lunch together at a picnic table on the Woodville Campus. On another occasion, Petitioner ordered take-out meals for Ms. Qua' Keita Anderson and himself. Ms. Qua' Keita Anderson paid Petitioner for her meal when she picked it up in Petitioner's office. There is no persuasive evidence that Petitioner ever paid for Ms. Qua' Keita Anderson's lunch, on or off the Woodville Campus. Upon realizing that Ms. Qua' Keita Anderson's last day at the Woodville Campus was approaching, Petitioner telephoned her at home. During the conversation, Petitioner told Ms. Qua' Keita Anderson that she "owed him something" before she transferred. Ms. Qua' Keita Anderson replied that she did not owe Petitioner anything. Petitioner then asked Ms. Qua' Keita Anderson to have lunch with him before her last day at work on the Woodville Campus. Ms. Qua' Keita Anderson did not agree to have lunch with Petitioner. Petitioner telephoned Ms. Qua' Keita Anderson one additional time at work. During the call, Petitioner again asked when Ms. Qua' Keita Anderson was going to have lunch with him. Ms. Qua' Keita Anderson advised Petitioner that she was uncomfortable having a personal lunch outside of the office. Once again she refused Petitioner's invitation. On August 8, 2005, Ms. Qua' Keita Anderson complained to her supervisor, Ms. Joni Morris-Anderson. Ms. Qua' Keita Anderson and Ms. Joni Morris-Anderson are unrelated. Ms. Qua' Keita Anderson complained about Petitioner's inappropriate sexual remark, his telephone calls to her home, his insinuation that she "owed him something" before she transferred, and his insistence that she have lunch with him. Ms. Qua' Keita Anderson repeated her complaint in the presence of Ms. Bergeron, who advised Ms Morris-Anderson to report the incidents to Mr. Rohr. Ms. Qua' Keita Anderson prepared a written statement and submitted it to Mr. Rohr. The statement reflected her "concern" about Petitioner's behavior, which made her feel uncomfortable and harassed. On August 8, 2005, Mr. Olk visited the Woodville Campus. During that visit, Mr. Olk and Mr. Rohr met with Petitioner to discuss Ms. Qua' Keita Anderson's sexual harassment complaint. The meeting also included a discussion involving Petitioner's unsupervised transportation of a female resident and his failure to maintain appropriate physical boundaries with the same female resident. Mr. Olk explained to Petitioner that Ms. Qua' Keita Anderson's complaint raised serious issues, which required an investigation. Mr. Olk advised Petitioner that if he did not participate in the investigation, he could resign or be terminated. In regard to Ms. Qua' Keita Anderson's allegations, Petitioner stated that "it didn't happen that way." He did not make any other statement except to say that “he needed time to think." Mr. Olk had another scheduled meeting on the Woodville Campus. Mr. Olk asked Petitioner to read Ms. Qua' Keita Anderson's complaint and to discuss it with Mr. Olk upon his return from the other meeting. Petitioner then asked Mr. Rohr if he could have the rest of the day off. Mr. Rohr denied this request because Mr. Olk wanted to continue his discussion with Petitioner and because Mr. Rohr wanted Petitioner to begin the cross-training of Jonetta Chukes. Ms. Chukes is a white female. Prior to July 1, 2005, Ms. Chukes worked in Respondent's office in Tallahassee, Florida, as a Medicaid specialist. Until the Greenville Campus was sold, Ms. Chukes also provided some paperwork services for the programs on the Greenville Campus. Sometime in July 2005, Respondent decided to let Ms. Chukes work part-time in the administrative office in Tallahassee, Florida, and part-time too as a secretary on the Woodville Campus. Additionally, Respondent wanted Ms. Chukes to cross-train in the following areas: (a) the client intake process, formerly exclusively performed by Petitioner; (b) the billing process, formerly exclusively performed by another secretary on the Woodville Campus; and (c) the workforce application process. Cross-training is important to Respondent to ensure that its programs function smoothly when any particular person is not at work. Ms. Chukes did not immediately begin working part-time on the Woodville Campus after Respondent made the decision about her new responsibilities. Ms. Chukes happened to begin that transition on August 8, 2005. When Mr. Olk and Mr. Rohr returned from the other meeting, they intended to finish their conversation with Petitioner. However, they could not locate Petitioner. They soon learned that Petitioner had turned in his keys and employer-provided cell phone, submitted a written letter of resignation, and left the campus. Petitioner never informed anyone that he believed Mr. Rohr was discriminating against him. Mr. Olk was very disappointed that Petitioner did not stay on the premises to complete their discussion. Mr. Olk believed Petitioner was a valuable employee with potential for career advancement. Mr. Olk encouraged Petitioner to pursue his undergraduate degree, which is a requirement for upper management. Respondent reimbursed Petitioner for his tuition at Tallahassee Community College. Respondent does not normally pay for its employees to attend college. In this respect, Petitioner was treated more favorably than his Caucasian counterparts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this July day of 20th, 2006, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lester Levon Hall 3871 Gaffney Loop Tallahassee, Florida 32305 Amy Reisinger Harrison, Esquire Lindsay A. Connor, Esquire Ford and Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202
