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 issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice on the basis of his age in violation of section 760.10, Florida Statutes.
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the pre-hearing stipulation. Mr. Ferrell is a 65-year-old male, who is employed at Florida A & M University as a registrar officer. Mr. Ferrell has worked in the registrar’s office in various positions since 2003. Florida A & M University is a university located in Tallahassee, Florida. At all times material to this matter, Florida A & M University employed more than 15 full-time employees. Mr. Ferrell alleged that four employees, Lefevere Jordan, Cornelius McGlockton, Dyamond V. Smith, and Antonio Witherspoon were treated more favorably than he was treated because they are younger than he is. Specifically, he asserted that Mr. Jordan received a pay raise; Mr. McGlockton and Mr. Witherspoon received a promotion; and Ms. Smith was hired at a higher pay rate for the same position that he holds (registrar officer). Mr. Ferrell’s job responsibilities as a registrar officer include maintaining the state course numbering system, maintaining the university course catalog, scheduling classes, and scheduling events. During the time that Mr. Ferrell has been employed by Florida A & M University, he has never been disciplined for poor work performance or otherwise. Mr. Ferrell testified that in 2012 or 2013, Dr. Onwunli promised him and Mr. Jordan a $5,000 raise. Dr. Onwunli denied she made the promise. The undersigned finds Mr. Ferrell more persuasive on that fact. Regarding Mr. Witherspoon, he is currently classified as a registration coordinator. His job responsibilities include supervising three employees, transferring credits, and project management. The coordinator position was advertised on May 20, 2016. Mr. Witherspoon applied for the position and was hired. Mr. Ferrell did not apply for the coordinator position. Similar to Mr. Ferrell, Mr. McGlockton is classified as a registrar officer. His job responsibilities include processing enrollment verifications and maintaining the electronic online catalog. Mr. McGlockton has website experience and successfully completed training for managing the electronic catalog system in 2015. Ms. Smith is also classified as a registrar officer. Her job responsibilities include processing test credits, maintaining the Ad Astra system, and assisting with the academic advisement module. On February 16, 2017, the registrar officer position was advertised. Ms. Smith applied for and was hired for the position. However, Mr. Ferrell did not apply for the position posted in February 2017. At hearing, Mr. Ferrell acknowledged that he did not apply for the coordinator or the registrar officer positions. He explained that he did not believe he was qualified for the coordinator position because he does not possess a master’s degree. However, despite not having a master’s degree, the position qualifications included “a bachelor’s degree in an appropriate area of specialization and two years of progressive experience in an academic environment.” Regarding the registrar officer position, understandably, he testified that he did not apply because his position carried the same title. There was no evidence offered at the hearing to demonstrate that Mr. Ferrell did not meet the qualifications for the advertised positions. Dr. Agatha Onwunli is the University Registrar at Florida A & M University. She supervises 20 employees, including Mr. Ferrell. Her job responsibilities include making hiring and promotion decisions, and training employees who work in the registrar’s office. As described supra in these findings of fact, several registrar officers perform different tasks and she makes hiring decisions based on the needs of the office. Mr. Ferrell alleges Florida A & M University unlawfully discriminated against him on the basis of age. The crux of this case rests with the age of the other employees that are relied upon for comparison. Mr. Ferrell offered testimony regarding Mr. Jordan, Mr. Witherspoon, Mr. McGlockton, and Ms. Smith to prove a similarly situated employee outside his protected class, based on age, was treated more favorably than he was treated. Mr. Ferrell testified that the employees could not be his age for various reasons. However, there was no evidence presented at hearing regarding the age of the four employees offered as comparators. In his PRO, Mr. Ferrell attached exhibits that reflect the age of Mr. Jordan, Mr. Witherspoon, and Ms. Smith. However, the exhibits were not offered during the hearing and as a result, they are not evidence of record. A finding of fact may only be based exclusively on evidence of record.1/ Thus, the undersigned may not consider the exhibits offered post-hearing to make a finding of fact regarding the age of Mr. Jordan, Mr. Witherspoon, and Ms. Smith. The undersigned finds that there was not sufficient evidence presented at the final hearing regarding the age of Mr. Jordan, Mr. Witherspoon, Mr. McGlockton, and Ms. Smith.
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 Petitioner’s Discrimination Complaint and Petition for Relief consistent with the Findings of Fact and Conclusions of Law of this Recommended Order. DONE AND ENTERED this 5th day of April, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 5th day of April, 2018.
The Issue Whether Respondent, First Coast Technical College (Respondent) retaliated against Petitioner, Gregory R. Lulkoski (Petitioner) in violation of the Florida Civil Rights Act of 1992 (FCRA), section 760.01-760.11, Florida Statutes?1/ Secondary issues raised by Respondent are whether the St. Johns County School Board (School Board) is immune from Petitioner’s allegations, and, if not, whether the School Board was Petitioner’s employer during the relevant period.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the School Board by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). A charter technical school is a creature of Florida statute, distinct from school boards and districts, including those school districts in which they are located, which act as the sponsor of the school. FCTI and the School Board entered into a charter which governed the operating relationship between them. The last operative charter between FCTI and the School Board became effective July 1, 2013. The School Board was the sponsoring entity of FCTC under the charter. The School Board had no involvement in the day to day operations of FCTC when it was operated by FCTI. FCTI had its own management team and board of directors. FCTI had its own articles of incorporation, employment handbook, organizational structure, management plan, human relations (HR) director and department, and its own legal counsel. FCTC’s president, Sandra Raburn-Fortner, entered into a contract of employment with FCTI. No one from the School District is on FCTI’s organizational chart. FCTI and FCTC management, and not the School Board, were responsible for the daily operations of FCTC and all personnel matters of FCTC employees. FCTI had its own procedure in its employee handbook for reporting discrimination and harassment. FCTC employees were designated as School Board employees solely for wage payments, benefits, and collective bargaining purposes under the charter. For this reason, FCTC employees received checks and tax documents from the School Board and the School Board remitted contributions to the Florida Retirement system on their behalf. FCTI reimbursed the School Board for these pass-through expenditures, and the School Board charged FCTI a fee for this service. The School Board’s only involvement in personnel- related decisions of FCTC was the ministerial act of the School Board superintendent signing off on employment decisions made by FCTI officials, which were then placed on the consent agenda of the School Board to be approved at its next meeting. This process--which was necessary given the fact that FCTC employees were designated as School Board employees under the charter for wage payment, benefits, and collective bargaining purposes-- involved ensuring the statutory requirements to take an employment action were met, but did not involve second-guessing the merits of the personnel decisions made by FCTI. Indeed, the charter expressly provides that the School Board assigns and FCTI assumes and retains all responsibility for FCTC employees, including responsibility for the selection and discipline of employees, and all other aspects of the terms and conditions of employment at FCTC. Petitioner submitted his application for employment to FCTC. Petitioner had an FCTC e-mail address and not a school district e-mail address. The School Board was the signatory to some grant applications for funding to be expended at FCTC, however, FCTI was responsible for fulfilling the obligations relating to the grant awards, and appropriately utilizing those funds at FCTC. The School Board was not involved in the day to day administration of programs funded by those grants at FCTC. During the spring of 2016, district personnel became aware of financial irregularities at FCTC through its monitoring of FCTI’s unaudited financial statements. Under state statute, the School Board was required to take certain actions as the sponsor of FCTC when put on notice that FCTC might be in a deteriorating financial condition. The School Board investigated those irregularities and found significant financial mismanagement and budgetary shortfalls at FCTC under FCTI’s administration. On May 3, 2016, the School Board declared that the school was in a deteriorating financial condition. This declaration triggered statutory obligations on the part of the School Board and FCTC to develop a corrective action plan to address these issues. On May 26, 2016, the School Board served a notice of financial emergency stating that it had reason to believe that there was a financial emergency at FCTC and that there was no way to save FCTC other than to terminate the charter and begin operating the programs at FCTC itself. The School Board Superintendent sent a letter to FCTI’s board on June 8, 2016, detailing the findings of the School Board’s investigation into FCTC and the financial issues plaguing the school. On June 14, 2016, FCTI’s board voted to terminate the charter with the School Board and cease operating the programs at FCTC, effective June 31, 2016. On June 15, 2016, the School Board voted to approve an agreement to terminate the charter with FCTI and to take over the programs at FCTC effective July 1, 2016. As part of this transition of the responsibility for operating FCTC, the School Board and FCTI entered into an agreement specifically stating that any liabilities of FCTC arising prior to July 1, 2016, would not be assumed by the School Board. Just before the School Board began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed his Complaint with FCHR. In that Complaint he alleges that he was retaliated against for engaging in protected activity. Petitioner specifically listed two discrete instances of alleged protected activity in his Complaint: I am being discriminated against on the basis of retaliation by my employer. I began employment with Respondent on 11/7/2007, as a Case Manager and most recently as a Grant Writer. On 5/21/2015, I filed a formal grievance due to harassment and nepotism; creating a hostile work environment. This grievance was investigated internally but I never received a response. On 6/30/2015, I filed a second grievance after experiencing retaliation by my Supervisor, Renee Stauffacher. Up to date, both grievances remain unanswered and I continue to experience harassment and retaliation. Petitioner’s claim of discrimination was based solely upon a charge of retaliation. Petitioner did not allege that he was discriminated against based upon race, religion, age, marital status, or any other protected class. Petitioner filed the first grievance referenced in the FCHR Complaint on May 21, 2015, alleging that FCTC’s then- president, Sandra Raburn-Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and over e-mail. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner does not allege in this grievance that he was mistreated by any School Board employee, and he did not direct the grievance to anyone at the School Board. Petitioner filed this grievance with FCTC’s human resources office. In his second grievance, filed June 26, 2015, Petitioner alleges that Renee Stauffacher, his supervisor at the time, retaliated against him for naming her in his May 21, 2015, grievance by giving him an evaluation on June 26, 2015, that contained some information or statements with which he disagreed, even though he thought the evaluation itself was good and that he was given high numbers. No one from the School Board was involved in this evaluation. When Ms. Stauffacher gave Petitioner this evaluation, she was an employee of FCTC and not the School Board. Petitioner alleges that Sandra Raburn-Fortner retaliated against him for his first two grievances by giving him another position. That change, from “Career Pathways Supervisor” to “Grant Writer” occurred on or about August 4, 2015. Petitioner’s salary did not change. At this time, Ms. Raburn-Fortner, who had a contract with FCTI, was an FCTC employee, and not an employee of the School Board. Later, in the Spring of 2016, Petitioner submitted numerous other grievances, a total of nine more, to FCTC officials and FCTI’s board. Petitioner only introduced his ninth and tenth grievances into evidence at the final hearing. Both are similar. Those grievances, both filed on June 13, 2016, allege that Ms. Raburn-Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s human resources director, and Ms. Stauffacher, were complicit in that nepotism. Both grievances state that Petitioner believed he was disclosing violations of equal employment opportunity law. During the time that Petitioner submitted these additional grievances, the School Board was in the process of investigating the financial irregularities at FCTC. Petitioner submitted some of these grievances to School Board officials, who told him he needed to take his concerns to the FCTI Board who was still operating FCTC at the time pursuant to the charter. None of Petitioner’s complaints, including those relayed to the School Board and its officials, concerned complaints of discrimination based on a protected class, or retaliation for complaining about discrimination based on a protected class. Petitioner stated he believed he was reporting equal employment opportunity violations in alleging Ms. Raburn-Fortner was hiring or favoring friends and family, because this action prohibited members of many different protected classes from getting a fair shot at positions that would go to family, friends, or associates of Ms. Raburn-Fortner. Petitioner admits all protected classes were treated similarly in this regard and that all protected classes lacked equal access to positions if they were not friends or family of Ms. Raburn-Fortner. While Petitioner does not allege any discrete instances of retaliation that occurred after his title change, Petitioner also contends that he was harassed, including that he felt harassed about how data at the school was handled, the pressure put on him by financial difficulties brought about by the administration of FCTI, and that he was given the cold shoulder by peers. By May 2016, Ms. Raburn-Fortner was no longer working at FCTC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 5th day of September, 2018, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2018.
The Issue Whether or not Respondent appropriately denied Petitioner's retirement benefits and what, if any, amount Petitioner must repay.
Findings Of Fact Petitioner Dr. Evelyn A. Sebree was employed by Lake-Sumter Community College (LSCC) for over 25 years. LSCC is an agency within the State of Florida Retirement System (FRS). Petitioner was employed by LSCC as an instructor and later as a part- time counselor. She was subsequently named the Director of Financial Aid and the Executive Director of the Foundation. She served simultaneously in both capacities for many years. The Foundation is the fund-raising arm of LSCC and a nonprofit corporation separate from LSCC with its own governing board, bylaws and constitution. Only an employee of the college can be Director of the Foundation, but the Foundation Board is not made up of LSCC employees. In her LSCC employment as Director of Financial Aid, Petitioner was responsible for administering the college's student financial aid program. Her immediate supervisor in this employment category was Dr. Dixie Lee, and Petitioner reported ultimately to the Dean of Student Services. In this employment capacity, she administered federal, state, institutional and private grants, loans, and scholarship programs, including but not limited to Pell Grants, the Basic Education Opportunity Grant Program, the GI Bill, and work- study programs. She supervised three work-study students, who were part-time LSCC employees, and a financial aid specialist, a full-time LSCC employee, and had her own private office on campus. As Executive Director of the Foundation, Petitioner was responsible for raising money for the college and for scholarships. She reported to the LSCC President, was responsible for fund raisers, making contacts with potential donors, and soliciting money from various wealthy people for the college. During her LSCC employment as Financial Aid Director and collateral service as Executive Director of the Foundation, Petitioner developed many influential contacts in the fields of higher education and financial administration. These contacts were not only statewide, but also national. Petitioner also served on many state and national boards, including: State Financial Aid Association, Board of Directors of the Southern Association of Student Financial Aid, National Board of Student Financial Aid Directors, and the Florida Association of Community College and College Board Council on Higher Education Services. After her retirement as an employee of LSCC, Petitioner could no longer serve as Executive Director of the Foundation, but Petitioner continued to serve on the Board of the Foundation, as a private citizen. As a result of her contacts with many influential people, Petitioner considered herself to be a mover and a shaker in the community. Petitioner decided to retire after 29 years of service at the college when she was offered an early retirement incentive package. The package included paid health insurance for three years and partial salary for three years. Prior to her retirement, DOR mailed Petitioner a brochure. The brochure advised the Petitioner of the re-employment limitations. Prior to receiving her first retirement warrant, DOR mailed Petitioner a letter, again advising her that benefits would be suspended if she was re-employed within twelve months of her retirement date. As an agency within the FRS, LSCC was mailed several numbered memoranda advising reporting agencies to avoid "sweetheart" arrangements by hiring recently retired employees to fill positions within the system. Petitioner retired, effective July 1, 1992. In the fall of 1992, the LSCC college president quit. Dr. Kenneth Stack was appointed acting president while the LSCC Board of Trustees mounted a search for a permanent replacement president. The LSCC Board of Trustees is the governing board of the college which, among other duties, hires and fires the college president, sets college policy and adopts a budget. The LSCC Board of Trustees decided the new college president should be someone from Florida. They desired a college president who would have knowledge of the Florida educational system. The LSCC Board of Trustees had previously hired two college presidents, one six years previously and one eleven years previously. In each instance, a search committee made up of faculty, students, trustees, townspeople and residents of the two counties, Lake and Sumter, had been formed, and the Board had contracted with an outside "facilitator" to focus the presidential search and assist the presidential search committee. The last facilitator had been hired in 1986 from a professional group of "consultants" from Washington, D.C. This time, in 1992, LSCC's Board of Trustees decided they needed to hire a facilitator with knowledge of LSCC, the geographic area, college personnel within the state, and the Florida Community College System. The Board also believed that an in-state facilitator would help achieve their ultimate desired result of obtaining a qualified Floridian to fill the vacant LSCC presidency. Petitioner was nominated for facilitator by Board of Trustees member, Randall Thornton, an attorney. Due to her past employment and community reputation, Petitioner's education, training, experience, and status in the community were well known to all Board members. The Board considered facilitator candidates from the University of Florida and Florida State University also, but Petitioner was selected instead. All Board members cast a vote for their choice of facilitator. One consideration in favor of Petitioner was that she would accept a contract capped at $5,000, while the last professional out-of-house facilitator's total cost to LSCC was nine times that figure, or roughly $45,000. Petitioner was appointed Presidential Search Committee Facilitator pursuant to a contract drawn by attorney Randall Thornton. This contract significantly paralleled the contract between LSCC and its last out-of-state facilitator in that Mr. Thornton used the old contract as his model for the new one. For purposes of this proceeding, the significant provisions of Petitioner's contract are that: Petitioner was to be paid at the rate of $40 per hour up to a maximum of $5,000, regardless of how long the search took to complete. Clearly, it may be inferred that Petitioner's services would end when a college president was selected. In order to be paid, Petitioner was to bill the Board of Trustees monthly for hours worked and for expenses. She was to be reimbursed for any expenditures or expenses in addition to her hourly fee for personal services. To minimize costs to LSCC, Petitioner's travel expenses were geared to Chapter 112 F.S., normally covering state employees. She also was required to use the college's Watts line "to the extent possible," but she would be reimbursed for all her out of pocket expenses, including but not limited to telephone calls, fax, express mail, travel, and similar items. Because this was a personal services contract, Petitioner could not delegate her duties except with express prior agreement of the Board, but there was no specific prohibition on her hiring subordinate support service helpers. Either LSCC or Petitioner could cancel the contract upon 30 days' written notice without incurring liability to each other. However, Petitioner agreed to indemnify and "hold harmless" the college both for her own negligence in conducting the search and for any other liability arising out of her activities during the search. She was required to comply with equity rules and regulations. This requirement may be inferred to reiterate the obvious, that she, like any other citizen, was bound to comply with all equal opportunity and labor laws for appropriate hiring practices. One contract clause specifically denied Petitioner any employee, servant, or agency authority to bind or incur liability for the college, and described her as an independent contractor. Mr. Thornton modeled LSCC's contract with Petitioner on the contract drafted by the 1986 facilitator from Washington, D.C., who was clearly an independent contractor. According to Dr. Kenneth Stack, the contract as finalized is similar to the standard contract by which LSCC contracts for outside labor, power, and such professional services as those of architects, normally considered to be independent contractors. This facilitator contract differs significantly from Petitioner's employment contract as Director of Financial Aid for LSCC prior to her retirement on July 1, 1992, the form of which employment contract is prescribed by the Florida Community College System. After negotiating with Mr. Thornton, who was acting for the Board in the place of the college's general counsel, Petitioner had input into the final version of the facilitator contract. Exactly what Petitioner's input was, is unclear. Although there is some testimony that the former facilitator was paid in a lump sum of $20,000, there is also testimony that the total payments to that facilitator by LSCC totalled $45,000. Although this fact, together with the contents of the final contract between Petitioner and LSCC is not sufficient to infer that the prior out-of-state facilitator was also paid at an hourly rate up to a certain capped amount plus an expense reimbursement, it is sufficient to infer that expense reimbursement was part of the prior out-of-state independent contractor's agreement with the college. Petitioner's $40/hour fee as "facilitator" constituted a higher hourly rate than she had been paid when employed by LSCC as its Financial Aid Director prior to retirement. Petitioner was not covered for health insurance or unemployment or workers' compensation benefits under her contract as presidential search facilitator. No social security, retirement, or income tax was withheld by LSCC from her hourly rate as facilitator. LSCC provides all its regular employees with these fringe benefits. In practice, as LSCC presidential search committee facilitator, Petitioner used her own telephone and the LSCC telephone. She worked out of an established office in her own home where she simultaneously cared for her 92 year old mother. She also had the use of, and occasionally utilized, the Board room at LSCC which the Board of Trustees had been made available to her and the search committee whenever the Board was not using it. Because there was no college president, the secretary assigned to the president was available for Petitioner's use, and this secretary did some minimal work for Petitioner, primarily copying materials for the search committee members. An employee of LSCC who regularly deals with equity matters also was available to Petitioner and the search committee for advice as needed. As facilitator, Petitioner utilized a comprehensive notebook compiled by a prior Chairman of the LSCC Board of Trustees in the course of the 1986 presidential search. She also utilized two professional books she specifically purchased in order to fulfill her contract with LSCC. Petitioner gave the Board-appointed search committee their direction, worked with a subcommittee to design the advertisement for position, received all applications, analyzed them, and copied and distributed them to the search committee. After the committee read and ranked the applications and selected the finalists, Petitioner did background checks on the finalists and held personal conversations with applicants' employers, prior employers, and colleagues to get a "feel" for each applicant's qualifications. She then reported these findings to the search committee, and apparently another "cut" was made. She coordinated all visits, receptions, and committee interviews for the last five presidential finalists. In this process, she took no direction from LSCC's Acting President, Dr. Kenneth Stack, who was an applicant, and the Board of Trustees' input was more in the nature of questions concerning what was she doing and what were the search committee's time frames, than directions on what to do or how to do it. On her own initiative, Petitioner gave interim reports on the search committee's progress, usually at the regularly scheduled monthly Board of Trustees meetings, until the final presidential candidates were chosen, at which time the Board met weekly for the specific purpose of selecting the college president. Petitioner was required to bill her hours and expenses monthly but was not required to appear before the Board of Trustees. She was never summoned to appear before the Board. She had to ask to be put on the Board agenda each time she gave a report. On the basis of her education, training, experience, investigation, and analysis, Petitioner made suggestions to the Board of Trustees as to search procedures, deadlines, the profile of the president, and advertising the college presidency position. The LSCC Board of Trustees voted on the selection of a college president in April 1993. By its terms, Petitioner's contract terminated with the selection of a college president. The presidential search was not a regularly established function of the college, although employment of a college president was integral to the college's function and purpose. The search committee and search committee facilitator were not regularly established job positions with the college. Petitioner did not incorporate because no state license or certification is required for her services. She also did not advertise her services because she planned to work only intermittently as an independent contractor/consultant in a variety of higher education/administrative fields, relying on her professional networking to get offers of specific projects. At the time of formal hearing, she had the potential for contracts to do financial aid counseling at Seminole Community College and to rewrite a policy and procedure manual for South Florida Community College. LSCC paid Petitioner approximately $435 for her work for LSCC during the month of October 1992, plus some reimbursed expenses. In November 1992, DOR advised Petitioner it had determined that she was an employee and not an independent contractor. Prior to advising Petitioner, DOR requested the federal Internal Revenue Service (IRS) render its opinion. This opinion concluded that Petitioner was an employee of LSCC rather than an independent contractor, but the IRS opinion is not binding upon DOR or dispositive of this instant de novo proceeding pursuant to Section 120.57(1) F.S. It is noted that the review sheets filled out by LSCC and Petitioner and utilized by DOR and the IRS were not as detailed as the evidence adduced at formal hearing, and in some respects the answers were unintentionally misleading. At some point, DOR demanded approximately $435 from Petitioner and $1,018.79 from LSCC for retirement benefits DOR had paid Petitioner during October 1992, but apparently DOR now seeks $2,037.58 solely from Petitioner. Because of the controversy with Respondent DOR, Petitioner did not accept any payment from LSCC pursuant to their facilitator contract after October 1992, when she was notified by DOR that any payment from LSCC for employment would result in a DOR repayment demand and/or withholding of her FRS benefits by DOR.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Management Services, Division of Retirement enter a final order absolving Petitioner of any pay back to FRS for the month of October 1992. RECOMMENDED this 29th day of October, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1993. APPENDIX TO RECOMMENDED ORDER 93-1592 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: The factual matters are accepted. The legal argument is covered in the Conclusions of Law. Accepted (FOF 10). Rejected as argument only. Covered in substance in FOF 3 and 23 and the Conclusions of Law. Accepted (FOF 25). Accepted except as to Conclusion of Law which is covered in the Conclusions of Law. (FOF 22-25). Accepted except to the degree unnecessary, subordinate or cumulative (FOF 16-19). Accepted (FOF 12-15). Constitutes a request to rule certain evidence irrelevant. Not a PFOF. Covered in FOF 27 and the Conclusions of Law. Accepted except to the degree unnecessary or subordinate. (FOF 27). Rejected as related to matters outside the record which apparently occurred after formal hearing. Similar material covered in FOF 27. Respondent's PFOF 1-17 Accepted (FOF 1-16). Accepted in part and rejected in part upon the greater weight of the record as set forth in FOF 15. Accepted (FOF 23). Rejected as a Conclusion of Law. See, Conclusions of Law. Accepted (FOF 17, 22). Rejected because as stated it is misleading. Covered in FOF 17-19. 23-25 Accepted (FOF 17-25). 26-27 Accepted (FOF 9). 28-29 Accepted (FOF 29). 30 Accepted (FOF 30) COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Sylvan Strickland, Esquire General Counsel Department of Management Services Knight Building, Suite 309 2737 Centerview Drive Tallahassee, Florida 32399-0950 Larry D. Scott, Esquire Department of Management Services Division of Retirement 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Ms. Evelyn A. Sebree Post Office Box 150 Umatilla, Florida 32784
The Issue Whether Respondent, Uceda School of Orlando, Inc. (Uceda Orlando), discriminated against Petitioner, Matalyn Johnson (Ms. Johnson), based on her race and disability when it failed to hire her. The specific issue to be determined is whether Uceda Orlando was an “employer” under the Florida Civil Rights Act of 1992, chapter 760, Florida Statutes (2020) (FCRA).1
Findings Of Fact Ms. Johnson is an African-American female who has a speech impediment caused by a stroke and/or cancer. She applied for an ESL teaching position at a school located on Kirkman Road in Orlando, Florida.3 Uceda Orlando operates a school located at 5425 South Semoran Boulevard in Orlando, Florida. Uceda Orlando was incorporated in 2003. Juan Uceda (Mr. Uceda) is the registered agent and at all relevant times was the president and director of Uceda Orlando. Uceda OBT operates at least two schools located in Orlando, Florida: (1) at 12934 Deertrace Avenue, Suite B; and (2) at 4586 South Kirkman Road (Uceda Kirkman). Uceda OBT was incorporated in 2010. Charo Uceda (Ms. Uceda) is the registered agent and president of Uceda OBT. ESL TEACHER POSITION Angel Rodriguez was a teacher who worked at Uceda Kirkman from April 2019 to February 2020. For the time relevant to these proceedings, Mr. Rodriguez was supervised by Ricardo Sanchez. According to Mr. Sanchez's W-2 forms, he was paid by "Uceda School of Orlando – OBT, Inc." Mr. Sanchez, who interviewed Ms. Johnson and made the decision not to hire her, was employed by Uceda OBT. In November 2019, Mr. Rodriguez submitted his resignation letter to Uceda Kirkman.4 Mr. Sanchez asked Mr. Rodriguez if he knew of anyone who could teach ESL in his place. Mr. Rodriguez suggested Ms. Johnson for the position. 3 "ESL" stands for "English as a second language." 4 Mr. Rodriguez continued to work as a substitute teacher at Uceda Kirkman after he resigned. Mr. Rodriguez worked with Ms. Johnson at an Orange County public middle school. He told Ms. Johnson about the ESL position he was vacating at Uceda Kirkman and encouraged her to apply. Ms. Johnson applied for the ESL position. Based on the overwhelming evidence at the hearing, it is clear that Ms. Johnson applied for Mr. Rodriguez's vacant position with Uceda Kirkman (operated by Uceda OBT) and not for a position with a school operated by Uceda Orlando. Ms. Johnson is a public middle school teacher in Orange County. She has a bachelor's degree in English with a minor in Spanish. She is certified to teach ESL classes to students in sixth through twelfth grades. Although Ms. Johnson's application was not entered into evidence, her unrebutted testimony and the testimony from Mr. Rodriguez established that she was qualified for the ESL position. Ms. Johnson interviewed for the position with Mr. Sanchez. She later heard from Mr. Sanchez that she did not get the position. On January 13, 2020, Ms. Johnson received an official notification that she had not been selected for the ESL position. The email was from "Uceda School of Orlando-Kirkman," and stated in relevant part: Subject: Application for ESL Teacher at Uceda School of Orlando-Kirkman Thank you for applying to the ESL Teacher position at Uceda School of Orlando-Kirkman. Unfortunately, Uceda School of Orlando-Kirkman has moved to the next step in their hiring process, and your application was not selected at this time. INTERRELATION OF INDIVIDUAL UCEDA SCHOOLS Mr. Uceda is the father of Ms. Uceda and Doris Uceda. Together the three co-founded the Uceda English Institute (UEI) in the 1980s, which is a chain of federally-accredited ESL schools. There are numerous locations or branches of UEI in Florida, Nevada, New Jersey, and New York. Each UEI school is separately owned and incorporated, and each is overseen by different administrators. The schools that were discussed at the hearing were owned by Mr. Uceda's family members, including his daughters and grandchildren. Ms. Uceda testified that she currently owns and operates Uceda OBT, which has two campuses: the Deertrace campus and Uceda Kirkman. Ms. Uceda also either has a financial interest or is on the board of UEI schools located in Boca Raton, Florida; Westin, Florida; and Elizabeth, New Jersey. Ms. Uceda has 100% ownership interest in Uceda OBT and is the only officer of Uceda OBT. She does not have any ownership interest nor does she serve in any capacity with Uceda Orlando. Mr. Uceda has no ownership interest in and does not serve in any capacity with Uceda OBT. Although Mr. Rodriguez believed that all "Uceda schools" were owned "by the same people," there was no evidence of this at the hearing. When asked what entity paid his salary, Mr. Rodriguez did not know. He testified that he thought all "Uceda schools" shared employees and students. However, he could not provide any examples and admitted that he only worked at Uceda Kirkman. Ms. Uceda convincingly testified that employees who work at one Uceda school can apply to work at another Uceda school, but they are paid separately and not allowed to just move back and forth. She also explained that Uceda OBT and Uceda Orlando have separate accounting records, bank accounts, lines of credit, payroll preparation, telephones, and offices. They do not share employees or administrators. According to the corporate documents introduced at the hearing, Uceda OBT and Uceda Orlando have different operating addresses, different registered agents, and different officers and directors. Although Ms. Uceda was listed as an officer of Uceda Orlando in the past, she has not served in any capacity at Uceda Orlando since 2013.
Conclusions For Petitioner: Ka'Juel Washington, Esquire The Washington Trial Group, PLLC 37 North Orange Avenue, Suite 500 Orlando, Florida 32801 For Respondent: Chris Kleppin, Esquire The Kleppin Law Firm 8751 West Broward Boulevard, Suite 105 Plantation, Florida 33324
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 the Petition for Relief filed by Matalyn Johnson against Uceda School of Orlando, Inc. DONE AND ENTERED this 2nd day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Ka'Juel Washington, Esquire The Washington Trial Group, PLLC 37 North Orange Avenue, Suite 500 Orlando, Florida 32801 Chris Kleppin, Esquire The Kleppin Law Firm 8751 West Broward Boulevard, Suite 105 Plantation, Florida 33324 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2011), by discriminating against Petitioner on the basis of his national origin, or by retaliating against him, and if so, what remedy should be ordered.
Findings Of Fact The Department of Environmental Protection (DEP or the Department) is an agency of the State of Florida. The Guana Tolomato Matanzas National Estuarine Research Reserve (Reserve) in Ponte Vedra, Florida, is a part of the Department, managed under the Coastal and Aquatic Managed Areas Program (CAMA). The Reserve is essentially an institution for research and education, often involving partnerships with universities and other government entities. The Department has more than 15 employees. In July 2011, approval was granted to create a new position for an Environmental Specialist I to provide for the Geographic Information Systems (GIS) needs of long-term monitoring, modeling, and mapping projects at the Reserve. Dr. Michael Shirley is the director of the Reserve, a position he has held since 2007. He has been an employee with the DEP or its predecessor agencies since 1990. Dr. Shirley is also the regional administrator for the East Coast of Florida Aquatic Preserve Program, and in that capacity is responsible for overseeing the management of the Aquatic Preserves on the East Coast of Florida. Dr. Shirley is responsible for some 44 employees, including 34 at the Reserve. Since Dr. Shirley knew a lot about GIS from his research background, he was excited about the prospect of having a new GIS position at the Reserve. Dr. Shirley was very involved in filling the new GIS analyst position. He reviewed the approximately 20-30 applications for the position, helped select individuals to interview, and participated in interviews. Six applicants were ultimately chosen for interview by telephone or in-person by the selection team. While the testimony was not entirely clear as to the national origin of all of these individuals, one of them had a national origin from China and one, Petitioner Mr. Dasyam Rajasekhar, had a national origin from India. Mr. Rajasekhar‘s application and resume indicated that he held a master‘s degree in forestry from Stephen F. Austin University, was experienced in GIS, Remote Sensing, and Geo- Spatial analysis, and that he held a GIS Professional Certification. Mr. Rajasekhar did an excellent job in the interview. On his own initiative, he gave a PowerPoint presentation, which Dr. Shirley later made available to other staff. Dr. Shirley testified that he was ?very excited? about the prospect of Mr. Rajasekhar‘s coming on board and stated that, ?his resume, his credentials, were by far the best of the applicants we had received.? All of the members of the interview team supported him for the position. The team made a unanimous recommendation to the CAMA director, who had final approval authority, that Mr. Rajasekhar be hired. In October 2011, Mr. Rajasekhar was hired as an Environmental Specialist I at the Reserve by the DEP. On November 7, 2011, he acknowledged access to several Department administrative policies, including DEP 435, entitled ?Conduct of Employees? and DEP 436, entitled ?Discrimination and Harassment.? Mr. Rajasekhar was a probationary employee for the first year, as are all new hires, which meant that he could be dismissed without cause and that he did not have the right to grieve or appeal Department actions. After the initial year, a probationary employee becomes a permanent career service employee. This information was contained in DEP 435. Mr. Rajasekhar‘s GIS analyst position was supposed to be supervised by the watershed coordinator, but this position had not yet been filled, so Mr. Joseph Burgess, the resource management coordinator for the Reserve, reporting to the assistant director, Ms. Janet Zimmerman, was named as Mr. Rajasekhar‘s immediate supervisor. Mr. Burgess, Ms. Zimmerman, and Dr. Shirley were thus all three supervisors of Mr. Rajasekhar, moving up his chain of command, and none of them was a probationary employee. Mr. Burgess did not have any experience in GIS, so any detailed oversight of Mr. Rajasekhar‘s work product was conducted by Dr. Shirley. Mr. Rajasekhar‘s Position Description indicated that among other duties, he was to apply GIS tools and products to address resource conservation issues, develop inundation models to reflect the impact of projected sea level rise on local natural communities and public infrastructure, and develop GIS maps for National Estuarine Research Reserve System (NERRS) initiatives such as habitat mapping and change. Mr. Rajasekhar had excellent skills in performing ?high–end? geospatial analysis. He could look at satellite imagery and turn it into a product. Mapping products were used in every one of the Reserve‘s programs and were important in making decisions on land-use and the protection of Reserve resources. They were also very important to the grants obtained by the Reserve. Mr. Rajasekhar was well-qualified to do his job. One grant project, in place before Mr. Rajasekhar was employed, was from the University of Florida (UF) to map changes that would occur in wetlands due to sea level rise. Dr. Shirley was one of the Co—Principal Investigators on the project. Co- principal investigator status is conferred on the people who write the grant proposal. Another major Reserve grant was from the National Oceanic and Atmospheric Administration (NOAA), which funded 40 percent of the Reserve. It is very important for the Reserve to maintain these grant relationships, because these partnerships provide funds as well as visiting personnel to allow research to continue. On December 26, 2011, the Reserve hired Ms. Andrea Small as its Watershed Coordinator, reporting to Mr. Burgess. Under the new staffing plan, the GIS analyst was supposed to report to the watershed coordinator. As a new employee, Ms. Small was in probationary status. While Mr. Rajasekhar‘s ability to do high-end geospatial analysis was never in question, issues soon arose involving other tasks he was supposed to perform. He took longer than most employees in using basic computer programs, such as Microsoft Office programs, and staff complained to Dr. Shirley that he would keep asking them to perform the same basic tasks for him. Dr. Shirley‘s response generally was: He‘s new. Help him, because we help everyone. Let‘s get him –- you know, get him moving in the right direction. As time went on, the pattern did not change, and some staff members concluded that Mr. Rajasekhar was always going to ask them to perform certain tasks for him, so they took the position that they would show him something once, but then insist that he do it for himself the next time. Within the first three months of his employment, Mr. Rajasekhar made an appointment to meet with Dr. Shirley. At the meeting he firmly stated that he needed a pay raise. Dr. Shirley testified that in tone it was ?more strong than =asked,‘ but not quite a demand.? Dr. Shirley thought that the request was badly timed. State government was laying off workers, he had several other deserving employees who had not had a raise in several years, and Mr. Rajasekhar was still on probation. Raises had to be approved at the deputy secretary level, and Dr. Shirley felt that although Mr. Rajasekhar had good geospatial analysis skills, he could not justify putting him in for a raise. Dr. Shirley explained why the timing was bad and why he felt he could not make the case for giving Mr. Rajasekhar a raise just then. Mr. Rajasekhar took out a notebook and indicated to Dr. Shirley that he was writing down, ?[y]ou will not give me a pay raise.? Dr. Shirley felt that exaggerated effort at documentation was meant to infer some sort of discrimination on Dr. Shirley‘s part. Dr. Shirley explained that he was not treating Mr. Rajasekhar differently from anyone else. He told Mr. Rajasekhar that if any employee came in after only three months on the job, he would decline to put him in for a raise. Dr. Shirley told him that if he believed that this was some sort of discrimination, they needed to contact the Bureau of Personnel Services and talk to them. This seemed to de-escalate the situation, and Mr. Rajasekhar stopped writing. Mr. Rajasekhar said that he did not want to call the Personnel office, and indicated to Dr. Shirley that he understood the situation. When a ranger needed maps relating to a prescribed fire for resource management, Mr. Rajasekhar told the ranger that this was ?low-end? GIS work, that the ranger could do it himself, and that Mr. Rajasekhar would show him how to do it. Dr. Shirley testified that the ranger was unfamiliar with GIS software and that this was part of Mr. Rajasekhar‘s job. The Reserve had a limited number of employees and everyone needed to help everyone else to accomplish the Reserve‘s mission. Dr. Shirley felt that morale and teamwork were suffering. However, Mr. Rajasekhar ultimately completed the burn maps. Mr. Rajasekhar also had difficulty completing other more sophisticated tasks assigned to him. He asked Dr. Shirley to run Kappa statistics for him. Kappa statistics are commonly used in GIS work to correlate computer images with known reality in the habitat. Mr. Rajasekhar had indicated on his resume that he had developed a field sampling protocol to calculate Kappa statistics. Yet, Mr. Rajasekhar approached Dr. Shirley at one point and asked if Dr. Shirley would do the Kappa statistics on a project. When Dr. Shirley asked Mr. Rajasekhar why he was asking the director of the Reserve to do the statistics, Mr. Rajasekhar replied, ?[i]t needs to be done by a Ph.D.? Dr. Shirley testified that Mr. Rajasekhar later went to the research coordinator and asked the same question, but that ultimately Mr. Rajasekhar ended up doing the statistics himself. Mr. Rajasekhar‘s presentation at his employment interview and his credentials indicated that he could work with pollution loading coefficients and determine how water flowed and affected estuarine water quality. But, when Dr. Shirley asked him to conduct such an analysis, he replied that this work required a Ph.D.-level hydrologist. One of the first mapping projects Mr. Rajasekhar produced for Dr. Shirley involved flow ways, the way water flows through a watershed. Dr. Shirley was using the map in a meeting with Flagler County officials when he realized that Mr. Rajasekhar had indicated that in one canal water was flowing in opposite directions. When this was called to Mr. Rajasekhar‘s attention, he simply removed the arrow directions and started referring to the maps as ?flow lines? rather than ?flow ways.? The maps then didn‘t show the information that was needed, which Dr. Shirley explained to Mr. Rajasekhar. Mr. Rajasekhar stated in his applicant profile, ?[e]stuarine scientists would rate my knowledge of estuarine ecology at an experienced professional level.? Yet in working on a project in which a vendor was going to take satellite imagery, when it was necessary for Mr. Rajasekhar to determine the time of low tide, he asked Mr. Burgess how he could do this. Mr. Burgess had to show him how to read the NOAA tide chart. Within the same period of time, Mr. Rajasekhar also asked Dr. Shirley the same question, who showed him the same thing. In later conversations between Mr. Burgess and Dr. Shirley, they realized this had happened and discussed how odd this was, if Mr. Rajasekhar was an experienced professional of estuarine ecology. When asked to do a project, Mr. Rajasekhar would often say that in order to do it properly, he would need a certain amount of money, or new software, or additional hard drive space. Dr. Shirley would have to repeatedly explain that the Reserve was unfortunately on a limited budget and that a product would still be valuable if done under less-ideal conditions. Rather than delay the project, he would tell Mr. Rajasekhar that the analysis should be performed with the best technology practically available, and for Mr. Rajasekhar to annotate the data to indicate the level of accuracy. In early January, the Reserve was hosting a tour of the watershed for UF personnel working on the sea level rise project. The UF participants came over in two vans with lots of the students who were working on the project. The trip required four-wheel drive vehicles, and given the large number of people from UF and the limited number of vehicles, there was only enough room for a few Reserve personnel to visit the watershed. Dr. Shirley chose himself, as Director, Ms. Emily Montgomery, the coastal training program coordinator and a co-principal investigator on the grant, and Ms. Small, the watershed coordinator, who was giving the tour of Pringle Creek, one of her acquisition projects. Mr. Rajasekhar subsequently approached Dr. Shirley and said that he felt he had been excluded from the trip. Dr. Shirley explained why so few Reserve personnel could participate and why he had selected the ones that he did. In late January, when Dr. Shirley was on the road visiting a preserve site, the UF team asked Dr. Shirley which ?tiles? of LIDAR data were missing for Pellicer Creek, because they had decided to pick up the cost of filling in the missing pieces. The UF people were going to meet with the vendor that afternoon, so they wanted the information as soon as possible. Dr. Shirley e-mailed Mr. Rajasekhar to ask which tiles were still missing based on the map that Mr. Rajasekhar had shown him a month earlier. Mr. Rajasekhar‘s response only described background information regarding the map. Dr. Shirley replied that he only needed the number of tiles that were still missing. Again, Mr. Rajasekhar was argumentative and evasive: he gave explanations, but not the number of tiles that were missing. This dialogue went on for four or five e-mails. Ms. Small, who had been copied on all of the e-mails, finally e-mailed Mr. Rajasekhar to explain that all Dr. Shirley wanted to know was whether or not the imagery had been acquired and the number that were still missing. Mr. Rajasekhar finally provided that information to Dr. Shirley. Ms. Small and Mr. Rajasekhar were working in the same small office, which was only about 12 square feet, with their desks in opposite corners. After this incident, Ms. Small testified that Mr. Rajasekhar got up from his desk, put his hands on his hips, and said, ?[w]ell, I‘ve been excluded from the project, so I don‘t feel like I have to answer you,? or words to the effect. Ms. Small believed Mr. Rajasekhar was referring back to the UF watershed tour. Ms. Small felt that because she was a woman, Mr. Rajasekhar was not giving her the respect she deserved and that he was being insubordinate to her as his supervisor. Ms. Small told Mr. Rajasekhar that if he was going to be demeaning to her, he needed to leave the room. Mr. Rajasekhar did not leave, and Ms. Small decided that she should leave instead. After Ms. Small left the room, Mr. Rajasekhar e-mailed Dr. Shirley, with copy to Mr. Burgess, saying: ?A little while ago Andrea told me that I should not be working in this office and leave. Please let me know.? Mr. Burgess replied, ?Raj, You do not have to leave your office, continue working.? Dr. Shirley received complaints from both Ms. Small and Mr. Rajasekhar about the incident. Ms. Small told him she felt threatened and disrespected and Mr. Rajasekhar told him he felt as if his character had been attacked. Upon further inquiry, Dr. Shirley decided that Ms. Small had not been physically threatened, but rather that she was upset at Mr. Rajasekhar‘s ?posturing,? which she felt was inappropriate, as she was his supervisor. Dr. Shirley was very concerned with the misunderstanding that had occurred and with this type of interaction between his employees. Dr. Shirley was also concerned that he had not been able to easily get a simple answer from Mr. Rajasekhar. Dr. Shirley wanted to make things work. He wanted to get his employees working together and not lose the potentially very important contribution Mr. Rajasekhar could make to the Reserve. On January 30, 2012, Dr. Shirley met with Mr. Burgess, Ms. Small, and Mr. Rajasekhar to find out more details about the incident and to try to work out a plan for the future. In considering options to resolve the tensions, Dr. Shirley discovered after talking with Department personnel in Tallahassee that because Ms. Small and Mr. Rajasekhar were both serving in the position of Environmental Specialist I, that she could not technically be his supervisor, even though she had been serving in that role for about a month. On January 31, 2012, Dr. Shirley sent an e-mail to the three summarizing their meeting. The e-mail outlined several procedures to ?improve communication and efficiencies? with respect to GIS services. Among other items, the e-mail outlined that Mr. Rajasekhar would report to Mr. Burgess, Mr. Rajasekhar would provide a list of current GIS projects underway with milestones to completion, GIS projects would be completed using the best practically available data, notations would be made as to the accuracy of the product, and a summary report would be prepared by Mr. Rajasekhar at the completion of each project. The e-mail identified three projects as ?high priority?: SLAMM Model Inputs to the UF Team; the NERRS Habitat Mapping and Change Initiative; and the Reserve‘s Flow-Ways modeling effort. Dr. Shirley, Mr. Burgess, and Mr. Rajasekhar jointly developed a GIS analyst work plan for Mr. Rajasekhar. It listed seven major projects that he was to be working on, including the updating of ?burn maps,? SLAMM inputs to the UF group, the preparation of a GTMNERR Habitat Mapping plan, and generation of LIDAR based water flow ways. These projects included interim and final products, as well as due dates. Dr. Shirley was very pleased with the e-mail outlining workflow changes and the work plan, because he believed they reflected collaborative effort and he hoped and believed that they would improve operations at the Reserve and resolve some of the issues regarding Mr. Rajasekhar‘s employment. DEP Deputy Secretary Greg Munson was scheduled to visit the Reserve on May 25, 2012. Dr. Shirley prepared an agenda for the visit, establishing staff assignments and themes for various tours and briefings to complement DEP headquarters initiatives relating to restoration, ecotourism, and water resources. While some agenda items specified participation by specific staff members, Mr. Rajasekhar was not listed on any of these. Other items, including lunch at the Matanzas Inlet Restaurant, and a meeting with all Reserve staff, were open to everyone. Mr. Rajasekhar did not show up at the time and place scheduled for Deputy Secretary Munson to meet with staff, but Mr. Rajasekhar did meet with him for a short period shortly after the scheduled meeting time. Sometime in May, Mr. Rajasekhar e-mailed Dr. Kathryn Frank, head of the sea level rise project being conducted by the Reserve and UF, requesting that he be added as a co-principal investigator on the project ?for ethical reasons.? He did not let his supervisor, Mr. Burgess, or the director, Dr. Shirley, know that he was doing this. Dr. Frank explained to Mr. Rajasekhar that his contribution was appreciated, but that co-principal investigator status rested with the people who initially submitted the grant. Dr. Frank called Dr. Shirley to ask what was going on and to comment that the request was very strange. Dr. Shirley was concerned because of the important relationship between UF and the Reserve. On May 29, 2012, Mr. Rajasekhar was counseled by Dr. Shirley for inappropriately contacting the head of the UF project to request co-principal investigator status without even advising his superiors or getting their permission to do so. Mr. Rajasekhar indicated that he understood and would not do it again. On May 31, 2012, a meeting was held at UF on the sea level rise project. Dr. Shirley, Ms. Montgomery, Ms. Small, and Mr. Rajasekhar made the drive over. Mr. Rajasekhar was critical of the UF speakers and the SLAMM modeling that was presented. Dr. Shirley was not too concerned for the presenters themselves, because as scientists, he believed that they would be used to criticism. However, he later testified that he was concerned because Mr. Rajasekhar had offered no solutions, but had just criticized the accuracy of the model, with no constructive suggestions about how it could be improved. Then, during discussions at the meeting about emergency management issues relating to sea level rise and people getting away from the coast, Mr. Rajasekhar made the comment that he personally had a low income and would not be able to get out because he was at the poverty level. Dr. Shirley was concerned because he believed this personal reference was ?inappropriate,? that it was not true, and that it embarrassed the Department and presented the Department in a bad light. On June 4, 2012, Mr. Rajasekhar received an official ?oral? reprimand from Dr. Shirley for conduct surrounding the UF project team meeting and his comments regarding his personal income. The reprimand cited his behavior as a violation of DEP Standard of Conduct 435-7(a), Conduct Unbecoming a Public Employee. Mr. Rajasekhar was directed not to engage in further conduct that would bring discredit to DEP or to the State. The reprimand also noted that Mr. Rajasekhar ?barely spoke? on the two-hour drive to and from the meeting and did not walk with the rest of the delegation, but walked far in front of them. Dr. Shirley noted that this behavior was not unprofessional, but that it concerned him. The reprimand further advised that if Mr. Rajasekhar was having issues or problems that he felt he could not discuss with Dr. Shirley, that the Employee Assistance Program was available to him and to his family. When Mr. Rajasekhar was presented with the reprimand, he became defensive and argumentative. He denied having said that his income was at poverty level. However, Dr. Shirley did not believe this because the other Reserve employees present at the UF meeting confirmed that he had made that statement. Mr. Rajasekhar went on to tell Dr. Shirley that he felt he had been excluded from the Deputy Secretary‘s visit that occurred earlier in the month. Mr. Rajasekhar began talking about discrimination, saying that he had been a union representative at the Minnesota Department of Natural Resources and that knew what his rights were. Dr. Shirley was surprised at this response to the oral reprimand, because he considered it to be only a minor corrective action, not action leading toward dismissal or constituting significant discipline. Mr. Rajasekhar prepared a written response to the reprimand that same day. After presenting his differing recollection of the remarks regarding low-income housing and poverty-level incomes, his response went on to state in part: I appreciate you bringing your concerns about my behavior during the drive and the walk. Thanks for letting me know that the same is not un-professional. I participated in the work-related topics and fully acknowledge that I did not do so in non-work related topics (such as individual private matters). * * * Finally in future even if I am cautious, there inevitably would come some complaints that my conduct is unbecoming of a public employee in the eyes of some or few; for example when issues such as ethnicity/ demographics crop up. Would I then be subjected to more disciplinary action? Would minimizing (or possibly eliminating) my presence in public or other forums be helpful? Petitioner‘s presumably sarcastic reference to courses of conduct he should follow in the future when issues might arise involving ethnicity fell short of a direct claim that the oral reprimand was an act of discrimination. However, his response did indicate that Mr. Rajasekhar perceived some connection between his comments at the UF meeting, his national origin, and the reprimand. In response to Mr. Rajasekhar‘s statement during the meeting on the oral reprimand that he had felt excluded during the Deputy Secretary‘s visit, Dr. Shirley found the original e-mail that he had sent out to all of the staff with the agenda attached. Dr. Shirley forwarded this e-mail to Mr. Rajasekhar on June 4, 2013, stating that Mr. Rajasekhar had not been excluded and again explaining that due to the limited time, only a few aspects of Reserve functions that related to DEP priorities could be placed on the agenda. Shortly afterward, Ms. Zimmerman was coordinating preparation of NOAA Operations Grant progress reports. She sent out an e-mail at 12:38 p.m. on June 11 to several staff members, including Mr. Rajasekhar, explaining that two reports were due: progress report #4 on F0990; and the second progress report on F1001. Both of these reports were to cover the first half of the calendar year. She explained that she was attaching to the e-mail the remaining tasks from F0990 that she needed an update paragraph on, as well as a copy of progress report #3 so the staff could see what had been sent for the previous reporting period. She requested the update paragraphs by July 13, 2013, and advised that she would send out similar information on her request for the other grant report, F1001, shortly. At 2:37 p.m. on June 11, Mr. Rajasekhar replied to Ms. Zimmerman‘s e-mail by pasting two paragraphs from progress report #3 along with the following comments: I have gone through the documents and perused the items of relevance as requested by you. I seem to be in the dark and also somewhat confused. Below is the summary of what I just learned: (text pasted from progress report #3) * This is the first time; I am coming across this information in any significant way. I believe I have not been provided this document before for perusal. I have not been involved in any decisions either. (more text from progress report #3) * The above document contains much more information (GIS) and is concise (the way that would be ideal). However the information for most part is new to me. Flow ways update: I have not been privy to most of the information and neither have been involved (in any significant way) in any aspect of development. Habitat mapping and change plan Update: The same as above. Hence if you need professional, accurate and significant response from [sic], I request that I be more involved in the critical processes that produce these portions of the document so that I may be better equipped to do so. In addition it would greatly help some aspects of my work. Please let me know. Later that same afternoon, Ms. Zimmerman sent a second e-mail to several staff members, including Mr. Rajasekhar, specifically requesting input into the second progress report for NOAA F1001. She attached the original grant task text, as well as a copy of the previous progress report (July through December 2011) as an example of what she was looking for. The e-mail further identified the specific tasks each of the staff members was responsible for (Mr. Rajasekhar‘s were identified as Task 4, outcome 4; and Task 5, outcome 1), asking for an update paragraph by July 13, 2012. Ms. Zimmerman and Mr. Rajasekhar had further communications regarding the update paragraphs. He forwarded her e-mails he had sent earlier involving the two projects. She requested him to summarize this information into update paragraphs. He sent her another document. She asked him to carefully review her original e-mails and to submit an updated paragraph on each project. On June 12, 2012, Mr. Rajasekhar responded to Ms. Zimmerman, with copies to Dr. Shirley and Mr. Burgess, in part as follows: I have gone through the two documents (the relevant part). Both the documents contain information that is new to me for the most part. In addition, I have not been involved in producing or guidance of these documents. In fact very little of my time or efforts are spent on such activities. A very minor part of these large documents is in fact relevant to my performance. After spending significant time going through the documents and perusing the items of relevance, I am more confused. One document has items of relevance (4 & 1) as guided by you that I am not aware of till now. Had my work involved discussing or guiding these in any way, I would have been more equipped to adequately respond. More over when such documents come to my attention for response, I recommend that relevant part/s be sent to me so that I am not confused anymore and do not unnecessarily tax my time or efforts. These communications from Mr. Rajasekhar were not helpful to Ms. Zimmerman in preparing the progress reports. The tasks for which she was requesting update paragraphs from Mr. Rajasekhar involved the flow ways project and the Habitat Mapping and Change Plan, which were part of Mr. Rajasekhar‘s agreed-upon work plan and which had been identified as ?high priority? projects. Ms. Zimmerman sent an e-mail to Ms. Geraldine Austin, with copy to Dr. Shirley and Mr. Burgess, stating in part, ?[a]s a probationary employee the amount of oversight/direction needed of this employee and his response lead me to believe that termination is necessary.? On June 13, 2012, Dr. Shirley sent an e-mail to Mr. Larry Nall, interim CAMA Director, describing some of the incidents and concerns regarding Mr. Rajasekhar. In the discussion of the oral reprimand, the e-mail specifically mentioned Mr. Rajasekhar‘s references to discrimination. The e- mail also summarized the situation involving Ms. Zimmerman‘s attempts to update the progress reports for the NOAA grants. Dr. Shirley also forwarded the e-mail to Mr. Kevin Claridge, who had been hired to fill the open position of CAMA Director, but had not yet begun work. Dr. Shirley testified that he believed that the situations involving Mr. Rajasekhar were affecting staff, morale, teamwork, and the Reserve‘s partners. He found Mr. Rajasekhar‘s communications in response to requests from other staff members, including the assistant director and himself, to be often evasive and defensive. He believed that Mr. Rajasekhar defined his own duties very narrowly and that Mr. Rajasekhar‘s conduct and communications negatively impacted Reserve workflow and had the potential to damage the Reserve‘s partnerships. Mr. Rajasekhar was notified by letter signed by Mr. Kevin Claridge, Director of CAMA, that his employment was being terminated for failure to satisfactorily complete his probationary period, effective at close of business on June 29, 2012. This was a form letter used whenever it was found necessary to terminate the employment of a probationary employee. On October 5, 2012, Petitioner filed a complaint with the Commission, alleging that the Department had discriminated against him based upon his national origin, and had retaliated against him. In a November 7, 2012, Affidavit, Dr. Shirley set forth reasons for Mr. Rajasekhar‘s termination for submission to the Commission in response to Mr. Rajasekhar‘s complaint. It stated that Mr. Rajasekhar demonstrated ?inconsistent work performance and unacceptable behavior.? It noted that Mr. Rajasekhar had been counseled on occasions prior to his termination. It gave three reasons for Mr. Rajasekhar‘s dismissal: that his abilities were not consistent with the skills that had been reported on his job application, that Mr. Rajasekhar exhibited a defensive and negative attitude when confronted with expectations that were clearly within the scope of his job, and that on occasion Mr. Rajasekhar did not interact positively with other employees who depended on GIS support for their job functions. The Commission issued its Notice of Determination of No Cause on March 25, 2013, advising Petitioner of his right to file a Petition for Relief within 35 days. Petitioner filed his Petition for Relief on April 23, 2013. Mr. Rajasekhar was an excellent high-end geospatial analyst, but he had difficulty accepting any assignments not directly involving such analysis even though they were part of his job description. It is not entirely clear if this was because he was simply uncomfortable with some tasks, or unable to easily perform them, as appeared to be the case with some analyses involving hydrology or the calculation of Kappa statistics; or, alternatively, whether he simply felt such tasks were inappropriate for his position, which appeared to be the case with the preparation of burn maps and some tasks involving basic computer skills. In any event, his narrow definition of his job responsibilities adversely affected the work flow and made his work performance inconsistent. This affected team productivity at the Reserve. Mr. Rajasekhar never seemed to understand his role as part of the Reserve team. He made a request for a raise while still on probationary status, he made an inappropriate request for co-principal investigator standing directly to Dr. Frank without even notifying his superiors, and he indicated on more than one occasion that he believed he was being improperly excluded from events or activities at which his presence was not actually needed to support the Reserve mission. His relationship with other members of the Reserve team, including his superiors, was awkward, and at times his conduct was unacceptable and embarrassing to the Reserve. Mr. Rajasekhar was extremely sensitive to any comments about his performance. He became defensive and hostile at any suggestion that his performance was lacking in any way, and sometimes interpreted questions or comments that were not intended to question his performance as doing so. No evidence was presented to show that there were other probationary employees of the DEP who had received an oral reprimand and then continued to exhibit unsatisfactory behavior during the time that Mr. Rajasekhar was employed. Mr. Rajasekhar believed that he had been ?excluded? from the Secretary‘s visit and that there was a connection between his comments at the UF meeting, his national origin, and the reprimand. The comments Mr. Rajasekhar made in his oral and written responses to the reprimand to the effect that he had been discriminated against were statutorily protected activity. The actions of the Department toward Mr. Rajasekhar, and those of its employees, were not motivated in whole or in part by Mr. Rajasekhar‘s national origin. Mr. Rajasekhar‘s dismissal was not an act of discrimination or retaliation.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Mr. Dasyam Rajasekhar‘s Petition for Relief. DONE AND ENTERED this 11th day of September, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 11th day of September, 2013.
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.
