The Issue The issue in this case is whether Respondent committed an unlawful employment practice in violation of section 70-53 of the Pinellas County Code, by terminating Petitioner's employment allegedly because of her race. If so, an appropriate remedy will be determined.
Findings Of Fact SEP is a non-profit corporation that was formed by Regina Anderson in 2005, for the purpose of providing employment assistance to clients referred by the State of Florida Division of Vocational Rehabilitation (VR). Pursuant to two contracts with VR, SEP provides services to adult VR clients with mental and/or physical disabilities who need assistance searching for jobs, preparing for interviews, securing employment, and retaining the jobs in which they are placed. At all material times, SEP was a small business with between five and approximately 12 employees. These employees included: Ms. Anderson, who was SEP's president in charge of its day-to-day business; a varying number of employment consultants or "job coaches," to whom individual VR clients were assigned; a few part-time clerical and administrative support staff persons; and at times, a janitor. During the time period pertinent to this case, SEP operated out of two Tampa Bay area offices, one in Tampa and the other in Largo. Some employees worked exclusively from one office (such as Petitioner, who was based in the Largo office), while other employees split their time between the Tampa and Largo offices (such as witnesses Kathryn Reed, a job coach, and Kim Robinson, a part-time administrative assistant). Petitioner, a black female, was interviewed and hired by Ms. Anderson on May 1, 2010, as a job coach. Petitioner met the qualifications for the position, in that she had a college degree (in Criminal Justice), a vehicle with the requisite insurance, and experience in a similar position. Petitioner had worked for Goodwill Suncoast as a case manager for about 15 months prior to being hired by Ms. Anderson. Petitioner said that she left Goodwill because it was "a very negative environment." SEP has in place written policies and procedures that prohibit, among other things, discrimination on the basis of race, color, religion, sex, national origin, age, or disability. At the time of her hiring, Petitioner received a copy of Respondent's employee manual setting forth SEP's anti- discrimination policies. The racial and national origin composition of SEP's employees is, and during the time pertinent to this case was, diverse, with members of minority racial and national origin categories well-represented. Indeed, at times, more of SEP's employees were members of minority racial or national origin categories than not. Similarly, the VR clientele served by SEP is, and always has been, diverse in racial and national origin make-up. A majority of VR clients belong to a minority racial or national origin category. The duties of SEP job coaches are to provide appropriate individualized services to the VR clients assigned to them. These services might include helping the client prepare an individualized career plan (ICP), working with the client to develop a resume, conducting mock interviews to prepare the client for actual interviews, and helping the client look for and apply for jobs. Then, if a client secures employment, the job coach would follow up with the client, check with the employer regarding the client's performance, and help address any issues that might increase the chance that the client would be retained in the job. SEP is directly reliant on the success of its job coaches to generate revenue. Simply put, if VR clients do not get and keep jobs, SEP does not get paid under its VR contracts. These contracts provide for payment to SEP for job placement and thereafter at certain job retention benchmarks, such as at 45 days, 90 days, and 150 days. SEP's employee manual specifies, and all job coaches understand, that they are expected to place one client in a job in their first month of employment as a job coach; two placements are expected in the job coach's second month; and three placements or more are expected by the third month and every month thereafter. Petitioner understood these requirements. SEP's job coaches all worked on a full-time basis (40 hours per week). The job coaches all earned the same base pay: $15.00 per hour for 40 hours per week. All job coaches also received a monthly stipend of $150.00 to cover gas and other expenses incurred in using their own cars to perform their duties. In addition, all job coaches were eligible to earn a bonus in any month in which they were credited with more than five VR notices of approval (NOAs) for billings for any combination of placements and post-placement benchmarks. The bonus amount was 20 percent of the revenue brought in for each NOA over five. For example, if a job coach placed four VR clients and met post-placement benchmarks for two more VR clients in the same month, a total of six NOAs, that job coach would receive a bonus of 20 percent of the revenue for the sixth NOA. It was expected that approximately half of an SEP job coach's time would be spent "in the field," meeting prospective or actual employers of VR clients, setting up interviews, and carrying out other duties that could not be performed in the office. The other half of the job coach's time was spent on tasks that could be performed in the office: doing paperwork, including keeping up with VR reporting requirements for the job coach's assigned clients; searching for job leads in advertisements and following up with phone calls; scheduling appointments with VR clients, prospective employers, and employers of hired VR clients; and meeting with VR clients to develop career plans and resumes, or to conduct mock interviews. A great deal of autonomy and flexibility in the day-to- day schedule of a job coach is inherent in the position; those qualities made the position highly susceptible to abuse. Ms. Anderson was the boss, serving as the supervisor of job coaches and other employees at the two office locations. Ms. Anderson also did some job-coach work herself, which meant that she spent some time out in the field in addition to supervising two offices. Ms. Anderson tried to keep an eye out for job-coach employees who were taking advantage of the job flexibility and skimping on their 40-hour work weeks by doing personal business during their workday, such as using the computer at the office for personal matters, or leaving the office ostensibly for VR client business and spending some or all of the time on personal endeavors. Ms. Anderson instructed her administrative assistant to watch the job coaches and report any compliance issues she observed when the assistant was in the office (either in Largo or in Tampa) when Ms. Anderson was not there. Ms. Anderson also kept track of job-coach schedules, particularly for those job coaches who were not producing results for their VR clients. Ms. Anderson required that job coaches begin and end their workdays in the office: they were to start the day at 8:00 a.m. in the office and they were to end the day at 5:00 p.m. in the office. To ensure compliance, Ms. Anderson would call into the office at or shortly after 8:00 a.m., and the telephone would be passed around from employee to employee to verify their presence and get a report of their plans for that day. Ms. Anderson would call again or come in at 4:45 p.m., to check on each job coach. Ms. Anderson would allow quite a bit of deviation from these strict rules, but there was one strict proviso: the employee was required to call Ms. Anderson and obtain her permission first. Ms. Anderson was adamant about this direct- telephone-call rule. If a job coach set up an early morning or late afternoon meeting with an employer, and the job coach wanted to be excused from the 8:00 a.m. or 5:00 p.m. office attendance requirement because of the conflicting appointment, the job coach was required to call Ms. Anderson in advance to request permission not to come into the office, and Ms. Anderson would give permission. If an employee was ill and was going to be absent all day, the employee was supposed to call Ms. Anderson before 8:00 a.m. Ms. Anderson wanted direct telephonic contact; anything else, such as an email, was not acceptable and tended to make Ms. Anderson angry and suspicious. During Ms. Mitchell's 13 months as a job coach with SEP, she had several run-ins with Ms. Anderson regarding Ms. Mitchell's failure to comply with these procedures. Ms. Anderson verbally counseled Ms. Mitchell and reprimanded her in writing (in emails) regarding Ms. Mitchell's failure to call first before being absent, failure to call first before coming in late or leaving early, and failure to account for the time she claimed to be spending in the field. For example, in a series of back-and-forth emails on November 10 and 11, 2010, Ms. Anderson admonished Ms. Mitchell for coming in late because she did not answer the phone at the office one morning. Ms. Mitchell responded that she was there but was on another call and could not tell there was an incoming call. Then Ms. Anderson issued a written disciplinary warning reprimanding Ms. Mitchell for leaving 15 minutes early the next day, after having just been verbally counseled. Ms. Mitchell retorted that she only left five minutes early, not 15 minutes early; that technically, she did not leave early at all because she was still "on the premises" (in the parking lot, in her car, talking on her cell phone, after turning out the lights and locking up the building); and that she was being disciplined prematurely because her prior verbal counseling was for coming in late, not for leaving early. Ms. Mitchell refused to sign the written disciplinary warning because she believed it was unjust and she complained that she could not work effectively while having her integrity questioned. Ms. Anderson reminded Ms. Mitchell that she had been counseled verbally numerous times, both for coming in late and for leaving early; Ms. Anderson responded that "I do not recall several of the other conversations you mentioned in your email to the degree in which you described them."3/ On November 12, 2010, the day after these back-and- forths, Petitioner sent an email to Ms. Anderson, stating: "I'm ill and will not be in today. Have a nice day." Ms. Anderson wrote back to remind Petitioner that she still needed to call in before 8:00 a.m., as they had previously discussed, and that an email stating that she would be out the whole day was unacceptable. The SEP employee manual emphasizes these rules in section 4.1, which provides: If you are unable to report to work for any reason, notify your supervisor before regular starting time. You are responsible for speaking directly with your supervisor . . . Using email to report being absent or tardy IS NOT acceptable under any circumstances. . . . Not calling or using email to report being absent or tardy is grounds for termination. Petitioner's failure to abide by these requirements was grounds for termination, but Petitioner was not terminated. During Ms. Mitchell's 13 months of employment at SEP, she was not productive as a job coach. In fact, she never met the standards for job placements in any month of her employment.4/ Ms. Anderson was very tolerant of Ms. Mitchell's substandard performance. Ms. Anderson testified credibly that she probably kept Ms. Mitchell on the payroll longer than she should have, but did so because she liked Ms. Mitchell. Ms. Mitchell acknowledged that until June 13, 2011, she did not experience any discrimination by Ms. Anderson or anyone else at SEP. All of the evidence suggests that Ms. Anderson was exceedingly tolerant of Petitioner and other employees not performing as well as they should, regularly violating the employee rules they agreed to abide by, and taking advantage of the flexibility of the job coach position. At the heart of Petitioner's charge of discrimination are the events that took place between Monday and Wednesday, June 13-15, 2011. The precursor to these events occurred during the prior week. The credible testimony of record established that the last day of the regular school year for Pinellas County schools, before summer recess, was Tuesday, June 7, 2011. The next day, Petitioner arrived at the Largo office at around 8:00 a.m. with her two sons, who were ages three and seven at the time. Darlene Sahlin, a white female, was a newly-employed job coach who had just started working in the Largo office that week. Ms. Sahlin credibly testified that she saw Ms. Mitchell sitting at her desk in her office that morning, and that Ms. Mitchell's two boys were with her. When Ms. Mitchell saw Ms. Sahlin, Ms. Mitchell whispered "shhh" to her two boys and pushed them under her desk. Petitioner spoke with Ms. Anderson during that morning's check-in call shortly after 8:00 a.m., but Petitioner did not tell Ms. Anderson that she had her children in the office with her, nor did Petitioner ask Ms. Anderson for permission to have either child in the office.5/ This is a matter addressed by the employee manual, which provides that visitors to the office must be authorized. As soon as Petitioner finished her morning check-in conversation with Ms. Anderson, Ms. Sahlin observed Petitioner gathering up her sons and their belongings, and they left the office and did not come back the rest of the day. Ms. Sahlin knew this, because as a new job coach, she did not yet have any field work and was spending the entire day in the office reviewing files and learning how to do paperwork. Ms. Sahlin credibly testified that the same pattern was followed on Thursday and Friday, June 9 and 10, 2011: Petitioner came to the office at around 8:00 a.m. with her two boys, and stayed only until after she spoke with Ms. Anderson at the morning check-in call; then she left with the boys and did not return all day. On Friday afternoon, Ms. Sahlin told Kim Robinson, the part-time administrative assistant who split her time between the Largo and Tampa offices, about this curious pattern followed by Ms. Mitchell that week; Ms. Robinson had not been present in the Largo office on the three mornings when Petitioner brought her sons to work and then left. Ms. Sahlin asked whether job coaches were allowed to bring their children to work and whether they could leave for the day the way Petitioner had been doing. Ms. Robinson responded strongly that Ms. Anderson would be very upset to know what Petitioner had been doing, and that Ms. Sahlin had to tell Ms. Anderson. Ms. Robinson and Ms. Sahlin both ended up telling Ms. Anderson about Ms. Sahlin's observations. Ms. Robinson was under instructions from Ms. Anderson to serve as her "eyes and ears" when Ms. Anderson was not there; it was Ms. Robinson's responsibility to observe whether employees were following the rules and to report anyone who did not follow the rules. At around the same time that Ms. Robinson told Ms. Anderson about Petitioner having brought her children to the office, Ms. Robinson also reported to Ms. Anderson that job coach Kathryn Reed had been committing rules violations. Ms. Robinson informed Ms. Anderson that Ms. Reed had been coming in late and leaving early without first calling Ms. Anderson for permission. On Monday, June 13, 2011, Petitioner had a normal conversation with Ms. Anderson during the regular morning check- in call. Although Ms. Anderson knew at that time about Petitioner having brought her children to work the prior week without permission, Ms. Anderson did not bring up that subject. Ms. Anderson credibly testified that, although she was angry that Petitioner had not followed rules by telling Ms. Anderson and asking permission to have the children in the office or asking for time off because of problems arranging for a babysitter, Ms. Anderson still would not have terminated Petitioner's employment based on these violations, despite Petitioner's other compliance and performance issues. Later that morning, Petitioner called Ms. Anderson to complain about an email from Ms. Anderson announcing an upcoming change to the pay periods. Petitioner had just received a full month's pay on June 5, 2011, but understood the change to mean that in two weeks, her next paycheck would be for less than a full-month's pay (which would stand to reason if she had just received one-month's pay). Petitioner complained that employees should get more than two weeks' notice, and told Ms. Anderson the change was "not fair." Ms. Anderson responded that if Petitioner wanted to talk about "not fair," then what was really not fair was Petitioner bringing her children to work without asking permission first, and without telling Ms. Anderson that she had done so. At first, Petitioner denied that she had brought any children to work. Ms. Anderson then told Petitioner that Ms. Sahlin had reported that she saw Petitioner with her children in the office. Petitioner then admitted the incident in part (see endnote 5), and ended the call. After Petitioner got off the phone with Ms. Anderson, Petitioner went straight to Ms. Sahlin's office to confront her for telling on Petitioner. Ms. Reed went with Petitioner to confront Ms. Sahlin. Ms. Sahlin was seated at her desk in her small office, which was approximately eight feet by eight-to-ten feet in size. Petitioner, a tall, large-framed woman, stood in front of Ms. Sahlin's desk. Ms. Sahlin was perhaps as tall as Petitioner, and though not petite, she was more slender than Petitioner. With Ms. Sahlin seated and Petitioner standing in front of her desk, Petitioner would have been an imposing figure. In addition, Ms. Reed stood in Ms. Sahlin's doorway; as Ms. Reed explained it, there would have been no room for her to also enter the office, as small as the office was. Ms. Sahlin could not have exited without running into Ms. Reed or unless Ms. Reed retreated. Although the testimony regarding some of the details of this confrontation was in dispute, the core facts were admitted. To the extent the testimony was in dispute, Ms. Sahlin's version is accepted as more credible and more consistent with the core admitted facts. According to Ms. Sahlin, Petitioner confronted her in an accusatory, threatening manner. Petitioner shook a finger in Ms. Sahlin's face and called her a "snitch" for reporting to Ms. Anderson that Petitioner had her boys in the office. Ms. Reed's presence in the doorway served to make Ms. Sahlin feel trapped, because she could not have left through the doorway with Ms. Reed blocking it. Petitioner ended the confrontation by telling Ms. Sahlin that she should not speak to Petitioner and should act like Petitioner does not exist when Ms. Sahlin sees her. Ms. Sahlin was understandably shaken by this confrontation, not in the sense of feeling physically threatened by Petitioner and Ms. Reed, but rather, in the sense of being a new employee confronted by the two experienced employees who held the same position she did. She was left wondering how she was going to be able to manage working while being frozen out in this fashion. Petitioner's version of this confrontation differed only as to the details regarding tone and physical posturing. Petitioner admitted that she went to Ms. Sahlin's office to confront her about telling Ms. Anderson that she had brought a child to work one day the prior week, and that Ms. Reed was with her the whole time. While Petitioner attempted to characterize her confrontation as "simply ask[ing] her in a respectful tone" why Ms. Sahlin told Ms. Anderson, the very fact of Petitioner’s going into Ms. Sahlin's small office, with Ms. Reed in tow, and standing over a seated Ms. Sahlin for the purpose of asking why Ms. Sahlin told on Petitioner, was inherently confrontational. This was not a neutral inquiry, such as if Petitioner had asked Ms. Sahlin what she was working on. Moreover, Petitioner's announcement to this new employee that she should pretend that Petitioner did not exist when she saw her in the future is inherently threatening, serving as a warning that Petitioner intended to freeze out this new employee, not cooperate with her or be helpful, as punishment for Ms. Sahlin having snitched on her. Ms. Sahlin called Ms. Anderson to complain about Petitioner's confrontation. Ms. Anderson had Ms. Sahlin document her complaint in writing, which was done by Ms. Sahlin that same day. June 13, 2011, proved to be quite the drama-filled day. In addition to the Mitchell-Reed confrontation with Ms. Sahlin, Ms. Reed had her own confrontation with Kim Robinson about Ms. Robinson telling on Ms. Reed. Ms. Reed was the instigator. She followed Ms. Robinson into an office, closed the door behind them, and proceeded to accuse Ms. Robinson of being a "snitch" by telling Ms. Anderson that Ms. Reed had been coming in late and leaving early. Ms. Robinson responded that it was part of her job to be a snitch. In describing this confrontation, Ms. Reed did not attempt to characterize her tone as simple or respectful, although she disputed Ms. Robinson's testimony that she used off- color language in threatening Ms. Robinson. Regardless of what was said, once again the very nature of the encounter, instigated by Ms. Reed, was inherently confrontational and threatening. Ms. Reed made it clear that she did not want Ms. Robinson to report her again, while Ms. Reed believed that to be her responsibility. Ms. Robinson complained to Ms. Anderson about Ms. Reed's confrontation and documented the complaint in writing. Ms. Anderson apparently was not in the Largo office during all of the drama on June 13, 2011, but after spending a good part of her day fielding complaints from the Largo office, she informed each of the four employees--Petitioner, Ms. Reed, Ms. Sahlin, and Ms. Robinson--that there was too much drama and they were being too emotional, and she directed each of them to take the rest of the day off without pay. Ms. Anderson called Petitioner on her cell phone that day after Petitioner left the office for field work, to discuss the confrontation with her. Ms. Anderson told Petitioner that she knew Petitioner had gone into Ms. Sahlin's office, and asked Petitioner how she could have scared that old lady the way she did. Petitioner admitted that she spoke with Ms. Anderson that day, but did not say how she responded to Ms. Anderson's question or what else was said about the incident. Petitioner did remember that she was told to take the rest of the day off without pay, but Petitioner claimed she did not know that the other three employees were also sent home without pay. Petitioner did not go to work the next day. Instead, she called Ms. Anderson to inform her that she would be out sick. At the hearing, Petitioner testified that she was "all stressed out" because she had been sent home without pay and without being asked to tell her side of the story. Ms. Anderson sent an email to Petitioner later in the morning on June 14, 2011, telling Petitioner to contact her when she was on her way to the office the next morning, and not to go in the office without checking with her first. That next morning, June 15, 2011, Petitioner went to the office and found Ms. Anderson waiting for her in the parking lot. Petitioner went into the office with Ms. Anderson, where she found that her belongings had been packed up. Petitioner stated that she knew what that meant, and Ms. Anderson confirmed that Petitioner was being terminated for creating a hostile work environment by her confrontation with Ms. Sahlin. At some point, Petitioner learned that Ms. Reed had been terminated the day before while Petitioner was taking a sick day for her stress. Ms. Reed was informed that she was being terminated for creating a hostile work environment by her confrontation with Ms. Robinson. Petitioner's claim at issue here is that she was terminated because of her race. As evidence of that claim, Petitioner asserts that Ms. Anderson took Ms. Sahlin's word and never asked Petitioner for her side of the story regarding the June 13, 2011, encounter; that Petitioner was sent home without pay; and that she was fired, when Ms. Sahlin was not fired. Petitioner asks for the inference that because she is black, Ms. Anderson is white, and Ms. Sahlin is white, the termination must have been based on race. The credible evidence does not support a finding that Petitioner was terminated because of her race. Instead, the credible evidence establishes that Petitioner could have been, and perhaps should have been, but had not been, terminated for a number of legitimate business reasons: her performance that was far below the required standards; her documented violations of the established office rules requiring advance telephone calls to obtain permission for late arrivals, early departures, and days off; and her dishonesty in bringing her children to work three days in a row without permission, and never disclosing that fact to her boss until Ms. Sahlin reported her. The credible evidence establishes that the last straw that caused Petitioner to be terminated was Petitioner's confrontation with Ms. Sahlin, in which Petitioner's behavior was inappropriate and threatening, ending on Petitioner's warning to Ms. Sahlin that she could expect such hostility to continue. To the extent Ms. Reed's treatment bears on the validity of Petitioner's charge, the credible evidence establishes that, like Petitioner, Ms. Reed could have been terminated for any number of legitimate business reasons prior to June 14, 2011, including substandard performance as a job coach and noncompliance with rules, but that the last straw that caused her to be terminated was when Ms. Reed confronted Ms. Robinson in an inappropriate and threatening way, on the same day that Ms. Reed joined Petitioner to confront Ms. Sahlin.6/ While it is factually correct to observe that both of the instigators of these confrontations were black, and both persons who were confronted and whose reports led to the terminations were white, the credible evidence establishes that the terminations were because of the confrontations, not because of the race of the instigators.7/ The evidence does not establish, as Petitioner argued, that she was not asked for her side of the story because of her race. Instead, Ms. Anderson testified with a great deal of credibility that she did not ask Petitioner to give her side of the story because Petitioner admitted the confrontation. As to the details, by that point in their employment relationship, Petitioner had earned Ms. Anderson's mistrust. It would not have mattered what Petitioner said to explain the confrontation, not because Petitioner was black, but because Ms. Anderson believed that Petitioner had been dishonest with her before, had shown a propensity to deny everything, and could not be trusted. Ms. Anderson also testified that she believed Ms. Sahlin's description of the confrontation because Ms. Sahlin was a new employee on her best behavior and would have no reason to lie. In other words, Ms. Anderson had not yet come to distrust Ms. Sahlin. Rather than a function of race, this was a function of time; before long, Ms. Anderson would come to distrust Ms. Sahlin just as she distrusted Petitioner. Ms. Anderson's perspective through which she considered the events of June 13, 2011, could be fairly summarized this way: at the time of the Mitchell-Reed confrontation with Ms. Sahlin, Ms. Anderson knew that Ms. Sahlin had, in fact, reported that Petitioner brought her children to work; Ms. Anderson also knew from her own past encounters with Petitioner regarding rules violations that Petitioner would try to deny any violations, just as she tried to deny that she brought children to work until she learned that Ms. Sahlin, an eyewitness, had reported her. Knowing these facts, it was reasonable for Ms. Anderson to find Ms. Sahlin's description of the confrontation to be credible. This was not a situation in which both Ms. Sahlin and Petitioner were accused of wrongdoing, with both of them pointing the blame at the other one. Instead, Petitioner was the instigator of a confrontation and Ms. Sahlin was the person confronted. Petitioner admitted this much. Finally, Petitioner offered, as circumstantial evidence that she was terminated because of her race, the alleged disparate treatment of Ms. Sahlin.8/ According to Petitioner, Ms. Sahlin committed many more egregious violations during the roughly seven months of her employment at SEP until the end of 2011 when she was terminated or otherwise ended her employment under unpleasant circumstances.9/ The credible evidence does not establish that Ms. Sahlin was treated more favorably than Petitioner, nor does the evidence establish that Ms. Sahlin's employment record was comparable to, or worse than, Petitioner's. Petitioner remained employed at SEP as a job coach for 13 months; Ms. Sahlin lasted at SEP as a job coach for only about half that long. Petitioner's performance and productivity as a job coach were shown to be well below the established standards. To meet the required standards, Petitioner should have secured at least 37 job placements while employed as a job coach at SEP. Instead, according to SEP’s business records, she only secured three job placements in total: one in January 2011, one in March 2011, and one in April 2011. Ms. Sahlin's performance was also described as below standards, but the only comparative testimony on this subject was that Ms. Sahlin's performance was better than Petitioner's. From the perspective of job performance and productivity, it appears that Petitioner was treated more favorably than Ms. Sahlin by continuing to draw the same salary for twice as long as Ms. Sahlin, despite being more of a financial drain on SEP. Petitioner and Ms. Sahlin both engaged in their fair share of rule violations during their employment, such as failing to call in for permission to come in late or leave early, failing to document their schedules upon request, using the work computer for personal business, and talking back to, or arguing with, Ms. Anderson.10/ The details and timing of Ms. Sahlin's transgressions were not documented in the record and thus cannot serve as the basis for meaningful comparison. However, it was documented that during her seven-month tenure at SEP, not only was Ms. Sahlin verbally counseled and reprimanded in writing, but she was also suspended three times without pay: the first time on June 13, 2011, when she was sent home early without pay (along with Petitioner, Ms. Reed, and Ms. Robinson); the second time, in November 2011, when she was suspended for three days without pay; and the last time, when she was suspended for two weeks without pay, after which she was either terminated or left under unpleasant circumstances that were tantamount to termination. In contrast, during Petitioner's 13-month tenure at SEP, she was disciplined by written reprimand and verbal counselings, and she was only suspended once without pay when she was instructed to take the rest of the day off without pay on June 13, 2011. Once again, it appears from the evidence that if anything, Petitioner was treated more favorably than Ms. Sahlin, not the other way around. Ms. Anderson reasonably articulated the single biggest difference between Petitioner's record and Ms. Sahlin's record: Ms. Sahlin's transgressions never involved the sort of confrontational, threatening behavior directed at another employee that Petitioner engaged in. The fact that Petitioner was terminated as a result of having confronted Ms. Sahlin is not evidence that Petitioner was treated less favorably than another employee who is not in a protected category. There was no evidence that any other employee engaged in similar confrontational, threatening behavior directed to another employee and was not terminated as a result. The only evidence of another employee engaging in similar confrontational, threatening behavior was with respect to Ms. Reed, and her confrontation of Ms. Robinson, for which she was terminated. An equally reasonable explanation for Petitioner's termination, not articulated by Ms. Anderson, was offered by Ms. Sahlin. Ms. Sahlin, who was subpoenaed to testify, was the only witness to testify against what her personal interests would dictate, which added to the credibility attributed to her testimony by reason of the substance of what she said and her demeanor. Ms. Sahlin testified that despite being terminated, and despite the bad working relationship she and Ms. Anderson had, and despite the fact that--quite candidly--she does not like Ms. Anderson, Ms. Sahlin strongly rejected the notion that Ms. Anderson was motivated by racial discrimination in terminating Petitioner. Instead, Ms. Sahlin explained that Ms. Anderson had serious trust issues as a result of having been taken advantage of in the past. From this perspective, the terminations of Petitioner and Ms. Reed are understandable because their confrontations threatened the "snitch" system that was critical to Ms. Anderson as a means to guard against job coaches taking advantage of her again. Based on the totality of the more credible evidence, Petitioner failed to meet her burden of proving that Respondent engaged in unlawful discrimination. Petitioner did not prove her charge of discrimination that her employment was terminated because of her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent Supported Employment Plus, Inc., did not commit an unlawful discriminatory employment practice as charged, and dismissing Petitioner Shakaria Mitchell's charge of discrimination. DONE AND ENTERED this 30th day of August, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 30th day of August, 2013.
The Issue Whether the Respondent’s predecessor engaged in discriminatory employment practices by retaliation against Petitioner by discharging him, and giving him poor employment references thereafter because of a claim of discrimination Petitioner had filed with the Human Relations Commission alleging racial discrimination in denying Petitioner a promotion.
Findings Of Fact The Petitioner is Fitzgerald Wesley, a black male. The E-Z Serve is a corporation employing more than 15 employees which purchased Sunshine Jr. Food Stores, which was a corporation also employing more than 15 employees. E-Z Serve admits having assumed liability for Sunshine’s actions. Petitioner was employed by Respondent at Store 322 as an Assistant Manager, and was discharged by the Respondent on or about September 23, 1993. Petitioner performed a range of services for Respondent in store number 322 and was being trained to handle the responsibilities of managing this store. When the store’s manager left, Petitioner thought he would be considered for the promotional opportunity; however, he was not promoted to the opening which was filled by a white male. Feeling he had been discriminated against, the Petitioner filed a Charge of Discrimination with the Commission on Human Relations raising the issue of racial discrimination in denying him the promotion. This case was forwarded to the Division of Administrative Hearings, Case No. 93-5059, and was ultimately closed for failure to prosecute. On or about September 23, 1993, the new manager of Store 322, Greg Grubbs, discharged the Petitioner without stating a reason for the action.1 The Petitioner applied for a similar position at a Suwannee Swifty convenience store down the street from Store 322. This store was managed by Kimberly Littman. Ms. Littman testified at the hearing. She was manager of the Suwannee Swifty store at which Petitioner applied for employment. Because of his prior experience, Ms. Littman was interested in hiring him. She contacted Greg Grubbs, who was the manager of Store 322 and the person who had discharged Petitioner. Ms. Littman asked Mr. Grubbs about the Petitioner’s work history. Mr. Grubbs advised Ms. Littman that Petitioner was a hard worker and did his job well, but Mr. Grubbs stated that Petitioner was prejudiced against customers. Ms. Littman concluded that Mr. Grubbs meant the Petitioner was prejudiced against White customers because the Petitioner was Black. Mr. Grubbs said he would not re-hire the Petitioner because he was prejudiced against customers. Notwithstanding the negative comment of Mr. Grubbs, Ms. Littman hired the Petitioner who went to work for her within three days of his discharge by Respondent. Petitioner’s wage was slightly lower; however, Petitioner did not have exact information regarding his wage loss. Petitioner represented himself and presented no evidence regarding his costs in presenting his case. Petitioner presented no evidence of mental anguish. Petitioner referenced other positions for which he applied; however, he did not present evidence that other potential employers had spoken with Mr. Grubbs. Petitioner eventually left the employment of Suwannee Swifty after being robbed two times. The Petitioner filed a Charge of Discrimination with the Commission of Human Relations on March 28, 1994, based upon retaliation. In was investigated and a “no cause” determination was made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Commission on Human Relations enter a final order finding that the Respondent engaged in retaliation against the Petitioner and direct the Respondent to take action to prevent any re-occurrence of this conduct with other employees; however, in the absence of any demonstrated injury or costs of litigation, the Petitioner not be awarded any damages or costs. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998.
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by the Department of Corrections (Respondent) due to Petitioner's age in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner, Paul Sondel, was born on August 13, 1928. He was 72 years old at the time that he applied for Respondent's Position No. 01891/Education Supervisor I. His application was timely received by Respondent personnel. The minimum qualifications for the education supervisor were, inter alia, two years' teaching experience and possession, or eligibility for a current professional State of Florida Educator's certificate in adult or vocational administration. Mary Bass, a personnel technician for Respondent, reviewed all applications for the education supervisor position to make an initial determination as to whether applicants met the required minimum qualifications. She was not required to telephone applicants concerning the minimum qualifications and relied solely upon the information contained on the employment applications to make the initial determination of eligible applications. She completed her review of all applications in the same manner. Further, her inspection was done without regard to the ages of the applicants as set forth in the applications. In reviewing Petitioner's application, Bass could not determine whether Petitioner, in fact, had two years of teaching experience; nor could she determine that he currently possessed or was eligible for a professional State of Florida educator's certificate in adult or vocational administration. Since his application did not contain information indicating that either of these two minimum qualifications had been met, Bass determined that Petitioner did not meet minimum qualifications for the job and did not merit further consideration. Had Bass made a determination that Petitioner's application did meet minimum qualifications, such a determination would have merely permitted inclusion of his application with other eligible applicant applications and would not have necessarily led to an interview or obtainment of the position by him. Based on Bass' initial screening of his application, Petitioner was notified by Respondent personnel via letter dated January 24, 2001, that he had not been selected for the position of Education Supervisor 1. As established by the evidence adduced at final hearing, the individual eventually hired by Respondent for the position at issue in these proceedings had six years of teaching experience and current possession of a State of Florida teaching certificate. The age of this individual is not in evidence. Mary Bass' determination that Petitioner's application did not meet minimum qualifications for the position of Education Supervisor 1, was based solely on a good-faith review of Petitioner's application. Bass had no agenda that included dispensing with Petitioner's application on the basis of his age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Petition for Relief. DONE AND ENTERED this 13th day of March, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 D. Paul Sondel 2135 Victory Garden Lane Tallahassee, Florida 32301-8507 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner, Ruthye Smith, was discriminated against on the basis of her race when she was not selected for two administrative positions with the Brevard County School Board in 1998.
Findings Of Fact Respondent, Brevard County School Board, is the public entity that operates the public schools in Brevard County, Florida, and is the employer of teachers, administrators and other personnel involved in operating public schools. Petitioner, Ruthye Smith, is an African-American female, who has been employed by Respondent as a teacher since 1973. Respondent utilizes a state-approved Human Resource Management and Development Plan, known by the acronym "HRMD," for the training, evaluation, and selection of principals, assistant principals, and deans. HRMD utilizes an interview process for personnel selection called "targeted selection" which identifies "dimensions" for each employee position that are developed through an in-depth job analysis of each position. The targeted selection interview process is designed to evaluate a candidate's qualifications for a position by assessing the candidate's responses to questions designed to reveal the candidate's ability to fulfill requirements of the dimensions identified for the particular position. "Targeted selection" identifies the following seven dimensions for the assistant principal position: communication, decisiveness, leadership, energy and tolerance for stress, planning and organization, control/monitoring, and technical/professional knowledge. A candidate for a principal, assistant principal or dean position is questioned/interviewed by two certified targeted selection interviewers in one-on-one interviews. These interviewers are principals or former principals who have been promoted to director or assistant superintendent and who have received specific training in utilizing the targeted selection process. Each interviewer rates and scores the candidate in separate interviews, evaluating the candidate's responses to certain questions from an interview guide that provides questions directly related to the seven dimensions. The result is a "dimension rating" with a range from a low of 1 to a high of 5 in each of the seven dimensions. After each interviewer has concluded his or her interview, the interviewers confer and form a consensus of the dimension ratings generated by the candidate's responses and prepare a data integration form which documents a consensus dimension rating given the candidate by the interviewers for each targeted dimension. A candidate for selection to an administrative position such as principal, assistant principal, or dean is not deemed qualified unless the candidate scores at least a consensus 3 in each of the seven targeted dimensions. Respondent typically pursues three initial steps in the personnel selection process: advertising the position, evaluating applicants to see if they meet basic criteria, and giving candidates who meet the basic criteria targeted selection interviews. In the instant case, in April 1998, Petitioner applied for two advertised assistant principal positions. Having met the criteria for consideration, Petitioner was given two targeted selection interviews on June 10, 1998. The data integration form prepared by the interviewers records a consensus score of 1 in each of the seven targeted dimensions. Based on the targeted selection interviews and the resultant consensus scores, Petitioner did not score the consensus 3 in each of the seven targeted dimensions required to qualify for consideration for the assistant principal positions. Utilizing the same targeted selection interview process, Respondent identified other qualified candidates who were selected for the positions; both of the candidates selected were Caucasian females.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 22nd day of May, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2003. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Levi G. Williams, Esquire Fertig & Gramling 200 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Kelly Services, Inc., engaged in a discriminatory employment practice and/or retaliated against Petitioner, Harry Boggs.
Findings Of Fact There is no dispute that Mr. Boggs suffers from a qualifying handicap, namely, Autism, under the Florida Civil Rights Act of 1992 (“FCRA”). Kelly Services concedes this point.3 Based on the weight of the credible evidence, Mr. Boggs failed to establish by a preponderance of the evidence that Kelly Services engaged in employment discrimination against him on the basis of his handicap. OCPS forbade Kelly Services from allowing Mr. Boggs to act as a substitute teacher in any of its schools because he violated its policy by failing to report his 2016 arrest. Mr. Boggs also violated Kelly Services’ policies by failing to report the arrest. Although his handicap may have contributed to the arrest, the weight of the credible evidence did not prove that the handicap caused him to violate these employment policies. Further, similarly situated employees who did not have a known handicap but failed to report arrests were also precluded from serving as substitute teachers; in fact, all but one of them was terminated. Although Kelly Services had reasonable, nondiscriminatory grounds to terminate Mr. Boggs, it did not do so. Instead, it offered to accommodate him by moving him to the commercial division. But, he rejected that 3 In July 2019, Mr. Boggs underwent another psychological evaluation by a licensed clinical psychologist as part of his application for vocational rehabilitation with the Department of Education. The psychologist diagnosed him with Autism Spectrum Disorder, Post-Traumatic Stress Disorder as a result of the death of his mother and resulting eviction, and Adjustment Disorder with Mixed Anxiety and Depressed Mood. accommodation and demanded instead to be reinstated as a substitute teacher in OCPS—a demand that Kelly Services lacked authority to meet. Mr. Boggs could make that choice, but doing so undermines any claim that Kelly Services failed to accommodate him as a result of his handicap. Based on the weight of the credible evidence, Kelly Services also did not engage in retaliation against Mr. Boggs for disclosing his handicap. To the contrary, the evidence established that Mr. Boggs violated the policies of OCPS and Kelly Services by failing to report his arrest, which resulted in his deactivation as a substitute teacher irrespective of his handicap. And, though Kelly Services had legitimate, nondiscriminatory reasons to terminate Mr. Boggs entirely, it nevertheless offered to accommodate him through its commercial division. That offer treated Mr. Boggs better than his similarly situated counterparts who were terminated for similar violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Harry Boggs, failed to establish that Respondent, Kelly Services, committed an unlawful employment practice against him and dismissing his Petition for Relief. DONE AND ENTERED this 23rd day of November, 2020, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S ANDREW D. MANKO 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 23rd day of November, 2020. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Harry Scott Boggs General Delivery Orlando, Florida 32802 (eServed) Misbah Shahid, Esquire Kelly Services 999 West Big Beaver Road, 2nd Floor Troy, Michigan 48084 Daniel P. Hart, Esquire Seyfarth Shaw, L.P. 1075 Peachtree Street, Northeast Atlanta, Georgia 30309 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue in this proceeding is whether Petitioner was the subject of unlawful employment practice based on sex.
Findings Of Fact Since November 2006, Petitioner, Michael J. Pappas, was a male employee of Respondent, Bay County School Board. Initially, he was employed as a part-time substitute teacher at Patronis Elementary School (Patronis). Patronis has an “A” ranking under Florida’s school accountability program and was ranked as a Top 100 School in 2005. Eventually, Petitioner became a full-time para-professional (aide) assigned to work exclusively with an autistic child enrolled at the school. Ellie Spivey (female), the principal at Patronis, recommended Petitioner for the full-time position. Petitioner was hired under an annual contract. In addition to his employment with Respondent, Petitioner served as Captain of a Dolphin tour boat he operated out of Panama City. In his para-professional position, Petitioner worked with Art Beakley (male) and Mary Martin (female). Both were third grade teachers at Patronis. Mr. Beakley was Petitioner’s direct supervisor and, like Petitioner, had been recommended for his teaching position by Ellie Spivey. Petitioner’s performance as a para-professional was mixed. At best, both teachers indicated Petitioner’s performance was adequate, when he was present at the school. Often Petitioner was absent from school or left school early to go on dolphin tours. Petitioner often did not notify either teacher that he would be absent. Petitioner told Mr. Beakley that he could make more money as a boat captain on the dolphin tours. On the days Petitioner was absent, the autistic student’s mother would act as his caretaker during the day. Eventually, both teachers complained to the principal about Petitioner’s absences from school. The principal did not discipline Petitioner because the absences were taken on allowable personal leave days. However, Petitioner’s clear preference for working the dolphin tours as opposed to working at the school did not reflect well on his dedication or enthusiasm for a career at the school. Brooke Loyed, an Assistant Principal at Patronis, evaluated Petitioner’s employment based on her observations of Petitioner. She was unaware of Mr. Beakley’s and Ms. Martin’s complaints regarding Petitioner’s absences. On April 3, 2007, Petitioner received a good evaluation with no problems noted. However, funding for Petitioner’s para-professional position was not available for the next school term. In mid-to- late April 2007, Petitioner was advised his contract would not be renewed. That same month, after learning of the non-renewal, Petitioner asked Mr. Beakley and Ms. Martin for a letter of recommendation. Mr. Beakley reluctantly agreed to give Petitioner a letter of recommendation and drafted a letter highlighting Petitioner’s good-qualities. The letter did not mention Petitioner’s absences and lack of enthusiasm. Initially, Ms. Martin refused to sign the letter by making excuses about why she had not signed the letter drafted by Mr. Beakley. However, she finally signed the letter so that Petitioner would stop asking her to do so. Ms. Martin now regrets that she signed the letter. In May 2007, Ms. Spivey was developing classes and personnel pairings for the next school term. She asked Kara Powell, a teacher at Patronis, if she was willing to work with a full-time para-professional in her classroom. Ms. Spivey did not indicate to Ms. Powell who the para-professional would be. Ms. Powell was not aware that Petitioner’s contract would not be renewed for the next term. Ms. Powell told Ms. Spivey that she would not be interested in working with a para-professional in her classroom if that person was Petitioner. Ms. Powell told Ms. Spivey that Petitioner made her uncomfortable because he would sit very close to her in the lunchroom and that he sometimes made comments she did not care for. She also told Ms. Spivey that Petitioner had once invited her and some other female teachers to go on a dolphin tour in their bathing suits without their husbands. Ms. Powell felt the invitation was inappropriate and made for sexual purposes. The evidence did not demonstrate that Petitioner invited the teachers to go on a dolphin tour for inappropriate reasons. From Petitioner’s point of view, the invitation was made to a group of teachers sitting as a group in the cafeteria during a light-hearted conversation at the table. He invited his co-workers because he thought they might enjoy going on a dolphin tour. He limited the invitation to his co-workers because his boat was not big enough to take spouses or boyfriends. On the other hand, other teachers confirmed Ms. Powell’s story, and also indicated that Mr. Powell made them feel uncomfortable. Since the school year was through and Petitioner’s contract was not going to be renewed, Ms. Spivey did not investigate further and did not take any formal action against Petitioner regarding the reports of these teachers. Eventually, due to the lack of funds, Petitioner’s contract expired and was not renewed. There was no evidence that demonstrated the non-renewal of Petitioner’s contract was based on Petitioner’s gender. In the summer of 2007, Patronis had several open teaching positions. Respondent advertised the positions for 5 days. Eventually, the District Office developed an applicant list for Patronis and forwarded it to the school. There were over 90 applicants on the list, of which almost 95 percent were female. A minimum of five applicants was required to be interviewed by the school with the same questions and scoring form used for each candidate. In June and July 2007, interviews for the open teaching positions were held at Patronis. Ms. Spivey and Ms. Loyed selected Petitioner for an interview. Other candidates were Sarah Patterson, Jessica Kelley, Debra Holbrook, Kim Rogers, Sasha Aufschieider and Jana Jackins. Petitioner did not have a good interview and did not promote himself or his qualifications during the interview. He was not particularly enthusiastic or upbeat about teaching. Other than his application, Petitioner did not bring any letters of recommendation or updated resume to the interview. He did not provide the Bleakley letter discussed earlier. He did not discuss current teaching methods or techniques even though the interview questions provided him an opportunity to do so. Importantly, Petitioner did not appear to be current with those methods. From his application, it was clear that he had received his teaching degree over 20 years ago and had had no full-time classroom teaching experience since that time. Petitioner refused to be considered for a special education teaching position. The refusal did not reflect well on his dedication or enthusiasm for teaching. Petitioner also had no “English as a second language (ESOL)” experience or certification. ESOL certification is a desirable skill for teachers today. Because of the poor interview and given the recent allegations that he made other teachers uncomfortable, Petitioner was not offered any of the open positions at Patronis. The evidence did not demonstrate that the reasons for not hiring Petitioner were invalid or a pretext to mask discriminatory action. The successful applicants for the open positions at Patronis were Sarah Patterson, Jessica Kelley, Debra Holbrook, Kim Rogers, Sasha Aufschieider and Jana Jackins. All of the candidates hired for the open positions were female. However, that fact alone is not demonstrative of discrimination given the fact that the applicant pool was almost 95 percent female. The evidence demonstrated that all of these candidates were more qualified for the open teaching positions than Petitioner. All of the applicants had better interviews. All showed more enthusiasm and dedication to teaching. All demonstrated that they had knowledge of the latest teaching methods and techniques. Finally, all scored higher in the interview. Kim Rogers had three years of teaching experience at a Title I school. Her Title I experience was a good indication that she had experience in teaching at-risk children. Sarah Patterson had a year of classroom experience and ESOL certification. She also was known to be a very hard worker at school. Jessica Kelley and Debra Holbrook were new teachers who had recently completed their teaching internship at Patronis. Both were current in the latest teaching methods and techniques and had demonstrated such during the interview. Both were highly thought of by their teaching peers. Sasha Aufschieider was ESOL-certified. She also was highly recommended by her peers. Likewise, Jana Jackins was highly recommended by her teaching peers. When Petitioner discovered that he would not be offered a position, he complained to Dr. Richardson at the District Office. At the time, he did not indicate that he thought he had been discriminated against based on his sex. Instead, he indicated that he thought he had been promised a position. Dr. Richardson determined that the District hiring policies had been followed. She offered to help Petitioner and contacted the principals at Cedar Grove Elementary School, a Title I school, and Surfside Middle School. On July 19, 2007, Petitioner interviewed at Cedar Grove Elementary for a position involving remediation of students who failed the FCAT. The school and the position required an enthusiastic and motivated person who could work with high-risk, failing students. The interview was conducted by the principal, Billy May (male). Petitioner performed adequately in his interview with Mr. May. Petitioner was not selected for the position. The successful candidate, Heather Six (female), was more qualified for the position. She scored higher and had ESOL certification. Indeed, there was no evidence that demonstrated Petitioner was discriminated against based on his sex when he was not hired for the Cedar Grove position. Similarly, Petitioner was not hired for the position at Surfside Middle School. The interview was conducted by the principal, Sue Harrell (female). Petitioner again did adequately in the interview. The successful candidate for the position was Kenneth Stem (male). As with Cedar Grove, there was no evidence of discrimination or pretext in the hiring of Mr. Stem over Petitioner and the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of January, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2009. COPIES FURNISHED: 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 Michael J. Pappas 6208 North Lagoon Drive Panama City Beach, Florida 32408 Robert C. Jackson, Esquire Harrison, Sale, McCloy, Duncan & Jackson, Chtd. 304 Magnolia Avenue Post Office Drawer 1579 Panama City, Florida 33402-1579
Findings Of Fact Pursuant to the Order of the Second District Court of Appeal, Dr. Spiegel was reinstated as Chairman of the Orthopaedic Department at the University of South Florida (USF), retroactive to October 31, 1988. He was given a contract as Chairman to run until October 19, 1990. On February 2, 1990, USF commenced proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department, and the matter was referred to the Division of Administrative Hearings for a formal 120.57(1), Florida Statutes, hearing. Prior to the commencement of the formal hearing, Dr. Spiegel's contract as Chairman of the Orthopaedic Department expired and was not renewed by the USF. On the expiration date of that contract, October 19, 1990, the USF proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department became moot. Dr. Spiegel's appointment as Chairman of the Orthopaedic Department ended as provided in this contract, the contract was not renewed, and Dr. Spiegel was no longer chairman of the Orthopaedic Department. Dr. Spiegel timely filed a grievance to challenge the non-renewal of his contract as Chairman of the Orthopaedic Department. By stipulation of the parties, the issues raised in the grievance merged into the instant proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department. Since that issue became moot with the expiration of Dr. Spiegel's contract on October 19, 1990, the only issue now remaining is whether the failure to renew Dr. Spiegel's contract was in violation of Dr. Spiegel's right to academic freedom or for the alleged impermissible violation of his First Amendment right to freedom of speech. In other words, the allegation is that Dr. Spiegel's contract was not renewed because he exercised the rights guaranteed to him under the First Amendment of the United States Constitution.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was the victim of an unlawful employment discrimination on the basis of her religion or age and whether the Petitioner was the subject of unlawful retaliation. If that should be the case, then the remaining issue concerns the type and amount of lost wages and other benefits as a remedy.
Findings Of Fact The Petitioner was a substitute teacher during most of 1990 with the Board and, as pertinent hereto, frequently substituted at Cordova. On or about November 6, 1990, she filed a complaint with the Commission charging discrimination against the Board and Cordova in hiring on the basis of religion and age. The Petitioner is of the Jewish faith and at the time of filing the complaint, was over the age of 40 years. The matter was investigated by the Commission which concluded that there had been no violation of Chapter 760, Florida Statutes. A notice of determination of no cause was issued by the Commission on November 8, 1991, and a notice of redetermination of no cause was issued on or about January 27, 1992. On approximately June 26, 1992, the Commission transferred the Petitioner's Petition for Relief to the Division of Administrative Hearings for formal proceedings. In that Petition, the Petitioner alleges discrimination on the basis of age, religion, and retaliation. The most recent date of discrimination alleged in that Petition is August, 1990. The Petitioner alleges that she was not hired as a teacher at Cordova because of reasons related to her Jewish faith and her age of over 40 years. The only act of "retaliation" alleged in the Petition related to Mr. Thomas not having selected her for a full-time position "in retaliation for the complaints expressed by the parents regarding the termination of my appointment." The "appointment", according to the Petitioner in the Petition, concerned the Petitioner being hired on a temporary basis to teach a kindergarten class with that appointment to be terminated when another teacher was transferred to the staff at Cordova. No testimony was presented at hearing by the Petitioner or any witness called on her behalf concerning any of the allegations set forth in the original complaint of discrimination filed with the Commission or contained in the Petition transferred to the Division of Administrative Hearings. The first witness called by the Petitioner was Mrs. Genie Nobles, a secretary at Cordova. Mrs. Nobles testified that at Cordova, when regular teachers need substitutes because of anticipated absences, those teachers generally contact the substitutes themselves and communicate with them themselves regarding the need for the substitute, as well as other necessary information concerning the requirements for the substitute teaching duties. On some occasions, teachers will ask administrative staff in the school office, whether it be Mrs. Nobles or another staff member, to call a specific person to substitute for that teacher. On a minority of occasions, the teachers may ask someone in the office to call a substitute without requesting a specific person as a substitute. On those occasions, the person making the calls will generally refer to an approved substitute teacher list and simply call someone on the list. Mrs. Nobles was aware that the Petitioner had filed a complaint of discrimination when a question was raised by a teacher during a staff meeting; and Mr. Thomas, on being asked whether such a complaint had been filed, confirmed that it had. Mr. Thomas made no editorial comment, however, regarding the nature or merits of the complaint nor expressed any opinion or admonition either for or against the hiring of the Petitioner as a substitute teacher. Mrs. Nobles could not recall calling the Petitioner as a substitute teacher at any period of time after the filing of the complaint in November, 1990. Mrs. Nobles also testified that Mr. Thomas did not ever direct request, intimate, infer, or advise her or any other administrative staff or teacher that the Petitioner should not be called as a substitute teacher either before or after the complaint of discrimination was filed with the Commission. Mrs. Nobles was aware that one or more regular teachers at Cordova had expressed reservations about the Petitioner's reliability as a substitute relative to her meeting the required schedule for substitute teaching. Ms. Marie Nelson is the librarian at Cordova. She acknowledged that a misunderstanding had occurred regarding scheduling of the Petitioner as a substitute teacher involving her schedule and that of another teacher, Ms. Holman. The Petitioner had made a commitment to Ms. Holman to substitute on specific days; however, Ms. Nelson needed the Petitioner for a longer period of time and requested Ms. Holman to release the Petitioner from her obligation to Ms. Holman so that the Petitioner could substitute for Ms. Nelson. Ms. Nelson recalls that Ms. Holman agreed to this. Due to some misunderstanding, however, Ms. Holman concluded at some point in time that the Petitioner had not fulfilled her commitment to her and became unhappy with the Petitioner as a substitute because she had not substituted as previously committed, at least in the view of Ms. Holman. Ms. Nelson testified that Mr. Thomas had never instructed her not to call the Petitioner as a substitute. She established that Mr. Thomas had never directed, inferred, intimated, advised, or otherwise communicated any intention that she should not call the Petitioner as a substitute, even after the filing of the complaint with the Commission in November, 1990. Ms. Nelson had not called the Petitioner after the filing of the complaint because, for a period of time, funds were not available for substitutes. After that period when funds were not available had elapsed, Ms. Nelson's daughter had become qualified to be a substitute teacher and was thereafter called by Ms. Nelson when the need for a substitute arose. Ms. Judy Meyer is a teacher at Cordova who testified on behalf of the Petitioner. Ms. Meyer testified that during the summer of 1992, she had asked the Petitioner if she would be available to teach on a substitute basis for a gifted class during that summer. Ms. Meyer later advised the Petitioner that she would not call her to substitute after all because she was seeking a teacher who was certified in gifted teaching, believing at that point that such certification was required. Ms. Meyer subsequently learned that gifted certification was not required for such a substitute teacher but, in the meantime, had already scheduled another person to be a substitute teacher. That person was not certified in certified teaching either since, in the meantime, Ms. Meyer had learned that such certification was not required. Ms. Meyer had asked Mr. Thomas, after initially inquiring as to the petitioner's availability to teach the gifted class, as to whether he had any objections to her calling the Petitioner as a substitute. Mr. Thomas told her that he would leave that decision up to her. Mr. Thomas never directed, instructed, inferred, advised or otherwise showed intent to or otherwise tried to influence Ms. Meyer against calling the Petitioner as a substitute teacher. Ms. Meyer did testify that she felt somewhat uncomfortable about calling the Petitioner once she knew that she had filed the complaint of discrimination. Ms. Meyer made a personal decision not to call the Petitioner to substitute during the summer session on the occasion described above. It is not shown that that decision was influenced in any way by Mr. Thomas or other supervisory personnel. The Petitioner called no other witnesses other than the three witnesses referenced in the above Findings of Fact. No testimony was elicited by the Petitioner from these witnesses in her case-in-chief concerning any discrimination in hiring on the basis of religion or age. Mr. Charles Thomas testified on behalf of the Respondent. He was the Principal at Cordova during times material to the subject complaint and is now Principal at Pleasant Grove Elementary School in Escambia County. Sometime after the Petitioner filed the complaint in November, 1990, a teacher inquired of him at a staff meeting concerning a rumor she had reportedly heard that such a complaint had been filed. Mr. Thomas did not elicit that inquiry and did not previously disclose to any staff members the fact of the existence and filing of the complaint. Upon being questioned directly by that teacher, however, he did truthfully acknowledge that a complaint had been filed; but he made no further comment regarding the complaint as to its merits, accuracy, or any other editorial comment concerning it. Mr. Thomas, as did the teachers and other staff members who testified in the Petitioner's case-in-chief, testified and established that he had never instructed, directed, inferred, intimated, admonished, or advised any teacher or staff member against calling the Petitioner as a substitute teacher. Mr. Thomas was aware that some members of the staff, specifically Ms. Holman and Ms. Vinson, were unhappy with the Petitioner concerning her reliability and availability as a substitute when scheduled. He understood that Ms. Holman's unhappiness stemmed from an incident involving the Petitioner committing to Ms. Holman for a period of time as a substitute and thereafter agreeing instead to substitute for Ms. Nelson, the instance referenced in the above Findings of Fact. He was unaware of the basis for Ms. Vinson's concern about the Petitioner's reliability as a substitute teacher. He simply could not recall the details of the reasons she had reservations concerning the Petitioner's substituting. The Respondent also called the Petitioner as a witness. The Petitioner testified that prior to filing the complaint of discrimination in November, 1990, she had substituted on several occasions at Cordova and that after filing the complaint, she was not called again to serve as a substitute. She acknowledged the truth of the statement in her deposition of August 3, 1993; that after the filing of the complaint, approximately one year prior to that deposition, Ms. Hall, a teacher at Cordova, had inquired as to her availability to substitute and the Petitioner had turned down the offer because she was unavailable, since she was performing a job concerning civil service testing at the time Ms. Hall required her services. The Petitioner acknowledged that a dispute had occurred with Ms. Holman concerning her availability and that Ms. Holman was upset because she had a perception that the Petitioner had not fulfilled her commitment. She also acknowledged a scheduling commitment to another teacher, Ms. Hall, and that she had changed her schedule and agreed instead to substitute for Ms. Nelson rather than Ms. Hall. The Petitioner testified that Ms. Hall was not upset but that Ms. Nobles was somewhat upset at having to make an additional call to locate another substitute for that occasion. The Petitioner also acknowledged that Ms. Vinson did have concerns regarding her availability as a substitute but simply believed that Ms. Vinson did not have a factual basis justifying that concern. Thus, by the Petitioner's own acknowledgment, Ms. Vinson did have a concern militating against her calling the Petitioner as a substitute teacher regardless of whether that concern was factually justified. The Petitioner acknowledged that subsequent to the filing of the complaint in November of 1990, she had been called on other occasions to be a substitute teacher at several other elementary schools operated by the Board. She was not aware of any perception in those other schools of any concern among faculty members regarding her availability or reliability as a substitute teacher. The Petitioner has established that she is a member of a protected class, being over the age of 40 years and being of a particular religious faith (Jewish). She has not established, however, that she was either not hired as a substitute teacher or teacher or that she was terminated and that available teaching or substitute teaching positions were instead given to non-Jewish teachers or to teachers under the age of 40 years.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 3rd day of January, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3911 Petitioner's Proposed Findings of Fact The petitioner's proposed findings of fact are not all amenable to specific rulings since they are intertwined with legal argument and discussions and recitations of testimony. The paragraphs are not numbered and, therefore, to the extent the proposed findings of fact can be ruled upon, the paragraphs are referenced in this Appendix with a number which corresponds to the serial order of the paragraphs as they appear in the Petitioner's post-hearing pleading. Accepted. Accepted, to the extent that it establishes the rationale for the charge of discrimination and retaliation. Accepted. Rejected, as constituting legal argument and not a proposed finding of fact. Rejected, as constituting legal argument and not a proposed finding of fact, and as being a misstatement of the law. Rejected, as not in accord with the preponderant weight of the evidence and as constituting legal argument and not a proposed finding of fact. Accepted. Rejected, as constituting legal argument and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as argument concerning the weight and reliability of testimony and evidence and not a proposed finding of fact. Rejected, as argument concerning the weight and reliability of evidence and not a proposed finding of fact. Rejected, as constituting legal argument and not a proposed finding of fact. Rejected, as constituting legal argument over the weight, quantity and quality of evidence and not a proposed finding of fact. Rejected, as constituting legal argument over the weight, quantity and quality of evidence and not a proposed finding of fact. Accepted, as to the first three sentences but not as to the purported material import of the remainder of the paragraph. Accepted, but not itself a materially dispositive finding of fact. Rejected, as constituting legal argument and argument concerning the quantity and quality of the evidence and as not supported by the preponderant weight of the evidence. Respondent's proposed Findings of Fact 1-24. Accepted. COPIES FURNISHED: Roger Goldberg 675 Tambridge Circle Pensacola, Florida 32503 Joseph L. Hammons, Esquire HAMMONS & WHITTAKER, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Dr. William Maloy Superintendent Escambia County School Board P.O. Box 1470 Pensacola, FL 32597-1470 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue Whether Petitioner had a contractual obligation, which it breached, to employ Respondent during the 2009-2010 school year, and, if so, what damages should be awarded.
Findings Of Fact The following is a verbatim recital of the Joint Stipulation of Facts filed by the parties on June 8, 2012: Lurana Hillard (Respondent) was employed by the St. Lucie County School District (Petitioner) as a Program Specialist for School Psychology and School Psychologists beginning in the 2005/2006 school year. Respondent was a participant in the Florida Retirement System ("FRS") and its Deferred Retirement Option Program (hereinafter "DROP"). Respondent's initial 60-month period of DROP was from July 1, 2002 through June 30, 2007. In January 2007, Respondent signed a document requesting to extend her participation in DROP beyond the initial 60- month period. A true and correct copy of the Form is attached as Exhibit B.[1/] Barbara Casteen is the Director of Student Services and Respondent's supervisor. On January 12, 2007, Barbara Casteen sent Steve Valencia, Director of FTE/Position Control, an email with a copy to Respondent regarding DROP extension. A true and correct copy of that email is attached as Exhibit A.[2/] On January 16, 2007, DROP Extension forms [sic] prescribed by the Florida Retirement System were executed by Respondent and Steve Valencia. A true and correct copy of the Form is attached as Exhibit B. Mr. Valencia had the authority, as the Superintendent's designee, to execute the form advising that that the School Board stipulates that the Respondent was eligible to participate in DROP beyond the initial 60- months. On January 23, 2007, at a regularly scheduled School Board meeting, the Board approved the Personnel Agenda which included DROP extension for Respondent.[3/] Attached is a true and correct copy of the Personnel Agenda for the January 23, 2007 meeting and minutes from the same.[4/] The Board has taken no subsequent formal action regarding Respondent's DROP status. On May 26, 2009, Barbara Casteen sent Respondent a letter advising that she would not recommend her for reappointment for the 2009-2010 school year. A true and correct copy of this letter is attached as Exhibit C. On June 30, 2009, Respondent signed a Notification of Separation from Employment Form. A true and correct copy of that Form is attached as Exhibit D. On July 29, 2009, the School Board approved Respondent's retirement. A true and correct copy of a letter from Shelby Baker, Personnel Records Specialist and Employer Notification of Employment Termination are attached as Exhibit E. Respondent initially submitted a letter of resignation pursuant to the DROP statute dated June 30, 2007. Based on request to extend DROP, Respondent submitted another letter of resignation dated June 30, 2010 pursuant to the DROP statute. Respondent received from FRS a Revised Notification of DROP Extension Benefits which is attached as Exhibit F. Attached is a true and correct copy of the FRS DROP Termination Notification as Exhibit G. Apart from the documents referred to herein, Respondent was issued no documents by the St. Lucie County School Board reflecting her employment status during the period of her DROP extension. The body of the January 12, 2007, email from Ms. Casteen to Mr. Valencia attached to the parties' Joint Stipulation of Facts as Exhibit A (1/12/07 Email) read as follows: I am approving the DROP extension for Lurana Hillard for 3 years from 7/1/07 to 6/30/10. If you need any further information, please feel free to contact me. The "Form" attached to the parties' Joint Stipulation of Facts as Exhibit B is a completed Department of Management Services, Division of Retirement (Division) form--Form DP-EXT (05/05) (DROP Extension Form)--signed in January 2007, by Ms. Hillard and by Mr. Valencia, as the Superintendent's "designee".5/ On this completed and signed DROP Extension Form (Executed Extension Form or Form), Ms. Hillard indicated that her "DROP begin date" was July 1, 2002; that her "DROP termination and resignation date" was June 30, 2007; and that she was "requesting to extend [her] DROP participation through 6/30/10 with the approval of [her] employer." The "Employer Certification" section of the Form contained the following statement made to the Division by Mr. Valencia, as the Superintendent's designee: This is to certify that the St. Lucie County School Board (agency name) has rescinded the resignation of the above named member whose position meets the definition of an instructional position. The agency has approved a new termination date of 6/30/10. This agency stipulates that this member is eligible to participate in the DROP beyond 60 months and the member will continue working in a regularly established position as a School Psychologist.[6/]
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of St. Lucie County issue a Final Order declining to award Ms. Hillard the relief requested in her Petition. S DONE AND ENTERED this 18th day of July, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2012.
