03-000197 Willie B. Smith vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, March 31, 2004.

Summary: Respondent showed legitimate reasons for giving Petitioner a written reprimand. Petitioner failed to show that the reasons for dismissal were pretextual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE B. SMITH, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0197

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

________________________________)

RECOMMENDED OR DER

A hearing was held pursuant to notice in the above - styled

cause on March 9, 2004, by Stephen F. Dean, assigned

Administrative Law Judge of the Division of Administrative

Hearings, in Chattahoochee, Florida.

APPEARANCES

For Petitioner: Anita L. Davis

Qualified Representative

708 Brag Drive

Tallahassee, Florida 32305

For Respondent: Jacqueline H. Smith, Esquire

Department of Children

and Fami ly Services

Post Office Box 1000

Chattahoochee, Florida 32324 - 1000

STATEMENT OF THE ISSUE

Whether the Petitioner was discriminated against based upon

his race when he was disciplined for absenting his p ost contrary

to Chapter 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On December 10, 2001, the Petitioner filed a charge of

discrimination based upon his race for a written reprimand he

received from his employer, the Respondent. On or about

January 3, 2002, the Petitioner filed an amended charge of

discrimination. The Florida Commission on Human Relations

issued a “Notice of Determination: No Cause” in this case, and

the Petitioner filed a timely request for a formal

administrative hearing on January 15, 2003. The Petitioner’s

request for hearing was forwarded to the Division of

Administrative Hearings on January 22, 2003.

The parties were sent an initial order on January 23, 2003,

and, there being no response, the matter was set for hearing on

Apri l 11, 2003, by a Notice of Hearing dated February 26, 2003.

On April 4, 2003, the Petitioner requested a continuance and the

matter was reset for July 16, 2003, by an Order Granting

Continuance and Re - scheduling Hearing dated April 25, 2003. On

July 9, 2 003, the Petitioner again requested a continuance, and

stated that he was to be represented by Mrs. Anita L. Davis,

who, at that time, had not requested recognition as a Qualified

Representative. The formal hearing was again continued and

reset for formal hearing by Order dated July 11, 2003, during

the week of September 8 through 12, 2003, for two days to be

determined after Mrs. Davis’ qualification had been determined.

Thereafter, the Petitioner filed in his own behalf on July 29,

2003, a motion to hav e an independent investigation of

discrimination that was denied by an Order dated August 22,

2003. A status conference was requested by the Respondent to

address various problems, but, pending the conference, the

hearing set for the week of September 8 - 1 2, 2003, was continued.

On December 1, 2003, an Order Setting Status Conference was

issued setting a status conference for January 5, 2004. On

December 4, 2003, the Respondent filed a Motion for Summary

Final Order. The status conference was held, and it was

determined that Mrs. Davis was qualified, and directed to file a

Notice of Appearance. On January 28, 2004, the case was noticed

for hearing on March 2, 2004, and on January 30, 2004, the

Respondent’s Motion for Summary Order was denied.

Mrs. Davis moved by letter on January 2, 2004, to continue

the hearing because her mother was sick, and the case was

continued one week, until March 9, 2004. Thereafter, the

Respondent advised this office that the Petitioner was

personally attempting to serve subpo enas upon witnesses at the

State Hospital where they and the Petitioner are employed. This

is contrary to the rules governing the service of subpoenas.

A conference call ensued in which it was directed that the

Petitioner could mail subpoenas to the att orney for the

Respondent, who would forward them to the Human Relations

Officer at the hospital. These instructions are memorialized in

the Order Granting Continuance and Re - scheduling Hearing on

March 2, 2004.

The hearing was held on March 9, 2004, as noticed. The

Petitioner testified in his own behalf, and presented two

exhibits. The Respondent presented the testimony of Jimmie L.

Williams, Roger Howell, Amy Bryant, William T. Parker, and Steve

Mears, and presented a composite exhibit consisting of 3 5

documents plus one additional document.

Both parties submitted post - hearing filings which were read

and considered.

FINDINGS OF FACT

1. The Petitioner, Willie B. Smith, is an African - American

male. He is now and was at the time of the incident s involved

in his complaint employed by the Respondent, Department of

Children and Family Services, at Florida State Hospital as a

guard in the forensic (prison) unit.

2. The Petitioner is part of a bargaining unit that is

represented by the Florida Pol ice Benevolent Association.

3. On November 15, 2001, at approximately 1:05 a.m., the

Petitioner contacted his Shift Supervisor, Jimmie Williams, an

African - American male, and requested to leave his assigned post

in Tower B and go to Unit 3 at the hospita l and pick up food

from a fish fry. Williams approved the Petitioner’s leaving his

post to get the food and to return to his post after getting the

food.

4. At 2:35 a.m., Williams was contacted on the radio by

the Control Room Officer, Jo hnny Smith, who indicated that the

Petitioner wanted to talk to him on the telephone. Williams

provided Johnny Smith a telephone number at which the Petitioner

could reach him, and the Petitioner called Williams a short time

later.

5. The Petitioner inf ormed Williams that he had spilled

diesel fuel on his uniform and asked permission to take the

remainder of the shift off. Williams asked the Petitioner where

he was, surprised that the Petitioner was some place other than

at his post. The Petitioner ref used to identify where he was,

and Williams denied his request for leave.

6. Realizing that the Petitioner was not at his post,

Williams proceeded to Tower B and manned that post until the

Petitioner arrived there at 3:04 a.m. When he arrived at Towe r

B, Williams asked the Petitioner where he had been, and the

Petitioner stated he had been at the Florida State Hospital gas

station. Williams had checked the Florida State Hospital gas

station looking for the Petitioner and was aware that the

Petitioner had not been there. At this point, angry words were

exchanged and the Petitioner admitted that he had not been at

the gas station.

7. Williams wrote up an incident report that initiated a

formal investigation into the Petitioner's having absented

himse lf from his post while on duty without proper

authorization. The Petitioner was advised of the investigation,

and he requested that the PBA represent him in the investigation

pursuant to the provisions of the collective bargaining

agreement.

8. At the Pe titioner's specific request, Steve Mears, from

the Tallahassee Office of the PBA, represented the Petitioner in

this matter.

9. During the course of a break in a meeting held with

regard to the investigation, the Petitioner mentioned to Mears

voluntaril y changing duty stations, and Mears raised this

request with representatives of the Respondent, including

William T. Parker, now Chief of Security. As a result, the

Petitioner was re - assigned from the forensic unit to the central

forensic unit because thi s was the only place where there was a

vacancy. His shift and days off remained the same, which did

not constitute a transfer under the terms of the contract. Such

a re - assignment was not subject to being grieved under the terms

of the bargaining agreeme nt. See testimony of Parker and Mears.

10. The Petitioner's days off changed from the first and

third weeks of the month to the second and fourth weeks of the

month, but the days of the week remained the same. Although the

evidence supports a finding th at this move was voluntary, it is

not material because, under terms of the bargaining agreement,

such a re - assignment was not subject to a grievance.

11. The investigation established sufficient cause for the

Respondent to issue an official letter of re primand to the

Petitioner for absenting his post without permission. Pursuant

to internal policy, the Petitioner's new supervisor, Roger

Howell, who had had nothing to do with the incident upon which

the reprimand was based, issued the letter. See testim ony of

Howell and Bryant.

12. The Respondent introduced the Employee's Handbook,

dated Mary 29, 2001, which the Petitioner had received. The

book contains the Standards for Disciplinary Action, which

include absences without authorized leave. This provi sion

provides that for the first occurrence of Absence Without

Authorized Leave, the section under which the Petitioner was

disciplined, the violator can be given a range of punishments

from a written reprimand to dismissal. See testimony of Bryant.

13. Evidence was received that these penalties have been

imposed upon employees of the Respondent without regard to race

or gender. See testimony of Williams.

14. At the hearing, the Petitioner expressed his concern

that his reprimand had been signed by some one who had no

knowledge of the incident, and stated that he felt he had

permission to leave his post. He also introduced a doctor's

excuse (Petitioner's Exhibit 2); however, the date of the

doctor's visit did not relate to the date of the incident.

15. The supervisor who signed the letter of reprimand and

the personnel specialist who prepared the letter testified that

it was policy for an employee's supervisor to sign the

reprimand, even if he or she personally did not have knowledge

of the events.

16. Mr. Williams testified regarding his authorization to

the Petitioner to leave his post to get food. He was very

credible. He expected the Petitioner, in accordance with

regular procedure, to leave his post, get his food, and return

to the post immediat ely, being absent from the Tower for

approximately 30 minutes. This was the normal process for

getting food during a shift. The Petitioner was gone for two

hours, and gone for over an hour without Williams being aware

that Tower B was not covered.

17. There was significant evidence introduced that none of

the actions complained of by the Petitioner were motivated by

racial animus. The disciplinary action taken by the Petitioner

was at the lower end of penalties that could have been imposed.

The compl ainant, Williams, was also an African - American.

18. The PBA representative, whom the Petitioner

specifically requested over the regular one at the hospital,

testified regarding the events leading up to the Petitioner's

re - assignment. The Petitioner sou ght a change of assignment and

voluntarily accepted the change. See the testimony of Mears and

Parker.

19. There was no evidence adduced to show pretext.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties a nd the subject matter pursuant to

Chapters 120 and 760, Florida Statutes.

21. The Petitioner initiated a Petition for Relief

alleging that he had been disciplined and transferred because of

his race, contrary to Section 760.10.

22. The evidence pr oduced at hearing showed that the

Petitioner's "transfer" was a re - assignment under terms of the

collective bargaining agreement to which the Petitioner was

subject. The Respondent could re - assign personnel at will, and

re - assignment was not subject to gr ievance. In sum, re -

assignment was not an adverse personnel action.

23. Regarding the letter of written reprimand, the

Respondent presented evidence to show that the Petitioner

absented himself without authority from his guard post, an

action for whic h he could have been dismissed for the first

offense. The Respondent had sufficient cause to issue the

Petitioner a written reprimand, which it did in accordance with

its internal procedures. The Respondent had a legitimate, non -

discriminatory reason for issuing the letter of reprimand.

24. None of the evidence presented indicates that the

discipline imposed was a pretext for racial or other illegal

discriminatory animus.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law s et forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations dismiss the

Petition for Relief filed by the Petitioner.

DONE AND ENTERED this 31st day of March 2004, in

Tallahassee, Leon County, Florida.

S

STEPHEN F. DEAN

Ad ministrative 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 March, 2004.

COPIES FURNISHED:

Anita L. Davis, Qualified Representative

708 Brag Drive

Tallahassee, Florida 32305

Jacqueline H. Smith, Esquire

Department of Children

and Family Services

Post Office Box 1 000

Chattahoochee, Florida 32324 - 1000

Cecil Howard, General Counsel

Human Relations Commission

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Human Relations Commission

2009 Apalachee Parkway, Suit e 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.