STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OSCAR JACOBS, )
)
Petitioner, )
)
vs. ) CASE NO. 93-2527
)
DEPARTMENT OF THE LOTTERY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Robert T. Benton, II, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 19 and 20, 1993, in Panama City, Florida.
APPEARANCES
For Petitioner: Cecile M. Scoon, Esquire
36 Oak Avenue
Panama City, Florida 32401
For Respondent: Louisa H. Warren, Senior Attorney
Department of the Lottery Capitol Complex
Tallahassee, Florida 32399-4011 STATEMENT OF THE ISSUES
Whether the Respondent, the Florida Department of the Lottery, discriminated against the Petitioner, Oscar Jacobs, on account of his race in denying him equal opportunity for training, compensation, use of new equipment, time off from work, leave, retention and advancement?
PRELIMINARY STATEMENT
On or about November 16, 1992, the Petitioner filed a Charge of Discrimination against the Respondent with the Florida Commission on Human Relations (hereinafter referred to as the "Commission").
The Commission subsequently determined that the Respondent had not committed a discriminatory employment practice by "Determination: No Cause" entered March 29, 1993.
The Petitioner filed a Petition for Relief with the Commission seeking a formal administrative hearing. On May 6, 1993, the Commission filed the Petition for Relief with the Division of Administrative Hearings and requested assignment of a Hearing Officer. On May 25, 1993, the Respondent filed an Answer to Petition for Relief denying the alleged discrimination.
The case was assigned to Robert T. Benton, II. Hearing Officer Benton scheduled the final hearing for November 19, 1993, by Notice of Hearing entered July 2, 1993.
On December 29, 1993, the case was reassigned to the undersigned.
At the final hearing the Petitioner testified on his own behalf and presented the testimony of Steve Sumner, Gloria Jacobs, Hannah Davis, Debra Chason, Mary Jane Silcox, Charles Frederick, and Minnie Jane Sapp. The Petitioner also offered 41 exhibits into evidence. Petitioner's exhibits 1 through 40 were accepted into evidence. Petitioner's exhibits 1 and 2 consisted of the deposition testimony of Ms. Chason and Mr. Sumner.
A ruling on Petitioner's exhibit 41, an affidavit from Linda Gray, was reserved. At the close of the final hearing on November 20, 1993, it was agreed that the hearing would be reconvened on Wednesday, November 24, 1993, to take the testimony of Ms. Gray. Hearing Officer Benton, therefore, withheld a ruling on the affidavit until Ms. Gray's testimony was taken. See Page 673 of the Transcript of the Final Hearing.
The portion of the hearing scheduled for November 24, 1993, was subsequently cancelled because of the unavailability of Ms. Gray. During a telephone conference with the parties on February 8, 1994, it was agreed that Ms. Gray's testimony would be taken and submitted by deposition. On March 23, 1994, the deposition testimony of Ms. Gray/Horsley was filed. Ms. Gray's affidavit is hereby accepted as Petitioner's exhibit 41. Ms. Gray's deposition testimony is accepted into evidence as Petitioner's exhibit 42.
During the final hearing the Respondent presented the testimony of Charles Kingary, Jeff Johnson and Ms. Chason. The Respondent presented eighteen exhibits, which were accepted into evidence.
The parties were informed during the telephone conference between the undersigned and the parties that they could file proposed recommended orders. Proposed recommended orders were to be filed within twenty days after the later of the filing of the transcript or Ms. Gray's deposition.
The transcript of the final hearing was filed on February 25, 1994. Ms.
Gray's deposition was filed March 23, 1994. The parties were informed by telephone that their proposed recommended orders were due April 12, 1994.
A proposed recommended order was filed by the Respondent on April 12, 1994.
No proposed recommended order was filed by the Petitioner. The Respondent's proposed recommended order contains proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
The Parties.
The Petitioner, Oscar Jacobs, is an Afro-American. His race is black.
The Respondent, the Florida Department of the Lottery (hereinafter referred to as the "Department"), is an agency of the State of Florida.
District 2 of the Department.
In the fall of 1987 the Department created a district office in Panama City, Florida.
The Panama City office of the Department was part of District 2 (hereinafter referred to as the "District"). The District consisted of Bay, Calhoun, Gulf, Jackson, Holmes and Washington Counties.
Steve Sumner was hired as the District Manager for the District in October of 1987.
Mr. Sumner hired the staff of the District in November of 1987.
The District had the following type of positions:
District Manager. The District Manager was in charge of the District office and was the immediate supervisor of the employees in the District. Among other things, the District Manager was responsible for: (1) the assignment of the geographic areas LSRs were responsible for including the designation of retailers located therein that the LSRs were to service; (2) the approval of leave; and (3) the assignment of vans.
Lottery Sales Representative II (hereinafter referred to as an "LSR II"). LSR IIs were responsible for inventorying lottery ticket stock sold at retail locations, settling accounts with retailers for all lottery tickets sold, ordering lottery ticket books, reviewing settlement calculations, training retailers, completing paperwork necessary for retailers to become a lottery outlet, completing paperwork upon the termination of a retailer as a lottery outlet, ensuring that retailers operated within Department rules, soliciting, conducting and monitoring retailer promotions and recruiting new retail accounts. See Petitioner's exhibit 4 for a complete description of an LSR II's job description.
Lottery Sales Representative I (hereinafter referred to as an "LSR I"). LSR Is were responsible for delivering lottery tickets, picking up redemption envelopes from retailers and comparing them with issuance/settlement forms, assisting retailers, maintaining paperwork and daily activity reports and filling in for, and assisting, LSR IIs. See Petitioner's exhibit 4 for a complete description of an LSR I's job description. Each LSR I was assigned to work with one particular LSR II.
Storekeepers. Storekeepers were responsible for receiving, verifying and sorting incoming orders for lottery tickets, receiving and verifying ticket redemption envelopes and ticket returns, and insuring that materials were distributed. See Petitioner's exhibit 4 for a complete description of a Storekeeper's job description.
A Receptionist.
An Accountant I.
An Administrative Assistant I.
Clerical positions.
Relevant History of Mr. Jacobs' Employment at the District.
In November of 1987, Mr. Sumner hired three LSR IIs (Sandra Doll, Linda Gray and Debra Chason). All three are white.
Mr. Sumner also hired two LSR Is. On November 15, 1987, Mr. Sumner hired the Mr. Jacobs as an LSR I. John Stevens was the other LSR I. Mr. Stevens is white.
Danny Edwards was hired in 1987 as the Storekeeper, and Mary Jane Silcox was hired as an Administrative Assistant. Mr. Edwards and Ms. Silcox are white.
At the time that Mr. Jacobs was hired, he was married. Mr. Jacobs' wife's race is white. Although Mr. Jacobs subsequently separated and eventually obtained a divorce from his wife, Mr. Sumner was not aware of these events until sometime after he had hired Mr. Jacobs.
Mr. Sumner was responsible for evaluating Mr. Jacobs' performance. For the fiscal years November 16, 1987 to November 16, 1988, November 16, 1988 to November 16, 1989 and November 1989 to November 1990, Mr. Sumners rated Mr. Jacobs' performance with an overall rating of "Exceeds At Least One Standard." The possible ratings, from lowest to highest, were "Below Standards," "Achieves Standards," "Exceeds at Least One Standard," "Exceeds Most Standards," and "Sustained Superior Performance."
In April of 1988, Mr. Edwards was promoted by Mr. Sumner from Storekeeper to LSR I.
In May of 1988, Larry Kissinger was hired by Mr. Sumner as the Storekeeper. Mr. Sumner also hired Hannah Davis as an LSR I. Mr. Kissinger and Ms. Davis are white.
In March of 1990, one of the LSR IIs, Sandra Doll, went on maternity leave. Mr. Sumner selected Mr. Jacobs to fill the LSR II position of Ms. Doll during her absence. Mr. Jacobs was selected out of the three LSR Is then working for the District.
Mr. Sumner arranged for Mr. Jacobs to receive a 10 percent increase in pay. The increase in pay was to be payable while Mr. Jacobs temporarily filled the LSR II position.
At about the same time that Ms. Doll went on maternity leave, another LSR II, Ms. Gray, resigned. Mr. Sumner assigned Ms. Gray's duties jointly to one of the other LSR Is, Ms. Davis, and the Storekeeper, Mr. Kissinger. Ms. Davis and Mr. Kissinger did not receive any increase in pay for their services.
During the time that Mr. Jacobs served as a temporary LSR II, he performed satisfactorily, with assistance from other District staff.
Prior to August of 1990, Ms. Doll resigned.
In August of 1990, Mr. Sumner decided to promote Mr. Jacobs permanently to the position of LSR II. The Department's Personnel Office, however, informed Mr. Sumner that Mr. Jacobs did not appear to meet the minimum qualifications for the position. Therefore, Mr. Sumner assisted Mr. Jacobs to
supplement his resume by expanding the description of his prior sales experience in order for Mr. Jacobs to meet the minimum requirements. Mr. Jacobs was subsequently determined to be qualified and Mr. Sumner's decision to promote Mr. Jacobs was accepted.
Mr. Jacobs' salary was reduced to the amount he had been paid before he was given the temporary 10 percent increase. Mr. Sumner recommended, and Mr. Jacobs received, a permanent 7 percent increase, the maximum pay increase he could be awarded upon his permanent promotion to LSR II.
As of August of 1990, Mr. Jacobs became the highest paid LSR II in the District. Mr. Jacobs remained the highest paid LSR II while he was employed as an LSR II and as an LMR.
Mr. Kissinger, the Storekeeper, was promoted in August of 1990 to fill the LSR I position vacated by Mr. Jacobs.
Ms. Davis was promoted in September of 1990 to fill the other LSR II position.
Ms. Silcox, the Administrative Assistant, was promoted to fill Ms. Davis' LSR I position in September of 1990.
Charles Frederick, whose race is black, was hired by Mr. Sumner in February of 1991, as the Storekeeper.
In December of 1990, Mr. Jacobs remarried. The woman that Mr. Jacobs married in December of 1990 was white.
From the time that Mr. Sumner hired Mr. Jacobs until approximately May of 1991, Mr. Sumner was satisfied with Mr. Jacobs' performance. In March of 1989 Mr. Sumner nominated Mr. Jacobs to the Department as the District employee of the month. In approximately May of 1991, however, Mr. Sumner began to lose faith in Mr. Jacobs.
Mr. Jacobs believes that Mr. Sumner's attitude toward him began to change in 1991 and he attributes this change to the fact that he had married a white woman in December of 1990. Mr. Jacobs' belief is not, however, supported by the record. In light of the fact that Mr. Jacobs was married to a white woman when Mr. Sumner initially hired him and during at least part of the time that Mr. Sumner found Mr. Jacobs' performance to be satisfactory, Mr. Jacobs' belief is unfounded.
A more logical explanation for the change in the relationship of Mr. Sumner and Mr. Jacobs is Mr. Jacobs' decline in performance and Mr. Sumner's criticism of Mr. Jacobs' performance as an LSR II. After being promoted to the permanent LSR II position, Mr. Sumner found Mr. Jacobs' performance to be lacking. In September of 1990, Mr. Sumner wrote four critical memorandums to Mr. Jacobs. Mr. Jacobs, based upon these memoranda and other comments from Mr. Sumner, began to believe that Mr. Sumner was treating him unfairly. This combination of lesser performance and criticism at least contributed to the rift between Mr. Sumner and Mr. Jacobs.
By approximately May of 1991 Mr. Sumner concluded that Mr. Jacobs' performance had noticeably deteriorated and he seemed to lose interest in his job.
In September of 1991 Mr. Jacobs and his wife became foster parents of two infants. The infants both suffered from severe medical problems. Mr. Jacobs' relationship with Mr. Sumner became more strained as a result of the stress on Mr. Jacobs caused by the children's condition.
In the summer of 1991, a new sales director for the District was hired by the Department. SEE 23.
For the November, 1990 to November, 1991 fiscal year, Mr. Sumner evaluated Mr. Jacobs' performance as "Achieves Standards." This rating was one rating lower than the previous ratings Mr. Jacobs had received from Mr. Sumner. The rating was for Mr. Jacobs' first full year as an LSR II and reflected the drop in his performance as an LSR II. The following comment, among others, was made by Mr. Sumner on the evaluation:
Over the past years Jake has been an enthusiastic and productive worker. This previous year has seen a deterioration of skills that he is normally capable of doing. I feel this maybe [sic] in part to environmental pressures outside of work.
Many changes have been made to improve work environment, yet employee doesn't appear to enjoy his work. This change became more evident after first full year as an LSR II.
Petitioner's exhibit 11.
At the time of the 1990-1991 evaluation of Mr. Jacobs, Mr. Sumner was not aware that changes in the number of LSR positions in the District would be made by the Department in 1992.
Effective January 1, 1992, the Department eliminated the LSR I and LSR II classifications. A single classification, Lottery Marketing Representative (hereinafter referred to as "LMR"), was created. The evidence failed to prove that Mr. Sumner was involved in the decision to make this change.
Mr. Jacobs, Ms. Chason and Ms. Gray were reclassified from LSR II to LMR. Mr. Edwards, Mr. Kissinger and Ms. Silcox were reclassified from LSR I to LMR.
In March of 1992 Mr. Sumner was notified by the Department that the sales staff of the District was being reorganized. As a consequence, the District LMR positions were to be reduced from six positions to four.
As a part of the reorganization, the District was to receive one new position: a Telemarketing Representative, a newly created employee classification.
As a result of the reorganization, Mr. Sumner was faced with reclassifying/demoting one LMR and possibly terminating one LMR. Mr. Sumner was only given two weeks to make the changes.
In order to minimize the impact of the reorganization on employees of the District, Mr. Sumner successfully convinced the Department to locate the new Telemarketing Representative position at the District office.
Mr. Sumner informed the LMRs of the reorganization and sought volunteers to take the Telemarketing Representative position in a meeting of all LMRs. Ms. Silcox subsequently volunteered to take the Telemarketing Representative position.
At the time that Mr. Sumner was deciding how to comply with the Department's reorganization, the Administrative Assistant position in the District became vacant. Ms. Silcox subsequently agreed to take the Administrative Assistant position when Mr. Sumner asked her to.
As a result of Ms. Silcox taking the Administrative Assistant position, Mr. Sumner did not have to terminate any LMR. The person in the other LMR position eliminated could move into the Telemarketing Representative position.
Mr. Sumner spoke to the remaining four LMRs seeking a volunteer to take the Telemarketing Representative position. Mr. Edwards indicated that he would consider taking the position but delayed a decision over night. Mr. Jacobs did the same. Ultimately, none of the remaining five LMRs volunteered to take the Telemarketing Representative position.
Mr. Sumner was required to select one of the five LMRs (Ms. Chason, Mr. Edwards, Ms. Gray, Mr. Jacobs or Mr. Kissinger) to be placed in the Telemarketing Representative position.
Mr. Sumner decided that Mr. Jacobs should be reassigned/demoted to the Telemarketing Representative position. Mr. Jacobs was informed of the decision and was given the choice of accepting the Telemarketing Representative position with no reduction in salary or moving to Gainesville or Tampa as an LMR. Mr. Jacobs elected to take the Telemarketing Representative position so that he would not have to move.
Mr. Jacobs was placed in the Telemarketing Representative position and continued to be paid the same salary he was receiving as an LMR. Mr. Jacobs received no reduction in pay or benefits.
The Basis for Mr. Sumner's Decision to Reassign/Demote Mr. Jacobs.
Mr. Sumner's decision to place Mr. Jacobs in the Telemarketing Representative position was based on his perception of the performance of the four other remaining LMRs (after Ms. Silcox had agreed to take the Administrative Assistant position) under Mr. Sumner's supervision compared to Mr. Jacobs' performance. Mr. Sumner took into account the past performance of each of the five LMRs and their progress in the various positions they had held under Mr. Sumner's supervision. Mr. Sumner did not base his decision on or consider seniority.
Mr. Sumner selected Mr. Jacobs based upon the decline in Mr. Jacobs' performance since being promoted to LSR II, and his perception of the relatively slower development of Mr. Jacobs' abilities as an LSR II when compared with the other LMRs.
All of the LMRs (while employed in the various positions under Mr. Sumner's supervision) had experienced problems in their performance and had been criticized by Mr. Sumner. There were no exceptions. Except for Mr. Jacobs, all of the LMRs had received consistently high evaluations of "Exceeds at Least One
Standard" or "Exceeds Most Standards" each year while under Mr. Sumner's supervision. These ratings were based on their overall performance and the evidence failed to prove that the ratings were not reasonable. Only the rating given to Mr. Jacobs for his last evaluation period prior to his assignment to the Telemarketing Representative position had declined below those ratings.
Two of the five LMRs had held LSR positions for a shorter period of time than Mr. Jacobs:
Mr. Edwards: Storekeeper from 1987 to April of 1988, LSR I from April of 1988 to January of 1992, and LMR from January of 1992; and
Mr. Kissinger: Storekeeper from May of 1988 to August of 1990, LSR I from August of 1990 to January of 1992 and LMR from January of 1992.
Mr. Edwards and and Mr. Kissinger were not selected to be placed in the Telemarketing Representative position because of their consistently high evaluations and because they had both continued to progress and improve in their performance consistently after being employed in the District. Mr. Jacobs had not continued to progress and improve.
The Impact of Routes on Mr. Jacobs' Performance.
In the fall of 1987, the District was divided into three geographic areas (hereinafter referred to as "Routes"), by Mr. Sumner. Each LSR II was assigned to one of the three Routes and was responsible for servicing the retailers located therein. Each of the three Routes contained a part of Panama City, the largest city in the District, and a part of the rural areas of the District.
Ms. Doll was assigned the eastern portion of the District, Ms. Gray was assigned the western portion and Ms. Chason was assigned the rest. Mr. Jacobs was assigned to work with Ms. Chason on the Route assigned to her.
When Ms. Doll left the District and Mr. Jacobs was temporarily assigned to replace her, Mr. Jacobs took over Ms. Doll's Route plus a part of Ms. Gray's Route.
Mr. Jacobs satisfactorily performed his duties as an LSR I on Ms. Chason's Route and while temporarily replacing Ms. Doll as an LSR II on Ms. Doll's Route. These Routes did not adversely affect Mr. Jacobs' performance.
In September of 1990, when Mr. Jacobs was permanently promoted to LSR II and Ms. Davis was promoted to an LSR II position, the Routes were restructured by Mr. Sumner. Mr. Jacobs continued to serve the eastern portion of the District previously serviced by Ms. Doll and by him as a temporary LSR II, Ms. Chason was assigned Panama City Beach and the accounts along part of the Florida border with Georgia and Alabama, and Ms. Davis was assigned the western portion of the District. All three Routes continued to include portions of the greater Panama City area (Lynn Haven, Parker, Callaway and Springfield).
The accounts on Panama City Beach were more productive during the summer months. The accounts along the Florida border also tended to be more productive. Ms. Chason was assigned these more productive accounts because she had evidenced greater skills in sales/marketing than the other LSR IIs. Not because she was white.
The Routes were not totally restructured again until the January, 1992 consolidation of LSR positions. Prior to January of 1992 changes were, however, made to the Routes. These changes were made because of frequent changes in retailers participating in lottery sales and, on a few occasions, when Mr. Sumner was requested to make changes by the LSR IIs, including Mr. Jacobs.
The Route assigned to Mr. Jacobs in September of 1990 was more rural than the other Routes and Mr. Jacobs was required, on average, to drive more miles than the other LSR IIs.
The last relevant restructuring of Routes took place in January of 1992 after the consolidation of LSR I and II positions. At that time, the three Routes served by the LSR IIs were divided essentially in half, creating six Routes, one for each LMR. Each LSR II was allowed to select the half of the Route he or she was previously responsible for and the other half was assigned to the LSR I that had previously been assigned to the Route.
Immediately prior to January of 1992, Mr. Jacobs was assisted by Ms. Silcox. When their Route was divided, Mr. Jacobs selected the half of the Route he desired and Ms. Silcox was assigned the other half.
The evidence failed to prove that Mr. Sumner's evaluation of Mr. Jacobs was unfairly affected by the Route he was assigned to or that Mr. Sumner treated Mr. Jacobs unfairly in the assignment of Routes based upon his race.
Sales figures contained on evaluations performed by Mr. Sumner were not always seen by Mr. Sumner when he completed an evaluation. In at least one year, those figures were added to the evaluation after Mr. Sumner completed his part of the evaluation.
The suggestion that Mr. Jacobs' Route adversely impacted his evaluations was contradicted by the fact that for three years, Mr. Jacobs and Ms. Chason, who allegedly had the most favorable Route, received the same overall evaluation: "Exceeds at Least One Standard." In the first full year that Mr. Jacobs served as an LSR II, although his overall evaluation declined, the "Other Category," which included Route statistics, on Mr. Jacobs' evaluation was rated "Exceeds at Least One Standard."
The suggestion that some LSRs were able to dictate their Routes was also not supported by the evidence. All of the LSRs had some input into the Routes that they handled. For example, Mr. Jacobs and Ms. Davis both requested the assignment of retailers near the Florida border. These requests were honored by Mr. Sumner. Mr. Jacobs was assigned Bascom and Malone, Florida, and Ms. Davis was assigned Campbellton, Florida. Mr. Jacobs accepted the new accounts despite the fact that the mileage he was required to travel increased. All of the LSRs were also allowed to choose between half of their prior Routes in 1992. These incidents did not prove that white LSRs were allowed to select their Routes.
Sales generated in each Route had minimal impact on Mr. Sumner's evaluation of Mr. Jacobs or the other LSR's performance. No sales quotas were established and LSRs were not compensated on the basis of their sales during the period of time relevant to this proceeding. While sales had to be taken into account to some extent, performance was evaluated based upon each person's general marketing skills and efforts.
Sales goals were established during the summer of 1991 by the new sales director. Each LSR was assigned a sales quota based upon a percentage increase from their last year sales figures. If an LSR failed to meet the quota, there was no consequence. Employees were commended if they did achieve their quota.
LSRs were given quotas of new retailers they were to attempt to add each month. All LSR Is were given a quota of one new retailer and all LSR IIs were given a quota of two new retailers.
Recruitment of retailers was not necessarily a product of the length of a Route. See Petitioner's exhibit 36. The evidence failed to prove that the Routes assigned to Mr. Jacobs adversely impacted Mr. Sumner's evaluation of his ability to recruit.
Based upon the weight of the evidence, Mr. Jacobs failed to prove that the assignment of Routes was made in a discriminatory manner or that Mr. Jacobs' Routes adversely affected his performance because of difficulty caused by the Routes in meeting sales or recruitment quotas.
Leave Policies.
Mr. Sumner's policy concerning requests for annual leave made was that District employees should request approval at least two weeks in advance of when the employee intended to be off work.
The two week notice policy was well known to all employees, including Mr. Jacobs. Mr. Sumner issued several memoranda setting out the policy.
Mr. Sumner also notified employees that a telephone call was all that was necessary to take annual leave if there was an emergency.
Mr. Sumner's policy concerning giving two weeks notice was not strictly adhered to or enforced. Mr. Sumner recognized there were reasonable circumstances when an employee was not able to request permission to take annual leave two weeks or more in advance. As long as an employee made a reasonable effort and the operation of District would not, in Mr. Sumner's opinion, be harmed by an employee's absence, Mr. Sumner approved leave even when two weeks notice was not given.
The two week notice requirement was waived for virtually every employee, including Mr. Jacobs.
On one occasion Mr. Sumner denied a request by Mr. Jacobs for annual leave. The evidence failed to prove that Mr. Sumner denied the request without just cause or based upon Mr. Jacobs' race.
During the period between April of 1990 and April of 1992, Mr. Sumner approved approximately 400 hours of leave, annual and sick, for Mr. Jacobs.
The evidence failed to prove that Mr. Jacobs was treated differently because of his race with regard to leave requests he made while employed by the Department.
Part of the leave taken by Mr. Jacobs was attributable to the illness of his two foster care infants. Mr. Jacobs had taken time off on numerous occasions due to their poor health. Mr. Jacobs had been required to take annual
leave, rather than sick leave, for the infants because the Department's personnel office had informed Mr. Sumner and Mr. Jacobs that State leave policies did not allow sick leave for foster care children.
Mr. Sumner did not strictly enforce the notice policy for annual leave when Mr. Jacobs took annual leave for the foster care children. Nor did Mr. Sumner give Mr. Jacobs any reasonable reason to expect that Mr. Sumner would not approve the use of annual leave when the children were ill because Mr. Jacobs had not given two weeks advance notice. Nor was it reasonable for Mr. Jacobs to not realize that a simple telephone call to the office to inform the office of an emergency with the children would not be sufficient.
Between March 17, 1992 and March 18, 1992, one of Mr. Jacobs' foster care infants became extremely ill. This was not the first time that the child had experienced the type of problem experienced at that time, but the problem was more severe.
Although Mr. Jacobs could have simply telephoned the office the next morning and reported that there was an emergency, Mr. Jacobs reported to work. Mrs. Jacobs took the infant to a hospital where it was to be determined whether the child would be admitted to the hospital.
After arriving at the office, Mr. Jacobs, who was visibly shaken, spoke with Mr. Sumner. What took place during that discussion was disputed by Mr. Jacobs and Mr. Sumner. Mr. Jacobs testified that Mr. Sumner was clearly informed that he wanted to go to the hospital to be with the child but was told he had to attend to his Route first. Mr. Sumner testified that Mr. Jacobs did not specifically request time off, that he had indicated he might be require to go to the hospital sometime during the day, and that Mr. Sumner told Mr. Jacobs to service his five biggest accounts scheduled for that day and then take the rest of the day off even if it was not necessary for him to go to the hospital.
Shortly after the conversation between Mr. Sumner and Mr. Jacobs, and after Mr. Jacobs had left on his Route, the child died. Mr. Jacobs was informed at his first stop and he left for the hospital.
Based upon the weight of the evidence, it is concluded that Mr. Jacobs, who was tired from the events of the night before and under a great deal of stress because of his concern for the child, was not denied approval of leave by Mr. Sumner to immediately go to the hospital and was not told that he had to complete his Route. At most, there appears to have been an unfortunate miscommunication between Mr. Jacobs and Mr. Sumner about the urgency of the situation. Mr. Sumner's belief that the matter was not as urgent as it turned out to be was supported by the fact that the infants had experienced similar difficulties in the past; the fact that the child had not been taken to the hospital earlier; the fact that Mr. Jacobs had come to the office that morning instead of telephoning; and the fact that Mr. Mr. Jacobs did not insist on going to the hospital immediately.
Assignment of Department Vehicles.
LSRs were assigned Department vehicles, (vans) for use in servicing Routes.
In approximately November of 1987, the District was temporarily assigned one less van than needed. Mr. Jacobs volunteered to drive his personal vehicle, for which he was reimbursed by the State. Mr. Jacobs drove his personal vehicle until approximately December 24, 1987, when he received a new van.
Other LSRs were required to use their personal vehicles on occasion, for which they were also reimbursed by the State.
Pursuant to a replacement schedule instituted by the Department, 1/3 of all vans were to be replaced every year. In this way, every van would be used a maximum of three years. This schedule was based upon estimates of the time necessary for vans to have accumulated sufficient mileage (80,000 miles) to warrant replacement.
To insure that a van was ready for replacement at the end of three years, it was Department policy to assign vans with lower mileage after a year or two years use to high mileage drivers.
In November of 1991, five vans in the District exceeded 80,000 miles and were to be replaced with new vans. The District, however, only received three new vans. The other two vans were replaced with two lower mileage vans scheduled to be replaced the next fiscal year.
Consistent with Department policy Mr. Sumner was suppose to assign the new vans to persons who drove less miles and the older vans should have been assigned to persons who drove greater miles.
In November of 1991, the mileage driven in the previous year by each LSR was as follows:
Silcox 16,327 miles
Chason 16,426 miles
Davis 21,000 miles
Jacobs 23,717 miles
Edwards 24,000 miles
Kissinger 30,000 miles
Pursuant to Department policy, the new vans should have been assigned to Ms. Silcox, Ms. Chason and Ms. Davis. The new vans, however, were assigned to Ms. Chason, Ms. Davis and Mr. Kissinger. The vans assigned to Ms. Chason and Ms. Davis were assigned consistent with Department policy.
Ms. Silcox, Mr. Jacobs and Mr. Edwards were assigned older vans. The assignment of an older van to Ms. Silcox was inconsistent with Department policy.
The assignment of older vans with less mileage to Mr. Jacobs and Mr. Edwards was consistent with Department policy. Had Department policy been followed completely and the third new van had been assigned to Ms. Silcox and not Mr. Kissinger, Mr. Jacobs would still not have received a new van.
Mr. Sumner asked Mr. Kissinger and Mr. Edwards if they would drive to another district to pick up two vans. Mr. Sumner indicated that one of the new vans would be assigned to one of them if they agreed. They agreed, and Mr. Sumner awarded a new van to Mr. Kissinger.
Mr. Sumner did not give Mr. Jacobs or Ms. Wilcox the opportunity to pick up the two vans located in another district.
Marketing Promotions.
LSRs, as part of their marketing responsibility, could conduct various types of promotions at retailers intended to increase sales of lottery tickets.
LSRs were expected to conduct promotions. Quotas were assigned to each LSR II. They were expected to conduct one promotion per month.
Promotions generally did not require much of a financial investment by the retailer and smaller retailers were generally as interested in conducting promotions as larger retailers.
The evidence failed to prove that the Route assigned to Mr. Jacobs adversely affected his ability to conduct promotions. The evidence also failed to prove that Mr. Sumner's evaluations of Mr. Jacobs' performance while supervised by Mr. Sumner were adversely impacted by a lack of promotions caused by Mr. Jacobs' Route. Mr. Sumner believed that Mr. Jacobs performed a sufficient quantity of promotions but that he was slow about doing them.
Conducting some promotions required overtime. Overtime, however, was required to be requested and approved in writing. Approval of overtime came from the Department and not Mr. Sumner. Mr. Jacobs was aware of this requirement.
In December of 1991, Mr. Jacobs requested permission to conduct a promotion which involved the giving away of coffee mugs with the Department logo on them to each customer that bought a minimum number of lottery tickets. This promotion did not involve overtime and none was requested by Mr. Jacobs.
Mr. Jacobs claimed that the promotion was changed to one that would require overtime, and that he was told by Mr. Sumner that approval would be obtained from the Department. The weight of the evidence failed to support this claim.
In August of 1991, Ms. Chason sought approval to conduct a promotion at a seafood festival to be held in October of that year. The festival required overtime for two employees plus Ms. Chason. Ms. Chason asked for volunteers and accepted the first two persons. Mr. Jacobs did not volunteer and, consequently, was not one of the two persons selected by Ms. Chason. The evidence failed to prove that Mr. Sumner was involved in the failure to select Mr. Jacobs, that the failure to select Mr. Jacobs was somehow unfair or that Mr. Jacobs was not selected by Ms. Chason because of his race.
Mr. Jacobs also claimed that he was not given credit for two new retailers he obtained because the forms signing up the retailers were lost. The evidence, however, proved that, although the retailers were lost as Department customers, Mr. Jacobs was given credit for signing them up by Mr. Sumner. The evidence failed to prove that Mr. Sumner was involved with the loss of the forms signing up the retailers or that they were lost to cause Mr. Jacobs to fail to meet his quota for new retailers.
The evidence failed to prove that Mr. Sumner or the Department awarded bonuses or that Mr. Jacobs was denied bonuses because of his race.
Miscellaneous Charges.
The evidence failed to prove that Mr. Jacobs was denied training provided to white employees because of his race.
The evidence failed to prove that Mr. Jacobs was denied the use of new equipment provided to white employees because of his race.
Mr. Jacobs' Charge of Discrimination.
Mr. Jacobs filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Mr. Jacbos alleged that he had been discriminated against based upon his race.
On March 29, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred "
Mr. Jacobs filed a Petition for Relief with the Commission requesting a formal administrative hearing.
In the Petition for Relief filed with the Commission Mr. Jacobs alleged, in response to questions 3, 4 and 5 on the Petition for Relief, the following:
Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below:
My supervisor, Steve Sumner has systematically and intentionally denied me equal opportunities because of my race (black) for training, compensation, use of new equipment, time off from work, leave and retention and advancement in my position as an LSR. See the attached charge of discrimination incorporated herein.
The disputed issues of material fact, if any, are as listed below:
Mr. Sumner allowed every other LSR (all who are white) to pick their own routes which were the best routes, leaving the most difficult to me. He has also allowed other LSR's to work for bonuses during promotions but has not allowed me to do so. Mr. Sumner has misplaced some new applications for lottery retailers that I obtained so that my quotas of achievement would be lower. Mr.
Sumner retained a coworker in the LSR position when he had been promoted to LSR long after me. Mr. Sumner denied my taking leave when one of my foster children was critically ill and the child died while I was at work.
The ultimate facts alleged and entitlement to relief are as listed below: I wish to have a formal post-investigative proceeding.
I wish to be reinstated in my LSR position with seniority back to the date of my demotion or receive adequate compensation for the harms I have suffered and reasonable attorneys fees and costs.
I am a member of a protected class and Mr. Sumner has singled me out for arbitrary and negative treatment based on my race (black). All the responses Mr. Sumner has provided are pretextual or simply not true.
The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Jacobs.
At the commencement of the proceeding, Mr. Jacobs indicated that he was seeking a "general injunction", an apology from the Department, monetary compensation for damages in the form of payment for pain and suffering, attorney fees and reinstatement as an LSR II.
Alleged Race Discrimination.
The evidence in this case failed to prove that any action of Mr. Sumner or the Department was based upon Mr. Jacobs' race. He was not held to any standard or requirement based upon his race and he was not treated in a manner different from the treatment afforded employees of other races.
The evidence proved that Mr. Sumner had hired Mr. Jacobs, that Mr. Sumner had given him high evaluations for the first three years he worked, he had temporarily promoted Mr. Jacobs to a higher position with a temporary increase in pay not afforded white employees, he had promoted him with a permanent increase in pay which made Mr. Jacobs the highest paid employee in his class at the District, and he had assisted Mr. Jacobs in insuring that he was qualified for the promotion.
Only after Mr. Jacobs' performance began to decline did Mr. Sumner take actions which were somewhat adverse to Mr. Jacobs. Those actions did not take place until after three years of working together. The reasons for taking those actions were reasonably explained by Mr. Sumner and the Department.
Mr. Jacobs was unable to explain the foundation for his belief that Mr. Sumner began treating him differently in 1991 on the basis of his race.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).
Burden of Proof.
Mr. Jacobs had the ultimate burden of proving by a preponderance of the evidence that the Department, through the actions of Mr. Sumner, intentionally discriminated against him because of his race. McDonnell Douglas
v. Green, 411 U.S. 792, 804 (1973); Irby v. Allstate Insurance Co., 12 F.A.L.R. 2034, 2037 (Florida Commission on Human Relations 1989); and Martin v. Monsanto Co., 10 F.A.L.R. 3886, 3896 (Florida Commission on Human Relations 1988).
Discriminatory motive or intent may be proved by direct evidence or statistical evidence. Additionally, since discriminatory motive or intent is seldom capable of proof by direct evidence, the United States Supreme Court has established a multi-step analytical model which allows a court to infer discriminatory motive or intent on the basis of circumstantial evidence. Perryman v. Johnson, 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas, 411 U.S. at 802-804. See also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981).
The Commission has adopted this analytical model in analyzing cases under the Florida Human Rights Act, Section 760.01-760.10, Florida Statutes:
The employee must present a prima facie case of discrimination;
If the employee presents a prima facie case of discrimination, the employer must adequately rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for its actions; and
The employee must prove that the employer's articulated reason for its actions was merely a pretext.
Mr. Jacobs Failed to Meet His Burden of Proof.
The Florida Human Rights Act provides that it is an unlawful employment practice for an employer to discharge an employee "or to otherwise discriminate against any individual with respect to . . . terms, conditions, or privileges of employment . . . " on the basis of race. Section 760.10(1), Florida Statutes.
Mr. Jacobs was an "employee" and the Department was an "employer."
The evidence failed to prove, however, that the terms, conditions, or privileges imposed by the Department on Mr. Jacobs's employment were in any way affected by his race.
In determining whether discrimination has occurred, the Commission requires proof of the following elements, adopted from the federal courts, in order for an employee to prove a prima facie case of discriminatory conduct:
(a) that the employee belongs to a group protected by the statute; (b) that the employee was qualified for the job; (c) that the employee was subjected to an adverse employment action; and (d) that, in the case of discharge, after the employee's termination, the employer hired a person not in the employee's protected class or retained those having comparable or lessor qualifications, not in the protected class. See St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); McDonnell Douglas; Trumbull v. Health Care & Retirement Corporation of America, 756 F. Supp. 532 (M.D. Fla. 1991), aff'd, 949 F.2d 1162; Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991); and National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988).
Mr. Jacobs proved that he was black, that he was qualified for the position of LMR and that he was reassigned to a different position and white employees were not so reassigned.
Mr. Jacobs failed to prove that the other alleged incidents of alleged disparant treatment took place or that he was otherwise subjected to an adverse employment action.
In particular, Mr. Jacobs failed to prove that Mr. Sumner systematically and intentionally denied him equal opportunities because of his race for "training, compensation, use of new equipment, time off from work, leave and retention and advancement in [his] position as an LSR."
Mr. Jacobs also failed to prove that Mr. Sumner: (a) "allowed every other LSR (all who are white) to pick their own routes which were the best routes, leaving the most difficult to [him]"; "allowed other LSR's to work for bonuses during promotions but has not allowed [him] to do so"; (b) "has misplaced some new applications for lottery retailers that [he] obtained so that [his] quotas of achievement would be lower"; (c) "retained a coworker in the LSR position when he had been promoted to LSR long after [Mr. Jacobs]"; or (d) "denied [Mr. Jacobs] taking leave when one of [his] foster children was critically ill and the child died while [he] was at work."
The Department has suggested that Mr. Jacobs failed to prove a prima facie case of discrimination with regard to his reassignment to the Telemarketing Representative position. This argument is accepted. The evidence failed to prove that the action taken by the Department was racially motivated.
Had Mr. Jacobs presented a prima facie case of discrimination, the Department presented evidence to adequately rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for its actions. Mr. Jacobs failed to prove that the Department's explanation for its actions were merely a pretext.
Based upon the foregoing, it is concluded that Mr. Jacobs failed to prove by a preponderance of the evidence, a prima facie case of discrimination based upon race.
Finally, had Mr. Jacobs proved his charges, he would not be entitled to an award of damages for pain and suffering in this case. Such an award is not available under the law applicable to this particular case. Although back pay may be awarded under the applicable law if Mr. Jacobs had proved his charges, the evidence failed to prove that Mr. Jacobs would have earned more than he was actually paid.
RECOMMENDED ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final
Order dismissing Oscar Jacobs' Petition for Relief.
DONE AND ENTERED this 16th day of May, 1994, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1994.
APPENDIX
Case Number 93-2527
The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner did not file a proposed recommended order.
The Department's Proposed Findings of Fact
Accepted in 7, 56 and 89.
Accepted in 4, 54-55 and hereby accepted. 3-5 Accepted in 7.
Accepted in 15-17 and 56.
Accepted in 20-22.
Accepted in 24 and 58.
Accepted in 60.
Accepted in 70 and 102.
Accepted in 101-103
Although true, the evidence also proved that during the period from August of 1990 to August of 1991, after Mr. Jacobs became an LSR II on a permanent basis, he drove more miles in 11 of 12 months.
13-14 Accepted in 65-69 and hereby accepted.
Accepted in 66.
Accepted in 66 and hereby accepted.
Hereby accepted.
Accepted in 67.
Accepted in 68. See 69.
Accepted in 27.
Accepted in 12, 28, 31 and 34.
Accepted in 29 and 122.
Accepted in 33, 69 and hereby accepted.
Hereby accepted.
Accepted in 36, 62-63 and hereby accepted.
Accepted in 38-39 and 41.
Accepted in 42-44.
Accepted in 45.
Accepted in 47 and 49-53.
30-34 Accepted in 51 and hereby accepted.
Accepted in 47-48.
Accepted in 88-90.
Accepted in 91-93 and hereby accepted.
Accepted in 95-97.
Accepted in 96 and 98-99.
Accepted in 73-74 and hereby accepted.
Accepted in 79.
Accepted in 32 and 81.
Accepted in 83-87.
Accepted in 108.
Accepted in 106-107.
Accepted in 109.
COPIES FURNISHED:
Cecile M. Scoon, Esquire
36 Oak Avenue
Panama City, Florida 32401
Louisa H. Warren Senior Attorney
Department of the Lottery Capitol Complex
Tallahassee, Florida 32399-4011
Sharon Moultry, Clerk
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
Dana Baird, Esquire
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
Ken Hart, Esquire Department of Lottery
250 Marriot Drive Tallahassee, FL 32301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
================================================================= AMENDED MOTION FOR EMERGENCY RELIEF
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OSCAR JACOBS,
Petitioner,
vs. CASE NO. 93-2527
DEPARTMENT OF THE LOTTERY,
Respondent.
/
AMENDED MOTION FOR EMERGENCY RELIEF
COMES NOW Petitioner, OSCAR JACOBS, by and through his undersigned attorney and files this Motion For Emergency Relief and as grounds therefore states:
The Petitioner's Proposed Recommended Order including Findings of Fact and Conclusions of Law were hand delivered to the hearing officer's (Larry Sartin) office in Tallahassee on April 12, 1994 within the allotted time frame. (See attached Exhibit A, Certified copy of Findings of Fact and Conclusions of Law)
On April 13, 1994, Judy, secretary to Larry Sartin, Hearing Officer in this matter, returned a call from the office of Cecile M. Scoon, counsel for Petitioner, to confirm that their office had received the Proposed Recommended Order filed by Petitioner.
On May 17, 1994 the Recommended Order was received by the office of counsel for Petitioner, Cecile M. Scoon.
On May 17, 1994 Cecile M. Scoon, counsel for Petitioner, was in Europe on vacation and was unable to review the Recommended Order.
An extension until July 1, 1994, to submit written exceptions to the Recommended Order, was given to the Petitioner.
In the Preliminary Statement of the Recommended Order the Hearing Officer, Larry Sartin, stated, "No proposed recommended order was filed by the Petitioner".
Upon calling the office of Larry Sartin it was confirmed that the Petitioner's Proposed Recommended Order was indeed in the office, but somehow had inadvertently been overlooked and had not been entered as received by the office of Larry Sartin.
It was further confirmed that the Hearing Officer had not received the Proposed Recommended Order submitted by Petitioner on April 12, 1994, and had therefore not reviewed same.
It is a grievous error against the Petitioner and a violation of fundamental due process in that Petitioner's Proposed Recommended Order were not reviewed by the Hearing Officer prior to his rendering his Recommended Order.
Petitioner should not be penalized for this error and this entire case should be reconsidered in its entirety.
Petitioner believes that Mr. Larry Sartin has been irreversibly biased and prejudiced by this error and requests Mr. Sartin to recuse himself in this matter.
Petitioner requests a new hearing officer to be appointed to review the record including Petitioner's Proposed Recommended Order de novo.
Petitioner has incurred attorneys fees and costs in submitting exceptions to the tainted Recommended Order and in filing this motion.
WHEREFORE the Petitioner requests:
The record be reconsidered de novo;
A new hearing officer be appointed to this matter for a complete review;
The Recommended Order by Hearing Officer, Larry Sartin be withdrawn and held for naught;
The Division of Administrative hearings pay Petitioner's Attorney fees and costs in submitting the exceptions to the tainted Recommended Order and this motion;
Other such relief as deemed necessary and appropriate be awarded to Petitioner.
CECILE M. SCOON
Attorney at Law
By: Cecile M. Scoon
Florida Bar No.: 834556 Attorney for
36 Oak Avenue
Panama City, FL. 32401 (904) 769-7825
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original foregoing instrument has been sent by regular mail to LARRY J. SARTIN, Hearing Officer, Division of Administrative Hearings, The Desoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; a copy sent via fax and mail to Ms. Sharon Moultry, Clerk, Florida Commission on Human Relations, Building F, Suite 240, 325 John Knox Road, Tallahassee, Fl. 32303-4149, and a copy has been forwarded by mail to Louisa H. Warren, Esquire, Department of Lottery, Capitol Complex, Tallahassee, Fl.
32399-4011, and a copy has been forwarded by mail to Dana Baird, Esquire, Florida Commission on Human Relations, 325 John Knox Road, Building F, Suite 240, Tallahassee, Florida 32303- 4149, on this 6th day of July, 1994.
By: Cecile M. Scoon
=================================================================
HEARING OFFICER'S ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OSCAR JACOBS, )
)
Petitioner, )
)
vs. ) CASE NO. 93-2527
)
DEPARTMENT OF THE LOTTERY, )
)
Respondent. )
)
ORDER GRANTING, IN PART, AND DENYING, IN PART, MOTION FOR EMERGENCY RELIEF
Petitioner has filed an Amended Motion for Emergency Relief in this case.
The motion was filed as a result of the fact that Petitioners proposed recommended order was not considered by the undersigned before rendering the Recommended Order entered in this case on May 16, 1994.
The following are the apparent pertinent facts:
A proposed recommended order was filed with the Clerk's office of the Division of Administrative Hearings by Petitioner on April 12, 1994. The order was stamped by the Clerk's office as having been received.
The undersigned's secretary, Judy Studdard, confirmed by telephone call to Petitioner's counsel on April 13, 1994 that the proposed recommended order had been received . It is likely, because of the time that it normally takes
for the Clerk's office to process pleadings and provide a copy to the pertinent Hearing Officer, that Ms. Studdard confirmed that the proposed order had been received in the Clerk's office but that the proposed recommended order had not yet been received by the undersigned.
The Petitioners proposed recommended order was placed in the original file in this case. The original file is maintained in the Clerk's office. Although a copy of all pleadings is supposed to be provided by the Clerk's office to the Hearing Officer, no copy of Petitioner's proposed recommended order was provided to the undersigned by the Clerk's office or, if one was provided, it was misplaced by the undersigned (the undersigned has not recollection, however, of having seen the Petitioner's proposed order).
4 The entire record of this proceeding, including the transcript of the final hearing, was read by the undersigned. A Recommended Order was prepared based upon that review. Respondent's proposed recommended order was considered.
The Recommended Order was entered on May 16, 1994. Prior to entry of the Recommended Order, the undersigned personally checked the Clerk's office computerized docket sheet for this matter to confirm that Petitioner had not filed a proposed recommended order. No record of Petitioner's proposed recommended order was included in the docket sheet despite the fact that one had been filed.
In light of the fact that the undersigned had not seen Petitioner's proposed recommended order and the fact that the docket sheet did not indicate that one had been filed, the undersigned reported, incorrectly, in the Recommended Order that no proposed recommended order had been filed by Petitioner.
After receiving the Recommended Order Petitioner took the steps set out in paragraphs 7 through 8 and filed the Amended Motion for Emergency Relief.
In the motion, Petitioner has suggested that the undersigned should recuse himself and has specifically requested the following relief:
The record be reconsidered de novo;
A new hearing officer be appointed
to this matter for a complete review;
The Recommended Order by Hearing Officer Larry Sartin be withdrawn and held for naught;
The Division of Administrative
Hearings pay Petitioner's Attorney fees and costs in submitting the exceptions to the tainted Recommended Order and this motion;
Other such relief as deemed
necessary and appropriate be awarded to Petitioner
Respondent filed a response to the motion. Respondent has represented that it agrees that Petitioner's proposed recommended order should now be considered and that an "amended" recommended order should be entered. Respondent has objected to the recusal of the undersigned.
As pointed out by Respondent, Petitioner has failed to set forth any facts or circumstances that would demonstrate bias or prejudice on the part of the undersigned or indicating a well- founded fear that Petitioner would not receive a fair hearing if the undersigned enters an amended recommended order.
Consequently, the suggestion that the undersigned should recuse himself from this proceeding is denied.
The relief sought by Petitioner in paragraphs 1-4 on page 3 of Petitioner's motion is denied.
The only relief Petitioner is entitled to is a consideration of his proposed recommended order and the issuance of a corrected amended order to reflect that consideration. The corrected amended order should indicate that Petitioner did in fact file a proposed recommended order and the Appendix attached to the Recommended Order should be corrected to reflect the treatment by the undersigned of each of Petitioner's proposed findings of fact. Whether corrections to the substance of the Recommended Order, including different or additional findings of fact, conclusions of law or recommendations will be necessary will depend upon whether the proposed recommended order sufficiently convinces the undersigned of the need for such changes.
Based upon the foregoing, it is ORDERED:
The relief requested in paragraphs 1-4, page 3, of the Amended Motion for Emergency Relief is DENIED;
Petitioners proposed recommended order will be considered by the undersigned in this matter and a corrected recommended order will be entered.
DONE and ORDERED this 11th day of July, 1994, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1994.
COPIES FURNISHED:
Cecile M. Scoon, Esquire
36 Oak Avenue
Panama City, Florida 32401
Louisa H. Warren Senior Attorney
Department of the Lottery Capitol Complex
Tallahassee, Florida 32399-4011
Sharon Moultry, Clerk
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
=================================================================
CORRECTED RECOMMENDED ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OSCAR JACOBS, )
)
Petitioner, )
)
vs. ) CASE NO. 93-2527
)
DEPARTMENT OF THE LOTTERY, )
)
Respondent. )
)
CORRECTED RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Robert T. Benton, II, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 19 and 20, 1993, in Panama City, Florida.
APPEARANCES
For Petitioner: Cecile M. Scoon, Esquire
36 Oak Avenue
Panama City, Florida 32401
For Respondent: Louisa H. Warren, Senior Attorney
Department of the Lottery Capitol Complex
Tallahassee, Florida 32399-4011
STATEMENT OF THE ISSUES
Whether the Respondent, the Florida Department of the Lottery, discriminated against the Petitioner, Oscar Jacobs, on account of his race in denying him equal opportunity for training, compensation, use of new equipment, time off from work, leave, retention and advancement?
PRELIMINARY STATEMENT
On or about November 16, 1992, the Petitioner filed a Charge of Discrimination against the Respondent with the Florida Commission on Human Relations (hereinafter referred to as the "Commission").
The Commission subsequently determined that the Respondent had not committed a discriminatory employment practice by "Determination: No Cause" entered March 29, 1993.
The Petitioner filed a Petition for Relief with the Commission seeking a formal administrative hearing. On May 6, 1993, the Commission filed the Petition for Relief with the Division of Administrative Hearings and requested assignment of a Hearing Officer. On May 25, 1993, the Respondent filed an Answer to Petition for Relief denying the alleged discrimination.
The case was assigned to Robert T. Benton, II. Hearing Officer Benton scheduled the final hearing for November 19, 1993, by Notice of Hearing entered July 2, 1993.
On December 29, 1993, the case was reassigned to the undersigned.
At the final hearing the Petitioner testified on his own behalf and presented the testimony of Steve Sumner, Gloria Jacobs, Hannah Davis, Debra Chason, Mary Jane Silcox, Charles Frederick, and Minnie Jane Sapp. The Petitioner also offered 41 exhibits into evidence. Petitioner's exhibits 1 through 40 were accepted into evidence. Petitioner's exhibits 1 and 2 consisted of the deposition testimony of Ms. Chason and Mr. Sumner.
A ruling on Petitioner's exhibit 41, an affidavit from Linda Gray, was reserved. At the close of the final hearing on November 20, 1993, it was agreed that the hearing would be reconvened on Wednesday, November 24, 1993, to take the testimony of Ms. Gray. Hearing Officer Benton, therefore, withheld a ruling on the affidavit until Ms. Gray's testimony was taken. See Page 673 of the Transcript of the Final Hearing.
The portion of the hearing scheduled for November 24, 1993, was subsequently cancelled because of the unavailability of Ms. Gray. During a telephone conference with the parties on February 8, 1994, it was agreed that Ms. Gray's testimony would be taken and submitted by deposition. On March 23, 1994, the deposition testimony of Ms. Gray/Horsley was filed. Ms. Gray's affidavit is hereby accepted as Petitioner's exhibit 41. Ms. Gray's deposition testimony is accepted into evidence as Petitioner's exhibit 42.
During the final hearing the Respondent presented the testimony of Charles Kingary, Jeff Johnson and Ms. Chason. The Respondent presented eighteen exhibits, which were accepted into evidence.
The parties were informed during the telephone conference between the undersigned and the parties that they could file proposed recommended orders. Proposed recommended orders were to be filed within twenty days after the later of the filing of the transcript or Ms. Gray's deposition.
The transcript of the final hearing was filed on February 25, 1994. Ms.
Gray's deposition was filed March 23, 1994. The parties were informed by telephone that their proposed recommended orders were due April 12, 1994.
On May 16, 1994, a Recommended Order was entered in this case. It was reported in the Recommended Order that no proposed recommended order had been filed by Petitioner. On July 7, 1994, Petitioner filed an Amended Motion for Emergency Relief. In the motion, Petitioner pointed out that, in fact, Petitioner had filed a proposed recommended order. Petitioner suggested, therefore, that the undersigned should recuse himself and requested the following relief:
The record be reconsidered de novo;
A new hearing officer be appointed to this matter for a complete review;
The Recommended Order by Hearing Officer
Larry Sartin be withdrawn and held for naught;
The Division of Administrative Hearings pay Petitioner's Attorney fees and costs
in submitting the exceptions to the tainted Recommended Order and this motion;
Other such relief as deemed necessary
and appropriate be awarded to Petitioner.
Respondent filed a response to the motion. Respondent represented that it agreed that Petitioner's proposed recommended order should now be considered and that an "amended" recommended order should be entered. Respondent objected, however, to the recusal of the undersigned.
On July 11, 1994, an Order Granting, In Part, and Denying, In Part, Motion for Emergency Relief, was entered. In that order the following were recognized as the apparent pertinent facts concerning Petitioner's proposed recommended order:
A proposed recommended order was filed with the Clerk's office of the Division of Administrative Hearings by Petitioner on April 12, 1994. The order was stamped by the Clerk's office as having been received.
The undersigned's secretary, Judy Studdard, confirmed by telephone call to Petitioner's counsel on April 13, 1994
that the proposed recommended order had been received. It is likely, because of the time that it normally takes for the Clerk's office to process pleadings and provide a copy to the pertinent Hearing Officer, that Ms.
Studdard confirmed that the proposed order had been received in the Clerk's office but that the proposed recommended order had not yet been received by the undersigned. [The
undersigned was unaware of this communication until the motion was filed].
The Petitioner's proposed recommended order was placed in the original file in this case. The original file is maintained in the Clerk's office. Although a copy of all pleadings is supposed to be provided by the Clerk's office to the Hearing Officer, no copy of Petitioner's proposed recommended order was provided to the undersigned by the Clerk's office or, if one was provided, it was misplaced by the undersigned (the undersigned has no recollection, however, of having seen the Petitioner's proposed order).
The entire record of this proceeding, including the transcript of the final hearing, was read by the undersigned. A Recommended Order was prepared based upon that review. Respondent's proposed recommended order was considered.
The Recommended Order was entered on May 16, 1994. Prior to entry of the Recommended Order, the undersigned personally checked the Clerk's office computerized docket sheet for this matter to confirm that Petitioner had not filed a proposed recommended order. No record of Petitioner's proposed recommended
order was included in the docket sheet despite the fact that one had been filed.
In light of the fact that the undersigned had not seen Petitioner's proposed
recommended order and the fact that the docket sheet did not indicate that one had been filed, the undersigned reported, incorrectly, in the Recommended Order that no proposed recommended order had been filed by Petitioner.
After receiving the Recommended Order Petitioner took the steps set out in paragraphs 7 through 8 and filed the Amended Motion for Emergency Relief.
It was concluded in the July 11, 1994 Order that Petitioner had failed to set forth any facts or circumstances that would demonstrate bias or prejudice on the part of the undersigned or indicating a well-founded fear that Petitioner would not receive a fair hearing if the undersigned enters a corrected recommended order. Consequently, the suggestion that the undersigned should recuse himself from this proceeding was denied.
The other relief sought by Petitioner in paragraphs 1-4 on page 3 of Petitioner's motion was also denied. Nothing contained in Petitioner's proposed recommended order is not apparent from the record of this proceeding. Based upon a review of Petitioner's proposed recommended order, there has been little, if any, prejudice to Petitioner as a result of a Recommended Order being entered without having considered Petitioner's proposed recommended order.
Finally, Petitioner was informed that the only relief Petitioner was entitled to was a consideration of Petitioner's proposed recommended order and the issuance of a corrected recommended amended order to reflect that consideration. Petitioner was also informed that the corrected amended order would indicate that Petitioner did in fact file a proposed recommended order and the Appendix attached to the Recommended Order would be corrected to reflect the treatment by the undersigned of each of Petitioner's proposed findings of fact. Petitioner was informed that, whether corrections to the substance of the Recommended Order, including different or additional findings of fact, conclusions of law or recommendations, would be necessary, would depend upon whether the proposed recommended order sufficiently convinced the undersigned of the need for such changes.
Petitioner's proposed recommended order has now been considered. The proposed recommended order does not raise any new issue or matter not considered by the undersigned in entering the Recommended Order in this case. A ruling on each of Petitioner's proposed findings of fact has been made either directly or indirectly in this Corrected Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
One finding of fact has been modified as a result of consideration of Petitioner's proposed recommended order. Finding of fact 5 has been modified to reflect that Mr. Sumner is white. Although not so stated in the Recommended Order entered May 16, 1994, the undersigned was aware of this fact when the Recommended Order was entered.
A proposed recommended order was filed by the Respondent on April 12, 1994. The Respondent's proposed recommended order contained proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT | ||
A. | The | Parties. |
1. | The | Petitioner, Oscar Jacobs, is an Afro-American. His race is black. |
2. | The | Respondent, the Florida Department of the Lottery (hereinafter |
referred to as the "Department"), is an agency of the State of Florida.
District 2 of the Department.
In the fall of 1987 the Department created a district office in Panama City, Florida.
The Panama City office of the Department was part of District 2 (hereinafter referred to as the "District"). The District consisted of Bay, Calhoun, Gulf, Jackson, Holmes and Washington Counties.
Steve Sumner was hired as the District Manager for the District in October of 1987. Mr. Sumner is white.
Mr. Sumner hired the staff of the District in November of 1987.
The District had the following type of positions:
District Manager. The District Manager was in charge of the District office and was the immediate supervisor of the employees in the District. Among other things, the District Manager was responsible for: (1) the assignment of the geographic areas LSRs were responsible for including the designation of retailers located therein that the LSRs were to service; (2) the approval of leave; and (3) the assignment of vans.
Lottery Sales Representative II (hereinafter referred to as an "LSR II"). LSR IIs were responsible for inventorying lottery ticket stock sold at retail locations, settling accounts with retailers for all lottery tickets sold, ordering lottery ticket books, reviewing settlement calculations, training retailers, completing paperwork necessary for retailers to become a lottery outlet, completing paperwork upon the termination of a retailer as a lottery outlet, ensuring that retailers operated within Department rules, soliciting, conducting and monitoring retailer promotions and recruiting new retail accounts. See Petitioner's exhibit 4 for a complete description of an LSR II's job description.
Lottery Sales Representative I (hereinafter referred to as an "LSR I"). LSR Is were responsible for delivering lottery tickets, picking up redemption envelopes from retailers and comparing them with issuance/settlement forms, assisting retailers, maintaining paperwork and daily activity reports and filling in for, and assisting, LSR IIs. See Petitioner's exhibit 4 for a complete description of an LSR I's job description. Each LSR I was assigned to work with one particular LSR II.
Storekeepers. Storekeepers were responsible for receiving, verifying and sorting incoming orders for lottery tickets, receiving and verifying ticket redemption envelopes and ticket returns, and insuring that materials were distributed. See Petitioner's exhibit 4 for a complete description of a Storekeeper's job description.
A Receptionist.
An Accountant I.
An Administrative Assistant I.
Clerical positions.
Relevant History of Mr. Jacobs' Employment at the District.
In November of 1987, Mr. Sumner hired three LSR IIs (Sandra Doll, Linda Gray and Debra Chason). All three are white.
Mr. Sumner also hired two LSR Is. On November 15, 1987, Mr. Sumner hired the Mr. Jacobs as an LSR I. John Stevens was the other LSR I. Mr. Stevens is white.
Danny Edwards was hired in 1987 as the Storekeeper, and Mary Jane Silcox was hired as an Administrative Assistant. Mr. Edwards and Ms. Silcox are white.
At the time that Mr. Jacobs was hired, he was married. Mr. Jacobs' wife's race is white. Although Mr. Jacobs subsequently separated and eventually obtained a divorce from his wife, Mr. Sumner was not aware of these events until sometime after he had hired Mr. Jacobs.
Mr. Sumner was responsible for evaluating Mr. Jacobs' performance. For the fiscal years November 16, 1987 to November 16, 1988, November 16, 1988 to November 16, 1989 and November 1989 to November 1990, Mr. Sumners rated Mr. Jacobs' performance with an overall rating of "Exceeds At Least One Standard." The possible ratings, from lowest to highest, were "Below Standards," "Achieves Standards," "Exceeds at Least One Standard," "Exceeds Most Standards," and "Sustained Superior Performance."
In April of 1988, Mr. Edwards was promoted by Mr. Sumner from Storekeeper to LSR I.
In May of 1988, Larry Kissinger was hired by Mr. Sumner as the Storekeeper. Mr. Sumner also hired Hannah Davis as an LSR I. Mr. Kissinger and Ms. Davis are white.
In March of 1990, one of the LSR IIs, Sandra Doll, went on maternity leave. Mr. Sumner selected Mr. Jacobs to fill the LSR II position of Ms. Doll during her absence. Mr. Jacobs was selected out of the three LSR Is then working for the District.
Mr. Sumner arranged for Mr. Jacobs to receive a 10 percent increase in pay. The increase in pay was to be payable while Mr. Jacobs temporarily filled the LSR II position.
At about the same time that Ms. Doll went on maternity leave, another LSR II, Ms. Gray, resigned. Mr. Sumner assigned Ms. Gray's duties jointly to one of the other LSR Is, Ms. Davis, and the Storekeeper, Mr. Kissinger. Ms. Davis and Mr. Kissinger did not receive any increase in pay for their services.
During the time that Mr. Jacobs served as a temporary LSR II, he performed satisfactorily, with assistance from other District staff.
Prior to August of 1990, Ms. Doll resigned.
In August of 1990, Mr. Sumner decided to promote Mr. Jacobs permanently to the position of LSR II. The Department's Personnel Office, however, informed Mr. Sumner that Mr. Jacobs did not appear to meet the minimum qualifications for the position. Therefore, Mr. Sumner assisted Mr. Jacobs to supplement his resume by expanding the description of his prior sales experience in order for Mr. Jacobs to meet the minimum requirements. Mr. Jacobs was subsequently determined to be qualified and Mr. Sumner's decision to promote Mr. Jacobs was accepted.
Mr. Jacobs' salary was reduced to the amount he had been paid before he was given the temporary 10 percent increase. Mr. Sumner recommended, and Mr. Jacobs received, a permanent 7 percent increase, the maximum pay increase he could be awarded upon his permanent promotion to LSR II.
As of August of 1990, Mr. Jacobs became the highest paid LSR II in the District. Mr. Jacobs remained the highest paid LSR II while he was employed as an LSR II and as an LMR.
Mr. Kissinger, the Storekeeper, was promoted in August of 1990 to fill the LSR I position vacated by Mr. Jacobs.
Ms. Davis was promoted in September of 1990 to fill the other LSR II position.
Ms. Silcox, the Administrative Assistant, was promoted to fill Ms. Davis' LSR I position in September of 1990.
Charles Frederick, whose race is black, was hired by Mr. Sumner in February of 1991, as the Storekeeper.
In December of 1990, Mr. Jacobs remarried. The woman that Mr. Jacobs married in December of 1990 was white.
From the time that Mr. Sumner hired Mr. Jacobs until approximately May of 1991, Mr. Sumner was satisfied with Mr. Jacobs' performance. In March of 1989 Mr. Sumner nominated Mr. Jacobs to the Department as the District employee of the month. In approximately May of 1991, however, Mr. Sumner began to lose faith in Mr. Jacobs.
Mr. Jacobs believes that Mr. Sumner's attitude toward him began to change in 1991 and he attributes this change to the fact that he had married a white woman in December of 1990. Mr. Jacobs' belief is not, however, supported by the record. In light of the fact that Mr. Jacobs was married to a white woman when Mr. Sumner initially hired him and during at least part of the time that Mr. Sumner found Mr. Jacobs' performance to be satisfactory, Mr. Jacobs' belief is unfounded.
A more logical explanation for the change in the relationship of Mr. Sumner and Mr. Jacobs is Mr. Jacobs' decline in performance and Mr. Sumner's criticism of Mr. Jacobs' performance as an LSR II. After being promoted to the permanent LSR II position, Mr. Sumner found Mr. Jacobs' performance to be lacking. In September of 1990, Mr. Sumner wrote four critical memorandums to Mr. Jacobs. Mr. Jacobs, based upon these memoranda and other comments from Mr. Sumner, began to believe that Mr. Sumner was treating him unfairly. This combination of lesser performance and criticism at least contributed to the rift between Mr. Sumner and Mr. Jacobs.
By approximately May of 1991 Mr. Sumner concluded that Mr. Jacobs' performance had noticeably deteriorated and he seemed to lose interest in his job.
In September of 1991 Mr. Jacobs and his wife became foster parents of two infants. The infants both suffered from severe medical problems. Mr. Jacobs' relationship with Mr. Sumner became more strained as a result of the stress on Mr. Jacobs caused by the children's condition.
In the summer of 1991, a new sales director for the District was hired by the Department. SEE 23.
For the November, 1990 to November, 1991 fiscal year, Mr. Sumner evaluated Mr. Jacobs' performance as "Achieves Standards." This rating was one rating lower than the previous ratings Mr. Jacobs had received from Mr. Sumner. The rating was for Mr. Jacobs' first full year as an LSR II and reflected the drop in his performance as an LSR II. The following comment, among others, was made by Mr. Sumner on the evaluation:
Over the past years Jake has been an enthusiastic and productive worker. This previous year has seen a deterioration of skills that he is normally capable of doing. I feel this maybe [sic] in part to environmental pressures outside of work.
Many changes have been made to improve work environment, yet employee doesn't appear to enjoy his work. This change became more evident after first full year as an LSR II.
Petitioner's exhibit 11.
At the time of the 1990-1991 evaluation of Mr. Jacobs, Mr. Sumner was not aware that changes in the number of LSR positions in the District would be made by the Department in 1992.
Effective January 1, 1992, the Department eliminated the LSR I and LSR II classifications. A single classification, Lottery Marketing Representative (hereinafter referred to as "LMR"), was created. The evidence failed to prove that Mr. Sumner was involved in the decision to make this change.
Mr. Jacobs, Ms. Chason and Ms. Gray were reclassified from LSR II to LMR. Mr. Edwards, Mr. Kissinger and Ms. Silcox were reclassified from LSR I to LMR.
In March of 1992 Mr. Sumner was notified by the Department that the sales staff of the District was being reorganized. As a consequence, the District LMR positions were to be reduced from six positions to four.
As a part of the reorganization, the District was to receive one new position: a Telemarketing Representative, a newly created employee classification.
As a result of the reorganization, Mr. Sumner was faced with reclassifying/demoting one LMR and possibly terminating one LMR. Mr. Sumner was only given two weeks to make the changes.
In order to minimize the impact of the reorganization on employees of the District, Mr. Sumner successfully convinced the Department to locate the new Telemarketing Representative position at the District office.
Mr. Sumner informed the LMRs of the reorganization and sought volunteers to take the Telemarketing Representative position in a meeting of all LMRs. Ms. Silcox subsequently volunteered to take the Telemarketing Representative position.
At the time that Mr. Sumner was deciding how to comply with the Department's reorganization, the Administrative Assistant position in the District became vacant. Ms. Silcox subsequently agreed to take the Administrative Assistant position when Mr. Sumner asked her to.
As a result of Ms. Silcox taking the Administrative Assistant position, Mr. Sumner did not have to terminate any LMR. The person in the other LMR position eliminated could move into the Telemarketing Representative position.
Mr. Sumner spoke to the remaining four LMRs seeking a volunteer to take the Telemarketing Representative position. Mr. Edwards indicated that he would consider taking the position but delayed a decision over night. Mr. Jacobs did the same. Ultimately, none of the remaining five LMRs volunteered to take the Telemarketing Representative position.
Mr. Sumner was required to select one of the five LMRs (Ms. Chason, Mr. Edwards, Ms. Gray, Mr. Jacobs or Mr. Kissinger) to be placed in the Telemarketing Representative position.
Mr. Sumner decided that Mr. Jacobs should be reassigned/demoted to the Telemarketing Representative position. Mr. Jacobs was informed of the decision and was given the choice of accepting the Telemarketing Representative position with no reduction in salary or moving to Gainesville or Tampa as an LMR. Mr. Jacobs elected to take the Telemarketing Representative position so that he would not have to move.
Mr. Jacobs was placed in the Telemarketing Representative position and continued to be paid the same salary he was receiving as an LMR. Mr. Jacobs received no reduction in pay or benefits.
The Basis for Mr. Sumner's Decision to Reassign/Demote Mr. Jacobs.
Mr. Sumner's decision to place Mr. Jacobs in the Telemarketing Representative position was based on his perception of the performance of the four other remaining LMRs (after Ms. Silcox had agreed to take the Administrative Assistant position) under Mr. Sumner's supervision compared to Mr. Jacobs' performance. Mr. Sumner took into account the past performance of each of the five LMRs and their progress in the various positions they had held under Mr. Sumner's supervision. Mr. Sumner did not base his decision on or consider seniority.
Mr. Sumner selected Mr. Jacobs based upon the decline in Mr. Jacobs' performance since being promoted to LSR II, and his perception of the relatively slower development of Mr. Jacobs' abilities as an LSR II when compared with the other LMRs.
All of the LMRs (while employed in the various positions under Mr. Sumner's supervision) had experienced problems in their performance and had been criticized by Mr. Sumner. There were no exceptions. Except for Mr. Jacobs, all of the LMRs had received consistently high evaluations of "Exceeds at Least One Standard" or "Exceeds Most Standards" each year while under Mr. Sumner's supervision. These ratings were based on their overall performance and the evidence failed to prove that the ratings were not reasonable. Only the rating given to Mr. Jacobs for his last evaluation period prior to his assignment to the Telemarketing Representative position had declined below those ratings.
Two of the five LMRs had held LSR positions for a shorter period of time than Mr. Jacobs:
Mr. Edwards: Storekeeper from 1987 to April of 1988, LSR I from April of 1988 to January of 1992, and LMR from January of 1992; and
Mr. Kissinger: Storekeeper from May of 1988 to August of 1990, LSR I from August of 1990 to January of 1992 and LMR from January of 1992.
Mr. Edwards and and Mr. Kissinger were not selected to be placed in the Telemarketing Representative position because of their consistently high evaluations and because they had both continued to progress and improve in their performance consistently after being employed in the District. Mr. Jacobs had not continued to progress and improve.
The Impact of Routes on Mr. Jacobs' Performance.
In the fall of 1987, the District was divided into three geographic areas (hereinafter referred to as "Routes"), by Mr. Sumner. Each LSR II was assigned to one of the three Routes and was responsible for servicing the retailers located therein. Each of the three Routes contained a part of Panama City, the largest city in the District, and a part of the rural areas of the District.
Ms. Doll was assigned the eastern portion of the District, Ms. Gray was assigned the western portion and Ms. Chason was assigned the rest. Mr. Jacobs was assigned to work with Ms. Chason on the Route assigned to her.
When Ms. Doll left the District and Mr. Jacobs was temporarily assigned to replace her, Mr. Jacobs took over Ms. Doll's Route plus a part of Ms. Gray's Route.
Mr. Jacobs satisfactorily performed his duties as an LSR I on Ms. Chason's Route and while temporarily replacing Ms. Doll as an LSR II on Ms. Doll's Route. These Routes did not adversely affect Mr. Jacobs' performance.
In September of 1990, when Mr. Jacobs was permanently promoted to LSR II and Ms. Davis was promoted to an LSR II position, the Routes were restructured by Mr. Sumner. Mr. Jacobs continued to serve the eastern portion of the District previously serviced by Ms. Doll and by him as a temporary LSR II, Ms. Chason was assigned Panama City Beach and the accounts along part of the Florida border with Georgia and Alabama, and Ms. Davis was assigned the western portion of the District. All three Routes continued to include portions of the greater Panama City area (Lynn Haven, Parker, Callaway and Springfield).
The accounts on Panama City Beach were more productive during the summer months. The accounts along the Florida border also tended to be more productive. Ms. Chason was assigned these more productive accounts because she had evidenced greater skills in sales/marketing than the other LSR IIs. Not because she was white.
The Routes were not totally restructured again until the January, 1992 consolidation of LSR positions. Prior to January of 1992 changes were, however, made to the Routes. These changes were made because of frequent changes in retailers participating in lottery sales and, on a few occasions, when Mr. Sumner was requested to make changes by the LSR IIs, including Mr. Jacobs.
The Route assigned to Mr. Jacobs in September of 1990 was more rural than the other Routes and Mr. Jacobs was required, on average, to drive more miles than the other LSR IIs.
The last relevant restructuring of Routes took place in January of 1992 after the consolidation of LSR I and II positions. At that time, the three Routes served by the LSR IIs were divided essentially in half, creating six Routes, one for each LMR. Each LSR II was allowed to select the half of the Route he or she was previously responsible for and the other half was assigned to the LSR I that had previously been assigned to the Route.
Immediately prior to January of 1992, Mr. Jacobs was assisted by Ms. Silcox. When their Route was divided, Mr. Jacobs selected the half of the Route he desired and Ms. Silcox was assigned the other half.
The evidence failed to prove that Mr. Sumner's evaluation of Mr. Jacobs was unfairly affected by the Route he was assigned to or that Mr. Sumner treated Mr. Jacobs unfairly in the assignment of Routes based upon his race.
Sales figures contained on evaluations performed by Mr. Sumner were not always seen by Mr. Sumner when he completed an evaluation. In at least one year, those figures were added to the evaluation after Mr. Sumner completed his part of the evaluation.
The suggestion that Mr. Jacobs' Route adversely impacted his evaluations was contradicted by the fact that for three years, Mr. Jacobs and Ms. Chason, who allegedly had the most favorable Route, received the same overall evaluation: "Exceeds at Least One Standard." In the first full year that Mr. Jacobs served as an LSR II, although his overall evaluation declined, the "Other Category," which included Route statistics, on Mr. Jacobs' evaluation was rated "Exceeds at Least One Standard."
The suggestion that some LSRs were able to dictate their Routes was also not supported by the evidence. All of the LSRs had some input into the Routes that they handled. For example, Mr. Jacobs and Ms. Davis both requested the assignment of retailers near the Florida border. These requests were honored by Mr. Sumner. Mr. Jacobs was assigned Bascom and Malone, Florida, and Ms. Davis was assigned Campbellton, Florida. Mr. Jacobs accepted the new accounts despite the fact that the mileage he was required to travel increased. All of the LSRs were also allowed to choose between half of their prior Routes in 1992. These incidents did not prove that white LSRs were allowed to select their Routes.
Sales generated in each Route had minimal impact on Mr. Sumner's evaluation of Mr. Jacobs or the other LSR's performance. No sales quotas were established and LSRs were not compensated on the basis of their sales during the period of time relevant to this proceeding. While sales had to be taken into account to some extent, performance was evaluated based upon each person's general marketing skills and efforts.
Sales goals were established during the summer of 1991 by the new sales director. Each LSR was assigned a sales quota based upon a percentage increase from their last year sales figures. If an LSR failed to meet the quota, there was no consequence. Employees were commended if they did achieve their quota.
LSRs were given quotas of new retailers they were to attempt to add each month. All LSR Is were given a quota of one new retailer and all LSR IIs were given a quota of two new retailers.
Recruitment of retailers was not necessarily a product of the length of a Route. See Petitioner's exhibit 36. The evidence failed to prove that the Routes assigned to Mr. Jacobs adversely impacted Mr. Sumner's evaluation of his ability to recruit.
Based upon the weight of the evidence, Mr. Jacobs failed to prove that the assignment of Routes was made in a discriminatory manner or that Mr. Jacobs' Routes adversely affected his performance because of difficulty caused by the Routes in meeting sales or recruitment quotas.
Leave Policies.
Mr. Sumner's policy concerning requests for annual leave made was that District employees should request approval at least two weeks in advance of when the employee intended to be off work.
The two week notice policy was well known to all employees, including Mr. Jacobs. Mr. Sumner issued several memoranda setting out the policy.
Mr. Sumner also notified employees that a telephone call was all that was necessary to take annual leave if there was an emergency.
Mr. Sumner's policy concerning giving two weeks notice was not strictly adhered to or enforced. Mr. Sumner recognized there were reasonable circumstances when an employee was not able to request permission to take annual leave two weeks or more in advance. As long as an employee made a reasonable effort and the operation of District would not, in Mr. Sumner's opinion, be harmed by an employee's absence, Mr. Sumner approved leave even when two weeks notice was not given.
The two week notice requirement was waived for virtually every employee, including Mr. Jacobs.
On one occasion Mr. Sumner denied a request by Mr. Jacobs for annual leave. The evidence failed to prove that Mr. Sumner denied the request without just cause or based upon Mr. Jacobs' race.
During the period between April of 1990 and April of 1992, Mr. Sumner approved approximately 400 hours of leave, annual and sick, for Mr. Jacobs.
The evidence failed to prove that Mr. Jacobs was treated differently because of his race with regard to leave requests he made while employed by the Department.
Part of the leave taken by Mr. Jacobs was attributable to the illness of his two foster care infants. Mr. Jacobs had taken time off on numerous occasions due to their poor health. Mr. Jacobs had been required to take annual leave, rather than sick leave, for the infants because the Department's personnel office had informed Mr. Sumner and Mr. Jacobs that State leave policies did not allow sick leave for foster care children.
Mr. Sumner did not strictly enforce the notice policy for annual leave when Mr. Jacobs took annual leave for the foster care children. Nor did Mr. Sumner give Mr. Jacobs any reasonable reason to expect that Mr. Sumner would not approve the use of annual leave when the children were ill because Mr. Jacobs had not given two weeks advance notice. Nor was it reasonable for Mr. Jacobs to not realize that a simple telephone call to the office to inform the office of an emergency with the children would not be sufficient.
Between March 17, 1992 and March 18, 1992, one of Mr. Jacobs' foster care infants became extremely ill. This was not the first time that the child had experienced the type of problem experienced at that time, but the problem was more severe.
Although Mr. Jacobs could have simply telephoned the office the next morning and reported that there was an emergency, Mr. Jacobs reported to work. Mrs. Jacobs took the infant to a hospital where it was to be determined whether the child would be admitted to the hospital.
After arriving at the office, Mr. Jacobs, who was visibly shaken, spoke with Mr. Sumner. What took place during that discussion was disputed by Mr. Jacobs and Mr. Sumner. Mr. Jacobs testified that Mr. Sumner was clearly informed that he wanted to go to the hospital to be with the child but was told he had to attend to his Route first. Mr. Sumner testified that Mr. Jacobs did not specifically request time off, that he had indicated he might be require to go to the hospital sometime during the day, and that Mr. Sumner told Mr. Jacobs to service his five biggest accounts scheduled for that day and then take the rest of the day off even if it was not necessary for him to go to the hospital.
Shortly after the conversation between Mr. Sumner and Mr. Jacobs, and after Mr. Jacobs had left on his Route, the child died. Mr. Jacobs was informed at his first stop and he left for the hospital.
Based upon the weight of the evidence, it is concluded that Mr. Jacobs, who was tired from the events of the night before and under a great deal of stress because of his concern for the child, was not denied approval of leave by Mr. Sumner to immediately go to the hospital and was not told that he had to complete his Route. At most, there appears to have been an unfortunate miscommunication between Mr. Jacobs and Mr. Sumner about the urgency of the situation. Mr. Sumner's belief that the matter was not as urgent as it turned out to be was supported by the fact that the infants had experienced similar difficulties in the past; the fact that the child had not been taken to the hospital earlier; the fact that Mr. Jacobs had come to the office that morning instead of telephoning; and the fact that Mr. Mr. Jacobs did not insist on going to the hospital immediately.
Assignment of Department Vehicles.
LSRs were assigned Department vehicles, (vans) for use in servicing Routes.
In approximately November of 1987, the District was temporarily assigned one less van than needed. Mr. Jacobs volunteered to drive his personal vehicle, for which he was reimbursed by the State. Mr. Jacobs drove his personal vehicle until approximately December 24, 1987, when he received a new van.
Other LSRs were required to use their personal vehicles on occasion, for which they were also reimbursed by the State.
Pursuant to a replacement schedule instituted by the Department, 1/3 of all vans were to be replaced every year. In this way, every van would be used a maximum of three years. This schedule was based upon estimates of the time necessary for vans to have accumulated sufficient mileage (80,000 miles) to warrant replacement.
To insure that a van was ready for replacement at the end of three years, it was Department policy to assign vans with lower mileage after a year or two years use to high mileage drivers.
In November of 1991, five vans in the District exceeded 80,000 miles and were to be replaced with new vans. The District, however, only received three new vans. The other two vans were replaced with two lower mileage vans scheduled to be replaced the next fiscal year.
Consistent with Department policy Mr. Sumner was suppose to assign the new vans to persons who drove less miles and the older vans should have been assigned to persons who drove greater miles.
In November of 1991, the mileage driven in the previous year by each LSR was as follows:
Silcox 16,327 miles
Chason 16,426 miles
Davis 21,000 miles
Jacobs 23,717 miles
Edwards 24,000 miles
Kissinger 30,000 miles
Pursuant to Department policy, the new vans should have been assigned to Ms. Silcox, Ms. Chason and Ms. Davis. The new vans, however, were assigned to Ms. Chason, Ms. Davis and Mr. Kissinger. The vans assigned to Ms. Chason and Ms. Davis were assigned consistent with Department policy.
Ms. Silcox, Mr. Jacobs and Mr. Edwards were assigned older vans. The assignment of an older van to Ms. Silcox was inconsistent with Department policy.
The assignment of older vans with less mileage to Mr. Jacobs and Mr. Edwards was consistent with Department policy. Had Department policy been followed completely and the third new van had been assigned to Ms. Silcox and not Mr. Kissinger, Mr. Jacobs would still not have received a new van.
Mr. Sumner asked Mr. Kissinger and Mr. Edwards if they would drive to another district to pick up two vans. Mr. Sumner indicated that one of the new vans would be assigned to one of them if they agreed. They agreed, and Mr. Sumner awarded a new van to Mr. Kissinger.
Mr. Sumner did not give Mr. Jacobs or Ms. Wilcox the opportunity to pick up the two vans located in another district.
Marketing Promotions.
LSRs, as part of their marketing responsibility, could conduct various types of promotions at retailers intended to increase sales of lottery tickets.
LSRs were expected to conduct promotions. Quotas were assigned to each LSR II. They were expected to conduct one promotion per month.
Promotions generally did not require much of a financial investment by the retailer and smaller retailers were generally as interested in conducting promotions as larger retailers.
The evidence failed to prove that the Route assigned to Mr. Jacobs adversely affected his ability to conduct promotions. The evidence also failed to prove that Mr. Sumner's evaluations of Mr. Jacobs' performance while supervised by Mr. Sumner were adversely impacted by a lack of promotions caused by Mr. Jacobs' Route. Mr. Sumner believed that Mr. Jacobs performed a sufficient quantity of promotions but that he was slow about doing them.
Conducting some promotions required overtime. Overtime, however, was required to be requested and approved in writing. Approval of overtime came from the Department and not Mr. Sumner. Mr. Jacobs was aware of this requirement.
In December of 1991, Mr. Jacobs requested permission to conduct a promotion which involved the giving away of coffee mugs with the Department logo on them to each customer that bought a minimum number of lottery tickets. This promotion did not involve overtime and none was requested by Mr. Jacobs.
Mr. Jacobs claimed that the promotion was changed to one that would require overtime, and that he was told by Mr. Sumner that approval would be obtained from the Department. The weight of the evidence failed to support this claim.
In August of 1991, Ms. Chason sought approval to conduct a promotion at a seafood festival to be held in October of that year. The festival required overtime for two employees plus Ms. Chason. Ms. Chason asked for volunteers and accepted the first two persons. Mr. Jacobs did not volunteer and, consequently, was not one of the two persons selected by Ms. Chason. The evidence failed to prove that Mr. Sumner was involved in the failure to select Mr. Jacobs, that the failure to select Mr. Jacobs was somehow unfair or that Mr. Jacobs was not selected by Ms. Chason because of his race.
Mr. Jacobs also claimed that he was not given credit for two new retailers he obtained because the forms signing up the retailers were lost. The evidence, however, proved that, although the retailers were lost as Department customers, Mr. Jacobs was given credit for signing them up by Mr. Sumner. The evidence failed to prove that Mr. Sumner was involved with the loss of the forms signing up the retailers or that they were lost to cause Mr. Jacobs to fail to meet his quota for new retailers.
The evidence failed to prove that Mr. Sumner or the Department awarded bonuses or that Mr. Jacobs was denied bonuses because of his race.
Miscellaneous Charges.
The evidence failed to prove that Mr. Jacobs was denied training provided to white employees because of his race.
The evidence failed to prove that Mr. Jacobs was denied the use of new equipment provided to white employees because of his race.
Mr. Jacobs' Charge of Discrimination.
Mr. Jacobs filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Mr. Jacbos alleged that he had been discriminated against based upon his race.
On March 29, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred "
Mr. Jacobs filed a Petition for Relief with the Commission requesting a formal administrative hearing.
In the Petition for Relief filed with the Commission Mr. Jacobs alleged, in response to questions 3, 4 and 5 on the Petition for Relief, the following:
Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below:
My supervisor, Steve Sumner has systematically and intentionally denied me equal opportunities because of my race
(black) for training, compensation, use of new equipment, time off from work, leave and retention and advancement in my position as
an LSR. See the attached charge of discrimination incorporated herein.
The disputed issues of material fact, if any, are as listed below:
Mr. Sumner allowed every other LSR (all who are white) to pick their own routes which were the best routes, leaving the most difficult
to me. He has also allowed other LSR's to work for bonuses during promotions but has not allowed me to do so. Mr. Sumner has misplaced some new applications for lottery retailers that I obtained so that my quotas of achievement would be lower. Mr. Sumner retained a coworker in the LSR position when he had been promoted to LSR long after me.
Mr. Sumner denied my taking leave when one of my foster children was critically ill and the child died while I was at work.
The ultimate facts alleged and entitlement to relief are as listed below:
I wish to have a formal post-investigative proceeding.
I wish to be reinstated in my LSR position with seniority back to the date of my demotion or receive adequate compensation for the harms I have suffered and reasonable attorneys fees and costs.
I am a member of a protected class and Mr. Sumner has singled me out for arbitrary and negative treatment based on my race (black). All the responses Mr. Sumner has provided are pretextual or simply not true.
The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Jacobs.
At the commencement of the proceeding, Mr. Jacobs indicated that he was seeking a "general injunction", an apology from the Department, monetary compensation for damages in the form of payment for pain and suffering, attorney fees and reinstatement as an LSR II.
Alleged Race Discrimination.
The evidence in this case failed to prove that any action of Mr. Sumner or the Department was based upon Mr. Jacobs' race. He was not held to any standard or requirement based upon his race and he was not treated in a manner different from the treatment afforded employees of other races.
The evidence proved that Mr. Sumner had hired Mr. Jacobs, that Mr. Sumner had given him high evaluations for the first three years he worked, he had temporarily promoted Mr. Jacobs to a higher position with a temporary increase in pay not afforded white employees, he had promoted him with a permanent increase in pay which made Mr. Jacobs the highest paid employee in his class at the District, and he had assisted Mr. Jacobs in insuring that he was qualified for the promotion.
Only after Mr. Jacobs' performance began to decline did Mr. Sumner take actions which were somewhat adverse to Mr. Jacobs. Those actions did not take place until after three years of working together. The reasons for taking those actions were reasonably explained by Mr. Sumner and the Department.
Mr. Jacobs was unable to explain the foundation for his belief that Mr. Sumner began treating him differently in 1991 on the basis of his race.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).
Burden of Proof.
Mr. Jacobs had the ultimate burden of proving by a preponderance of the evidence that the Department, through the actions of Mr. Sumner, intentionally discriminated against him because of his race. McDonnell Douglas
v. Green, 411 U.S. 792, 804 (1973); Irby v. Allstate Insurance Co., 12 F.A.L.R. 2034, 2037 (Florida Commission on Human Relations 1989); and Martin v. Monsanto Co., 10 F.A.L.R. 3886, 3896 (Florida Commission on Human Relations 1988).
Discriminatory motive or intent may be proved by direct evidence or statistical evidence. Additionally, since discriminatory motive or intent is seldom capable of proof by direct evidence, the United States Supreme Court has established a multi-step analytical model which allows a court to infer discriminatory motive or intent on the basis of circumstantial evidence. Perryman v. Johnson, 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas, 411 U.S. at 802-804. See also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981).
The Commission has adopted this analytical model in analyzing cases under the Florida Human Rights Act, Section 760.01-760.10, Florida Statutes:
The employee must present a prima facie case of discrimination;
If the employee presents a prima facie case of discrimination, the employer must adequately rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for its actions; and
The employee must prove that the employer's articulated reason for its actions was merely a pretext.
Mr. Jacobs Failed to Meet His Burden of Proof.
The Florida Human Rights Act provides that it is an unlawful employment practice for an employer to discharge an employee "or to otherwise discriminate against any individual with respect to . . . terms, conditions, or privileges of employment . . . " on the basis of race. Section 760.10(1), Florida Statutes.
Mr. Jacobs was an "employee" and the Department was an "employer."
The evidence failed to prove, however, that the terms, conditions, or privileges imposed by the Department on Mr. Jacobs's employment were in any way affected by his race.
In determining whether discrimination has occurred, the Commission requires proof of the following elements, adopted from the federal courts, in order for an employee to prove a prima facie case of discriminatory conduct:
(a) that the employee belongs to a group protected by the statute; (b) that the employee was qualified for the job; (c) that the employee was subjected to an adverse employment action; and (d) that, in the case of discharge, after the employee's termination, the employer hired a person not in the employee's protected class or retained those having comparable or lessor qualifications, not in the protected class. See St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); McDonnell Douglas; Trumbull v. Health Care & Retirement Corporation of America, 756 F. Supp. 532 (M.D. Fla. 1991), aff'd, 949 F.2d 1162; Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991); and National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988).
Mr. Jacobs proved that he was black, that he was qualified for the position of LMR and that he was reassigned to a different position and white employees were not so reassigned.
Mr. Jacobs failed to prove that the other alleged incidents of alleged disparant treatment took place or that he was otherwise subjected to an adverse employment action.
In particular, Mr. Jacobs failed to prove that Mr. Sumner systematically and intentionally denied him equal opportunities because of his race for "training, compensation, use of new equipment, time off from work, leave and retention and advancement in [his] position as an LSR."
Mr. Jacobs also failed to prove that Mr. Sumner: (a) "allowed every other LSR (all who are white) to pick their own routes which were the best routes, leaving the most difficult to [him]"; "allowed other LSR's to work for bonuses during promotions but has not allowed [him] to do so"; (b) "has misplaced some new applications for lottery retailers that [he] obtained so that [his] quotas of achievement would be lower"; (c) "retained a coworker in the LSR position when he had been promoted to LSR long after [Mr. Jacobs]"; or (d) "denied [Mr. Jacobs] taking leave when one of [his] foster children was critically ill and the child died while [he] was at work."
The Department has suggested that Mr. Jacobs failed to prove a prima facie case of discrimination with regard to his reassignment to the Telemarketing Representative position. This argument is accepted. The evidence failed to prove that the action taken by the Department was racially motivated.
Had Mr. Jacobs presented a prima facie case of discrimination, the Department presented evidence to adequately rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for its actions. Mr. Jacobs failed to prove that the Department's explanation for its actions were merely a pretext.
Based upon the foregoing, it is concluded that Mr. Jacobs failed to prove by a preponderance of the evidence, a prima facie case of discrimination based upon race.
Finally, had Mr. Jacobs proved his charges, he would not be entitled to an award of damages for pain and suffering in this case. Such an award is not available under the law applicable to this particular case. Although back pay may be awarded under the applicable law if Mr. Jacobs had proved his charges, the evidence failed to prove that Mr. Jacobs would have earned more than he was actually paid.
RECOMMENDED ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final
Order dismissing Oscar Jacobs' Petition for Relief.
DONE AND ENTERED this 15th day of July, 1994, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1994.
APPENDIX
Case Number 93-2527
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Petitioner's Proposed Findings of Fact
Accepted in 3-4, 7 and hereby accepted.
Accepted in 5.
Accepted in 1 and 9.
Accepted in 8.
Accepted in 10.
Accepted in 8.
Accepted in 13.
8-9 Accepted in 14.
Accepted in 15.
Accepted in 20.
Accepted in 23.
Accepted in 24.
Accepted in 25.
Accepted in 27.
Accepted in 26.
Accepted in 36-37.
Not supported by the weight of the evidence. See 32, 85 and 87.
Accepted in 83 and 86. 20 See 47-48.
21-22 Accepted in 7.
See 7 and hereby accepted.
Accepted in 38-39 and 42. See 43-48. The evidence failed to prove that Mr. Jacobs actually has received less pay in the telemarketing position. Petitioner failed to present evidence to prove whether Mr. Jacobs is being paid less in the telemarketing position than he would have been paid had he remained an LMR. See 48.
Accepted in 42-43.
Accepted in 13, 37 and 45.
Accepted in 14 and 23. See 46-48.
Accepted in 13, 23 and 36-37.
Not supported by the weight of the evidence. See 47-48. All of the LMRs were told at some point that it was possible that the person who was selected to lose their LMR position could possibly be terminated. The LMRs, including Mr. Jacobs, were also told, however, that the telemarketing position was available as an alternative to termination. Ultimately Mr. Jacobs was also told that he could take an LMR position in another district.
30 Accepted in 13, 15, 23, 36-37 and 47-48. But see 52-53.
Accepted in 49 and 52.
Accepted in 49.
Accepted in 48 and hereby accepted. The evidence failed to prove that Mr. Jacobs actually has received less pay, that he would have earned a bonus, or if so, the amount thereof, or that he would have actually received sales incentives, or if so, the amount thereof.
Hereby accepted. The evidence, however, failed to prove that any of the alleged incidents in this case took place after the sales incentive programs were started.
Not supported by the weight of the evidence. See 36-53, 64, 72, 78, 80, 98, 108, 110-112, 119-122.
Not supported by the weight of the evidence. See 89. See also 90 and 92.
Accepted in 93. See 91-100. 38 See 91-100.
39 Accepted in 7, 54, 58, 60-63, 94-95 and 98. See 56-57, 64 and 66-
72.
40 See 59. See also 62-64 and 66-72.
41 59. But see 62-64 and 66-72.
42 The evidence failed to prove that Mr. Jacobs' route was "too long"
or that it took "time from other duties." See 61 and 95. But see 64-72.
43 See 64-66, 68-72 and 101-103.
See 64-66, 68-72 and 101-103. The evidence failed to prove that any negative impact route length may have had on the ability to sell tickets or the time to do accurate settlements caused a decline in Mr. Sumner's evaluation of Mr. Jacobs. Even if the evidence had proved that Mr. Jacobs was unfairly evaluated because of his route, the evidence failed to prove that the route was assigned to Mr. Jacobs on the basis of his race.
Hereby accepted.
While Mr. Jacobs did have "some of the smaller retailers" on his route, the last sentence is not supported by the weight of the evidence. The evidence also failed to prove that any negative impact route length may have had on the ability to sell tickets or the time to do accurate settlements caused a decline in Mr. Sumner's evaluation of Mr. Jacobs. Even if the evidence had proved that Mr. Jacobs was unfairly evaluated because of his route, the evidence failed to prove that the route was assigned to Mr. Jacobs on the basis of his race.
47-49 Not relevant. See 68 and 104.
Hereby accepted.
See 64-66, 68-72 and 101-103. The evidence failed to prove that any negative impact route length may have had on the ability to sell tickets or the time to do accurate settlements caused a decline in Mr. Sumner's evaluation of Mr. Jacobs. Even if the evidence had proved that Mr. Jacobs was unfairly evaluated because of his route, the evidence failed to prove that the route was assigned to Mr. Jacobs on the basis of his race.
52 See 12-13, 18, 20 and 120. But see 28, 30-31, 34, 50-51, 53, 66 and
121.
53-54 Not supported by the weight of the evidence. See 12-13, 18,
20, 28, 30-31, 34, 50-51, 53, 66 and 120-122.
55 While these proposed findings reflect Ms. Silcox's opinions, Ms. Silcox's opinion of Mr. Jacobs' performance is not relevant. Evaluating Mr. Jacobs was not Ms. Silcox's responsibility. See 28, 30-31, 34, 50-51, 53, 66 and 121.
56 See 12-13, 18, 20 and 120. But see 28, 30-31, 34, 50-51, 53, 66 and
121.
121.
57 See 12-13, 18, 20 and 120. But see 28, 30-31, 34, 50-51, 53, 66 and
58-59 Hereby accepted. The evidence, however, failed to prove that
Mr. Sumner's opinion concerning the significance of these averages was not correct. See 65 and 68-70.
Not relevant.
Accepted in 33 and 69.
Although generally correct, see 65 and 68-70.
63-67 These proposed findings of fact are generally correct and are hereby accepted. They fail to prove, however, that Mr. Jacobs was treated in a discriminatory manner. See 28, 30-31, 34, 50-51, 53, 66 and 121.
68 Not supported by the weight of the evidence.
69-70 Not supported by the weight of the evidence or not relevant.
See 28, 30-31, 34, 50-51, 53, 66 and 121.
71 Hereby accepted. But see 28, 30-31, 34, 50-51, 53, 66 and 121.
Not supported by the weight of the evidence. See 73 and 81.
Although generally true, the evidence failed to prove that Mr. Jacobs was denied similar treatment in a similar situation. See 73-77.
74 See 73-77.
75 Accepted in 32 and 81.
76-79 Not supported by the weight of the evidence. See 83-87.
80 Hereby accepted. But see 83-87.
81-82 Accepted in 86. The last sentence of proposed finding of fact 82 is not supported by the weight of the evidence.
Not supported by the weight of the evidence.
See 76. The last sentence is not supported by the weight of the evidence.
The first two sentences are hereby accepted. The last sentence is not supported by the weight of the evidence.
Not relevant and not supported by the weight of the evidence.
Not supported by the weight of the evidence. See 54-72 and 104. 88 See 108.
89 See 106-107.
Not supported by the weight of the evidence.
Not relevant. While it may have been "possible," the evidence failed to prove that a special promotion was approved "over the phone without the paperwork."
The Department's Proposed Findings of Fact
Accepted in 7, 56 and 89.
Accepted in 4, 54-55 and hereby accepted. 3-5 Accepted in 7.
Accepted in 15-17 and 56.
Accepted in 20-22.
Accepted in 24 and 58.
Accepted in 60.
Accepted in 70 and 102.
Accepted in 101-103
Although true, the evidence also proved that during the period from August of 1990 to August of 1991, after Mr. Jacobs became an LSR II on a permanent basis, he drove more miles in 11 of 12 months.
13-14 Accepted in 65-69 and hereby accepted.
Accepted in 66.
Accepted in 66 and hereby accepted.
Hereby accepted.
Accepted in 67.
Accepted in 68. See 69.
Accepted in 27.
Accepted in 12, 28, 31 and 34.
Accepted in 29 and 122.
Accepted in 33, 69 and hereby accepted.
Hereby accepted.
Accepted in 36, 62-63 and hereby accepted.
Accepted in 38-39 and 41.
Accepted in 42-44.
Accepted in 45.
Accepted in 47 and 49-53.
30-34 Accepted in 51 and hereby accepted.
Accepted in 47-48.
Accepted in 88-90.
Accepted in 91-93 and hereby accepted.
Accepted in 95-97.
Accepted in 96 and 98-99.
Accepted in 73-74 and hereby accepted.
Accepted in 79.
Accepted in 32 and 81.
Accepted in 83-87.
Accepted in 108.
Accepted in 106-107.
Accepted in 109.
COPIES FURNISHED:
Cecile M. Scoon, Esquire
36 Oak Avenue
Panama City, Florida 32401
Louisa H. Warren Senior Attorney
Department of the Lottery Capitol Complex
Tallahassee, Florida 32399-4011
Sharon Moultry, Clerk
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
Dana Baird, Esquire
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
Ken Hart, Esquire Department of Lottery
250 Marriot Drive Tallahassee, FL 32301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Dec. 13, 1996 | Final Order Dismissing Petition for Relief From and Unlawful Employment Practice filed. |
| Mar. 08, 1996 | (Petitioner) Motion for Continuance filed. |
| Nov. 20, 1995 | (Petitioner) Amended Memoranda of Law and Proposed Recommended Order filed. |
| Nov. 14, 1995 | (Petitioner) Memoranda of Law and Proposed Recommended Order filed. |
| Sep. 20, 1994 | (Petitioner) Response to Respondent`s Response to Petitioner`s Exceptions to Corrected Recommended Order filed. |
| Aug. 12, 1994 | (Respondent) Response to Petitioner`s Exceptions to Corrected Recommended Order filed. |
| Aug. 02, 1994 | (Petitioner) Exceptions to Recommended Order filed. |
| Jul. 15, 1994 | Corrected Recommended Order sent out. |
| Jul. 11, 1994 | Order Granting In Part, and Denying In Part, Motion for Emergency Relief sent out. (Petitioners proposed recommended Order will be considered by the undersigned in this mater and a corrected recommended Order will be entered) |
| Jul. 08, 1994 | (Respondent) Response to Petitioner`s Motion for Emergency Relief filed. |
| Jul. 07, 1994 | (Petitioner) Motion for Emergency Relief; Exception to Recommended Order filed. |
| Jul. 07, 1994 | Amended Motion for Emergency Relief w/Exhibit Showing that the Petitioner`s Proposed Recommended Order was received by DOAH & cover ltr filed. (From Cecile M. Scoon) |
| May 16, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 11/19 & 20/93. |
| Apr. 12, 1994 | (Respondent) Proposed Recommended Order filed. |
| Feb. 25, 1994 | (Respondent) Notice of Filing Transcript of Hearing; Transcript (Volumes I-III TAGGED) filed. |
| Dec. 29, 1993 | Order sent out. (Case transferred from R. Benton to L. Sartin) |
| Nov. 19, 1993 | CASE STATUS: Hearing Partially Held, continued to 11/24/93; 10:00am;PC) |
| Nov. 18, 1993 | (Petitioner) Second Motion for Discovery; Motion for Discovery and Request for Production of Documents; Response to Request for Production of Documents filed. |
| Nov. 16, 1993 | Order sent out. (Re: Respondent`s Motion to Compel Production of Documents is Granted nunc pro tunc) |
| Nov. 15, 1993 | (Petitioner) Motion for Discovery and Request for Production of Documents filed. |
| Nov. 09, 1993 | (Respondent) Motion to Compel Production of Documents w/Exhibit-A filed. |
| Jul. 02, 1993 | Notice of Hearing sent out. (hearing set for 11/19/93; 10:00am; Panama City) |
| Jun. 14, 1993 | Order sent out. (Re: Motion for Order allowing Discovery) |
| Jun. 10, 1993 | Notice of Taking Deposition and Request for Production of Documents filed. |
| Jun. 08, 1993 | Motion for Order Allowing Discovery filed. |
| May 25, 1993 | (Respondent) Answer to Petition for Relief filed. |
| May 24, 1993 | (Petitioner) Response to Initial Order filed. |
| May 11, 1993 | Initial Order issued. |
| May 06, 1993 | Transmittal of Petition; Complaint; Notice of Determination; Notice to Respondent of Filing of Petition for Relief From an Unlawful Employment Practice filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 11, 1996 | Agency Final Order | |
| May 16, 1994 | Recommended Order | Petitioner failed to prove Department discriminated on basis of race. |
