The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
Recommendation Based on the foregoing Finding of Fact and Conclusion of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. RECOMMENDED this 28th day of February, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of February, 1990.
The Issue Whether Petitioner failed to timely file her Petition for Relief following the Florida Commission on Human Relations' No Cause Determination? Whether Petitioner failed to timely file a charge of discrimination with the Florida Commission on Human Relations with respect to her claim of harassment? Whether Respondent promptly and thoroughly investigated Petitioner's claim of sexual harassment? Whether Respondent took measures reasonably calculated to end and prevent any alleged sexual harassment? Whether Petitioner suffered from a disability, and, if so, what was the nature of her disability. Whether Respondent provided Petitioner with a reasonable accommodation for her alleged disability? Whether Respondent discriminated against Petitioner on the basis of her sex and/or disability? Whether Respondent retaliated against Petitioner for complaining of sexual harassment?
Findings Of Fact Petitioner filed her Charge of Discrimination against Respondent on August 29, 2002. FCHR issued a No Cause Determination and Notice of Determination: No Cause on May 12, 2003. Petitioner filed her Petition for Relief on June 20, 2003. This was 39 days after the No Cause Determination was issued. Petitioner failed to show good cause for the delay in filing. Petitioner worked as an apprentice operator at Respondent's Stanton Energy Center ("Energy Center"), during the relevant time period, under the supervision of Wade Gillingham ("Gillingham"), manager of Operations for the Energy Center. Respondent is an employer under the FCRA. On or about July 5, 2001, Petitioner expressed some concern to Gillingham about a co-worker, Tim Westerman ("Westerman"), potentially hurting himself or others. More specifically, Petitioner told Gillingham that she was concerned Westerman was going to hurt himself or her. Upon learning of Petitioner's concerns, Gillingham notified Respondent's Human Resources Department, and he scheduled a follow-up meeting with Petitioner on Monday, July 9, 2001. Lou Calatayud ("Calatayud") from Human Resources also attended this interview. During these initial meetings, Petitioner did not complain of any inappropriate touching or sexual contact between herself and Westerman. Following her meeting with Calatayud and Gillingham, German Romero, director of Human Resources, held a second interview with Petitioner to discuss her concerns about Westerman. Thereafter, Respondent conducted a thorough investigation into Petitioner's allegations. During the course of the investigation, Petitioner was interviewed twice and Westerman was interviewed twice. Both Westerman and Petitioner admitted to voluntarily participating in several telephone calls with each other, with some lasting as long as two hours. Petitioner did not appear upset or concerned after these calls. Human Resources also interviewed Terry Cox and Tom Dzoba, both watch engineers to whom Petitioner claimed she reported complaints regarding Westerman. Neither Cox nor Dzoba was Petitioner's direct supervisor. Petitioner told Cox that she had issues with another employee. However, she refused to provide Cox with the other employee's name and insisted on handling the matter on her own, despite Cox's asking her for the name of the person. Dzoba has no knowledge of Petitioner ever complaining about any problems with another employee in the workplace. The first person to whom Petitioner reported Westerman's name was her supervisor, Gillingham, who immediately reported Petitioner's complaints to Human Resources. Westerman was not Hanson's supervisor. Westerman never expressed any romantic interest in Petitioner; however, Petitioner had expressed interest in meeting Westerman outside the workplace for dinner. Additionally, Petitioner used to write Westerman "cheer-up notes" while at work. In fact, the only touching that Petitioner later referred to were hand or arm rubbing during voluntary personal conversations with, and counseling or consoling of, Westerman. Similarly, the only touching Westerman recalls was possibly rubbing up against Petitioner in the workplace or maybe putting his hand on her shoulder when they were talking. Westerman never kissed or attempted to kiss Petitioner. In addition to the above, no other employees were able to identify any inappropriate contact between Petitioner and Westerman. After completing its investigation in early August 2001, Respondent determined that sexual harassment had not occurred but instructed Westerman, verbally and in writing, not to have any further contact with Petitioner. Prior to Respondent's instruction, sometime between May and July 2001, Petitioner personally asked Westerman to stop calling her, a request he complied with generally. At the same time, Respondent instructed Petitioner to discontinue counseling employees to protect against any future incidents or allegations of sexual harassment. It is the policy and practice of Respondent to treat all employees equally regardless of their gender and/or disability. Respondent developed and distributed to its employees, via an Employee Handbook, an Equal Opportunity Policy and Policy Against Harassment. Following the conclusion of Respondent's investigation into Petitioner's complaints of sexual harassment, on or about August 6, 2001, Petitioner requested a medically-supported leave of absence for 30 days. This leave was granted by Respondent. However, Petitioner later requested to return to work nearly ten days ahead of schedule, on August 27, 2001, submitting a release from her doctor. Because Petitioner was seeking to return to work so far ahead of schedule, Petitioner was evaluated by Respondent's occupational medical director, Jock M. Sneddon, M.D., before she was released to return to work. Petitioner returned to work in the same position and rate of pay as before her leave. Additionally, Petitioner received disability benefit payments covering the entire duration of her leave. More than seven months later, Petitioner called in sick on April 6 through 8, 2002, after sustaining a house fire at her personal residence. Following the use of 16 hours or more of sick time, employees are required to return to work with a doctor's note authorizing their absence. Here, it was determined that Petitioner was not sick during this time, nor was she even evaluated by a physician. Based on similar previous problems, for which she was twice verbally reminded of Respondent's policy regarding sick leave, Petitioner received a disciplinary write-up. In addition to Petitioner's two verbal reminders, on or about January 7, 2002, Gillingham issued a memorandum to all operations employees, including Petitioner, detailing Respondent's sick leave policy. On or about June 7, 2002, Petitioner and a male co-worker, Tom Moran, were written up by Gillingham for neglect of their job duties as the result of an incident that occurred at the Energy Center on May 14, 2002. More specifically, both Petitioner and Moran were deemed responsible for failing to make sufficient rounds to discover a mechanical failure, which led to severe flooding of a sump basement in the coal yard, causing more than $12,000 in damages. Gillingham estimated it would have taken between six to eight hours to fill the 60-foot by 20-foot sump basement with the seven feet of water that was found the following morning. Although Moran was an auxiliary operator, both "operators," including Petitioner, an apprentice operator, have the same responsibilities and were responsible for making the necessary rounds to ensure that a mechanical failure of this nature is promptly discovered and repaired. In accordance with Respondent's policy, employees with active discipline in their files are not eligible for promotions or transfer. The written discipline Petitioner and Moran received for the May 14, 2002, sump incident remained active in their employee files for nine months. During her employment at the Energy Center, Petitioner's performance evaluations remained relatively unchanged, receiving a "meets" or "good" rating on each evaluation. Additionally, Petitioner received all regularly scheduled wage increases, until she topped out at the salary for her position. Petitioner received the same wage increases as similarly-situated male employees. Further, on or about April 2, 2003, Gillingham notified Human Resources that the discipline in her file had expired, and Petitioner was promoted to auxiliary operator, with the commensurate increase in pay. Petitioner started at the same rate of pay as three of the four other male employees placed in the apprentice operator position at that time. The fourth male employee, David Ziegler, started at a higher rate of pay based on his five years of previous experience working for a contractor at the Energy Center. Further, because of the credit Ziegler was given for his previous work experience, he was promoted to auxiliary operator ahead of Petitioner and all of the other apprentice operators who started at the same time. Vasquez was promoted to auxiliary operator on the standard two-year schedule on or about August 12, 2002; however, Petitioner was not eligible for promotion at that time because of the active discipline in her file. Petitioner failed to prove that she suffered from a recognized disability or that Respondent failed to make a reasonable accommodation for her alleged disability. Petitioner failed to prove that Respondent discriminated against her on the basis of her sex. Petitioner failed to prove that Respondent retaliated against her for complaining of the alleged sexual harassment which occurred in the Summer of 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing with prejudice the Petition for Relief in DOAH Case No. 03-2306, FCHR Case No. 22-02718. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ellen Edith Hanson 5355 Rambling Road St. Cloud, Florida 34771 David C. Netzley, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing and apparent intent to withdraw her request for an administrative hearing.
Findings Of Fact The Notice of Hearing in this case was issued on May 22, 2012, setting the hearing for July 17, 2012, at 9:30 a.m., by video teleconference at sites in Tallahassee and Fort Myers, Florida. Also, on May 22, 2012, an Order of Pre-hearing Instructions was entered. Respondent timely complied with the pre-hearing requirements by filing a witness list and exhibit list and tendering its proposed exhibits, all of which were served on Petitioner. Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits. Petitioner spoke by telephone with a secretary at DOAH on July 16, 2012, the day before the scheduled hearing, and indicated that she had sent a letter withdrawing her hearing request; however, to this day, no such letter has been received. Petitioner was advised to send another written statement confirming that she was withdrawing her hearing request, and she indicated she would do so by facsimile that day. However, no such facsimile was received by DOAH. After hours on July 16, 2012, a typed, but unsigned letter, was sent by facsimile to counsel for Respondent. The letter appears to have been sent by Petitioner and states that she wished to cancel the hearing scheduled for July 17, 2012. Petitioner did not make an appearance at the scheduled hearing at the start time or within 25 minutes after the scheduled start time. While it would have been better practice for Petitioner to file a written, signed statement with DOAH to withdraw her hearing request, it is found that Petitioner intended to withdraw her hearing request, and that is why Petitioner did not appear at the scheduled hearing. Petitioner should have made her intentions clear sufficiently in advance of the scheduled hearing to avoid the inconvenience and expense of convening a hearing by video teleconference and assembling all of those who were prepared to go forward.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. DONE AND ENTERED this 3rd day of August, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Todd Evan Studley, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 Natalie Goldenberg Post Office Box 7388 Fort Myers, Florida 33911
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY 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 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
Findings Of Fact Susan Steube is employed in the Ft. Lauderdale office of the Judge of Industrial Claims, Department of Commerce, as a receptionist, clerk-typist II. According to Mrs. J. Seppy, 1/ the office manager and Petitioner's immediate supervisor, assigned her (petitioner) to assist the three office secretaries on a rotating basis. On September 8, 1977, Petitioner was assigned to assist another secretary, Virginia Fisher. During the morning of September 8, Mrs. Virginia Fisier, a secretary IV employed by a Judge of Industrial Claims, Department of Commerce, solicited the assistance of the Petitioner in opening, sorting and distributing the morning mail to the various judges in the office. According to Mrs. Fisher, the Petitioner took an inordinate amount of time to complete the task of sorting and distributing the mail. She further testified that Petitioner left her assigned task and busied herself by filing some materials which in Mrs. Fisher's opinion, was not as important a the distribution of the morning mail. Mrs. Fisher again requested that the Petitioner sort the morning mail and while so doing, attempted to remove certain files from her hands. While removing the files, the Petitioner struck Mrs. Fisher in the face under her chin causing her to bite her tongue. Two other employees, Mrs. Delane Colburn and Mrs. J. Seppy, corroborated the testimony of Mrs. Fisher. Sylvia Wolfe, a court reporter employed by the Department of Commerce and assigned to Judge John Green, testified that she was in Mrs. Delane Colburn's office when Virginia Fisher entered it on the morning of September 8. She testified that Mrs. Fisher's Face was red on the left side. The Petitioner admitted that an altercation took place when Mrs. Fisher attempted to remove the folders from her hand, however, she denied that she physically struck Mrs. Fisher as alleged. There were no other witnesses to this incident. Based on the testimony by Mrs. Fisher and the corroborative testimony of employee/witnesses Colburn, Seppy and Wolfe, the undersigned is of the opinion and concludes that the version testified to by Mrs. Fisher is more creditable than the Petitioner's version. It is therefore credited.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the appeal herein filed by the Petitioner be DENIED and the action of the Respondent in suspending the Petitioner for a three (3) dry period be upheld. RECOMMENDED this 2nd day of March, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue : The issues to be resolved in this proceeding concern whether the Petitioner was subjected to an unlawful employment practice by being allegedly retaliated against by termination from employment for purportedly making complaints concerning alleged discriminatory practices toward Hispanic employees.
Findings Of Fact The Petitioner was hired by the Escambia County Health Department (Department) the Respondent herein, as a Community Health Nursing Supervisor. It was the Petitioner's duty to supervise nursing staff under her direction and to perform their employee evaluations. She, in turn, was responsible to her supervisor, Jennifer Carter. The Petitioner maintains that she was retaliated against by the Respondent, in the employment action taken, because she complained to her supervisors concerning what she claimed was discriminatory conduct toward Hispanic employees by other employees of the Respondent. The Petitioner, for instance, made reference to an employee, Annette Thrasher, who purportedly made reference to "those people" in a meeting when referring to Hispanic people or employees. The Petitioner, however, did not make a formal complaint about that matter when offered the opportunity to do so. Maribel Reyes is a Hispanic employee. She testified that another employee, possibly employee Thrasher, criticized her as well as Esperanza Rietz, also a Hispanic employee, for speaking the Spanish language at work. Ms. Reyes and/or Ms. Rietz took a complaint about this matter to the Petitioner. The Petitioner did not act to resolve it, however, and therefore Ms. Reitz took her concerns about criticism of her speaking in Spanish to the Petitioner's supervisor, Ms. Carter. The issue was then resolved quickly by Ms. Carter, who assured Ms. Rietz that she could speak any language she wished; that there was no prohibition against that. The Respondent had contended that this was one of the instances of purported discrimination against Hispanic employees which she purportedly defended against and made complaint about to the Respondent's management. In fact, the complaint had been made to her by the Hispanic employee referenced above and she had done nothing about it. In any event, the fact that the Petitioner's supervisor, Ms. Carter, acted quickly to assure Ms. Reyes and indeed Ms. Rietz, that the Respondent's management did not tolerate employment conduct indicative of such discrimination, tends to belie the Petitioner's contention that the Respondent retaliated against her for making a complaint about discrimination against Hispanic employees. Rather, it was her supervisor, and the Respondent's management who acted to ensure that such potentially discriminatory conduct was not condoned. This belies any likelihood that the Respondent would have retaliated against the Petitioner for following the same policy, had she done so. When she was hired the Petitioner's supervisor, Ms. Carter, instructed her to include Ms. Carter in any meetings and/or discussions with employees concerning those employees' performance evaluations, especially if the evaluations were contemplated to be negative ones. The Petitioner was still a probationary employee herself, and Ms. Carter, as her supervisor wanted to ascertain that she had followed instructions and was doing the employee performance evaluations in accordance with the Respondent's relevant personnel rules and policies. In fact, however, the Petitioner failed to follow Ms. Carter's instructions and completed a number of performance evaluations and meetings with the affected employees without informing Ms. Carter or securing her presence at those discussions. The testimony of witnesses Jessie Wilson and Jennifer Carter, established that the Petitioner gave Jessie Wilson an unfair and inaccurate employee performance evaluation. She excessively criticized and was rude toward Jessie Wilson. The Petitioner apparently made a comment somewhat to the effect that Ms. Wilson, who is white, had a "Jim Crow" attitude or an "overseer" mentality. The Petitioner was overly critical, demeaning, and rude toward employees at various times. She embarrassed and criticized Esperanza Rietz, an employee she supervised, in front of the employee's co-workers and disclosed her personal medical information improperly to Ms. Rietz's co-workers. Velda Gardner is a Health Technician in the health unit. Ms. Gardner took a long lunch period one day, taking an extra hour. She took the extra hour from administrative leave she was entitled to as "compensation time." The Petitioner wrongfully docked her the hour of administrative leave time. Ms. Gardner demonstrated to the Petitioner, with a witness, that she was entitled to the hour of administrative leave time or compensation time but the Petitioner refused to accept her truthful explanation. She effectively and wrongfully accused Ms. Gardner of lying. In addition to prompting employee Jessie Wilson to file a grievance against the Petitioner because of the untrue, inaccurate, and overly disparaging evaluation concerning Ms. Wilson's performance, the Petitioner yelled at and criticized Ms. Wilson in front of her peers. She also treated other employees in front of peers in a similar fashion at various times. Ms. Rietz worked as a Spanish language interpreter for the Respondent. The Petitioner disparaged her in front of other employees. Ms. Rietz felt demeaned by this. On another occasion the Petitioner approached a physician, Dr. Tamalo, in the hallway outside her office and commenced yelling at him and berating him in a loud, rude manner. This was overheard by witnesses Virginia Howard and Gracie Stovall, employed, respectively, in the nearby Family Planning Clinic and Family Health Clinic. According to these two witnesses, "everyone in adjoining rooms could hear it." The Petitioner behaved in a very loud, rude disparaging way to Dr. Tamalo and another physician. Jennifer Carter, as referenced above, is employed by the Family Health Clinic and is the Petitioner's supervisor. She corroborated the testimony of witness Jessie Wilson concerning the Petitioner's "Jim Crow" reference and described the above-named witnesses' and employees' complaints concerning the Petitioner's conduct towards them, corroborating the nature of their complaints. Witness Carter described Respondent's Exhibit A, which is Jessie Wilson's performance evaluation, as being in some respect harsh and demeaning, with the same sort of criticisms directed at the Respondent's Exhibit B, the performance evaluation of Tammy Buckney. These evaluations were not done in accordance with Ms. Carter's instruction. Ms. Carter, in fact, had to re-formulate and re-draft three of the six employee evaluations she received from the Petitioner because they were inaccurate, overly disparaging, and not done according to her instructions. Ms. Carter is the Assistant Community Health Nurse of the Escambia County Health Department. Ms. Carter thus corroborated the testimony of other employees that the Petitioner's treatment of staff members under her supervision was frequently rude and demeaning. Ms. Carter also corroborated the testimony of Ms. Reyes in establishing that no discrimination against Hispanic people was tolerated by the Respondent, nor to the knowledge of Ms. Carter had occurred. Dr. John Lanza is director of the Escambia County Health Department. He is the ultimate supervisor of the Petitioner as well as all other employees of the Department, including Jennifer Carter. Dr. Lanza has been with the Department of Health for 15 years. He has never heard any reports of discrimination against Hispanics or as to Ms. Rubin herself. Ms. Rubin is Black. Dr. Lanza became aware through reports of his management team, such as Dr. Susan Turner, Barbara McCullough, and Jennifer Carter of the Petitioner's disparaging, and rude treatment of employees under her supervision. He also learned that she failed to participate in her clinic duties. Dr. Lanza, as director of the health department, is authorized to dismiss Department personnel. He dismissed the Petitioner because she failed to follow her supervisor's instructions, was unacceptably rude and overly critical of employees under her supervision. She was demeaning at times toward employees and even was rude to two physicians at the Department whom she had no authority to supervise. These criticisms, which have been established as true by the preponderant evidence in this record, and the fact that all this deficient conduct occurred while the Petitioner was still in her probationary period after her hiring, motivated Dr. Lanza to dismiss the Petitioner from employment. When Dr. Lanza made this decision he was unaware of any allegation of any discrimination directed toward Hispanic employees anywhere in the Escambia County Health Department. Because he was unaware of such allegations of discrimination, akin to that complained of in the Petition for Relief, he could not have retaliated against the Petitioner for taking a stand or making complaints about alleged discriminatory conduct directed toward Hispanic employees.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 6th day of August, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2008. COPIES FURNISHED: Edna M. Rubin 1140 East Baars Street Pensacola, Florida 32503 Rodney M. Johnson, Esquire Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (''FCHR''), and, if so, what relief should be granted.
Findings Of Fact Petitioner is an African-American female. Petitioner began working for Respondent as a part-time Self-Checkout Host on February 1, 2017. Upon hiring, her initial rate of pay was $9.00 per hour. After three months of employment, Petitioner’s pay was increased to $10.00 per hour in May of 2017. Subsequently, Petitioner received pay increases raising her hourly rate to $11.00, and then $11.50. In April of 2018, Petitioner was promoted to the full-time position of Customer Service Manager (''CSM''). Along with the promotion, Petitioner also received a raise, bringing her rate of pay to $13.65 per hour. In April of 2019, Respondent gave Petitioner another raise, resulting in hourly pay of $13.90. Respondent maintained a Statement of Ethics, of which Petitioner was aware. The Statement of Ethics explained that Respondent’s overall operations were guided by four core Beliefs, which were: Respect for the Individual; Service to our Customers; Striving for Excellence; and Act with Integrity. Based on what she heard from her coworkers, Petitioner believed that she was entitled to a market-adjustment pay increase in April of 2019. She sought information about the pay increase from her store manager and others. Petitioner reported her belief that she was entitled to a pay increase, which she had not received, to Respondent’s Associate Relations Department (''Department''). After what was described as a thorough review of Petitioner’s concerns, the Department closed the matter. Petitioner testified that a white male named Chance was making more money than she, based on conversations between Petitioner and Chance. Chance worked as a Money Manager Associate, a position that Petitioner never held during her employment with Respondent. Ms. Durocher testified that Chance was not paid more than Petitioner. In 2019, there were ten individuals who held the position of CSM at the store where Petitioner worked. In addition to Petitioner, those who worked in CSM positions included multiple African-American females and one African-American male. Petitioner did not present any evidence to suggest or establish that any male, or non-African-American, employee was paid more than she was for performing similar work. On October 26, 2019, Petitioner discussed the problem she perceived with her rate of pay with Ms. Durocher. During their conversation, Petitioner raised her voice and the interaction escalated to the point that another employee went to enlist the assistance of the Store Manager. When the Store Manager arrived, he joined the conversation with Petitioner and Ms. Durocher. Ms. Durocher expressed to Petitioner that she believed that Petitioner was being paid commensurate with her skills and duties; and that her rate of pay had been investigated and was determined to be appropriate. Throughout the conversation, Ms. Durocher perceived Respondent’s conduct to be disrespectful. Ms. Durocher and the Store Manager repeatedly encouraged Petitioner to calm down, but their attempts were unsuccessful. On the same day, Petitioner’s employment was terminated by Respondent for violating the core Belief of Respect for the Individual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2021. Jamie Rotteveel, Esquire Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Jeruscha Toussaint 5835 Northwest Lomb Court Port St. Lucie, Florida 34986 Allison Wiggins, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Littler Mendelson, P.C. 2301 McGee Street, 8th Floor Kansas City, Missouri 64108 Kimberly Doud, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Nancy A. Johnson, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801
