The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against by Respondent in employment through sexual harassment; because of her age, sex, marital status, and handicap; and in retaliation for complaints made by her against management.
Findings Of Fact 1. At the time in issue, the facility in question in this hearing was owned by HP Tampa, LC (HP Tampa) and was operated by Mr. James Rogers under a contract with his management company. After Mr. Rogers' contract was terminated, the facility was operated by Cornerstone Hospitality Group Cornerstone. Management 's duties included employee relations. As manager, Mr. Rogers had almost free rein to hire and fire and was responsible for employee policies. HP Tampa did not oversee these details. 2. Petitioner had been employed at the Respondent's property in Tampa for approximately 18 years when she was terminated on November 27, 1995. During the period of her employment, Petitioner was recognized at least once as employee of the year and was asked to take over management of the facility's bar, which she initially refused because she had several children to raise. Finally, after six years, she took the position and served as manager of the hotel bar, the Silver Dollar Saloon, for the last 12 of the 18 years she worked there. Petitioner contends she worked without any problems until Mr. Lloyd was hired in April 1995, and asserts she has never filed a discrimination complaint against any employer until this one. 3, Mr. Lloyd was hired as comptroller at the facility in April 1995. It was announced that his job was to get control of the audits of the operation, and he was to work with the Petitioner to implement controls to reduce costs in the lounge. Petitioner understood, however, that she was to continue to report directly to the Manager, Mr. Rogers, and that she was on a parallel level of authority to Mr. Lloyd. 4. Petitioner alleges that during June and July 1995, Mr. Lloyd began making sexually oriented comments to her. He mentioned her breasts -- jokingly, she believed because she was so slim at the time and had small breasts. Petitioner was not amused by Mr. Lloyd's attempts at humor and complained to him directly. 5. Petitioner also claims that Mr. Lloyd began to drink More and more while on the job. On one occasion, she contends, he came into the liquor room while she was there and grabbed her from the back. She resisted and, afterwards, complained to Mr. Rogers and his assistant both orally and in writing. She received no feedback. 6. According to Petitioner, sometime during either July or August 1995, Mr. Lloyd called her into his office to go over the bar's operating figures. After a period of business conversation, Mr. Lloyd reportedly stated it was a shame she was married. Petitioner demurred to that comment, and when she got up to leave, she claims Mr. Lloyd grabbed her and kissed her. When she slapped him in response, he replied that he always got what he wanted. After this incident, Petitioner wrote another memo to Mr. Rogers and asked to see him. He finally did see her quite a while later, she claims, but treated the incident lightly. She wanted him to speak to Mr. Lloyd with her because she was uneasy working with him, but this did not happen. 7. On another occasion, when she was supposed to go to Las Vegas with her husband, she gave up her trip to work, letting her husband go by himself. While her husband was gone, she contends, Mr. Lloyd asked her to meet him at an off-premises location, a request which she refused. At this point, she also told him what she thought of him. She also claims he had touched her on two. occasions, which resulted in a heated argument between them. 8. On November 3, 1995, an employee of the bar came to Ms. Cremeens and advised her that Mr. Lloyd had said that she, the reporter, and another employee would be terminated. Ms. Cremeens confronted Mr. Lloyd and asked him by what right he had told employees under her supervision they would be terminated. Mr. Lloyd became loud and threatening, which scared Ms. Cremeens. She immediately tried to call Mr. Rogers, but he was out of town. As a result, she left messages for Mr. Rogers and his assistant that she wanted to see them as soon as possible. 9. Ms. Cremeens finally got to talk with Mr. Rogers with his assistant present and told him how frightened of Mr. Lloyd she was. She told Mr. Rogers she would try to get a restraining order against Mr. Lloyd and at that point, Mr. Rogers told her he would talk to Mr. Lloyd and get back to her. Mr. Rogers did not do so, however, until he found out that Mr: Cremeens' husband had tried to call mr. Morris, Mr. Rogers' boss. Ms. Cremeens also told Mr. Rogers she would talk to Mr. Morris about what was going on even if it cost her her job. 10. Some time thereafter, Ms. Cremeens was called in and terminated. She was told at the time her termination was necessitated because of a drop in business and because, due to the effect on the working atmosphere caused by the dissention between her and Mr. Lloyd, one of them had to go. At that time, Mr. Rogers told Ms. Cremeens that she would receive four weeks vacation pay, but she never got it. Her termination threw her into a state of shock as a result of which she became extremely depressed and cut herself off from family and friends. She claims she has never been right since. The irony of this situation, she contends, is the fact that in January 1995, she was offered a job at the High Point Resort. At that time, Mr. Rogers came to her and begged her not to leave because she was doing such an excellent job. If this is the case, she queries, why was she let go for cause less than a year later? 11. Ms. Cremeens has sought other employment since her termination and worked part time as a waitress and bartender. However, she was let go after a short while because of mutual dissatisfaction. She claims she has never been able to bring herself back to the status she occupied while manager of the bar at the Days Inn. She has been to counseling in an effort to help herself, but she finally realized that the only way to get this trauma out of her system was to file her complaint. As it is, it has taken four years for the state to reach a determination of cause. Much of this time, she believes, was due to the failure of the Respondent to provide the information required by the Commission. 12. The Respondent sought to make much of the fact that Ms. Cremeens has been married four times and filed bankruptcy with her third husband in 1993. Her fourth husband filed bankruptcy in 1999, but she was not a party to that action. Neither her multiple marriages nor her bankruptcy have been shown to have any bearing on the instant issue, however, and are disregarded. 13. Petitioner admits, however, to having failed to report all tips she received when she manned the service bar from time to time. The facility had a requirement that all bar employees report tips for consolidation and sharing and contends Petitioner's failure to do this is identified as a basis for her termination. 14. Mr. Rogers was manager of the facility in question during the entire time in question. He contends that the basis for Petitioner's termination was a continuing decline in the profitability of the bar operation under her Management from a significant profit in 1991 to a loss of $1,048 in 1995. Ms. Cremeens was already working as bar Manager at the hotel when Mr. Rogers began overall management. The Silver Dollar was a local bar primarily for local people which was also used by hotel patrons. The bands, which Played in the evening, were mostly country and western. 15. As general manager, Mr. Rogers had as Support staff an assistant Manager, a comptroller, a beverage/lounge Manager (Ms. Cremeens), a restaurant manager, an executive housekeeper, a chief engineer, and a director of sales and marketing. Each of those department heads had a staff. The department heads were Salaried, but the Majority of the employees were hourly employees. 16. Petitioner was the only salaried lounge employee. Her staff included bartenders, Servers, and bar backs, who were hourly employees and also received tips. Tips were to be reported to the comptroller for tax purposes, and, though Petitioner was a salaried employee, she also received tips which should have been reported. As was noted previously, Petitioner admitted she did not always do this. The band was contracted for and band members were not hotel employees. 17. Because of a downturn in revenues and profits over the years starting in 1990, cutbacks in all departments (not just the lounge) were Mandated by a memorandum dated December 20, 1993, Mr. Lloyd was hired as comptroller by mr. Rogers sometime in 1995 because profits at the hotel, including the lounge, were declining so rapidly a real potential for closure of the hotel existed. Mr. Lloyd had a degree in auditing and was a Certified Public Accountant who had experience in hotel and restaurant Management. 18. Revenues in all departments of the hotel were declining, but not as badly as in the lounge upon which revenues management relied for a large portion of the cash flow. The lounge had previously been a "cash cow" for many years, and when the revenues declined, the hotel's owners started putting pressure on Mr. Rogers. His job was at stake, and since he was paid a portion of profits, so was his income. 19. Historically, the lounge manager had the authority to hire and fire employees, to schedule employee work hours, to supervise employees and bartending, to hire all bands and entertainment, to purchase all liquor and bar supplies, to prepare for all inspections, to provide for bar security, and to insure harmonious guest relations. 20. Petitioner, as lounge manager, had total responsibility for the lounge operation, including financial responsibility for that profit center, and to insure the facility operated within budget constraints for entertainment, advertising, and drinks. She was to report to Mr. Lloyd as comptroller on accounting matters, and Mr. Rogers asked Mr. Lloyd to work with Petitioner to bring lounge expenses under control and to increase sales. According to Mr. Rogers such a relationship is common in the industry. 21. At the time Mr. Rogers hired Mr. Lloyd, he claims he had some personal concerns about the hotel operation. Because of declining sales and profits, particularly in the lounge, and as the result of the negative reports of comparison shoppers, he wanted the lounge operation looked at with regard to service levels (were servers attentive and courteous?), portion control, and accounting for sales to tell him how the customers were being served. He also claims he had heard complaints of rudeness and lack of courtesy by employees, and most of these reports had been passed on to Petitioner. Though they had had an open communication for nine years, he found that usually on negative reports Petitioner denied the problem or became defensive. 22. Nonetheless, Mr. Rogers instructed Mr. Lloyd to work with Petitioner and come up with proposed controls in the bar to decrease expenses. Mr. Lloyd came up with the controls and he and Mr. Rogers met with Petitioner about them. Some of Mr. Lloyd's proposals were not acceptable to Petitioner. One of these was the proposal to close the service bar, which was where Petitioner often worked and from which she derived tips. Mr. Lloyd wanted to close it because of the inability to control what went on there. The proposals were put into effect, but even so, there was little improvement in the operation. Mr. Lloyd wrote a memorandum to Mr. Rogers to this effect on November 1, 1995, and sometime after receiving it, Mr. Rogers made, he 10 claims, a business decision to terminate Petitioner for her failure to perform adequately and to implement proposed internal controls and increase profits. 23. According to Mr. Rogers, Petitioner assumed a proprietary interest in the lounge operation. She had built up profits during the late 1980's and the early 1990's, but from 1993 on, business dropped. He claims he gave her five years to turn the operation around and make it profitable again, but she failed to do so, and he considered letting her go even before Mr. Lloyd was hired. In addition, her salary as bar manager was based on her prior performance, and she was not performing up to that level. Therefore, he believed he could save money by terminating her and having a bartender do the work. After Petitioner was terminated, another bar manager was not hired. Instead, one of the bartenders was promoted to head bartender, with a slight hourly wage increase, and was assigned some of Petitioner's former duties. 24. Concerning the complaints allegedly made by Ms. Cremeens regarding sexual harassment by Mr. Lloyd, Mr. Rogers contends he never received any complaints from her about it or reports from Petitioner or anyone else that Mr. Lloyd was harassing her or had asked her out. He admits that she complained to him that she was afraid of Mr. Lloyd because of an incident which occurred in the kitchen. On the whole, there is insufficient evidence to support finding that Ms. Cremeens 11 complained to Mr. Rogers about Mr. Lloyd sexually harassing her, and it is so found. on the other hand, there is sample evidence that she complained to Mr. Rogers about Mr. Lloyd's rudeness, threats, and verbal abuse, but these do not constitute actionable misconduct in this forum. 25. With regard to the kitchen incident, both Petitioner and Mr. Lloyd came to mr. Rogers upset with each other. As he’ recalls, Petitioner came to see him first contending that she and Mr. Lloyd had had an argument and she was afraid of him due to his size and his temper. At the time, Mr. Rogers asked her if Mr. Lloyd had touched her and she said no. She indicated that Mr. Lloyd had started the altercation, but she admitted she took part. Mr. Rogers claims he took care of the incident, but apparently not to Petitioner's satisfaction. 26. It appeared to Mr. Rogers that Petitioner felt she owned the bar and could ignore instructions she didn't like. He recalls she complained about Mr. Lloyd constantly for various things, but he cannot recall it ever being for harassment or assault. In each case he claims he looked into her complaints and could not find any misdeeds by Mr. Lloyd. It was evident to Mr. Rogers that Petitioner wanted Mr. Lloyd out of the bar which she apparently felt was her territory. However, he also received complaints about Mr. Lloyd from the director of sales and Marketing and from his own son, who has a learning disability. Both indicated that mr. Lloyd yelled at them and was abrupt, but 12 neither complaint was of a sexual nature. Mr. Rogers received a total of four complaints about Mr. Lloyd, for each of which Mr. Lloyd was reprimanded. 27. Kristi Carroll, formerly administrative assistant to Mr. Rogers when he was manager of the Days Inn, worked there at the same time Mr. Lloyd did. At no time did she ever see Mr. Lloyd engage in any sexual misconduct on duty, nor did she ever hear any complaints of such even from Petitioner. She knows of no sexual advances by Mr. Lloyd to any hotel employee. There is evidence to the contrary, however. 28. When Mr. Rogers left the management of the hotel in early 1997, he claims he was not aware of Petitioner's complaint and was not made aware of it until January 2001. Petitioner worked under his supervision for approximately nine years and was equal to Mr. Lloyd in the chain of command. He considers the two memoranda which Mr. Lloyd wrote concerning her performance to be warnings to her but neither was placed in her personnel record after she signed acknowledgement of it. , . 29. Mr. Rogers admits that during the time in issue, 1991 through 1995, room income and beverage income both dropped radically. He includes in the reasons therefor in the bar area as being increased competition; the cessation of band entertainment, a decision of his; a lack of air conditioning; and crime in the immediate area. All these factors contributed to a reduction in patronage, but he considers Petitioner's performance 13 to be the Major cause. In 1994, due to a decline in restaurant business, mr. Rogers considered Closing the restaurant and making the whole area a lounge however, he did not do so. 30. Ms. Carroll, while assistant general manager during 1995, looked into the causes of the lower hotel and lounge revenues, which had declined from good levels in 1993 and 1994, Her investigation showed that increased competition from new Ybor City clubs substantially impacted revenue in the Silver Dollar. Ms. Carroll immediately noticed tension between Mr. Lloyd and the Petitioner due to Mr. Lloyd's new Procedures and his interference with Petitioner's authority. He was given input into areas wherein Petitioner had previously had free reign, and this was obviously difficult for Petitioner to accept. 31. Mr. Rogers ultimately concluded that Petitioner might have to be terminated, When it finally occurred, Petitioner's removal was based on a financial decision that a lounge Manager was not needed. After a thorough review of lounge advertising, entertainment, the need for a back bar, and the size of the staff, it was deemed beneficial to replace the salaried Manager position with a current bartender paid hourly. ms. Carroll admits that management knew the decline in income in the bar was not due solely to Petitioner's Management. There was a definite increase in competition, and Petitioner's being laid off was a cost cutting decision. 32. At the time of Petitioner's removal, neither 14 Ms. Carroll nor mr. Rogers knew of Petitioner's complaint nor diq Petitioner's age play any part in the decision. Ms. Carroll 33. Ms. Carroll was present when Petitioner was terminated Mr. Rogers about vacation time. She cannot recall the Particulars of the discussion, however, but it is found that Petitioner was promised four weeks vacation time for which she was not compensated. 34. Ms. Carroll also substantiates Petitioner's claim that Mr. Lloyd was argumentative and abusive in his work relations with subordinate employees. She knew there was tension between Petitioner and mr. Lloyd and that Petitioner complained to Mr. Rogers, but she cannot recall the specific complaints. She is of the Opinion that mr. Lloyd had a temper and is aware that Mr. Lloyd had altercations with several staff members. Notwithstanding all the bad language between Petitioner and Mr. Lloyd, Ms. Carroll cannot recall ever hearing Petitioner use foul language or curse customers. 35. Several employees of the lounge were aware of the conduct of both Petitioner and mr. Lloyd. Several claimed Mr. Lloyd was loud and abusive in language to employees. Several i5 recalled he made a Sexually oriented comment regarding at least one female employee. Further it is clear that Mr. Lloyd dated at least two female employees of the lounge, one of whom was made head bartender when Petitioner was terminated. 36. On the other hand, while at least one employee described Petitioner as seductive and flirtatious, the majority claimed otherwise, and while her detractors described her as loud and abusive, the Majority of her employees did not. At no time did any of the lounge employees, save those aligned with Mr. Lloyd, describe Petitioner as having lost interest in the lounge operation before she was terminated. 37. According to Sadie Strickland, a long-time co-worker of Petitioner in the lounge, Mr. Lloyd would talk to lounge employees about Petitioner and her performance and he espoused opinions and suggestions which he wanted implemented in the bar without seeking or obtaining Petitioner's participation. Nevertheless, Petitioner remained supportive. When on one occasion Ms. Strickland threatened to quit because of problems with Anna-Marie Genco, another lounge employee, Petitioner talked Anna-Marie out of it. Petitioner was, in her opinion, a good employer/manager who gave her best without any support from upper Management. Rather than help, Mr. Rogers took away the bar's advertising budget and refused to act on Petitioner's suggestions. 38. To be sure, there was tension between Petitioner and 16 Mr. Lloyd and between Petitioner and some other lounge employees. For example, on November 8, 1995, Petitioner is alleged to have called in Ms. Carla Genco and her sister, Anna-Marie, and yelled at them because of their refusal to talk to Ms. Strickland. on that occasion, Petitioner is alleged to have said she'd like to stomp Anna-Marie's "f---ing butt." As a result, Ms. Genco prepared a letter to Mr. Rogers recounting the incident. Ms. Genco does not know what, if any, action was taken, but she enjoyed working at the hotel because both Mr. Lloyd and Mr. Rogers were good to her. 39. Mr. Lloyd's account of the situation differs substantially from that of the Petitioner. When he first started working at the hotel as comptroller, he was instructed to initiate internal controls in several areas, one of which was the bar. Before doing anything, he analyzed the situation for about two and a half months and came up with proposals which he coordinated with Mr. Rogers. 40. Mr. Lloyd found a lack in internal controls. Bar stock was not being maintained appropriately, inventory was too high, requisitions were not being done on a regular basis, bar tabs were not being rung up timely, and guest checks were not being accounted for. He also felt there was not enough business to justify keeping the service bar open. Labor costs were too high relating to sales, and costs were higher than industry standards due to the pouring of too many free drinks. 17 41. Mr. Lloyd gave a copy of his analysis to both Mr. Rogers and the Petitioner, and discussed his analysis with Ms. Cremeens. Her reaction to the memo was that she would try to comply with the suggestions. Somewhat later, in November 1995, Mr. Lloyd prepared a follow-up memorandum, which he gave to Mr. Rogers and which pointed out those suggestions which were not being followed by Petitioner and identified additional deficiencies for review. The memo identified a continuing problem with free drinks; a failure to ring up sales at the time of sale; a failure to monitor promotion drinks; a failure to properly punch time cards; and a failure to properly declare tips. 42. Mr. Lloyd's analysis of Petitioner's performance indicated to him that she had lost interest in her job. This conclusion was based on his determination that she had failed to provide relevant cost information as required; failed to be on site for an appropriate time on busy nights; and demonstrated a temper and used foul language at inappropriate times. He observed some instances wherein Petitioner would get mad at people working behind the bar and would start yelling and swearing at them. Other similar instances were reported to him. This is not supported by the majority of lounge employees, however. 43. When Petitioner was terminated in November, 1995, she 18 was not replaced with a salaried bar manager. Instead a position was developed as head bartender for operations, and Mr. Lloyd assumed responsibility for inventory and cash payments. Anna Genko was promoted to head bartender on an hourly wage basis as a joint decision of Mr. Rogers, the assistant Manager, and Mr. Lloyd. According to Mr. Lloyd, there was no immediate change in profitability as a result of these changes, but over the succeeding year, there was a considerable increase which he claims was due to the implementation of innovations designed to attract customers. 44. Mr. Lloyd contends that Petitioner's age had nothing to do with her termination. He repeatedly asserted that the decision to terminate Petitioner was based on her performance. He claims to have discussed the problem areas with her and explained her weaknesses. However, he contends, she failed to modify her performance to comply with the directives of management. 45. Mr. Lloyd also denies having sexually harassed the Petitioner. He denies having suggested she meet him at another place while her husband was out of town. He denies having ever touched her or kissed her. He denies having told her he gets what he wants, and he denies ever having made a comment to her about her breasts. He also denies drinking on the property though the evidence indicates he did. Mr. Lloyd had a very selective memory at the hearing, however, he does admit to having 19 a temper and to having yelled at Petitioner from time to time. Taken as a whole, however, there is insufficient evidence of record to support a conclusion that Mr. Lloyd sexually harassed Ms. Cremeens. To be sure, he did not always behave like a gentleman toward her, but it cannot be said his conduct constituted sexual harassment, and it is so found. 46. Once Petitioner was terminated, she became despondent and withdrawn and pushed family and friends away. Petitioner was terminated on November 27, 1995, but did not file her claim for discrimination until September 1996, almost ten months later. She delayed filing her complaint because she was in shock and embarrassed. She lost self-esteem and self-confidence and was afraid her marriage would be jeopardized if her husband found out the particulars of the termination. 47. Dr. Glenn D. King, a clinical psychologist whose specialty is forensic psychology, reviewed the materials relevant to Petitioner's claim against HP Tampa and did his own personal evaluation of the Petitioner relating to her claim of psychological harm resulting from her termination. 48. One of Dr. King's major opinions was that Petitioner had a longstanding psychological disorder stemming from childhood resulting in demonstrated histrionics, flirtatiousness, and a misperception of the motives of others. She has had an extraordinary number of chaotic events throughout her life that makes her no different after her discharge than before. Her 20 previous psychiatric history is lengthy reflecting professional mental health care at age 28 because of physical, emotional, and sexual abuse by her husband which caused her to leave home and Move to Tampa. The significance of this is that the psychological difficulties which she claims were caused by her discharge existed years before this incident and have resulted in her being in counseling for years prior to the termination. Her medical records indicate she has been taking psychotropic medications for years. 49. Dr. King also notes that though Petitioner mentioned her termination in the first counseling session she had after that incident, the major thrust of her complaints dealt with Marriage and family problems. 50. After Petitioner was terminated at the Silver dollar, she got a job at another lounge for about two months earning $10 per hour before she was fired. She then took another job for eight months before being hired at a Golden Corral for two years. She was let go from that job in August 1997 and drew unemployment compensation at $100 per week for five months. She opened another lounge, Angel's Place, in October 1997. This position lasted only a short time, after which she went to work for Old JR's Steak House where she earned $400 per week from January 5, 1998 to March 1, 1998. She then worked for the Old Florida Pub in Naples for five months before starting at Target stores and is currently employed by Target Stores. 21 51. Petitioner is seeking back wages for the period from when she was terminated in 1995 to the present and for five years forward at the rate she was getting less what she earned in the interim. In addition to the sums she earned from the various jobs she held, she also sold off household goods and had between $30,000 and $40,000 in gambling income, a part of which went into the costs of opening Angel's Place. All of this income was reported to the IRS. 52. Petitioner also seeks payment of $50,000 which represents the equity in her home which was lost to foreclosure in 2000, almost five years after her termination by HP Tampa. Some time after her termination by HP Tampa, Petitioner was declared eligible on her husband's insurance, yet she seeks to have HP Tampa also pay for her medical insurance. 53. According to Melissa Mancini, human resources director for Cornerstone Hospitality Group, Petitioner was never an employee of Cornerstone, but her office prepared the response to the Commission on Human Relations regarding Petitioner's claim. It would appear that there was some confusion as to who was responsible for the response, but ultimately, the requested information was forthcoming. When the Petition for Relief was received, it was sent to the corporate office of Cornerstone because Cornerstone was handling the sale of the property. Cornerstone admits to no liability regarding Petitioner's claim. 22
Conclusions For Petitioner: Angel Cremeens, pro se 5351 Hemingway Lane, West Apartment 506 Naples, Florida 34116 For Respondent: David P. Thatcher, Esquire Chamberlain, Hrdlicka, White, Williams and Martin 191 Peachtree Street, Northeast Ninth Floor Atlanta, Georgia 30303-1747
Recommendation Based on the foregoing Findings of Fact and Conclusions of 27 Law, it is recommended that the Florida Commission on Human Relations enter a Final Order reflecting a determination of No Cause regarding Petitioner's claim of discrimination and Petition for Relief. DONE AND ENTERED this & day of July, 2001, in eel Jha NOLD POLLOCK 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) 921-6947 www.doah.state.fl.us Tallahassee, Leon County, Fl Filed with the Clerk of the Division Administrative Hearings this be aay of July, 2001. COPIES FURNISHED: Angel Cremeens 5351 Hemingway Lane, West Apartment 506 Naples, Florida 34116 David P. Thatcher, Esquire Chamberlain, Hrdlicka, White, Williams and Martin 191 Peachtree Street, Northeast Ninth Floor Atlanta, Georgia 30303-1747 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 28 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether the termination of Respondent, Otis Paul Whatley, was in accordance with the personnel procedures established by the Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Mr. Whatley was employed by ECUA. On October 31, 2001, Mr. Whatley signed an acknowledgement that he received the ECUA Employee Handbook. The ECUA Employee Handbook is a summary of benefits, policies, procedures, and rules, which are more fully set forth in ECUA's Human Resources Policy Manual. While on the ECUA Rotation Schedule Standby List on Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan Wheat, were required to be available to make repairs when summoned by ECUA customers. Mr. Whatley submitted a Daily Overtime Report dated July 26, 2009, which indicated that he worked on that day from 9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola, Florida. The overtime report further stated that he worked from 10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola. He further asserted that he worked at 402 West Lloyd Street, from 6:00 p.m. until 11:00 p.m. According to the Global Positioning System (GPS) installed on the ECUA truck assigned to Mr. Whatley, he did not depart his residence at the time he claimed to be working at 926 Lake Terrace or at 1283 La Paz Street. Moreover, the evidence provided by the GPS indicated that he was at the 402 West Lloyd Street for four hours rather than the five claimed as overtime. Mr. Whatley's co-worker, Jonathon Wheat, did work at 926 Lake Terrace and at 1283 La Paz Street, but he worked alone. Mr. Wheat joined in Mr. Whatley's prevarication with regard to the quantity of time expended at 402 West Lloyd Street. Mr. Wheat confessed to his prevarication when confronted. Mr. Whatley lied about his whereabouts when initially confronted, but eventually admitted that his timesheet contained false entries. It is found as a fact that Mr. Whatley, on his time sheet for July 26, 2009, claimed one hour and a half overtime for work at 926 Lake Terrace, one-half-hour overtime for work or at 1283 La Paz Street, and an hour more overtime than actually worked at 402 West Lloyd Street. None of the forgoing periods were worked by Mr. Whatley. Accordingly, these entries on his time sheet were false.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utility Authority, based on the findings of fact found herein, impose such penalty on Otis Paul Whatley, as he or she determines to be appropriate. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 24th day of November, 2009. COPIES FURNISHED: Otis Whatley 8655 Ramblewood Place Pensacola, Florida 32514 John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Stephen E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
Findings Of Fact Jurisdiction The Respondent, a special district, is engaged in the operation of a hospital in New Smyrna Beach, Florida. Based on the pleading and the admissions contained therein, I find that the Respondent is a public employer within the meaning of Chapter 447, F.S., and was such at all times material herein. The Labor Organization Involved The Florida Nurses Association, hereinafter sometimes called FNA or the Association is, based on the pleadings and the admissions contained therein, an employee organization within the meaning of Section 447.203(10), F.S. The Alleged Unfair Labor Practices Introduction Briefly this case concerns itself, in the main, with the measures taken by Respondent in the promulgation of its no solicitation - no distribution rule and secondly whether or not the employees were unlawfully denied a cost of living increase in an effort to thwart their organizational activities. The complaint alleges, and the General Counsel and the Association contend that the no solicitation rule is invalid on its face in that it contains an absolute prohibition on solicitation during working hours without any clarification or distinguishing of the phrases "working hours" and "working time", citing Essex International, Inc., 211 NLRB No. 112, 86 LRRM 1411, 1412 (1974) and May Department Stores, 15 LRRM 173 (1944). The contention is additionally made by the General Counsel that while the NLRB has recognized exceptions to a general rule containing a broad restriction in the interest of business justification to facilitate production and discipline, no such showing or justification has been made by the Respondent in this case and therefore employees are denied an opportunity to discuss organizational activities at any time at their place of work. The General Counsel distinguishes the Respondent's defense that its no solicitation - no distribution rule is protected by Section 447.509, F.S., since it makes no differentiation between 447.509(1)(b), F.S., since distribution is forbidden in every part of the hospital including areas where employees do not perform official duties such as the cafeteria and lounge. Next the General Counsel contends that the Respondent unlawfully denied employees the annual cost of living increase because of their, organizational activities in a departure of its previous grant of such annual increases based solely on employees organizational activities and its effort to thwart such. While the General Counsel concedes that a clarifying statement was made with regard to merit increases, the contention is advanced that no such explanation was given to the statement concerning cost of living increases. During the fall of 1975, the FNA began discussions of organizing the subject employees for collective bargaining purposes. As far as the record reveals, since January 1, 1974, Respondent's policy handbook contained a provision urging its employees to participate in the annual United Fund Campaigns. The section further adds that "all other solicitations are prohibited throughout the year." (See General Counsel's Exhibit No. 1 incorporated by reference.) Thereafter in March, 1975, the rule contained in the policy handbook prohibiting solicitation was amended to read, as stipulated by the parties, Solicitation and Distribution: We cannot afford to have outside activities interfere with patient care. Therefore, the following rules concerning these matters will be enforced: Employees may not solicit funds or support for any fund, drive, cause of organization during working hours. Employees may not distribute literature on behalf of any fund, drive, cause or organization during working hours or in areas of the hospital where employees work. Persons not employed by the hospital are prohibited from entering the premises to solicit funds or support for or distribute literature on behalf of any fund, drive, cause or organization. The referenced rule is still in effect and the Respondent as far as the record reveals, enforces the rule as written. Hospital employees take a 30 minute unpaid lunch period and the record clearly established that except in emergency situations, a registered nurse may not leave the hospital during a meal period without prior authorization. Sometime during the months of January or February, 1975, Francis Doggett, Respondent's nursing director, first learned that the FNA was organizing in the hospital. In mid March, 1975, a meeting was held of all head nurses and supervisors including the nurses director, Respondent's attorney William E. Sizemore, and approximately ten (10) nurses. A sign-in sheet was used to record attendance. William Schneider, Respondent's administrator asked the head nurses and supervisors whether any of them had signed authorization cards and those in attendance responded. Only two nurses, Ms. Hadlow and Ms. Lewis, responded that they had signed authorization cards. Immediately after the meeting, Mr. Schneider met with Ms. Hadlow and Ms. Lewis and encouraged them to withdraw their authorization cards from the FNA. To accomplish this, on March 19, the following day, Shirley Reynolds, Respondent's Personnel Director, typed two letters at the request of Schneider on hospital stationery and received into evidence as General counsel's Exhibit No. 4 requesting that the designation of FNA as a bargaining agent be returned to June M. Hadlow and Evelyn M. Lewis. Shortly after the March 18 meeting, the Administrator met with the other registered nurses in the hospital's conference room in two different sessions. Attendance was required and based on the evidence it is clear that it was not the normal practice of Mr. Schneider to meet with RN's and in fact none of the nurses had ever met with him previously. Mr. Schneider inquired of the nurses what their problems were, why they were organizing and why they felt they needed a third party to intervene on their behalf. He showed the nurses and attendants a copy of a resolution, adopted by the Board of Commissioners of the Hospital District, opposing collective bargaining by hospital employees. Ms. Doggett, who was also in attendance expressed her displeasure that the registered nurses would be the first employees to try to organize for collective bargaining purposes. Thereafter on or about April 15, a memo was posted on the hospital's bulletin board stating that the medical staff had adopted a policy in opposition to collective bargaining. Three days later, on April 18, the FNA filed an RC petition for certification with PERC seeking to represent all registered nurses. On May 7, 1975, the hospital's Administrator held another mandatory meeting for RN's in a classroom in the old section of the hospital and for those nurses who were not on duty. They attended and were paid for the time spent at the meeting. Two sessions were held and Mr. Schneider, Ms. Doggett, Mrs. Reynolds and Mr. Sizemore, Respondent's attorney, represented management. Discussions by management concerned itself with the ramifications of the RC Petition filed by FNA and Mr. Schneider informed the nurses that the administration was planning a nurses lounge for them. Thereafter, Ms. Doggett told employees that the RN's would not receive a cost of living raise because they were organizing. One nurse asked if the nurses would receive merit raises whereupon Ms. Doggett replied no. Mr. Sizemore, seeking to clarify Ms. Doggett's statement, stated that the nurses would receive merit raises because it was an established hospital practice. The testimony reveals that hospital employees have received annual budgetary increases for eight of the last nine years and the year in which no increase was given was occasioned by the wage and price freeze. All nursing personnel who testified received some type of non-merit upward adjustment in their salary in every year except the year of the freeze. As stated, the Respondent takes the position that its solicitation- distribution rule tracks 447.509, F.S., and is not a violation of it inasmuch as the legislature cast aside the policy that has prevailed for many years in the private sector. Respondent adds that the General Counsel of PERC seeks to totally ignore this intended departure and simply graft the Federal Rules on Florida Law. Section 447.509, F.S., provides in pertinent part that employee organizations, or any persons acting on their behalf are prohibited from: (a) soliciting public employees during working hours of any employee who is involved in the solicitation and (b) distributing literature during working hours in areas where the actual work of public employees is performed, such as offices, warehouses, schools, police stations, fire stations and any similar public installations. This section shall not be construed to prohibit the distribution during the employees' lunch hour or in such areas not specifically devoted to the performance of the employee's official duties. Respondent cites the U.S. Supreme Court's decision in Republic Aviation Corp. v. N.L.R.B., 324 US 793, 16 LRRM 620 (1945), a case which addressed at length the issue of solicitation. The court in that case noted that a balance must be struck between "the undisputed right of self organization" and the "equally undisputed right of employers to maintain discipline in their establishments." The NLRB traditionally struck that balance by prohibiting employers from restricting solicitation except when the employee is actually engaged in the job function he performs. Thus, the employer is allowed to restrict activities only during "working time" and during break time or lunch time, even though paid for by the employer, an employee is free to solicit for a union. As Respondent notes, there have been literally hundreds of NLRB cases affirming this rule and striking down rules restricting activity during "working hours". The NLRB has long held that restrictions on employees' solicitation, or distribution of literature, in non-work areas, when employees are not actually working are presumptively invalid. The NLRB also presumes that a rule limiting solicitation during the time when an employee is working is for the maintenance of production and discipline and is valid, even though it is a restriction on Section 7 rights. 2/ If a rule is ambiguously phrased so that it may be interpreted as prohibiting legitimate activity, it is invalid. In Essex International, 211 NLRB No. 112, the board dealt with rules against solicitation during "working time" and distribution during "working hours". A board majority concluded that there is a clear distinction between "working hours" and "working time". The term "working time" or "work time" connotes the time spent on actual job duties. The board considers rules prohibiting solicitation during "working time" or "work time" to be valid presumptively, but the presumption can be overcome by extrinsic evidence that the rule was communicated or applied in such a way as to convey an intent to restrict or prohibit solicitation during break time or other periods when employees are not actively working. A study of the rule in question indicates that it is clearly a departure from Section 447.509, F.S., because Section 1(b) thereof indicates that the Section shall not be construed to prohibit the distribution during the employees' lunch hour or in certain areas not specifically devoted to the performance of the employees' official duties. Turning to the rule in question, solicitation and distribution is banned in all areas including the cafeteria and other places in the hospital where employees work. Since the Employer has not issued any clarifying statement and is susceptible of an interpretation which implies an overly broad restrictive reach, the Employer, by not electing to clarify the rule must bear the burden of the unlawfulness inherit in the ambiguity since it cannot be said that the ban on soliciting and distributing literature applies only to working areas during working time. The undersigned is of the opinion that the rule in question is a prohibition of solicitation during "working hours" and is presumptively invalid, and that the presumption should be applied in the absence of an affirmatively established clarification by the Employer which was not done in this case. See for example, John H. Swisher and Son, 211 NLRB no. 114 Pepsi Cola Bottling Company of Los Angeles, 211 NLRB no. 132; Groendyke Transport, 211 NLRB no 139. For discussion of a rule which was found valid and lawful which restricted employee activity during working time, see for example, General Motors Corporation, 212 NLRB no. 45. Based thereon, I shall therefore recommend that the Respondent's solicitation- distribution rule in this case, violates Section 447.509, F.S. The second issue raised is whether the Respondent violated Section 447.501(1)(a), F.S., by threating its registered nurses by informing them that they would not receive the annual cost of living increases because of their organizational activity. The alleged threat occurred during the May 7 meeting of all registered nurses. William Schneider testified that the annual salary adjustments were not tied to any cost of living index but rather came as a conclusion of wage survey and budgetary processes. Accordingly, the raises varied in amounts from year to year, the raises varied from position to position and the raises varied among the various departments with particular nursing skills. The General Counsel concedes that a clarifying statement was made with regard to merit increases but that no explanation was made concerning cost of living increases. Respondent's attorney, Sizemore, who was present at the May 7th meeting, clarified the statement by Ms. Doggett to the effect that merit increases would be given inasmuch as it was an established practice but that cost of living increases would not be given due to the absence of an established policy. It is clear that the meeting centered around the discussion of annual raises, merit raises and a new employee lounge and the effects it could have once a petition was filed and during collective bargaining. It is significant to note that no employee witness testified that the annual increases were tied to any cost of living increases. Rather it appears that the annual wage increases were tied to factors cited by Respondent such as its concern about remaining competitive with other employers in the area and its ability to be able to attract and retain employees with specialized training. It is further clear that the employer's counsel discussed the annual raise and the employees who testified did not deny that counsel did so. There was no evidence that the employer had withheld increases that it had previously promised employees but rather it appeared that the employer continued to grant what had been given in prior years except that the issue of cost of living increases was one which was not an established practice and therefore would arguably violate Section 447, F.S., if the employer were to bestow it to employees during the pendency of an RC petition. Based on these facts, it appears that as the Respondent urges in its defense, it was merely trying to inform the employees of the legal implication of granting the wage increase alleged to be violative while an RC petition was pending. In these circumstances, I shall therefore recommend that the General Counsel has failed to prove a violation based on the evidence presented as it relates to withholding of an annual cost of living increase because of alleged organizational activity. I shall therefore recommend that this allegation be dismissed.
Recommendation Based on the above findings and conclusions of law, I recommend, that the Respondent be ordered to cease and, desist from enforcing and retract its existing solicitation-distribution rule and that it post an appropriate Notice to employees to such effect. In all other respects, I recommend that the complaint be dismissed. DONE and ENTERED this 15th day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent violated Subsections 475.25(1)(b), (1)(d)1, and (1)(e), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate salesperson, issued license number 0530788 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was an involuntary inactive salesperson at 2156 Turnberry Drive, Oviedo, Florida 32764. On or about April 13, 2000, an Administrative Law Judge entered a Recommended Order finding Respondent guilty of violations of Subsections 721.11(4)(a), (h), (j), and (k), Florida Statutes (1995), by making oral misrepresentations in his sales pitch to timeshare purchasers. On or about June 15, 2000, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, issued a Final Order adopting the Findings of Fact and Conclusions of Law of the Administrative Law Judge and rejecting all of Respondent's exceptions. In the Final Order, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, ordered Respondent to cease and desist from any further violations of Chapter 721, Florida Statutes, and ordered Respondent to pay a penalty of $28,000. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes. On or about July 22, 2000, a uniform disciplinary citation was issued to Respondent for failing to notify the Florida Real Estate Commission of his current mailing address or any change of the current mailing address in violation of Rule 61J2-10.038, Florida Administrative Code. Pursuant to proper authority, the Florida Real Estate Commission penalized Respondent $100 for the violation. At the time he received the uniform disciplinary citation, Respondent was advised as follows: "You have a total of 60 days from the date this citation was served upon you to pay the fine and costs specified. This citation automatically becomes a Final Order of the board if you do not dispute this citation within 30 days of the date this citation was served upon you. As a Final Order, the fine and costs shall be due to the board within 30 days of the date of the Final Order. After this citation has become a Final Order, failure to pay the fines and costs specified constitutes a violation of a Final Order of the board and may subject you to further disciplinary action." On or about August 22, 2002, the citation became a Final Order. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Florida Real Estate Commission. Respondent had more than 20 years' experience selling timeshare units as a salesman, sales manager or sales director; he had worked in sales at various Central Florida timeshare resorts since 1979. Between July 1995 and March 1997, Respondent was employed as a salesman and sales director by Vocational Corporation, the owner/developer of Club Sevilla, a timeshare resort property. On October 24, 1995, Respondent participated in a sales presentation to Raymond and Charlene Sindel at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Sindels to purchase the timeshare: (1) the Sindels would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and/or utilize another timeshare for $79 or $99 a week 52 weeks per year; and (2) representatives of Tri Realty would sell their existing timeshare before the end of the year. On October 24, 1995, Respondent participated in a sales presentation to Clarence and Maxine Shelt at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statement which induced the Shelts to purchase the timeshare: the Shelts would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and or utilize another timeshare for $79 a week 52 weeks per year. On June 26, 1996, Respondent participated in a sales presentation to Eugene and Mildred Plotkin and their son, Daniel, at Club Sevilla, which resulted in the purchase by Eugene and Mildred Plotkin of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Plotkins to purchase the timeshare: (1) a timeshare owned by the Plotkins in Las Vegas, Nevada, would be sold within two months; (2) the Plotkins would receive a low-interest credit card with which they would finance the purchase of the Club Sevilla timeshare and that their Las Vegas timeshare would be sold quickly enough that they would not have to pay any interest on the credit card; and (3) the Plotkins would become members of Interval International, a timeshare exchange program, in which they could utilize another timeshare anywhere for $149 a week. On July 26, 1996, Respondent participated in a sales presentation to Robert and Susan Bailey at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Baileys to purchase the timeshare: (1) they would receive a low-interest credit card within ten days with a $20,000 credit limit with which they could finance the timeshare purchase; and (2) the Baileys would receive a prepaid 52-week membership in Interval International, a timeshare exchange program. In September 1996, Respondent participated in a sales presentation to Thomas and Betty Prussak at Club Sevilla, which resulted in the purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Prussaks to purchase the timeshare: (1) timeshares owned by the Prussaks in Westgate and Club Sevilla were valued at $12,000 each and that these timeshare units would be sold if the Prussaks purchased a new timeshare unit at Club Sevilla; (2) that the new Club Sevilla timeshare unit would be a "floating" unit (could be used anytime); and (3) that the new Club Sevilla timeshare would be rented and that the Prussaks or their daughter would be able to take "getaway" weeks and stay at any RCI timeshare for $149 per week. On December 11, 1996, Respondent participated in a sales presentation to Larry and Carla Eshleman at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Eshlemans to purchase the timeshare: (1) the Eshlemans would receive a low-interest credit card with which they could finance the timeshare purchase; (2) the Eshlemans would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and utilize another timeshare for $149 a week; and (3) the timeshare the Eshlemans owned prior to their purchase of the Club Sevilla timeshare would be sold in three months or would be rented for $1,650 per week.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding that Respondent violated Subsections 475.25(1)(b) and (e), Florida Statutes, and that Respondent's license as a real estate salesperson be revoked, that he be fined $2,000 and be required to pay the costs of the investigation and prosecution of the case. DONE AND ENTERED this 3rd day of December, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2002. COPIES FURNISHED: Christopher J. Decosta, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Hurston Building, North Tower Orlando, Florida 32801 William S. Walsh 13079 South Taylor Creek Road Christmas, Florida 32709 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Buddy Johnson, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Nancy P. Campiglia, Chief Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether Respondent discriminated against Petitioner based on her age as alleged in the Petition for Relief from an Unlawful Employment Practice (Petition for Relief) filed with the Florida Commission on Human Relations (FCHR) on February 26, 2003.
Findings Of Fact Petitioner is a female who was born April 29, 1946. At all times material to this proceeding, Respondent employed Petitioner as a sales person at a retail sales counter operated by Respondent, but located within a Burdines department store. Respondent did not have an on-site manager for this sales location. In December 1999, Petitioner received a routine performance evaluation signed by Joyce Rodriguez, who was Petitioner's supervisor. This was a favorable evaluation that rated Petitioner in each category as either having "Exceeded Standards" or "Achieved Standards." As a result of this favorable evaluation, Petitioner received an increase in her hourly rate of pay. There was no evidence that Petitioner was discriminated against by her 1999 performance evaluation or by the pay increase she received as a result of that evaluation. Ms. Shafi, the employee mentioned by name in Petitioner's Amended Charge of Discrimination, was not hired by Respondent for a management position, nor was she ever promoted to a management position. Petitioner has never applied for or otherwise requested a management position with Respondent. Opportunities for entry- level management positions exist only at retail locations with on-site managers, which would require Petitioner to transfer to another location. Respondent's management has discussed such positions with Petitioner at various times, but she failed to take advantage of any of these opportunities.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 6th day of October, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 October, 2003.
The Issue Whether Petitioner, a member of a protected class, was terminated from his position with the Respondent in retaliation for his filing of a national origin discrimination complaint with the Florida Commission on Human Relations on August 17, 1988.
Findings Of Fact The Southland Corporation, d/b/a Southland Distribution Center, is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Guillermo A. Barbosa was an "employee" of the Respondent as defined in Section 760.02, Florida Statutes, and was employed by Respondent for approximately sixteen (16) years. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. The Petitioner, Guillermo A. Barbosa, is fully competent to represent himself on a pro se basis. He exhibited clear understanding of the procedural requirements at the formal hearing and the legal import of his burden of proof on his claim of an unlawful practice against the Respondent. Petitioner exhibited comprehension of the English language, both spoken and written, and exhibited fluency in the speaking of English in the interrogation of witnesses at the formal hearings. Respondent, The Southland Corporation, d/b/a Southland Distribution Center, functions as a warehousing and distribution complex for a number of commercial customers including 7-Eleven convenience stores and restaurant chains such as Steak & Ale, Bennigan's, TGI Friday's, Krystal and others. In order to service its regional territory of four states, it employs approximately 630 employees in a large 440,000 square foot warehousing facility located on Sand Lake Road in Orlando, Florida. Respondent's warehouse operates 24 hours a day five (5) days per week. Respondent's work force stores a variety of goods and products and, upon order or request from a given customer or account, selects the indicated goods, packs them in appropriate containers and loads the order on tractor trailer rigs for transport and delivery to the final destination point. The Respondent places great emphasis upon the importance of time and schedules. Timely reporting for work and attendance as scheduled is emphasized by the Company so that the closely integrated operation of the complex can be maintained with efficiencies of labor and close coordination of schedules between warehouse operation, the transportation link and the store hours of the customer. The policies, procedures and work rules of the Company provide incentive programs to reward employees who report to work as scheduled in a prompt and consistent manner. Conversely, through its work rules, the Company provides that employees who demonstrate a pattern of tardiness or absence may be disciplined or discharged. For these same reasons, the work rules published to the employees and acknowledged by each worker also stress that a failure to report to work when directed or as scheduled for a period of 48 hours (no show/no call) will result in automatic termination of employment. The Respondent views employee reliability for reporting to work as scheduled and on time as a fundamental condition of employment. On August 11, 1988, Petitioner reported an on-the-job injury and was relieved of duty and, under directions from the Respondent's occupational health nurse, treated by an outside physician. On August 17, 1988, while on the medical leave of absence due to the work-related injury, Petitioner filed a discrimination charge alleging denial of transfer or promotion due to his national origin. A notice of the charge of discrimination was directed to the attention of the Personnel Manager of the Respondent and was received on September 7, 1988. On Friday, September 16, 1988, Petitioner was released by the treating physician and given "return to work orders" instructing him to return to work without restrictions. The following work day, Monday, September 19, 1988, the Petitioner resumed his normal duties and work routine. However, after approximately one to one and one half hours of work, Petitioner reported that he had either re- injured himself or had aggravated the prior injury for which he had been treated. The Respondent again placed Petitioner on medical leave of absence due to the work-related injury and directed him for treatment to the outside physician. On Friday, September 30, 1988, Petitioner was again released by the treating physician without limitations or restrictions and given instructions to return to work. On the next workday, Monday, October 3, 1988, Petitioner failed to show up at his scheduled time. After being absent without authority or explanation for five consecutive work days, the Warehouse Manager, Mr. Julius Dix, mailed a letter to Petitioner. The letter explained that pursuant to Rule 12 of the Company's "working conditions", specifically failure to report to work as directed and being absent without explanation or authorization for five consecutive work days, the Company was placing Petitioner on suspension pending further review. Although dated October 5, 1988, the letter drafted by Mr. Julius Dix was actually written and sent on Friday, October 7, 1988. However, the date of the letter was made retroactive to the actual point of job abandonment pursuant to the so-called "48- hour rule". On October 17, 1989 Petitioner mailed a copy of a medical form from an outside physician indicating that Petitioner had been disabled from working from October 13 to October 25, 1988. It was received by an employee of Respondent on October 19, 1988. A similar form was mailed October 26, 1988 and received on October 28, 1988. There was no letter or personal explanation accompanying the medical form. Petitioner stated that upon being released by the treating physician, he contacted the Warehouse Manager, Mr. Julius Dix, and upon explaining that his injury continued to disable him from returning to work, was given permission to continue on medical leave and seek treatment by another physician. However, Mr. Dix testified that he had never given such permission or directions, nor had he received any communications or contact from Petitioner on Friday, September 30, or during the subsequent week. The more credible testimony is that Petitioner made no communication with his employer during the week of October 3, 1988. Following corporate review, required for long-term employees, Petitioner's employment was formally terminated for violation of the "48-hour rule" (no show/no call) under a subsequent letter from Mr. Julius Dix dated October 25, 1988. On November 8, 1988, Petitioner filed a charge of discrimination alleging retaliation. The Petitioner's work history demonstrates his knowledge of the 48- hour rule and prior compliance under similar circumstances. The 48-hour rule of Respondent has been applied in a consistent and uniform manner to a substantial number of other employees during a period of time immediately prior to the action taken with regard to the administrative termination of Petitioner's employment. The administration of this rule by the Company has resulted in termination of the non-complying employees.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued which denies the Petition for Relief. DONE AND ENTERED this 17th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of November, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact: Paragraphs 1, 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 (sic) -- accepted in substance. Paragraphs 7 and 8 -- rejected as not relevant. COPIES FURNISHED: Guillermo A. Barbosa Dana Baird 854 Long Bay Court General Counsel Kissimmee, Florida Human Relations Commission 325 John Knox Road Thomas C. Garwood, Jr., Esquire Building F, Suite 240 Garwood and McKenna, P.A. Tallahassee, FL 32399-1925 322 East Pine Street Orlando, Florida Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
Findings Of Fact Petitioner is a licensed Florida nursing home facility and at all times material to these proceedings was certified and participating in the Florida Medicaid Program. Pertinent guidelines relating to program reimbursement are set forth in the Florida Title XIX Long Term Care Reimbursement Plan (Gainesville Plan) which Respondent has incorporated by reference in Rule 10C- 7.48(4)(a)5.a., Florida Administrative Code. The reimbursement rate of a nursing home provider is determined prospectively by Respondent for the upcoming year based upon a review of the provider's cost report submitted for the past year. Respondent determines a prospective per diem rate based upon historical costs and includes an inflation factor. The provider is expected to stay within the budget of this prospective rate. Interim rate increases are permitted by the guidelines in the Gainesville Plan when a provider experiences unforeseen increases in costs related to patient care during the year if those costs are necessary to comply with regulatory requirements. Specifically, Section IV. J-2, of the Gainesville Plan states in pertinent part: Interim rate changes reflecting increased costs occurring as a result of patient care or operating changes shall be considered only if such changes were made to comply with existing State or Federal rules, laws or standards, and if the change in cost to the provider is at least $5000 and would cause a change of 1 percent or more in the provider's current total per diem rate. From July 1, 1988 through December 31, 1988, Petitioner experienced a 15% increase in nursing labor costs, the largest single item in Petitioner'S patient care cost. Petitioner projects that this cost increase will continue to exist and possibly increase further after the conclusion of the present fiscal year ending June 30, 1989. Petitioner maintains such an increased expenditure is necessary to meet minimum staffing requirements for adequate patient care under the medicaid program, and that these costs were incurred in order to be in compliance with such program requirements. However, as established at hearing by testimony of Petitioner's Director of Finance, documentation in the form of payroll sheets and staffing sheets were not provided to document or support the correctness of Petitioner's assertion. Respondent's annual Medicaid Quality Of Care Review, a monitoring survey which determines but does not enforce compliance with regulatory guidelines, for the period of May 17, 1988 through June 27, 1988, cited various nursing related and other deficiencies in Petitioner's overall nursing home operations. If left uncorrected, the deficiencies cited in Respondent's survey may have been referred for review by Respondent's licensure and certification personnel and, upon disclosure of continued existence of those deficiencies in an inspection by that office, subjected Petitioner's facility to penalties including fines, conditional licensure and possibly delicensure. Petitioner corrected the deficiencies, but provided no proof at hearing that correction of such deficiencies directly resulted in the costs upon which the request for an interim rate increase is based. On or about July 21, 1988, Petitioner requested an interim rate increase from Respondent. On August 2, 1988, Respondent's representatives responded to Petitioner's request by requesting that Petitioner provide documentation of cited deficiencies by certification and licensure personnel showing that Petitioner's facility was out of compliance with program requirements. Respondent also requested Petitioner submit documentation of costs associated with resolving those deficiencies and that the documentation match specific costs with specific deficiency citings. Petitioner responded to Respondent's request for further documentation on August 21, 1988, by providing Respondent with a copy of the summary of the Medicaid Quality Of Care Review, the monitoring survey, covering the period of May 17, 1988 through June 27, 1988. This document had been provided to Petitioner by Respondent on July 11, 1988. In addition, Petitioner submitted a statement of deficiencies and plan of correction issued by Respondent as a result of Respondent's October 7, 1987 annual licensure survey. Petitioner also provided a one page document which reflected cost increases in various aspects of Petitioner's operation, although none of the increased cost amounts were allocated in the document to bringing any specific deficiency in Petitioner's operation into compliance. Petitioner's cover letter asserted that the costs were "necessary costs as precribed [sic] to us by the Department of H.R.S. to meet necessary medicaid levels of care." Deficiencies noted in the Medicaid Quality of Care Summary, provided to Petitioner by Respondent on July 11, 1988, dealt primarily with the failure of Petitioner's personnel to properly document administration of medication and treatment; to properly document tests and observations; and to insure that progress notes of nurses and physicians were kept current. The deficiencies noted for correction in Respondent's October 7, 1987, licensure survey were mainly the result of the manner in which Petitioner's staff were performing certain tasks, although some deficiencies dealt with needed refurbishments to furniture and equipment. The deficiencies were corrected by Petitioner. It is found that the October 7, 1987 deficiency report and Petitioner's response to that report are not relevant to the cost period for which Petitioner requests a rate increase. Respondent denied Petitioner's request for a rate increase in a letter to Petitioner dated October 6, 1988, and signed by Carlton D. Snipes, an administrator employed by Respondent. Snipes noted in the letter that the cited deficiencies did not support the outlay of additional funding requested by Petitioner and could be "corrected with existing resources or with minimal expenditures." Further, the letter stated: Since the interim rate provisions were implemented effective September 1, 1984, it has been the policy of this office that the compliance requirement referenced in the Plan is only satisfied by submitting a licensure and certification survey report detailing deficiencies. Additional documentation should also be submitted by the provider detailing specific expenditures necessary to correct related deficiencies. At the final hearing, Mr. Snipes testified that he did not need additional information to determine that increased costs to Petitioner resulting from patient care or operating changes were at least $5000 and equalled a change of one percent or more in Petitioner's current per diem rate as required by the Gainesville Plan. However, Snipes furtier testified that consideration of a rate increase for Petitioner was stymied because Petitioner did not provide documentation connecting the increased expenditures to a compliance requirement. Petitioner did not provide documentation showing that specific costs were incurred to meet specific recommendations from a licensure survey deficiency report. Upon further examination, testimony by Snipes also established that Respondent's policy of requiring documentation of a cited deficiency by an applicant for a rate increase has a historical basis. All previously granted interim rate increases were documented with such deficiency reports, although such a requirement would not be strictly adhered to in the face of an application containing information otherwise documenting noncompliance and demonstrating that the cost was required in order to comply with rules, statutes or regulations of the state or federal government governing the medicaid program. In the absence of such a deficiency report or provision of other detailed information by Petitioner sufficient to show that the increased costs were incurred to comply with state or federal rules, law or standards, Respondent's policy is to deny rate increase requests.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the interim rate increase requested by Petitioner. DONE AND ENTERED this 2nd day of May, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 2nd day of April, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-2. Addressed. 3. Addressed in part, rejected as to the language that expenditures were necessary to meet minimum medicaid standards as such an assertion is a conclusion of law unsupported by the weight of the evidence presented. 4.-7. Addressed. 8. Rejected as to mandatory result of the quality of care survey. Annual licensure survey rejected on relevancy grounds. 9.-11. Addressed. Incorporated by reference. Addressed. COPIES FURNISHED: Paul Salver, Esquire Joesph Geller, Esquire 5881 N.W. 151st St. Suite 101' Miami Lakes, Florida 33014 Carl Morstadt, Esquire Richard Rogers, Esquire 1323 Winewood Blvd. Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Did the Respondent, Paramount Hospitality Management (Paramount), discriminate against Petitioner, Nelson Ramos, Jr., on account of his race?
Findings Of Fact In 2010, Mr. Ramos applied for a job as a houseman with Paramount working at the Point Orlando in the housekeeping department. Mr. Ramos is an African-American male. Adriana Dos Santos, the head housekeeper interviewed him in person. During the interview, she saw Mr. Ramos in person and spoke to him. She also explained the position's duties. Ms. Dos Santos was impressed with Mr. Ramos. He had previous housekeeping experience and was polite and enthusiastic. She decided to hire him. Mr. Ramos maintains that Paramount hired him because Ms. Dos Santos did not know he was African-American and thought he was Hispanic because of his surname. The evidence does not support his theory. During the interview that resulted in Ms. Dos Santos hiring Mr. Ramos, she could determine that he was African-American. Also during the interview, according to Mr. Ramos's testimony, he told Ms. Dos Santos that he could not speak Spanish. Paramount's Employee Handbook describes the company's 90-day "Get Acquainted Period," traditionally referred to as a probationary period. It also reminds employees that throughout their employment they may terminate their employment at any time with or without cause and that Paramount may terminate the employment at any time with or without cause. Paramount provided Mr. Ramos a copy of the handbook when it hired him. Paramount terminated Mr. Ramos during the first 90 days of his employment Mr. Ramos began work with Paramount at Point Orlando on July 15, 2010, as a houseman. Vladimir Suarez trained Mr. Ramos. Mr. Suarez speaks English and Spanish. Although Mr. Ramos claims that Mr. Suarez could not speak English at all, he never complained during training of Mr. Suarez not speaking English. In addition, during his first days of employment, Mr. Ramos performed his duties well. This is an indication that they were adequately explained. The houseman has a cart with supplies on it. A houseman's duties include keeping the carts of the housecleaners stocked with linens and supplies, collecting linens from the carts and sending it down the laundry chute, and collecting trash from the carts and sending it down the garbage chute. The duties also include providing assistance with whatever tasks need to be accomplished. Point Orlando is a two-tower hotel with 12 floors, six rooms to a floor. Each day the housecleaners move through the hotel cleaning the rooms, changing linens, and emptying garbage. The housekeeping supervisors communicate with the housemen and housekeepers by walkie-talkie. Consequently, any guests or visitors near the houseman or housekeeper involved can hear both sides of a walkie-talkie conversation. Because of this, Paramount's policy required the employees to keep the walkie-talkie communications brief and use walkie-talkies to transmit and acknowledge instructions and provide information. The policy specifically prohibited employees from disputing instructions or arguing on the walkie-talkies. Disputes were to be discussed in person not within the hearing of the public, as walkie-talkie communications necessarily were. Mr. Ramos resented this policy. He viewed it as a rule that he could not disagree with his supervisor. He felt that it was disrespectful to him. Consequently, Mr. Ramos frequently did not comply with the rule. During his first days of employment, Mr. Ramos worked diligently and performed his duties well. Within weeks, this stopped. His supervisor, Ms. Diaz, verbally counseled him. She testified at the hearing. She speaks and understands English. On September 6, 2010, Paramount issued Mr. Ramos his first Employee Counseling Report. This discipline was for not clocking in or out on August 30, 2010. Mr. Ramos knew that he was supposed to clock in. He did not clock in as required. On October 4, 2010, Paramount issued Mr. Ramos another Employee Counseling Report. This report counseled Ramos for the following deficiencies on September 26, 2010: lateness, disobedience, attitude, and defective work. On September 26, 2010, Mr. Ramos came to work 30 minutes late. During that morning, he only took trash from the housekeepers' carts. He did not take the dirty linens. Mr. Ramos also did not bring his linen cart when called to restock a housekeeper cart. He had been previously warned to always have his cart with him when going to assist the housekeepers. On September 26, 2010, at 2:00 p.m., Ms. Diaz instructed Mr. Ramos to strip linen and trash from 21 rooms. By 2:30 p.m., he had not started the task. When Ms. Diaz, called him to the office to counsel him, he was very disrespectful to her. She sent him home and suspended him until September 29, 2010. Ms. Dos Santos issued another counseling report to Mr. Ramos for his conduct on September 30, 2010. On that day, she asked him to wait to speak to her privately when he was clocking out at the end of his shift. He told her he could not wait because he had to go to the bank and to his second job. He waited a few minutes then told her again he had to go. She insisted that she had to talk to him. Mr. Ramos left. He was not on the clock and his shift had ended. On October 4, 2010, Paramount terminated Mr. Ramos. Mr. Ramos maintains that Hispanic employees committed the same offenses as he did and were not disciplined. There is no persuasive competent evidence to support his assertions. Paramount keeps personnel records and actions for employees confidential. Mr. Ramos' testimony could only be based upon hearsay. Mr. Ramos also maintains that Paramount hired him because Ms. Dos Santos did not know that he was African-American and thought that he was Hispanic because of his surname. The evidence does not support his theory. During the interview that resulted in Ms. Dos Santos hiring Mr. Ramos, she could determine that he was African-American. During that interview, Mr. Ramos told Ms. Dos Santos that he could not speak Spanish.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Ramos's Petition for Relief. DONE AND ENTERED this 14th day of June, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 14th day of June, 2012.
The Issue Whether Olin Scott Stoutamire is required to repay monies paid to Olin Scott Stoutamire as salary, which is alleged by the Department of Transportation (DOT) to be excess salary.
Findings Of Fact Petitioner is an agency of state government. The Respondent is a career service employee of the Petitioner, and is employed at a site located away from the Petitioner's District Office in Chipley, Florida. The Respondent is the Project Manager of the Petitioner's Thomasville Road and Interstate 10 Intersection Improvement Project in Tallahassee, Florida. The Respondent is paid less than other Petitioner's Construction Project Managers because the Respondent has less tenure. The Respondent's supervisor told Respondent that he would try to correct what appeared to be a salary inequity. The Petitioner initiated a raise for Respondent equal to 5 percent of the Respondent's base rate of pay. The proposed 5 percent salary increase was initiated by his supervisor completing and submitting an "Employee Action" form. The form provides the employee's identification, position, and includes the employee's current base pay rate and the calculated pay rate after the proposed increase becomes effective. The Respondent's base rate of pay and the resulting calculations as to the proposed resulting pay increase were incorrect on the Employee Action form submitted to the Petitioner's Personnel Office (Personnel) in Chipley, Florida. Personnel detected the supervisor's error, but then committed its own error, resulting in an $80 bi-weekly overpayment. The Respondent noticed the apparent overpayment and inquired of his supervisor if there had been a mistake. Respondent told his supervisor that he did not want the State to seek reimbursement for a large amount at a later date. The Respondent's supervisor told Respondent that the payment was correct and to accept it. The Respondent asked him to check and be certain because he did not want to have to repay the money. A short time later, the Respondent's supervisor told Respondent to accept the total amount of the warrant as being correct. His supervisor mentioned other pay increases for which the Respondent was being considered during the same time that the 5 percent pay increase was being processed. The Respondent thought that his supervisor had checked with personnel, and that his pay was correct. The Petitioner did not become aware of the error until an overpayment of $1,200 had accumulated. The Petitioner's Office of Financial Services requested reimbursement in the amount of $771.15 as payment in full within ten days or a payment of $117.00 biweekly pursuant to Sections 110.205(2) and 216.251, Florida Statutes and Chapter 60L-8, Florida Administrative Code. The Respondent's salary was immediately adjusted to show the correct amount. The Respondent contends he did his best to determine if he was being overpaid and was assured the payment was correct. The Respondent changed his budget and spent the money in reliance upon the assurance that the payment to him was correct. The Respondent concedes that Petitioner's records reflect an error and an overpayment. However, the Respondent does not believe he should have to repay the money immediately or in amounts greater than he received the overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent repay $40 per pay period to the Department beginning on the effective date of the next annual pay raise and continuing each month thereafter until the overpayment is repaid. The Department refer the case to the Department of Banking and Finance if an agreement cannot be reached. DONE AND ENTERED this 9th day of July, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1997. Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 34399-0458 Olin Scott Stoutamire 63 Graham Trail Crawfordville, Florida 32327
