The Issue : The issues to be resolved in this proceeding concern whether the Division of Administrative Hearings and the Florida Commission on Human Relations (Commission) have subject matter jurisdiction of this dispute and, aside from the jurisdictional questions, whether the City of Cottondale has engaged in a discriminatory employment action against the Petitioner based upon her race (African-American).
Findings Of Fact The Petitioner was an unsuccessful applicant for a job vacancy for a position of secretary with the City. The Respondent is the City of Cottondale, Florida, an incorporated municipality under relevant Florida Law. As established by the testimony of Judy Powell, the City Clerk for the City, the City, at all times pertinent hereto, had fewer than 15 employees. City counsel members other than James Elmore, were paid less than $600.00 per year and did not receive forms 1099 for their compensation from the City. They do not meet the relevant criteria to be considered employees. The City's Exhibit One, in evidence, shows that the City had fewer than 15 employees. The Petitioner offered no evidence to contradict the evidence from the City, the Respondent, that it had fewer than 15 employees at all relevant times. On January 30, 2007, the City placed an advertisement in the Graceville News, a newspaper, advertising a job vacancy for the position of secretary. The job description for the position included duties involving collecting utility bills, water deposits, issuing receipts for monies, helping to maintain and record cash journals of all business transactions, preparing billing for utilities, posting ledgers, assisting with daily collections, setting-up accounts, performing customer transfers, maintaining records of water deposits paid and refunded, and preparing of payroll and all related tax reports. Pursuant to that job description, general qualifications which applicants must have included bookkeeping skills and experience. In selecting applicants who would actually be interviewed, Ms. Powell and Willie Cook, who were doing the interviews, looked for individuals who had specific job skills related to the above-referenced duties contained in the job description for that position. Nineteen individuals submitted applications for the position, including the Petitioner. Four individuals were selected to be interviewed out of the 19 individuals who had applied for the position. Those were Melissa Davis, Linda Krauser, Gail Woodham, and Denise White. There was no requirement in City policy that all applicants for a job position be interviewed. There is no evidence to show that race was a factor in determining which applicants were selected to be interviewed for the secretarial position and which were not selected. Rather, the interview selection process involved selecting persons whose application documents appeared to show evidence of some specific job skills which related to accounting, accounts receivable, accounts payable, and the other duties detailed in the job description for the position in question. A white female, Melissa Davis, was selected to be interviewed because her application and cover letter indicated that she was familiar with accounts receivable, accounts payable, payroll, job costing, personnel, handling line telephones, customer service, preparing quarterly reports, and billing purchase orders and had experience in working with 401(k) issues and health and dental insurance. In addition, she had experience as a bank teller handling cash transactions. Another white female, Linda Krauser, was selected to be interviewed as well because her application indicated that she had previously supervised a staff of 40 people and had experience in customer service, maintaining staff records, and experience in accounting and billing. Another white female, Gail Woodham, was selected for interview because her job application and attached documents showed 20 years of experience in payroll, excel, powerpoint, computer skills, veritable spread sheets, and spread sheet tracking. An Hispanic female, Denise White, was also selected to be interviewed because her job application indicated that she had experience as a head bank teller with 17 years in a fast- paced environment and as a supervisor of tellers. She had worked in a doctor's office and had experience with record keeping. She had secretarial and billing experience working with patients for an optometry group, prepared correspondence for doctors and assisted with patient check-out. In her employment with Indian River National Bank, she had gained experience in customer service in handling accounts, and was a supervisor. Prior to that job, while working for another bank, she was a lead teller, supervisor, and handled cash flow. She had also received a prior certification regarding medical billing. The other 15 individuals who applied for the position, including Ms. Russ, were not interviewed. This decision was based upon Ms. Powell and Mr. Cook's review of the applications, and related to the relevant skills, experience, or education shown, or not shown, on those applications. There was no evidence that there was any racially discriminatory animus involved in the selection of individuals for interviews or the rejection of the other individuals who were not interviewed. The job application and resume submitted by the Petitioner indicated that her expertise and experience was primarily in caring for the elderly. There was no indication that she had any experience in bookkeeping, handling invoices, or billing. The decision not to interview the Petitioner was not based upon racial motivation, but rather, as with the case with the other applicants who were not interviewed, was based upon a review of application documents. A decision was made to select the four whose past experience, education, and job skills noted in those documents showed them most likely to be candidates with the appropriate skills and experience for the job in question. During the interviews of the four selected applicants, questions were asked them regarding accounting and bookkeeping issues. Ms. Powell, the City Clerk, finished the interview process and made the selection of the individual to be offered the position of secretary. Ultimately, Ms. White, a Hispanic female, was selected for the secretarial position and accepted the salary range offered, in the amount of $8.00 to $8.25 per hour. The applicants who were not interviewed did not have skills appropriate to the job and did not have skills substantially similar to those of the four individuals who were selected for interviews. They were particularly dissimilar in skills, experience, and education to the person ultimately hired, Ms. White.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Motion to Dismiss for Lack of Subject Matter Jurisdiction is granted. It is further recommended, aside from the finding of lack of subject matter jurisdiction, that, alternatively, a final order be entered determining that the Petitioner has not established her claim of racial discrimination in the hiring decision at issue, and that the Petition be dismissed in its entirety for this reason as well. DONE AND ENTERED this 5th day of December, 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 5th day of December, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Eulinda M. Russ Post Office Box 767 Cottondale, Florida 32431 Timothy W. Warner, Esquire Warner & Wintrode, P.A. Post Office Box 1820 Panama City, Florida 32402 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of her race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From 1991 until she resigned in November 2005, Petitioner Gloria J. Bias-Gibbs ("Bias-Gibbs") worked for Respondent Jupiter Medical Center ("JMC") in several different positions, which were mostly clerical in nature. Starting in 2001, and continuing throughout the time period relevant to this case, Bias-Gibbs' job was to perform "chart prep" in the Same Day Surgery unit, which is within JMC's Surgical Services Department. As a chart prep employee, Bias-Gibbs' task was to assemble patients' charts for the medical personnel. During the time she held the chart prep position, Bias-Gibbs was the only person who occupied it. Volunteers had performed the chart prep duties before Bias-Gibbs assumed them, and, after she resigned, volunteers once again were given the chart prep duties to perform. Bias-Gibbs' immediate supervisor in Same Day Surgery was Janet Sparks, the Clinical Manager. Ms. Sparks, in turn, reported to Beth Suriano, the Director of Surgical Services. Ms. Sparks and Ms. Suriano are white women; Bias-Gibbs is a black woman. Not long after she began her tenure as a chart prep, Bias-Gibbs began to believe that she was a victim of racial discrimination at work. In particular, she felt that Ms. Sparks was a racist who repeatedly took adverse action against her solely because she is black. The many allegedly discriminatory acts about which Bias-Gibbs presently complains can be divided into three main categories: (a) denials of her requests for promotion or transfer to another position; (b) Ms. Sparks' conduct; and (c) refusals to provide training, most notably in relation to a computer program known as "Fast Forms," about which Bias-Gibbs alleges she received inadequate instruction. The Requests for Transfer. Between April 16, 2001, and February 22, 2005, Bias-Gibbs submitted sixteen job transfer applications, seeking positions at JMC that she believed were more in keeping with her qualifications than chart prep. None of these applications was approved. Bias-Gibbs does not know the identities, racial characteristics, or qualifications of any of the persons whom JMC hired for the sixteen positions Bias-Gibbs sought. Because she applied for these positions and did not get them, however, Bias-Gibbs feels that she was discriminated against. In addition, Bias-Gibbs once sought to transfer to another position in the Surgical Services Department. The job of Patient Access Specialist was given, however, to another employee of JMC, Joyce Stokes, who assumed the position some time in 2004. Unlike Bias-Gibbs, Ms. Stokes (who happens to be white) had taken a medical terminology course and examination. Because proficiency in medical and surgical terminology is desirable for the position in question, Ms. Stokes was more qualified than Bias-Gibbs to be a Patient Access Specialist. Ms. Sparks' Conduct. Bias-Gibbs' complaints about Janet Sparks, whom she calls a "racist," revolve around allegations that Ms. Sparks forced Bias-Gibbs to sit in a back room while on the job; made racially insensitive remarks concerning Bias-Gibbs' appearance (specifically, her hair); refused to transfer Bias-Gibbs to a different position in the Surgical Services Department (the incident discussed above); kept an overly watchful eye on Bias- Gibbs while she was working; and generally declined to give Bias-Gibbs more challenging assignments in addition to chart prep. Work Station. Bias-Gibbs worked in a room apart from the secretaries in the unit. Her work area was neither "on the floor" nor in public view. While she believes that this "back room" placement was discriminatory, Bias-Gibbs' job as a chart prep employee did not require her to sit "out front." There is no evidence that Bias-Gibbs was singled-out for different treatment regarding her work station. To the contrary, after Bias-Gibbs resigned, the chart prep work continued to be done in the same room where Bias-Gibbs had labored, with the same supplies that were available to Bias- Gibbs while she was employed. Insensitive Remarks. Bias-Gibbs does not believe that she was harassed because of her race. She does complain, however, about derogatory remarks she attributes to Ms. Sparks. According to Bias-Gibbs, when Bias-Gibbs wore her hair in braids to work, Ms. Sparks made comments to the effect that she (Bias- Gibbs) looked like Whoopi Goldberg. In addition, Ms. Sparks once told Bias-Gibbs that she wished she (Ms. Sparks) were black because, if she were black, then it would be easier to take care of her hair. The undersigned takes Bias-Gibbs at her word that these quips were offensive and hurtful to her (although she never told Ms. Sparks that the comments at issue made her uncomfortable). To infer, however, that racial animus motivated these comments (there being no direct evidence of discriminatory intent) would require that the words be given a very mean connotation (and the speaker absolutely no benefit of the doubt) because, viewed objectively, the statements appear to be, at worst, inconsiderate, unkind, or rude. Ultimately, there is insufficient evidence upon which to base a finding (or to infer) that these remarks were anything but workplace banter of the sort that anti-discrimination laws are not designed to reach. "Excessive" Supervision. Bias-Gibbs believes that Ms. Sparks was hypervigilant about watching her work, which made Bias-Gibbs nervous or uncomfortable. Although she attributes this watchfulness to racism, Bias-Gibbs conceded, when pressed, that it was not discriminatory for her supervisor to keep an eye on her at work. There is no evidence, in any event, that Ms. Sparks subjected Bias-Gibbs to closer scrutiny than other employees, much less that she treated Bias-Gibbs differently in this regard based on her race. Underutilization. As an overarching complaint about Ms. Sparks, Bias-Gibbs believes that her supervisor generally refused to allow Bias-Gibbs to perform the kind of work that would make full use of her skills. At most, however, the evidence shows that Ms. Sparks and Bias-Gibbs had different opinions about Bias-Gibbs' potential for taking on other responsibilities. There is no evidence that Ms. Sparks' opinion, which was that Bias-Gibbs should continue working in chart prep, was racially based. Inadequate Training. Bias-Gibbs felt that she was discriminated against because other individuals were given more training than she was on using the Fast Forms computer program. Bias-Gibbs did receive instructions on using Fast Forms, however, which were sufficient to enable her to look up patients' names in the database——the only function of the program that was relevant to, and helpful in the performance of, her duties. The secretaries who used Fast Forms were provided more training in the use of the program, it is true, but their duties were different than Bias- Gibbs's duties, and hence they used Fast Forms for reasons in addition to retrieving names. The secretaries, in short, were provided more training than Bias-Gibbs, not because the latter is black, but because, as secretaries, they needed more training than Bias-Gibbs. The bottom line: there is no persuasive evidence that Bias-Gibbs was given inadequate training——period. At all times during Bias-Gibbs' tenure as an employee of JMC, the hospital had an anti-discrimination policy, an anti- harassment policy, an equal employment policy, and a grievance policy, which were available to all employees. Bias-Gibbs was aware of these policies, yet she never made any allegations of racial discrimination or harassment, disparate racial treatment, or racial comments to Ms. Sparks, Ms. Suriano, or anyone else. Similarly, she never used the grievance procedure to complain that she had been denied a promotion or transfer because of her race. Bias-Gibbs resigned her position at JMC in November of 2005. Although she now maintains that she felt compelled to resign her position because she was denied opportunities to advance at the hospital (and because she needed a job that paid more money), at the time Bias-Gibbs informed others that she was leaving her position in Same Day Surgery because she had gotten a better-paying job at the post office. Bias-Gibbs filed a Charge of Discrimination against JMC at some point on or after July 19, 2006. (She signed the charging document on September 22, 2006, but there is an inscription on the instrument indicating that it was filed on July 19, 2006. There is no evidence explaining this discrepancy.) Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that JMC discriminated unlawfully against Bias-Gibbs on the basis of her race; or it proves, affirmatively, that JMC did not, in all likelihood, unlawfully discriminate against her. Either way, it is determined, as a matter of ultimate fact, that JMC did not violate the civil rights laws in its treatment of Bias-Gibbs while she was an employee of JMC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Bias-Gibbs' Petition for Relief as partially time- barred, and alternatively (and additionally) finding JMC not liable on the merits for racial discrimination. DONE AND ENTERED this 24th day of April, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 24th day of April, 2008.
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 18, 1991. The Petition was filed by Ervin James Horton. 3. In the Petition Rules "33-3.002, 33-19.006, 33-19 et. seq., 33-19.012, 33-23 et. seq." were challenged. Most of the Challenged Rules are lengthy and deal with a number of subjects. The common thread of the Challenged Rules concern medical care of inmates. The Petition is, to say the least, confusing. This confusion is caused by the Petitioner's frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 17, State of the Case and Facts, provides the following: 17. That the (Petitioner) has learned that the (Respondent) act [sic] pursuant to an invalid delegation as 33-3.002 33-19 et. seq., 233-23 et. seq. that fail to establish adequate standards for agency decision making, and vests unbridled discretion in the agency or employees that's inconsistant [sic] to the statutory requirements of 120.54 and 944.09. This paragraph is fairly typical of most of the Petition. Although it contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of employees of the Respondent in allegedly releasing confidential medical information to "security staff and psychologist or and other staff or employees with criminal intent" and other medical practices of the employees of the Respondent. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rules. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules are unconstitutional. Again, most of the Petitioner's arguments apparently concern violation of constitutional rights by the acts of employees of the Respondent as opposed to the violations of constitutional rights in the Challenged Rules. Insufficient alleged facts concerning why it is believed that the Challenged Rules are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 10, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered. The Petitioner was informed that his Petition was being dismissed and the Petitioner was given an opportunity to file an amended petition. No amended petition has been filed by the Petitioner. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
The Issue The issues to be resolved in this proceeding are whether Respondent was the employer of Petitioner; and, whether Petitioner was terminated from his employment with Respondent because of his race.
Findings Of Fact Petitioner is a white male. At all times relevant to this matter, Petitioner was employed with the City of Tallahassee (City). Petitioner continues to be employed by the City. As part of its municipal function, the City of Tallahassee has the responsibility of maintaining drainage ditches located within the City limits. The Leon County Sheriff’s Office (Sheriff's Office) provides inmate work crews to the City for assistance in carrying out this responsibility. The Sheriff's Office also provides the inmates with any food or other items they require. The inmate work crews are supervised by City employees who have completed the Sheriff’s Office certification program for supervising inmates. The certification program is required because of security concerns involved with utilizing the labor of incarcerated individuals outside of the controlled environment of a jail. Because of security concerns, employees are instructed not to provide contraband to inmates. Contraband is defined as any item given to an inmate which the Sheriff's Office has not authorized to be given to the inmate. If any items are provided to inmates, all inmates must receive the item. Petitioner completed the certification program and was employed by the City to supervise inmate work crews. He was told during the training session that inmate supervisors could not provide contraband to inmates, but if any items were provided to inmates, all inmates must receive the item. On or about August 16, 2000, Petitioner gave a bucket of Popeye's chicken to an inmate under his supervision. The bucket of chicken had been given to Petitioner by a Popeye’s employee to give to the inmates because the Popeye's employee knew one of the inmates. Each inmate received a piece of chicken. However, even though Petitioner checked the bucket for weapons, Petitioner did not obtain or attempt to obtain authorization from the Sheriff's Office to give the chicken to the inmates. When Sergeant Lee, a Sheriff’s Office sergeant, visited the work site and saw the chicken bucket and that chicken had been eaten, he asked Petitioner if he had given the chicken to the inmates. Believing that he had done something wrong, Petitioner lied to Sergeant Lee and said that he had not given chicken to the inmates. Sergeant Lee instructed Petitioner to return the inmates to the Leon County Jail. While at the jail, Petitioner admitted that he had given the chicken to the inmates. Petitioner was advised by the Sheriff’s Office that he could no longer supervise inmates. The Sheriff's Office also advised the City that Petitioner was no longer certified to supervise inmates. The City then transferred Petitioner to another position but did not reduce his pay or benefits. On a date after Petitioner’s removal from supervising inmates, the City held a luncheon and invited inmates. There was no evidence presented that the invitation to lunch was or was not authorized by the Sheriff’s Office. Ted Hubbard, a white City employee, has provided watermelons to inmates and other unnamed black inmate supervisors were present when Leon County employees gave Gatorade and other items to inmates. Neither Hubbard nor any other person has been removed from supervising inmates. However, other than very vague references to these "other" supervisors, Petitioner offered no evidence of any similarities between his employment and these other employees or that the items allegedly given to the inmates were not authorized by the Sheriff's Office or that the Sheriff's Office even knew alleged contraband had been given to any inmates. Certainly, no other person lied about providing items to inmates. At no time did the Sheriff's Office make any employment decisions on behalf of the City. Likewise, at no time did the Sheriff's Office employ Petitioner. In fact, the City made all decisions with regard to Petitioner's employment and was the actual employer of Petitioner. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of July, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2002. COPIES FURNISHED: Linda G. Bond, Esquire Powers, Quaschnick, Tischler & Evans Post Office Box 12186 Tallahassee, Florida 32317-2186 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Donald H. Lairsey 8031 Smith Creek Road Tallahassee, Florida 32310 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint with leave to file an amended administrative complaint alleging post-licensure misconduct only, within twenty days of the order of dismissal. DONE and ENTERED this 13th day of March, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1984. COPIES FURNISHED: Dean Bunch, Esquire P. O. Drawer 1170 Tallahassee, Florida 32302 Dennis S. Valente, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On or about July 12, 1993, Petitioner filed a complaint, including attachments, with the Florida Commission on Human Relations (FCHR) alleging that Respondent had discriminated against him on the basis of sex/gender (male) and marital status (single) in violation of the Florida Human Rights Act. In his complaint, Petitioner states in pertinent part: I am writing to file a FORMAL SEX/MARTIAL STATUS DISCRIMINATION COMPLAINT against: 7) Lighthouse Academy at 3701 NE 22nd Avenue, Lighthouse Point, FL 33064. * * * 6) Lighthouse Point Academy - Many times throughout the year I contacted +/or applied for positions at this private school for special education children. Because of their lack of acknowledgement, I question whether or not their hiring practices are discrim- inating. On August 9, 1993, Petitioner filed the same complaint with the U. S. Equal Employment Opportunity Commission (EEOC) but alleging that the discrimination was in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII). On May 23, 1995, the EEOC issued its determination that Respondent had not considered Petitioner's gender or marital status and that no violation of Title VII had been committed. Furthermore, the EEOC notified Petitioner in its determination that he had 90 days in which to file a civil suit in federal district court and that the suit was his exclusive remedy. On or about August 5, 1995, Petitioner requested a formal hearing from the FCHR which had not issued a determination on the complaint filed with it. Petitioner requested a hearing on his claim of discrimination based on gender/sex (male) and marital status (single). On August 14, 1995, Petitioner filed suit in federal district court alleging that Respondent discriminated against him on the basis of sex in violation of Title VII. On April 30, 1996, the federal district court issued a final judgment in Respondent's favor, resulting from cross-motions for summary final judgment. 1/ The court determined that, based upon the motions, the record, and the status of the case, and viewing the facts in a light most favorable to Petitioner, Petitioner had failed to raise a genuine issue of fact that he was intentionally discriminated against by Respondent on the basis of sex. In the instant case, at no time material hereto did Respondent make inquiry as to Petitioner's marital status. In the case at hand, at no time material hereto did Petitioner inform Respondent as to his marital status. In the instant case, at no time material hereto did Respondent have any knowledge of Petitioner's marital status.
Recommendation Based on the foregoing, it is RECOMMENDED that the petition of Steve J. Longariello be DISMISSED. DONE AND ENTERED this 13th day of June, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 13th day of June, 1996.
The Issue Whether Respondent terminated Petitioner’s employment in violation of Chapter 760, Florida Statutes (2004), popularly known as the Florida Civil Rights Act of 1992 (Florida Civil Rights Act).
Findings Of Fact Petitioner is an Hispanic female. Petitioner was employed by Respondent in records for almost 15 years prior to July 16, 2004, when she was terminated. Respondent is a municipal corporation located in Miami- Dade County, Florida, and an employer within the meaning of the Florida Civil Rights Act. Respondent provides a variety of public services generally associated with cities of comparable size, including a full service police department. At all relevant times, Hispanics comprised approximately half of the police department's workforce. Many of these individuals were employed in supervisory capacities. Four Hispanics were supervisors in Petitioner's chain of command. In her position in records, Petitioner was responsible to timely and accurately process official police documents. Such processing included the completion of forms and transmittal documents and timely copying, filing and production of such documents to appropriate individuals and authorities (document processing). Failure to discharge any of the foregoing responsibilities is reasonably deemed by Respondent to be incompetence, and a firing offense(s). In her position in records, Petitioner was also responsible to comply with all directives of supervisors and to cooperate in internal affairs investigations. Cooperation in this context includes providing sworn statements and/or answering questions under oath as may be required by Respondent. Failure to comply with directives and to cooperate in internal affairs investigations are reasonably deemed by Respondent to be insubordination, and firing offenses. On April 29, 2004, a member of the public presented himself to records and requested a copy of an official police record to which he was entitled to access, specifically a traffic ticket. Records could not locate the document because it had not been properly processed by Petitioner, who was responsible for doing so. Having become aware of a problem with this particular document processing, Respondent thereupon took reasonable steps to determine whether this was an isolated error by Petitioner. In so doing, Respondent discovered and documented a high volume of document processing errors with respect to official police records for which Petitioner was responsible. In February 2004, one of Petitioner's supervisors – one who happened to be Hispanic -- issued a written directive (the February directive) to all records employees which required that they disclose, on a weekly basis, any "backlogs" of document processing work. In direct violation of the directive, Petitioner never disclosed existence of her backlog, which was, by April 29, 2004, extremely large. Now on notice of the backlog and deeply concerned about its potential effects on the police department and the public it serves, and pursuant to police department policy, an internal affairs investigation was initiated under the leadership of the same Hispanic supervisor. Over the course of the investigation, Respondent learned that the problem(s) revealed on April 29, 2004, were only the "tip of the iceberg." The internal affairs investigation uncovered “hundreds and hundreds” of additional document processing errors. Virtually all of the errors discovered involved official police records for which Petitioner was responsible. In the course of the internal affairs investigation, Petitioner was directed to give a sworn statement, and refused to do so, which refusal was deemed to constitute insubordination. Petitioner’s errors as documented in the internal investigation demonstrated incompetence. Her failure to comply with the February directive and to provide a sworn statement to internal affairs investigators constituted insubordination. At the conclusion of the internal affairs investigation, Petitioner was terminated for incompetence in the performance of her document processing responsibilities and for insubordination. Petitioner failed to discredit the factual underpinnings of Respondent’s decision to terminate her employment; neither did she establish any discriminatory basis upon which Respondent terminated her employment. Respondent replaced Petitioner with an Hispanic, who remained employed by Respondent through and including the time of the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the FCHR enter its final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of September, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 14th day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Christina Quintero 4780 Northwest 2nd Street Miami, Florida 33126 David C. Miller, Esquire Akerman Senterfitt Sun Trust International Center, 28th Floor One Southeast Third Avenue Miami, Florida 33131 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent due to his marital status.
Findings Of Fact Respondent is a corporation that sells and services blueprint machines and the supplies needed to operate such machines throughout a multi-regional area in the United States. Pamela Turner was the Director of Operations for Respondent. Her office was in the Pensacola, Florida, branch offices of the Respondent. During 2011, Respondent was looking for a person to fill a field technician position covering parts of Florida and Georgia. At the time, the territory that this position serviced ranged from Tallahassee, Florida, south to Perry, Florida, north to Valdosta and Albany, Georgia, and west to Destin, Florida. Importantly, the technician for the above area did not work out of Respondent's Pensacola office, but was remotely located somewhere within the position's service area. Further, parts and inventory were shipped to the remote location used by the field technician. For that reason, it was required that the field technician for the area possess the utmost honesty and trustworthiness. Additionally, it was very important that Petitioner and, specifically, Ms. Turner have a high degree of confidence in any person selected for the field technician position. In November 2011, Petitioner interviewed for the Field Service Technician position with Respondent. Petitioner interviewed with Pamela Turner and Michael Miller, the head of the company. Pamela Turner advised the Petitioner that due to the remote location of the job, it required the utmost in terms of honesty and trustworthiness of the person hired since the employee would be unsupervised most of the time and would possess valuable tools, parts and inventory at the employee's remote location. On his application, Petitioner disclosed the address where he lived as 1654 Eagles Watch Way, Tallahassee, Florida. The address on Petitioner?s application was his mother?s home and was the place where he lived. Petitioner understood that this address also would be considered the address for his office and the address where parts and inventory would be shipped. During Petitioner?s interview, Petitioner was never asked any questions by the interviewers about the status of his marriage. The fact that Petitioner was married came up during casual conversation in relation to the travel required for the job. Additionally, during the course of the interview with Ms. Turner, Petitioner told Ms. Turner that Petitioner?s wife would like for him to get this job because it meant more time at home with her. However, Petitioner did not inform any interviewer that he was separated from his wife because he did not feel that it had anything to do with his ability to perform the job he was interviewing for. He likewise did not inform any of the interviewers that he was not living with his wife at her home or that he occasionally stayed at his wife's house because they were trying to work things out between them. Petitioner was never asked specifically during the interview who owned the address that was listed on his application. However, Ms. Turner reasonably assumed that it was Petitioner?s and his wife?s home. The Petitioner was hired for the position of field service technician on December 12, 2011. His employment contract ran from December 12, 2011, through December 11, 2012. After Petitioner began his employment, Petitioner shared with a co-employee, Paul Springer, that he was separated from his wife. Paul Springer was a church counselor and suggested that he could help Petitioner and his wife by counseling them. In January 2012, while talking with another employee, Pamela Turner learned that Petitioner was living with his mother and that Petitioner was separated from his wife. This information was of concern to Pamela Turner because she questioned where parts Petitioner utilized in the maintenance and repair of customer photocopying machinery were being shipped. She was concerned because she thought this was Petitioner's and his wife's home only to discover that the home did not belong to Petitioner. Ms. Turner felt that Petitioner should have disclosed the fact that the address on his application was not owned by him and felt that the lack of disclosure was the same as misrepresenting information to her. Further, Ms. Turner, based on her earlier incorrect assumptions about Petitioner's address and living in the marital home, asked Petitioner why he had not told her about the address as it related to the circumstances of Petitioner's marriage. Ms. Turner incorrectly felt that Petitioner had misrepresented the circumstances of his marriage, which called into question the ownership of the address to which parts and inventory were being shipped. As a result, the confidence that Ms. Turner had in Petitioner was undermined. Petitioner explained to Ms. Turner that he and his wife were working on things and he was between his wife?s residence and his mother?s residence, but that he was not telling different stories. Further, the evidence demonstrated that Petitioner did not actively misrepresent anything to Respondent. However, Ms. Turner honestly felt that she could no longer trust Petitioner and honestly believed through her worldview that Petitioner had misrepresented himself to her. On January 30, 2012, she advised Petitioner that he was being terminated for misrepresentation. Given Ms. Turner's honest beliefs, Respondent's rationale for terminating Petitioner was not a pretext for discrimination. More importantly, given these honest beliefs, the evidence did not demonstrate that Petitioner's termination was based on Petitioner's separated marital status, but on the lack of trust that Petitioner's supervisor had in him. After the termination, Petitioner made no report of the alleged discrimination pursuant to the Respondent's written Problem Resolution policy and/or Equal Employment Opportunity policy both of which provided a problem and discrimination complaint process within Respondent's company. Petitioner was aware of these policies. However, Petitioner did not utilize these complaint processes because there was no one to escalate the complaint to since his supervisor, Pamela Turner, and the head of the company, Michael Miller, were both involved in the decision to terminate Petitioner. Therefore, Petitioner's lack of use of Respondent's discrimination and problem complaint processes was reasonable under the circumstances. Further, no adverse action has been taken against any employee of Respondent due to that employees? marital status. Thus, there are no similarly situated employees outside Petitioner's protected class to which Petitioner can be compared. Moreover, Petitioner offered no evidence at the hearing on January 16, 2013, that he lost any wages due to the alleged discrimination. Ultimately, however, the evidence was insufficient to demonstrate that Petitioner was terminated due to his separated marital status. As indicated, Ms. Turner honestly felt she could not trust Petitioner in a position that required her to have the highest confidence in that employee. Therefore, based on these facts, Respondent did not discriminate against Petitioner based on his marital status and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief. DONE AND ENTERED this 17th day of April, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2013. COPIES FURNISHED: Daniel Phillips, Esquire Phillips Law Firm 1413 North Randolph Circle Tallahassee, Florida 32308 Michael John Stebbins, Esquire Michael J. Stebbins, P.L. 504 North Baylen Street Pensacola, Florida 32501 Tiffany Rousseau Cruz, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent committed an unfair labor practice by discriminating against Petitioner on the basis of race and retaliating against Petitioner, in violation of the Florida Civil Rights Act, of 1992, as amended, Section 760.10 et seq., Florida Statutes (2008).
Findings Of Fact On September 28, 2005, Respondent AirTran Airways hired Petitioner, who is Black, as a customer service agent. During her entire term of employment, Petitioner was assigned to Respondent's station in Fort Lauderdale, Florida. Between January and June of 2006, Petitioner was issued five attendance warnings. During the same period, Petitioner was issued two written warnings that related to other violations of company policy.2 Nevertheless, on August 6, 2007, Petitioner was promoted to the position of station supervisor. Several months after her promotion, Petitioner was issued a "final warning" and suspended for three days. This occurred after an internal fraud investigation revealed that on several occasions, Petitioner received insufficient funds from customers in connection with round-trip and business class upgrades. Following the "final warning," Petitioner's employment was uneventful until February or March of 2008. At that point, Dan Mellgren, who had been employed with Respondent for approximately eight years, transferred to Fort Lauderdale from Chicago and assumed the position of station manager. Petitioner's claims of racial discrimination and retaliation relate solely to Mr. Mellgren. As explained during the final hearing, a station supervisor, the position held by Petitioner, is subordinate to one or more duty managers. In turn, duty managers report to the station manager, and the station manager reports to the director of the southern region. Mr. Mellgren admits that upon taking over as the Fort Lauderdale station manager, he made the decision that "swipe cards," which were limited in number (four or five) and permitted parking in a preferred lot closer to the terminal, would be distributed based on seniority. In addition, one swipe card was reserved for a supervisor who frequently ran work- related errands. As a result of Mr. Mellgren's change in policy, Petitioner lost her swipe card and was thereafter required to park in the regular employee lot. Although Petitioner claims that the reassignment of swipe cards was racially motivated, there is no credible evidence supporting the allegation. According to Petitioner, Mr. Mellgren committed other discriminatory acts. For example, Petitioner claims that she was not permitted to bring her children to the weekly staff meetings (which took place on her day off), while at least one white employee was permitted to do so. In contrast, Mr. Mellgren testified that all employees, including Petitioner, were authorized to bring well-behaved children to a staff meeting if said meeting occurred on the employee's day off. Mr. Mellgren further testified that at no time did he prevent Petitioner from bringing her children to a staff meeting. The undersigned accepts Mr. Mellgren's testimony as credible with respect to this issue. As an additional allegation of discriminatory conduct, Petitioner claims that Mr. Mellgren required her, on one occasion, to work eight hours without a lunch break. While Mr. Mellgren did not deny that this occurred, he explained that in the airline industry, customer service agents and supervisors will occasionally miss lunch breaks during peak hours. Any such missed lunch break is recorded in an "exception log," which enables the employee to obtain additional compensation. The undersigned accepts Mr. Mellgren's explanation concerning the incident and concludes that any deprivation of a lunch break was due solely to busy conditions at the airport. Petitioner further alleges that shortly after Mr. Mellgren's transfer to Fort Lauderdale, Mr. Mellgren forged her name on a security badge sign-out form. Mr. Mellgren testified, credibly, that this did not occur. Pursuant to AirTran Airways policy, which is outlined in the "AirTran Crew Member Handbook," an employee who is experiencing harassment based upon race or other protected classification is directed to handle the situation by first confronting the harasser politely. If the harassment continues, or if the aggrieved employee believes that a confrontation could result in harm, the employee should contact a supervisor or manager. If the complaint involves the employee's supervisor or manager, the employee is directed to take the complaint to the next level of management or to the human resources department. Petitioner admits that she did not report her issues with Mr. Mellgren to AirTran's human resources department or to a level of management superior to Mr. Mellgren. Petitioner did, however, report at least some of her problems with Mr. Mellgren to Everton Harris, a duty manager whom Petitioner trusted.3 There is no evidence that Mr. Harris communicated Petitioner's concerns to the human resources department, a superior, or anyone else. It is undisputed that on March 27, 2008, Petitioner arrived at the Fort Lauderdale station after attending training in Atlanta. Petitioner noticed that one of the gates was busy, so she decided to assist two AirTran customer service agents (Eduardo Baez and Donna Heghinian) who were working the counter. Shortly thereafter, in violation of AirTran policy, a revenue passenger (i.e., a paying customer) was bumped from a flight to accommodate a non-revenue flight attendant employed with Spirit Airlines. In the following days, AirTran's Internal Audit and Fraud Department investigated the incident to determine the identity of the employee responsible for replacing the revenue customer with the non-revenue flight attendant. During the investigation, statements were obtained from Mr. Baez and Ms. Heghinian, both of whom implicated Petitioner as the responsible party. Petitioner also provided a statement in which she vehemently denied responsibility. The findings of the investigation were subsequently provided to Ms. Kellye Terrell, an Employee Relations Manager with AirTran. Ms. Terrell is African-American. After reviewing the findings, Ms. Terrell determined that Petitioner should be separated from her employment with AirTran due to two violations of company policy.4 Ms. Terrell drafted a termination letter, which was provided to Petitioner on April 7, 2008. Although the termination letter was actually signed by Mr. Mellgren, it should be noted that Mr. Mellgren did not participate in the decision to terminate Petitioner. In addition, Mr. Harris, the only person to whom Petitioner communicated any of her complaints regarding Mr. Mellgren, did not participate in Petitioner's termination. At the time of Petitioner's termination, neither Ms. Terrell, nor any other decision-maker was aware of any complaints made by Petitioner to Mr. Harris concerning Mr. Mellgren. The undersigned finds that Respondent's decision to terminate Petitioner was based upon a good faith belief that Petitioner violated company policy by bumping a revenue passenger, as well as Petitioner's previous disciplinary history. Petitioner offered unrebutted testimony that her position was filled by a Caucasian female.5 The undersigned determines, as a matter of ultimate fact, that the evidence in this case is insufficient to establish that Respondent discriminated against Petitioner on the basis of her race. The undersigned also finds, as a matter of ultimate fact, that the evidence is insufficient to establish that Respondent retaliated against Petitioner.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 18th day of August, 2010, in Tallahassee, Leon County, Florida. Edward T. Bauer 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 18th day of August, 2010.
Recommendation In view of my finding that the Petitioner has engaged in a pattern of careless conduct, I recommend that the Board issue a written reprimand to her for having engaged in the conduct as found herein. in all other respects I recommend that the complaint be dismissed in its entirety. DONE and ORDERED this 29th day of July, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
