Findings Of Fact Between June 13 and June 24, 1977, Brooks was employed by one William Ballance as a carpet layers's helper on General purpose Building A project at the University of Florida in Gainesville. Brooks was paid directly by Mr. Ballance. Mr. Ballance was a subcontractor of Exclusive Carpets rather than an employee. Ballance was paid in full for his work as subcontractor. Brooks claims he is due the sum of $202.50 in payment for 57.5 hours of work at the rate of $3.00 per hour between June 13 and June 24, 1977. There is no evidence to indicate that any violations of Section 215.19, Florida Statutes, occurred. Rather, the evidence only shows that Brooks received no payment at all for the time in question.
The Issue The issue posed herein is whether or not the Respondent, Sherba Brothers, Inc., owes the Petitioner wages in the amount of $1,446.62 based on Respondent's failure to comply with the prevailing wage rate as set forth and defined in Chapter 215.19, Florida Statutes. Based on the entire record compiled herein, including the testimony of the witnesses and their demeanor, I make the following:
Findings Of Fact The Petitioner, Aldine Clinton Carter, Jr., was employed by Sherba Brothers, Inc., from approximately May 27, 1976 to October 14, 1976 as a licensed electrician (Dade County). The project in which the Petitioner was employed is the Dade County Courthouse, Project No. 4169, Code 915-018001 which entailed the complete renovation of the 12th floor. The Petitioner was employed by Respondent approximately 39 days, 2-1/2 hours, receiving wages of One Thousand Nine Hundred Thirty-Four Dollars and Twenty-Five Cents ($1,934.25). The prevailing wage rate for electricians in the subject area is Ten Dollars and Seventy-Five Cents ($10.75) which based on the work period involved here i.e. 39 days, 2-1/2 hours times the prevailing hourly rate equals Three Thousand Three Hundred Eighty Dollars and Eighty-Seven Cents ($3,380.87). This figure represents a difference of One Thousand Four Hundred Forty-Six Dollars and Sixty-Two Cents ($1,446.62) which as stated is the amount claimed by the Petitioner as now being due and owing. The Respondent offered no evidence to contest the fact that the Petitioner was in fact, employed as an electrician on the subject project. Some testimony was adduced by Respondent for the purpose of establishing that Petitioner was classified as a second or third class electrician. The proof falls short in this regard. There was no testimony establishing that there in fact exist such a classification(s) and the job classifications listed in the specification book for this project list only an electrician classification at the hourly rate of Ten Dollars and Seventy-Five Cents ($10.75). It is undisputed that the Petitioner is licensed as an electrician. Therefore, for purposes of this proceeding, I conclude that the Petitioner was in fact employed as a licensed electrician while employed by Respondent. However, the Respondent contends that as a nonunion subcontractor, it was not obligated to pay the prevailing wage rate and that the Petitioner was aware of this when he accepted the job for the lower wages. 1/ Secondly, the Respondent contends, that in any event the Petitioner failed to timely file an affidavit in protest of the asserted "noncompliance" as is set forth and defined in Chapter 215.19(3)(a)(1), Florida Statutes. In this regard, the last date the Petitioner was employed by Sherba Brothers was October 14, 1976. On October 31, 1976, the Petitioner sent a letter to the Public Works Department, protesting the fact that he was not paid the prevailing wages. That letter was forwarded to the administrative agency for that project and the county architect, Alf O. Barth, advised Petitioner, by letter dated November 15, 1976, that while his letter of October 31, 1976, contained the essential information regarding his claim, his letter was not notarized as required by state law. The general contractor, Rainey Construction Company and the subcontractor, Sherba Brothers (Respondent) were both notified by copy of Mr. Barth's letter to Mr. Carter that the amount as claimed by him was being withheld from their final payment until a final determination had been made on Petitioner's claim. Two days later on November 17, 1976, the Petitioner forwarded a notarized letter to the parties involved. The Petitioner testified that he made numerous inquiries from various project employees seeking to ascertain if in fact the Respondent was obligated to pay the prevailing wage rate. According to his unrefuted testimony, it was only after he left the Respondent's employ that he was able to determine that Respondent was indeed obliged to pay prevailing wages. This determination came through a communique from Messr., Luther J. Moore, Administrator of Prevailing Wage. The Respondent failed to introduce evidence showing that the prevailing wage rate was posted on this project during the period in which the Petitioner was employed. By so doing, the Petitioner urges and is now claiming that be was thwarted in asserting his rights under the prevailing wage law.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent shall pay the Petitioner the sum of $1,446.62 as claimed in the petition filed herein. RECOMMENDED this 7th day of April, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether or not Sanier Constructors, Inc., by its officers and/or agents or other representatives, failed to pay the Petitioner the prevailing wage rate as set forth and defined in Chapter 215.19, Florida Statutes, as alleged.
Findings Of Fact Royce J. Pombrio was employed as a sheet metal mechanic by C.P.M., Inc., an electrical subcontractor performing work for Sanier Constructors, Inc., on the construction of the Police Headquarters Complex for the City of St. Petersburg (C.P.M. Job No. 144). The prevailing wage rate for sheet metal mechanics performing similar work in the City of St. Petersburg is $9.56 per hour. As stated, Royce J. Pombrio, Petitioner, was employed by C.P.M., Inc., in June of 1977. Mr. Bobby R. Habgood, also an employee of C.P.M., served as Project and Acting Field Superintendent during the periods in question. Mr. Habgood credibly testified that the Petitioner performed superintendent's work during his (Habgood's) absence and that he recommended Petitioner for the sheet metal mechanic's position. Mr. Habgood credibly testified that Petitioner supervised two helpers and that the type of work performed by Petitioner was not the kind of work helpers were capable of performing as contended by Boyd Walters, the comptroller for C.P.M. Documentary evidence introduced into evidence revealed that during the period June 17, 1977, through October 28, 1977, Petitioner was paid an hourly wage of $5.75. During the period October 27, 1977 (approximately), through January 27, 1978, Petitioner was paid approximately $6.25 per hour and from the period of January 27, 1978, through June 17, 1978, Petitioner was paid an hourly wage of approximately $6.50 per hour. These total wages, when contrasted against the prevailing hourly wage rate of $9.56 per hour, result in a deficit of approximately $5,308.38. Based on the testimony of Petitioner Pombrio, the corroborative testimony of Messrs. Habgood and Donald Cochran, who was also employed by C.P.M. as a Superintendent and Project Manager, I conclude that the Petitioner was in fact performing sheet metal mechanic duties and as such was entitled to be paid the prevailing hourly wage rate of $9.56 per hour. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, That the Respondent, Sanier Constructors, Inc., by and through its agent/subcontractor, C.P.M., Inc., pay the Petitioner the sum of Five Thousand Three Hundred Eight Dollars and Thirty-Eight Cents ($5,308.38), which amount represents the difference in the amount Petitioner should have been paid according to the prevailing wage rate schedule and the actual hourly wages he in fact received while employed as a sheet metal mechanic for C.P.M., Inc. RECOMMENDED this 16th day of March, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Acco Mechanical Contractors, Inc. is a subcontractor in the construction of a regional juvenile detection center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services was in excess of $5,000.00 and pursuant to the provisions of Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of this project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between April 10, 1977 and October 16, 1977, Charles G. Mathis was employed by Acco Mechanical Contractors, Inc. as a plumber on this project and paid at the rate of $7.50 per regular time hour and $11.25 per overtime hour. Between October 16, 1977 and June 25, 1978, Mathis was employed on this project as a plumber and paid at the rate of $8.25 per regular time hour and $12.37 per overtime hour. The difference between the amount paid Petitioner for regular time hours worked and the prevailing wage is $2.50 per regular time hour during the period he was paid $7.50 an hour and $3.85 per hour for the period he was paid $11.25 for each overtime hour. The difference between the amount paid Petitioner for regular time hours and the prevailing wage was $1.75 for the period of time he was paid $8.25 for regular time hour and $2.73 for the period he was paid $12.37 for each overtime hour. The evidence conflicts concerning the number of hours the claimant worked. The Hearing Officer finds that the records of the Respondent Company, Exhibit 6, accurately reflects the number of regular and overtime hours the claimant worked on this project. Exhibit 6 reflects that the claimant worked 891.5 hours at a rate $7.50 an hour and 23 hours at the rate of $11.25 an hour, overtime. Exhibit 6 further reflects that the claimant worked 1,172 hours at a rate of $8.25 an hour and 76.5 hours at the rate of $12.37 per hour, overtime. The Petitioner was underpaid the amount of $2028.75 for regular time hours worked at the rate of $7.50 per hour; $2,051.00 for the hours worked at the rate of $8.25 an hour; $208.85 at the rate of $12.37 an hour; and underpaid $88.50 at the rate of $11.25 an hour, for a total of $4,577.10. Petitioner complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount paid for said hours. Said affidavit was filed within the time prescribed by statutes. Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Services is presently withholding $5,844.56 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
Recommendation Based upon the foregoing Findings of Fact anus Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $4,577.10 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November 1978, Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Byrd Booth, Jr., Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 Charles G. Mathis 942 Montego Drive West Palm Beach, Florida 33406
Findings Of Fact The employee herein, the Petitioner, is employed by DEP as a park ranger. DEP is an agency of the State of Florida. The Petitioner failed to report for work after June 10, 1995. He apparently had some health problem or complaint and was on sick leave for a time. October of 1995 was the first month that he was on leave without pay. He was on leave without pay when he was terminated, which occurred on November 27, 1995. The Petitioner was not receiving workers compensation benefits between his last day of work on June 10, 1995 and the termination date of November 27, 1995. His monthly rate of pay was $1,627.23. He was paid $1,627.62 in gross wages for 176 hours on November 30, 1995. He received $1,319.18 in net wages for November of 1995. The Petitioner was entitled to $71.74 in wages for 10.75 hours for November of 1995. DEP calculated the amount of overpayment by offsetting the wages issued to him in November of 1995 by the amount he was actually entitled to receive for that month for the 10.75 hours. Thereafter, on December 12, 1995, DEP notified the Petitioner, by certified mail, return receipt requested, that he had been overpaid $1,247.44 in net wages for November of 1995. That return receipt reflected that the Petitioner received that letter on December 15, 1995. The Petitioner failed to refund the money to DEP during the 1995 tax year and as yet, has still not refunded the money. Because the money was not refunded during the 1995 tax year, the Petitioner also owes DEP an additional $163.87, which was withheld for taxes on the payment or overpayment in question. Thus, DEP overpaid the Petitioner a total of $1,411.31 in wages for November of 1995.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Respondent, Department of Environmental Protection, enter a Final Order finding that the employee, the Petitioner, Eugene Breeze, owes $1,411.31 for a salary overpayment received by him in November of 1995. DONE AND ENTERED this 1st day of November, 1996, in Tallahassee, Florida. P. MICHAEL RUFF 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 4th day of November, 1996. COPIES FURNISHED: Mr. Eugene Breeze 1110 Florida Avenue Lynn Haven, Florida 32444 Melease Jackson, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Petitioner is entitled to training and education at Respondent’s expense in order to return him to suitable gainful employment.
Findings Of Fact Respondent, the Department of Financial Services, Division of Workers’ Compensation (Respondent or Department), is the agency of the state of Florida charged with administration of medical care coordination and reemployment services that are necessary to assist employees injured in the workplace to return to suitable gainful employment. Petitioner, Nathan Lavon Florence, is a 37-year-old man residing in Pensacola, Florida. Petitioner received his Graduation Equivalent Diploma in 2001, and held a number of different jobs between 2001 and 2007, including line cook, sales associate, construction laborer, and warehouse worker. Petitioner began an electrician apprenticeship program in 2007, which he completed in May 2012. Petitioner began working for Barnes Electrical Company, Inc. (Barnes), as an electrician’s helper in August 2013. Barnes paid Petitioner biweekly at the rate of $13 per hour for regular work and $19.50 per hour for overtime. On July 16, 2014, Petitioner suffered an on-the-job injury in which his right hand was crushed by a light pole. A workers’ compensation claim (the underlying claim) was filed with Amerisure Insurance Companies, Barnes’ workers’ compensation carrier. Petitioner’s authorized treating physician was Dr. Steven Kronlage. On October 22, 2015, following three surgeries and a period of treatment, Dr. Kronlage determined Petitioner had attained maximum medical improvement and referred Petitioner for pain management. Dr. Kronlage assigned Petitioner a permanent impairment rating of 15 percent and assigned the following work restrictions: medium-level work, no use of power tools with right hand, and no lifting more than 20 pounds with right hand. According to the U.S. Department of Labor, medium-level work limits lifting to a maximum of 50 pounds. Barnes was unable to offer Petitioner employment that met his work restrictions. The parties to the underlying claim entered into a joint stipulation on January 14, 2016. The joint stipulation “resolv[ed] all issues” and provided, in pertinent part, as follows: The parties agree that the Claimant’s average weekly wage shall be amended upward by $7.59 resulting in a new average weekly wage of $386.09. The Employer/Carrier shall recalculate Claimant’s past indemnity benefits utilizing the average weekly wage of $386.09 and shall pay past due benefits utilizing this average weekly wage plus penalties and interest. Petitioner was represented by counsel in the underlying claim. On November 8, 2015, Petitioner applied to the Department for a vocational assessment to determine the best way to return Petitioner to suitable gainful employment. On November 19, 2015, the Department issued Petitioner a decision letter determining that the best way to return Petitioner to suitable gainful employment was through job placement assistance. Cynthia Baker was the vocational rehabilitation consultant assigned to Petitioner’s case. Ms. Baker based her recommendation for job placement assistance on Petitioner’s educational background, his pre-injury average weekly wage (AWW), his work restrictions, and the “transferable skills” Petitioner could bring to the job market (e.g., knowledge of the English language; knowledge of materials, methods, and tools used in construction and repair of housing; and knowledge of machines and tools). Ms. Baker conducted a labor market survey to identify job openings appropriate for Petitioner’s skill level and work restrictions. Her goal was to identify jobs which could return Petitioner to employment at, or close to, his pre-injury AWW. The labor market survey identified a variety of jobs available in the Pensacola area which Ms. Baker deemed suitable to Petitioner’s skill level and work restrictions. Potential jobs included customer service representative for Florida Pest Control, retail sales associate for T-Mobile, asset protection/loss prevention specialist for Home Depot, and vehicle transporter for Hertz. Ms. Baker prepared a résumé for Petitioner to utilize in applying for jobs identified in the labor market survey, and she connected Petitioner with Michelle Godson at CareerSource, the customer service specialist who would further assist Petitioner with employment opportunities in the area. Petitioner did not apply for any of the jobs identified by Respondent through the labor market survey. Rather, Petitioner found employment on his own and sought no further assistance from Respondent. Petitioner began work in December 2015 with WIS International (WIS) as an inventory associate. The job entails traveling to, and conducting inventory for, a variety of retail stores in the region. Petitioner utilizes a hand-held scanner to complete retail inventories. Petitioner’s rate of pay is $8.50 per hour and he is paid on a weekly basis. Petitioner works part-time for WIS, thus his earnings are below his pre-injury AWW. Petitioner has no plans to apply for a full-time position with WIS, although full-time work has become available with WIS during his employment. Petitioner invested significant time and effort toward his electrician apprenticeship, and desires a career in a field he enjoyed as much as electrician’s helper. Petitioner has requested the Department provide him with a training and education program to become a radiology (x-ray) technician. Specifically, he would like to attend Pensacola State College’s Radiography Program. Mary Cilek is a senior management analyst supervisor with the Department and reviewed Petitioner’s request for training and education. Ms. Cilek researched information on the internet regarding the personal qualities of, and physical demands on, radiology technicians, as well as the educational requirements to become a radiology technician. No competent evidence was introduced on which the undersigned could make a finding as to the particular educational requirements to become a radiology technician, or whether Petitioner would be able to perform the duties of a radiology technician within his work restrictions.1/ Petitioner’s argument in this case is twofold: First, the Department should assist him to obtain a career, rather than “any old job” that would allow him to earn at or near his pre- injury AWW. Second, Petitioner objects to the Department’s reliance on his pre-injury AWW as the basis for a labor market survey. Petitioner maintains that his pre-injury AWW was artificially low because he was out of work, or working part- time, during some of the weeks prior to the injury due to an illness. Section 440.491(1)(g), Florida Statutes, defines “suitable gainful employment” as employment . . . that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation, and injury, and which offers an opportunity to restore the individual as soon as practicable and nearly as possible to his or her average weekly earnings at the time of injury. While Petitioner maintains that none of the jobs identified was reasonably obtainable, given Petitioner’s work history, education, and work restrictions, Petitioner introduced insufficient evidence on which the undersigned could make that finding.2/ In this case, Petitioner’s AWW was established by the stipulation. Petitioner introduced no evidence that he had moved to set aside the stipulation or otherwise challenge the determination of his AWW. Petitioner did not claim that the stipulation was obtained by either fraud or duress, or based on mistake of fact.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Petitioner, Nathan Lavon Florence, is not eligible for training and education services at Respondent’s expense. DONE AND ENTERED this 1st day of July, 2016, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 1st day of July, 2016.
Findings Of Fact Genaro H. Rodriguez, Petitioner, was employed by Y.A.C. Electric Corporation, Respondent, as an electrician on the City of Miami Fire Station #5 project during the period February 1976 through September 1977. He did not work on this project every working day during this period. During most of the period involved Petitioner held a Dade County license as a journeyman electrician. Before the job was completed he was licensed as a master electrician. Petitioner was the electrical foreman on the job for Respondent. This project came under the Prevailing Wage law. While working on this project Petitioner was paid $6.50 per hour and later $6.75 per hour. The prescribed prevailing wage for electricians on this project was $10.75 per hour. The difference between the amount Petitioner received while working on this project and the prevailing wage he should have received is $2,429.65. F. Bilboa and Associates was the general contractor on this project and Y.A.C. Electric Corporation was a subcontractor for the electrical work. At the commencement of the project Respondent advised its employees that they would be paid less than the prevailing wage while the work was in progress and when the work was completed they would be paid the difference in a lump sum between what they had been paid and the prevailing wage. Respondent had been a subcontractor with General Electric as prime contractor on an earlier prevailing wage job and pursuant to a similar agreement the prime contractor paid the lump sum difference to the workers to satisfy the prevailing wage law at the completion of the project. In this case, Respondent has been unable to collect what is owed him by the prime contractor and has, therefore, not fulfilled his agreement with Petitioner.
The Issue Whether Respondent, MThree Corporate Consulting, LTD (“MThree”), subjected Petitioner, Sidara Chau, to unlawful employment practices on the basis of her race or her sex in violation of section 760.10, Florida Statutes.
Findings Of Fact The following Findings of Fact are made based on the exhibits admitted into evidence and the testimony presented at the final hearing: Ms. Chau, an Asian (Cambodian) woman, was at all times material to this matter employed by MThree. Petitioner alleges that Respondent discriminated against her on the basis of her race and sex. FCHR determined there was no reasonable cause to find Respondent discriminated against Petitioner. Dissatisfied with FCHR’s findings, Petitioner filed her Petition for Relief from Unlawful Employment Practices and Request for Administrative Hearing requesting this hearing. MThree is an international corporation that provides consulting services to assist clients with technology projects. An arm of MThree’s business includes the Alumni Associate program, which hires recent college graduates, provides training, and places the program associates with clients with the goal of the client hiring MThree’s program associates as permanent employees of the client. Given that MThree is an international corporation, and given the number of known employees, MThree is an employer. See § 760.02(7), Fla. Stat. By letter dated August 31, 2017, MThree hired Ms. Chau as an Alumni Associate for production support with the expectation that she would be assigned to work onsite with one of MThree’s clients. Ms. Chau’s job responsibilities included assisting customers with instruments and client data quality checks. Based on the offer letter, Ms. Chau would be paid an annual salary with periodic increases subject to successful performance reviews after every six month of being onsite, through the end of the agreement. After training, Ms. Chau earned $42,000 per year. She anticipated receiving an increase to $45,000 after her six month review. Throughout her employment with MThree, Ms. Chau’s supervisor was Emily Keefe. As an Alumni Associate, Ms. Chau was required to complete training for approximately four weeks before beginning work onsite at the client’s business location. The training class included 18 other new employees. The trainers for the training class, Keith Dauris (general trainer for Jacksonville production class) and David Hodgins (primary trainer for the production class), expressed concerns about perceived deficiencies in Ms. Chau’s performance during the training. Specifically, Mr. Dauris conducted an assessment of the performance of each trainee based on categories described as follows: Very Good: No issues at all. Will hit the ground running; Good: No major concerns. Should settle in well on site; Behind on the learning curve: Still need work. Will take time to settle in on site and will need support; and Major concerns: Serious concerns as to their ability to hold down the job. Mr. Darius placed Ms. Chau in the category of “major concerns” and further commented, “Really does not understand coding at all. General problem skills is [sic] lacking. Serious concerns about her ability to perform on site.” Mr. Dauris shared his assessment with Mr. Hodgins who then communicated his concerns with Ms. Keefe. Similar to Mr. Dauris, Mr. Hodgins was concerned about Ms. Chau’s struggle with technical content, and asked whether she could benefit from additional training. Despite the concerns about Ms. Chau’s performance, she was assigned to work at Deutsche Bank. In October 2017, Ms. Chau began working at Deutsche Bank as a production support analyst. Ms. Chau’s supervisor at Deutsche Bank was Ranjith S. Nair, a line manager and permanent employee of Deutsche Bank. At all times material to this matter, Mr. Nair was not employed by MThree. Ms. Chau testified that Mr. Nair treated her unfairly by refusing to help her on projects and refusing to train her. Instead, he helped other employees namely, Boubacar Barry. Ms. Chau stated that when she expressed interest in disaster recovery projects, Mr. Nair refused to give her the opportunity to complete the training. She also claimed that he did not train her on other work tasks. While Ms. Chau did not believe the training Mr. Nair provided at Deutsche Bank was sufficient, there is no evidence in the record that she asked for training through MThree until after her performance review. Ms. Chau also testified about two incidents where her work performance was impacted by Mr. Nair’s mistakes. The first incident was related to an assignment request, which required Mr. Nair’s approval to complete. Mr. Nair delayed the necessary approval, which caused the work she performed to be cancelled. The second incident involved Mr. Nair yelling at her when she was asked to enter a particular command on a website and the website failed. Ms. Chau testified that Mr. Nair claimed she was responsible but he gave her the incorrect website. Mr. Nair did not testify at the hearing and there was no evidence offered at the hearing to corroborate Ms. Chau’s assertions. Ms. Chau testified that she never received complaints about her work performance while she worked at Deutsche Bank. However, Mr. Nair’s review reflects he had concerns with her performance. On or about April 18, 2018, Mr. Nair completed a six month performance review for Ms. Chau. The review assessed her performance in several areas, including: 1) application of skills in core role; 2) behavior at work and collaboration; 3) objectives; 4) meeting objectives; and 5) rating. The overall performance rating scale was as follows: Rating 5 All objectives fully achieved and most have been exceeded throughout the year and Outstanding levels of the required [behaviors] are always demonstrated across the majority of job competencies Rating 4 All objectives fully achieved and some have been exceeded throughout the year and All required [behaviors] have been demonstrated and consistently exceeded Rating 3 Fully achieved key objectives throughout the year and All required [behaviors] have been demonstrated Rating 2 One or more key objectives not achieved and/or Further development required for current role and/or behavior compares les [favorably] relative to expectations Rating 1 Performance unacceptable and/or Objectives not achieved and/or [behavior] levels not achieved A second rating scale used by line managers focused on potential for improvement, which provided as follows: A-Very high potential Capable of thinking of the “bigger picture,” is a good problem solver and very self-motivated B-High potential Performs very well in current role with potential to do more if given stretch assignments to help prepare for the next level C-Medium potential More focus on “tactical” thinking than “strategic” thinking but coaching and/or mentoring would help broaden that focus D-Low potential A valuable asset but requires encouragement to develop further in a number of areas Effective performer, but without coaching on how to become more innovative, achieve more lateral thinking etc. they may have reached their career potential C-Very low potential[1] No evidence that potential would improve even with extensive coaching or mentoring Consider reassignment or exit from the organization The review format permitted the associate to review him or herself, and then the manager would provide a final review. Petitioner provided favorable comments on her own behalf regarding her work performance in all categories. Ms. Chau’s evaluation of her performance was a clear contrast from Mr. Nair’s evaluation. In the evaluation, Mr. Nair identified a number of issues with Ms. Chau’s work performance. He commented that Ms. Chau needed improvement with the quality of her work, adhering to deadlines, and improvement of organization and communication skills. Mr. Nair reported 1 The rating range designated for managers only included to rating designated as “C.” However, a reasonable inference can be made that the second “C’ was due to a typographical area and was intended to be an “E” rating. that Ms. Chau needed to improve commitment to completion of assigned tasks. He also noted that Ms. Chau needed to be able to operate independently and proactively contribute to team tasks. The objectives set for Ms. Chau were also an area where Mr. Nair believed Ms. Chau could improve. Specifically, he stated that “Objectives/ Targets required by role is [sic] not met. Expect improvements in all areas noted in earlier sections.” Overall, Mr. Nair assigned a 2 out of 5 performance rating and “D” potential rating. In addition to the ratings, he commented that Ms. Chau’s performance was below the standard expected at the bank. He recommended that Ms. Chau improve her technical and organizational skills and engage in effective dialogue with stakeholders. Despite the low performance review, Mr. Nair was willing to give Ms. Chau additional time to improve her performance. After the evaluation, Mr. Nair discussed his concerns with Ms. Keefe who communicated the results to the MThree leadership team. Ms. Nair discussed the review with Ms. Chau. A few days later Ms. Chau emailed Ms. Keefe with concerns about her review and complaints that Mr. Nair treated her unfairly related to “something else personal.” Ms. Chau later withdrew her request for Ms. Keefe to escalate her complaint because she had spoken with Mr. Nair about areas for improvement. By June 2018, Deutsche Bank was prepared to progress toward terminating Ms. Chau from her assignment at Deutsche Bank due to low performance. Patti Burge, Director of Safety and Soundness at Deutsche Bank, and Ms. Keefe agreed Ms. Chau’s last day at Deutsche Bank would be July 27, 2018. Although Ms. Chau’s last day working onsite was July 27, 2018, she received payment from MThree through August 31, 2018. Ms. Keefe could not find a suitable different job site at which she could place Ms. Chau, and, thus, she was terminated from her employment with MThree as well. Ms. Chau offered Mr. Barry, an African man, as a comparator in this case. She believed Mr. Barry was similarly-situated and treated more favorably than her. He was trained on different projects and received help when needed. She asserted that he also received a six month raise for the same job. However, during training, Mr. Barry was placed in the “good” category and was assigned a 4 out of 5 rating for his work performance. Finally, Ms. Chau testified Mr. Barry was permitted to work from home, which Ms. Chau believed was favorable treatment. However, Ms. Chau by her own admission was also permitted to work from home. While not offered as a comparator, another associate, S.W., an African- American man, also scored 2 out of 5 for his six month review and was terminated on the same day as Ms. Chau. It is clear Petitioner believed she was treated unfairly by Respondent and by Mr. Nair in particular. However, Petitioner identified no instance of racially-disparaging direct comments or behavior directed toward her. There was also no evidence of disparaging comments related to her sex. In fact, Ms. Chau wrote in her email that her supervisor, Ms. Keefe, was like a sister to her. Although Respondent terminated another person at the same time as Ms. Chau, there was no evidence of a pattern of conduct, or inference of racial discrimination directed toward Asian women. Further, there was no evidence to support a finding that the decision to terminate Petitioner from employment was made due to Petitioner’s race or sex. Rather, the decision was based on dissatisfaction with Petitioner’s job performance while assigned to work at Deutsche Bank. There was also no evidence to prove that a person of a different race or sex than Petitioner, who was otherwise similarly-situated to Petitioner, was treated more favorably than Petitioner.
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 Petitioner’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S Yolonda Y. Green 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 9th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Sidara Chau 705 Pennsylvania Avenue Winchester, Virginia 22601 (eServed) Ian M. Jones, Esquire Smith, Gambrell & Russell, LLP 50 North Laura Street, Suite 2600 Jacksonville, Florida 32202 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
