The Issue Whether Respondent was Petitioner’s employer at the time of Petitioner’s alleged unlawful termination, or is otherwise liable to Petitioner for alleged unlawful termination under any theory of successor liability.
Findings Of Fact Petitioner was employed as a Legal Assistant by Igler & Dougherty Law Offices, P.A. (Igler & Dougherty), in Tallahassee, Florida, for approximately three-and-a-half years. Petitioner was terminated by Igler & Dougherty by letter dated February 6, 2012, allegedly for failure to make “adequate progression to date.” Petitioner alleges that she was unlawfully terminated after treatment for migraine headaches during an extended hospital stay. Respondent, Adams and Reese, LLP, is a limited liability law partnership headquartered in Louisiana, with offices in Louisiana, Mississippi, Tennessee, Texas, Alabama, Florida, and Washington, D.C. Charles P. Adams, Jr., is Respondent’s Managing Partner. In mid-summer 2012, Respondent approached George Igler, Partner in Igler & Dougherty, about the possibility of joining Adams and Reese to establish the firm’s Tallahassee office. Mr. Adams was primarily responsible for all discussions with Mr. Igler and other members of Igler & Dougherty who eventually joined Respondent. On October 1, 2012, Respondent announced the official opening of its Tallahassee office. The new office was located at 2457 Care Drive, the building that formerly housed Igler & Dougherty. At no time before October 1, 2012, did Respondent maintain an office or employ individuals in Tallahassee, Florida. Mr. Igler and Mr. Dougherty joined Respondent as partners. Other former Igler & Dougherty lawyers joined Respondent as partners and associates. Respondent also hired some of the support staff from Igler & Dougherty. Respondent did not hire Petitioner. Respondent did not merge with Igler & Dougherty, did not acquire the assets of Igler & Dougherty, and did not assume the liabilities of Igler & Dougherty. Igler & Dougherty retained its accounts receivable and work in progress, and Mr. Igler and Mr. Dougherty continued to wrap up the business of Igler & Dougherty after joining Adams and Reese. Respondent is managed by its Managing Partner and an Executive Committee comprised of six partners. None of the attorneys or employees of Igler & Dougherty hired by Respondent are Executive Committee members. Respondent has two classes of partners, capital partners and income partners. Only capital partners have an ownership interest in the firm. Only one of the seven attorneys hired by Respondent from Igler & Dougherty, Mr. Igler, is a capital partner. On October 12, 2012, the date Respondent opened its Tallahassee office, Respondent had 114 additional capital partners, none of whom had worked for Igler & Dougherty. At no time did Respondent employ Petitioner. Respondent did not participate in Petitioner’s termination nor did it have any role in the decision to terminate her. At the time Petitioner filed her Charge of Discrimination with the Commission, the Florida Secretary of State website showed that Igler & Dougherty, P.A., was an active Florida registered corporation.
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 filed by Kelli Lawhead in FCHR No. 2013-00581. DONE AND ENTERED this 21st day of July, 2014, 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 21st day of July, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lauren F. Strickland, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Leslie A. Lanusse, Esquire Adams and Reese, LLP 701 Poydras Street, Suite 4500 New Orleans, Louisiana 70139 Lauren L. Tafaro, Esquire Adams and Reese, LLP 701 Poydras Street 4500 One Shell Square New Orleans, Louisiana 70139 Cheyanne Costilla, General Counsel Florida Commission of Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Does the Florida Commission on Human Relations have jurisdiction of this matter? Does the Division of Administrative Hearings have jurisdiction of this matter? Did Respondent discharge Petitioner for refusal to be tested for drugs or drug use?
Findings Of Fact Petitioner worked for Respondent for about 60-days prior to May 4, 2001, as a tractor-trailer driver. Respondent is in the logging business. On May 2, 2001, Petitioner injured his back while on the job. He did not report this to his supervisor who was operating equipment deep in the woods. Petitioner told a co-worker, who was moving between the supervisor's location and Petitioner's location, to tell the supervisor he had hurt himself. On the evening of May 2, 2001, Petitioner was in severe pain. He called his employer the morning of May 3, 2001, and reported that he could not come to work. The company's business manager, Charlotte Lanier, advised him not to go to the hospital emergency room and made an appointment at 1:30 p.m. that afternoon for him to see a Chiropractor, Dr. Hutchens, who had treated other employees. Petitioner agreed to see Dr. Hutchens. Charlotte Lanier called the insurance company and found out that Petitioner had to be referred by a medical doctor to see Dr. Hutchens and had to have a drug test. Petitioner saw the Chiropractor, Dr. Hutchens, and was X-rayed, and given message therapy. He was in contact with Mr. Tuten's office. Ms. Lanier had been getting drug tests done by Dr. Hutchens; however, she called the doctor and found out that he was not testing. Ms. Lanier then had to make an appointment with another doctor for the test. She called Dr. Hidalgo and arranged for Petitioner to go there; but that doctor's office was getting ready to close early on Friday afternoon. Ms. Lanier then called Dr. Hutchens office again for Petitioner, but she did not connect with him. Petitioner finally got word from Ms. Lanier to go to Dr. Hildago's office for a drug test. However, when he got there, he was told he needed a referral from the office of the medical doctor, Dr. Mohammed. Petitioner went to Dr. Mohammed's office for the referral, but when he got there, Dr. Mohammed's office would not write a referral without an examination. By the time Petitioner had finished with Dr. Mohammed's examination, Dr. Hidalgo's office was closed. At this point, Petitioner went to his employer's office to pick up his pay check. What happened there is subject to controversy and conflicting testimony. Petitioner testified that when he got to the office of the employer company, Mr. Tuten and several of his friends were standing in the workshop/garage. Petitioner told Mr. Tuten that he was unable to see the last doctor because of Dr. Mohammed's insistence that he be examined prior to writing a referral. Mr. Tuten and others testified that Petitioner came in and was very agitated. Petitioner told Mr. Tuten that because of the pain he had had the previous night, he had taken drugs belonging to a friend and smoked a marijuana cigarette. Mr. Tuten fired Petitioner for violating the company's drug policy.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that if the Commission determines the Division does have jurisdiction, or that, for reasons of judicial economy it wishes to adopt the finding and conclusions herein as its own, the Commission enter its order denying relief. DONE AND ENTERED this 24th day of October, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 H. B. Tuten H. B. Tuten Logging, Inc. 3870 US Highway 90, South Perry, Florida 32348 Michael D. Metz 2946 Dorman Road Perry, Florida 32348 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was wrongfully terminated from her position as a payroll clerk with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Prior to November 1994, Petitioner was employed by Markings and Equipment Corporation, first as a receptionist, later as a payroll clerk for several years. She had a good working relationship with management and staff. In November 1994, Edward T. Quinn and two other investors purchased the assets of Markings and Equipment Co. and established a new corporation named Mill-it Striping, Inc., a Florida corporation. On November 7, 1994, Mill-It Striping began operations. Edward T. Quinn was named Vice-President and Chief Operating Officer. Petitioner and one other person were retained as office staff. Other employees of the former owner were retained as field workers in their same positions. Petitioner and the other employees were retained on a 90-day probationary period. All employees were required to complete application forms for the new company. The organization of the company was revamped and operating policies were changed. Petitioner and Quinn became embroiled in disputes over policy and procedures on a nearly daily basis. Quinn's management style was gruff and unprofessional. Foul language was directed toward Petitioner's work by Quinn on a regular basis. There was insufficient evidence to prove that Quinn's derogatory remarks of a social nature were directed toward Petitioner. On December 5, 1994, Petitioner was terminated from her position as a payroll clerk. Quinn alleged that Petitioner was terminated because of her poor work performance and reporting to work late on more than one occasion while on probation. Petitioner, who is an African-American female, was replaced in her position by a Caucasian female. Respondent's company presently has been administratively dissolved, as of September 24, 1999. There is no evidence that the corporation is active, is a subsidiary to another company, or that it has any remaining assets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2000. COPIES FURNISHED: Azizi M. Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Edward T. Quinn as former Vice President Mill-It Stripping, Inc. 107 Shore Drive Longwood, Florida 32779 Valerie A. Roberts Post Office Box 543 Maitland, Florida 32751 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149
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 Whether Petitioner was discriminated against based on his race or in retaliation for participation in a protected activity in violation of Chapters 760.10(1)(a) and (7), Florida Statutes.
Findings Of Fact Petitioner, Charles Rogers, is a Caucasian male. At all times relevant to this Petition, Petitioner was employed by the Florida Department of Corrections as a correctional probation officer. He was supervised by Susan Bissett-Dotson, a Caucasian female. In late August, Petitioner had a person he supervised come into his office to discuss pending warrants for the person's arrest. When advised of these warrants, the probationer ran, causing Petitioner to have to pursue him through the office. On September 6, 2001, as a result of the foregoing incident, Petitioner received a written reprimand for violation of office policies and improper use of force. Petitioner failed to follow a policy requiring notice to others in the office when an offender might be arrested in the office. Adam Thomas, the circuit administrator, reviewed the use of force and determined Petitioner had used force appropriately. Nevertheless, the reprimand from Susan Bissett-Dotson contained reference to improper use of force in addition to failure to follow office procedures. Petitioner filed an internal grievance contesting that portion of the reprimand referencing improper use of force. His grievance was heard and the reprimand was reduced to a record of counseling, deleting any reference to an improper use of force. Petitioner's pay, benefits, ability to be promoted, as well as all other aspects of his employment were not affected either by the original reprimand or the subsequent record of counseling. Petitioner's caseload was reassigned four times within a 14-month period. These reassignments occurred between August 29, 2000, and October 2, 2001. Only one of them took place after his grievance. The reassignments did not involve a physical move to a different office; rather, Petitioner received a new set of offenders to supervise whose files were in various stages of development. The reassignments did not involve any material changes in his duties or responsibilities. There was no amount of greater or less prestige associated with any of the caseloads he received. The reassignments did require him to become familiar with a new area and a new group of persons. Petitioner was required to do extensive work to re-develop these files, which task was onerous. The decision to reassign Petitioner's caseloads was taken in relation to the reassignment of other personnel based upon several factors, including but not limited to: assignments from the judiciary; the geographic location of the various officers vis-à-vis supervised offenders; the officers' expressed willingness to accept a new caseload; the officers' qualifications to handle specialized caseloads; and the equitable distribution of the cases. One of the reassignments was caused when Petitioner was out for more than two weeks, which requires a mandatory reassignment of cases. The desires of Petitioner were not considered, although Ms. Bissett-Dotson gave full consideration to the wants and desires of the others who were moved. Petitioner alleges that he was yelled at in a meeting for having an overdue assignment; he produced an e-mail berating him for a late case; and records were introduced that showed the case was not overdue. Records were introduced about the redistribution of another officer's caseload. Of the 31 cases reassigned, 20 were assigned to Petitioner. This occurred on November 14, 2001. Petitioner complained that he was not allowed to work before 8:00 a.m. Ms. Bissett-Dotson was questioned as to whether she allowed Petitioner to work prior to 8:00 a.m. She stated that she had denied his request to work before 8:00 a.m. because 8:00 a.m. to 5:00 p.m. was the standard work day for the office, and it was necessary to have coverage during those hours. Because of various requirements, such as working during court, some officers had to be off during normal hours. Other officers had to be out of the office more than others. All of this affected when and whether one could deviate from standard office hours. On three occasions, Petitioner's firearms locker was accidentally used by other officers. On at least one of these occasions, a camera was locked in the locker along with Petitioner's lock. Petitioner was not subject to any discipline as a result of these incidents and Susan Bissett-Dotson was approached by other probation officers on each of the occasions and informed that each had been a mistake. Ms. Bissett-Dotson was satisfied with these explanations. While only one of the reassignments took place after the grievance, clearly Ms. Susan Bissett-Dotson was not fair and equitable in her treatment of Petitioner.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order indicating clearly that exercise of career service and other employment rights guaranteed by statute are subject to Section 760.10, Florida Statutes, protection, and that the Petition herein is dismissed not because it was not proved, but because it was not properly pled. DONE AND ENTERED this 15th day of November, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 STEPHEN F. DEAN 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 15th day of November, 2002. Charles Rogers Post Office Box 331 Worthington Springs, Florida 32597 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether, Respondent discriminated against the Petitioner based upon her race or sex and whether she was subjected to retaliation after complaining to the Respondent concerning the alleged harassment.
Findings Of Fact The Petitioner became employed on October 10, 2005, at HOM. She worked as a general laborer and finisher at times pertinent to this case. HOM is a manufacturer of mobile and modular homes at its Lake City, Florida, plant. It has in excess of 15 employees and is therefore a statutory employer with the meaning of Section 760.02(2), Florida Statutes (2006). The Petitioner has a number of blemishes on her employment record with the Respondent. She had performance problems prior to the events leading up to the termination of her employment. She was disciplined for an incident occurring on December 21, 2005, for failure to report to required overtime work, as well as for insubordination. Steve Weeks, the Respondent's Production Manager, deemed the failure to report for required overtime work to be insubordination and a violation of the company's attendance policy. She received an employee warning notice on May 3, 2006, regarding a perceived need for her to "pickup the pace and for her attendance." Mr. Weeks told Ms. Pate that she needed to increase her production pace and needed to work on her attendance and work quality. The Petitioner was given to understand that her employment could be terminated for further violations. The Petitioner maintains she has been subjected to "harassment." Specifically, she complains that her co-workers in the finishing department harassed her by "bumping into me and playing threatening songs, threatening, talking about they were going to beat my behind, you know, just constantly threatening." Her complaints concern Priscilla Berry, Katherine Belford, and Melody Adkins. Melody Adkins is a white female, Priscilla Berry and Katherine Belford are African-American females. Most of the Petitioner's complaints concern Katherine Belford and Priscilla Berry. The Petitioner admits that these individuals never indicated they were committing any alleged harassing acts because of the Petitioner's race or gender. She further acknowledges that the harassment "may not have been for my race" and that the harassment "might have been because I was a female and I was doing my job and I didn't hang with that certain group" of females. No male employees are alleged to have threatened or harassed the Petitioner and she never complained to her direct supervisor, Tommy Smith, concerning any problems related to her race or gender. Ms. Pate spoke to Supervisors Weeks and Smith in an effort to stop the harassment and threats. In response to her complaints Mr. Weeks talked to the supervisors and employees involved in the incidents Ms. Pate complained about and told them they were not to bring personal problems to the work place. Mr. Smith separated the Petitioner from Ms. Belford and Ms. Berry because of the antagonism that had developed between them. He directed her to perform her duties in a different location in order to alleviate the hostilities. The Petitioner called the HOM corporate office on June 27, 2006, and spoke to Mr. Jeff Nugent. Mr. Nugent directed the Regional Human Resources Director, William Allen, to investigate the Petitioner's complaints. Mr. Allen spoke to the Petitioner by phone on June 29, 2006, and arranged a meeting with her for July 11, 2006. The Petitioner told Mr. Allen during that phone conversation that she was being harassed and threatened and that the supervisor was not doing anything to alleviate the matter. She told him that "they" were discriminating against her because she was a black woman and the supervisors were still doing nothing to alleviate her harassment, in her view. The Petitioner met with Mr. Allen on July 11, 2006. Mr. Allen also met with other employees. The plant had been shut down during the first week of July and immediately thereafter on July 11, 2006, the Petitioner had the meeting with Mr. Allen. She found him responsive to her complaints. He took notes during the meeting with the Petitioner and with the other employees he interviewed. The Petitioner complained that she was being harassed and threatened by the above-referenced women on the job, that she "went up the chain of command" to get the harassment to stop but that it had not stopped. She did not complain to Mr. Allen that she was being harassed based on her gender or her race, however. Mr. Allen determined that the problem between Ms. Pate and the other employees was based upon difficulties in "getting along well" or, in effect, personality differences. He also determined that the Respondent had responded to the prior complaints by separating Ms. Pate from working with the employees about whom she had complained. On July 13, 2006, Mr. Smith observed Ms. Pate out of her assigned work area while using a cell phone. The use of a cell phone during working hours, and in working areas, violates company policy. Mr. Smith asked Ms. Pate to report to the plant office to speak to Mr. Weeks. Upon arriving at the office, the Petitioner told Mr. Smith and Mr. Weeks that she was leaving because she did not feel well. Mr. Weeks told Ms. Pate that she could leave the premises, but she would have to bring in a physicians note to prevent the absence from being unexcused. She returned to work the next scheduled work day and did not bring in a physician's note as directed. The previous work day's absence was thus an unexcused absence. Mr. Weeks decided to terminate the Petitioner's employment for her attendance problems and for her failure to submit a doctor's note justifying her absence of July 13, 2006. Her unexcused lack of attendance caused her to have excessive absences in violation of the Respondent's adopted attendance policy. The Petitioner's employment was terminated on July 17, 2006. The Petitioner never told Mr. Weeks that she felt her employment was being terminated in retaliation for her having called the corporate office to complain, or that she was being harassed because of her race and gender.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 10th day of December, 2007, 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 10th day of December, 2007. COPIES FURNISHED: Deborah Pate 862 Northeast Coldwater Street Lake City, Florida 32055 Kevin E. Hyde, Esquire Foley & Lardner LLP One Independent Drive, Suite 1300 Post Office Box 240 Jacksonville, Florida 32201-0240 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 16, 2001.
Findings Of Fact Petitioner was employed by Respondent, Toucan's Restaurant, as a cocktail waitress. The record is unclear as to when she began her employment there. Her last day on the job was March 18, 2000. The record is not entirely clear as to the exact legal entity that owned Toucan's Restaurant (the restaurant). However, Mary Ann Pistilli was an apparent officer of the corporation which owned the restaurant and acted in the capacity of manager. There is no evidence in the record showing that Mary Ann Pistilli's husband, Craig Pistilli, was an owner or manager of the restaurant. However, he was sometimes at the restaurant. The extent or frequency of his presence at the restaurant is also unclear. According to Rene Brewer, a bartender at the restaurant, Mr. Pistilli "wasn't there a lot." While present at the restaurant, Mr. Pistilli would sometimes give direction to employees on certain issues. For example, he directed Ms. Brewer as to the amount of liquor she put in a customer's drink. It was Ms. Brewer's understanding that Mrs. Pistilli knew that Mr. Pistilli would sometimes direct employees regarding such employment tasks. However, Mrs. Pistilli did not testify as to her knowledge of Mr. Pistilli's actions of giving any direction to employees, and, therefore, the extent of her actual knowledge of Mr. Pistilli's actions regarding directing employees on employment matters was not established. On Friday nights, Karaoke entertainment was offered at the restaurant. During a certain song, Petitioner would perform a dance. Petitioner was not asked to perform this dance by her employer and did so voluntarily. Mrs. Pistilli was opposed to Petitioner dancing in this manner. Petitioner would stand on a chair near the Karaoke machine with her back to the patrons, let down her hair, and unbutton her shirt giving the appearance she was undressing. However, she wore a t-shirt under the shirt she unbuttoned. When she turned to face the patrons, it became clear that she wore the t-shirt underneath the shirt she unbuttoned. Then she would dance around the restaurant and its bar area and patrons would give her money for dancing. The money was given to her by both male and female patrons in various ways. For example, when a male patron would put money in the side of his mouth, she would take it with her teeth. Petitioner's dancing was not sexual in nature but was more in the nature of a fun part of the Karaoke. On March 18, 2000, Petitioner was in the bar area of the restaurant. Petitioner's description of what happened is as follows: I was at work, and Craig had come in with one of his friends. It was his friend's birthday. And the bar wasn't very busy at all. I had two customers that just came in. And he was just being loud, and he came over and asked me if I'd get up on the bar and dance, and I told him no. He set me up--at the end of the bar is like a long, and then there's a little like an L, and that part lifts up. The lift-up part was down, and he set me up on top of that. And I told him, you know, to leave me alone. And when I got down, he slapped me on the rear. And then he backed up, he unbuttoned his shirt, he unzipped his pants and said I ought to go in the dining room and dance around like this….Craig's friend was sitting at the bar, and Craig came over and said I got twenty dollars in my pocket, I want you to dance, it's Chris' birthday, and I told him no. And so a few minutes later he came over, he grabbed my arms, he shoved me against-- lifted my arms over my head, shoved me in the corner of the bar. I told him he was hurting me . . . . After the third time of me telling him that he was hurting me, he finally let go and he backed up and he went 00-00-00. And I was very upset. I went into the kitchen, I was crying very hard . . . . While Petitioner's description of what happened contains hearsay statements purportedly made by Mr. Pistilli, Petitioner's testimony describing Mr. Pistilli's actions and her reaction to the incident is deemed to be credible. Petitioner sustained physical injuries as a result of this incident with Mr. Pistilli.2/ Ms. Brewer was behind the bar on Petitioner's last day of employment. She saw Mr. Pistilli come into the restaurant with a friend. Mr. Pistilli appeared to her to be intoxicated. She saw Mr. Pistilli hug Petitioner in front of the bar. She did not see any other contact between Mr. Pistilli and Petitioner on that day. However, she had seen Petitioner hug Mr. Pistilli on other occasions. She also saw Petitioner hug restaurant patrons on other occasions. Teresa Woods was another bartender who worked at the restaurant. On Petitioner's last day of employment, Ms. Woods briefly saw and spoke to Petitioner in the kitchen of the restaurant. Petitioner was upset and told Ms. Woods that her neck and back were hurt. Petitioner then left the building and did not say anything further to Ms. Woods. Petitioner did not return to work. Mrs. Pistilli was not at the restaurant on March 18, 2000. She did not see any of the events that occurred between Petitioner and her husband. She had heard about the allegation that her husband hugged Petitioner but was unaware of the other allegations: Q: When did you first become aware that Mrs. Youngs had filed a workers' compensation claim? A: I can't recall exactly when it was. They did call me. I can't tell you exactly how long a period of time-- Q: Can you give us your best approximation of how close it was in time to--if you assume that the date-- A: A month. A month maybe. I don't know. It was well after. * * * Q: And did the comp carrier tell you the nature of the injury or how Mrs. Youngs contends that it happened? A: Yes, And he came in and I spoke with him, and they said that they'd be back in touch, and never heard from them. Q: And what did they tell you or what was their understanding of what Mrs. Youngs was contending happened after that conversation? A: All I know is my husband hugging her. This stuff I heard today is all new stuff about zippering pants. I never heard of any of that. I never heard any of that. While Mrs. Pistilli was generally aware of an ongoing workers' compensation claim by Petitioner against the restaurant, she was unaware of the most egregious allegations made regarding her husband until well after the fact. While she understood that her husband hugged Petitioner on March 18, 2000, her knowledge of that was gained approximately one month after the fact when finding out about a workers' compensation claim. Moreover, she had knowledge that during Petitioner's period of employment at the restaurant, Petitioner occasionally hugged her husband and some restaurant patrons. No competent evidence was presented that Mrs. Pistilli knew or should have known that Mr. Pistilli engaged in the behavior described by Petitioner that took place on March 18, 2000. Petitioner acknowledged that other than the incident on March 18, 2000, Mr. Pistilli did not make any references to Petitioner about her body during her employment at the restaurant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S __ BARBARA J. STAROS 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 4th day of December, 2003.
The Issue The issue is whether Respondent, Handi House of Starke, Inc. ("Handi House") committed unlawful employment practices contrary to section 760.10, Florida Statutes (2008),1/ by discriminating against Petitioner based on his race by subjecting him to different terms and conditions than similarly situated employees outside of his protected classification, and by discharging Petitioner from his employment after a dispute with a similarly situated employee outside of his protected classification.
Findings Of Fact Handi House is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Handi House sells and delivers portable storage buildings. Handi House is a family owned business. It is currently owned by Christina Hewes, who took over the company from her father, John Curles, in 2003. Handi House pays its employees in a variety of ways, including hourly wages, salaries, and commission, depending on the work performed. Ms. Hewes and Mr. Curles are white. Petitioner, a black male, worked off and on at odd jobs and manual labor for Handi House and for Mr. Curles personally for more than 20 years. Ms. Hewes conceded that Petitioner has been affiliated with the family business for as long as she can remember. Petitioner testified that he worked for Handi House for 28 years, but was never formally placed on the company payroll. He stated that he never received a W-2 from the company and that Social Security taxes were never deducted from his pay. Petitioner testified that he was paid roughly $7.00 per hour and received a check every week. He placed into evidence two checks that he had received from Handi House. The first check was dated October 9, 2009, and was for $236.00. The second check was dated November 25, 2009, and was for $198.00. Ms. Hewes could not testify as to the business arrangement that existed between Petitioner and her father, but she knew her father always tried to find something for Petitioner to do when he needed work. Petitioner worked at other jobs as well as at Handi House. Ms. Hewes stated that since she has taken over the company, Petitioner has worked for her intermittently between arrests, time in jail, and probation. Petitioner did not have a driver's license, which limited his value to Handi House, as he could only act as an assistant on deliveries. Petitioner worked as an unskilled laborer whenever Ms. Hewes had work for him to do and he was available to do it. Ms. Hewes testified that when Petitioner was sober and willing, he worked better and harder than 90 percent of the people she had ever hired. However, Petitioner was unreliable. Ms. Hewes testified that there were many occasions when Petitioner came in to bail her out of a tough spot, but just as many occasions when his failure to show up as scheduled or his showing up drunk left the business "high and dry." Docket sheets from the Bradford County Clerk of Court from 2006 through 2009 show that Petitioner was arrested for driving under the influence (guilty plea), aggravated battery (nolle prosequi), and possession of drug paraphernalia (guilty plea), as well as for procedural violations such as failure to appear in court. Petitioner conceded that Ms. Hewes has bailed him out of jail on several occasions since she took over Handi House. Despite Petitioner's unreliability, Ms. Hewes continued to find work for him at Handi House. Petitioner lived directly behind the business, which helped to make him available on short notice. Ms. Hewes continued to use Petitioner even after Petitioner's stepson, who lived with Petitioner, was arrested for breaking into Ms. Hewes' office and stealing checks from the company checkbook. Ms. Hewes disputed Petitioner's contention that Handi House never properly paid him or deducted payroll taxes from his paychecks. In fact, it was Petitioner who insisted on payment as an independent contractor rather than an employee. Ms. Hewes testified that in 2008, her accountant advised her that if she was going to pay Petitioner more than $5,000 per year, she either had to place him on the payroll and have him work regular hours, or give him a Form 1099 if he was going to continue with piecemeal work. Ms. Hewes offered to place Petitioner on the Handi House payroll as a full-time employee. Petitioner declined the offer because he owed back child support and feared that it would be deducted from his pay if he became a regular employee. At the hearing, Ms. Hewes presented a Form 1099 for Petitioner showing that Handi House paid Petitioner $13,211.25 in nonemployee compensation during the year 2009. Ms. Hewes' testimony that Petitioner was always paid for his work, that he was paid in the manner of his choosing, and that Handi House properly reported the payments, is credited. The events that precipitated the dispute in this case began on a Friday in November 2009, when Petitioner went out on a delivery with Terrell "Peanut" Odom, a full-time employee of Handi House who drove the delivery truck. Mr. Odom is white. Ms. Hewes' undisputed testimony was that Petitioner and Mr. Odom were friendly with each other. They spent time together away from work, and had sold cars to each other. On the day in question, Petitioner and Mr. Odom had an argument on the way to make a delivery. Petitioner declined to describe the subject matter of the argument, but it so angered Mr. Odom that he turned the truck around and drove back to Handi House. Mr. Odom told Ms. Hewes that he did not want to work with Petitioner, and drove off alone to make the delivery. On the following Monday, Mr. Owens continued to refuse to take Petitioner with him on deliveries. Because Mr. Odom was a solid, reliable employee, Ms. Hewes declined to force him to work with Petitioner. Rather, she found work for Petitioner to do on the company's lot in Starke. She hoped that with time, tempers would cool and matters would return to normal. Petitioner worked around the Handi House lot for five days. On the fifth day, Petitioner's wife, Barbara Fraizer, left an abusive voicemail message for Ms. Hewes, who testified that Ms. Fraizer sounded drunk. Ms. Fraizer made threats of violence against Ms. Hewes, Ms. Hewes' mother, and employees of Handi House. Ms. Hewes testified that this was the final straw. She advised Petitioner that he was not to set foot on the Handi House lot again. There was no credible evidence that Petitioner ever complained or even mentioned harassment or discrimination on the basis of race to anyone at Handi House. At the hearing, when Petitioner was asked whether he believed Ms. Hewes' motive in dismissing him was racial, he responded, "Not really." Petitioner offered no credible evidence that Handi House discriminated against him because of his race in violation of chapter 760, Florida Statutes. In an attempt to show disparate treatment between himself and similarly situated employees who were not members of the protected class, Petitioner testified that a white secretary named "Rebecca" was dismissed by Ms. Hewes on much more generous terms than was Petitioner. Petitioner testified that Rebecca received several checks at the time of and even after her dismissal, whereas Petitioner received only a few days of "piss work" after Mr. Odom refused to work with him. Ms. Hewes testified that Rebecca was not a secretary but a salesperson, and that the checks she received at the time of her dismissal and shortly thereafter were for commissions that she had earned. Ms. Hewes' testimony on this point is credited. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Handi House for his dismissal.2/ Partly out of loyalty to her father, and partly because of her genuine affection for Petitioner, Ms. Hewes continued to find work for Petitioner long after most business owners would have sent him packing. This is clearly not a case of racial discrimination, but something in the nature of a family argument that got out of hand. The evidence established that Petitioner was considered a good employee when he was sober and not in trouble with the law, and that Handi House made every good faith effort to keep him on the job. Ms. Hewes testified that she would have offered to bring Petitioner back to work at Handi House if not for his insistent pursuit of what she considered an unfounded and insulting claim of racial discrimination. The fact that Handi House had a long history of forbearance in regard to Petitioner's erratic behavior did not oblige it to continue that forbearance in perpetuity. When Ms. Hewes finally became fed up with Petitioner, she was not motivated by considerations of race, as Petitioner himself candidly admitted at the hearing.
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 finding that Handi House of Starke, Inc., did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 26th day of May, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 26th day of May, 2011.
