Findings Of Fact The Hearing Officer finds the following facts: Respondent is the holder of Beverage License No. 26-957,2-COP and the licensed premises encompass the bar known as "The Harem". Sergeant Thomas R. Genest, a Jacksonville Police Officer, went in The Harem on November 1, 1974. Upon entering he saw Georgiann Smith and Annie Pearl Williams, both of whom worked as topless dancers in The Harem and were at that time dressed as topless dancers. At the time Sergeant Genest entered the bar Smith was dancing topless at the bar between the legs of a male patron simulating intercourse with the patron. Williams was similarly dancing topless between the legs of a male patron, simulating intercourse and allowing the patron to place his hands on her buttocks and thighs. Sergeant Genest had no independent recollection of Virginia Lou Roberts or any acts in which she might have been engaged on November 1, 1974, in The Harem. On March 6, 1975, Detective H. R. Hall of the Jacksonville Sheriff's Office Vice Squad, was working The Harem undercover. While in The Harem he saw Maria Jenkins, Essie Mae Parks and Gaynell Moore, who were dressed as topless dancers and working as topless dancers in the bar. Jenkins was dancing topless between the legs of a male patron and rubbing her body against him as she danced. Parks was dancing topless between the legs of a male patron, who had his hands on her buttocks as she rubbed her vagina against his mid-section. Moore was dancing topless between the legs of a male patron who had his hands on her buttocks as she rubbed her vagina against his mid-section. At all times pertinent to this proceeding Georgiann Smith, Annie Pearl Williams, Maria Jenkins, Essie May Parks and Gaynell Moore were agents, servants or employees of the licensee.
The Issue The first issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011), as alleged in the Administrative Complaint. If so, the second issue for consideration is what penalty should be imposed for such a violation.
Findings Of Fact At all times relevant to this proceeding, Respondent was a certified law enforcement officer, having been issued Law Enforcement Certificate Number 194525 by the Criminal Justice Standards and Training Commission. At the time of the incident in question, Respondent was employed by the FHP. For an unspecified time prior to July 11, 2011, Respondent was involved in a relationship with a woman named Tamarah Rasmussen. For some period, she shared his home with him. However, in the weeks or months preceding July 11, 2011, the couple’s relationship had deteriorated, and Respondent wanted it to end. He had, however, allowed her to remain in the home “as a friend.” On July 10, 2011, the couple had a fight, and Respondent left the house. On July 11, 2011, Respondent returned to the home after his work shift, and told Ms. Rasmussen that he wanted their relationship to end. Respondent told her he wanted to sleep in a separate bed, and took the mattress pad off of a bed in a bedroom downstairs and put it on a separate bed upstairs. Ms. Rasmussen reacted by taking the mattress pad off of the second bed and throwing it out the window. Respondent retrieved the mattress pad. Ms. Rasmussen then poured a container of water on the bed where Respondent intended to sleep. Respondent turned on the video function on his cellular phone and asked Ms. Rasmussen about her actions. She responded by telling him he was a fool and an idiot, and that he was crazy. In what can be gleaned from the tape, Respondent asked her to take her things and leave. Instead, Ms. Rasmussen approached Respondent trying to get his phone as he started to go upstairs, and began hitting him. He can be heard on the cell phone recording repeatedly asking her to stop. Ms. Rasmussen repeatedly answered “no,” and “this was good enough for you last night,” and the sound of her striking Respondent can be heard clearly. This altercation occurred as Respondent attempted to retreat up the stairs. At one point, Respondent exclaimed that Ms. Rasmussen had hit him in the face, and Ms. Rasmussen responds, “yeah, I did.” Respondent and Ms. Rasmussen end up in what appears to be a walk-in closet upstairs. At that point, Respondent told Ms. Rasmussen that she was “going down,” and that he would “arrest her myself.” Respondent appeared to be out of breath. Ms. Rasmussen responded by telling him repeatedly that she was not under arrest and he was not arresting her for anything. She told him several times to stop, and to “get off of her,” stating that she could not breathe. Eventually, she told him that he had won, and asked him to help her up. Ms. Rasmussen testified that Respondent dragged her up the stairs, hitting her head on the stairwell on the way up. She testified further that he slammed her against the wall, handcuffed her behind her back, and was sitting on top of her while he did so, and while she pleaded with him to stop. According to her, Respondent hit her several times during the time they were in the closet, and then dragged her back down the stairs by the chain on the handcuffs. She also stated that Respondent threatened to kill her, saying that if he did so he could dispose of her body in the pond on the property and no one would know unless they drained the pond. Respondent, on the other hand, testified that Ms. Rasmussen began hitting him around the head and neck, and he was retreating up the stairs in an effort to get away from her, telling her repeatedly to stop. He testified that once they reached the closet, he told her he was arresting her and placed her hands behind her back in order to handcuff her. When she told him he was not arresting her for anything, he warned her not to “make me Taze you,” and finished placing the handcuffs on her wrists, behind her back. Respondent denied sitting on Ms. Rasmussen, saying that he knelt on one knee with one foot flat on the floor, and with Ms. Rasmussen secured between his legs, as he learned in law enforcement training. While Ms. Rasmussen testified that he dragged her down the stairs of the house and then threw her down the outside steps, Respondent testified that he carried her down the stairs of the home so as not to injure her, but that she was resisting him. While the taped recording contained sounds indicating that Respondent was being hit by Ms. Rasmussen going up the stairs, the same is not true with respect to the descent. Ms. Rasmussen can be heard telling Respondent to stop, but there is no sound that can be attributed to her head banging against the wall or anyone being dragged down the stairs. Once they were both downstairs, Respondent called in a “1024” on his FHP radio, which means “officer in jeopardy, send help as soon as possible.” The consensus of those officers testifying was that this call is rarely used and is the equivalent of “calling the calvary,” because the officer needs help immediately. Both Rasmussen and Respondent exited the home once the 1024 call was placed. Rasmussen testified at hearing that Respondent offered to take the handcuffs off of her and she refused the offer, saying that she wanted the responding officers to “see me exactly this way.” She got in his truck, which was parked near his locked law enforcement vehicle, and shut the door to get out of the rain. Law enforcement responding to the 1024 call were Marcus Bailey, an investigator with the Bay County Sheriff’s Office; FHP Major Eddie Johnson; and Lieutenant Davis Ward of the Bay County Sheriff’s Office. Their arrival at the home was approximately twelve minutes from the call being received by the FHP dispatcher. The Bay County Sheriff’s Office conducted the investigation of the matter, and because a law enforcement officer was involved, the investigation was conducted by supervisors. As a result of the incident, Respondent was placed on administrative duty on July 11, 2012, and terminated from the FHP July 16, 2012. The officers who responded all saw the video of the cell phone recording, which was also played several times during the course of the hearing. While, curiously, two of the three refer to Respondent as “taunting” Ms. Rasmussen at the beginning of the video, the video does not display or record anything that the undersigned could describe as taunting. It portrayed Respondent expressing dismay at Ms. Rasmussen’s behavior; Respondent requesting that she get her things and leave; Ms. Rasmussen’s angry response; the sounds of Ms. Rasmussen hitting Respondent; Responding placing her under arrest and reciting her rights; and Ms. Rasmussen’s angry response and cries for help and for Respondent to let her go. Respondent’s supervisor, Sergeant Ronnie Baker, testified that Respondent was a great employee who went “above and beyond,” and who prior to this incident (which Sergeant Baker did not witness), had no complaints against him. Sergeant Baker, among others, testified that Ms. Rasmussen had a reputation for untruthfulness. The undersigned reviewed the tape several times. It is of limited assistance in deciphering what is, in reality, an event where the only witnesses are the participants, Respondent and Ms. Rasmussen. However, after listening to the tape and observing the demeanor of witnesses (both at hearing and in the tape), Ms. Rasmussen’s account of the incident is simply not credible. The sounds on the tape clearly support the testimony that Ms. Rasmussen was hitting Respondent repeatedly as they went up the stairs. There are no corresponding sounds to support her contention that he slammed her head into the wall or dragged her down the stairs. Moreover, the pictures of Ms. Rasmussen do not clearly depict bruising or swelling consistent with her description of the incident. There are slight red marks on Ms. Rasmussen’s wrists, but they do not provide clear and convincing evidence that he dragged her anywhere, much less down the stairs. The marks on her arms are just as likely to indicate her resisting his efforts to carry her down the stairs. Moreover, her claim that he threatened to kill her and dispose of her body in the pond on the property is totally inconsistent with Respondent’s actions in placing a 1024 request for assistance, and waiting at the front of the property for assistance to arrive. The Administrative Complaint charges Respondent with use of excessive force by slamming Ms. Rasmussen’s head and/or placing handcuffs on the victim tightly and/or dragging her down the stairs while handcuffed. There is no clear and convincing evidence that Respondent slammed Ms. Rasmussen’s head against anything; that he put the handcuffs on her too tightly; or that he dragged her down the stairs while handcuffed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of January, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 29th day of January, 2013. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Philip S. Spaziante (Address of record) Sandra Renee Coulter, Esquire Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gerald M. Bailey, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether respondent discriminated against petitioner on account of her gender in terminating her employment?
Findings Of Fact Petitioner Audrey Owens began work in January of 1985 or thereabouts as the "service writer" at what was then Santa Rosa Datsun, an automobile dealership in or near Milton. Until she was fired in April of the same year, she had the job of dealing with customers who brought cars to be serviced. She wrote up what needed to be done, then gave the job to a mechanic to do. Several mechanics worked at the dealership, but on commission. By allocating work among them, the service writer determined what their income would be. A number of mechanics did not feel that she distributed the work equitably. This was no secret to parts and service manager George O. Brewer, the service writer's immediate supervisor; he saw a mechanic nearly burst into tears on account of it. He had complaints from numerous employees and from some customers about Ms. Owens behavior toward them. He also felt she should not wear blue jeans to work, and asked her to dress more formally. She persisted in wearing attire she was repeatedly told was inappropriate. In addition to the unresolved issue of dress, other frictions marred the relationship between Ms. Owens and Mr. Brewer. She pouted when he "gave her guidance," and failed to follow various instructions. Once he declined her request to install a rubber mat to stand on behind the counter on which she wrote service orders, and she responded that she would go over Mr. Brewer's head to George R. Kearney, who owned the dealership. It was in that context that Mr. Brewer told her he would fire her if she went to Mr. Kearney. All the while, the mechanics dissatisfaction and resentment grew. Eventually Mr. Brewer did fire her, giving her only a day's notice. She threw a pen at him. At hearing, Ms. Owens made various false and sensational charges against Mr. Brewer, although she did not testify that her termination was for failure to bestow sexual favors. She said she was fired when she asked Mr. Brewer why he had made a fool of her by yelling at her rudely, telling her to ask a mechanic to install seat belts in a Toyota truck. Jean Rubbards, petitioner's predecessor as service writer," left the job to spend more time with her son, when the child's father died. Mrs. Rubbards and Andrea Penten, who succeeded petitioner as service writer, testified that Mr. Brewer was demanding but fair, a good person to work for, and that their relationships with him lacked sexual overtones. When Mr. Brewer's supervisor, Mr. Kearney, bade Ms. Owens farewell, she did not report that she had been harassed sexually. In addition to Messrs. Brewer and Kearney, seven employees who worked at the dealership contemporaneously with Ms. Owens testified at the hearing, although at least one had since left for another job. Not one of them ever received any indication at the time that anybody at work had ever harassed her sexually.
The Issue The issue for determination is whether Respondent committed an unlawful employment practice against Petitioner on the basis of sexual harassment and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Benjamin Bullard's Petition for Relief. S DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2012. COPIES FURNISHED: Benjamin Bullard 12211 Park Drive Hollywood, Florida 33026 Spencer D. West, Esquire Stephen N. Montalto, Esquire Mitchell & West, LLC 3191 Coral Way, Suite 406 Miami, Florida 33145 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
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of age and retaliating against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Mr. Meikle is an African-American male. At hearing, Mr. Meikle withdrew his claim of age discrimination. Mr. Meikle is only pursuing the claim of retaliation. Mr. Meikle was employed with the Radisson Hotel (Radisson), which was owned by Hotels Unlimited. Mr. Meikle’s supervisor at the Radisson was Harland McPhun, who was the Assistant General Manager. Mr. McPhun’s supervisor at the Radisson was Diane Gray, who was the General Manager. During his employment at the Radisson, Mr. Meikle was promoted from a cook to the Kitchen Director. He was very proud of being in the position of Kitchen Director. Mr. McPhun had not encountered any problems with Mr. Meikle being on time for work or being a “no-show” for work as scheduled. However, Mr. McPhun had encountered problems with Mr. Meikle in other areas, such as Mr. Meikle's providing his sister, who was employed at the front desk of the Radisson, with larger portions of food than the other employees; and being in places other than the kitchen area talking, i.e., at or near the front desk. Mr. McPhun gave Mr. Meikle verbal warnings, regarding the incidents, but never documented any of the verbal warnings. At some point in time, Hotels Unlimited decided to convert the Radisson to a Double Tree Hotel (Double Tree). The Double Tree’s structure required the position of a Food and Beverage Manager, who would supervise the food and beverage personnel, kitchen staff, and restaurant servers. Gerald Brown was hired as the Food and Beverage Manager in January 2008. Mr. Brown began his employment before the completion of the conversion from the Radisson to the Double Tree. On February 14, 2008, Mr. Brown held his first staff meeting with the entire staff over whom he had supervision. Mr. Meikle was late for the staff meeting. On February 16, 2008, Mr. Brown issued a “Disciplinary Document” indicating that he was giving Mr. Meikle his first written warning for being late at the meeting. Mr. Meikle admits that he was late for the meeting. The Disciplinary Document was signed by Mr. Meikle (the date of the signature was not completed), by Mr. Brown, as the Manager (the date of the signature was not completed), and by Ms. Gray, as the General Manager, on February 18, 2008. Additionally, on February 16, 2008, Mr. Brown issued another Disciplinary Document indicating that he was giving Mr. Meikle his first written warning for failing to follow rules and direction involving four different matters about which Mr. Brown had repeatedly counseled Mr. Meikle on several occasions, but were not being adhered to by Mr. Meikle. The Disciplinary Document was signed by Mr. Meikle (the date of the signature was not completed), by Mr. Brown, as the Manager, on February 16, 2008, and by Ms. Gray, as the General Manager, on February 18, 2008. On February 25, 2008, Mr. Brown issued a Disciplinary Document for an incident that occurred on February 23, 2008, a Saturday night. Mr. Meikle was scheduled to work, but he departed the kitchen and the hotel property without informing and obtaining permission from the manager. Hotels Unlimited’s policy required the informing of the manager in order for the manager to take appropriate steps to make adjustments to accommodate the absence. Mr. Meikle was entitled to a break, but he failed to notify the manager of his absence in accordance with the policy. The Disciplinary Document included a statement that “Disciplinary Action to be decided by the General Manager.” The Disciplinary Document was signed by Mr. Meikle on February 26, 2008, by Mr. Brown, as the Manager, on February 25, 2008, and by Ms. Gray, as the General Manager, on February 26, 2008. Regarding Mr. Meikle’s absence from work on Saturday evening, February 23, 2008, he was working an 18-hour shift, without anyone to relieve him, which meant that he was unable to take a break. He was exhausted and needed to take a break. Before Mr. Brown was hired, Mr. Meikle was working the 18-hour shift, and after Mr. Brown was hired, Mr. Meikle agreed to continue working the 18-hour shift. Mr. Brown did not wish to disrupt what was already in place, so he agreed to allow Mr. Meikle to keep the 18-hour shift. It was not unreasonable for Mr. Brown to maintain Mr. Meikle on the 18-hour shift, as Mr. Meikle requested. On that same day, February 25, 2008, Mr. Brown issued a Disciplinary Document for an incident that occurred on February 25, 2008. Mr. Meikle raised his voice and became very loud, resulting in guests being disturbed. As Mr. Meikle had been absent from work on Saturday evening, February 23, 2008, Mr. Brown was inquiring of Mr. Meikle the reason for his (Mr. Meikle’s) absence. Further, during the conversation, Mr. Brown raised several other concerns. Mr. Meikle raised his voice and became very loud, which Mr. Brown determined was disturbing the guests. Mr. Brown requested Mr. Meikle to remove himself from the dining area. The Disciplinary Document was signed by Mr. Brown on February 26, 2008. Mr. Meikle refused to sign the Disciplinary Document where the employee’s signature is indicated; but, he (Mr. Meikle) noted on it, “Refuse to sign because I did what I was told,” and signed his name under the statement. Each Disciplinary Document indicated that Mr. Meikle’s termination was effective “2/29/08.” Mr. Brown did not indicate a date for termination on any Disciplinary Document and could offer no explanation as to why or how each Disciplinary Document contained such information. Furthermore, no testimony was presented as to why or how each Disciplinary Document contained such notation. Mr. Brown contacted Ms. Gray, recommending the termination of Mr. Meikle. Ms. Gray did not approve the recommendation; she wanted to continue to work with Mr. Meikle. On February 25, 2008, a letter, bearing the same date, from Mr. Meikle was faxed to Hotels Unlimited’s Human Resources. Among other things, Mr. Meikle notified Human Resources that he was working in a hostile work environment created by Mr. McPhun, providing examples of what he considered inappropriate action and conduct by Mr. McPhun; that Mr. McPhun “strongly dislike[s]” him “for whatever the reason”; that Mr. McPhun was taking food from the hotel and that he (Mr. Meikle) had reported it to the general manager; that all of his (Mr. Meikle’s) current problems at work stemmed from Mr. McPhun, providing examples of the problems that he (Mr. Meikle) had encountered2; that Mr. McPhun was the cause of all of his problems at work; that he (Mr. Meikle) had no one to ask for help; that Mr. McPhun was out to get him (Mr. Meikle) fired; that everyone was biased against him (Mr. Meikle) because of Mr. McPhun; and that a copy of the letter would be forwarded to the EEOC and the FCHR. Ms. Gray was notified by her superior that Human Resources had received a letter from Mr. Meikle, but she was not notified of the content of the letter nor did she receive or view a copy of the letter. Her superior told her to talk with Mr. Meikle and resolve the problem. Hotels Unlimited’s Employee Handbook, Employment Policies & Practices section, provides in pertinent part: Equal Employment * * * If you suspect discriminatory or harassing actions on the part of the Company or any other employee, you should immediately notify your General Manager or Corporate Department Head, as applicable, or, if you prefer, a Company Officer. Such notification will be held in confidence to the extent possible. Discriminatory behavior or action by any employee is cause for discharge. * * * Sexual and Other Forms of Harassment Policy Statement: Hotels Unlimited, Inc. is committed to a work environment in which all employees are treated with respect and dignity. It is the policy of Hotels Unlimited, Inc. to provide a work environment that is free from discrimination and harassment. Action, words or comments based on an individual’s sex, race, color, religion, sexual orientation, national origin, age, disability, marital status, citizenship or any other characteristic protected by law – either overt or subtle – are demeaning to another person and undermine the integrity of the employment relationship. . . . * * * Harassment on the basis of any other protected characteristic is also strictly prohibited. Such harassment is defined as verbal or physical conduct that denigrates or shows hostility toward an individual because of his/her race, color religion, sex, sexual orientation, national origin, age, disability, marital status, citizenship or any other characteristic protected by law, and that has the purpose or effect of creating an intimidating, hostile or offensive work environment; has the purpose or effect of unreasonably interfering with an individual’s work performance; or otherwise adversely affects an individual’s employment opportunity. * * * Administration of Policy: * * * It is unlawful to retaliate in any way against anyone who has complained about harassment. Any incident of retaliation should be reported in the same manner as an incident of harassment. Any employee who engages in such retaliation will be subject to disciplinary action up to and including discharge. All allegations of discrimination, harassment, or retaliation will be subject to prompt, thorough and confidential investigation. All investigations will be designed to protect the privacy of, and minimize suspicion toward, all parties involved. . . . The Employee Handbook provided protection against employment practices for statuses beyond those set forth by law.3 In the early morning hours of February 29, 2008, Mr. Meikle was awoken by a telephone call from a co-worker inquiring as to why he (Mr. Meikle) was not at work. Mr. Meikle informed his co-worker that he was off that day, but his co- worker advised that he (Mr. Meikle) was scheduled to work. Mr. Meikle telephoned Mr. Brown, who informed Mr. Meikle to be at work. Mr. Meikle reported to work, but failed to report for his shift as scheduled. Regarding Mr. Meikle’s failure to report to work on time for his scheduled shift, all work schedules for Food and Beverage, during Mr. Brown’s tenure, were typed and posted, one week in advance. The work week for Food and Beverage was Monday through Sunday. The posted work schedule for the week of February 25, 2008, was prepared, typed, and posted by Mr. Brown and indicated that Mr. Meikle was required to work on Monday, February 25, 2008, and Tuesday, February 26, 2008; was not required to work on Wednesday, February 27, 2008, and Thursday, February 28, 2008; but, was required to work on Friday, February 29, 2008, specifically, from 5:00 a.m. to 2:00 p.m. Mr. Meikle reviewed a work schedule for the week of February 25, 2008, that was typed and hand-written. The work schedule indicated that it was prepared by Mr. McPhun and that he (Mr. Meikle) was not required to work on Friday, February 29, 2008. Based on that work schedule, Mr. Meikle did not believe that he had to report to work on February 29, 2008. However, Mr. Meikle was required to report to work on February 29, 2008, and work from 5:00 a.m. to 2:00 p.m. He failed to report to work for his shift as scheduled.4 No dispute exists that, at no time previously, had Mr. Meikle failed to report to work for his shift as scheduled. On February 29, 2008, Mr. Meikle was terminated for failing “to be at work on time for [his] schedule [sic] shift.” A Termination Report dated February 29, 2008, was signed by Mr. Brown, by Mr. Meikle, and Ms. Gray. Mr. Brown made the determination to terminate the employment of Mr. Meikle, and Ms. Gray agreed. Mr. McPhun did not participate with Mr. Brown and Ms. Gray in the determination to terminate the employment of Mr. Meikle. At the time of Mr. Meikle’s termination, Mr. Brown was not aware of Mr. Meikle’s letter to Hotels Unlimited’s Human Resources.
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 finding that Hotels Unlimited/Double Tree did not retaliate against Marshall Meikle in violation of the Florida Civil Rights Act of 1992, as amended and dismissing his petition for relief. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 23rd day of November, 2009.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Phillips is a person of the masculine sex. He was employed as a maintenance foreman at Respondent Martin Stables South, Inc. (Martin Stables), of Reddick, Florida, from May 19, 2005, until June 27, 2005. Edmund Martin is the president of Martin Stables. He is also the only stockholder. Mr. Martin is aware of the number of employees working at Martin Stables. He testified that Martin Stables had less than 15 employees during the period May 19, 2005 to June 27, 2005. Moreover, he testified that Martin Stables never employed 15 or more employees in the current year, or in the year preceding May 19, 2005. He further stated that Martin Stables had never employed as many as 15 employees at any given time. Mr. Phillips provided no evidence contradicting this assertion.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations dismiss the Petition. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John L. Phillips Post Office Box 771011 Ocala, Florida 34477 David A. Glenny, Esquire Bice Cole Law Firm, P.L. 1333 Southeast Twenty-Fifth Loop Suite 101 Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Department of Corrections, discriminated against Petitioner, Charlotte Pinkerton, on the basis of her age, race, disability, or in retaliation, and, if so, what remedy should be ordered.
Findings Of Fact Respondent is the state agency whose purpose is to protect the public through the incarceration and supervision of offenders, and to rehabilitate offenders through the application of work programs and services. See § 20.315, Fla. Stat. Respondent employs more than 15 persons. Stipulated Facts Petitioner was hired by Respondent and employed at Lake Correctional Institution (Lake C.I.) as a senior registered nurse (RN), OPS2/ employee, effective October 29, 2010. On October 14, 2011, Petitioner was promoted to senior RN, career service employee, at Lake C.I. Petitioner resigned from employment with Respondent at Lake C.I. on February 1, 2013, effective February 15, 2013. Age and Race Petitioner is a 67-year-old Caucasian female. Petitioner was 63 years old when she started work at Lake C.I. There was no evidence presented that a new employee or employees were hired to replace Petitioner. Disability At hearing, Petitioner provided a February 7, 1990, letter from Gene Watson, Ph.D., of The Learning Place, which reflected Petitioner had a diagnosis of developmental dyslexia. Petitioner’s claim that this February 7 letter was attached to her employment application cannot serve as a blanket notification to everyone working for Respondent or Lake C.I. Petitioner admitted she had dyslexia and declared “I can do my job.” Although Petitioner’s former supervisor, senior RN Lou Armentrout, testified she was aware of Petitioner’s dyslexia, the exact timing of this knowledge was not disclosed. Ms. Armentrout also testified that Petitioner did not need an accommodation to perform her nursing duties. Petitioner’s statement that “they knew of my disability” is insufficient to substantiate that fact. Warden Folsom and Dr. Mesa were not employed at Lake C.I. when Petitioner was hired to work there, and they were unaware of Petitioner’s disability. Retaliation Background Prior to the arrival of Dr. Mesa at Lake C.I., Petitioner worked under the direction of the Chief Health Officer (CHO). Petitioner did anything she could to assist the prior CHOs (Dr. Meredith or Dr. Marino). Petitioner worked as a floor nurse and would sometimes be the charge nurse. Petitioner worked in the medical building at Lake C.I. Petitioner’s immediate supervisor was Ms. Armentrout. Petitioner’s six-month performance planning and evaluation by Ms. Armentrout, dated April 16, 2012, reflected a rating of 3.36 on a 5.0 scale. In September 2012, Ms. Armentrout left Lake C.I. Between August 2012 and October 2013,3/ Dr. Mesa served as Respondent’s CHO at Lake C.I. As the CHO, Dr. Mesa oversaw everything in the medical section regarding inmate patient care and services. There are two medical buildings at Lake C.I.: one houses those inmates needing medical care; and a second building houses other inmates needing mental health services. Dr. Mesa would usually start her work day in the medical building and then go to the second building. On a daily basis, Dr. Mesa would treat inmate patients, write orders, interact with staff, attend meetings, and administer Lake C.I.’s entire medical section. Dr. Mesa is a Spanish-speaking female physician who talks with her hands as she speaks. At the start of Dr. Mesa’s tenure at Lake C.I., Petitioner was on light duty as a result of an injured foot. It is believable that Dr. Mesa gave Petitioner orders or directives to do certain tasks which Dr. Mesa believed were within the light duty category. Petitioner contends that she discussed the tasks requested by Dr. Mesa with Respondent’s human resource office, and Dr. Mesa’s requests were found to be outside the light duty category. There was no evidence to support or contradict Petitioner’s discussion with Respondent’s human resource office, and it was hearsay as to what she was told. As the CHO, Dr. Mesa could ask or direct Petitioner to perform medically related tasks. Retaliation In late November 2012, Petitioner claimed she reported to Warden Folsom problems regarding Dr. Mesa’s continued verbal abuse towards Petitioner, medical staffing issues including long work-breaks, and missing medical supplies and equipment. Warden Folsom does not recall this November meeting with Petitioner, and there was no investigation conducted in late November or December regarding Petitioner’s allegations. After reporting the irregularities in the medical section, Petitioner felt Dr. Mesa increased her verbal abuse towards Petitioner. Petitioner felt she was being retaliated against and tortured by Dr. Mesa. Petitioner deemed the abuse to be a hostile work environment, yet she did not report it again until February. Petitioner testified that Assistant Warden Young spoke with her several days after the alleged November meeting with Warden Folsom, and reminded her that she needed “to follow the chain of command.” Assistant Warden Young failed to provide any insight into this meeting, claiming that he did not recall talking with Petitioner about following the chain of command. Petitioner believed that Dr. Mesa had the ability to fire her, and Petitioner remained in constant fear of Dr. Mesa. Petitioner felt Dr. Mesa belittled and humiliated her in front of prisoners and other nurses. Petitioner believed that Dr. Mesa intentionally spoke Spanish to other nurses when Petitioner was present.4/ Petitioner believed that Dr. Mesa hated white people, and black people who defended white people. During one interaction between Petitioner and Dr. Mesa, Dr. Mesa stuck her finger between Petitioner’s eyeballs; however, the exact verbal exchange that led to that encounter remains unclear. Dr. Mesa denied making fun of Petitioner or intentionally giving medical orders to nurses in Spanish, when Petitioner was present. However, Dr. Mesa conceded it was possible that she did so, as Spanish is her first language. Dr. Mesa denied ever intentionally putting her finger on Petitioner. Dr. Mesa supervised Ms. Armentrout and her replacement, nurse Isabga, but claimed not to supervise Petitioner. As the CHO in charge of the health care for inmates, it is logical that the CHO would have supervisory duties over all the health care workers, maybe not directly, but certainly through the chain of command. When Dr. Mesa gave or wrote a medical order, she expected a high level of performance from the Lake C.I. staff. Ms. Gadacz, who worked with Petitioner at Lake C.I., did not know Petitioner had a disability. Ms. Gadacz witnessed Dr. Mesa yelling at different times to different people, including Petitioner; but Ms. Gadacz did not believe it was motivated by anyone’s race or age. Although Ms. Gadacz witnessed Dr. Mesa putting her finger on Petitioner’s face, she could not explain the circumstances. Licensed Practical Nurse Theresa Williams worked with Petitioner at Lake C.I. At various times, Ms. Williams observed Dr. Mesa’s interactions with Petitioner, which she deemed to be less than professional. During at least one meeting, with six or seven employees present, Dr. Mesa addressed everyone but Petitioner with respect. When Respondent began the investigation of Petitioner’s complaint (after Petitioner’s resignation), Ms. Williams was interviewed and provided her observations of Dr. Mesa’s treatment of Petitioner. Petitioner’s Resignation On February 1, 2013, Petitioner requested a meeting with Warden Folsom. During this meeting Petitioner initially expressed her desire that nothing be done about what she was going to tell the Warden. Petitioner expressed her frustrations with Dr. Mesa’s verbal abuse and discrimination. At that meeting, Petitioner gave Warden Folsom a resignation letter. The letter provided: I would like to inform you that I am resigning from my position as Senior Register [sic] Nurse for Lake Correction Institution, effective February 15, 2013. Thank you for the opportunities for professional and personal development that you have provided me during the last 28 months. I have enjoyed working for the agency and appreciate the support provided me during my tenure with the Institution. If I can be of any help during this transition, please let me know. Sincerely, [signature] Ms. Charlotte Pinkerton Senior Register [sic] Nurse Warden Folsom was surprised that Petitioner was resigning and provided her with the opportunity to continue to work for Respondent. However, when Petitioner used the phrase “hostile work environment,” Warden Folsom instituted Respondent’s procedures to have the allegation investigated. Dr. Mesa participated in Respondent’s Inspector General’s investigation that ensued after Petitioner left Lake C.I., but couldn’t recall the details. Further, Dr. Mesa testified repeatedly that she did not recall having conversations with other Lake C.I. personnel regarding Petitioner or others. There is evidence that Petitioner and Dr. Mesa do not care for one another; however, the evidence necessary to prove any discrimination is lacking. Following her resignation, Petitioner has attempted to obtain another RN position, but has been unsuccessful. In December 2013, Petitioner sustained an injury which has precluded her from continuing to seek employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Petition for Relief from an unlawful employment action be dismissed. DONE AND ENTERED this 4th day of March, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 4th day of March, 2015.
The Issue Whether Petitioner, Palm Beach County School Board (Petitioner or School Board), has just cause to terminate or otherwise discipline Respondent, Rayburn White’s, employment based on the conduct alleged in the “Petition” dated January 15, 2009, and filed with DOAH January 20, 2009. Also at issue is the discipline, if any, to be imposed.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Palm Beach County, Florida Petitioner has entered into individual contracts with its employees. At all times relevant to this proceeding, Petitioner employed Respondent as an art teacher. The record is silent as to whether he has a continuing contract or a professional services contract. Prior to his reassignment after his arrest in 2008, Respondent’s assigned school was Acreage Pines Elementary School (Acreage Pines). Respondent has been employed by Petitioner since October 17, 1987. Respondent’s job performance has been satisfactory or above during his tenure with Petitioner. Petitioner and the teacher’s union have entered into a collective bargaining agreement (CBA). Petitioner has adopted rules and policies that control the activities of its teaching professionals. Respondent is subject to the provisions of the CBA, rules adopted by Petitioner, rules of the State Board of Education, and duly-enacted statutes. Article II, Section M(6) of the CBA pertains to progressive discipline and provides as follows: (6) Where just cause warrants such disciplinary action(s) and in keeping with the provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Section 1012.22(1)(f), Florida Statutes, provides that a district school board has the following powers: (f) Suspension, dismissal, and return to annual contract status.--The district school board shall suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed, or returned to annual contract except as provided in this chapter. Section 1012.27(5), Florida Statutes, provides that a school superintendent has the following powers: (5) SUSPENSION AND DISMISSAL.--Suspend members of the instructional staff and other school employees during emergencies for a period extending to and including the day of the next regular or special meeting of the district school board and notify the district school board immediately of such suspension. When authorized to do so, serve notice on the suspended member of the instructional staff of charges made against him or her and of the date of hearing. Recommend employees for dismissal under the terms prescribed herein. Florida Administrative Code Rule 6B-1.001 sets forth the Code of Ethics of the Education Profession in Florida. Subsections (2) and (3) thereof provide as follows: The educator’s primary professional concern will always be for the student and for the development of the student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one’s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. School Board Policy 6Gx50-1.013(1) requires School Board employees to “. . . carry out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policy, superintendent’s administrative directives and local school and area rules.” THE 1994 INCIDENT On or about June 27, 1994, Respondent entered a plea of guilty to the following charges brought in the United States District Court for the Northern District of Mississippi: Interference with Government Employee, Disorderly Conduct, and Reckless Driving. A U.S. Magistrate adjudicated Respondent guilty of all three charges, imposed court costs, and placed him on probation for one year with the following special condition of probation: “Defendant shall not visit any area of the Tennessee Tombigbee Waterway while on probation supervision.” On March 21, 1995, the Florida Education Practices Commission (EPC) filed an Administrative Complaint against Respondent that included the following factual allegations in paragraphs 3, 4, and 5: On or about June 18, 1994, Respondent was observed masturbating in his car. When approached by an undercover federal office, Respondent fled the scene and was later apprehended. Respondent was arrested in the U.S. Northern District of Mississippi and charged with Interference with Government Employees, Disorderly Conduct and Reckless Driving. On or about June 27, 1994, Respondent plead guilty to all three charges and the Court adjudicated him to be guilty as charged. Respondent was sentenced to serve one year probation, not return to the Tennessee Tombigbee Waterway and pay a $400 fine and court costs. Thereafter Respondent and the EPC entered into a Settlement Agreement which included the following in paragraphs 3 and 4: The Respondent elects not to contest the allegations set forth in the Petitioner’s Administrative Complaint, which are incorporated herein by reference. The Respondent agrees to accept a letter of reprimand for the conduct described in the Administrative Complaint, a copy of which shall be placed in his certification file with the Department of Education, and a copy of which shall be placed in his personnel file with the Palm Beach County School Board. The Settlement Agreement also includes the following in paragraphs 6 and 7: The Respondent agrees that within thirty [30] days of entry of the Final Order herein he shall provide the Education Practices Commission [EPC] written verification from a professional approved by the Recovery Network Program that he poses no threat to the safety or well-being of students and that he is able to perform the responsibilities of an educator. All expenses incurred in connection with providing this verification shall be borne by the Respondent. The Respondent agrees that he shall be placed on probation for a period of two [2] years . . . The Settlement Agreement was approved by Final Order issued by the EPC on September 22, 1995. Respondent served his period of probation. Respondent did not admit the alleged facts that underpin the EPC’s Administrative Complaint.1 THE 2008 INCIDENT Okeeheelee Park (the park) is located in suburban Palm Beach County. The park’s various recreational amenities include walking trails. The park also has restroom facilities at multiple locations. Detective Van Garner of the Palm Beach County Sheriff’s Office and his partner, Detective Peter Lazar, were assigned to conduct undercover operations in the park on July 21, 2008. Their assignment included the apprehension of people engaging in illegal sexual acts in the park. This assignment was in response to citizen complaints about such activity in the park. Both officers were in civilian dress. Detective Garner wore a tee shirt and short pants. On July 21, 2008, Respondent was exercising in the park by walking to lose weight. Because of medical problems, Respondent needed to lose weight. To work up a good sweat, Respondent wore a one-piece wet suit that covered his torso, but not his arms or his legs. The wet suit had a front zipper, which zipped in a downward, diagonal motion from his neck area to his left thigh area. Respondent wore a shirt and a pair of walking shorts over the wet suit. During that summer, Respondent typically walked from noon to 4:00 p.m. Respondent attracted the attention of Detective Garner on the afternoon of July 21, 2008, because he saw him go into more bathrooms in the park than “normal.”2 At approximately 3:00 p.m. on July 21, 2008, Respondent had been walking for three hours. He went to the area of a bathroom at the top of a hill near a pavilion where there was a cool breeze. Detective Garner pulled up in a truck, got out, and went inside the bathroom from the door on the opposite side of the building from where Respondent was standing.3 Almost immediately thereafter, while Detective Garner was standing at a urinal, Respondent entered the bathroom, walked past Detective Garner, and went to a handicapped stall. Respondent left the door to the handicapped stall ajar. Detective Garner and Respondent were the only two people in the restroom. Detective Garner testified that sometimes a man who is in a restroom for sexual activity will do things to attract the attention of other patrons of the facility. Respondent did not make any hand signal, say anything, or do anything to attract the attention of Detective Garner other than leaving the door to the stall ajar. Respondent did nothing in the restroom that would have attracted Detective Garner’s attention had Detective Garner not been a law enforcement officer. Respondent stood in the handicapped stall in the proper stance to urinate. His feet faced the toilet and his body was turned so that one looking into the stall from the door would have seen his back and side, but not his front. Detective Garner became suspicious because he did not hear a stream of urine coming from the stall. There was a conflict in the evidence as to what Respondent was doing in the stall. Respondent testified that he had unzipped the wet suit so he could urinate. Respondent testified that with one hand he was holding up his shorts and with the other he was trying to prevent the wet suit from becoming completely unzipped. Respondent testified that it is very difficult to get the wet suit zipper started once it becomes completely unzipped. According to Respondent, when Detective Garner approached the stall, Respondent was removing his penis from the wet suit in order to urinate. Detective Garner testified that when he approached the stall, he saw Respondent move his hands back and forth below the level of his waist in an activity Detective Garner believed could only have been masturbation. Detective Garner could not see Respondent’s genital area until Respondent turned toward Detective Garner after Respondent sensed Detective Garner’s presence. Detective Garner testified that he saw Respondent’s erect penis when Respondent turned. In resolving the conflicting evidence, the undersigned finds that Petitioner failed to establish by a preponderance of the evidence that Respondent masturbated in the handicapped stall of the park’s bathroom on July 21, 2008.4 Petitioner also failed to establish by a preponderance of the evidence that Respondent was attempting to solicit Detective Garner or anyone else for sex. When Respondent turned towards him, Detective Garner pulled out his badge and identified himself as a deputy sheriff. Respondent immediately began to put his penis back in the wet suit and his short pants. Within 20-to-30 seconds of that identification, Respondent had accomplished that purpose and started to exit the stall. In leaving the stall, Respondent pushed Detective Garner aside. Detective Garner pushed back. Before Respondent left the bathroom, there was a brief scuffle between Detective Garner and the Respondent consisting of Detective Garner trying to restrain Respondent and Respondent attempting to exit the bathroom. No blows were thrown during the scuffle. When he left the restroom, Respondent walked down a hill away from the restroom and Detective Garner. Detective Garner walked in the opposite direction to retrieve his firearm from his vehicle. While walking to his vehicle, Detective Garner called Detective Lazar on a cell phone and requested that Detective Lazar come to the scene to assist him. As Detective Lazar was heading to the scene, he asked a uniformed officer to follow him to the scene. Shortly thereafter, Detective Lazar and the uniformed officer arrived on the scene. Respondent promptly complied with their orders. Respondent was charged with Exposing Sexual Organs in violation of Section 800.03, Florida Statutes; Resisting Arrest Without Violence in violation of Section 843.02, Florida Statutes; and Loitering in Public Restroom in violation of a county ordinance. Respondent entered into a Deferred Prosecution Agreement in resolution of the criminal charges. Respondent successfully completed the Deferred Prosecution Agreement, which included undergoing supervision, paying the costs associated with the supervision, completion of the Prostitution Impact Prevention Education School, undergoing HIV/STD test, provision of a DNA sample, and no contact with adult establishments. Respondent timely self-reported his arrest as required by School Board policy. The School Board’s Department of Employee Relations conducted an investigation into Respondent’s employment history, his background, and the events that culminated in his arrest on July 21, 2008. The results of the investigation were presented to the School Board’s Employee Investigative Committee (EIC), which makes non-binding recommendations to the Superintendent of Schools. The EIC voted to substantiate the charges against Respondent and recommended to the School Superintendent that Respondent’s employment be suspended for 20 days and that Respondent be transferred to another school. Dr. Johnson made the decision that Respondent’s employment should be terminated. When he made that recommendation, Dr. Johnson thought that Respondent had been caught masturbating for the second time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order dismissing the charges against Respondent and reinstating his employment with full back pay. DONE AND ENTERED this 10th day of February, 2010, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of February, 2010.
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
