The Issue The issue presented for decision herein is whether or not the Petitioner, Margie Ann Sims, was unlawfully terminated (by Respondent), Niagara Lockport Industries, Inc., due to her age in violation of the Florida Human Rights Act of 1977, Section 760.10, Florida Statutes (1983).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is forty eight (48) years old. She commenced work for Respondent, Niagara Wires, a subsidiary of Niagara Lockport Industries, Inc., located in Quincy, Florida during 1965 as an Accounts Payable Clerk. Petitioner was terminated on August 5, 1983, as a result of a reduction in staff and unsatisfactory work performance.1 During Petitioner's job tenure, she held various accounting and secretarial positions. Petitioner's initial duties were that of an accounting clerk and she later progressed to Assistant Chief Accountant. She later served as Corporate Bookkeeper and Secretary. Throughout her employment, her job duties were very broad and encompassed many areas of responsibility including overseeing accounts receivable, billings, payroll, bank statements, journal entries, wire transfers and financial statements. During 1975, Respondent's corporate office was moved to Quincy, Florida and Petitioner handled accounting and secretarial duties for the corporate office, dealt with banks making fund transfers, loan balancing and note arrangements; managed financial consolidation of Respondent's eight companies on a quarterly basis; maintained all pension plan records for Respondent's fourteen pension plans which included calculations of pension benefits, submission of wages and credited service to actuaries in preparation of various pension reports. Petitioner's other duties involved maintenance of company minute books, typing, submission and maintenance of files for all letters of credit issued; keeping patent and trademark files and assisted with telecopy, switchboard and TWX. (Petitioner's Exhibit 2). During 1976, Petitioner worked directly for Respondent's corporate secretary/treasurer, Robert Worrall. The assignment occurred as a result of a recommendation by Respondent's manufacturing manager, Don Anderson. Petitioner was considered the best of the three employees available to work for Worrall. Thereafter, several changes were made in Respondent's corporate makeup including the addition of the Lockport Felt Division in 1977. As a result, additional employees were placed in the accounting department and Petitioner's duties became more secretarial and clerical in nature than accounting. This situation remained unchanged until Petitioner's termination in 1983. Although Petitioner worked directly for Worrall, she was also expected to perform secretarial and clerical work for others in the accounting department, specifically including Harry Kurtz, Vice-President of Finance, Bruce Kennedy, Controller and Hank Burnett, Corporate Administrative Manager. While Petitioner's primary responsibility was to complete Worrall's work, she was also expected to perform work for other accountants and fiscal employees in the accounting department as she was the only trained employee in the accounting department available for typing duties. (TR 35, 106, 133-134, 117-119, 138, 142 and 153). Respondent has not maintained a formal policy concerning employee discipline or warnings for salaried employees, as Petitioner. (Testimony of Cairns and Worrall, TR 19, 46-47, 60 and 77). Commencing in 1980, Worrall became unhappy with Petitioner's work performance. This unhappiness took the form of counseling with Petitioner during year-end annual reviews and included the following deficiencies: "away from her work station when needed; too much time spent socializing with others; unwilling to work; pushing work back on Worrall; untimeliness and failing to timely complete work as assigned." (TR 85, 110, 116- 117). Like Worrall, other employees in the accounting department for whom Petitioner worked were dissatisfied with her performance during the years 1980-1983. Harry Kurtz, Vice- President of Finance, experienced problems with Petitioner's work quality including errors in typing and formatting, misspelled words and inaccurate numbers to the point where he did not want her (Petitioner) to perform his (Kurtz) work. He was thus forced to seek assistance from persons outside the accounting department, including Pat Simmons who replaced Petitioner, to perform his work. Kurtz related these problems to Worrall. (TR 128, 129-133, 131 and 136). Bruce Kennedy, Controller, experienced similar problems with Petitioner's work quality. He noted Petitioner frequently misspelled words and transposed numbers. Kennedy experienced problems concerning timeliness and the invalid excuses by Petitioner for failing to complete assigned work as scheduled. (TR 137-139). Based on Petitioner's poor work quality, Kennedy went outside the accounting department to get assistance in performing his clerical and secretarial duties. Kennedy informed Worrall of his dissatisfaction with Petitioner's work. Hank Burnett, Corporate Administrative Manager, also experienced problems with Petitioner's work quality in regards to accuracy and neatness. Burnett related an incident where Petitioner used so much "white-out" to make corrections that numbers on ledger sheets were not legible. Burnett also experienced problems with Petitioner in getting work returned timely. He also found it necessary to go outside the accounting_ department to solicit the assistance of Pat Simmons to perform his work. Burnett related to Worrall his dissatisfaction with Petitioner's performance. (TR 128, 150). Linda Jaudzimas is presently employed with Niagara Wire Weaving Employees Credit Union. She has held that position since approximately May of 1980. During the years 1978 through May of 1980, Jaudzimas was employed as an accounting clerk in the corporate accounting office for Niagara Lockport Industries. During that time period, she worked directly with Petitioner and Worrall. Jaudzimas described Petitioner and Worrall as having a very good work relationship and that Worrall depended upon Petitioner a lot. However, since May of 1980, Jaudzimas had only limited contact with Petitioner The typical degree of contact would be only to "pick up reports; I would get information from pensions for time reporting periods." (TR 54 and 58). Don Anderson is presently employed as the Manufacturing Manager for Respondent. Anderson has been in Respondent's employ since 1971. From 1971 through January 1, 1974, Anderson was Respondent's Chief Accountant. Anderson had no direct knowledge concerning Petitioner's work performance since January of 1974. Anderson corroborated Cairns and Worrall's testimony that Respondent had no formal policy concerning disciplinary action taken against salaried employees, as Petitioner. (TR 60). Respondent conducted informal evaluations of salaried employees, including Petitioner, at the end of each year in conjunction with salary increases. During Petitioner's 1981 work performance evaluation, Worrall discussed his concerns with Petitioner including the fact that she spent too much time talking to other people; that he always had to look for her and she pushed work back on him. Petitioner's time away from her work station and her negative attitude toward the company's insurance program were items of discussion. (TR 17; 84-88). An entire list of Worrall's concerns respecting Petitioner's job performance were placed in her personnel file during the 1981 annual performance review. (Respondent's Exhibit 1). Petitioner recalls Worrall using that list during their meetings. (TR 36). Petitioner's performance did not improve during the following year and Worrall expressed the same concerns to her during her annual work performance review during 1982. (TR 115-116). Petitioner received "good" salary increases during the late 70's however, due to her poor performance from 1980-1982, Worrall recommended that she receive only the minimum cost of living increases for the years 1981, 1982 and 1983. In mid 1983, Respondent made a decision to reorganize its corporate offices by moving the sales office of Niagara Lockport from Quincy to Starkeville, Mississippi and by making a change in the research and development department. Pat Simmons, age 41, was secretary for the vice-present of research and development. Worrall was familiar with Ms. Simmons and her work having seen it first hand. Additionally, she was highly recommended by her then supervisors. Finally, she had performed work considered to be "high quality" by other employees in the accounting department including Kurtz, Kennedy and Burnett. When Simmons became available due to the reorganization, Worrall decided to replace Petitioner with Simmons. Petitioner's job had become primarily secretarial and clerical in nature and Worrall desired a competent executive secretary to replace her. (TR 88 90, 92, 94, 121-122, 127). Petitioner was 45 years of age at the time of her termination. (Respondent's Exhibit 3). Petitioner's duties were assumed by Simmons (95 percent) and Elaine Hall (5 percent) who was retained since she- possessed requisite accounting skills. Hall was able to complete the cash report in two hours, a job that had taken Petitioner the better part of a day to perform. (TR 86). As a result of the reorganization, two other employees, Loretta Hood (mid 30's) and Virginia Jeffcoat (mid 50's) were terminated. Petitioner was terminated in August, 1983 for the reasons that her performance was not satisfactory and a qualified person (Simmons) had become available due to Respondent's corporate reorganization and staff reduction. This was told to Petitioner at the time of her termination. (Respondent's Exhibit 2; TR 68, 93). Subsequent to her termination, Petitioner requested that Worrall write her a letter of recommendation. Worrall complied, however, Petitioner was not pleased and asked him to write a second one giving him an example to follow (Respondent's Exhibit 7). Petitioner wanted a "good" letter of recommendation so that she could easily obtain another job. In writing the recommendation, Worrall followed his policy of not commenting on negatives but merely set out the type of work Petitioner performed. Petitioner was still unsatisfied with Worrall's second letter and she therefore asked the Respondent's President, Malcolm Cairns, to write a letter of recommendation for her. As with Worrall, Petitioner participated in the drafting of the letter for Cairns by providing him with an example. (TR 22, 23 and 70). Cairns did not include anything negative in the letter so that it would be easier for Petitioner to obtain another job.
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 Petitioner was not terminated due to her age in violation of the Florida Human Rights Act of 1977, as amended. Section 760.10, Florida Statutes (1983) and that Petitioner's Petition for Relief be DISMISSED. DONE and ORDERED this 10th day of March, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1986. COPIES FURNISHED: Steven L. Seliger, Esquire 229 E. Washington Street Quincy, Florida 32351 Swift, Currie, NcGhee and Hiers, P.A., by Victor A. Cavanough 771 Spring Street, N.W. Post Office Box 54247 Atlanta, Georgia 30379-2401 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240/ Tallahassee, Florida 32303. Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
Findings Of Fact The policy being challenged provides that: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. This provision is routinely and customarily embodied in the notices issued by Respondent to parties before it in matters arising under Florida Statutes 447.307 and 447.503. The Respondent acknowledges that it did not adopt and promulgate the policy pursuant to Florida Statutes 120.54 or any other relevant provision of Chapter 120. On 12 July 1979 Petitioner filed a petition with Respondent in which Petitioner sought to represent certain employees employed by the Collier County Board of County Commissioners. This petition was accepted by Respondent and on 30 July 1979 Respondent issued a Notice of Representation Hearing and a Prehearing Order. This Prehearing Order directed the parties to that proceeding to file with Respondent at least seven (7) days prior to the date of the hearing, and serve upon each other, a prehearing statement, identifying: Those fact disputes to be presented for resolution. Any and all legal questions to be presented for resolution. The legal authority to be relied upon by each party in presenting its arguments. Those witnesses to be called at the hearing, except rebuttal witnesses. The approximate time necessary to present the party's case. Any outstanding motions or procedural questions to be resolved. This Pre-Hearing Order then provided: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. Petitioner did not file its prehearing statement within the prescribed 7-day period and on 21 August 1979 Petitioner was notified that the hearing scheduled to commence 23 August had been cancelled. On 22 August Petitioner was advised that a written order cancelling the 23 August hearing had been entered by the Commission. Thereafter Petitioner filed the petition here under consideration contending that the policy of Respondent to enter the cancellation-of-hearing notice in prehearing orders is a rule and invalid by reason of not being promulgated pursuant to Chapter 120. Respondent takes the position that the provision in the prehearing order is not a rule, but even if it could otherwise be considered to be a statement of general applicability, it is exempt from being so found by 447.207(6), Florida Statutes.
Findings Of Fact The following quoted provisions of the joint stipulations of fact entered into by the parties, as attached to this recommended order, constitutes the underlying evidential facts to be considered by the undersigned in deliberating the charges in this case. The exhibits mentioned in the quoted provision may be found as a part of the attached joint stipulations of fact and exhibits, which have been made a part of the record herein. The quotation is as follows: JOINT STIPULATIONS OF FACT The charge herein attached as cumulative exhibit #1 was filed by the Charging party on October 21, 1976 and a copy was simultaneously served on Respondent. Pursuant to Florida Administrative Rule 8H-4.03 a copy of the charge is hereby attached. The trial and presentment of the above-captioned cause was assigned to Rodney W. Smith, attorney for the Charging Party on or about February 25, 1977. Respondent is a public employer within the meaning of F.S. 447.203(2) and has its principal place of business in the City of Jacksonville, Duval County, Florida where it is engaged in the business of operating a consolidated municipal government. Respondent is created directly by the legislature of the State of Florida so as to constitute a consolidated government administered by individuals who are responsible to public officials and/or the general electorate. Charging Party is now and has been at all times material herein an employee organization within the meaning of 447.203(l0) of the Act. On March 4, 1976 Respondent filed a PETITION FOR CERTIORARI with the opinion that said petition would stay the "proposed CERTIFICATION ORDER by the Public Employees Relations Commission until final determination of the case was resolved. On or about May 18, 1976 the Public Employees Relations Commission issued a CERTIFICATION ORDER certifying the Charging Party as the exclusive bargaining representative for the Public Employees in the following unit: INCLUDED: Firefighters Lieutenants Captains Employed by the City of Jacksonville Fire Department EXCLUDED: All officers above the rank of captain employed by the City of Jacksonville Fire Department and all other employees of the City of Jacksonville On or about June, 1976 the Respondent filed an APPEAL of the above- stated certification order by PETITION FOR REVIEW in the First District Court of Appeal in and for the State of Florida. At no time was a stay of the certification order sought or obtained by the Respondent. Although the CERTIFICATION ORDER was challenged by PETITION FOR REVIEW, the Charging Party has been the certified representative for purposes of collective-bargaining of all public employees in the unit described in the above paragraph since May 18, 1976. It has been the continuous policy, and most recently by special ordinance, for the City of Jacksonville to extend dues- deductions to firefighters, lieutenants and captains authorizing such deductions since on or about 1969. This policy of extending dues-deductions to captains, lieutenants and firefighters has continued at all times until October 15, 1976. On October 15, 1976 the biweekly paychecks of the captains (sic) and lieutenants employed by the, Respondent did not reflect the usual dues- deduction. The Charging Party was notified of the City's intention to discontinue dues-deductions for the employees "in the ranks of lieutenants and captains during contract negotiations in late September, 1976. On or about October 18, 1976 agents for the City, including Dave Thompson, Administrative Aide for the Public Safety Department and John Waters, Director of Department of Public Safety informed Robert Carver, President of the Charging Party, that the Respondent would not extend dues-deductions to the captains or lieutenants since the Respondent did not feel these positions were properly included in the certified bargaining unit. The action of the Respondent in discontinuing the dues-deductions on October 15, 1976 was resultant from the attached cumulative exhibit B, Memorandum of September 24, 1976 from John M. Waters to Jack Parker, City Accountant for the City of Jacksonville, which directs that positions above the rank of firefighter are to no longer receive dues-deductions. The Director of Employee Relations and chief negotiator for the Respondent, William Davis, was officially notified of the proposed discontinuation on September 29, 1976 by action of the attached cumulative exhibit c." The act complained of by the Charging Party, is the act of the Respondent in discontinuing the dues-deductions for the ranks of lieutenant and captain effective October 15, 1976. (The facts that led up to that action are established in the stipulations of fact entered into by the parties.) In the mind of the Charging Party the discontinuation of the dues-deductions on October 15, 1976, constituted: (1) an interference with the rights of employees as described in 447.501(1)(a), F.S.; (2) a unilateral change during the bargaining process in violation of 447.50l(1)(c), F.S.; and (3) a specific refusal to comply with the provisions of 447.303, F.S. The Respondent disputes and joins issue with that claim. To resolve the conflict, the case is best discussed by dividing the consideration into two broad categories. The first category is concerned with the question of whether the Respondent's initial petition for writ of certiorari filed with the First District Court of Appeal, State of Florida, on March 4, 1976, and/or the Respondent's appeal of the Public Employees Relations Commission's certification order, which was filed with the First District Court of Appeal, State of Florida; imposed an automatic stay of the effect of the proposed certification order by the Public Employees Relations Commission, and/or a stay of the certification order of May 18, 1976, entered by the Public Employees Relations Commission. Any stay of the proposed certification order and subsequent certification order by the Public Employees Relations Commission must have been effectuated by the filing of the initial petition for writ of certiorari on March 4, 1976, and the appeal of June, 1976, because the facts establish that no specific request was ever made of the First District Court of Appeal or the Public Employees Relations Commission to grant a stay. To that end, the Respondent contends that it could justifiably rely on the Florida Appellate Rule to grant an automatic stay in both the initial petition for writ of certiorari of March 4, 1976, and the appeal of June, 1976 Pertinent provisions of Rule 5.12 state: "Rule 5.12 Supersedeas Bond not Required of the State and its Political Subdivisions and their Boards, Commissions, etc.; Security when Required When Security Not Required. When the state or any of its political subdivisions, or any officer, board, commission or other public body of the state or any of its political subdivisions, in a purely official capacity, takes an appeal or petitions for certiorari, the filing of the notice of appeal or the petition for certiorari as the case may be shall perfect the same and stay the execu tion or performance of the judgment, decree or order being reviewed and no supersedeas bond need be given unless expressly required by the court. Court May Require Bond. The court may, on motion for good cause shown, require a super sedeas bond or other security, in such amount, form and manner as it may prescribe as a condition for the further prosecution of the appeal or certiorari." On the face of the language of Florida Appellate Rule 5.12, it would appear that the Respondent is correct in its assumption of having an automatic stay; however, there is a subsequent appellate decision which defeats the Respondent's right to rely on the theory it offers as standing for the proposition that an automatic stay is granted. That case is Panama City v. Florida Public Employees Relations Commission, 333 So.2d 470, (1st DCA 1976, Fla.). The decision in this case was initially rendered on May 5, 1976, and a rehearing denied on June 29, 1976. The effective date of the decision is July 14, 1976. The Panama City case, supra, concerns the determination by the Public Employees Relations Commission of an appropriate bargaining unit and direction of an election. Those actions by PERC were not found to be final orders and in discussing the position of that Petitioner requesting a writ of certiorari, the Court stated that a stay of the effect of the enforcement of the agency action does not transpire merely by filing the petition for writ of certiorari. Under the ruling, in the decision, the stay may be granted by the agency or by the Court upon appropriate terms and in keeping with the authority of 120.68(3), F.S. That section of Chapter 120 indicated the following: "(3) The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state. The agency may grant, or the reviewing court may order, a stay upon appropriate terms, but, in any event, the order shall specify the conditions upon which the stay or supersedeas is granted." Moreover, in the opinion of the Court in the Panama City case, under Florida Appellate Rule 5.5, the Petitioner for writ of certiorari shall apply to the agency for supersedeas to forestall the terms of the agency action. Through its memorandum the Respondent in this cause has concluded that there is a distinction in the facts of the Panama City case and the facts sub judice, in that the Panama City case dealt with determination of an appropriate bargaining unit and direction of an election which were interlocutory matters, whereas the question here deals with a certification order which is final agency action on the part of the Public Employes Relations Commission. As an adjunct to this argument, Respondent indicated that it is the June, 1976, appeal taken by the Respondent, challenging the Public Employees Relations Commission order of certification, that becomes the focal point of the inquiry upon the subject of an automatic stay. This latter phase of the argument is accepted and it is the June, 1976, appeal that should be addressed. With that fact in mind, the language of the Court's opinion in the Panama City case on a petition for rehearing clarifies any distinction which might be drawn between the right to stay in an interlocutory situation, and the right to a stay of final action by an agency. The Court, in its discussion on rehearing, stated that the PERC order certifying an employee organization's exclusive collective bargaining representative of employees is a final order, which is subject to judicial review, together with all prior interlocutory orders. The Court goes on to say that if PERC refuses to stay any bargaining pending the Court review, the Court would have authority to grant that relief, in A order to make the Court's jurisdiction effective. For this proposition it cites to Article V, Section (4)(b) 3, Florida Constitution. A close analysis of the Court's statement on the rehearing in the Panama City case, supra, points out that the party who takes an appeal of the final order of certification by the Public Employees Relations Commission should look to the Public Employees Relations Commission to grant a stay prior to turning to the Court for such relief. This is in keeping with the requirements of 120.68(3), F.S. It can be seen by an examination of the facts stipulated to in this cause that the Respondent has failed at any point to request of the Public Employees Relations Commission that the effect of the order of certification be stayed pending the outcome of the consideration of the appeal on its merits. Consequently, in keeping with the decision of the Panama-City case, supra, the effect of the certification order is not stayed and any action which the Respondent took in derrogation of the decision of the First District Court of Appeal in Panama City, supra, subsequent to July 14, 1976, the date the decision became binding, may constitute an unfair labor practice. See also, Duval Cty School Bd v. Fla. Pub. Emp. etc., 346 So.2d 1086 (1st DCA 1977, Fla.) Having determined that the effect of the certification order of the Public Employees Relations Commission has not been stayed, consideration of the effect of the Respondent's action which discontinued the dues-deduction after October 15, 1976 for those ranks of lieutenant and captain can be made. It is clear from the facts In the record that it had been the practice of the employer to authorize the dues-deduction for lieutenants and captains since 1969 and there is no showing that the employees in those ranks who requested the dues- deduction ever asked that the deductions be discontinued. The conclusion on the part of the Respondent that the dues-deduction should be discontinued was a unilateral action, premised upon Respondent's individual evaluation of the propriety of including lieutenants and captains in a unit with firefighters. In view of the history of the dues-deduction process for lieutenants and captains in the City of Jacksonville, and the outstanding unit certification by PERC which includes such employees, it is concluded that deductions should have been continued beyond October 15, 1976. This is authorized under the opinion of United Faculty of Palm Beach Jr. College, Case No. 8H-CA- 754-1158. The failure to continue this deduction program beyond October 15, 1976 constituted an action by the Respondent in regard to conditions of employment and was per se a violation of the duty to collectively bargain. See 447.309(1), F.S., and NLRB v. Katz, 396 U.S.736 (1962). This responsibility on the part of Respondent to continue the dues-deduction has now been specifically established in 447.303, F.S., as amended at 77-343, Laws of Florida which reads: "Any employee organization which has been certified as a bargaining agent shall have the right to, upon request, have its dues and uniform assessments deducted and collected by the employer from the salary of those employees who authorized the deductions, set dues and uniform assessments In a related argument, the Respondent attempts to suggest that the Public Employees Relations Commission has unilaterally expanded and redefined the bargaining unit that had been previously agreed to between the City of Jacksonville and Local 1884 IAFF. Specifically, the Respondent claims that the City of Jacksonville and Local 1884 IAFF had agreed that only fire privates be included in the unit in 1973-1974 and 1974-1975, and that thereafter the Commission expanded and redefined the bargaining unit to include firemen and fire officers. Although this may be a fact, this fact is not in evidence through the stipulation of facts and in view of the limitations imposed by the agreement of the parties through their stipulation, the above-referenced information may not be utilized in reaching conclusions in this case. However, assuming arguendo the propriety of those facts, they would not seem to promote a different result in this cause. This conclusion is drawn from an examination of Clearwater Firefighters Association; Local 1158, IAFF and City of Clearwater, Case No. 8H- RC-766-1O68, 77E-377, reported at 3 FPER 177 (1977) and City of Titusville v. PERC, 3,30 So.2d 733 (1st DCA 1976, Fla.) Even though the Commission and the Court seemed to be stating that the Public Employees Relations Commission may not extend the unit which has voluntarily been recognized by the parties, or offered for recognition by the Petitioner for unit determination, these cases demonstrate that each case that occurs should be examined on an individual basis. Applying that process, it would be necessary to request the Public Employees Relations Commission to reconsider their position in the instant case on the question of the appropriateness of the inclusion of lieutenants and captains in the certified bargaining unit, and that decision could be subject to appeal to the appropriate appellate court. Because a determination has not been rendered on the merits of excluding lieutenants and captains from the certified bargaining unit, either by the Public Employees Relations Commission or an appellate court, the certification order remains in effect and all rights and entitlements for ,the unit employees remain in force and effect until amended by a Perc order. Consequently, the act of discontinuing the dues-deduction for lieutenants and captains in the bargaining unit after October 15, 1976, constituted a specific refusal to comply with the provision of 447.303, F.S.; an interference with the rights of employees in violation of 447.501(1)(a), and an unilateral change during the bargaining process, in violation of 447.501(1)(c) , F.S.
Recommendation It is recommended that the Respondent, City of Jacksonville, be required to reinstate the dues-deduction authorizations of those lieutenants and captains in the certified bargaining unit. DONE and ENTERED this 4th day of November, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rodney W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602 Robert G. Brown, Esquire Assistant Counsel Office of General Counsel City Of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Leonard A. Carson, Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, FLORIDA Exhibit A STATE OF FLORIDA
Findings Of Fact The School Board of Pinellas County is a public employer within the meaning of Florida Statutes Section 447.203(2). The Charging Party is an employee organization within the meaning of Florida Statutes Section 447.203(10). During December, 1975, the Charging Party filed a representation petition with the Public Employees Relations Commission seeking to represent a unit of employees of the Public Employer. Proceedings were conducted in accordance with the petition, and on February 2, 1976, the Public Employees Relations Commission, through its chairman, issued a Direction Of Election. A copy of the Direction was received into evidence at the hearing in this case as Respondent's Exhibit 1. The appropriate collective bargaining unit is therein described as follows: "Included: All eligible employees of the Pinellas County School Board employed in the ground maintenance, transportation, plant operations, warehouse and food-service departments. Excluded: All other non-instructional, instructional, and clerical employees; and all managerial/confidential employees of the Pinellas County School Board. See Attachment A." The election as conducted on or about March 11, 1976, and a majority of the employees in the unit described in the Direction of Election voted in favor of representation by the Charging Party for purposes of collective bargaining. The Public Employer thereafter filed objections to the conduct of the election (Respondent's Exhibit 4). The chairman of the Public Employees Relations Commission entered a report on objections on March 31, 1976 (Respondent's Exhibit 5). The chairman dismissed the objections on the grounds that they were not timely filed. On May 12, 1976, the Public Employees Relations Commission certified the Charging Panty as the exclusive bargaining agent for the unit of employees described in the Direction of Election and in the Erratum issued by the chairman of the Commission on February 26, 1976 (Respondent's Exhibit 3). The Public Employer filed a request for review of the chairman's dismissal of the objections (Respondent's Exhibit 6). By decision issued September 7, 1976, the Commission dismissed the objections (Respondent's Exhibit 7). The Public Employer thereafter filed a Petition For Re-Hearing. Further proceedings respecting certification of the bargaining unit were not made a part of the record in this case; however, it is assumed for the purposes of this Recommended Order that the Public Employer is in the process of appealing the Commission's decisions. Following the election, on April 2, 1976, the Charging Party wrote to the Public Employer requesting that negotiations be opened (General Counsel's Exhibit 1). The Public Employer responded by letter dated April 27, 1976 (General Counsel's Exhibit 2), as follows: "As you know, the school board, through the superintendent and my office, has taken appropriate steps to appeal certain procedures relating to the election held in the above matter. Until that procedure has been finalized before the Commission, we will not be in a position to enter into negotiations. It is further noted that you have not received an official notice that you are now the bargaining agent on behalf of a segment of the supporting services of the school board. Until such time as all the proper procedures have been taken before the Commission and a final determination has been made by the courts of the State of Florida, and you have been recognized by the school board as the bargaining agent on behalf of the supporting services employees, we would respectfully deny your request at this time." Following its certification as the collective bargaining representative, by letter dated May 17, 1976, the Charging Party again requested that negotiations be opened (General Counsel's Exhibit 3). Further requests were made by letters dated August 5, 1976, and August 26, 1976 (General Counsel's Exhibits 4, 5). The Public Employer has not responded either in writing or verbally to the requests to open negotiations, other than through its letter of April 27, 1976. The Public Employer has refused to enter into collective bargaining negotiations with the Charging Party, and continues to refuse to enter into negotiations until a final determination is made by the courts respecting the Charging Party's certification, and until the school board has recognized the Charging Party.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Public Employees Relations Commission enter an order requiring the School Board of Pinellas County to recognize the Pinellas County Custodial Union, #1221 as the exclusive bargaining agent of the unit of employees certified by the Public Employees Relations Commission; that the School Board of Pinellas County cease and desist from refusing to engage in collective bargaining negotiations with the Pinellas County Custodial Union, #1221; that the School Board of Pinellas County forthwith enter into good faith collective bargaining negotiations with the Pinellas County Custodial Union, #1221; and that the School Board of Pinellas County advise the Public Employees Relations Commission in writing of what steps it has taken to comply with the final order of the Public Employees Relations Commission between 30 and 45 days following entry of an order by the Commission. RECOMMENDED this 16th day of December, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: B. Edwin Johnson, Esquire Post Office Box 4688 Clearwater, Florida 33518 Austin Reed, Esquire Public Employee Relations Commission Suite 300 - 2003 Apalachee Parkway Tallahassee, Florida 32301 Edward Draper 5400 West Waters Avenue Tampa, Florida
Findings Of Fact Born in Rio de Janeiro, petitioner Paul Sergio Inacio emigrated to the United States from Brazil in 1961, when he was still a teenager. He first worked for respondent for a brief time in 1976. On June 6, 1980, he returned to respondent's employ as a journeyman welder mechanic at Crist Electric Generating Plant, a position he still held at the time of hearing. A "mile square with seven generating units" (T.187), the plant is in Florida, as are respondent's headquarters. Several hundred people work for respondent at Crist Electric Generating Plant alone. In "late June, 1980" (T.235) somebody began calling Mr. Inacio "Julio," nicknaming him after a Hispanic character in a television series (Sanford & Son). The actor portraying Julio "used to drag a goat through the living room . . . and acted . . . stupid." T.236; T.64. Despite (or perhaps because of) petitioner's telling people he did not like being called "Julio," the sobriquet caught on. Even during his initial eight-month probationary period, he made his objections known. T.115, 180. He felt freer to press the point, once the probationary period ended, although at least one friend advised him to do so might be counterproductive T.235-6. Mr. Inacio never referred to himself as Julio. T.28, 99-100, 115, 146-7, 180, 194, 198. Once "he almost got in a fight with [a co-worker] because the guy called him my little Puerto Rican buddy Julio." T.28. Before he retired from his employment as a supervisor with respondent, on July 30, 1987, Murdock P. Walley repeatedly addressed, or referred to petitioner in his presence, as "Julio," "wop," "spic," and "greaser." Mr. Walley's last day at work was "in April or along about then." T.472. Behind petitioner's back, Mr. Carnley heard Mr. Walley refer to petitioner as "wetback," "wop" or "the greaser." T. 27. Co-workers have called him "spic," "wetback," and "greaser" to his face, (T.30) as well as behind his back. Mr. Peakman, another maintenance supervisor, testified that he was guilty of a single lapse: I didn't see him and I asked, "Where's Julio?" And then I caught myself, I said, "Excuse me, where's Mr. Inacio?" I corrected myself right then. T.455. In or about January of 1989, (T.271), Jimmy Lavon Sherouse, maintenance superintendent since May of 1987, referred to petitioner as "Julio" at least once, in the break room. Willard A. Douglas, a supervisor of maintenance at the plant since December of 1981, referred to petitioner as "Julio" frequently. Described as abrasive, Mr. Douglas, also known as "Bubba," has "single[d] Paul out." T.46. But it appeared at hearing at least as likely that Mr. Douglas singled petitioner out because of a run-in which had nothing to do with Mr. Inacio's background, as that he discriminated against him on account of national origin. Prior to June of 1989, continuously since 1981 (T.29), Howard Keels, Calvin Harris, Mike Taylor, Ronnie Yates, and Bill Sabata, Control Center supervisors, C. B. Hartley, supervisor over the coal docks, John Spence and David Hansford, both maintenance supervisors at the time, Mike Snuggs, Joe Patterson, Ed Lepley, Tommy Stanley and Dennis Cowan, supervisors of the laboratory department, Dennis Berg and Joe Kight, schedulers, Tom Talty, the assistant plant manager, Joe Lalas and Larry Swindell, both operations supervisors, all called petitioner "Julio" "[t]o his face in [the] presence" (T.27) of Ricky Carnley, a fellow welder mechanic who testified at hearing. T.21-26. Others also heard supervisors call petitioner "Julio." T.79-80, 110, 144-6, 178-9, 195-6, 237-9, 537-8. Not without reason, petitioner came to feel that "(a)nything associated with Hispanic heritage that could come up, I was called at some point or other by practically anybody." T.267. Angelo Grellia, a fellow mechanic who testified "I'm a wop, you know" (T.79) (emphasis added) remembered co-workers calling petitioner a "wop." A newspaper cartoon posted on a bulletin board in the employee break room (not the bulletin board reserved exclusively for management's use) depicted a man using a two-by-four. Petitioner "is known for using two-by-fours a lot to move stuff, pry stuff for leverage." T.34. The cartoon was labelled "Julio." Another time somebody posted a newspaper clipping, a report of a parricide, complete with picture; the killer's name had been lined through and Mr. Inacio's had been substituted. T.112, 158, 179. After two days, a fellow employee took it down (T.158), apparently without Mr. Inacio's ever seeing it. Still another time somebody posted "a National Geographic picture" (T.181) that resembled petitioner "and the caption said, can you guess who this is." T.181. Somebody had guessed and written in "Julio." T.243. According to uncontroverted testimony, white Anglo-Saxon men "were not selected to be the butt of these sorts of jokes." T.159. Over the plant's public address system, in Mr. Talty's presence, Charles Brown referred to petitioner as "Paul Inasshole," a play on his surname. T.25. No other employee was ridiculed in such a fashion, as far as the evidence showed, (T.49) but broadcasts in a similarly offensive vein ("An asshole" "A nasty hole") took place repeatedly over respondent's public address system. T. 24-25, 48-49, 71, 144-146, 163, 240. At all pertinent times, respondent had widely disseminated written equal opportunity and affirmative action policies with the stated "intent . . . to provide all employees with a wholesome work environment." Respondent's Exhibit No. 2. "Company policy prohibits intimidation or harassment of its employees by any employee or supervisor." Id. But, as Barbara Louise Mallory, an "Equal Employment Opportunity representative" (T.477) in respondent's employ, conceded, the "conduct that went on was against [Gulf Power's] policies and against the law." T.484. Respondent's Exhibit No. 2 stated that employees "subjected to conduct which violates this policy should report such incidences to their immediate supervisor, a higher level of supervision, or the Company's Equal Employment Opportunity Representative in the Corporate Office." Id. In the present case, both respondent's immediate supervisors and "a higher level of supervision," were well aware of the harassment to which petitioner was subjected, before he officially reported it. Supervisors were themselves guilty of harassment. On February 8, 1988, Mr. Sherouse, the maintenance superintendent, addressed "a routine shift meeting with employees [and] discussed with them the need to refrain from destruction of employees' or company property." Respondent's Exhibit No. 8. Mr. Sherouse "essentially said . . . some employees . . . were being singled out . . . . " T.295. He told employees at the meeting that "such an incident . . . could result in an action up to termination." Id. At the same meeting he "also discussed cartoons and calendars that could be considered . . . racial or sexual harassment . . . [directing that] they must be removed now." Respondent's Exhibit No. 8. These matters were also discussed at an employee information meeting in January of 1989. Petitioner's Exhibit No. 1. But harassment of petitioner continued. "[Q]uite frequently . . . thick heavy grease would get smeared on his toolbox, underneath the drawers of his toolbox." T.34. The lock on his locker was glued or "zip-gripped" shut several times, and had to be cut to open the locker. Respondent's Exhibit No. He is the only employee (T.39) who had to change clothes because some sort of itching powder was put in his clothes. Somebody put "Persian Blue," a particularly persistent dye, in his glove. At respondent's counsel's behest a list was prepared of "employees who have experienced problems with someone tampering with their tools or person[a]l lockers," Respondent's Exhibit No. 10, during the two years next preceding the list's preparation on August 4, 1989. Of the nine employees listed, seven were white Caucasians whose tools or books had been lost or stolen. 1/ Unlike the native-born men on the list, petitioner and Debbie Mitchell, the only other person listed, were subjected to repeated instances of vandalism and other harassment, including unflattering references in cartoons posted on the bulletin board in the break room. Although petitioner did not request it, management assigned him a new locker, something they did for no other employee. According to a co-worker, petitioner, who once taught welding at Pensacola Junior College, "likes to do a good, clean, responsible job" (T.185) of welding. But, on October 22 and 23, 1988, when petitioner and Millard Hilburn worked on "the #7 bottom ash discharge piping," Respondent's Exhibit No. 21, at Willard Douglas' behest, they failed to stop seepage from the pressurized pipe (which was in use while they worked) by welding, and resorted to epoxy which, in Mr. Douglas' "opinion[,] . . . [was] bad judgement and very poor workmanship." Id. Of 30 or 40 welders respondent employed at Crist, only one or two "still have a clean record. Eventually somebody is going to get a leak." T.202. Petitioner's work record is basically a very good one, although not perfect. Nevertheless Mr. Sherouse, after putting petitioner's name on a list of three "employees who for different reasons are not performing their jobs," Respondent's Exhibit No. 7, summoned petitioner to a conference about his job performance, on January 20, 1989. The other two employees were Scott Allen, whose problem was "attitude . . . distrust, dislike . . . just unbelievable" (T.443; 420) and Ed Lathan who "hadn't been there since June of '87" (T.420) except sporadically "working light duty." T.420. Mr. Sherouse also prepared various memoranda concerning petitioner; and caused other managers to prepare still other memoranda. Only after the January conference was petitioner involved in the repair of a boiler tube that failed. (He welded one end of a replacement piece that may have been improperly sized and had already been welded in place by others.) In contrast to petitioner's involvement in two incidents (only one of which occurred before the filing of the complaint), at least one other welder mechanic working for respondent had made five welds that failed in short order. On April 11, 1989, petitioner was assigned the job of cleaning plugged nozzles on intake screens for units four and five (although ordinarily operators themselves did such routine maintenance.) He first went to the control room for units four and five and asked directions to the intake screens, which are part of the cooling system. Misunderstanding directions, he went to the wrong cooling system intakes, those for units six and seven, instead of those for four and five, and started work without finding a red tag (used to indicate that somebody from operations had "isolated" the equipment) and without placing his own tag on an electrical switch that equipment operators use. He did, however, place tags on valves that had to be opened in order for the system to operate. When Mr. Sherouse heard what had happened he sent Mr. Inacio home from work. Although Mr. Sherouse did not at that time "announce termination or non- termination, pay or no pay" (T.436), petitioner was eventually paid for the time off, which lasted two days during the purported pendency of an investigation, which consisted of "going back and looking at his files." T.437. Without credible contradiction, several people testified that mistaking one piece of equipment for another occurred not infrequently (T.85) at the Crist plant. The evidence showed that much more serious safety lapses had, in general, elicited much milder responses from management. Petitioner was criticized more harshly than non-minority employees for the same or comparable performance. T.31-33, 73-74, 112-120, 130-131, 148-9, 150-4, 186-7, 197, 257- 263. Petitioner's safety record was "better than most." T.424. An Indian who works at the Crist steam plant, Ron Taylor is known as "Indian" or "Chief." T.52. Supervisors referred to Nicholas Peterson as "a damned Greek" (T.111) when he worked at respondent's Crist plant. "From January 1982 until March 1990," just about every supervisor at Crist "refer[red] to some . . . blacks as being niggers." T.135. Objection was sustained to admission of colored Beetle Bailey comic strips crudely altered to depict cartoon characters engaged in oral sex. But Ms. Mitchell testified without objection to other "extremely vulgar cartoons" (T.157) she saw posted on the bulletin boards including one with her name on it. T.159. (When she complained to Mr. Sherouse, he eventually reported back to her that the reference was to a different Debbie.) At Crist Electric "they use the good ole boy theory . . . [i]f you fit into their select group, you're taken in, you're trained . . . you get better selection of jobs. If you're not, you're an outcast." T.136. Petitioner "definitely" got more than his share of "dirty jobs," specifically precipitator work and condenser work. T.183; 85-86, 147-8. Petitioner's "pride was hurt." T.265. He felt humiliated. Unfair criticism affected his morale. T.36. At least one co-worker "could sense . . . that he felt like he was not wanted there." T.37. He considered leaving his employment and even told at least one Gulf Power official that he was doing so. See Respondent's Exhibit No. 3. Discriminatory treatment affected his ability to concentrate, and so his job performance. T.36, 37.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR order respondent to refrain from harassing or otherwise discriminating against petitioner on account of his national origin. That the FCHR award petitioner reasonable attorney's fees and costs. DONE and ENTERED this 14th day of May, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991.
The Issue The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner by discriminating against her based on sex and race and by retaliating against her.
Findings Of Fact Ms. Jones is an African-American female. From May 29, 2007, to December 5, 2007, Ms. Jones was employed by Spherion. Spherion provides temporary employees to businesses. Spherion had a contract with American Automobile Association (AAA) to provide temporary employees for an AAA call center in Lake Mary, Florida. AAA does not pay the Spherion employees, Spherion does. AAA can request that Spherion terminate a Spherion employee from an assignment at AAA. Ms. Jones was employed as a customer service representative (CSR) at the AAA site in Lake Mary, Florida. Her duties included taking calls from AAA customers who were in need of roadside assistance. At the time Ms. Jones was working at the AAA site, approximately 150 to 200 Spherion employees were assigned to the AAA call center. Approximately 60 to 70% of the Spherion employees were female, and approximately 60 to 70 of the female employees were members of racially protected classes. Ms. Jones received the CSR Performance Participant Guide, which is provided to all CSRs working on-site at AAA. On May 21, 2007, Ms. Jones executed an acknowledgement of having received the Spherion Workplace Harassment policy, the Spherion Attendance and Punctuality policy, and Spherion’s Policies and Procedures – Application Supplement. She also executed an acknowledgement of having received Spherion’s Equal Opportunity Statement. On June 7, 2007, Ms. Jones executed an acknowledgement of having received Spherion’s Customer Service Quality Commitment policy. During her employment with Spherion, Ms. Jones was paid $10.00 per hour. Ms. Jones received approximately two weeks of training. She began taking live calls on her own on June 10, 2007. Spherion allowed Ms. Jones two months to learn her job before Spherion began to evaluate her calls for quality assurance purposes. Spherion has a progressive discipline policy. A verbal warning is first given followed by a written warning, and then a final warning. On July 30, 2007, Ms. Jones received a verbal warning for attendance. On August 23, 2007, she received a final warning for call avoidance because she had failed to follow Spherion’s policies and procedures related to receipt of incoming calls. On September 18, 2007, Ms. Jones received a verbal warning regarding safety because she did not use a safety statement in one or more of her calls. According to the policies of Spherion and AAA, the goal for each skill set for a CSR is 90%. On September 11, 2007, Ms. Jones’ performance for quality assurance (QA) for the month of August was rated as 79%. She was given a verbal warning for performance on September 7, 2007, for her poor performance in August. Ms. Jones was advised that immediate action was required to correct her performance, and that failure to meet the quality standards could lead to further discipline, including termination. Ms. Jones’ QA average for September was 69%. As a result of her QA average for September, Ms. Jones was given a Written Warning for Performance on October 11, 2007.1 Again, she was warned that she needed to take immediate action to improve her performance and that failure to do so could result in further disciplinary action, including termination. Ms. Jones received a QA average of 77% for the month of October. As a result of her October average, she received a Final Warning for Performance on November 2, 2007. Once again, Ms. Jones was reminded that she needed to take immediate action to improve her performance and that failure to do so could lead to further discipline, including termination. For the month of November 2007, Ms. Jones received a QA average of 78.2%. On December 2, 2007, Spherion received an e-mail from Matthew Cooper, an AAA supervisor, directing Spherion to terminate Ms. Jones assignment at AAA for failure to achieve QA from August through November, 2007.2 As a result of her poor performance, Ms. Jones’ assignment with AAA was terminated on December 7, 2007. At the time her assignment was terminated, Ms. Jones was being paid $11 per hour and was working 40 hours per week. AAA has requested that other Spherion employees assigned to the AAA call center have their assignments terminated for low performance for four months, and Spherion complied with those requests. Such employees included a white male, an African-American/Hispanic female, and an Asian/American male. The termination of an assignment to the AAA site did not mean that Ms. Jones was terminated from employment with Spherion. If Ms. Jones desired to seek an assignment with another Spherion client, she could have contacted the Spherion branch office. Ms. Jones did not contact Spherion for another assignment. Ms. Jones filed for unemployment compensation and received one check for $182.00.3 During the second week of January 2008, Ms. Jones began to work for Kelly Services. She worked approximately 25 hours per week until she left Kelly Services during the first week of June 2008. Her hourly rate of pay was $10.75 per hour. From June 23, 2008, to September 22, 2008, Ms. Jones was employed by Careers USA. She worked approximately 40 hours per week, and her hourly rate of pay was $10.75. After leaving Careers USA, Ms. Jones went to work for Comcast, where she is currently employed. She works 40 hours per week, and her hourly rate of pay is $10.75. Spherion has a workplace harassment policy which was provided to Ms. Jones at the time of her hiring. The policy provides in pertinent part: Spherion Corporation, including all of its divisions, business groups and subsidiaries [“Spherion”], is committed to providing a work environment free of unlawful harassment. Harassment based on an individual’s race, religion, color, national origin, citizenship, marital status, sex, age, sexual orientation, veteran status, disability or any other legally protected status is strictly prohibited and will not be tolerated at Spherion. Employees have a right to be free from harassment from managers, co-workers, and non-employees with whom Spherion employees have a business, service, or professional relationship, including, but not limited to, vendors, clients and client employees. Every Spherion manager and supervisor is responsible for ensuring that the spirit, intent, and goals of this anti-harassment policy are achieved. * * * All employees must report incidents of harassment. Any employee who believes that he or she is being harassed by a co-worker, supervisor, manager, or other individual at the workplace — whether employed by Spherion or not — or believes that his or her employment is being adversely affected by such conduct, should immediately report such concerns to his or her supervisor, next-level manager, or other manager or the HR department. A human resources representative may be contacted at – Human Resources, c/o Spherion Corporation, 2050 Spectrum Boulevard, Fort Lauderdale, FL 33309, 800- 839-1965, or employeerelations@spherion.com. If a Spherion employee has a complaint about an AAA employee, the Spherion employee is to contact Spherion, not AAA. Spherion has the responsibility to look into the matter. When Ms. Jones first became employed with Spherion, she made a complaint that one of the AAA security guards was rude to her concerning the use of a restroom. April Jaques, who was a Spherion client service supervisor and responsible for staffing and human resources at the AAA call centers, followed up on Ms. Jones’ complaint and learned that Ms. Jones had been using a restroom that was off limits to employees after the building was closed for the night. The security guard had correctly advised Ms. Jones about the use of the restrooms. Ms. Jaques explained to Ms. Jones which restrooms could be used by overnight employees. Ms. Jones claimed that John Sherwood, who was not her supervisor, had discriminated against her based on her gender because he was disrespectful and rude and had accused her of destroying a computer. Her basis for claiming discrimination was that she “didn’t see him talking to men that way.” She also claimed that Mr. Sherwood had retaliated against her because she had complained to management about his being rude and disrespectful. Her testimony was not clear how he retaliated against her. Mr. Sherwood had no control over Ms. Jones’ pay, benefits, or terms and conditions of employment. While Ms. Jones was assigned to AAA, Anthony Hinton was an AAA supervisor. Because Mr. Hinton was employed by AAA, Spherion could not discipline Mr. Hinton. Mr. Hinton has been described as a “by-the-book kind of guy,” who sometimes “rubs people the wrong way.” He expected all employees to follow policy regardless of the employee’s race or gender. There were some complaints about his abrasive management style. Some complaints were made by employees who are not members of a protected class. The evidence does not support Ms. Jones’ assertions that Mr. Hinton was hostile only to African-American women or women of color. In November 2007, AAA required him to attend some anger management sessions with a therapist. He completed the therapy sessions. On September 6, 2007, Ms. Jones sent an e-mail to Mike Fratus, an employee of AAA, complaining about Mr. Hinton. She stated that Mr. Hinton had been rude and hostile to her on her first day of work on the call center floor. She complained that Mr. Hinton had put her on notice because of her footwear,4 but had not said anything to an employee who was sitting nearby and wearing similar footwear. She further added, “[t]he word going around is he is hostile and demeaning to Black women only.” Ms. Jones did not specifically name any other Black women to whom Mr. Hinton was rumored to be hostile and demeaning. Mr. Fratus forwarded the e-mail to April Jaques on September 11, 2007. Ms. Jaques scheduled a time to speak with Ms. Jones regarding her concerns. It was Ms. Jaques’ understanding that AAA would follow-up regarding the complaint against Mr. Hinton because Mr. Hinton was an AAA employee. Mr. Hinton credibly testified that he spoke to Ms. Jones about her inappropriate footwear, but that he did not see any other employee at the time with similar footwear. Mr. Hinton has spoken to non-African-American men and women about their attire. On September 19, 2007, Ms. Jones sent an e-mail to April Jaques. Ms. Jones complained that Mr. Hinton had talked to her about logging in early.5 She denied that she had logged in early and asked that “[n]o action be taken.” She further stated: Again after speaking with you and being counseled on compliance regarding my time I immediately wanted to correct the issue. This is just very disturbing to me especially after sharing with you and Mike how he [Hinton] discriminates with his treatment toward women of color. Ms. Jaques discussed the e-mail with Ms. Jones. Ms. Jones did not give Ms. Jaques any names of women that were being discriminated against by Mr. Hinton. Because Mr. Hinton was an employee of AAA, Ms. Jaques sent a copy of the e-mail to AAA. In October 2007, Jamie Jordan, a dispatcher who was employed by Spherion, complained to Mike Fratus about an incident concerning Ms. Jones that happened on the call center floor. Mr. Jordan had approached Ms. Jones about some information that was missing from a call that had been received requesting a tow truck. Mr. Jordan felt that Ms. Jones was rude and disrespectful to him when he approached her. Mr. Fratus sent an e-mail to Ms. Jaques, outlining Mr. Jordan’s complaint. On October 5, 2007, Ms. Jaques spoke to Ms. Jones about the incident between Ms. Jones and Mr. Jordan. Ms. Jones claimed that Mr. Jordan was rude and harsh to her. During the conversation, Ms. Jones became angry and accused Ms. Jaques of discrimination and harassment. Ms. Jaques attempted to calm Ms. Jones and told Ms. Jones that she would investigate the incident. Ms. Jones gave Ms. Jaques the names of some employees who had witnessed the incident with Mr. Jordan. Ms. Jaques investigated the issue, including talking with other employees who had heard the altercation. Ms. Jaques concluded that both Mr. Jordan and Ms. Jones were to blame for the incident. Based on Ms. Jones’ testimony, as of November 1, 2007, she had filed an employment discrimination complaint against Spherion with the Florida Human Rights Association. The complaint was forwarded to the Equal Employment Opportunity Commission. Ms. Jones filed an amended complaint on December 17, 2007. On November 11, 2007, Ms. Jones sent an e-mail to Simon DeYoung, an employee of AAA, complaining of sexual harassment, verbal abuse, and retaliation. Specifically, she was claiming that there were supervisors and a team leader who were listening to her calls and referring them to the quality assurance section; thus, her calls were not being monitored on a random basis. She also claimed that she had made a recommendation that the Dispatch section make return calls to members for updated information rather than having a CSR get the correct information and that Dispatch was upset with her for making the recommendation. Simon DeYoung forwarded the e-mail to Spherion management. Stacy Futch was Spherion’s on-site client service representative at the AAA site in St. Mary. She met with Ms. Jones on November 11, 2007, concerning Ms. Jones’ e-mail to Mr. DeYoung. Ms. Futch asked Ms. Jones about her claim of sexual harassment, and Ms. Jones said that it had happened months ago and that she had not brought the matter up before because she did not think that the issue would be addressed. Ms. Jones did not go into detail with Ms. Futch about the alleged sexual harassment actions. Ms. Jones felt that Mr. Jordan was sexually harassing her based on some comments that he had made to her. Mr. Jordan was not Ms. Jones’ supervisor. During the first week of Ms. Jones’ employment with Spherion, Mr. Jordan asked her if she would like to go fishing. Mr. Jordan admitted that he had told Ms. Jones that he thought she was beautiful, but that he had never seriously asked her to marry him. Ms. Jones went to Mr. Jordan and asked him to stop making comments to her. Three days later he told her that she looked nice. Ms. Jones testified that in October 2007, Mr. Jordan told her that he was drinking milk and that he was growing. Ms. Jones said she took the comment to mean that his penis was getting larger. Mr. Jordan denied he made any comments about drinking milk. Given Ms. Jones’s conversation to Ms. Futch in which she told Ms. Futch on November 11, 2007, that she had not experienced any sexual harassment for several months, and Ms. Jones’s testimony that after the October 5, 2007, altercation with Mr. Jordan that there had been no further incidents involving him, I find that Ms. Jones’ testimony about the milk to lack credibility. Ms. Jones did not make a complaint to Ms. Jaques about Mr. Jordan’s comments. Ms. Jones claims that her low performance scores were a result of her scores being manipulated by either AAA or Spherion as retaliation for making a complaint of discrimination and harassment. The evidence does not support Ms. Jones’ claim that her scores were manipulated. Ms. Jones had heard that some supervisors were dismissed for manipulating scores, and she concluded that if other scores could be manipulated then her scores must have been manipulated. The rumors that Ms. Jones had heard about supervisors had nothing to do with the manipulation of QA scores and Ms. Jones’ claim of manipulation is based on pure speculation. Ms. Jones claims that two other employees Jessica Robart and Marci Palumbo, who were white females, had low QA scores and were not dismissed for poor performance. Ms. Jones’s claim is unfounded. Ms. Robart had low performance scores for the last two weeks in June 2007 and for the last two weeks in July 2007. Marci Palumbo, referred to as Ricky or Marsha by Ms. Jones, had a low performance score for August 2007. Neither Ms. Robart nor Ms. Palumbo had four consecutive months with low performance scores. At least one non-minority male employee’s employment has been terminated for poor performance relating to QA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Ms. Jones’ Petition for Relief and denying Spherion’s request for attorney’s fees and costs. DONE AND ENTERED this 2nd day of April, 2009 in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 2nd day of April 2009.
The Issue Whether Respondent unlawfully terminated the employment of Petitioner on July 31, 2000, because of his race and/or age in violation of the Florida Civil Rights Act of 1992, Subsection 760.10(1), Florida Statutes (2001).
Findings Of Fact Respondent, Argenbright Security, Inc., now known as Cognisa Security, Inc., is an Atlanta, Georgia-based corporation that provides commercial security services to customers on a nationwide basis. Respondent employs security officers who are placed on assignments at customers' premises. Relevant to this action, Respondent maintains an office in Orlando, Florida, to support its commercial security services in Central Florida. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 (FCRA). Petitioner was employed with Respondent from May 1998 to July 31, 2000. Petitioner is an African-American male who was 50 years of age upon hiring and 52 years of age upon his discharge from Respondent's employ. During his employment with Respondent, Petitioner was provided with Respondent's employment policies, including the equal employment opportunity policy which prohibits all types of unlawful discrimination in the workplace. Throughout his employment with Respondent, Petitioner worked as a district manager and was supervised by Buckwalter, who was Respondent's vice president and general manager of the Southeast region. Buckwalter made the decision to hire Petitioner and made the decision to discharge him. Based on a decline in business and a lack of work, Buckwalter himself was discharged by Respondent in January 2002. Petitioner's job duties as a district manager included supervising Respondent's account managers who managed security officer accounts and ensured overall customer satisfaction. Petitioner was responsible for supervising the management of approximately 60 customer accounts in Orlando, Jacksonville, Tampa, and St. Petersburg. Petitioner supervised a staff of approximately 33 employees, excluding Respondent's security officers. The list of Respondent's customers in Petitioner's region included, but was not limited to, the following entities: the City of Orlando, U.S. Airways, Delta Airlines, Northwest Airlines, Orange County, C&L Bank, Citrus Center (also known as Tricony Management), Florida Power Corporation, Solivita (also known as Avitar), and Ocwen. Respondent alleges that Petitioner's performance deteriorated during the last six months of his employment, and as a result, Petitioner was discharged on July 31, 2000. Buckwalter testified that he made the decision to terminate Petitioner's employment based on his receipt of numerous customer complaints regarding Petitioner's management of accounts and failure to resolve problems, numerous complaints from Petitioner's subordinates regarding Petitioner's management style and lack of guidance, and Petitioner's failure to properly perform his administrative duties. Buckwalter received eight to ten complaints from Respondent's customers about Petitioner's management of their accounts. Several of Respondent's customers repeatedly complained about Petitioner's management skills. Buckwalter received complaints from Respondent's customers regarding Petitioner's lack of attentiveness towards their accounts, failure to conduct client meetings, and inability and unwillingness to resolve client problems. When Buckwalter discussed the customer complaints with Petitioner, Petitioner sometimes acknowledged the seriousness of the concerns and sometimes became defensive and dismissed the complaints as unreasonable client demands. Two of Respondent's customers, Tricony Management and C&L Bank, specifically demanded that Petitioner be removed from the management of their accounts based on his lack of service and "cavalier" attitude toward their requests. Linda Mansfield, who was the client contact at Tricony Management, sent an e-mail complaint to Respondent's business development manager, Warren Bovich, in regard to Petitioner and Robert Stevenson on February 8, 2000. Tricony Management did not cancel its account with Respondent. However, they insisted that Robert Stevenson and Petitioner be removed from the account. Petitioner admitted that the following customers complained regarding his servicing of or management of their accounts: Ocwen, Citrus Center/Tricony Management, City of Orlando, Avitar/Solivita, C&L Bank, and Florida Power Corporation. Petitioner disagreed with the substance of those complaints. Petitioner also admitted that he had a personality conflict with a Citrus Center employee. Regarding the City of Orlando account under Petitioner's supervision, Petitioner admitted that employee turnover was a problem, that the account was not meeting the budgeted goals, and that Respondent's employees routinely missed their scheduled work shifts. Petitioner further admitted that Avitar/Solivita was upset with him about his unauthorized recruiting efforts. In addition to the customer complaints, Buckwalter received approximately 30 to 35 complaints from Petitioner's subordinates regarding Petitioner's management style. Petitioner's subordinates complained that Petitioner was not concerned with their career development, failed to provide them with timely performance evaluations, failed to conduct staff meetings on a routine basis, failed to attend staff meetings which he had scheduled, did not provide proper support and mentoring for customer accounts, and was generally unavailable to them based on his lack of time in the office. Petitioner admitted that a subordinate complained to Buckwalter regarding Petitioner's failure to provide him with a performance evaluation in a timely manner. Petitioner also acknowledged that Buckwalter received a complaint from Respondent's employee regarding his failure to properly process administrative paperwork. Petitioner admitted that he does not know whether Buckwalter received additional complaints from his subordinates regarding his management. Accordingly, Buckwalter's testimony that he received 30 to 35 complaints from Petitioner's subordinates regarding Petitioner's management is credible. Buckwalter's decision to discharge Petitioner was also based, in part, on Petitioner's failure to properly process administrative paperwork. Buckwalter informed Petitioner, in writing, that his neglect of his administrative duties was unacceptable. Buckwalter also determined that on several occasions, Petitioner provided misleading information about his whereabouts by falsely reporting that he was out of the office conducting client appointments. In addition to Petitioner, Buckwalter supervised several other of Respondent's district managers, including Blake Beach (Beach) and Scott Poe (Poe)--both of whom were formerly employed as district managers in South Florida. While serving as Beach's supervisor, Buckwalter received a single complaint from Respondent's customer, United Airlines (United), regarding Beach's sending of an inappropriate e-mail. United's compliant did not concern Beach's servicing or management of United's account. Other than United's single compliant, none of Respondent's other customers submitted complaints regarding Beach. Based on United's complaint regarding Beach's inappropriate e-mail, Respondent transferred Beach from South Florida to the Baltimore/Washington, D.C., area. While serving as Poe's supervisor, Buckwalter received complaints from two of Respondent's customers (in the South Florida region) regarding Poe's management of their accounts. Because Poe had been successful with other accounts, Buckwalter believed that the two complaints might have been based on a personality conflict. Buckwalter decided to transfer Poe from the district manager position in South Florida to the district manager position in Central Florida. Buckwalter never received complaints from Poe's subordinates regarding Poe's management or supervision. After Poe became the district manager in Central Florida, Respondent received additional complaints from several customers regarding Poe's handling of their accounts. Based on these complaints, Buckwalter made the decision to terminate Poe's employment with Respondent. Buckwalter made the decision to discharge Poe and Petitioner based on a similar number of complaints received from customers in their respective regions; but unlike Poe, Petitioner was discharged for additional reasons: the numerous complaints from his subordinates and the neglect of his administrative duties. Robert Matecki, who was 55 years old when he was hired, replaced Petitioner as Respondent's district manager in Orlando. Petitioner does not allege that Respondent discriminated against him at any time prior to Petitioner's termination on July 31, 2000. Petitioner does not contend that Buckwalter (the decision-maker in this case) ever made any discriminatory comments to him. Petitioner admits that he does not know what factors Respondent considered in making the decision to terminate his employment. Buckwalter testified that he did not consider Petitioner's age and race in making the decision to discharge Petitioner. Instead, he based the decision on customer and subordinate complaints about Petitioner's management style and Petitioner's failure to perform his administrative duties. Because Petitioner admits that he does not know upon what factors Buckwalter based his decision, Buckwalter's testimony is undisputed. Petitioner bases his allegations on his own personal beliefs about his performance and his disagreement with the substance of the complaints made by Respondent's customers and his subordinates.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Florida Commission on Human Relations enter a final order which denies Petitioner's Petition for Relief and dismisses his complaint with prejudice. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S 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 25th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Wayne Johnson, Esquire DeCiccio, Johnson, Herzfeld & Rubin 652 West Morse Boulevard Winter Park, Florida 32789 John S. Snelling, Esquire James P. Ferguson, Jr., Esquire Duane Morris, LLP 1180 West Peachtree Street, Suite 700 Atlanta, Georgia 30309 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, 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 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 20th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
