The Issue The issue to be resolved in this matter is whether the Petitioner was terminated from employment with the Respondent because of her race.
Findings Of Fact Petitioner is a black female and is a member of a protected class. Respondent employed Petitioner at the time of the alleged discrimination. Petitioner was employed by Respondent for approximately three and a half months, from her date of hire on December 17, 1994, through her date of termination on March 30, 1995. She was fired for insubordination. Petitioner was employed by Respondent as a Certified Nursing Assistant (CNA). Her responsibilities as a CNA included taking care of patients and cleaning the facility. Her direct supervisor was Barbara Jean Gossett. Petitioner claims she was fired because of her race, alleging disparate treatment. To support this allegation, Petitioner cited an example of a white female who was having problems with her baby, whom Petitioner testified was sick, and that the white employee would come in for work when she was ready. Petitioner alleges the employee often reported late for work. Petitioner does not know the name of the employee, does not know who the white female talked to about reporting to work, and was not involved in any decision about whether the white female could or could not report late as a result of her child's ailments. Petitioner presented no other evidence or documents to support this allegation. Petitioner, when asked for any other basis for her claim of discrimination, cited an example of a woman who she claims never did what she was required to do, although she said the woman was in charge. Petitioner presented no other evidence or documents to support this allegation. Petitioner also alleges she was fired because of her race based on the way her supervisor, Barbara Jean Gossett, acted toward her. Petitioner also cited the varying way her supervisor verbalized instructions to the black and white staff. During examination by Respondent's counsel, Petitioner acknowledged receipt of Respondent's employee handbook on her first day of employment. She acknowledged that the purpose of the handbook is to notify employees of the rules and expectations and also to provide notice of behaviors that would lead to discipline or termination. She admitted that, based on the handbook, she knew what kind of behaviors were appropriate and what were considered inappropriate. She admitted that in the setting of a nursing home, punctuality was important. Petitioner admitted that there was a progressive disciplinary schedule in place for tardiness. She further admitted that under the schedule in place during her employment, an employee who was late seven or more times in a 90-day period would be fired. The supervisor, whom Petitioner claims was racist, however, did not fire Petitioner as the policy permitted. In fact, that same supervisor recommended a discretionary merit increase for Petitioner. Petitioner's performance evaluations show that as of March 14, 1995-approximately three months into her employment- she had been tardy nine times, absent three times, and had a performance rating below standard, which was the lowest rating permitted by the evaluation form. On March 29, 1995, Petitioner refused to clean an assigned work area during her shift. The employee handbook Petitioner received lists refusing a job assignment as number one on the list of behaviors that can lead to immediate termination and for which there is no progressive disciplinary schedule (as there is for tardiness and certain other offenses). As noted, Petitioner was fired for this incident. Finally, Petitioner admitted that she signed her Charge of Discrimination on June 18, 1996, and that it was filed June 20, 1996.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of October, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 October, 2001. COPIES FURNISHED: Joann Annichianrico Tandem Healthcare, Inc. Cherrington Corporate Center 200 Corporate Center Drive, Suite 360 Moon Township, Pennsylvania 15108 Josephine Hayes Davis Route 4, Box 4699-M Monticello, Florida 32344 James Garrity, Esquire McConnaughay, Duffy, Coonrod, Pope & Weaver, P.A. 101 North Monroe Street Post Office Drawer 229 Tallahassee, Florida 32302-0229 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Michael A. Doub was employed as a correctional officer I at DeSoto Correctional Institution, Department of Corrections. He held this position from October 3, 1986 until he was determined to have abandoned his position on June 8, 1989. During this period, Doub's work performance had been rated at the "achieves standards" level. Doub had in excess of twenty (20) days of accumulated leave credits available for use at the time of his separation from employment with the Department. On June 4, 1989, Officer Doub was arrested by the Hardee County Sheriff's Department on the charge of sexual battery. Doub was taken to the Hardee County Jail where he was confined until he could post appropriate bail. Doub was scheduled to work from 8:00 a.m. to 4:00 p.m. on June 4, 1989. On June 4, 1989, DeSoto Correctional Institution, specifically Lieutenant James Jacobs, was notified by Sergeant J. Krell of the Hardee County Sheriff's Department of Doub's arrest, the charges pending against him and his confinement at the Hardee County Hail pending the posting of appropriate bail. Lieutenant Jacobs is Officer Doub's immediate supervisor. This contact was not initiated at Officer's Doub's request. Officer Doub was aware the Sheriff's Department had notified the Institution of his whereabouts and situation. Doub did not contact the Institution in order to specifically request that he be granted leave pending his release from jail. On June 12, 1989, Officer Doub was released from the Hardee County Jail after posting bail. On the same date, he received the letter of abandonment from DeSoto Correctional Institution. On June 12, 1989, Officer Doub contacted DeSoto Correctional Institution seeking permission to return to work. This requested [sic] was denied based on the letter of abandonment. Thereafter, Doub filed a request for review of the decision of the Institution finding him to have abandoned his position. The criminal charge of sexual battery pending against Officer Doub was withdrawn by the State Attorney of the Tenth Judicial Circuit, in and for Hardee County, Florida.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Petitioner be reinstated as a Correctional Officer I, as he did not abandon his position within the Career Service System for three consecutive workdays. DONE and ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 29th day of November, 1989. COPIES FURNISHED: Gene "Hal" Johnson, Esquire 300 East Brevard Street Tallahassee, Florida 32301 Perri King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Ms. Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Findings Of Fact Petitioner, a black male, was hired on May 17, 1978, by Respondent as a Maintenance Worker I, and was assigned to the water and sewer section of Respondent's utility department. In accordance with Respondent's personnel rules, Petitioner was required to serve a probationary period of six months, the purpose of which was "[t]o provide [Petitioner] with an opportunity to demonstrate basic qualifications and a desire to perform the duties as assigned . . . , and [t]o provide [Respondent] with an opportunity to observe [Petitioner], his work habits and attitude." Under Respondent's personnel rules, "probationary employees" are not afforded many of the protections enjoyed -- by "regular employees" who have completed their probationary employment period. For example, vacation days and sick leave days are not accrued during an employee's probationary period, nor are probationary employees entitled to reimbursement for time off taken due to illness during the probationary period. Whereas "regular employees" are entitled to leaves of absence without pay for a period not to exceed one year for sickness, disability, pregnancy or , . . other good and sufficient reasons which are considered to be in the best interests of (Respondent] . . .", no such privileges are enjoyed by "probationary employees". In addition, although Respondent's personnel rules allow for dismissal of any employee for cause, dismissals of "regular employees" may not take effect until at least ten days from the date a written statement of the reasons for dismissal is subpitted to the employee and his department head. Finally, one of the grounds for dismissal "for cause" for any city employee is " . . . failure to maintain a satisfactory attendance record or properly report absence due to illness, emergency, or other reason". At the time of his initial employment, Petitioner completed and filed with Respondent an "Application for Employment" form and a form entitled "Required Personnel Information, both of which provided telephone numbers at which Petitioner could be contacted in case of emergency. While employed by Respondent, Petitioner's job consisted of a five-day work week, during which Petitioner was to report to work at 7:30 a.m., and leave at 4:00 p.m. During the period of his employment it was possible for Petitioner to have worked a total of 44 days, with one day off for the July 4 holiday. During this 44-day work period, Petitioner was late in checking in for work a total of 25 times, and was absent from work for personal reasons a total of approximately 4 days. Petitioner was cautioned on several occasions by his superiors, including his foreman, a black male, that continued tardiness and absences could endanger his continued employment by Respondent. Although Respondent was never absent from his duty station without permission from his supervisors, he never gave advance notice of such requests, instead delaying such requests until the day on which he was to absent himself from his job. As a result of Petitioner's tardiness and absences, his foreman was unable to fully evaluate his abilities as an employee in that Petitioner never worked a full week during the time that he was employed by Respondent. By letter dated July 13, 1978, Petitioner was advised by Respondent's Director of Utilities that he would be separated from the work force of Respondent effective the following day. The reasons civen by Respondent for terminating Petitioner's employment were that he had failed to furnish an emergency telephone number, he was habitually late for work each morning, and had been constantly absent from work. There is a total absence from the record in this proceeding of any direct evidence that Petitioner's discharge was in any way related to race. Petitioner testified that the question of race never was discussed between him and his supervisors, and Petitioner's forenan, a black male, also testified that no such discussion ever occurred, and that Petitioner's discharge was the direct result of his poor attendance record. Another white male employee of Respondent was alleged by Petitioner to have received preferential treatment, though his work record with respect to tardiness was similar to that of Petitioner. However, it appears from the record that this white employee had been a long-time employee of Respondent, and was, therefore, not in "probationary" status. It further appears that that employee's record of tardiness was not as extensive as Petitioner's. The record also clearly establishes that Respondent placed a written reprimand in the white employee's file, which is a procedure allowed under Respondent's personnel rules. Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The issue is whether Respondent committed an unlawful employment practice in violation of Section 760.10, Florida Statutes, by discriminating against Petitioner based on her race.
Findings Of Fact Respondent is a financial company that owns and services student loans. Petitioner is a black female. She was employed in Respondent’s Florida Loan Servicing Center (Service Center) on two separate occasions. The first time she worked for Respondent from September 1989 until September 1990. During that time, Petitioner did not experience anything that she felt was racial discrimination at the Service Center. Petitioner left her initial period of employment with Respondent by resigning and moving to South Florida. Petitioner subsequently returned to Panama City, Florida. Initially, she worked for the Bay County School Board. Thereafter, from July 2001 to November 2001, she returned to work as a Loan Origination Representative (LOR) for Respondent through a temporary agency, Kelly Services. In August 2001, Petitioner received a training evaluation, which indicated that Petitioner was meeting all expectations. In November 2001, Petitioner converted to a regular employee position with Respondent. Petitioner received her 90-day initial review in February 2002. According to her written evaluation, Petitioner needed to improve in two areas: (a) successfully meeting the goals established during the 90-day initial review period; and (b) demonstrating initiative and resourcefulness in work performance. The evaluation states as follows in relevant part: A discussion was held with Millie regarding her productivity for application and phone call processing during the review period. At that time, Millie was placed on a verbal warning for her performance. She currently averages 3.65 applications per hour. The department standard is 5 applications per hour. Millie also currently averages 6.66 calls per hour for the review period. The department standard is 8 calls per hour. Pursuant to this evaluation, Respondent extended Petitioner's 90-day initial review period for a 30-day period in which Petitioner was required to perform according to Respondent's standards. The evaluation advised Petitioner that failure to meet standards might result in further disciplinary action, up to and including termination of employment. In March 2002, Respondent selected Petitioner to represent the National Team for Private Credit Originations. This designation required Petitioner to undergo two days of additional training. Respondent has well-disseminated policies prohibiting discrimination and harassment on the basis of race. These policies are available to employees through Respondent’s Employee Reference Manual and Code of Business Conduct. Respondent’s internal website also contains employee-related information such as policies, notices and the company’s equal employment opportunity and anti-harassment policies. Further, Respondent distributes an annual affirmation of its anti- discrimination and anti-harassment/anti-retaliation policies via e-mail. Petitioner knew of Respondent’s commitment to diversity. Petitioner became aware of Respondent’s equal employment opportunity and anti-harassment/anti-retaliation policies immediately upon being employed with Respondent. In November 2001, Petitioner received Respondent’s Employee Reference Manual, Respondent's Code of Business Conduct, and a copy of Respondent’s annual reaffirmation of its anti- harassment/anti-retaliation policies. The annual reaffirmation outlined the procedure an employee should follow to report discrimination or harassment, and provided several avenues for reporting such conduct. Petitioner was also aware that Respondent had an internal website with employee information. Respondent’s anti-harassment policy prohibits retaliation against employees who report harassment. The policy also protects employees who participate in an investigation of a claim of harassment. Petitioner knew individuals in Respondent’s Human Resources Department. For example, when Petitioner first interviewed for a job with Respondent, she met Joni Reich, Respondent’s vice president of human resources. From July 2002 to November 2002, Petitioner’s immediate supervisor was Paul Wunstell. Mr. Wunstell was Respondent's supervisor of Private Credit Originations. In early July 2002, Bobby Wiley, Respondent’s human resources director for the Service Center was counseling an employee for performance issues when the employee made an internal discrimination complaint. The employee stated that a supervisor had made a racially discriminatory comment about the Martin Luther King, Jr. holiday. The employee told Mr. Wiley that Petitioner could confirm the racially derogatory comment. On July 19, 2002, Petitioner was asked to go to the human resources department. Upon her arrival, Petitioner met Mr. Wiley for the first time. Mr. Wiley directed Petitioner to a conference room. Mr. Wiley explained that he had asked Petitioner to meet with him because he was investigating a discrimination complaint made by another employee about a supervisor who might have said something derogatory about the Martin Luther King, Jr., holiday. He explained that he had been told that Petitioner might have some knowledge about these events. Several times, Mr. Wiley asked Petitioner whether she knew of any racial discrimination at the Service Center and whether she had heard a supervisor make a racially derogatory comment. Petitioner denied being aware of any race discrimination at Respondent's facility. Petitioner stated that she did not want to talk to Mr. Wiley. Although Petitioner understood that she was required to report discrimination, she did not provide Mr. Wiley any information supporting or corroborating the complaint that he was investigating. During the meeting, Petitioner appeared nervous. She told Mr. Wiley that she was uncomfortable meeting with him. Mr. Wiley replied that their conversation would be confidential, “between the two of them,” or words to that effect. Petitioner mistakenly interpreted Mr. Wiley’s comment to mean that he would do nothing with any information provided by Petitioner and that he simply wanted to “contain” or cover up the issue of possible discrimination. Petitioner did not ask Mr. Wiley to clarify what he meant by his statement that their conversation would be “between the two of them.” During his meeting with Petitioner, Mr. Wiley conducted himself in a professional manner. However, because he was eating ice cream when he met with Petitioner and did not have a note pad, Petitioner mistakenly thought he did not take allegations of discrimination seriously. Mr. Wiley was eating an ice cream bar that had been distributed around the human resources department immediately before Petitioner came to see him. The conversation between Mr. Wiley and Petitioner lasted approximately ten minutes. Mr. Wiley thanked Petitioner for meeting with him. Mr. Wiley stated that he was glad to hear there was no discrimination at Respondent’s facility because Respondent would not tolerate discrimination. Petitioner then left the conference room. After the July 19, 2002, meeting, Petitioner never contacted Mr. Wiley to complain of discrimination or retaliation. Additionally, Petitioner’s supervisor, Mr. Wunstall, never knew about Mr. Wiley’s meeting with Petitioner. On or about July 1, 2002, Respondent advised all employees serving as LORs that they would be required to attend a training class on July 13, 2002. The purpose of the class was to ensure the proper handling of Laureate School Accounts for Private Credit Originations. Each employee needed an active Laureate computer ID and password in order to participate in the hands-on training. As instructed, Petitioner immediately advised Respondent that she did not have access to the Laureate software on her computer. On July 8, 2002, Respondent sent Petitioner an e-mail regarding her Laureate computer password. After receiving the password, Petitioner still could not gain the appropriate computer access. On July 9, 2002, Petitioner informed Respondent that she did not have the Laureate software installed on her personal computer. Respondent then made arrangements for Petitioner to test her password on another computer. Respondent also arranged to have the Laureate icon placed on Petitioner's computer. On July 23, 2002, Petitioner wrote a letter to Ms. Reich complaining about her meeting with Mr. Wiley. The letter stated that, although she had not told Mr. Wiley about it, Petitioner thought there was racial discrimination at the Service Center. Petitioner’s letter indicated that she wanted to make a statement concerning discrimination against blacks. In the letter, Petitioner requested information on Respondent’s policies and procedures to report such discrimination. Mr. Wunstell never knew that Petitioner had sent a letter to Ms. Reich complaining about racial discrimination. On July 29, 2002, Petitioner allegedly fainted at work due to panic attacks. Respondent's staff called an ambulance that took Petitioner to the hospital. Petitioner claims she was absent from work for three consecutive days without calling her supervisor and without being terminated for abandoning her job. On August 2, 2002, Petitioner received a letter from Ms. Reich. In the letter, Ms. Reich apologized for Mr. Wiley's failure to handle the meeting with Petitioner in a manner that Petitioner felt was appropriate. Ms. Reich told Petitioner that Respondent viewed discrimination complaints seriously and she included a copy of the anti-harassment policy, which outlined procedures for reporting harassment or discrimination. Ms. Reich explained several avenues to report discrimination. Ms. Reich’s letter also indicated that she and senior director of human resources, Joyce Shaw, would be in Florida within the next two weeks. In the letter, Ms. Reich asked Petitioner to meet with them to discuss her concerns and to promptly address any alleged discrimination. On August 12, 2002, Petitioner received an e-mail from Ms. Shaw to schedule a meeting on August 19, 2002. The text of the e-mail did not state the reason why Ms. Shaw and Ms. Reich wanted to meet with Petitioner, but Petitioner knew the reason for the meeting. The e-mail asked Petitioner to contact Ms. Shaw either on her cellular telephone or by e-mail to schedule the meeting. Mr. Wunstell did not have the capability to access Petitioner’s e-mail messages and there is no evidence that he saw Ms. Shaw’s e-mail. On August 19, 2002, Petitioner met with Ms. Shaw and Ms. Reich for approximately one hour. Ms. Shaw and Ms. Reich listened to Petitioner’s concerns. They were pleasant to Petitioner during the meeting. During the August 19, 2002, meeting, Petitioner first complained that Mr. Wiley had been disrespectful or inattentive during their July 19, 2002, meeting. Petitioner also told Ms. Shaw and Ms. Reich about her feelings that black employees were treated differently in the workplace. This was the first time that Petitioner discussed her race discrimination concerns with anyone who worked for Respondent. When pressed for more specific information, Petitioner stated that: (a) she felt black employees received different training than non-black employees; and (b) black employees’ questions were not answered as promptly or as thoroughly as the questions of non-black employees. Petitioner did not provide Ms. Shaw and Ms. Reich with specific examples of racially discriminatory behavior or the names of any minority employees who Petitioner felt experienced discrimination. That same day, after the meeting with Ms. Shaw and Ms. Reich, Petitioner provided Ms. Shaw with several e-mails about the Laureate computer training. The e-mails did not illustrate any mistreatment of Petitioner. During the August 19, 2002, meeting, Petitioner told Ms. Shaw and Ms. Reich that she was experiencing panic attacks. Ms. Reich suggested that Petitioner take advantage of Respondent’s employee assistance program for the alleged panic attacks. Ms. Reich and Ms. Shaw told Petitioner that they would look into her concerns. They did not tell her they would contact her again in the future. Instead, Ms. Reich gave her business card to Petitioner in case she needed to contact Ms. Reich in the future. After the August 19, 2002 meeting, Petitioner did not contact Ms. Reich or Ms. Shaw again during her employment with Respondent. During the hearing, Petitioner testified that she complained to Ms. Shaw and Ms. Reich about the following: (a) supervisor Melanie Childree's reference to the Martin Luther King, Jr. holiday as "spook day"; (b) three employees telling an African American manager not to go to the "master cube," which Petitioner felt was a racial reference to "slave talk"; (c) a hearsay statement from a student's mother who called another employee at the Service Center to accuse a white customer service representative of calling her daughter "stupid nigger"; and (d) where a black supervisor was married to a white woman, one employee allegedly said he was "going to string [the black supervisor] up for messing with our women." Apparently all of these alleged incidents occurred before Petitioner's July 19, 2002, meeting with Mr. Wiley. The most persuasive evidence regarding these allegations is that Petitioner did not report them to Ms. Shaw or Ms. Reich or anyone else in Respondent's chain of command. Instead, the complaints that Petitioner shared with Ms. Shaw and Ms. Reich on August 19, 2002, were non-specific generalizations. Moreover, Mr. Wunstell was never aware of Petitioner’s meeting with Ms. Reich and Ms. Shaw to complain about discrimination. Petitioner does not know what steps, if any, Ms. Shaw and Ms. Reich took after their meeting to look into her concerns. At the hearing, Ms. Shaw testified that she investigated Petitioner’s concerns and found them to be unfounded. First, Ms. Shaw reviewed the e-mails provided by Petitioner but did not find anything inappropriate in their contents. Second, Ms. Shaw interviewed the director in charge of Petitioner’s department, Ann Nelson. Ms. Nelson explained that the process by which employee questions were answered made it unlikely that employees could be singled out due to their race. According to Ms. Nelson, all employee questions were directed to a central telephone helpline staffed by supervisors or senior employees who randomly responded to calls. Ms. Shaw correctly concluded that it would be difficult for racially discriminatory behavior to occur in such context. Third, Ms. Nelson assured Ms. Shaw that training was the same for all employees. Student loans are heavily regulated by federal law and thus, the manner in which employees handle borrowers is regulated, making Petitioner’s concerns about unequal employee training unfounded. Finally, Ms. Shaw spoke to the person in charge at the Service Center, Renee Mang, to determine if Ms. Mang was aware of any racial discrimination concerns at the facility. Ms. Mang, whose office was in close proximity to Petitioner’s cubicle, indicated that she was not aware of any racially discriminatory behavior in the workplace and that no one had complained to her about discrimination. After the investigation, Ms. Shaw was unable to corroborate Petitioner’s racial discrimination allegations. On or about September 30, 2002, Respondent gave Petitioner a verbal warning regarding her phone quality control average. The department's expected call productivity average was 8 calls per hour at the minimum level of customer service. From July 1, 2002, to September 25, 2002, Petitioner's average was 7.5 calls per hour. Once again, Petitioner was given 30 days to meet the department's performance goal of at least 9 calls per hour at Petitioner's level of customer service. On October 8, 2002, while employed with Respondent, Petitioner applied for full-time employment with the Bay County School Board. Petitioner applied for employment in the school system because she felt a lot was going on at Respondent’s facility and her mental health counselor suggested she look for employment elsewhere. Petitioner had followed Ms. Reich’s suggestion and enrolled in mental health counseling through Respondent’s employee assistance program. Respondent accommodated Petitioner by adjusting her work schedule and allowing her to report for work late on the days she had appointments with her mental health counselor. For example, on or about October 24, 2002, Respondent requested an adjustment in her work schedule so she could attend a mental health counseling session. Respondent accommodated Petitioner's request. During the hearing, Petitioner testified that Respondent adjusted the work schedule of a white female LOR to match the work schedule of her husband who also worked for Respondent. The husband's work schedule required him to work until 7:30 p.m. every day. According to Petitioner, the schedule adjustment resulted in the white female employee having no work to perform for 30 minutes per day after the phones shut down at 7:00 p.m. However, there is no evidence that Petitioner or any other employee ever made a similar request for a work schedule accommodation under similar circumstances. On October 29, 2002, Petitioner suffered a workers’ compensation accident. A telephone headpiece flicked off and hit Petitioner across the face, resulting in an uncomfortable feeling and a small chip on her tooth. On October 30, 2002, Petitioner reported the accident to Respondent’s Benefits Specialist, Kristi Scott and requested to see a dentist. From that time on, Petitioner and Ms. Scott communicated directly with each other regarding treatment for Petitioner’s injury. Ms. Scott kept Petitioner updated on her progress locating a dentist that would accept Petitioner as a patient for a workers' compensation claim. Mr. Wunstell was not involved in arranging for treatment for Petitioner’s injury. Petitioner was not required to channel her communications with Ms. Scott through Mr. Wunstell. On October 31, 2002, Ms. Scott sent Petitioner an e-mail stating that Ms. Scott had been unable to locate a dentist who would see Petitioner as a workers' compensation patient. Ms. Scott's e-mail directed Petitioner to see any dentist of her choice to treat her injury. Ms. Scott told Petitioner that Respondent would reimburse her for any out-of- pocket expenses that resulted from her dental visit. Petitioner did not suffer immobilization as a result of the injury to her mouth and she did not have to undergo treatment as a result of her injury. Petitioner did not feel her condition was an emergency. In fact, she did not see a dentist immediately because neither her regular dentist nor other dentists considered her mouth injury an emergency. Following the October 29, 2002, mouth injury, Petitioner continued working. She worked full days the rest of the week: October 30, 2002, through November 1, 2002. On Monday, November 4, 2002, Petitioner did not show up for work. Instead, that morning Petitioner drove herself to her mental health counseling session. After her counseling session, around noon, Petitioner called Mr. Wunstell from home. During this telephone conversation Petitioner told Mr. Wunstell that she had seen a doctor in the morning. She also told Mr. Wunstell that her mouth was in severe pain, and she was trying to find a dentist who would see her. At the time of Petitioner's conversation with Ms. Wunstell, Petitioner had made appointments with two dentists. Petitioner typically worked until 7 p.m. During their noon telephone conversation, Mr. Wunstell specifically asked Petitioner whether she was planning to return to work that day. Petitioner responded that she would be returning to work later that day. Petitioner did not tell him that she was unable to work, nor did she request time off work. Petitioner alleges that she told Mr. Wunstell during their November 4, 2002, telephone conversation that her neck was bothering her, that she needed to see a doctor, in addition to a dentist, that she was unable to work and that she asked Mr. Wunstell to have Ms. Scott call her at home. The greater weight of the evidence indicates that Petitioner did not mention any of these things during her telephone conversation with Mr. Wunstell. Petitioner made no effort to obtain Ms. Scott’s telephone number. After her November 4, 2002, call to Mr. Wunstell, Petitioner made no effort to contact Ms. Scott directly regarding her workers' compensation injury, despite the fact that Petitioner and Ms. Scott had been communicating directly about the injury until that time. Petitioner did not show up for work the rest of the week of November 4, 2002. She did not call Mr. Wunstell or anyone else at Respondent’s office during the week of November 4, 2002, to inform them of her condition or her expected return to work date. Respondent has a job abandonment policy. An employee who is absent from work for three consecutive days without notifying his/her immediate supervisor will be considered to have voluntarily resigned or abandoned his/her job. Respondent’s job abandonment policy applies to all employees, including those who are injured on the job. When an employee is a no call/no show for three consecutive days, the job abandonment policy is applied in a fairly automatic manner. The employee’s immediate supervisor does not call the employee at home. Instead, the supervisor contacts Teresa Jones in the human resources department, indicates that the employee has been a “no call/no show” for three consecutive days, and directs the human resources department to send a termination letter. This type of transaction is handled by lower-ranking human resources department employees at the Service Center, and neither Mr. Wiley nor Ms. Shaw participated in the process of sending out termination letters. When Petitioner did not come to work and failed to contact Mr. Wunstell after their November 4, 2002, conversation, Mr. Wunstell instructed Ms. Jones to send Petitioner a letter informing of her termination for job abandonment. There is no evidence that Ms. Shaw, Ms. Reich or Mr. Wiley influenced Mr. Wunstell’s decision to request that Respondent send Petitioner a termination letter pursuant to the job abandonment policy. By letter dated November 8, 2002, Respondent informed Petitioner that, pursuant to the company’s job abandonment policy, she was deemed to have voluntarily abandoned her job by being absent for three consecutive days without contacting her supervisor after November 4, 2002. Respondent’s letter encouraged Petitioner to contact Ms. Jones if she had any questions regarding Respondent’s letter. Also attached to the termination letter was an Exit Interview questionnaire and postage pre-paid envelope. The questionnaire asked Petitioner to explain why she had resigned her employment. Petitioner did not return the questionnaire and made no effort to contact Respondent to protest, contest, or clarify her employment status. After receiving the November 8, 2002, letter, Petitioner did not file a petition for unemployment compensation benefits. Instead, on November 17, 2002, exactly two weeks after the last day She came to work for Respondent, Petitioner began working with the Bay County School District. Mr. Wunstell did not apply Respondent’s job abandonment policy to Petitioner for retaliatory reasons because he did not know of her alleged protected activity. Mr. Wunstell may not have terminated Petitioner in July 2002 when she was absent for three days. However, Mr. Wunstell has otherwise consistently and non-discriminatorily enforced the job abandonment policy and has terminated numerous employees pursuant to the job abandonment policy. There is no evidence that Respondent applied its job abandonment policy differently to Petitioner than it did to other employees. During the year 2002 and the first few months of 2003, Respondent terminated 28 employees pursuant to its job abandonment policy. Of these 28 employees, 25 were white, and none had complained about discrimination or participated in a discrimination investigation. Except for Petitioner's three-day absence in July 2002, there is no evidence of any other employee who violated Respondent’s job abandonment policy by being absent from work for three consecutive days without calling and who was not terminated. In January 2003, almost two months after her separation from Respondent, Petitioner wrote a letter to Al Lord, Respondent’s CEO. The letter incorrectly alleged that Respondent had not provided assistance in obtaining dental treatment for Petitioner’s on-the-job tooth injury. The letter for the first time informed Respondent that Petitioner felt she was involuntarily terminated. Unlike Petitioner’s testimony at the final hearing, the letter to Mr. Lord did not allege that Petitioner had told Mr. Wunstell on November 4, 2002, that she needed to see both a dentist and a doctor for her injury. Likewise, the letter did not allege that Petitioner asked Mr. Wunstell to have Ms. Scott call her at home. On February 11, 2003, Petitioner received a letter from Ms. Shaw. The letter informed Petitioner that she had looked into the allegations contained in the letter to Mr. Lord and had found them to be unsupported and inaccurate. Ms. Shaw's letter concluded as follows: (a) Respondent non-discriminatorily and consistently enforced its job abandonment policy; and (b) Respondent had assisted Petitioner in obtaining treatment for her dental injury. Finally, the letter questioned why, if she had not intended to voluntarily quit her job, Petitioner had made no effort to contact Respondent upon receipt of her November 8, 2002, termination letter. On March 15, 2003, Petitioner wrote a letter to Ms. Shaw. In the letter, Petitioner did not allege that she had told Mr. Wunstell on November 4, 2002, that she needed to see a doctor, in addition to a dentist, as a result of her mouth injury. Petitioner’s letter also did not state that she had asked Mr. Wunstell to tell Ms. Scott to call her at home regarding an appointment with a doctor. Petitioner filed a charge of discrimination with the FCHR on June 2, 2003. During the processing of her charge of discrimination, Petitioner complained that Respondent had improperly withheld from her last payroll check a portion of her pay for 66 hours of accrued, unused vacation time. This was the first time Respondent learned of this allegation. Although Petitioner believed that Mr. Wunstell had given instructions for Respondent to withhold a portion of her vacation pay, she never contacted Mr. Wunstell or Respondent’s human resources department to report or challenge this incorrect deduction. When, after the filing of the charge, Respondent received information about the incorrect deduction, it immediately investigated and reimbursed Petitioner for the incorrect deduction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of January, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 28th day of January, 2005. COPIES FURNISHED: Millie Carlisle 105 Detroit Avenue Panama City, Florida 32401 Luisette Gierbolini, Esquire Zinober & McCrea, P.A. Post Office Box 1378 201 East Kennedy Boulevard, Suite 800 Tampa, Florida 33601-1378 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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
The Issue Whether Respondent’s dismissal of Petitioner was an unlawful employment practice.
Findings Of Fact The Petitioner, Norris L. Fails, is an African American and was employed by the City as a police officer for seven and one-half years. The Respondent, City of Clermont (City), is a Florida municipal corporation and operates a police department which employed Fails as a police officer. Fails was terminated by the City in December 2000. Fails asserts that the City terminated him because of his race. The City disputes this allegation. The City asserts that Fails was terminated for violation of City Personnel Policies and Standards Governing Police Officers for violating the rule prohibiting police officers from associating with "undesirables, including convicted felons." The Respondent presented evidence that the Petitioner had been counseled regarding associating with convicted felon, Latisha Rhodes, on three separate occasions, twice in July 2000, and once in November 2000. Petitioner acknowledged the association and his discipline. The Respondent presented evidence that the Petitioner was in a car stopped by Officer Mathis of Groveland Police Department in December of 2000. The driver of the car in which Petitioner was riding, Christopher Taylor, was the subject of a “be on the lookout for” notice. Christopher Taylor was stopped because of his erratic driving and arrested that evening for driving under the influence. He subsequently plead guilty to the offense. The Petitioner identified Taylor to the arresting officer, who recognized the Petitioner as a Clermont police officer, when Taylor was not forthcoming with appropriate identification. The car Taylor was driving belonged to Latisha Rhodes. Petitioner testified regarding his employment and discharge. Petitioner did not deny that he was in the car with Taylor. He denied knowledge of the “be on the lookout for” notice. He asserted that he had been treated differently than a white officer who had done similar things. The City offered the testimony of Police Chief Randall A. Story. Shift command sergeants regularly remind patrol officers and investigators to check the bulletin board for persons wanted by city and other police agencies. The notice on Christopher Taylor was posted from mid-October 2000, until after the date of Fails termination. The notice on Taylor contained a picture of Taylor and was attached to a bright orange business card of State Wildlife Officer Bouchard who had requested officers be on the look out for Taylor. It is not credible that the Petitioner would not have been aware of this notice. The Petitioner should have exercised exceptional discretion when he became aware Taylor was driving Rhodes’ car, having been warned about associating with Rhodes. The Respondent documented that the only white officer accused of associating with undesirables was Brian Connolly, and he had been terminated. See Respondent’s Exhibit 4. The Petitioner presented testimony that other white officers were not terminated for their misconduct. The Petitioner alleged that Officer Robbins, a white male, had associated with a convicted felon, Jerry Jones. However, the Chief of Police denied knowing about this alleged association and no evidence was presented that the Department was aware of their association. The Petitioner alleged that Officer Saunders, a white female, had abused her position as a police officer in an incident in Sanford, Florida. This incident was investigated and it was determined that Saunders’ husband, a former Leesburg policemen, had caused the problem. The Respondent had no basis to discipline Officer Saunders. The Petitioner alleged that Officer Jerry Osteen, a white male, had improperly touched a woman while on duty. The Respondent had investigated the allegations and suspended Officer Osteen. The Petitioner alleged that Respondent had wrongfully terminated Geraldine Young, an African American female. The Respondent terminated Young for uttering two forged instruments. The Respondent had good cause for terminating the Petitioner. The Petitioner did not show credible evidence that Petitioner’s grounds for discharge were other than for the reasons stated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner’s Petition be denied. DONE AND ENTERED this 11th day of October, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2002. COPIES FURNISHED: Norris L. Fails 810 Orange Brooke Court Clermont, Florida 34711 Robert D. Guthrie, Jr., Esquire City of Clermont Post Office Box 3026 Orlando, Florida 32802 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a Hispanic male. Respondent is an 860-unit apartment complex in Ocala. Petitioner was employed by Respondent as a full-time maintenance technician from 2001 through September 28, 2007. His job responsibilities included performing repairs and general maintenance work on the insides of the apartments. Petitioner’s starting wage in 2001 was $9.00 per hour. He received annual raises from 2001 to 2004, at which point his wage was $11.75 per hour. Petitioner did not receive any raises from 2004 through 2007. He was still earning $11.75 per hour when he was fired on September 28, 2007. Starting in 2004, Respondent did not give raises to any maintenance technicians who were not HVAC-certified. This policy applied equally to all maintenance technicians, including non-Hispanics, and was intended to encourage them to get HVAC- certified. HVAC certification was important to Respondent because the air conditioning systems at the apartment complex were getting older and were requiring more frequent repairs. Respondent provided the necessary study materials for the HVAC certification exam and paid for the exam. Petitioner is not HVAC-certified. He took the certification exam once, but he did not pass. He did not take the exam again, even though Respondent would have paid for him to do so as it did for other maintenance technicians. HVAC certification is not required to perform all types of work on air conditioners, and Petitioner continued to do some work on the air conditioners at the apartment complex after 2004 even though he was not HVAC-certified. Petitioner was characterized as a “fair” employee who did “okay” work. His supervisor, a Hispanic male, testified that there were some jobs that he did not assign to Petitioner, that Petitioner frequently got help from other employees, and that he received a couple of complaints from other maintenance technicians about Petitioner’s work. Respondent does not have an employee handbook, and the only written policy that Respondent has is a policy prohibiting sexual and other harassment. Respondent’s executive director, Laura Smith, testified that she expected employees to use “common sense” regarding what they can and cannot do at work. Respondent utilizes a system of progressive discipline, which starts with warnings (oral, then written) and culminates in dismissal. However, the nature of the misconduct determines the severity of the discipline imposed, and a serious first offense may result in dismissal. On October 5, 2006, Petitioner was given an oral warning for “improper conduct” for visiting with a housekeeper multiple times a day for as long as 20 minutes at a time. The housekeeper also received an oral warning for this conduct. On May 15, 2007, Petitioner was given a written warning for the same “improper conduct,” i.e., wasting time by going into an apartment to visit with a housekeeper. Petitioner acknowledged receiving these warnings, but he denied engaging in the conduct upon which they were based. His denials were contradicted by the more credible testimony of his supervisor and Ms. Smith. Petitioner was fired on September 28, 2007, after a third incident of “improper conduct.” On that day, Petitioner left the apartment complex around 10 a.m. to get gas in his truck. He did not “clock out” or get permission from his supervisor before leaving the apartment complex. Petitioner was away from the apartment complex for at least 15 minutes, but likely no more than 30 minutes. Even though Respondent does not have written policies and procedures, Petitioner understood, and common sense dictates that he was supposed to get his supervisor’s approval and “clock out” before he left the complex on a personal errand. Petitioner also understood the procedure to be followed to get the 14 gallons of gas per week that Respondent provided for maintenance technicians. The procedure required the employee to get the company credit card from the bookkeeper, get the gas from a specific gas station, and then return the credit card and a signed receipt for the gas to the bookkeeper. Petitioner did not follow any aspect of this procedure on the day that he was fired. He had already gotten the 14 gallons of gas paid for by Respondent earlier in the week. Petitioner’s supervisor, a Hispanic male, compared Petitioner’s actions to “stealing from the company” because he was getting paid for time that he was not at the apartment complex working. He also expressed concern that Respondent could have been held liable if Petitioner had gotten in an accident on his way to or from getting gas because he was still “on the clock” at the time. Petitioner testified that he and other maintenance technicians routinely left the apartment complex to fill up their cars with gas without “clocking out” or getting permission from their supervisor. This testimony was corroborated only as to the 14 gallons of gas paid for each week by Respondent. There is no credible evidence that other employees routinely left the apartment complex to do personal errands without “clocking out,” and if they did, there is no credible evidence that Respondent’s managers were aware of it. There is no credible evidence whatsoever that Petitioner’s firing was motivated by his national origin. His supervisor is Hispanic, and he and Ms. Smith credibly testified that the fact that Petitioner was Hispanic played no role in her decision to fire Petitioner. Petitioner claimed that he was “harassed” by Ms. Smith and that she accused him of having sex with a housekeeper in the vacant apartments. No persuasive evidence was presented to support Petitioner’s “harassment” claim, which was credibly denied by Ms. Smith. Petitioner also claimed that he was disciplined differently than similar non-Hispanic employees, namely James Stroupe, Jason Head, and Willie Hutchinson. Mr. Stroupe is a white male. He worked on the grounds crew, not as a maintenance technician. In May 2007, Mr. Stroupe was given a written warning based upon allegations that he was making explosive devices at work, and in September 2007, he was given an oral warning for “wasting time” by hanging out in the woods with Mr. Head. Mr. Head is a white male. He worked on the grounds crew, not as a maintenance technician. In September 2007, he received a written warning for “wasting time” by hanging out in the woods with Mr. Stroupe. Mr. Hutchinson is a white male, and like Petitioner, he worked as a maintenance technician. In September 2007, he was arrested for DUI. Mr. Hutchinson was not disciplined by Respondent for this incident because it did not happen during working hours and it did not affect his ability to perform his job duties as maintenance technician. The grounds department (in which Mr. Stroupe and Mr. Head worked) was responsible for maintaining the landscaping around the apartment complex, whereas the maintenance department (in which Petitioner and Mr. Hutchinson worked) was responsible for maintaining the insides of the apartments. The departments had different supervisors. Petitioner was initially denied unemployment compensation by Respondent after he was fired, but he successfully appealed the denial to an Appeals Referee. Petitioner received unemployment compensation through April 2008. On April 11, 2008, Petitioner started working for Holiday Inn as a maintenance technician. He is employed full time and his wage is $11.50 per hour. Respondent placed an advertisement in the local newspaper after Petitioner was fired in order to fill his position in the maintenance department. The advertisement stated that Respondent was looking for an applicant who was HVAC-certified. Respondent hired Javier Herrera to fill the position. Mr. Herrera, like Petitioner, is a Hispanic male.
Recommendation Based upon the foregoing findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 16th day of September, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 September, 2008.
The Issue The issue is whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Patsy Smith, who is black, is employed as a court security officer (CSO) for the United States District Court, Northern District of Florida. Court security officers and baliffs are provided to that court under a contract between a security firm and the United States Marshal's Office. When the events herein occurred, respondent, Central Security Systems, Inc. (CSSI), held the contract to supply security services to the court, and petitioner was an employee of that firm. Petitioner asserts without contradiction that CSSI had more than twenty-five employees. Accordingly, respondent is subject to the jurisdiction of the Commission on Human Relations (Commission). Petitioner began work as a CSO in 1983. At that time, the contract was held by Wackenhut Corporation. She is now and has been the only female and black employed in that capacity. All other employees, including her supervisors, are white males, and many are retired members of the Florida Highway Patrol. Although the firm providing security services to the court changes from time to time, there is virtually no turnover in CSOs and bailiffs. CSSI was awarded the contract in 1990 or 1991, and it held the contract until it was terminated in late 1992. The exact dates are not of record. A new firm, MBM Security Company, now has the contract, and petitioner is still employed in the same position. There is no evidence that MBM Security Company and CSSI are related parties or that when MBM Security Company was awarded the contract, it assumed all liabilities of CSSI. Beginning in 1988 or 1989, or before CSSI held the contract, petitioner says she worked in a racially hostile work environment. After CSSI was awarded the contract, and until the contract was terminated in late 1992, petitioner was subjected to a number of racially and sexually hostile events. They included being denied leave time when white male co-workers were given preferential treatment as to taking annual and sick leave, being present when the word "nigger" was used by a co-worker (who was not punished for using that word), being accused of theft of a Coca-Cola and of insubordination when other males doing the same thing as petitioner were not treated in the same way, receiving a written reprimand for having a personal telephone conversation while white male co-workers did not receive reprimands for their personal telephone calls, being denied the opportunity to run personal errands during the day while white male co-workers were given the opportunity to do so, and having personal logs of her work hours kept by other workers and supervisors while no such log was kept for her white male co-workers. In March 1992 petitioner became aware of a new position to be established in her office. This was followed by a memorandum issued in April 1992 advertising an opening for a new position as assistant lead court security officer. Petitioner signed the memorandum indicating her interest in the position and submitted it to her supervisor, Don Curtis, a white male. She applied for the job since she had been told by Curtis that "I want you to be assistant CSO," and she believed she was the most qualified person. Only one other employee, Roy Beard, who is a white male, applied for the position. Although Beard had less than two years experience on the job, compared to almost nine years for petitioner, Beard was selected for the new position. Petitioner was not given an interview nor a reason why she was not chosen. On May 27, 1992, petitioner wrote Peter Gavigan, CSSI's regional supervisor, and asked why she was not selected for the position, given her qualifications. Gavigan replied by memorandum dated June 2, 1992, stating in pertinent part that: After an extensive review of all personnel records, an evaluation was undertaken and a decision was made. I am satisfied with both the procedure and results and would have no reason to alter it at this time. On July 17, 1992, petitioner sent Gavigan another letter asking that someone other than Gavigan review the matter. In her letter, Smith stated that she believed her request for a promotion had been "denied because of factors other than (her) performance." This letter was never answered. At about the same time, she requested to see her own personnel records and those of Beard so that she could compare qualifications of the two and see if the files reflected any reason for CSSI's employment decision. Gavigan denied her request, and the records were immediately put "under lock and key." In August 1992, petitioner filed with the Commission her charge of discrimination against respondent. Although respondent was a viable corporation when the charge of discrimination was filed, it did not appear at hearing and therefore did not offer any proof to counter petitioner's charge of discrimination or to justify its employment decision. According to a letter from its former counsel, which has been received in evidence as hearing officer exhibit 1: CSSI ceased doing business in December of 1992 and I have been unable to contact anyone who can speak for CSSI. I have no authority to speak for CSSI and I cannot authorize anyone to appear on CSSI's behalf in this matter. Petitioner submitted an affidavit reflecting that she incurred $5,250.00 in attorney's fees in pursuing this action. This amount is deemed to be reasonable and is hereby approved. At the time petitioner was denied a promotion to assistant lead CSO, her salary was $9.75 per hour. The salary of the assistant lead court security officer is not of record. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes. Subsection 760.10(1)(a), Florida Statutes, provides as follows: It is an unlawful employment practice for an employer: To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status. The petition for relief alleges that CSSI violated the above statute by refusing to promote petitioner because of her gender and race. To establish a prima facie case of race or gender discrimination in a case where a promotion has been denied, petitioner must show (a) she belongs to a protected group, (b) she was qualified for and applied for the promotion, (c) she was considered for and denied the promotion, and (d) other employees of similar qualifications who were not members of the protected group were indeed promoted at the time petitioner's request for promotion was denied. Bundy v. Jackson, 641 F.2d 934, 951 (4th Cir. 1981). Once petitioner establishes a prima facie case of discrimination, respondent has the responsibility of articulating a legitimate, nondiscriminatory reason for its actions. If respondent meets this burden, petitioner may still prevail by proving that respondent's justification was pretextual. The evidence shows that petitioner is black and female, she was qualified for the position of assistant lead court security officer and applied for that position, she was denied the position by her employer, and another employee of similar or lesser qualifications who was not a member of the protected group was promoted into that position. Therefore, a prima facie case of discrimination has been established. Since respondent did not articulate a legitimate, nondiscriminatory reason for its actions, petitioner must prevail in this dispute. Subsection 760.10(13), Florida Statutes, specifies the relief that may be given a prevailing claimant in a discrimination action. It reads in pertinent part as follows: In the event the commission, in the case of a complaint under subsection (10), . . . finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees. . . . No liability for back pay shall accrue from a date more than 2 years prior to the filing of a complaint with the commission. In view of the conclusions in paragraph 12, petitioner is entitled to an award of attorney's fees, but not costs. These fees have been established to be $5,250.00. She is also entitled to the entry of an order citing CSSI for an unlawful employment practice and requiring it to cease and desist such illicit practices. Finally, she is entitled to "affirmative relief from the effects of the (discriminatory) practice," including back pay accruing no more than "2 years prior to the filing of (her) complaint." Besides asking for attorney's fees and costs, petitioner has also requested the entry of an order (a) "(requiring) the Respondent to pay Petitioner the difference in salary and benefits between her current position and the Assistant Lead Court Security Officer position, beginning June 1, 1992, and continuing;" and (b) "requir(ing) the Respondent to promote Petitioner into the next available Assistant Lead Court Security Officer vacancy." Whether this relief can be granted is questionable. This is because CSSI ceased doing business in late 1992 and a new security firm, MBM Security Company, now has the contract with the court. Although petitioner has continued in her position as a CSO, and is now an employee of the new contractor, MBM Security Company is not a party to this controversy, and thus the Commission has no jurisdiction over that entity. See e. g., Arthritis Medical Center v. Dept. of Health and Rehabilitative Services, 543 So.2d 1304, 1305 (Fla. 4th DCA 1989)(a defendant is entitled to personal service of original process before an administrative board acquires personal jurisdiction). Therefore, the Commission has no authority to require the new contractor-employer to promote petitioner to a new position. In a similar vein, petitioner is only entitled to the difference in pay between a CSO and an assistant lead court security officer for the period beginning when the position was filled (June 1, 1992) until CSSI lost the contract in late 1992. This is because, absent any evidence that MBM Security Company assumed all liabilities of the predecessor firm, the new contractor would not be responsible for any discriminatory employment decisions made by a different, unrelated entity. Therefore, as to these latter claims for relief, they should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order finding respondent guilty of an unlawful employment practice and ordering that it cease and desist such practice. Respondent should also be required to pay petitioner reasonable attorney's fees in the amount of $5,250.00. Finally, petitioner should be reimbursed for the difference between her pay as a CSO ($9.75 per hour) and an assistant lead CSO from June 1, 1992, until CSSI's contract was terminated in late 1992. DONE AND ENTERED this 2nd day of September, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2525 Petitioner: 1. Covered in the conclusions of law. 2-3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 6. 5-9. Partially accepted in finding of fact 2. 10-13. Partially accepted in finding of fact 3. 14-15. Partially accepted in finding of fact 4. 16. Partially accepted in finding of fact 5. 17-22. Partially accepted in finding of fact 4. 23-24. Partially accepted in finding of fact 5. 25-26. Partially accepted in finding of fact 6. Partially accepted in finding of fact 4. Partially accepted in finding of fact 6. Partially accepted in finding of fact 2. 30-31. Partially accepted in finding of fact 3. 32-33. Rejected as being irrelevant. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary to a resolution of the issues, irrelevant, not supported by the evidence, cumulative, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Marie A. Mattox, Esquire 3045 Tower Court Tallahassee, Florida 32303
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Respondent hired Petitioner on October 13, 1997, as a maintenance operator. Six months later he was promoted to the position of Maintenance Technician I. During his employment, Petitioner was one of six technicians. He was the only black technician. Petitioner was initially paid at a rate of $6.00 per hour. He received no pay increase with his first promotion. His yearly evaluation was delayed, but finally received by him on December 7, 1998. His evaluation for 1999 was received by December 23, 1999. His wages had climbed by this time to $8.40 per hour. His evaluations were satisfactory or above. Although Petitioner had been told he would be provided training on the job, he was relegated to the night shift, working by himself. As a consequence, he educated himself on maintenance of Respondent’s facility. In 1999, all technicians were to receive formal training. Another technician, who was white and lower in seniority than Petitioner, was selected for training before Petitioner. When Petitioner brought this to the attention of a supervisor, Petitioner was sent to other training provided by Siemen’s Corporation in Atlanta, Georgia. Petitioner stated he was treated unfairly because he was required to absorb the cost of lodging for the first night in Atlanta, prior to commencement of training. The five other technicians employed by Respondent were being paid a minimum of $11.00 per hour when Petitioner, on or about May 5, 2000, requested an increase from his current $8.40 per hour rate to $10.00 per hour. His supervisor responded that he could not grant the increase. An argument ensued and Petitioner left the office and returned to work. Later that day, Respondent’s human resource officer contacted Petitioner. He informed Petitioner that Petitioner’s employment was terminated due to “insubordination.” On Respondent’s termination form, the reason listed for Petitioner’s termination was insubordination and using “slanders to his senior manager.” The form also listed Petitioner’s absence from work on Saturday, April 29, 2000, as a reason for employment termination. In rebuttal, Petitioner produced a copy of an annual leave slip at final hearing requesting approval of his absence on the date in question. Petitioner had accumulated ample leave to cover the requested time. Respondent’s approving authority failed to approve Petitioner’s absence, but no notification was given to Petitioner. Respondent’s claim of unauthorized absence is effectively rebutted. According to a copy of a letter dated June 19, 2003, and received by DOAH on June 24, 2003, bearing the purported signature of David Anderson, registered agent for Respondent on June 20, 2002, Respondent was reputed to have ceased operation. According to statements contained in the letter, the Bank of America sold Respondent on March 10, 2002, in the “form of rights in collateral.” The letter additionally stated “unliquidated assets” in the bankruptcy were “sold in a Section 363 auction” on May 23, 2002. No direct evidence was presented on behalf of Respondent corroborating the contents of the letter and consequently the letter is not credited. Petitioner produced documentation at the final hearing, specifically a corporation reinstatement form issued by the Florida Department of State, documenting Respondent’s continued existence as of April 22, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered directing that Respondent to cease the discriminatory employment practice evidenced in this case and awarding Petitioner back pay at the rate of $10.00 per hour for each normal 40-hour work week between May 5, 2000, and the present. DONE AND ENTERED this 19th day of March, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 19th day of March, 2004. COPIES FURNISHED: Michael F. Coppins, Esquire Coppins & Monroe Post Office Box 14447 Tallahassee, Florida 32317-4447 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Dwight E. Mazion 1713 Calgary Drive Desoto, Texas 75115 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Petitioner, Claude A. White, is a black man employed by the Department of Health and Rehabilitative Services, the Respondent ("Department"), as a Detention Care Worker II at the Department's Juvenile Justice Center, a facility where the Department keeps juveniles under involuntary detention. The Petitioner has been so employed for approximately 17 years. The Respondent is an agency of the State of Florida and an employer within the meaning of Chapter 760, Florida Statutes. At all times pertinent hereto, it has been the employer of the Petitioner, Claude A. White. In approximately December, 1989, the Petitioner became involved in an altercation with a "client " or "inmate" of the detention center during his duty in the dining hall at lunchtime. Because a client was not obeying rules and policies, the Petitioner began escorting the client to his dormitory room. While they were walking down the hall, an argument or altercation ensued between the client and the Petitioner. The Petitioner maintains that the client, R.H., swung around toward him to face him and the Petitioner then put his hands up to protect his face, accidentally striking the client on the cheek as he was doing so. The Petitioner's supervisor, Mr. Barrett, maintains that he observed the Petitioner strike R.H., the inmate, with his fist. An investigation ensued by the Department and the Petitioner's supervisory personnel with the result that on January 19, 1990, the Petitioner was terminated for striking the child in question, as an incident of child abuse. The Petitioner filed an action with the Public Employees Relations Commission seeking to be reinstated in his employment position and to receive back pay and all due benefits. Ultimately, the Petitioner prevailed in that case and was reinstated on July 21, 1990 to his employment position, with award of back pay. The Petitioner alleges that in 1989, he sought a promotion to a supervisory position and was not promoted to that position but, rather, another person was promoted to it. The Petitioner then apparently filed a discrimination complaint with the Florida Commission on Human Relations and now alleges that he was retaliated against for filing that claim by the fact of and the manner in which he was terminated as a result of the child abuse incident allegedly occurring on December 29, 1989, for which he was terminated on January 19, 1990. The Petitioner also alleges that since his termination and reinstatement, he applied for another supervisory position, but that a white employee was promoted to that position. The Petitioner also contends that he overheard Mr. Barrett, his supervisor, tell Mr. Voldheim, in Mr. Barrett's office, that Mr. Voldheim had to find a basis to "terminate that nigger", meaning the Petitioner. The Petitioner also maintains that Mr. Barrett had written a note to Mr. Rivenbark, his superintendent, stating "there are too many niggers working here...we are going to change that...". Henry Bennett, a co-worker with the Petitioner who has known the Petitioner for approximately ten years, testified. The Petitioner had maintained that Mr. Bennett had told him of the memo or note allegedly written by the supervisor, Mr. Barrett, referencing "too many niggers" employed at the facility. In fact, Mr. Bennett testified that he had never told the Petitioner of any such memo and had never heard Mr. Barrett use the racial epithet "nigger". In fact, Mr. Bennett said he had never seen any memoranda whatever referencing race at all, including the use of that term. Mr. Bennett would have been incensed had he seen the use of such a term by the supervisor, Mr. Barrett, because he is black also, however Mr. Bennett saw no such reference. Mr. Barrett, in his own testimony, also, denied ever using the word "nigger", either verbally or in writing. Mr. Barrett's testimony establishes that during a recent alleged child abuse claim by one of the detention center inmates against the Petitioner, Mr. Barrett, in fact, believing that the Petitioner was not guilty, let him continue working without even temporarily suspending him, as is the normal practice. This fact tends to show that Mr. Barrett is not biased against the Petitioner and is not seeking an opportunity to retaliate against the Petitioner for the Petitioner's past civil rights activism on the job, which he admits and for his past filing of discrimination claims. Mr. Don Bell, the personnel director for HRS District I and the custodian of the employee records for the respondent agency, testified. He illustrated a comparison between March, 1989 through March, 1992, covering the time periods at issue in this case, showing the black versus white racial ratios, by position, for employees at the detention center. All positions, both that of superintendent and assistant superintendent, including various other supervisory positions, were thus shown to be occupied by more blacks than whites. In fact, the black/white ratio of employment positions at the facility presently is 19 blacks and 11 whites. Formerly, there were as many as 27 blacks and 3 whites. The increase in white employees and corresponding decrease in black employees was not shown to be other than a natural occurrence through such things as, for example, transfers, voluntary terminations of employment, or even involuntary terminations. The change in the number of black employees was not shown to be the result of any intent or practice of discrimination exercised by the Respondent employer, however and the number still shows that a majority of blacks hold positions at the detention center. Mr. Barrett established that the reason the Petitioner was not promoted to the supervisory position of which he complained was not on account of his race, not because of any effort to retaliate against him for his civil rights activism on the job or his past filing of claims against the employer, but rather was due to his record of inadequate behavior on the job, and that poor conduct was the reason he was denied the promotion. Mr. Barrett's testimony, concerning his not having used the term "nigger", in writing or verbally, was corroborated by that of Mr. Bennett, a black employee, who the Petitioner testified told him of the alleged memo where Mr. Barrett was supposed to have indicated that there were too many "niggers" employed at the facility. Mr. Barrett's and Mr. Bennett's testimony is accepted, as is that of Don Bell, the personnel director. The Petitioner's testimony is not credited, as it is not judged credible when compared to that of Mr. Bennett, Mr. Barrett and Mr. Bell. Mr. Bennett's testimony particularly contradicts that of the Petitioner, and there was absolutely no motive to lie, on the part of Mr. Bennett, demonstrated in the evidence of record. The Petitioner has demonstrated that he had to borrow money during the time he was out of work, after he was dismissed for striking the minor inmate, and that he has never been recompensed for the interest he paid on that borrowed money, that he was embarrassed as a result of the firing incident and has missed chances at promotion. However, based upon the testimony of the above-named witnesses, the Hearing Officer having weighed the candor and credibility of all witnesses in reaching that decision, it has not been established that the Petitioner was not promoted due to any discriminatory intent on account of his race nor on account of retaliation for his having filed past claims against his employer. It has not been shown that the termination of the Petitioner, with regard to the "child striking" incident, was levied against the Petitioner by the Respondent in retaliation for any past claims or past civil rights activism or other dispute with the employer. Although the Petitioner demonstrated that he failed to get the supervisory position and established that a white man was promoted to that position, who had been working for the employer for a shorter period of time, it was not shown that the hiring of the white person was done for any discriminatory motive. In view of the fact that at all times pertinent to this proceeding, the Respondent has employed significantly larger numbers of black employees than white employees across most of its position categories, the mere fact that a white person was promoted to the supervisory position in question instead of the Petitioner does not establish a prima facie case of discrimination. Even if it had, the Respondent established a legitimate business reason for the failure to promote the Petitioner, in that the Petitioner's attitude and conduct was not sufficiently satisfactory to justify his promotion to a supervisory position like that in question. Further, the testimony of Mr. Bennett and Mr. Barrett established that there was no ongoing policy or motive on the part of Mr. Barrett or other supervisory personnel to retaliate against the Petitioner for his past activist attitude and conduct in the work place nor for his past filing of claims of discrimination against the employer. In fact, the testimony of Mr. Bennett shows that the Petitioner was simply not telling the truth about the alleged written memo concerning the so- called issue of "too many niggers" being employed at the facility. An employee's attitude and conduct on the job are an important part of his job performance and have a direct and important bearing on whether that employee is adequately performing his job. If one employee, even assuming they were equally qualified (which was not established by the Petitioner) has a record of improper behavior and attitude on the job and the other employee is promoted to a position at issue, the employee with the poorer behavior or conduct record cannot, thus, show discriminatory intent or motive even if the employee promoted happened to be white because such is a legitimate business reason not to promote the employee situated like the Petitioner. Moreover, although the employee, Mr. Kreitzer, who was promoted instead of the Petitioner, is white and had been there only a short period of time (or something over six months) whereas the Petitioner had been employed for 17 years, the Petitioner did not establish that the two employees, he and Mr. Kreitzer, were similarly situated because he did not establish that their qualifications were equal or that he was better qualified than Mr. Kreitzer, other than in time of service, which is only one criteria in considering qualifications. In summary, the Petitioner did not demonstrate that his earlier termination and his failure to be promoted to the supervisory position in question was due to discriminatory reasons. He has not shown that he was accorded disparate discriminatory treatment, as opposed to white persons similarly situated, because although the employee who got the promotion in question was white, it was not shown that the Petitioner and that employee were equally qualified or that the Petitioner was better qualified than the white person who was promoted and thus that they were similarly situated. Thus, a prima facie case has not even been established. The Respondent demonstrated that there was no retaliatory intent with regard to the "child striking incident" because a later incident occurred when the Petitioner could have been accused of child abuse because of an altercation with a minor inmate, and Mr. Barrett allowed the Petitioner to continue working when he could have suspended him, at least temporarily, during an investigation of the incident. This shows a lack of retaliatory motive. Moreover, with regard to the termination incident, the Petitioner did not establish that white employees who were involved in similar altercations with inmates and accused of child abuse had not been terminated. Thus, no disparate treatment has been demonstrated.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore, RECOMMENDED that a Final Order be entered holding that no discriminatory employment action occurred and that the Petition be dismissed in its entirety and that the motion for fees and costs be denied. DONE AND ENTERED this 29th day of September, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 29th day of September, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7256 Petitioner's Proposed Findings of Fact 1-5. Accepted, but not in themselves materially dispositive. 6. Rejected, as contrary to the preponderant weight of the evidence. 7-9. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as not in accordance with the preponderant weight of the evidence. 12-16. Accepted, but not in themselves dispositive of the material issues presented. Rejected, as contrary to the preponderant weight of the evidence. Rejected, as not supported by competent, substantial evidence of a preponderant nature. Respondent's Proposed Findings of Fact 1-10. Accepted. Rejected, as subordinate to the Hearing Officer's findings of facts on this subject matter. Accepted. Accepted. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Gregory P. Farrar, Esq. 109 N. Palafox Street Pensacola, FL 32501 Rodney M. Johnson, Esq. District Legal Counsel Department of HRS P.O. Box 8420 Pensacola, FL 32505-8420
