The Issue Mary Harrison's charge of discrimination dated August 4, 1995, alleges that Jodan, Inc., doing business as Manpower (Jodan), discriminated on the basis of her race and for retaliation by constructively discharging her, giving her verbal and written reprimands and a poor performance rating, by denying her training and by intimidating her. The issues for disposition in this proceeding are whether the alleged discrimination occurred, and if so, what relief is appropriate.
Findings Of Fact Jodan, Inc., is a family owned franchise of Manpower Temporary Services. Jodan provides temporary staff to its clients. It has six offices in Central Florida: two in north Orlando; one in south Orlando; and one each in Deland, Daytona, and Melbourne. Dan Gavin, president, is responsible for the day to day operations; John Gavin, his brother, is a co-owner. In March 1994, Margaret Jones was Jodan's district manager for the north Orlando (Maitland) and south Orlando (Sand Lake Road) offices. She recruited and hired Ms. Harrison to work as a service representative in the Maitland office. Shortly before that time John Gavin had asked her to recruit specifically for a minority employee as it would be helpful for the office to have a more diverse staff to serve its clients. Ms. Harrison is an African-American woman. At the time that she was hired by Ms. Jones in March 1994, her substantial work experience was in real estate and property management. Service representatives at Jodan perform the intake process with temporary employees (application, interview and testing); they take orders from clients and place temporary employees with those clients. Jodan provides a detailed training program for its employees, including its service representatives. Upon the commencement of her employment with Jodan, Ms. Harrison began a training program known as Professional Service 1 (PS-1) under the supervision of Margaret Jones. PS-1 is a self study course where the employee learns the policies and procedures of a Manpower franchise through tapes and other training materials. It is the responsibility of the employee to keep track of and complete PS-1. Normally it takes between three and six months for an employee to complete PS-1; however, it can take longer, depending on the employee's office work load at the time. Disgruntled and upset by what she perceived as criticism of her management and hiring decisions, Ms. Jones left the employ of Jodan on or about August 1, 1994. Prior to that time, Ms. Harrison had completed all but three or four minor details in the PS-1 training. Ms. Harrison was satisfied by her training under Ms. Jones and she admits that no one at Jodan attempted to prevent her from completing PS-1. In September 1994, Ms. Harrison reported to Dan Gavin that her PS-1 materials were lost. He was surprised that one of his employees would lose her training materials and he assisted Ms. Harrison in looking for the materials by, among other things, looking in an off-site storage facility for them. Ms. Harrison's materials were never found and she includes the disappearance of her training materials as one of the basis for her charge of discrimination. There is no evidence that anyone took the materials but neither is there any explanation for their disappearance. Normally, when an employee completes PS-1, a checklist is sent to Manpower headquarters in Milwaukee, Wisconsin, indicating the employee has completed the training. On the checklist, the employee is required to record the dates that she completed each aspect of PS-1. Mr. Gavin contacted Manpower headquarters and obtained a new checklist. He also set up a schedule to meet with Ms. Harrison to go over the items on the checklist and verify that all of PS-1 had been completed. At their first meeting, Ms. Harrison assured Mr. Gavin that she had completed all of PS-1. Based on their conversation, he called Manpower headquarters and verbally confirmed that Ms. Harrison had completed PS-1. Manpower records indicate that she officially completed PS-1 as of December 1, 1994. Ms. Harrison's testimony at hearing with regard to whether she actually had an opportunity to finish the training was confused and unclear as she seemed to contend that there were materials that she was supposed to send to the home office, but could not, due to the lapse of time and loss of her training package. After an employee completes PS-1, the next step is to attend PS-2, which is a week-long training seminar at Manpower headquarters in Milwaukee. PS-2 reinforces what is learned in PS-1 and teaches additional marketing skills. Employees are given a list of dates during which PS-2 will be offered and, because the training requires them to be away from home for a week, they can schedule it at their convenience. Employees can schedule PS-2 before actually completing PS-1 but must have completed PS-1 before they actually attend PS-2. Ms. Harrison could have attended PS-2 any time after December 1, 1994. In January 1995, Mr. Gavin directed the area manager, Kathy Stanford, to ensure that all eligible employees, including Ms. Harrison, sign up for and attend PS-2. The PS-2 classes fill up quickly and it was a priority for Mr. Gavin to have his employees enroll. On more than one occasion, Ms. Stanford gave Ms. Harrison a list of available classes and the opportunity to attend PS-2. However, Ms. Harrison failed to sign up for PS-2. Jodan evaluates employees' performance and salaries on an annual basis. On January 30, 1995, Ms. Harrison was given her annual evaluation. Although the "Appraisal Period" on her evaluation is listed as March 21, 1994, to September 1994, the uncontradicted evidence was that this was a scrivener's error and the appraisal period was March 21, 1994, (Harrison's date of hire) through December 31, 1994. Her review was performed by Mr. Gavin, who was familiar with her performance, with input from Ms. Harrison's immediate supervisor, Gloria Michael. Ms. Stanford sat in on all evaluations done at that time, including Ms. Harrison's, because she was the new area manager and sitting in on the reviews was one way for her to become familiar with the staff and their performances. Ms. Harrison's overall score on the evaluation was a 2.66 on a scale of 1 to 5. A score of 2 means "Below Expectations" and a score of 3 means "Consistently Meets Expectations." A service representative learns all performance areas covered by the evaluation through PS-1. Although she claims that she was evaluated in areas in which she was not trained, Ms. Harrison did not raise this issue with Mr. Gavin and she did not write in any comments on the evaluation in the space provided for employee comments. Further, the uncontradicted testimony, including that of Margaret Jones, established that Ms. Harrison did receive training in all areas of her job in which she was evaluated. Ms. Harrison did not suffer any job detriment as the result of this evaluation or the unusual circumstances surrounding her PS-1 training. She received a pay increase following the evaluation and was then the highest paid service representative. On March 29, 1995, Ms. Harrison was presented with a memorandum by Ms. Michael that addressed concerns she had with Ms. Harrison's job performance. Specifically, the memorandum addressed the following areas: Failure to be responsive to customer needs; The high number of personal calls Ms. Harrison was receiving at the office; Failure to properly match an employee's skills with a client's needs; Failure to consistently enter and update employee information in the computer system each time she spoke with an employee; Failure to open the office on time in the morning; Failure to set up computer training for applicants when she opened the office in the morning. Neither Mr. Gavin nor Ms. Stanford played any role in the preparation or presentation of this memorandum. Ms. Harrison did not suffer any adverse employment action as the result of the March 29, 1995, memorandum. Ms. Michael followed up the March 29, 1995, memorandum with a memorandum on May 3, 1995, detailing Ms. Harrison's improvement in all of the areas discussed in the March 29, 1995, memorandum. On May 15-16, 1995, Ms. Harrison and Ms. Michael (who is white) failed to provide an important client with prompt and appropriate service. As a result, Ms. Stanford counseled both women and placed them both on 90 days probation. Ms. Harrison does not contend that this action was discriminatory. On July 17, 1995, Ms. Harrison submitted a letter of resignation. In the letter she stated that she enjoyed her position as service representative. She also stated that she felt she had been subjected to discriminatory treatment. Ms. Harrison's resignation and the allegations of discriminatory treatment came as a surprise to Ms. Stanford and Mr. Gavin as Ms. Harrison had never before told them she was unhappy or felt discriminated against. In her letter of resignation, Ms. Harrison offered to meet with Mr. Gavin and Ms. Stanford to discuss her resignation, but during her exit interview she refused to discuss her allegations. Although many of Jodan's temporary employees were minorities, Ms. Harrison was the only African-American service representative. There were, however, other minorities, including Hispanic-Americans. Ms. Harrison presented her case in an articulate organized professional manner. It is clear that she felt the work environment was stressful and uncomfortable. However, she did not prove that she was discriminated against or was the object of hostile or adverse employment actions. The temporary employment agency business is highly competitive. Jodan had several large corporate clients and it had to work hard to meet the needs of those clients, sometimes on short notice. This created pressure on Jordan's regular staff that was experienced by white or non-minority employees as well as Ms. Harrison.
Recommendation Based on the above, it is RECOMMENDED: that the Florida Commission on Human Relations dismiss Ms. Harrison's charge of discrimination. DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998. COPIES FURNISHED: Mary A. Harrison 2356 Carborn Street Orlando, Florida 32839 Kelly T. Blystone, Esquire Moran & Shams, P.A. Post Office Box 472 Orlando, Florida 32802-0472 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER 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 30th day of April, 1992.
The Issue Whether Miami-Dade County committed the unlawful employment practices alleged in the employment discrimination charges filed by Petitioner and, if so, what relief should she be granted by the Florida Commission on Human Relations (FCHR).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The County is a political subdivision of the State of Florida. Among the various departments of County government is the Finance Department. There are approximately 300 employees working in the Finance Department. At all times material to the instant case, Rachel Baum was the Finance Director responsible for overseeing the operations of the Finance Department. The Tax Collector's Office is administratively located within the Finance Department. There are approximately 210 employees assigned to the Tax Collector's Office. The Occupational Licenses section and the Tourist Tax section are operational units within the Tax Collector's Office. At all times material to the instant case, Xiomara Vuelta was the Manager of the Occupational Licenses section, Marie Esquivel was the Assistant Manger of the Occupational Licenses section, and Cristine Mekin was a Tax Records Clerk Supervisor I in the Occupational Licenses section. At all times material to the instant case, Allen Eagle was a supervisor in the Tourist Tax section. Harold Ginsberg was a superior of Mr. Eagle's. At all times material to the instant case, the County had in effect a policy prohibiting sexual harassment in the workplace. The policy was codified in Administrative Order No. 7-28, which read as follows: Statement of Policy: The policy of Dade County is to insure that all employees are able to enjoy a work environment free from all forms of discrimination, including sexual harassment. Employees who have experienced sexual harassment shall have the right to file complaints with the County's Affirmative Action Office and have those complaints properly investigated. Employees who are found guilty of sexually harassing other employees shall be subject to appropriate sanctions, depending on the circumstances. These may range from counseling up to and including termination. Definition: Sexual harassment consists of unsolicited, offensive behavior involving sexual overtures or conduct, either verbal or physical It does not refer to occasional comments of a socially acceptable nature; it refers to behavior that is not welcome, that is personally offensive, that lowers morale, and that, therefore, interferes with the work environment. As explained in the EEOC Guidelines: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute[] sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." Implementation: In order to effectively implement the above policy, all County employees must refrain from Threatening or insinuating, either explicitly or implicitly, that an employee's refusal to submit to sexual favors or advances will adversely affect another employee's employment, performance evaluations, wages, promotion, assigned duties, shifts, or any other condition of employment or career development. Creating a sexually harassing environment by such actions as offensive sexual flirtations, advances, propositions, verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words, or such other conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. Taking retaliatory action of any kind against any other employee as a result of that person's seeking redress for, or complaining of, sexual harassment under this policy or through other legitimate channels. Exhibiting any other conduct that falls within the above-stated definition of sexual harassment. It shall be the responsibility of each County supervisor to maintain his or her work place free of sexual harassment. This duty includes discussing this policy with all employees and assuring them that they need not endure insulting, degrading, or exploitive sexual treatment, and informing employees of their right to file complaints about such conduct. Complaint Procedure: Employees who believe they have been the subject of sexual harassment have the right to file a complaint with the County's Affirmative Action Office. Employees may, if they desire, also report such incidents of sexual harassment to their supervisor but are under no obligation to do so prior to filing a complaint. All complaints of sexual harassment will be investigated to determine whether the allegations are well- founded. If the investigations confirm the continuation of sexual harassment, the Affirmative Action Office will pursue prompt corrective action, including positive relief for the victim, and appropriate disciplinary action against the offender. Compliance: It shall be the responsibility of the Affirmative Action Office to provide compliance information to managers and supervisors concerning the County's sexual harassment policy, the gravity of such conduct, and the procedures to be employed in conducting sexual harassment investigations. The Affirmative Action Office shall also provide necessary training to managers and supervisors in the area of sexual harassment. This administrative order is hereby submitted to the Board of County Commissioners of Dade County, Florida. Documents describing the contents of Administrative Order No. 7-28 were posted at various County work locations. Petitioner is a black female who was employed by the County from 1984 until July of 2001, when she was terminated. At all times material to the instant case, Petitioner worked as a Tax Records Clerk II in the Finance Department, initially in the Tourist Tax section under the direct supervision of Mr. Eagle5 and then in the Occupational Licenses section under the direct supervision of Ms. Mekin. At no time did Mr. Eagle inappropriately touch Petitioner, discuss with her any matters of sexual nature, make sexual advances towards her, threaten to retaliate against her if she did not provide him with sexual favors, or otherwise, in his dealings with her, engage in conduct violative of the County's policy against sexual harassment. Nonetheless, in or around early 1999, Petitioner (who was aware of the County's anti-sexual harassment policy) falsely accused Mr. Eagle of having subjected her to such harassment. The County's Office of Fair Employment Practices (FEP) thoroughly investigated, in good faith, the allegations made by Petitioner. Petitioner was placed on administrative leave with pay during the investigation. Juan de Ona, an investigator with FEP, conducted the investigation, with the assistance Finance Department personnel who did not work in the Tourist Tax section (Marie Carpenter, the department's then-Personnel Manager, and Arlesa Leverette, the department's Affirmative Action Coordinator). Mr. de Ona interviewed Petitioner, Mr. Eagle, and others who worked with them in the Tourist Tax section and who would have been in a position to corroborate Petitioner's allegations of sexual harassment were the allegations true. Based on his investigation, Mr. de Ona reasonably concluded that Petitioner's allegations were unfounded. On May 27, 1999, Mr. de Ona issued a written report of his investigation, which contained the following "Findings and Recommendations": No evidence was found about any of Ms. Ferguson's allegations pertaining [to] Mr. Eagle's behavior. Testimony provided by all employees in the workplace directly contradicted all allegations made by the complainant. Witnesses all expressed shock, stating that such behavior would be out of character [with] the manner they are supervised by Mr. Eagle. They believe he's a fair, capable supervisor. There is no corroboration at all that sexual harassment took place between Mr. Eagle and Ms. Ferguson or to other incidents of a sexual nature as she alleged. Ms. Ferguson appears to have some serious problems about her perceptions of interpersonal relationships and communications in the workplace. In light of the following I recommend the following: Make it mandatory for Ms. Ferguson to participate in the Employee Support Services (ESS) program. Request through the ESS office, a fitness for duty test if that office supports the approach. If possible, transfer Ms. Ferguson to another work station under a different supervisor. As the head of the County department in which Petitioner worked, Ms. Baum received a copy of Mr. de Ona's report. On or about July 25, 1999, before any formal action had been taken by Ms. Baum in response to Mr. de Ona's report, Petitioner filed EEOC Charge No. 150993522 (which is described above). In accordance with Mr. de Ona's recommendation, Ms. Baum took the reasonable step of transferring Petitioner to the Occupational Licenses section effective on or about August 16, 1999, so that Petitioner would no longer be supervised by Mr. Eagle. This action was not taken to retaliate against Petitioner for having filed EEOC Charge No. 150993522. Ms. Baum had no reason to believe that Petitioner would have any difficulties with the supervisory personnel in the Occupational Licenses section, none of whom had been identified by Petitioner as being in any way involved in the alleged sexual harassment to which Petitioner claimed she had been exposed in the Tourist Tax section. Ms. Baum also followed Mr. de Ona's recommendation that Petitioner be referred to the County's Employee Support Services (ESS) program. She did so with the hope that Petitioner would benefit as a result of her participation in the program. Although she did not know "exactly what [Petitioner's] problem was," Ms. Baum felt that there were "issues there" because Petitioner had made allegations that were not true. In addition, Ms. Baum suspended Petitioner for five days for having made "false statements" about her co-workers in her complaint to the FEP.6 Ms. Baum took this action because "people's reputations were tarnished" by Petitioner's "false statements" and, in Ms. Baum's view, Petitioner "need[ed] to understand that you can't make [such] false statements" without retribution. Ms. Baum advised Petitioner of the referral to ESS and the five-day suspension by letter dated September 7, 1999, which read as follows: This is to advise you that you are being suspended without pay for five days on the following dates: September 13, 14, 15, 16 and 17, 1999. This action is a[] result of your failure to comply with Miami-Dade County Personnel Rule, Chapter VIII, Section 7, to wit: That the employee has been offensive in h[er] conduct toward fellow employees, Wards of the County or the Public. That the employee is antagonistic towards Superiors and fellow employees, criticizing orders, rules and policies and whose conduct interferes with the proper cooperation of employees and impairs the efficien[cy] [of] County Service." Specific charges are detailed in the discipline action report attached hereto. Upon return to work, you must attend sessions as designated by the Employee Support Services (ESS) . The initial appointment will be made for you. You must attend that meeting as well as all subsequent meetings set by ESS. You must also provide and maintain your current address and telephone number on file with your supervisor. It will be your complete responsibility to inform your immediate supervisor of any changes. While you were within your rights to file a discrimination complaint with the Office of Fair Employment Practices, it was unnecessary and irresponsible of you to include falsehoods and personal attacks directed towards your superiors and fellow employees. By doing so, you have demoralized your co-workers and damaged the overall morale of the Tax Collector's Office. This type of behavior exhibited by you is discouraging and cannot be tolerated. You may appeal your suspension to a Hearing Examiner within 14 days from receipt of this letter by requesting an appeal hearing in writing to the Director of the Employee Relations Department at the Stephen P. Clark Center, 111 NW 1st Street, Suite 2110, Miami, FL 33128. Petitioner did not appeal her suspension. When she reported to the Occupational Licenses section, Petitioner was trained by her immediate supervisor, Ms. Mekin. At the beginning, in training Petitioner, Ms. Mekin treated Petitioner no differently than Ms. Mekin would treat any clerical employee new to the section. Petitioner, however, was unable to grasp the basic procedures required to be followed by the section's clerical staff, so Ms. Mekin had to provide Petitioner with additional training beyond that which was standard for a new employee in the section to receive. Despite the extra help she was offered, Petitioner continued to make numerous mistakes of a serious nature. Ms. Mekin monitored Petitioner's work in the same manner and with the same frequency (on a daily basis) that she monitored the work of her other subordinates. Petitioner made far more errors than her co-workers (and, for that matter, any other employee who had ever worked under Ms. Mekin's supervision in the Occupational Licenses section7). Although Petitioner occupied a Tax Records Clerk II position (and was paid accordingly), she was assigned Tax Records Clerk I duties, which she performed at the "public counter" in the office. Petitioner expressed dissatisfaction with her assignment and asked Ms. Mekin to assign her Tax Records Clerk II work.8 Ms. Mekin declined to do so inasmuch as Petitioner lacked the "specialized knowledge" needed to perform such work. As Ms. Mekin explained in her testimony at the final hearing (which the undersigned has credited), "I couldn't get her trained as a [Tax Records Clerk] I, how could I put her in a specialized [Tax Records Clerk] II position?" There being no other assignment Ms. Mekin could reasonably make given Petitioner's limitations, Petitioner remained at the "public counter" performing Tax Records Clerk I duties. In addition to making many mistakes while at the "public counter," Petitioner engaged in disruptive workplace behavior, initiating confrontations with co-workers, as well as visiting members of the public. It reached a point where, due to Petitioner's offensive and abusive conduct, no one in the office wanted to be seated next to her at the "public counter." Also interfering with the efficient operation of the office was Petitioner's poor attendance. She had numerous absences and was frequently late reporting to work. In addition, there were instances when, before the end of the workday, Petitioner would just walk out of the office without permission and letting anyone know where she was going and not return until several days later. On occasion, after being out of the office, Petitioner submitted doctor's notes. None of the notes stated that Petitioner was suffering from any substantially limiting mental impairment, and there is no persuasive evidence to suggest that any supervisory personnel perceived her as having such an impairment and took adverse action against her based upon such a perception. Petitioner was counseled verbally and then in writing by her supervisors in the Occupational Licenses section concerning her shortcomings, but such counseling did not yield any positive results. Ms. Mekin waited well longer than usual to "write-up" Petitioner. She gave Petitioner this "extra leeway" because she knew that Petitioner had "personal problems" and was missing a lot of work. In or around late December of 1999, Petitioner received a written reprimand for "insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County service or to the public" because she had stopped going to the psychiatrist (Dr. Charles Gibbs) to whom she had been referred by ESS.9 The "facts" upon which the written reprimand was based were described therein as follows: In the disciplinary action dated July 27, 1999 your continued employment with Miami- Dade County was contingent upon: "Seek assistance from Employee Support Services and attend sessions as designated by ESS. Failure to attend and participate in them will result in further disciplinary action up to and including dismissal." You have failed to follow the recommendation of the Employee Support Services Section. Further violation of the Disciplinary Action requirements will result in dismissal. Less than a month later, Petitioner received a Record of Counseling, dated January 14, 2000, which read as follows: A. That the employee is incompetent or inefficient in the performance of his/her duty. K. That the employee has hindered the regular operation of the Department or Division because of excessive absenteeism. V. That the employee has been habitually tardy in reporting for duty or has absented himself/herself frequently from duty during regular working hours, or has refused to perform a reasonable amount of emergency work after working hours when directed to do so by h[er] superior officer. Facts: The employee has been given the same training afforded any new employee, however the excessive absenteeism and habitual tardiness are negatively reflecting in the productivity and effectiveness of the employee's performance. The excessive absenteeism of the employee is disruptive to the section, resulting in a diminished effectiveness in the service to the public and reducing the inspectors['] field collections. See attachment II: Attendance and tardiness statistic table. "[A]ttachment II" reflected that, from August 26, 1999, to January 11, 2000, Petitioner had been absent 28.47 of a total of 86 work days and had been tardy 22 times. Petitioner received another Record of Counseling on March 10, 2000. This Record of Counseling read as follows: You have had several performance conferences regarding your numerous mistakes and have received copies of all your errors. I have pointed out ways in which you can improve your efficiency, nevertheless you have failed to improve your performance. In addition to the regular training afforded all new employees, you were re-trained when I observed that you were not improving and were repeating the same mistakes on a daily basis. Your poor performance negatively impacts our section[.] [I]t lowers our productivity and affects customer service. You must correct this situation immediately[.] [F]ailure to improve your performance will result in further disciplinary action. On Friday, May 12, 2000, Petitioner again was given a Record of Counseling. This Record of Counseling read as follows: You have been informed on multiple occasions that you had depleted your annual and sick time. Since you started to work with Occupational License[s] you have been habitually tardy in reporting for duty and have been excessively absent. In addition you have absented yourself frequently from duty during regular working hours. Your excessive and erratic pattern of absenteeism is disruptive to the Section, resulting in a diminished effectiveness in the service to the public. Furthermore, it affects the inspectors['] field productivity who must stay inside to cover your absences. You must correct the situation immediately by being on time everyday and by planning the usage of accrued time in advance. Failure to comply will result in a disciplinary action leading to dismissal. See attachment of attendance and tardiness table. The "attendance and tardiness table" attached to the Record of Counseling reflected that, from August 26, 1999, to Sunday, May 14, 2000, Petitioner had been absent a total of 303.25 hours out of a total of 1264 possible work hours. On June 1, 2000, Petitioner was sent a memorandum regarding her "[f]ailure to follow procedures." It read as follows: On May 25, 2000 you failed to follow the established procedures concerning licenses under legal status. You served a taxpayer at the counter who came to pay license #444002-0 (under sheriff warrant)[.] [T]his license owed $150.00 [to] Occupational License[s] and $70.00 to the Sheriff['s] Department. You ignored the intermediate screen with the message "Do not print application- Do not file maintenance. Check with your Supervisor first." This failure to follow procedures resulted in a loss to the County, since the taxpayer was not directed to pay the $70.00 Sheriff fee. This is to remind you that you must strictly adhere to the established procedures at all times. Further incidents of this nature will result in a Disciplinary Action up to and including dismissal. That same date, June 1, 2000, Ms. Mekin sent to Ms. Vuelta the following memorandum regarding a "[c]ounter [i]ncident": This is to inform you that Jacquelyn Ferguson claims that someone opened a stapled shopping bag full of papers she had inside her desk drawer, while she went to an assignment at the 1st floor. Ms. Ferguson accused co-workers of opening the paper bag and then passed inappropriate remarks to the clerks assigned to the counter. I informed Ms. Ferguson that no one had been at her desk while she was downstairs. Martha Manthorpe and Milagros Valdivia expressed to me how stressed and upset they feel about the false accusations Ms. Ferguson is making. She then approached Marie Esquivel to claim that for the second time someone had gone into her paper bag. Since Ms. Ferguson was assigned to the Occupational License[s] Section, she has antagonized each person that she has ever worked next to her. All clerks and inspectors have complained of her lack of teamwork skills, her constant harassment , false accusations, and uncooperative behavior. As you are aware, I had to train Ms. Ferguson twice because of her numerous mistakes, nevertheless, I had to give her a Record of Counseling for poor performance[.] [T]o this date she has failed to improve. In addition, I had to give her a second Record of Counseling because of her poor attendance. At this point I feel that I have exhausted all that is available to me as a Supervisor to motivate Ms. Ferguson to perform as expected of any County employee. It is extremely frustrating to divert time [to] constantly monitor Ms. Ferguson in order to diffuse incidents with other employees and taxpayers. This situation is causing undue stress and hardship to the other O.L. employees[.] [T]hey feel it is a punishment when I have to assign them to work next to Ms. Ferguson. Please advise on what my next steps [should] be regarding Ms. Ferguson. On June 21, 2000, a co-worker of Petitioner's, Martha Manthorpe, sent a memoranda to Ms. Vuelta complaining about Petitioner. The memorandum read as follows: I am writing to inform you that working with Jackie has caused considerable aggravation to my co-workers and [me]. I have worked in this department for over seven years, and have never had a problem with another employee. From the time that Jackie began working in our department, she has had problems with her co-workers. She never liked being trained or told what to do by a Clerk I, for no apparent reason, other than the fact that [that person's] classification is less than her[']s. Any clerk that has had to work next to her has endured constant negative comments and insinuating remarks. It has also been noted that she has this particular attitude towards her female co-workers only. Ranier Castro has noticed the different attitude & tone she demonstrates toward another co- worker, Milagros Valdivia, in comparison to him. This attitude has gotten to the point that Milagros was very thankful when she was moved from the counter desk to the mail desk. With me, she portrays an attitude that my job is to serve her alone and that I should drop whatever I am doing when she needs anything. If I do not know the answer to her question, she becomes upset that she needs to ask Cristina. If I am checking in inspectors or balancing their money, she will throw her paperwork in front of me, in order to force me to attend to her needs. Today, she became very rude towards me. She was arguing with Milagros regarding some ticket numbers that she claimed were missing and that someone had taken them. After Milagros told me what had happened, I then told Jackie that nobody had taken her numbers. She then turned her head away from me, put her hand up, and told me that she was not talking to me and that I was not to speak to her. She proceeded to repeat this a few more times while there were taxpayers in the lobby. Another problem that we have had with Jackie is that she has an extreme problem with smells either in the office or at the counter area. She will spray room deodorizers several times a day in front of taxpayers that are waiting to be served. In addition, Jackie has been noted to give incomplete information to taxpayers, specifically Hispanic taxpayers, or sending them to incorrect departments to solve their problems. It is very difficult & stressful to work in a[n] office environment with a co-worker that does not work as a team player & can be disrespectful to others. On June 22, 2000, Ms. Vuelta sent Petitioner a memorandum regarding an "[u]nauthorized [a]bsence." It read as follows: On Thursday, June 22, 2000 you left for lunch at 1:05 P.M. and did not return to work.[10] You have walked out of your job on several occasions since you started to work at Occupational License[s]. Once again you failed to inform your Supervisor about your absence[.] [T]his is considered an abandonment of your responsibility at the public counter, therefore creating a Customer Service crisis. On June 27, 2000, Ms. Vuelta, acting on the suggestion of Ms. Mekin, signed a Disciplinary Action Report (June 2000, DAR) recommending the termination of Petitioner's employment. "Attachment I" of the June 2000, DAR set forth the "charge[s]" against Petitioner. It read as follows: That the employee is incompetent or inefficient in the performance of [her] duty. That the employee has been offensive in [her] conduct toward [her] fellow employees, wards of the County or the public. D. That the employee has violated any lawful or official regulation or order, or failed to obey any lawful and reasonable direction given [her] by a supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonabl[y] be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County Service or to the public. K. That the employee has hindered the regular operation of the department or division because of excessive absenteeism. S. That the employee is antagonistic towards superiors and fellow employees, criticizing orders, rules and policies, and whose conduct interferes with the proper cooperation of employees and impairs the efficiency of the County service. V. That the employee has been habitually tardy in reporting for duty or has absented [herself] frequently from duty during regular hours, or has refused to perform a reasonable amount of emergency work after working hours when directed to do so by [her] superior officer. "Attachment II" of the June 2000, DAR described the "specific actions [of Petitioner and the] statements" made by her, which warranted the termination of her employment: On March 10, 2000 you were given a Record of Counseling because of your poor performance[.] [T]his Record of Counseling had to be given to you because of your lack of response to repeated training sessions where your Supervisor pointed out your errors and outlined expectations. You also had several performance conferences where your Supervisor tried to motivate you to improve your efficiency[.] [A]s of this date you have failed to achieve the expectations of this unit. On several occasions you have been offensive and abusive with your co-workers in front of taxpayers[.] [Y]ou have also been abusive and offensive to the taxpayers in front of your co-workers. On April 14, 2000 you were given a memo in reference to a complaint letter from a taxpayer. Your behavior has created an intimidating and hostile working environment. D. On multiple occasions you have failed to comply with the rules, policies and directives of the section. This situation results in a disruption of the smooth operation of this unit, affecting both our effectiveness and our Customer Service. On December 20, 1999 you were given a Disciplinary Action for failure to follow the recommendations of the Employee Support Services. On June 1st, 2000 a memo had to be given to you for failure to follow procedure that resulted in an economic loss to the County. On May 12, 2000 you were given a Record of Counseling because of your excessive absenteeism. From August 1999 through May 14, 2000 you were absent 303.25 hours, with 209.00 hours of this total being a result of your calling in sick. S. On December 10, 1999 you were antagonistic with a Tax Record[s] Supervisor II from another section. You were advised to stay away from any other section of the Tax Collector and to resolve your differences using the proper channels. Furthermore we had had to rotate all Clerks and Field Inspectors to work next to you at the counter because they have all complained of your lack of teamwork, unreasonable conduct and your poor Customer Service. This situation has created an antagonistic environment interfering with your peers['] work performance. You have been verbally counseled by your immediate Supervisor, by my Assistant and by me on multiple occasions regarding appropriate behavior expected from you. V. During your time at Occupational License[s] you have been habitually tardy and have on several occasions walked out of the office abandoning your duties, without notifying any Supervisor. You were given written counseling on June 26, 2000 for the most recent occurrence. You have been with Occupational License[s] since August, 1999. During this time your inadequate and antagonistic conduct as well as your poor performance have caused an adverse working environment for your peers and your Supervisors, hindering the proper delivery of Customer Service. Petitioner was not served with the June 2000, DAR until a little more than a year after it had first been signed by Ms. Vuelta. Petitioner had stopped coming to work on June 25, 2002 (the same date that Ms. Mekin had recommended Petitioner's termination) and was not heard from until a month or two later when she contacted Geneva Hughes, who had replaced Ms. Carpenter as the Finance Department's Personnel Manager, and told Ms. Hughes that she was "not feeling well." At Ms. Hughes' suggestion, Petitioner applied for a year's leave of absence (retroactive to when she stopped coming to work in June). Ms. Baum granted the leave request because she "felt that [Petitioner] needed the time to get whatever [were] . . . the problems [Petitioner was experiencing] in order, and if [Petitioner] needed that time, then [Ms. Baum wanted to] be accommodating." At no time did Petitioner fill out the necessary paperwork to apply to participate in the sick leave pool, although Ms. Hughes explained to Petitioner what she needed to do to make such application. On or about December 19, 2000, before any formal action had been taken on the termination recommendation contained in the June 2000, DAR, Petitioner filed a second employment discrimination charge with the EEOC against the County, EEOC Charge No. 150A10614 (which is described above). Ms. Vuelta re-signed the June 2000, DAR on June 28, 2001, and the re-signed document was served on Petitioner after she returned to work from her year's leave of absence. Ms. Baum (who was responsible for making the "final decision" on the matter) accepted the recommendation of termination contained in the June 2000, DAR, and by letter dated July 10, 2001, which read as follows, so advised Petitioner: This letter is to advise you that you are terminated from County Employment, effective close of business Friday, July 06, 2001. This action was taken in accordance with Chapter VIII, Section 7, Paragraphs (A), (B), (D), (K), (S), and (V) of Dade County's Personnel Rules, as detailed in the Disciplinary Action Report presented to you on June 28, 2001 (copy attached).11 You may, if you desire, in accordance with Chapter VIII, Section 5, of the Dade County Personnel Rules, appeal this action to a Hearing Examiner by writing to Maria Casellas, Director, Employee Relations Department, 111 Northwest First Street, Suite 2110, Miami, Florida 33128. This appeal must be received within fourteen (14) days of the receipt of this letter. 61. Petitioner was terminated because she was "just not progressing and she was just not functioning" as an employee should. Neither her termination nor the "write-ups" that preceded it were motivated by a desire to retaliate against her for having previously complained that she was the victim of employment discrimination by the County or by any other illicit motive. Petitioner did not "appeal [her termination] to a Hearing Examiner," but the representative of the collective bargaining unit of which she was a member did file a grievance and seek arbitration on Petitioner's behalf. The collective bargaining representative ultimately "withdr[ew] the [grievance] without prejudice," explaining in its letter of withdrawal that it had been unsuccessful in its efforts to contact Petitioner concerning the grievance and, based on Petitioner's "non- respons[iveness]," it had concluded that Petitioner was "not interested in the pursuance of her dismissal arbitration." Thereafter the American Arbitration Association closed the file in the case. In summary, there has been no persuasive showing of any acts of commission or omission by the County adversely affecting Petitioner's compensation or other terms, conditions, or privileges of her employment with the County that were based on any protected status she enjoyed or any protected activity in which she had engaged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order in these consolidated cases finding that the County is not guilty of any of the "unlawful employment practices" alleged by Petitioner in EEOC Charge Nos. 150993522, 150A10614 and 150A13134 and, based upon such finding, dismissing these charges. DONE AND ENTERED this 10th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2003.
The Issue The issue is whether Respondent, Mojo Old City BBQ ("Mojo"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on his gender.
Findings Of Fact Mojo is an employer as that term is defined in section 760.02(7), Florida Statutes. Mojo owns and operates a restaurant at 5 Cordova Street in St. Augustine. Mojo has put in place written policies and procedures that prohibit, among other things, discrimination or harassment on the basis of race, gender, national origin, or any other categories of persons protected by state or federal anti- discrimination laws. The policies also provide a specific complaint procedure for any employee who believes that he or she is being discriminated against or harassed. At the time of his hiring, Petitioner received an orientation that thoroughly explained the anti-discrimination and reporting policies. Testimony at the hearing established that Petitioner was again informed of these policies at an employee insurance meeting held in October 2013. Petitioner, a black male, was hired by Mojo on August 2, 2013, as a dishwasher. Petitioner testified that “from day one” he was called names and harassed by everyone at Mojo, employees and managers alike. He stated that an employee named Linwood Finley would yell that he didn’t want to work with a man who looked like a girl, or a “he/she.” Mr. Finley said, “I don’t want to work with a man that can't have kids.” Petitioner testified that the managers and staff would accuse him of looking between their legs. Employees would walk up to him and try to kiss him. He was told that he had to go along with these antics or find somewhere else to wash dishes. Petitioner testified that he believed he was fired for refusing to kiss other male employees. He had seen Mr. Finley and another male employee kissing behind the restaurant. He stated that two male employees had tried to kiss him and he refused their advances. Petitioner testified that he complained about the kissing to anyone who would listen. He said, “I’m not a woman, I’m a man. I got to come in here every day to the same stuff over and over. Y’all act like little kids.” Petitioner stated that when he complained, the harassment would stop for the rest of that day but would resume on the following day. Petitioner testified that there is a conspiracy against him in St. Augustine. For the last five years, he has been harassed in the same way at every place he has worked. Petitioner specifically cited Flagler College, the Columbia Restaurant, and Winn-Dixie as places where he worked and suffered name calling and harassment. Petitioner testified that he wanted to call several employees from Mojo as witnesses but that he was unable to subpoena them because Mojo refused to provide him with their addresses. Petitioner could provide no tangible evidence of having made any discovery requests on Mojo. Petitioner was terminated on November 29, 2013, pursuant to a “Disciplinary Action Form” that provided as follows: Roderick closed Wednesday night2/ in the dish pit. Again we have come to the problem with Roderick not working well with others causing a hostile work environment. This has been an ongoing issue. This issue has not resolved itself, and has been tolerated long enough. Roderick has been talked [to] about this plenty of times and written up previously for the same behavior. The documentary evidence established that Petitioner had received another Disciplinary Action Form on October 2, 2013, providing a written warning for insubordination for his hostile reaction when a manager asked him to pick up the pace in the evening. Laura Jenkins, the front-house supervisor at Mojo, was present at Mojo on the night of November 27, 2013. She testified that Petitioner had a history of getting into arguments with other kitchen employees that escalated into screaming matches during which Petitioner would commence calling the other employees “nigger.” Ms. Jenkins stated that on more than one occasion she had asked Petitioner to cease using “the ‘N’ word.” On the night of November 27, Petitioner was running behind on the dishes, so Ms. Jenkins asked another kitchen employee, Colin Griffin, to pitch in and help him. Petitioner did not want the help and argued with Mr. Griffin. Ms. Jenkins testified that Petitioner was screaming and cursing. The situation was so volatile that Ms. Jenkins felt physically threatened by Petitioner. She was afraid to discipline him that evening while she was the sole manager in the restaurant. On November 29, Ms. Jenkins met with kitchen manager Billy Ambrose and general manager Linda Prescott. They decided that Petitioner’s actions could not be tolerated anymore and that his employment would be terminated. Mr. Ambrose testified that on several occasions he sent people to help Petitioner in the dish pit and Petitioner refused their help. Petitioner would get into arguments with other employees over such things as the proper way to stack dishes. Mr. Ambrose named four different employees, including Mr. Finley, whom he sent to help Petitioner. Each one of them reported that Petitioner started an argument. Mr. Ambrose stated he went in to help Petitioner himself on one occasion and that Petitioner “kind of gave me attitude” despite the fact that Mr. Ambrose was his supervisor. Mr. Ambrose testified that Petitioner had an argument with Mr. Finley one morning that resulted in Mr. Ambrose having a cautionary talk with both employees. Mr. Ambrose sent Mr. Finley to help Petitioner in the dish pit. Petitioner stated, “Nigger, I don’t need your help.” Mr. Ambrose asked if there was a problem. Petitioner said, “No, we’re fine.” Mr. Ambrose asked Mr. Finley if everything was all right. Mr. Finley replied, “Yeah, I guess he’s just having a bad day.” Mr. Ambrose returned to his work only to find, five minutes later, that the two men were nose to nose arguing about the fact that Mr. Finley wasn’t washing dishes the way Petitioner liked. Ms. Jenkins, Mr. Ambrose, and Ms. Prescott all testified that they had never seen another employee harass Petitioner and had never heard of such a thing occurring. Petitioner never complained to any of these supervisors about discrimination or harassment of any kind. All three testified that they had never seen male employees kissing one another on the job nor seen any male employee attempt to kiss Petitioner. The three supervisors never heard any employee make comments about Petitioner’s appearing to be a girl. Ms. Jenkins testified that as a gay woman she would absolutely not allow any discrimination based on Petitioner’s gender orientation. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Mojo for his termination. Petitioner offered no credible evidence that Mojo's stated reasons for his termination were a pretext for discrimination based on Petitioner’s gender. Petitioner offered no credible evidence that Mojo discriminated against him because of his gender in violation of section 760.10, Florida Statutes. Petitioner offered no credible evidence that his dismissal from employment was in retaliation for any complaint of discriminatory employment practices that he made while an employee of Mojo. There was no credible evidence that Petitioner ever complained to a superior about the alleged harassment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Mojo Old City BBQ did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 23rd day of February, 2015, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2015.
Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. DAVIS, 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 19th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
The Issue The issue is whether Respondent engaged in an unlawful employment practice with regard to Petitioner.
Findings Of Fact Ms. Sorey is an African-American woman who at the time of the hearing was a resident of Panama City, Florida. Mastercorp was Ms. Sorey's employer at all relevant times and is engaged in the business of providing housekeeping and cleaning services to timeshare resorts in the State of Florida and elsewhere. Mastercorp has its headquarters in Crossville, Tennessee. Ms. Sorey was employed by Mastercorp at a resort in Panama City called the Landmark, from August 2005 until Mastercorp's contract with Landmark ended in September 2006. Ms. Sorey began her employment with Mastercorp at Landmark as a housekeeping supervisor. She was eventually assigned to the laundry. It was while working in the laundry at Landmark that she alleged discriminatory treatment. Ms. Sorey was supervised by an executive housekeeper (EH) and an assistant EH. The EH and assistant EH are management level employees who are supervised by area, district, or regional managers, and ultimately by corporate managers working out of the Crossville office. An EH is responsible for all operations at a client property, including budgeting and supervising all Mastercorp employees located there. Miguel Palacios began his career with Mastercorp in 2004 as an assistant EH and worked his way up to EH at a client property in the Orlando area. Later, he was used as a roving manager by Mastercorp. As a roving manager, he was assigned to "problem properties." It was his job to ameliorate whatever was causing a property to be a "problem property." Mr. Palacios was assigned to Landmark because operations there were unsatisfactory and, as a result, Mastercorp was in danger of losing its contract. Mr. Palacios was instructed to support the existing EH at Landmark. Later, he took charge of the operation and ran it until a new EH, Wilmer Gonzalez, was hired. Ms. Sorey was working at Landmark when Mr. Palacios assumed his duties there. Debbie Green was one of Mastercorp's housekeeping supervisors at Landmark. Ms. Green is an African-American. Because of her excellent performance, Ms. Green became Mr. Palacio's acting assistant while he was in charge of the Landmark property. Mastercorp's Vice President of Operations, David Maier, visited the Landmark property in March 2006 and told Ms. Sorey that he was impressed with her work in the laundry. He complimented her on the good job she was doing there. Mr. Maier made a remark to Ms. Sorey to the effect that she should be her "own boss." Ms. Sorey interpreted this to mean she could run the laundry as she wished, and without supervision. This was the first of several incorrect assumptions made by Ms. Sorey. When a district manager questioned her placement in the laundry, she attempted to contact Mr. Maier for clarification, but was not able to do so. Payment for working overtime at Landmark was permitted only when approved by the EH. This was a policy dictated by the requirement for Mastercorp to remain within its budget. Ms. Sorey approached Mr. Gonzalez and Mr. Palacios and informed them that she did not have enough time to complete her laundry during normal working hours and expressed a desire to work and be paid overtime. When rebuffed, Ms. Sorey became frustrated by the demands on her, which, it is found, were substantial. Eventually, Ms. Sorey brought a friend in to help her and the friend was put on the Mastercorp payroll. This alleviated some of the stress felt by Ms. Sorey. Subsequently, a corporate quality inspector named Nell Wilson came to Landmark in June 2006 and gave her department a 100 percent grade on its evaluation and provided a certificate of dedication. Neither Mr. Palacios nor Mr. Gonzalez found time to present the certificate to her. Mr. Palacios, a Puerto Rican, traveled to his native land on vacation in June of 2006 and returned with souvenirs for some of the employees at Landmark. These souvenirs included coffee mugs, liquor, and key chains. He presented Ms. Sorey with a coffee mug. She asserted that she was offended by the coffee mug. She referred to it as an "old devil cup" and considered it to be an inappropriate reflection on her race. Ms. Sorey related at the hearing, "I don't know nothing about Puerto Rico. Coming back here giving me no cup, calling me no black devil." It is clear how a person lacking sophistication in an international sense, or at least a Caribbean sense, could misinterpret the nature of the mug. The mug was black with a Puerto Rican flag superimposed upon it. On one side of the flag were the words "Puerto" and on the other, "Rico." Overlaid on the flag was a figure that vaguely resembled a man that was variously colored green, yellow, and red, and which appeared to be wearing a blue suit. The figure wore a cape with a yellow lining. The mug had the word "Vejigantes" written on it. In certain parts of Puerto Rico, Vejigantes are masks worn by dancers in carnivals. They represent various things such as strength and harmony. The masks are part of Puerto Rican culture and have nothing to do with race except that the festival itself may have had roots in Africa. Although Ms. Sorey appeared to be grateful at the time she was given the mug, two or three days later she called Gloria Turner, the general manager of the Landmark, telling her that she was offended by it. This was relayed to Mr. Palacios who went to Ms. Sorey and told her that he meant no offense and offered to provide her with another gift in return for the mug. She refused this offer. Several days later Mr. Palacios counseled Ms. Sorey because she had worked overtime without approval and was not following the direction of Mr. Gonzalez. This was memorialized in a written memorandum dated June 25, 2006. Subsequently, Ms. Sorey submitted a handwritten complaint, dated July 3, 2006, to Mastercorp's employee leasing company, Oasis. This was forwarded to Mastercorp because Ms. Sorey was an employee of Mastercorp. The aforementioned document was four and one-half pages long and complained about work issues relating to time and amount of work. The sole issue that could be interpreted as addressing race was this sentence: "Miguel Palacio went to Puerto Rico and when he came back he came to the laundry and gave me a black cup and on the cup was a body and a face like a devil like he is call me a black devil. This face had red horn on it and at the top of the cup have these letter 'Vejigantes.'" The July 3, 2006, memorandum was the only complaint that Mastercorp received from Ms. Sorey, and, as noted above, it was received indirectly. Nevertheless, Whitney Stoker, an employee in the human resources department in the Crossville, Tennessee headquarters was tasked to conduct an investigation into the matter. In effecting her investigation, Ms. Stoker interviewed Mr. Palacios. She attempted to contact Ms. Sorey by telephone on five occasions. She left messages imploring Ms. Sorey to provide her with details surrounding her complaint. Ms. Sorey had an ample opportunity to amplify the information contained in the complaint, but chose not to provide additional information. Ms. Stoker also conducted an Internet search into the matter of the "Vejigantes" mask that was featured on the mug, using the Yahoo search engine. She discovered that it was indeed a character signifying various aspects of Puerto Rican culture and related to festivals held in some Puerto Rican towns. She discovered that it had nothing to do with race or insulting someone. Mastercorp's contract with Landmark was by its terms set to expire in September 2006. In July or August 2006 it became clear that Mastercorp would not obtain another contract with Landmark and, therefore, there would be no more work there for Mastercorp's employees. However, a new opportunity for work arose in Mastercorp's contract at Club Destin, in Destin, Florida. Mr. Palacios took nine of the Panama City employees to the Destin job. There were not enough positions in Destin available for everyone who had been employed at the Landmark job. He did not consider race in deciding who would be offered employment in Destin. He was not concerned about the complaint Ms. Sorey had made. Ms. Sorey did not ask to be employed at Destin, and Mr. Palacios did not ask her to work there. Ms. Sorey did not complain at the time that she was not offered one of the positions in Destin. One of the employees employed at the Destin property was Donna Ponds, an African-American. She was trained at Landmark, but was hired in anticipation that she would work at Club Destin. She was hired as the EH at Club Destin. No evidence was adduced that indicated that anyone of another race was treated differently or more favorably than Ms. Sorey. Mr. Palacios did not need any help in the laundry at Club Destin because the property manager there was successfully using foreign exchange students. Ms. Sorey expressed no desire to move to the Destin facility at the time staffing decisions were being made. During the hearing she was asked, "Did you want to go to Destin." She answered, "Not really." Ms. Sorey's allegations of harassment, disparate treatment, and retaliation were precipitated by her anger at management due to having to work hard and not being allowed to incur overtime; the pressure she felt at not having enough time to complete her duties; and her opinion that she was not sufficiently recognized for her work in the laundry. No evidence whatsoever was adduced that adverse working conditions were precipitated by racial prejudice.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Petition for Relief from an Unlawful Employment Practice be DISMISSED. DONE AND ENTERED this 5th day of September, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Timothy Nathan Tack, Esquire Kunkel Miller & Hament 15438 North Florida Avenue, Suite 202 Tampa, Florida 33613 Judy Sorey 1025 North Everitt Avenue, Apt. A-3 Panama City, Florida 32401 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Parties. The Petitioner, Andrea Bateman, is a female. At all times relevant to this proceeding, Ms. Bateman was 41 or 42 years of age. Ms. Bateman is an attorney. Ms. Bateman failed to prove that she was a member of The Florida Bar during the period of time at issue in this proceeding. The Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. Ms. Bateman's Employment by the Department. In October of 1990, the Department employed Ms. Bateman as an attorney in the Department's Office of Child Support Enforcement. Ms. Bateman was required to be a member of The Florida Bar. Ms. Bateman's position with the Department was classified as a "Select Exempt Service" position. Pursuant to Chapter 22SE-1.002(5), Florida Administrative Code, and Part V, Chapter 110, Florida Statutes, persons employed in select exempt service positions may be terminated from employment without cause. Ms. Bateman's immediate supervisor was Chriss Walker. Mr. Walker is a Senior Attorney with the Department and, at the time Ms. Bateman was hired, also served as the Assistant Secretary for Child Support Enforcement. As of December 4, 1991, the Assistant Secretary for Child Support Enforcement, and Mr. Walker's immediate supervisor was Anne F. Donovan. At all times relevant to this proceeding, William H. Bentley was an Assistant Deputy Secretary of the Department with supervisory authority over the Department's Assistant Secretary's, including Mr. Walker and Ms. Donovan. "Productivity Enhancement" at the Department. During 1991, the Department was required to evaluate all employment positions at the Department and to reduce those positions in an effort to improve the productivity of the Department. Generally, all positions at the Department and the work performed by the persons filling those positions were considered and decisions were made as to which positions could be eliminated. The Department referred to the elimination of positions as "red-lining". The Department also made efforts to insure that any person affected by the elimination of their position would be placed in another position. Ms. Bateman's attorney position with Child Support Enforcement was identified for elimination. Another attorney position in Child Support Enforcement and Mr. Walker's Senior Attorney position were not identified for elimination. The decision to eliminate one of the attorney positions was based upon conclusion that the administrative duties of the two attorney positions could be handled by a paralegal position and the legal duties could then be handled by one attorney. Efforts to assist Ms. Bateman to find another position were not successful. Ultimately, the Department decided to find a position in which to continue to employ Ms. Bateman rather than to terminate her position and release her. The Department reclassified another vacant position so that Ms. Bateman could continue to be employed as an attorney for Child Support Enforcement. Mr. Walker was directed to create an attorney position for Ms. Bateman by the Assistant Secretary for Human Services. This decision was made during the early Fall of 1991. The Department's decision to continue to employ Ms. Bateman was based in part on the Department's concern about terminating an employee of the Department. The evidence failed to prove that the Department acted unreasonably with regard to the red-lining of Ms. Bateman's position. Ms. Bateman's Performance. During the year after Ms. Bateman began her employment with the Department, Mr. Walker, Ms. Bateman's supervisor, began to develop concerns about the adequacy of her work product. Ms. Bateman also began to evidence behavior which was not acceptable for an attorney of the Department. As a result of Ms. Bateman's odd behavior, Mr. Walker became concerned about Ms. Bateman's mental well-being. Mr. Walker memorialized his concerns about Ms. Bateman in a memorandum to Mr. Bentley dated December 2, 1991. The memorandum was revised December 19, 1991 to eliminate references to a counselor that Ms. Bateman had informed Mr. Walker she was seeing. Ms. Bateman's work deteriorated to an extent which necessitated other employees carrying out some of her duties. Among the difficulties experienced with Ms. Bateman which formed a reasonable basis for terminating her employment were the following: Ms. Bateman had difficulty communicating with other employees and her supervisor. As an attorney, Ms. Bateman was required to communicate orally and in writing. She was unable to do so in an adequate manner. Ms. Bateman failed to demonstrate good judgment and trustworthiness and, therefore, her supervisors were unable to rely upon her judgment as an attorney of the Department. Ms. Bateman's appearance was unacceptable for an employee of the Department who was required to meet and communicate with the public. Ms. Bateman's hair was unkempt and dirty, her clothes were often soiled and wrinkled, she failed to brush her teeth and she appeared not to be bathing based upon her appearance and her strong body odor. Although required to do so by Department policy, Ms. Bateman refused to give her supervisor a permanent home address or phone number. On one occasion Ms. Bateman was found asleep in the offices of the Department at night and on one occasion she was found asleep during working hours. Based upon the inadequacy of Ms. Bateman's performance, the Department had a reasonable basis for terminating Ms. Bateman's employment. Mr. Walker's Evaluation of Ms. Bateman. On December 18, 1991, Mr. Walker presented Ms. Bateman with a Professional Employee Performance Appraisal form he had completed on her performance. The Appraisal was reviewed by Ms. Bateman and signed by her on December 18, 1991. Mr. Walker gave Ms. Bateman's performance a rating of "effective" on the Appraisal. Of the factors evaluated on the Appraisal, Mr. Walker judged Ms. Bateman's performance as "excellent" on one factor, "effective" on eleven factors and "needs improvement" on nine factors. Mr. Walker gave Ms. Bateman's performance an "effective" rating despite his conclusion that her work product was not acceptable and despite his concerns about her inappropriate behavior. He did so because he had recently been directed to create a position to keep Ms. Bateman as an employee of the Department and in an effort to avoid litigation over Ms. Bateman's termination. Mr. Walker did not believe that his supervisors wanted to avoid any difficulties concerning Ms. Bateman employment. Mr. Walker failed to follow Department procedure in presenting the Appraisal to Ms. Bateman. The Appraisal was required to be reviewed and approved by Mr. Walker's immediate supervisor, Ms. Donovan, before it was given to Ms. Bateman. Mr. Walker, contrary to Department policy, presented the Appraisal to Ms. Bateman before Ms. Donovan had seen and approved it. Ms. Donovan was aware of the problems with Ms. Bateman's performance and would not have approved an "effective" rating. Upon receiving the Appraisal, Ms. Donovan discussed the Appraisal with Mr. Walker and rejected it, as it was her right to do. Ms. Donovan, consistent with Department policy, specified that Ms. Bateman would be evaluated again in sixty days. The Department's Request that Ms. Bateman Undergo a Psychological Evaluation. Although the Department had a reasonable basis for terminating Ms. Bateman's employment by the end of 1991 and in early 1992, the Department decided to attempt to discover the cause of Ms. Bateman's decline in performance and the onset of her odd behavior rather than terminate her employment. The Department made this decision in an effort to determine what assistance Ms. Bateman might need. Ultimately, the Department was attempting to determine what work, if any, Ms. Bateman was capable of performing. The Department's decision was based upon a number of incidents involving Ms. Bateman. Those incidents are included in Mr. Walker's Chronology of December 2, 1991 and his Revised Chronology of December 19, 1991 and are hereby incorporated herein. Although not all the incidents described in the chronologies were proved during the final hearing to have occurred, the Department's consideration of the incidents reported by Mr. Walker was reasonable. Due to the Department's concerns about Ms. Bateman, the Department requested that Ms. Bateman voluntarily participate in the Department's employee assistance program. Ms. Bateman refused. In order to determine what could be done to help Ms. Bateman, and to determine what duties and responsibilities she was capable of performing, the Department requested that Ms. Bateman undergo a psychological, or other, evaluation. Ms. Bateman refused. After discussing the matter with Ms. Bateman and legal counsel she had retained, the Department notified Ms. Bateman that her continued employment was conditioned upon her undergoing a psychological evaluation or some other evaluation which would allow the Department to determine what work she was capable of performing. In a letter of February 12, 1992, Ms. Bateman, through her representative, was informed of the following: As you also know, we are attempting to help Andrea address a problem which we believe exists and has been well documented over the past 16 months. In return, we need Andrea's help and cooperation. If Andrea chooses to agree to our request that she undergo a psychiatric evaluation and authorize the release to us of the psychiatrist's prognosis, diagnosis and recommendation for treatment, we will be glad to schedule an appointment for her with a psychiatrist, and will pay for such an evaluation. We will use the evaluation to determine an appropriate course of action. Ms. Bateman's Termination from Employment. Ms. Bateman continued to refuse to undergo any evaluation or to suggest any alternative course of action. Consequently, based upon Ms. Bateman's inadequate and unacceptable work performance, the Department terminated Ms. Bateman's employment with the Department on or about February 13, 1992. Ms. Bateman's termination from employment was effective February 28, 1992. Ms. Bateman was terminated from employment due to the fact that she was not adequately performing her job and she refused to cooperate with the Department to find out what could be done to help her become an effective employee. Ms. Bateman failed to prove that the Department's reason for terminating her employment was a pretext. Ms. Bateman's Charge of Discrimination. On or about September 15, 1992, Ms. Bateman filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Ms. Bateman alleged that she had been discriminated against on the basis of sex and a perceived handicap. On February 10, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Bateman filed a Request for Redetermination on March 4, 1992. On April 12, 1993, the Commission issued a "Redetermination: No Cause" affirming its decision. On May 12, 1993, Ms. Bateman filed a Petition for Relief seeking a formal administrative hearing. In the petition Ms. Bateman alleged that the Department had discriminated against her on the basis of sex, a perceived handicap and, for the first time, age. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Bateman. Alleged Sex Discrimination. Ms. Bateman failed to prove that any action of the Department was based upon Ms. Bateman's sex: she was not held to any standard or requirement based upon her sex, she was not terminated because of her sex and the Department's efforts to determine the cause of Ms. Bateman's problems was not based upon her sex. Ms. Bateman failed to prove that any Department policy or standard had a disparate impact on female employees. Ms. Bateman failed to prove that she was replaced by a male attorney. Ms. Bateman's grooming habits were discussed with her. Some of those discussions concerned the wearing of panty hose and her makeup. It must be inferred that such discussions were not carried on with male employees. The evidence, however, failed to prove that Ms. Bateman's termination was based upon these matters. Although grooming played a part in the decision to terminate Ms. Bateman's employment, it was grooming related to basic cleanliness and neat appearance required of all employees and not just female employees. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her sex, female. Alleged Age Discrimination. At the time that Ms. Bateman was hired she was 41 years of age, and at the time she was terminated she was 42 years of age. Ms. Bateman failed to prove that age played any part in her treatment by the Department. This finding is supported, in part, by the fact that the difference between Ms. Bateman's age when she was hired and when she was terminated was only one year. Ms. Bateman failed to prove that she was replaced by a younger person. Ms. Bateman failed to prove that the persons who made the decision to terminate her employment were aware of her age. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her age. Alleged Perceived Handicap. The Department did believe that Ms. Bateman was suffering from some mental problem. This belief was based upon Ms. Bateman's odd behavior and a concern that Ms. Bateman was "homeless". It was for this reason that the Department requested that Ms. Bateman undergo a psychological evaluation. Ms. Bateman failed to prove, however, that the Department treated her differently from the manner other employees of the Department were treated under similar circumstances. Ms. Bateman also failed to prove that the Department's request that she undergo a psychological or other evaluation to determine how to assist her to meet the requirements of her employment was made for a discriminatory reason. Under the circumstances, the Department's request of Ms. Bateman was reasonable. Ms. Bateman also failed to prove that she was terminated from employment because of any perceived handicap. The evidence proved that she was in fact terminated from employment due to her inability to satisfactorily carry out her job responsibilities. Ms. Bateman also failed to allege or prove that she has a handicap based upon her mental condition. Ms. Bateman also failed to prove that the Department discriminated against her on the basis of a handicap or a perceived handicap.
The Issue Did the Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant (Placida), unlawfully discriminate against Petitioner, Jon A. St. Laurent, in hiring because of his age?
Findings Of Fact Placida is a restaurant in Port Charlotte, Florida. In February 2015, it advertised on Craig’s List for a cook offering pay of $14.00 per hour and a $500.00 signing bonus. Placida operates seasonally. It closes May of each year. It re-hires when it re-opens in September. The evidence does not establish that employment with Placida continues season to season. Mr. St. Laurent responded to the advertisement. Mr. St. Laurent is qualified for the position. He is a former chef with years of experience. Mr. St. Laurent was 64 years old. He submitted an application. The then manager, Wendy Hummel, interviewed Mr. St. Laurent on February 24, 2015. Ms. Hummel asked questions that demonstrated she was weighing Mr. St. Laurent’s age against him. She asked him if at his age he was capable of standing on his feet for long hours. She also asked if at his age he was capable of working the kind of shifts that are required in a high-volume restaurant. Placida did not contact Mr. St. Laurent to advise him whether it had decided to hire him. He saw more advertisements for cooks by Placida on Craig’s List, also offering a $500.00 signing bonus. So Mr. St. Laurent emailed Ms. Hummel to remind her of his availability and qualifications and to inquire if Placida had decided whether to offer him a job. In emails, as early as March 7, 2015, Mr. St. Laurent reminded Ms. Hummel of his qualifications and of her comments about his age and its affect upon his ability to perform the job. After repeated emails from Mr. St. Laurent, Ms. Hummel replied saying that his skills did not meet the job requirements. Her email says the restaurant was looking for line cooks with experience in a large restaurant and his skills were more geared towards large event cooking. Ms. Hummel also testified, albeit unpersuasively, that Mr. St. Laurent’s experience was not well suited for Placida’s operation. She eventually, denied questioning Mr. St. Laurent’s ability to perform the job because of his age. But the majority of her testimony about the comments was along the lines of saying that she knows better than to make such comments. One example is: “That, that basically, I would be very hard pressed to believe I asked him anything about his age . . . .” (Tr. p. 32). This way of addressing the issue, Mr. St. Laurent’s testimony’s consistency with his early descriptions of the interview, and the undersigned’s observation of the witnesses results in a conclusion that Mr. St. Laurent’s testimony is more credible and persuasive. Placida did not hire Mr. St. Laurent solely because of his age. When Placida refused to hire Mr. St. Laurent and in the months following, Placida worked consistently and urgently to recruit and employ cooks, as shown by continuing advertisements and signing bonuses. Yet it refused to hire a qualified applicant, Mr. St. Laurent. The evidence proves that this was because of his age. If Placida had employed Mr. St. Laurent effective March 1, 2015, until closing for the season on May 1, 2015, he would have worked for eight weeks and three days. Paid $15.00 per hour for 40 hours a week, Mr. St. Laurent would have earned $4,816. In addition, Mr. St. Laurent would have been paid a $500.00 signing bonus. The total damages in lost wages or “back pay” to Mr. St. Laurent, caused by Placida’s discrimination against him because of his age, is $5,316.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order that: Holds that Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant, did not employ Petitioner, Jon A. St. Laurent, solely because of his age; Prohibits Respondent, Placida SAS, LLC d/b/a, The Fishery Restaurant, from discriminating on account of age in its hiring; and Awards Petitioner, Jon A. St. Laurent, back pay in the amount of $5,316.00. DONE AND ENTERED this 29th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2016.
