The Issue The issue in this case is whether Respondent, The Exchange Club Center for the Prevention of Child Abuse of the Treasure Coast, Inc. ("Respondent" or "Exchange Club"), is liable to Petitioner, Tiffany L. Rusinko ("Petitioner" or "Ms. Rusinko"), for employment discrimination and retaliation.
Findings Of Fact Respondent was a child abuse prevention agency that provided services to families in Martin, St. Lucie, Indian River, and Okeechobee Counties. Among other things, Respondent sought to prevent child abuse and neglect through education and parenting skills classes to parents of at-risk children. All of Respondent’s programs were funded by outside sources including grants and fundraising. Respondent ceased operations in September 2020. Petitioner was hired by Respondent on March 1, 2013, as a "Parent Educator" with Respondent’s Safe Families Program on a full-time basis. Petitioner understood that during her employment with Respondent, she was required to adhere to the Human Resources Personnel Policies & Procedures Manual ("Policies & Procedures"), as well as the Code of Ethics of the National Association of Social Workers ("Code of Ethics"). Upon hiring, Petitioner received copies of the Policies & Procedures and the Code of Ethics. Petitioner was required to sign and acknowledge receipt and review of both. On February 27, 2017, Petitioner was promoted to the position of "Program Supervisor" for the Safe Families Program. Her salary in that position was $40,000. This was also a full-time position and, as part of her responsibilities as a Program Supervisor, Petitioner supervised four parent educators. In June 2017, Petitioner agreed to take on the role of a Supervisor in Respondent’s PAT Program in addition to her role as a Program Supervisor for Respondent’s Safe Families Program. Petitioner remained a full-time employee of Respondent and her salary was increased to $44,000. Between July 27, 2017, and August 11, 2017, Petitioner was late or did not report to work as required due to various personal matters. On or about September 27, 2017, Respondent hired a "Program Manager" to manage Parent Educators in the Safe Families Program. The new Program Manager was paid a higher salary than Petitioner, which Petitioner believed was due to Respondent discriminating against her because of her race and gender. Thereafter, Petitioner sent a text message to Respondent’s Executive Director expressing her displeasure with her responsibilities and her rate of pay. Petitioner demanded a salary increase commensurate with what Petitioner believed she should be paid. Petitioner communicated with Andrea Medellin about her responsibilities and salary, which contravened Respondent’s Policies & Procedures. Andrea Medellin was the Executive Director of an agency that funded one of Respondent’s programs. On February 12, 2018, Petitioner submitted a grievance to Respondent claiming that she was the subject of discrimination based on race and gender. Specifically, she claimed that her salary and job responsibilities varied from those of a co-worker who was a Black male, but who had a similar title and experience. On February 13, 2018, Respondent issued a Corrective Action Notice to Petitioner, which resulted in Petitioner being placed on probation for ninety days. Based on her prior demand, Respondent gave Petitioner a cost-of- living increase that commenced in her February 16, 2018, paycheck and continued until her termination. In February and March 2018, Petitioner had several e-mail exchanges with her supervisor, Respondent’s Human Resources Director, and Respondent’s Executive Director, wherein she raised concerns about her salary and job responsibilities. On March 13, 2018, Petitioner submitted another grievance to Respondent reiterating her prior allegations of discrimination and claiming that she was the subject of a campaign of harassment and retaliation. Respondent subsequently became aware that Petitioner was making disparaging remarks about Respondent on social media, in violation of Respondent’s Policies & Procedures. Petitioner also allowed Respondent’s clients to be present in her home in violation of the Code of Ethics. Although several witnesses testified that Petitioner was a dedicated employee, Respondent ultimately determined that her termination was appropriate based on her violations of the Policies & Procedures and Code of Ethics. Respondent terminated Petitioner’s employment on March 26, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Gary Shendell, Esquire Shendell & Pollock, P.L. 2700 North Military Trail, Suite 150 Boca Raton, Florida 33431 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Tiffany Rusinko 615 Southeast Eighth Avenue Okeechobee, Florida 34974 Seth A. Kolton, Esquire Shendell & Pollock, P.L. 2700 North Military Trail, Suite 150 Boca Raton, Florida 33431
Findings Of Fact Born in Rio de Janeiro, petitioner Paul Sergio Inacio emigrated to the United States from Brazil in 1961, when he was still a teenager. He first worked for respondent for a brief time in 1976. On June 6, 1980, he returned to respondent's employ as a journeyman welder mechanic at Crist Electric Generating Plant, a position he still held at the time of hearing. A "mile square with seven generating units" (T.187), the plant is in Florida, as are respondent's headquarters. Several hundred people work for respondent at Crist Electric Generating Plant alone. In "late June, 1980" (T.235) somebody began calling Mr. Inacio "Julio," nicknaming him after a Hispanic character in a television series (Sanford & Son). The actor portraying Julio "used to drag a goat through the living room . . . and acted . . . stupid." T.236; T.64. Despite (or perhaps because of) petitioner's telling people he did not like being called "Julio," the sobriquet caught on. Even during his initial eight-month probationary period, he made his objections known. T.115, 180. He felt freer to press the point, once the probationary period ended, although at least one friend advised him to do so might be counterproductive T.235-6. Mr. Inacio never referred to himself as Julio. T.28, 99-100, 115, 146-7, 180, 194, 198. Once "he almost got in a fight with [a co-worker] because the guy called him my little Puerto Rican buddy Julio." T.28. Before he retired from his employment as a supervisor with respondent, on July 30, 1987, Murdock P. Walley repeatedly addressed, or referred to petitioner in his presence, as "Julio," "wop," "spic," and "greaser." Mr. Walley's last day at work was "in April or along about then." T.472. Behind petitioner's back, Mr. Carnley heard Mr. Walley refer to petitioner as "wetback," "wop" or "the greaser." T. 27. Co-workers have called him "spic," "wetback," and "greaser" to his face, (T.30) as well as behind his back. Mr. Peakman, another maintenance supervisor, testified that he was guilty of a single lapse: I didn't see him and I asked, "Where's Julio?" And then I caught myself, I said, "Excuse me, where's Mr. Inacio?" I corrected myself right then. T.455. In or about January of 1989, (T.271), Jimmy Lavon Sherouse, maintenance superintendent since May of 1987, referred to petitioner as "Julio" at least once, in the break room. Willard A. Douglas, a supervisor of maintenance at the plant since December of 1981, referred to petitioner as "Julio" frequently. Described as abrasive, Mr. Douglas, also known as "Bubba," has "single[d] Paul out." T.46. But it appeared at hearing at least as likely that Mr. Douglas singled petitioner out because of a run-in which had nothing to do with Mr. Inacio's background, as that he discriminated against him on account of national origin. Prior to June of 1989, continuously since 1981 (T.29), Howard Keels, Calvin Harris, Mike Taylor, Ronnie Yates, and Bill Sabata, Control Center supervisors, C. B. Hartley, supervisor over the coal docks, John Spence and David Hansford, both maintenance supervisors at the time, Mike Snuggs, Joe Patterson, Ed Lepley, Tommy Stanley and Dennis Cowan, supervisors of the laboratory department, Dennis Berg and Joe Kight, schedulers, Tom Talty, the assistant plant manager, Joe Lalas and Larry Swindell, both operations supervisors, all called petitioner "Julio" "[t]o his face in [the] presence" (T.27) of Ricky Carnley, a fellow welder mechanic who testified at hearing. T.21-26. Others also heard supervisors call petitioner "Julio." T.79-80, 110, 144-6, 178-9, 195-6, 237-9, 537-8. Not without reason, petitioner came to feel that "(a)nything associated with Hispanic heritage that could come up, I was called at some point or other by practically anybody." T.267. Angelo Grellia, a fellow mechanic who testified "I'm a wop, you know" (T.79) (emphasis added) remembered co-workers calling petitioner a "wop." A newspaper cartoon posted on a bulletin board in the employee break room (not the bulletin board reserved exclusively for management's use) depicted a man using a two-by-four. Petitioner "is known for using two-by-fours a lot to move stuff, pry stuff for leverage." T.34. The cartoon was labelled "Julio." Another time somebody posted a newspaper clipping, a report of a parricide, complete with picture; the killer's name had been lined through and Mr. Inacio's had been substituted. T.112, 158, 179. After two days, a fellow employee took it down (T.158), apparently without Mr. Inacio's ever seeing it. Still another time somebody posted "a National Geographic picture" (T.181) that resembled petitioner "and the caption said, can you guess who this is." T.181. Somebody had guessed and written in "Julio." T.243. According to uncontroverted testimony, white Anglo-Saxon men "were not selected to be the butt of these sorts of jokes." T.159. Over the plant's public address system, in Mr. Talty's presence, Charles Brown referred to petitioner as "Paul Inasshole," a play on his surname. T.25. No other employee was ridiculed in such a fashion, as far as the evidence showed, (T.49) but broadcasts in a similarly offensive vein ("An asshole" "A nasty hole") took place repeatedly over respondent's public address system. T. 24-25, 48-49, 71, 144-146, 163, 240. At all pertinent times, respondent had widely disseminated written equal opportunity and affirmative action policies with the stated "intent . . . to provide all employees with a wholesome work environment." Respondent's Exhibit No. 2. "Company policy prohibits intimidation or harassment of its employees by any employee or supervisor." Id. But, as Barbara Louise Mallory, an "Equal Employment Opportunity representative" (T.477) in respondent's employ, conceded, the "conduct that went on was against [Gulf Power's] policies and against the law." T.484. Respondent's Exhibit No. 2 stated that employees "subjected to conduct which violates this policy should report such incidences to their immediate supervisor, a higher level of supervision, or the Company's Equal Employment Opportunity Representative in the Corporate Office." Id. In the present case, both respondent's immediate supervisors and "a higher level of supervision," were well aware of the harassment to which petitioner was subjected, before he officially reported it. Supervisors were themselves guilty of harassment. On February 8, 1988, Mr. Sherouse, the maintenance superintendent, addressed "a routine shift meeting with employees [and] discussed with them the need to refrain from destruction of employees' or company property." Respondent's Exhibit No. 8. Mr. Sherouse "essentially said . . . some employees . . . were being singled out . . . . " T.295. He told employees at the meeting that "such an incident . . . could result in an action up to termination." Id. At the same meeting he "also discussed cartoons and calendars that could be considered . . . racial or sexual harassment . . . [directing that] they must be removed now." Respondent's Exhibit No. 8. These matters were also discussed at an employee information meeting in January of 1989. Petitioner's Exhibit No. 1. But harassment of petitioner continued. "[Q]uite frequently . . . thick heavy grease would get smeared on his toolbox, underneath the drawers of his toolbox." T.34. The lock on his locker was glued or "zip-gripped" shut several times, and had to be cut to open the locker. Respondent's Exhibit No. He is the only employee (T.39) who had to change clothes because some sort of itching powder was put in his clothes. Somebody put "Persian Blue," a particularly persistent dye, in his glove. At respondent's counsel's behest a list was prepared of "employees who have experienced problems with someone tampering with their tools or person[a]l lockers," Respondent's Exhibit No. 10, during the two years next preceding the list's preparation on August 4, 1989. Of the nine employees listed, seven were white Caucasians whose tools or books had been lost or stolen. 1/ Unlike the native-born men on the list, petitioner and Debbie Mitchell, the only other person listed, were subjected to repeated instances of vandalism and other harassment, including unflattering references in cartoons posted on the bulletin board in the break room. Although petitioner did not request it, management assigned him a new locker, something they did for no other employee. According to a co-worker, petitioner, who once taught welding at Pensacola Junior College, "likes to do a good, clean, responsible job" (T.185) of welding. But, on October 22 and 23, 1988, when petitioner and Millard Hilburn worked on "the #7 bottom ash discharge piping," Respondent's Exhibit No. 21, at Willard Douglas' behest, they failed to stop seepage from the pressurized pipe (which was in use while they worked) by welding, and resorted to epoxy which, in Mr. Douglas' "opinion[,] . . . [was] bad judgement and very poor workmanship." Id. Of 30 or 40 welders respondent employed at Crist, only one or two "still have a clean record. Eventually somebody is going to get a leak." T.202. Petitioner's work record is basically a very good one, although not perfect. Nevertheless Mr. Sherouse, after putting petitioner's name on a list of three "employees who for different reasons are not performing their jobs," Respondent's Exhibit No. 7, summoned petitioner to a conference about his job performance, on January 20, 1989. The other two employees were Scott Allen, whose problem was "attitude . . . distrust, dislike . . . just unbelievable" (T.443; 420) and Ed Lathan who "hadn't been there since June of '87" (T.420) except sporadically "working light duty." T.420. Mr. Sherouse also prepared various memoranda concerning petitioner; and caused other managers to prepare still other memoranda. Only after the January conference was petitioner involved in the repair of a boiler tube that failed. (He welded one end of a replacement piece that may have been improperly sized and had already been welded in place by others.) In contrast to petitioner's involvement in two incidents (only one of which occurred before the filing of the complaint), at least one other welder mechanic working for respondent had made five welds that failed in short order. On April 11, 1989, petitioner was assigned the job of cleaning plugged nozzles on intake screens for units four and five (although ordinarily operators themselves did such routine maintenance.) He first went to the control room for units four and five and asked directions to the intake screens, which are part of the cooling system. Misunderstanding directions, he went to the wrong cooling system intakes, those for units six and seven, instead of those for four and five, and started work without finding a red tag (used to indicate that somebody from operations had "isolated" the equipment) and without placing his own tag on an electrical switch that equipment operators use. He did, however, place tags on valves that had to be opened in order for the system to operate. When Mr. Sherouse heard what had happened he sent Mr. Inacio home from work. Although Mr. Sherouse did not at that time "announce termination or non- termination, pay or no pay" (T.436), petitioner was eventually paid for the time off, which lasted two days during the purported pendency of an investigation, which consisted of "going back and looking at his files." T.437. Without credible contradiction, several people testified that mistaking one piece of equipment for another occurred not infrequently (T.85) at the Crist plant. The evidence showed that much more serious safety lapses had, in general, elicited much milder responses from management. Petitioner was criticized more harshly than non-minority employees for the same or comparable performance. T.31-33, 73-74, 112-120, 130-131, 148-9, 150-4, 186-7, 197, 257- 263. Petitioner's safety record was "better than most." T.424. An Indian who works at the Crist steam plant, Ron Taylor is known as "Indian" or "Chief." T.52. Supervisors referred to Nicholas Peterson as "a damned Greek" (T.111) when he worked at respondent's Crist plant. "From January 1982 until March 1990," just about every supervisor at Crist "refer[red] to some . . . blacks as being niggers." T.135. Objection was sustained to admission of colored Beetle Bailey comic strips crudely altered to depict cartoon characters engaged in oral sex. But Ms. Mitchell testified without objection to other "extremely vulgar cartoons" (T.157) she saw posted on the bulletin boards including one with her name on it. T.159. (When she complained to Mr. Sherouse, he eventually reported back to her that the reference was to a different Debbie.) At Crist Electric "they use the good ole boy theory . . . [i]f you fit into their select group, you're taken in, you're trained . . . you get better selection of jobs. If you're not, you're an outcast." T.136. Petitioner "definitely" got more than his share of "dirty jobs," specifically precipitator work and condenser work. T.183; 85-86, 147-8. Petitioner's "pride was hurt." T.265. He felt humiliated. Unfair criticism affected his morale. T.36. At least one co-worker "could sense . . . that he felt like he was not wanted there." T.37. He considered leaving his employment and even told at least one Gulf Power official that he was doing so. See Respondent's Exhibit No. 3. Discriminatory treatment affected his ability to concentrate, and so his job performance. T.36, 37.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR order respondent to refrain from harassing or otherwise discriminating against petitioner on account of his national origin. That the FCHR award petitioner reasonable attorney's fees and costs. DONE and ENTERED this 14th day of May, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991.
Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
Findings Of Fact Respondent is a cooperative association of 54 farm members that is engaged in the State of Florida in the business of harvesting sugar cane and the milling of raw sugar for its members. Respondent is divided for organizational purposes into a mill division and an agricultural division. Petitioner's employment with Respondent was exclusively with its agricultural division. The agricultural division is divided into a harvesting department, a transportation department, and an equipment maintenance and repair department. The equipment maintenance and repair department has a service center, three field operations, a truck and trailer maintenance repair shop, and a machinery maintenance repair shop. There are approximately 300 vehicles owned by Respondent, including large tractor trailers used for hauling sugar cane. Petitioner was initially hired on September 29, 1975, in the transportation department as a tractor-trailer operator. In November 1976, Petitioner was promoted to assistant truck foreman where his primary duty was dispatching trucks to haul harvested sugar cane from the field to the mill. This is a responsible position that involves calculation of the tonnage requirements of the mill which must be coordinated with the availability of product and drivers. In the early 1980's Petitioner began having problems with his immediate supervisor, LaVaughn Milligan. These problems continued to escalate since the supervisor believed that Petitioner was trying to undermine his authority and was making promises to the drivers that he could not keep. By 1985, Mr. Milligan was dissatisfied with Petitioner's job performance and was prepared to recommend the termination of his employment. At all times pertinent to these proceedings, Edward Mayo was the head of Respondent's maintenance and repair department. In 1985, a vacancy occurred in the position as truck and trailer maintenance and repair shop supervisor. There is a conflict in the evidence in that Petitioner testified that Mr. Milligan and Mr. Mayo asked him to accept the transfer, but Mr. Mayo testified that Petitioner requested the transfer. The testimony of Mr. Mayo is accepted as being more credible and it is found that Petitioner asked Mr. Mayo for a transfer to this vacant position. Mr. Mayo was aware of the problems that Petitioner was having with Mr. Milligan, but he decided to transfer Petitioner to this position despite these difficulties. Mr. Mayo recognized that Petitioner's difficulties with Mr. Milligan may have been the result of a personality conflict between the two men and he wanted to give Petitioner the opportunity to prove himself. The position Petitioner assumed in 1985 was the position he held when his employment was terminated. The truck and trailer repair and maintenance shop is responsible for the maintenance and repair of all of Respondent's vehicles and employs approximately 22 mechanics. Respondent was aware that Petitioner had no training or experience as a mechanic, and he was specifically instructed to make no mechanical decisions. Petitioner's responsibilities included the requisitions of parts, supplies, and equipment for his shop and the supervision of mechanic's work schedules. He was to act in a personnel management and administrative capacity. Petitioner satisfactorily performed his duties during his first year in the position. In late 1986, his job performance began to deteriorate and several complaints from different sources were made to Mr. Mayo about Petitioner's poor performance. Mr. Mayo became concerned about Petitioner's job performance and frequently discussed his concerns with Petitioner. Prior to October 1987, Respondent was unaware that Petitioner had a medical problem. Petitioner had been hospitalized in June 1987 while he was on vacation, but Respondent did not learn of that hospitalization until after October 1987. In October 1987, Petitioner was hospitalized for depression and for detoxification from his addiction to antidepressant drugs. Unknown to Respondent, Petitioner had been, for several years, suffering from anxiety, depression, and paranoia. Petitioner had experienced hallucinations and had been treated by several different physicians. He had been taking drugs for his conditions for some eight years, including Ativan, an antidepressant in the benezodiazpine family of drugs, to which he became addicted. Petitioner returned to work following his hospitalization in October 1987. He told Mr. Mayo that his hospitalization was related to the prolonged use of medication. Following return from his hospitalization in October 1987, Petitioner's job performance deteriorated to the point that he was unable to function at work and he could not perform his job. Petitioner had difficulty concentrating, demonstrated a short term memory deficit, and lacked energy. Petitioner began making mechanical decisions that he was not qualified to make and which posed a safety hazard. On December 10, 1987, Petitioner met with Dale Stacy, Respondent's Vice President of Agricultural Operations, Ray Campbell, Respondent's Personnel Manager, and Mr. Mayo. Petitioner was advised as to the deficiencies with his job performance. Respondent was willing to assist Petitioner and placed him on sick leave with pay until his doctors certified that it was medically sound for him to return to work. Medical assurances were requested out of a legitimate concern for the safety of Petitioner, Respondent's employees, and the general public. On December 22, 1987, Dr. Adele MacKay, Petitioner's psychologist, informed Respondent's assistant personnel manager that Petitioner was very anxious about being out of work and that she thought it would be best for Petitioner if he were allowed to return to work. Respondent was advised by Dr. Mackay that Petitioner may need support. On December 24, 1987, Petitioner was permitted to return to work. Mr. Mayo, Mr. Campbell, and Mr. Stacy continued to be concerned about Petitioner's ability to safely perform his job, but they also wanted to accommodate Petitioner because he was a long term employee. To achieve these ends, Arnie Raaum, Mr. Mayo's assistant and one of Petitioner's supervisors, was assigned the primary responsibility of monitoring Petitioner's performance to ensure that safety was not compromised and of providing assistance to Petitioner if necessary. In Mr. Raaum's absence, Louis Boglioli, another supervisor in the maintenance and repair department, was to perform these duties. In the absences of both Mr. Raaum and Mr. Boglioli, Mr. Mayo was to perform these duties. Between the time Mr. Raaum, Mr. Boglioli, and Mr. Mayo were assigned these duties and the termination of Petitioner's employment, Mr. Raaum spent considerable time in both monitoring Petitioner's performance and in correcting errors made by Petitioner. This assignment detracted from the ability of Mr. Raaum to perform his regular duties. Petitioner's condition and his ability to safely perform his job continued to deteriorate between December 1987 and December 1988. Despite Mr. Raaum's close supervision, many safety related incidents occurred which were the result of Petitioner's job performance. These incidents were documented in Petitioner's employment file, but there was no injury to any person or significant damage to property. By late 1988, Petitioner's condition had deteriorated to the point where he was unable to perform his job. He was unable to comprehend, remember, or follow instructions. In December 1988, Mr. Mayo, who had been following Petitioner's job performance, determined with Mr. Campbell and Mr. Stacy that Petitioner could not perform his job. Mr. Mayo had lost confidence in Petitioner's ability as a supervisor and felt that safety was being compromised by Petitioner's continued employment. Other job possibilities with Respondent were considered, but each possibility was rejected for legitimate business reasons. Petitioner believed that he had had a "nervous breakdown" and that he was capable of working in a position with less stress than his position as supervisor of the maintenance and repair shop. Because of this belief, Petitioner requested that he be transferred to his former position as an assistant truck foreman. This request was refused because of his previous difficulties in performing that job, because he was not capable of performing supervisory work, and because the position was not vacant. There were no supervisory level positions vacant that Petitioner was capable of filling. Petitioner's employment with Respondent was terminated on December 28, 1988, and he was given two months severance pay. Petitioner's termination was not a disciplinary matter for willful misconduct. Rather, Petitioner's employment with Respondent was terminated because Petitioner was not capable of performing his job duties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charge of discrimination against Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of October, 1990. CLAUDE B. ARRINGTON 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 October, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-3, 5, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 6 are rejected as being contrary to the greater weight of the evidence and to the findings made. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraphs 8-16 are rejected as being legal conclusions. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-10, 13, 15-16, 18-20, and 25 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6, 11-12. 17, and 21-24 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 26 are rejected as being recitation of testimony. The proposed findings of fact in paragraphs 27 and 28 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Isidro M. Garcia, Esquire Law Office of Joseph A. Vassallo, P.A. 3501 South Congress Avenue Lake Worth, Florida 33461 Margaret L. Cooper, Esquire Ruth P. Clements, Esquire Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive, Suite 1100 Post Office Drawer E West Palm Beach, Florida 33402 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird Acting Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 NOTICE Of RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
The Issue Whether Respondent, David Costa Enterprises, Inc., d/b/a McDonald’s (“Costa Enterprises”), discriminated against Petitioner, Labrentae B. Claybrone, in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact Mr. Claybrone is an African-American male, approximately 25 years of age. He resides in Fort Walton Beach, Florida, with his mother. At all times relevant to this proceeding, Mr. Claybrone was working at one or another of the 21 McDonald’s restaurants operated by Costa Enterprises. Mr. Claybrone presents as a somewhat effeminate person, with braided, colored hair, earrings, polished fingernails, etc. He admits to being either gay or bisexual despite being married to-–but not living with-–a woman. In his Petition for Relief filed at FCHR, Mr. Claybrone refers to humiliation being imposed on him due to his “transgender and sexual orientation.” In March 2015, Mr. Claybrone was hired as a shift worker at the McDonald’s restaurant located inside the WalMart in Destin, Florida (hereinafter the “WalMart McDonald’s”). He had been hired by the general manager of that store, Ligaya Mumford. Mr. Claybrone did not at any time discuss his sexual orientation with his employer or other store personnel. On or around April 28, 2015, Mr. Claybrone thought he heard the general manager, Mrs. Mumford, refer to him as “ma’am.” He said that Mrs. Mumford also made comments about the way he walked and talked and that he reminded her of a female. Mrs. Mumford, whose testimony under oath at final hearing was entirely credible, denies making any such comments to Mr. Claybrone. Rather, Mrs. Mumford remembers talking to a young female employee on that day as they stood at the grill in the restaurant. The young lady was very respectful and always called Mrs. Mumford “ma’am,” so Mrs. Mumford had responded to the employee in kind, calling her “ma’am” as well. Mrs. Mumford believes Mr. Claybrone mistakenly believed she was referring to him when in fact she was not. As to the other comments Mr. Claybrone testified about, Mrs. Mumford categorically denied making them at all. When Mr. Claybrone went home that night and told his mother what he thought had happened, his mother insisted he complain about the comments. Mr. Claybrone says that his mother immediately called Roza Atanasova, general manager of the WalMart McDonald’s and another store known as the Destin McDonald’s. By virtue of her position as general manager, Ms. Atanasova was Mrs. Mumford’s supervisor. Ellie Montero, shift manager at the Destin McDonald’s, later notified Mrs. Mumford that Mr. Claybrone’s mother had called Ms. Atanasova with a complaint. Mrs. Mumford attempted to call Mr. Claybrone and sent him texts asking Mr. Claybrone to call her. He intentionally ignored the calls and texts because he did not want to talk to Mrs. Mumford. When Mr. Claybrone came to work for his next assigned shift, Mrs. Mumford apologized to him for the comment he (thought he) had heard. According to Mrs. Mumford, Mr. Claybrone was a good employee and never gave anyone trouble. He was kind to the customers and worked hard. She had absolutely no problem with Mr. Claybrone being one of her shift workers. Mrs. Mumford is one of Costa Enterprises’ most dependable, respected, and admired workers. She has received numerous citations and awards relating to her work ethics and skills. She is known to help employees in need, lending them her car, loaning money, and providing other assistance. Within a week after the misunderstanding with Mrs. Mumford, Mr. Claybrone heard that another co-employee, Ken Hislop, had mentioned to a fellow worker that he (Hislop) was surprised to hear that Mr. Claybrone had a child because Mr. Hislop presumed Mr. Claybrone was gay. Mr. Hislop cannot fully remember making the comment, but he meant nothing negative about Mr. Claybrone, it was just an observation. When he was advised that Mr. Claybrone was offended, Mr. Hislop offered an apology. He did not feel like the apology was accepted by Mr. Claybrone. Mr. Claybrone did not feel like the apology was sincere. Mr. Claybrone said that he was uncomfortable working with Mrs. Mumford and Mr. Hislop after the alleged slurs. At some point, it was mutually agreed by Mr. Claybrone and Costa Enterprises that Mr. Claybrone would be transferred to a different store, the Destin McDonald’s. Mr. Claybrone was transferred to the Destin McDonald’s and was, at first, a dependable worker. Then he began to be tardy and to miss his shifts, even though the Destin McDonald’s was closer to his home than the WalMart McDonald’s had been. After a while, Mr. Claybrone’s supervisor reduced his weekly hours in an effort to motivate him to do better about his attendance. Mr. Claybrone took offense to the reduction in hours and, after clocking in one day, immediately clocked out, left the store as he cursed loudly, and did not return. Mr. Claybrone effectively abandoned his position. Meanwhile, Mr. Claybrone filed a complaint with the Florida Commission on Human Relations, which ultimately led to the instant action at DOAH. Mr. Claybrone admitted that the alleged discriminatory events all transpired within a few days, no longer than a week in duration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Costa Enterprises, Inc., d/b/a McDonald’s, did not discriminate against Labrentae B. Claybrone. DONE AND ENTERED this 21st day of October, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2016.
