The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact This case came before the Division of Administrative Hearings based upon the filing of a complaint alleging employment discrimination filed with the Florida Commission on Human Relations (The Commission). The Commission transmitted the complaint on March 27, 2008, for the assignment of an administrative law judge. The case was originally assigned to Administrative Law Judge Diane Cleavinger, and the matter was set for hearing to be held June 3, 2008. On May 21, 2008, Respondent filed a Motion to Continue based upon the unavailability of a key witness. The motion alleged that Petitioner had been contacted, but "prefers to state whether he has any objection to this motion in writing." On May 28, 2008, Judge Cleavinger granted the Motion to Continue and rescheduled the hearing for July 24, 2008. On June 3, 2008, Petitioner wrote a letter requesting to be heard on the request for continuance. Because his correspondence did not indicate that counsel for Respondent had been served, a Notice of Ex Parte Communication was filed. On June 12, 2008, a pre- hearing conference was conducted by telephone, and on July 14, 2008, Petitioner filed a Request for Recusal, which was granted July 16, 2008. The case was reassigned to the undersigned and on July 24, 2008, the case proceeded to hearing as previously scheduled. At the outset of the hearing, counsel for the Department made an appearance. However, Petitioner was not present in the hearing room. At the request of the administrative law judge, a representative for the Department checked the Division lobby to see whether Petitioner was present. A recess was taken to afford Petitioner an opportunity to appear. During the recess, the clerk's office was consulted to confirm that staff had received no contact from Petitioner indicating he was on his way to the hearing. After a twenty-five minute recess, the hearing was reconvened. Petitioner did not appear.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of unlawful discrimination. DONE AND ENTERED this 30th day of July, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2008. COPIES FURNISHED: J. Yvette Pressley, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Elleton R. Collins, Jr. 4768 Woodville Highway, No. 412 Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact On or about September 25, 2010, Petitioner filed a Charge of Discrimination against Respondent with the FCHR. Pursuant to the FCHR's procedure, an investigation of the matter was completed, that resulted in a Notice of Determination: No Cause. Essentially, the FCHR found that based upon the allegations raised by Petitioner there was no reasonable cause to believe an unlawful employment practice occurred. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination, and to seek relief against Respondent for the alleged violation. The FCHR forwarded the matter to DOAH for formal proceedings. DOAH issued a Notice of Hearing on April 15, 2011, that was provided to all parties at their addresses of record. It is presumed, the parties received notice of the hearing date, time, and location. In fact, counsel for both parties did appear. Prior to the hearing, the parties engaged in discovery and Petitioner participated in a deposition on or about May 24, 2011. It is undisputed that Petitioner knew or should have known of the hearing date, time, and place.
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 claim of discrimination. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 30th day of June, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. John Gadd, Esquire The Law Offices of W. John Gadd 2727 Ulmerton Road, Suite 250 Clearwater, Florida 33762 Glenn Michael Rissman, Esquire Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterman, PA 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in these consolidated cases was issued on November 17, 2010, setting the hearing for January 24 and 25, 2011, in Tallahassee, Florida. The hearing was scheduled to commence at 9:30 a.m. on January 24, 2011. Also on November 17, 2010, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On January 19, 2011, Petitioner filed a letter at the Division of Administrative Hearings requesting that the hearing be delayed until after February 18, 2011, due to various appointments she had made that conflicted with the hearing dates. This letter indicated that Petitioner was aware of the scheduled hearing dates. By order dated January 20, 2011, the undersigned declined Petitioner's request for failure to state grounds sufficient to warrant a continuance over the objection of Respondent. Several attempts to reach Petitioner by telephone were unavailing. At 9:30 a.m. on January 24, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:45 a.m. Counsel for Respondent entered her appearance and requested the entry of a recommended order of dismissal. The hearing was then adjourned. As of the date of this recommended order, Petitioner has not contacted the Division of Administrative Hearings, in writing or by telephone, to explain her failure to appear at the hearing.
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 the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 26th day of January, 2011, 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 26th day of January, 2011. COPIES FURNISHED: Kimberly D. Dotson 825 Briandav Street Tallahassee, Florida 32305 Kim M. Fluharty-Denson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mary Kowalski Department of Financial Services Human Resource 200 East Gaines Street, Suite 112 Tallahassee, Florida 32399 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Brent Cutlip is a principal of Two Men and a Truck.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Kenneth K. Scott be dismissed. DONE AND ENTERED this 14th day of November, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kenneth K. Scott 8342 Gardenia Circle, No. 4 Pensacola, Florida 32534 Brent Cutlip Two Men and a Truck 7280 Plantation Road, No. 1 Pensacola, Florida 32504 Brent Cutlip Two Men and a Truck 379 West Michigan Street, Suite 200 Orlando, Florida 32806 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner.
Findings Of Fact Petitioner is an African-American female who was employed by Respondent from October 16, 2000, until her termination on January 4, 2011. When she began her employment with Respondent, she was hired as a Food Service Specialist. Respondent, MRMC-Munroe Regional Health Systems, Inc. (Munroe or Respondent), is an employer within the meaning of the Florida Civil Rights Act. Munroe is a not-for-profit hospital located in Ocala, Florida, and comprises numerous departments, including the Nutritional Services Department. Petitioner worked for this department the entirety of her employment with Respondent. On or about October 23, 2000, Petitioner received a copy of Munroe's Employee handbook. The Employee Handbook includes an Equal Opportunity policy, an anti-harassment policy, a complaint procedure, and an open door policy. Petitioner was aware from the beginning of her employment that Respondent had written policies prohibiting unlawful discrimination and that there were procedures in place to report work-related problems, in particular unlawful discrimination. Petitioner acknowledged in October 2000, that she received copies of these policies. She also signed an acknowledgment that she was an "at-will" employee, meaning that either the employee or Munroe has the right to terminate the employment relationship at any time with or without notice or reason. As early as 2000, Petitioner was aware that one way to report unlawful discrimination was to contact the Human Resources Department. In early 2004, Petitioner sought a promotion to the position of Team Leader. Melinda Monteith was one of Petitioner's immediate supervisors at that time. Ms. Monteith recommended Petitioner for the promotion to Team Leader. Petitioner was promoted to the position of Team Leader in February 2004, and received a pay raise commensurate with that position. Ms. Monteith continued to be Petitioner's immediate supervisor until January 4, 2011, when Petitioner was discharged. Petitioner received pay increases every year from 2004 through 2010. Petitioner's former husband, Michael Pearson, believes that Petitioner's supervisor is racist because he claims she once called him a "thug" and saw her look at another black male "like she don't like black folks."1/ Mr. Pearson has never worked for Respondent and bases his personal belief that Petitioner's supervisor is racist on interactions he had with Petitioner's supervisor(s) at holiday parties. On February 6, 2009, Petitioner was disciplined in the form of a written Counseling Agreement for conduct which Respondent considered "workplace bullying." Petitioner, along with other team leaders, was asked to learn to use a computer system referred to as the C-Board System, in order to fill in when necessary for employees whose assigned duties were to use that system to correctly prepare patient meals. Petitioner was never able to operate the C-Board system. She was never disciplined by Respondent for her inability to use the C-Board system. During the time that Petitioner held the position of Team Leader, some employees complained to Ms. Monteith about the way Petitioner interacted with them. On December 20, 2010, Stephanie Smith, another Team Leader, told Ms. Monteith that Petitioner was not speaking to people and being very "sharp" with them. The next morning, Ms. Monteith asked to speak with Petitioner about what Ms. Smith had told her about Petitioner's behavior the previous day. When Petitioner responded curtly, "Is it business?," Ms. Monteith decided to speak with her later. Later that morning, Ms. Monteith was approached by Pam Knight, one of Petitioner's subordinates, who was in tears regarding Petitioner's behavior and the resulting tense atmosphere. Ms. Knight was particularly concerned with the way Petitioner was treating Ms. Smith. Ms. Monteith and Clinical Nutrition Manager Betsy DeMatto met with Ms. Knight and confirmed what Ms. Knight had told Ms. Monteith earlier regarding Petitioner's behavior: that Petitioner was not speaking to Ms. Knight or Ms. Smith at all, and that she was not responding to work-related questions. Ms. Monteith and Ms. DeMatto decided that Petitioner should be counseled in writing for her unprofessional behavior toward coworkers. On December 21, 2010, Petitioner was disciplined, again in the form of a written Counseling Agreement, for "behaving in an unprofessional manner [which] creates an environment of tension and discomfort." When presented with the counseling agreement, Petitioner became very angry, remarked that everything she was accused of were lies, and refused to sign the counseling agreement. Later that day, Ms. Monteith was approached by Ms. Smith who was "very pale" and who advised that Petitioner spoke with her (Ms. Smith) following the counseling meeting, and appeared to be angry. Ms. Smith informed Ms. Monteith that Petitioner stated that she was "going postal" and that if she was "going out" she was taking Ms. Monteith with her. Ms. Monteith believed what Ms. Smith told her, and relayed it to Ms. DeMatto. Ms. Monteith and Ms. DeMatto decided to report this to Human Resources (HR) Manager Vicky Nelson. Ms. Nelson has been employed by Respondent for 33 years, five of which as HR Manager. In her capacity as HR Manager, Ms. Nelson has conducted approximately 300 investigations into workplace issues, including allegations of unlawful discrimination, harassment, threatening behavior, workplace violence, and bullying. These investigations included reviewing applicable policies and procedures, referring to any prior events of a similar nature, interviewing the complaining employee and the individual against whom the complaint has been made, and reviewing the personnel files of the individual making the complaint and the individual who is accused of inappropriate behavior. In some cases, a decision is made to remove the accused from the workplace during the pendency of the investigation. Ms. Nelson interviewed Ms. Monteith and Ms. DeMatto in her office. She observed that Ms. Monteith appeared to be "visibly shaken." On the afternoon of December 21, 2010, Petitioner was called into the office of Ms. Nelson to discuss the allegations that Petitioner made this threatening comment regarding Ms. Monteith. During the December 21, 2012, meeting, Petitioner initially denied making the statement about going postal and taking Ms. Monteith with her. She later admitted that she used the word "postal," but was just joking and was not serious. At hearing, Petitioner acknowledged that she used the word "postal," but in the context that they had her in the office "trying to make me postal" and reiterated that she was just kidding in using that word. Petitioner believes that she was being accused of acting "crazy." While there is some dispute as to the context of Petitioner's use of the word "postal," it is not disputed that she did use the word "postal" in the workplace, and that employees of Respondent were extremely concerned because of it. At the conclusion of the December 21, 2010, meeting, Ms. Nelson told Petitioner not to return to work until after she (Ms. Nelson) had finished the investigation if this matter. Ms. Nelson also asked Petitioner to submit a written statement setting forth her position as to the events of December 21, 2010. Petitioner did not submit a written statement at that time, but said she would do so later. On December 22, 2010, Ms. Nelson interviewed Ms. Smith and Ms. Knight, each of whom confirmed what Ms. Monteith previously told Ms. Nelson. Based on the information available to her, Ms. Nelson determined that Petitioner's employment should be terminated. Whether or not Petitioner was just joking when she used the word "postal," it was taken seriously by her employer. Ms. Nelson based the termination decision on Petitioner's use of the word "postal" and considered it inflammatory in nature. She based her decision in part on the comment itself; the credibility of Ms. Smith, Ms. Knight, Ms. DeMatto, and Ms. Monteith; her personal observations of Petitioner's behavior and demeanor in the December 21, 2010, meeting; and the context in which the comment was made, i.e., the information she received regarding Petitioner's interaction with co-workers on December 20 and 21, and her angry reaction to being presented with the counseling agreement on December 20. Ms. Nelson contacted Petitioner on January 3, 2011, and asked to meet with her the following day. On January 4, 2011, Ms. Nelson informed Petitioner of the results of her investigation and of the decision to terminate her employment, effective that day. At the January 4, 2011, meeting, Ms. Nelson again asked Petitioner for a written statement. Petitioner did not give one to her. On January 13, 2012, Petitioner filed a written request, pursuant to Respondent's Conflict Management Program, for peer review of the circumstances surrounding her termination from Munroe. The Panel Review Request Form lists several factors for the employee making the request to "check off" as to the nature of the dispute. Petitioner checked the boxes for "race" and for "retaliation, but did not check the box for "disability." At no time during the December 21 meeting with Ms. Nelson or the time between that meeting and the January 4, 2011, meeting, did Petitioner advise Ms. Nelson that she believed that she was being discriminated against on the basis of race, color, or disability. On February 23, 2011, the Peer Review Panel recommended that Petitioner's termination be upheld and that she not be eligible for rehire.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 11th day of December, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2012.
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing and apparent intent to withdraw her request for an administrative hearing.
Findings Of Fact The Notice of Hearing in this case was issued on May 22, 2012, setting the hearing for July 17, 2012, at 9:30 a.m., by video teleconference at sites in Tallahassee and Fort Myers, Florida. Also, on May 22, 2012, an Order of Pre-hearing Instructions was entered. Respondent timely complied with the pre-hearing requirements by filing a witness list and exhibit list and tendering its proposed exhibits, all of which were served on Petitioner. Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits. Petitioner spoke by telephone with a secretary at DOAH on July 16, 2012, the day before the scheduled hearing, and indicated that she had sent a letter withdrawing her hearing request; however, to this day, no such letter has been received. Petitioner was advised to send another written statement confirming that she was withdrawing her hearing request, and she indicated she would do so by facsimile that day. However, no such facsimile was received by DOAH. After hours on July 16, 2012, a typed, but unsigned letter, was sent by facsimile to counsel for Respondent. The letter appears to have been sent by Petitioner and states that she wished to cancel the hearing scheduled for July 17, 2012. Petitioner did not make an appearance at the scheduled hearing at the start time or within 25 minutes after the scheduled start time. While it would have been better practice for Petitioner to file a written, signed statement with DOAH to withdraw her hearing request, it is found that Petitioner intended to withdraw her hearing request, and that is why Petitioner did not appear at the scheduled hearing. Petitioner should have made her intentions clear sufficiently in advance of the scheduled hearing to avoid the inconvenience and expense of convening a hearing by video teleconference and assembling all of those who were prepared to go forward.
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 the Petition for Relief in this case. DONE AND ENTERED this 3rd day of August, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Todd Evan Studley, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 Natalie Goldenberg Post Office Box 7388 Fort Myers, Florida 33911
The Issue The issue is whether Petitioner's Petition for Relief should be dismissed as untimely pursuant to Section 760.11(7), Florida Statutes (2003).
Findings Of Fact Petitioner filed a Charge of Discrimination with FCHR on June 30, 2003. Petitioner alleged that Respondent discriminated against her based on her sex and retaliated against her when she complained that her supervisor was sexually harassing her. Finding no reasonable cause to believe that Respondent had committed an unlawful employment practice, FCHR issued a Determination: No Cause on March 24, 2004. That same day, FCHR issued a Notice of Determination: No Cause, advising Petitioner that she had 35 days from the date of the notice in which to request an administrative hearing. The notice clearly stated that Petitioner's claim would be dismissed pursuant to Section 760.11, Florida Statutes, if she failed to request a hearing in a timely manner. The 35th day was April 28, 2004. Petitioner sent her Petition for Relief to FCHR by facsimile transmission on April 28, 2004, at 4:26 p.m. C.S.T. FCHR received the Petition on April 28, 2004, at 5:35 p.m. E.S.T. or 35 minutes after FCHR's normal business hours. Therefore, the Petition was not filed until April 29, 2004, one day after expiration of the 35-day period.
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 25th day of June, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mark Simpson, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Debra Dawn Cooper, Esquire 1008 West Garden Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues posed for decision herein are whether or not the Respondent discriminatorily discharged the Petitioner, at least in part, based on race or other unlawful considerations, and whether or not the Respondent's employment policies, as practiced against the Petitioner herein, have an adverse impact upon blacks and/or other minorities. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the proposed memoranda and the entire record compiled herein, the following relevant facts are found:
Findings Of Fact Petitioner was employed by Respondent from March 12, 1979 to May 29, 1979. Petitioner was notified of his termination by Respondent's agent, Captain James McRaven, on May 29, 1979. Petitioner's efforts to be employed by Respondent commenced with his completing an application during 1978. In this regard, Industrial Relations' Manager, Earle Patrick, sought out Petitioner for employment with Wackenhut as part of his duties of recruiting qualified minority employees for positions. Patrick's effort included personal contacts, advertising, and other recruiting methods, including the use of service organizations in Brevard and the immediate surrounding counties. Industrial Relations' Manager Patrick advised Petitioner that a background investigation is conducted on each employee hired by Wackenhut. Petitioner's knowledge of Respondent's background investigations is further verified by a review of the application, completed by Petitioner, which provides in pertinent part: I . . . agree that if, in the judgment of the company . . . the results of such investigation are not satisfactory, any offer of employment made by the company may be withdrawn, or my employment with the company may be terminated immediately without any obligation or liability to me . . . Respondent has a policy of not extending offers of employment to applicants with convictions involving penalties in excess of a $25.00 fine, except minor traffic violations. Petitioner indicated on the first page of his application for employment that he had never been convicted of a violation of any law. Additionally, this fact was again admitted by the Petitioner during the subject hearing herein. Further, on two separate occasions prior to the Petitioner's commencement of employment with Respondent, Industrial Relations' Manager Patrick inquired of Petitioner whether or not his back ground investigation would reveal anything, aside from convictions, that he (Patrick) should be made aware of. On both occasions Petitioner replied "I am clean." Background investigations of the Petitioner indicated that Petitioner had been placed on one(1)year probation on April 10, 1978, for unemployment compensation fraud. That background investigation revealed further that other counts of unemployment compensation fraud had been withdrawn, and a further charge of issuing worthless checks in Kentucky had been dismissed. Petitioner pled guilty to the first count of unemployment compensation fraud and was placed on supervised probation for one (1) year. The court withheld adjudication of guilt. While a probationer, Petitioner was not allowed to carry a gun. Further, the Petitioner did not apply for any modification of the terms of his probation which would allow him to carry a firearm. Respondent maintains a rigid requirement for employee conduct and integrity for its security guard employees. (Respondent's Exhibit 15, Section 4.6.2.3 and Respondent's Exhibits 6 and 16.) The decision to discharge Petitioner was based on the results of the Respondent's background investigation of Petitioner and following consultation with its labor counsel, its Industrial Relations Manager, and the Chief of Security. Although the Petitioner contends that the Respondent was aware of his criminal background prior to employment, the documentary and other evidence introduced herein fails to support his claim in that regard. Further, the evidence reveals that the Petitioner does not employ, or even consider for employment, applicants who have pled guilty to a felony charge. This policy consideration is based on the Respondent's concern for high standards of integrity among its security guards due to the sensitive nature and other security considerations involved in its contract with NASA. In addition to the unlawful discharge allegation, Petitioner also alleged that he was unlawfully discriminated against in his employment with Respondent based on his failure to be selected for the SWAT Team; the fact that he as discriminatorily assigned to a remote and difficult security job assignment; the failure of Respondent to award him overtime work assignments, and finally, a claim that he was "grilled" by Captain McRaven. As to his non-selection to be a member of the SWAT Team, the Respondent bases its selection to the SWAT Team on employees who demonstrate a high proficiency in weapons, prior SWAT Team experience, and other factors, including length of employment. As to Petitioner's claim that he was discriminatorily assigned to a remote and difficult security job assignment, evidence reveals that Respondent attempts to assign employees to all of the possible job locations in an effort to acquaint them as much as possible so that they can be assigned to any and all post assignments as needed. Respondent selects employees for overtime assignments based on job seniority as set forth in its contract with the employee's job representative. Finally, no evidence was introduced herein to substantiate Petitioner's claim that he was "grilled" by Captain McRaven as charged. Petitioner acknowledged that there was a problem with his carrying a firearm while he was a probationer; however, he failed to mention his concern to any of Respondent's agents. Industrial Relations' Manager Patrick related that had the results of Petitioner's background investigation only revealed the disorderly conduct charge in Kentucky, Petitioner would still have been in Respondent's employ. The decision to terminate Petitioner was promoted by his guilty plea to a felony charge. Industrial Relations' Manager Patrick made a conscious effort to increase the number of minority employees with the Respondent. As example, during the month of April, 1978, Respondent's minority employees amounted to less than 1 percent of its total complement of employees, and during the course of the hearing, the complement of minority employees approximates 12 percent of the Respondent's total work force. Further, the number of minority employees shows a steady increase since the Respondent was awarded the subject contract with NASA in 1978. Richard G. Fritz, an associate professor who has earned a doctorate degree in economics, was received as an expert in statistics in this proceeding. 2/ Following a review of the "cause determination" introduced herein by the Intervenor, Dr. Fritz rendered his expert opinion that that determination was informational but not relevant herein, inasmuch as the reference groups were too small to be statistically accurate. Dr. Fritz reviewed several samples to determine a 50 percent accuracy rate and statistically determined that a sample size would need to number at least 102.18 in order to be valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Florida Commission on Human Relations enter an Order dismissing the PETITION FOR RELIEF filed herein. RECOMMENDED this 10th day of June, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1983.
