Findings Of Fact Petitioner was employed by Respondent from August 26, 1986 to November 6, 1986 as a millworker cutting wood for floor joists used in the manufacture of mobile homes. His employment was terminated by Respondent on November 6, 1986 due to his inability to keep up with production. Petitioner timely filed his request for hearing with the Florida Commission on Human Relations. Respondent is an employer within the terms of the Human Rights Act of 1977, Chapter 760, Florida Statutes, and manufactures mobile homes. Petitioner is handicapped by virtue of the amputation of his left arm above the elbow due to a motorcycle accident in 1977. During the approximately two and one-half month period that Petitioner was employed by Respondent, four mobile homes per day were being produced. However, Respondent determined in late October, 1986 to increase production to five mobile homes per day and implemented this increased level of production in November, after Petitioner was terminated. All employees are evaluated within thirty days of their employment by Respondent. Petitioner's thirty day evaluation was conducted on September 23, 1986. On a five point scale, with one being excellent and five being poor, Petitioner received a rating of four in productivity. This is a low average rating. Comments by his group leader on the evaluation form state that Petitioner "needs to get a system down in order to increase productivity." Petitioner was counsel led about the need to increase his productivity at the time of this evaluation. From September 23 to October 24, 1986 Petitioner's productivity did not improve. His group leader at the time he was terminated, Frederick W. Moulder, testified that it took Petitioner 3 1/2 hours to do a job which it took Moulder 1 1/2 to 3 hours to do. Moulder also helped Petitioner finish his work since Moulder regularly finished early and Petitioner never completed his work early, even though production at the time was four homes per day and had not yet been increased to five. On October 24, 1986 Petitioner's supervisor, Tim Powers, prepared a written warning notice which stated that Petitioner "needs to improve his speed to enable him to keep up with his production . . . ." Petitioner refused to sign this warning notice to acknowledge receipt, and instead stated to Powers that his production was fast enough. Petitioner was assigned to work with Charles Rogers on the last day of his employment to show Rogers how the machines he worked with operated. Rogers replaced Petitioner after his termination. There is no evidence that Petitioner ever asked for a reassignment due to production demands of his millworker position. To the contrary, Petitioner continues to feel that he was working fast enough and was meeting production that he felt was sufficient. In any event, there is no evidence that alternative positions were available. During October and November, 1986 Respondent terminated eleven employees for slow or insufficient production, in addition to Petitioner.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 23rd Day of November, 1987, in Tallahassee, Florida. DONALD D. CONN 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 23rd day of November, 1987. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-3407 Rulings on Respondent's Proposed Findings of Fact: 1-3 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 1. Adopted in Finding of Fact 6. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 8-9 Adopted in Finding of Fact 8. 10-11 Rejected as irrelevant and unnecessary. 12 Adopted in Finding of Fact 4. 13-16 Adopted in Finding of Fact 7. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 1. COPIES FURNISHED: Joseph Scott Shepherd 108 Flores Way Auburndale, Florida 33823 Jeffrey W. Bell, Esquire 600 Peachtree At The Circle Building 1275 Peachtree Street, N.E. Atlanta, Georgia 30309 Donald A. Griffin Executive Director 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact The Petitioner was employed by the Respondent as an Accountant II on December 1, 1987 and in December of 1993, was promoted to Tax Auditor II. In September of 1991, the Respondent received a complaint regarding Petitioner from a taxpayer. The taxpayer alleged that the Petitioner had accused the taxpayer of attempting to sabotage the Petitioner's van. When questioned about the complaint, the Petitioner stated that the taxpayer had attempted to damage his van because the Petitioner had denied the taxpayer's refund claim. The Petitioner's supervisor investigated Petitioner's claims, counseled him and suggested that the Petitioner participate in the Employee Assistance Program (EAP). The Petitioner declined assistance. In October and November of 1992, the Petitioner began making bizarre allegations about his co-workers and supervisors engaging in outrageous and deviant sexual conduct and activities, and began to behave strangely. The Petitioner told his supervisors that his co-workers were engaging in sex with his mother, aunt, uncle and other members of his family. According to the Petitioner, these sexual activities were taking place in the office. The Petitioner was upset particularly at one co-worker, who Petitioner stated had moved in next door to him or into his neighborhood in order to spy on Petitioner. In addition, Petitioner stated that the "sex police" were observing him at Walmart. The police would get on top of his van to spy on him according to Petitioner. During this time, the Petitioner filed a "sexual harassment" complaint with the Respondent's Inspector General. Petitioner's statement to the investigators repeated the bizarre accusations outlined above regarding his co- workers. After investigating the Petitioner's claim, the Respondent's Inspector General found no evidence to substantiate these allegations and statements. Because the Petitioner's increasingly bizarre behavior, the Respondent became concerned about the Petitioner's ability to perform his duties as a Tax Auditor I. Therefore, the Respondent requested that the Petitioner go to a psychiatrist for an evaluation. The Petitioner agreed and went to the Apalachee Center for Human Services, where he was examined by Dr. Terence Leland, a psychologist and Dr. Inez Bragado-Spence, a psychiatrist. The evaluation consisted of three, one- hour interviews and various written tests. It was understood that the results of this examination would be shared with Respondent. Dr. Leland reported to the Respondent that the Petitioner had made delusional statements of the type made to and investigated by the Inspector General and found to be baseless. The Petitioner reported that co-workers and others were spying on him. The Petitioner reported alleged sexual liaisons at the office between various employees and supervisors. The Petitioner reported plots against him by various conspirators and "hit men" of the Respondent. Dr. Leland's diagnosis was that the Petitioner suffered from a delusional (paranoid) disorder, persecutory type. It was Dr. Leland's opinion that the Petitioner clearly needed treatment. Dr. Leland felt that the Petitioner could not perform his duties without treatment, and recommended requiring treatment as a condition of the Petitioner's continued employment. During this period, the Petitioner's job performance suffered. Based upon Dr. Leland's reports, the Respondent required that the Petitioner obtain treatment as a condition of continued employment. The Petitioner and the Respondent entered into an agreement which required the following as a condition of continued employment: Seeking psychiatric treatment within 40 days. Furnishing documentation that treat- ment had commenced and was continuing for as long as treatment was recommended. Following the prescribed treatment so long as it was recommended. The Petitioner commenced treatment in June of 1993, Dr. Prasad, a psychiatrist, prescribed medication for the control of Petitioner's illness and Suzan Taylor, a counselor associated with Dr. Prasad, held regular counseling sessions with Petitioner. As a result of his treatment, the Petitioner was asymptomatic, his work improved, and he was promoted to Tax Auditor II in December of 1993. In the summer of 1994, approximately one year after commencing treatment, Dr. Prasad and Suzan Taylor began to suspect that the Petitioner was no longer taking his medication when he again began making delusional statements. At the same time, the Petitioner's supervisor began to notice the reoccurrence of Petitioner's prior conduct. When confronted by his doctors in November of 1994 about the failure to take his medication, the Petitioner stated that he had quit taking it. He was given the option of getting shots of the same medication on a regular basis, but he declined. On November 18, 1994, the Petitioner had an altercation with a co- worker and received a one-day suspension. Dr. Prasad had diagnosed the Petitioner as having major depression with psychotic features of persecution and delusion. Dr. Prasad's opinion was that the Petitioner could not perform his essential job functions without treatment. On or about November 21, 1994, the Petitioner told his supervisor that his last visit to Dr. Prasad was on November 16, 1994. Dr. Prasad was contacted by Petitioner's employer, and Dr. Prasad issued a final report dated November 23, 1994, in which she stated that the Petitioner refused to take any further medication or follow her directions; therefore, there was nothing further she could do to help him if he refused her recommended treatment. She did not release Petitioner from treatment. The Respondent issued its proposed letter of termination based upon the Petitioner's refusal to continue treatment contrary to his agreement and the Petitioner's behavior on the job. In a response to the letter of termination, the Petitioner made bizarre statements about the co-worker with whom he had had the altercation with on November 18, 1994. At a pre-determination conference conducted by William Fritchman, the Respondent's Chief of Personnel and Training (at the time), it was suggested that the Petitioner go to another doctor for evaluation and treatment, if necessary. The Petitioner stated that he would not seek further medical help and stated that he would not take any drugs. The Respondent had real concerns about the Petitioner's ability to perform his job duties, his interaction with taxpayers, and potential harm to fellow employees. Based upon Dr. Prasad's diagnosis and opinion that Petitioner required continuing treatment and Petitioner's declining job performance, Mr. Fritchman issued the Final Action Letter of Termination citing the Petitioner's breach of the conditions of employment, as agreed in the letter of April 30, 1993, which constituted insubordination. Petitioner offered no evidence showing he was sexually harassed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's claim be dismissed. DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Jack E. Franklin Post Office Box 572 Tallahassee, Florida 32302-0572 Gene T. Sellers, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32311-6668 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 51-year-old white male who had cancer in one kidney at the time of an alleged unlawful employment practice. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a construction company engaged in the business of building bridges and other highway structures in Florida. For the reasons set forth hereinafter, a preponderance of the evidence does not show that Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability. Respondent employed Petitioner as a crane operator on February 22, 2008, at a pay rate of $18.00 per hour. Petitioner listed his residence as Naples, Florida. Petitioner was unaware that he had any disability and did not disclose any disability at the time of his initial employment. Petitioner solicited employment from Respondent and was not recruited by Respondent. Petitioner relocated from Wyoming to Florida to be with his family. Respondent assigned Petitioner to a construction job that was under the supervision of Mr. Scot Savage, the job superintendent. Mr. Brandon Leware was also a superintendent on the same job. Mr. William (Bill) Whitfield was the job foreman and Petitioner's immediate supervisor. Sometime in October 2008, medical tests revealed that cancer may be present in one of Petitioner's kidneys. The treating physician referred Petitioner to a specialist, David Wilkinson, M.D., sometime in October 2008. Medical personnel verbally confirmed the diagnosis of cancer to Petitioner by telephone on October 30, 2008. On the same day, Petitioner voluntarily resigned from his employment during a verbal dispute with his supervisors. Petitioner did not disclose his medical condition until after he voluntarily resigned from his employment. The verbal dispute involved Petitioner and several of his supervisors. On October 30, 2008, Mr. Whitfield, the foreman, assigned work to several employees, including Petitioner. Mr. Whitfield proceeded to complete some paperwork and, when he returned to the job site, discovered the work assigned to Petitioner had not been performed. When confronted by Mr. Whitfield, Petitioner refused to carry out Mr. Whitfield’s directions. Mr. Whitfield requested the assistance of Mr Savage. Mr. Savage directed Petitioner to return to work or quit. Petitioner quit and walked off the job. As Petitioner was walking off the job, Petitioner turned around and stated that he had cancer. Petitioner then left the job site. Petitioner's statement that he had cancer was the first disclosure by Petitioner and first notice to Respondent that Petitioner had cancer. The medical condition did not prevent Petitioner from performing a major life activity. Respondent did not perceive Petitioner to be impaired before Petitioner voluntarily ended his employment. None of the employees of Respondent who testified at the hearing regarded Petitioner as impaired or handicapped or disabled or knew that Petitioner had cancer prior to Petitioner's statement following his abandonment of his job on October 30, 2008.2 Within a week after Petitioner voluntarily left his position, Petitioner returned, approached Vice-President Mr. Scott Leware, and asked for his job back. Mr. Leware advised him that he would not get his job back. At the time, Mr. Leware was unaware that Petitioner had cancer. Mr. Leware was the ultimate decision-maker, and Mr. Leware was unaware that Petitioner had cancer when Mr. Leware made that decision approximately a week after Petitioner voluntarily left his employment. The terms of employment did not entitle Petitioner to a per diem payment while employed with Respondent. Petitioner's residence in Naples was within 75 miles of the job site where Petitioner worked. Respondent did pay for the hotel room that Petitioner used at the Spinnaker Inn while on the job, but not other per diem expenses, including meals. The cost of the hotel ranged between $50 and $60 a night. Mr. Brandon Leware followed Petitioner to a gas station and paid for gasoline for Petitioner’s vehicle. Mr. Leware and Petitioner then went to the Spinnaker Inn where Petitioner resided in a room paid for by Respondent. Mr. Leware advised the manager of the Spinnaker Inn that Respondent would pay for Petitioner’s lodging for that night, but not after that night. The rate of compensation that Respondent paid Petitioner was within the normal range of compensation paid to crane operators employed by Respondent. Crane operator compensation ranges from $16.00 to $20.00 an hour. Respondent paid Petitioner $18.00 an hour. A preponderance of the evidence does not show that Respondent ever offered to pay Petitioner $22.00 an hour. The allegation of age discrimination is not a disputed issue of fact. Petitioner admitted during his testimony that he never thought Respondent discriminated against him due to his age. Respondent employed another crane operator with cancer at the same time that Respondent employed Petitioner. The other crane operator is identified in record as Mr. Roddy Rowlett. Mr. Rowlett’s date of birth was October 14, 1949. Mr. Rowlett notified Respondent that he had cancer, and Respondent did not terminate the employment of Mr. Rowlett. Mr. Rowlett continued to work as a crane operator until a few weeks before his death. A preponderance of evidence does not show that age, cancer, or perceived impairment were factors in how Respondent treated Petitioner during his employment with Respondent. A preponderance of the evidence does not show that Respondent hired anyone to replace Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Administrative Hearing. DONE AND ENTERED this 2nd day of March, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 2nd day of March, 2010.
The Issue The issue in this case is whether Dennis Gartenmeyer committed the acts which form the basis for the recommendation that his employment with the Monroe County School Board be terminated, and, if so, the appropriate penalty which should be imposed.
Findings Of Fact Based on the stipulation of the parties, the oral and documentary evidence presented at the final hearing, and the entire record of this proceeding, the following findings of fact are made: The Monroe County School Board has the authority to terminate the employment of its instructional staff and other school employees. See section 230.23(5)(f), Florida Statutes. Mr. Gartenmeyer has been employed by the School Board since November 1, 1993, and holds the position of mechanics helper in the School Board maintenance department. As such, he is classified by the School Board as non-instructional personnel. Mr. Gartenmeyer's work performance has been satisfactory, 1/ but he is known among his co-workers as someone who complains a lot. In March, 1995, Alan Roberts, the assistant director of the School Board maintenance department and Mr. Gartenmeyer's direct supervisor, assigned him and a mechanic, Otis Rahming, to repair an area of the roof of the maintenance building. The repairs consisted of removing loose concrete from the roof and patching it with a non-shrinking vinyl patch. On March 20, 1995, several days after Mr. Gartenmeyer and Mr. Rahming began work on the roof, Mr. Gartenmeyer was chipping concrete with a metal tool when a small piece of concrete flew into his eye. Although Mr. Gartenmeyer should have worn safety goggles while doing this work, he was wearing only his prescription eye glasses. 2/ Mr. Gartenmeyer immediately reported his injury to the appropriate person in the maintenance department's administrative office, and he was seen by a doctor shortly thereafter. The doctor removed the chip and advised Mr. Gartenmeyer to rest at home for one day with a patch over his eye; the doctor released him to return to work on March 22, 1995, and the written release dated March 21, 1995, contained no restrictions. Mr. Gartenmeyer reported for work a few minutes before 7:00 a.m. on March 22, 1995. A number of maintenance department employees were gathered at the maintenance department building to receive their assignments for the day, among them John Davis and Isaias Martinez. Mr. Roberts approached Mr. Gartenmeyer and Otis Rahming and told them to go back up on the roof and continue working on the repairs. Mr. Gartenmeyer refused to do so, citing his doctor's instructions that he not work around concrete dust for a week. When challenged by Mr. Roberts, Mr. Gartenmeyer could produce no written instructions from his doctor containing this restriction. Mr. Gartenmeyer then began reciting complaints he had with Mr. Roberts, accusing him of, among other things, disregarding his employees' safety, as demonstrated by the several injuries he, Mr. Gartenmeyer, had suffered while an employee of the School Board maintenance department. Mr. Gartenmeyer also took issue with Mr. Roberts's decision to assign him to repair the roof when there were other men qualified to do the job. During this exchange, Mr. Gartenmeyer and Mr. Roberts were standing two or three feet apart, and Mr. Davis was standing next to them. As he spoke, Mr. Gartenmeyer became more upset and agitated. Although the exact sequence of events is uncertain, at some point Mr. Roberts reiterated his instructions that Mr. Gartenmeyer continue work on the roof and accused him of simply not wanting to do the work assigned. Mr. Gartenmeyer responded by threatening to go to the School Board to complain about Mr. Roberts, and Mr. Roberts told him to do what he wanted, at the same time making a gesture of dismissal with his right hand.3 Mr. Gartenmeyer yelled "don't get in my face" and shoved Mr. Roberts with both hands so forcefully that Mr. Roberts was propelled backwards several feet, out of the open front door of the maintenance building and over the step leading to the building's porch. Mr. Roberts regained his balance just a short distance from a set of five very steep concrete steps leading down from the porch to the ground. After he regained his balance, Mr. Roberts was very shaken. He rushed back into the building toward Mr. Gartenmeyer, shouting angrily; his arms were down at his side. Mr. Davis intercepted Mr. Roberts and stopped him from approaching Mr. Gartenmeyer by placing a hand on his chest and telling him to stop. At the same time, Isaias Martinez restrained Mr. Gartenmeyer by grabbing his right arm. Mr. Roberts shook his head and regained control, stepped around Mr. Davis, exchanged a few heated words with Mr. Gartenmeyer, and told Mr. Gartenmeyer to follow him into the maintenance department's administrative office. Mr. Roberts went directly into the office of John O'Brien, the director of the maintenance department, to report the incident to him. Mr. Gartenmeyer was immediately suspended with pay for three days and told to go home. After the suspension, Mr. Gartenmeyer was reassigned to the grounds crew, where he works under the supervision of Tony Oliva. At the time of hearing, Mr. Gartenmeyer's work with the grounds crew had been satisfactory. Mr. Gartenmeyer does not dispute that he shoved Mr. Roberts, but contends that the penalty for his actions should be something less than dismissal from his employment. Mr. Gartenmeyer claims that his actions were justified under the circumstances because he felt threatened with physical harm, interpreting Mr. Roberts's gesture with his right hand as a move to hit him. He also contends that, given the circumstances of the altercation, he was provoked by Mr. Roberts's words and actions. Finally, he cites his good employment history with the maintenance department. The evidence does not establish any provocation or justification for Mr. Gartenmeyer's violent outburst on the morning of March 22, 1996. Rather, the evidence establishes that Mr. Gartenmeyer's actions, both verbal and physical, were in overt defiance of the authority of his direct supervisor. Mr. Gartenmeyer's violent behavior in reaction to a work assignment displayed a contempt for authority which was publicly displayed in the workplace and in the presence of Mr. Gartenmeyer's co-workers, who were also supervised by Mr. Roberts. The greater weight of the evidence supports the finding that Mr. Gartenmeyer was both insubordinate and engaged in fighting with his supervisor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Monroe County School Board enter a final order finding that Dennis Gartenmeyer is guilty of insubordination and fighting in violation of School Board policy and terminating his employment as a School Board employee. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996.
Findings Of Fact Elizabeth Ann Boarding Home is an adult congregate living facility licensed by Petitioner. On the evening of November 6, 1980 Leatrice Carpenter, a 56 year old female resident at this facility, fell in her room and struck the back of her head on the door leaving a cut in the scalp some two inches long running vertically near the center of the back of the head from the hairline up. She was found shortly thereafter by Rebecca McPherson (Becky), a 70 year old maid, who lived and worked at the facility. Becky saw Ms. Carpenter had a cut in the back of her head which was bleeding slowly. Becky put a wet towel around Ms. Carpenter's head, helped her into a chair which she pushed over the bed and then helped Ms. Carpenter into the bed. Becky did not notify Ms. Morris because Ms. Morris had been sick with heart trouble. Becky did dial Ms. Carpenter's daughter but received no answer. During the night Becky checked on Ms Carpenter off and on when Becky would get up. Ms. Carpenter is subject to epileptic seizures; however, her malady is under control with medication consisting of phenobarbitol and dilantin. Despite the medication she is still subject to focal seizures during which her eyes roll back but she retains control of her other bodily functions. Ms. Carpenter is also a member of the Senior Citizens Day Treatment Program run by St. Vincent's Hospital. She and others similarly unable to fully take care of themselves are transported to St. Vincent's Monday through Friday where they are placed in programs to occupy their day and help them cope with their situation. Ms. Carpenter is also given her medication of phenobarbitol and dilantin at St. Vincent's. She is given only one dosage to take with her when she leaves St. Vincent's in the afternoon. When Ms. Carpenter did not get off the bus at St. Vincent's the morning of November 7, Linda Hartley, the LPN in charge of Ms. Carpenter while she is at St. Vincent's, became concerned and went to the facility to find out what was wrong. When she arrived she found Ms. Carpenter in bed with the towel still wrapped around her head. Ms. Carpenter was comfortable and alert. When she removed the towel Ms. Hartley observed dried blood on the towel and blood-matted hair on the back of Ms. Carpenter's head. She saw the cut in Ms. Carpenter's scalp was not bleeding but believed it required medical attention. She talked to Becky and to Ms. Carpenter who told her the latter had fallen the previous evening shortly after supper and thereby obtained the injury. Ms. Hartley got Ms. Carpenter's daughter's (Ms. Watson) telephone number and returned to St. Vincent's to call Ms. Watson's residence. When she didn't get an answer she called the school at which Ms. Watson taught and left a message for Ms. Watson to call her as soon as possible. Both of Ms. Watson's phone numbers were in the St. Vincent's records for Ms. Carpenter. Early after lunch Ms. Watson returned Ms. Hartley's call and was told about her mother's accident. Ms. Watson proceeded to the facility to her mother who she found still in bed. When she saw the cut on Ms. Carpenter's head she helped her dress and took her to the emergency room at St. Vincent's where the wound was cleaned, dressed and sutured. This emergency room treatment is recorded on Exhibit 4. Eight stitches were required to close the cut. In late January, 1981, after Ms. Carpenter had been moved to a different adult congregate living facility, St. Vincent's Day Care Center reported to Petitioner the events surrounding the injury Ms. Carpenter had received. Later the same day Ms. Hartley called Petitioner to confirm the information (Exhibit 1). Two days later, on January 28, 1981 Ms. Watson complained to Petitioner regarding the failure of the facility to provide proper medical treatment when her mother was injured (Exhibit 1). An investigation conducted by Petitioner confirmed the facts above noted and resulted in the February 17, 1981 letter notifying Respondent of the intent to impose an administrative fine. Then the investigator talked to Ms. Morris, the owner of the facility, she found it difficult to focus Ms. Morris' attention on the November incident involving Ms. Carpenter. Ms. Morris recalled a fall Ms. Carpenter had taken in April, 1980 while she was away from the facility and kept referring to this incident as she was being questioned about the November accident. No notation regarding the current accident had been entered in the facility's records.
The Issue Whether Respondent discriminated against Petitioner because of his race or age when he was not selected as Lead Mechanic in Area I KA/Nitric.
Findings Of Fact Petitioner is a black male who was over 40 at the time he applied for the Area I (One) Lead Mechanic position. At the time Petitioner applied for the Area I Lead Mechanic position, he was a lead mechanic in the Central Maintenance Compressor and Gear Box shop, pay grade level 28 position. Pay grade level 28 is the highest nonexempt pay grade at Solutia, Inc. On January 25, 1999, Solutia posted a job opening for a lead mechanic position in Area I KA/Nitric, a pay grade level 28 position. Petitioner applied for the Area I Lead Mechanic position. Had Petitioner been selected for the Area I Lead Mechanic position, it would have been a lateral transfer and not a promotion because Petitioner was already at a level 28 pay grade. No evidence was received that the incumbent of the Area I Lead Mechanic position would have had more authority or promotion opportunities than the position previously held. Petitioner, along with three other mechanics, interviewed for the Area I Lead Mechanic position. The other three applicants were: William G. Cook (a white male); Joseph S. Mann (a white male); and David Wolfe (a white male). Petitioner admits that all the applicants were qualified for the Area I Lead Mechanic position. Respondent used a ranking procedure to evaluate the applicants for the Area I Lead Mechanic position. The applicants were ranked by subjectively grading their answers to questions in five areas: 1) problem-solving and decision-making ability; 2) teamwork and coaching ability; (3) communication ability; (4) honoring differences; and (5) results orientation and initiative. The applicants were given a score from one to five by each panel member based upon the panel members' subjective assessment of applicants’ answers on each of the five criteria. Five was the highest grade and one being the lowest. The points were totaled and converted into a percentage score. The applicant having the highest overall score was selected to fill the job. The applicants were interviewed by a panel composed of six employees: Nikki Owens; Mike Conley; Darren Dobson; Tony Williams (a black male); Terry Wilcox (who was over 40 at the time of the interview); and Greg Barker. All of these persons were from Area I. The majority of the panel worked regularly with the person ultimately selected. Petitioner admits that there was no overtly discriminatory questions or activity in the interview. There were no questions or discussions amongst the panel members about the applicants' race or age. The panel members scored each applicant separately without knowing how the other panel members scored the applicants. The panel members scored the applicants as follows: W. Cook S. Holly J. Mann D. Wolfe Nikki Owens 45% 77% 90% 67% Michael Conley 53.3% 63.3% 70% 63.6% Darren Dobson 40% 63% 70% 67% Greg Barker 40% 57% 73% 57% Tony Williams 57% 73% 67% 50% Terry Wilcox 33% 66.6% 76.6% 57.7% After the individual panel members totaled their respective scores, the applicants were ranked. Joseph Mann was ranked first by five of the six panel members, and one panel member, the black male, ranked Petitioner first. The panel discussed the results and reached a unanimous consensus to offer the Area I Lead Mechanic position to Joseph Mann. The panel prepared and provided feedback to all the applicants. Petitioner's shortcoming was that he failed to give specific examples to questions posted during his interview. When he was not selected, Petitioner complained about the outcome, believing he was the most qualified applicant and was rejected for racially motivated reasons. Rachel Gold (a black female) and Lerissa Rowe, who both worked in Respondent's Human Resources Department, investigated Petitioner's complaint. During their investigation, it came to their attention that a panel member, Terry Wilcox, stated to a co-employee, "I don't think that there would ever be two black people in charge of a group of white mechanics in a shop." After learning of Terry Wilcox' comment, Respondent took the following action: (a) Respondent recalculated the panel's score leaving out Terry Wilcox' score; and (b) Respondent disciplined Terry Wilcox by suspending him for two days without pay. After recalculating the scores, Joseph Mann still had the highest overall score. Petitioner's overall score remained the same. Petitioner remained with Respondent until he voluntarily retired effective November 1, 1999. No one forced Petitioner to retire. The decision was Petitioner's alone, prompted in part by a change in Respondent's retirement plan. Petitioner admits that none of the panel members had ever discriminated against him because of his race or age prior to the complained of selection. Since retiring, Petitioner has not sought employment elsewhere. He is basically enjoying retirement.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the instant petition. DONE AND ENTERED this 30th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2001. COPIES FURNISHED: Sylvester A. Holly, Jr. Post Office Box 301 Cantonment, Florida 32533 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32596 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Respondent, Michael J. Osborn, has been employed by the City of Clearwater for 9 years, first as a Service Worker I and then a Service Worker II for the Water Division. He began work with the city on December 5, 1983. He was so employed at all times pertinent to the matters at issue herein. Before coming to work for the city he was employed as a construction worker and has an 8th grade education. His general duties with the Water Division ran the gamut of physical stress and included digging, jack hammering and other tasks of a like nature. Respondent admits that over the years, he has reported a number of injuries to his back. Records of the city reflect 11 reports of incidents involving such injuries. The first took place in March, 1986 and the most recent is the one in issue here. He claims the most serious of his injuries resulted from an automobile accident he had on duty in 1988 when he was rear- ended by a vehicle traveling at a speed of more than 40 miles per hour while he was driving a city truck. As a result of that injury, he was out of work for 3 or 4 days and while he underwent no surgery as a result thereof, he was given treatment and medications for it. When released by the physician, he returned to his regular duties but has complained of continuing soreness in his lower back. After that accident, Respondent complained to his supervisors about his back problems on 3 or 4 occasions and was given intermittent time off. He was also placed on light duty up to December, 1992. This included painting fire hydrants and line spotting, neither of which gave him any trouble unless it involved physical digging. However, he was also assigned to painting lockers and other areas which did cause him pain when it was necessary for him to stretch or bend to reach areas to be covered. He claims never to have been totally free of back pain and discomfort since the 1988 accident. However, he persisted in doing his work because it was his job to do and he claims he didn't want to complain. This latter assertion, however, is contradicted by the testimony of his coworker, Mr. Baxter, who related Respondent was always complaining about something. In any case, Respondent never sought lighter work and no one ever suggested it. On the morning of January 4, 1993, Respondent reported to work as usual. Though his associate, Mr. Baxter, was the one who usually filled the water cooler on their truck, on this morning Respondent did so. He took the cooler, which was about 2 - 3 feet tall, off the truck, dumped out the old water, and refilled it with ice and fresh water. When he thereafter stooped with bended knee to pick it up and carry it back to the truck, he experienced a shooting pain down his left leg. This had happened before, but on this occasion the pain was unusually bad. He immediately told Mr. Baxter what had happened and suggested the incident be reported. When he saw the supervisor, he was told to fill out the required paperwork and then see the nurse, which he did. When Respondent told the nurse what had happened, she questioned him about the incident and then sent him to the walk-in clinic to whom all mobile injured employees are sent. She did not offer him transportation so Mr. Baxter took him there in a city truck. The doctor at the clinic, after examining him, told him there was nothing they could do for him there and referred him to Dr. Sena, an orthopedic surgeon. Respondent's request to see a chiropractor was refused. When the clinic doctor released Respondent, Mr. Baxter drove him back to the city nurse's office where he picked up the paperwork to take to Dr. Sena's office when he met his January 7, 1993 appointment. In the interim, between January 4 and January 7, Respondent stayed at home and took it easy, taking the medications which had been prescribed for him. On January 7, 1993, Respondent drove himself to Dr. Sena's office, even though he had been told not to drive, because he had no other way of getting there. Usually, he did not see Dr. Sena but saw Dr. Rehme, Sena's associate, and also a qualified orthopedic surgeon, instead. After the examination on January 7, 1993, Respondent was given a duty excuse until January 13, 1993, reflecting a total disability. He took that document back to the city nurse's office and went home. The physician's notes of that first examination reflect a diagnosis of acute back strain and spondyolesythesis. He was placed on bed rest and given a duty excuse for one week along with appropriate medications. While Dr. Sena indicated in his testimony that he considered bed rest to mean staying in bed except for meals, toilet, and personal hygiene, Respondent claims he did not understand the doctor's instructions to mean staying in bed for longer than one night. He also asserts the doctor did not tell him what activities he might perform. In any case, he was scheduled to begin physical therapy after his next visit scheduled for January 13, 1993. On that visit, the physical therapy appointment was set up, and he commenced that regimen right away. The doctor's notes concerning the January 13 visit again reflect the Respondent was not to return to work. Dr. Sena indicated that the diagnoses rendered and course of treatment prescribed by either him or Dr. Rheme were based on the representations made as to his condition by the Respondent. Respondent was referred to Ms. Pearson, the physical therapist who first saw him and conducted an initial evaluation and assessment of his condition at her facility on January 27, 1993. At that time, Respondent showed an increased pulling in his lower back muscles, and he was complaining of back pain and pain down his left leg. He said he could not lift or work at that time. As a result, she prescribed very gentle exercises for him and scheduled him for a return visit on January 29, 1993. When she saw him that date, he claimed he had increased pain after exercise and soreness in his buttocks and legs. She repeated the previously prescribed exercises and added some new ones and started him on the treadmill to strengthen his muscles. On his next visit to Ms. Pearson on February 1, 1993, Respondent continued to complain of mid to low back pain and on that date and again on his February 3, 1993 visit, she continued the course of treatment. On the latter date, however, Respondent complained of pain in his left hip when standing or walking but he indicated his leg weakness was decreasing and his back felt stronger. During his visit on February 5, 1993, Respondent reported his back was still painful. He said he had seen the doctor that morning and was given a work excuse for an additional 3 weeks. During their conversation, Respondent said he was worried he would hurt himself more if he went back to work. When he came in on February 8, 1993, Respondent complained he had had pain all weekend and that walking was painful. On February 10 and February 12 Respondent cancelled his appointments due to a head cold and Ms. Pearson did not see him again until February 15, 1993 when he indicated his back was stiff and sore but his leg was "OK." On that date, Ms. Pearson observed him limping on his left leg. On his February 17 visit to the physical therapist, Respondent complained of continued back stiffness and soreness but claimed his leg pain was less. On the 19th he complained of a lot of back pain and spasm. Ms. Pearson verified the spasm through palpation of the muscles but his pain reports are based on his comments. Nonetheless, on February 22, Respondent reported being somewhat better. Ms. Pearson continued the exercises she had prescribed. On February 24, when he came in, he said his back pain was a lot less severe. He related he had been working around the house and on his trailer and reported he thought he'd been videotaped while doing so. At that point, Ms. Pearson advised Respondent that if he had been working on his trailer, he could go back to work and he agreed he could do light duty. He also claims that at one point, on or before February 15, 1993, before he knew he had been video taped, he advised Ms. Pearson he was starting to work on his trailer and she allegedly said it was a good idea. Nonetheless, he failed to show up for his scheduled February 26, 1993 appointment or thereafter. Ms. Pearson's prescribed treatment exercises contained neither lifting nor more than very light exercising. There was nothing she prescribed that was comparable to lifting a small child, pushing down on a seesaw, or unloading or lifting full sheets of plywood. None of those activities would be consistent with what Respondent reported of his condition or what she observed regarding him. For example, muscle spasm is not something that can be faked. If she palpated and felt spasm or no spasm, she would note as appropriate. Her records of Respondent's treatment show a fairly consistent hardness of muscle, more or less, most of the time she observed him. Respondent indicates, however, that he was usually supervised, during his therapy, by Pearson's assistant since Pearson was not there all the time. When he spoke with her, their conversation was casual. Her testimony as to continuing spasm is not particularly persuasive, therefor, and in any case, muscle spasm alone does not necessarily preclude all activity. During the course of his physical therapy, Respondent continued to be seen by the orthopedists. On January 22, the doctor noted he was improving nicely and noted the possibility he could return to work in 2 weeks. On February 5, the doctor continued the prescription for physical therapy and bed rest. Between that visit and the Respondent's next scheduled appointment on March 1, 1993, Dr. Sena was furnished the video tape of Respondent's activities which had been taken between January 13, and February 23, 1993 by a private investigator hired by the city to conduct a surveillance on the Respondent. When Mr. Osborn came in for the scheduled visit, the doctor noted that his lumbar strain was resolved and he could return to full time regular duty. Osborn indicates that when, toward the end of his series of visits, the doctor suggested he might go back to light duty, he, Respondent, said there was no such thing, and the doctor agreed to keep him off work for a few more weeks. This was the only time either doctor suggested he go back to work, however, prior to the termination of his duty excuse. In that regard, Respondent claims he had been placed on light duty after previous injuries and ended up in more pain than before. He claims he was required, as a part of his "light" duties, to bend and stretch, during painting, all of which, he contends, aggravated his condition. Respondent also admits to having been asked to give his testimony by deposition with regard to another litigation to which he is a party. Though his counsel in that action claims Respondent refused to attend the deposition because he was on bed rest, Respondent denies having given that reason. He claims he refused to be deposed because he felt that to do so might create a conflict in the lawsuit. The counsel's testimony, and that of her paralegal who also spoke with Respondent and recalls much the same as counsel, is considered the better evidence on that issue and it is so found. Respondent admits to having worked on his trailer but claims that at that time, when he was taped, he was recovered and felt he could return to full duty after he saw the doctor on his next scheduled visit. Because of this, he was trying to get himself into shape to go back to work. By that time, he claims he had no further physical problems and felt he was cured. With regard to the trailer work, however, Respondent claims someone else took the old paneling off and he was putting new paneling on. The trailer was parked in his front yard and he was making no effort to conceal what he was doing. As to the other matters appearing on the video tape, Respondent denies having pushed the child up and down on the seesaw. Though someone may have been assisting on the child's end, the tape clearly shows Respondent to be bending down and up repeatedly with his hands on the end of the seesaw. This tape, recorded on several different days over the period January 13, through February 23, 1993 shows Respondent walking without any evidence of a limp or of pain, even on the earliest date recorded. He is shown to bend over from the waist, and to squat to place a tag on his auto license plate. On February 15th he is seen carrying 2 filled large trash containers out to the curb, one in each hand and to bend over at the waist to pick up the newspaper. About the same time, he is seen reaching above his head with both arms to affix something to his trailer. Around the same time, he is shown lifting his young granddaughter from the ground, using his arms, and is observed repeatedly climbing up to the top of a slide to help her slide down. He used his arms and his back to push the child up and down on a seesaw, but in all fairness, it must be said he appeared to have been helped in that effort by someone else on the other end. On February 23, 1993, while at the city dump, he is shown to climb into the bed of his pickup truck and pull trash and scrap lumber, including what appear to be numerous 4 by 8 foot sheets of plywood, out of the truck by himself and toss them into the pit. Later that same day, he was observed working on the reconstruction of his trailer, carrying full sheets of plywood and affixing them to the trailer's frame without assistance. He used hand and power tools in his work and repeatedly sat, squatted, got down on his hands and knees, twisted his back and waist and did other things apparently inconsistent with his claimed condition, all without apparent pain or discomfort. His activity was not consistent with his continued limping and claims of pain to Ms. Pearson as she reported it. Dr. Sena opined, from his review of the video tapes referred to above, that if Respondent could do the things he was observed to be doing on the tapes, he would be capable of performing his regular duties and was not temporarily totally disabled from the first day shown on the tapes, January 13, 1993. The functions which Respondent could perform, consistent with his initially reported condition and the instructions as to bed rest given him by the doctor, would include driving to and from the doctor's office and light physical interaction with his grandchild. If Respondent could do those things other than driving to the office visits, however, in the doctor's opinion, he could do light duty. On the other hand, however, he should not be able to work on his trailer if that work included lifting and placing heavy sheets of plywood. If Respondent could accomplish the letter acts, he would most likely suffer no disability and could work at his regular job. It should be noted that none of the notes prepared be either doctor who saw Respondent, Rheme or Sena, specifically indicated what Respondent represented or portrayed his physical condition to be to them or the office staff. The notes are not detailed and reflect only diagnosis, and prescribed treatment. In light of Dr. Sena's comments that the physicians' notes are based, in great part, on what the patient relates to them, it must be found that Respondent made representations consistent with their diagnosis of continued pain and disability. These representations would appear, at least from February 15, 1993 on, to have been less than accurate. On January 4, 1993, Respondent filled out a notice of injury for Josephine Dixon, Water Distribution Operations Supervisor for the city, and a superior in Respondent's chain of supervision. She has observed Respondent come to the work place during his recuperation period driving his pickup truck with his lawn maintenance equipment in tow. He admits he operates a limited lawn maintenance service for four clients in his off-duty time, but denies having engaged in any lawn maintenance activities during the period in question however and there is no evidence he did. Ms. Dixon reiterates Respondent's long series of back injuries and indicates that in the year prior to the instant injury it was sometimes difficult to find a partner for him because of his reputation for not carrying his share of the workload. The only coworker to testify at the hearing was Mr. Baxter who related nothing either to confirm or contradict this allegation. The performance report rendered on Respondent just prior to the injury in question, however, reflects an overall rating of I. (Improvement Needed). Mr. Hackett, Respondent's overall supervisor, discussed his performance with Respondent's immediate supervisor. The general opinion is that while Respondent is technically very capable, he has a history of being somewhat lazy, and many employees did not want to work with him because he did not carry his share of the load. Mr. Hackett has no knowledge of any specific representations Respondent made to his doctor. However, when considering the Respondent's history of repeated back injuries; his apparent lack of disability shown in the tapes recorded by the private investigator, and the indications by coworkers that Respondent did not pull his share of the load, Hackett and other responsible city officials concluded that Respondent's claim was without merit. At this juncture he admits perhaps Respondent should have been counselled on his ability to do his job earlier on, but this was not done. In deciding to initiate the termination action, he coordinated with and secured the concurrence of the city's risk management staff. This action was approved by Richmond Smith, the city's Assistant Director of Public Works who saw Respondent on several occasions when he would come into the building to pick up his check. At no time did Respondent appear to him to show any major evidence of injury. It was Mr. Smith's decision to terminate the Respondent from his city employment for falsifying city records and for making a false claim. His decision was based in large part on his review of the video tapes previously discussed. He asserts, however, that if Respondent had come in with a supported determination that because of this injury he could not do his job, city personnel could and would have made an accommodation and given him alternative work. The initiative for this option rests with the employee, however, and Respondent at no time sought it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent herein, Michael J. Osborn, be terminated from employment with the City of Clearwater for cause, as outlined in the Record of Personnel Action dated March 18, 1993, effective March 26, 1993. RECOMMENDED this 27th day of October, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2819 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner's counsel submitted a Proposed Order which contains Proposed Findings of Fact which are not numerically identified. For the purpose of reference herein, they have been numbered in sequence from 1 to 42 as they appear. Upon review of each individual proposal, they have been accepted and, as appropriate, have been incorporated herein. FOR THE RESPONDENT: Accepted and incorporated herein. First sentence rejected. Balance accepted. First sentence accepted. Second and third sentences rejected. Fourth and fifth sentences accepted. Sixth sentence modified. Doctor's notes show Respondent to be improving nicely Respondent to be "improving nicely." Doctor's comments from notes accepted. Balance accepted. First through third sentences accepted. Fourth sentence rejected in part as it asserts the tapes serve as foundations of the city's charges. This is not totally accurate. They serve as evidence of Respondent's condition which appears inconsistent with the information given by his to his physicians. Balance accepted. First through fourth sentences are a restatement of testimony, not proper finding of fact. Fifth and sixth sentences are a comment on the evidence. Balance, through second next to last sentence, is a restatement of the testimony. Next to last and last sentences are comments on specific testimony. Paragraph is no more than a restatement of evidence. Rejected as contra to the better weight of the evidence. Rejected. COPIES FURNISHED: Deborah S. Crumbley, Esquire Thompson, Sizemore & Gonzalez Post Office Box 639 Tampa, Florida 33601 Barry M. Salzman, Esquire Chambers, Salzman & Brannon Post Office Box 1191 St. Petersburg, Florida 33731-1191 Michael J. Wright City Manager City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Gary Fernald, Esquire 501 South Ft. Harrison Clearwater, Florida 34616
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his age.
Findings Of Fact The following Findings of Fact are based on the testimony adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding. Title 49 C.F.R. § 391.1(a) provides that “[t]he rules in this part establish minimum qualifications for persons who drive commercial motor vehicles as, for, or on behalf of motor carriers.” During the time relevant to the instant case, 49 C.F.R. § 391.41(a)(1)(i) mandated that “[a] person subject to this part must not operate a commercial motor vehicle unless he or she is medically certified as physically qualified to do so. . . .” Title 49 C.F.R. § 391.41(b)(6) specifies that a person is qualified to operate a commercial motor vehicle if he “[h]as no current clinical diagnosis of high blood pressure likely to interfere with his ability to operate a commercial motor vehicle safely ” A driver of commercial motor vehicles must obtain the aforementioned certification every two years. See 49 C.F.R. § 391.45(b)(1)(mandating that any driver who has not been medically examined and certified during the preceding 24 months must be medically examined and certified in accordance with § 391.43 of this subpart as physically qualified to operate a commercial motor vehicle).1/ CRST Trucking initially hired Mr. Williams approximately 15 years ago as a commercial truck driver. At that time, Mr. Williams was 75 or 76 years old. Mr. Williams regularly performed drives for CRST Trucking that exceeded 1,000 miles. On one occasion, he drove an 18-wheeler from Florida to California and back. According to Mr. Williams, CRST Trucking wrongfully terminated him in 2010 because he supposedly was unable to safely get in and out of his truck. After he passed the required medical examination, CRST Trucking rehired Mr. Williams in 2015 when he was 88 years old.2/ At some point thereafter, Mr. Williams’ employment with CRST Trucking ended again. Mr. Williams reapplied with CRST Trucking in 2017 when he was 90 years old. After he failed the 2017 examination because his blood pressure exceeded the allowable limit, CRST Trucking did not rehire him. Mr. Williams does not dispute that his blood pressure was high during the examination, but he attributes that to his failure to take his blood pressure medication beforehand. While Mr. Williams testified that CRST Trucking hired younger drivers, he presented no evidence that CRST Trucking hired younger drivers who failed to obtain the required certification. Mr. Williams was a very compelling and articulate witness and should be commended for his strong desire to continue being a productive member of society. Even though Mr. Williams failed to present a prima facie case of age discrimination, the undersigned is convinced that he is capable of performing meaningful work as an employee or a volunteer.
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 dismissing Howard B. Williams’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 26th day of February, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 26th day of February, 2019.
The Issue The issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner based on her race contrary to Section 760.10, Florida Statutes (2005).
Findings Of Fact Respondent is an employer as defined in Section 760.027, Florida Statutes (2005). Petitioner is an African-American female. At all times relevant here, Petitioner worked full-time as a floor technician (floor tech) at Respondent's nursing home facility. As a floor tech, Petitioner was responsible for dusting, mopping and buffing the floors. At all relevant times, Cheryl Johnson was Respondent's facility administrator. Ms. Johnson has held that position since December 2002. In May 2003, Petitioner asked Ms. Johnson if she could receive her paycheck early. Petitioner was aware that Ms. Johnson had given an early paycheck to a nurse. The record does not reveal the nurse's race. Ms. Johnson refused to give Petitioner the early paycheck. Ms. Johnson admitted that she had made a mistake in giving the nurse an early paycheck. Ms. Johnson stated that she would not violate Respondent's policy against early paychecks again. Petitioner filed a grievance, claiming that Ms. Johnson was not being fair. Sometime thereafter, Ms. Johnson gave an early paycheck to a dietary employee. The dietary employee was an African- American. With regard to early paychecks, there is no evidence that Ms. Johnson ever gave preferential treatment to employees who were not members of a protected group. In October 2003, Sue Goldfarb was Petitioner's supervisor. Ms. Goldfarb criticized Petitioner because Petitioner was spending too much time in the Activities Room. Petitioner complained to Ms. Johnson and filed two grievances, claiming that she was being treated unfairly. According to Petitioner, Ms. Goldfarb and a medical records clerk, Pam Brock, did not get into trouble for spending time in the Activities Room. Ms. Johnson explained that Petitioner could assist in the Activities Room, but only after she completed her floor tech duties. There is no evidence that Respondent ever allowed employees to assist in the Activities Room before they completed their regularly assigned duties. Petitioner did not suffer any adverse consequences as a result of Ms. Goldfarb's criticism. At some point in time, Respondent informed all housekeepers, including Petitioner, that their hours were being cut from seven-and-a-half hours per day to six-and-a-half hours per day. Respondent also informed the housekeepers that they would not be eligible for overtime hours. Respondent took these actions because the facility's "census" (number of residents) was low. In February 2004, Ms. Johnson decided to redecorate the Activity Room as a special weekend project. Ms. Johnson requested Gary Brock, Pam Brock's husband and a maintenance man for the facility, to work over the weekend to complete project. Ms. Johnson also requested Ms. Brock to assist with the project because Ms. Brock recently had been short on hours. Thereafter, Petitioner impermissibly reviewed a document on a supervisor's desk. The document indicated that Ms. Brock, the medical records clerk, received three hours of overtime on the weekend of the special project. Petitioner copied the document and returned the original to the supervisor's desk. Petitioner admitted during the hearing that she was not supposed to be looking at documents on the supervisor's desk. In February 2004, Petitioner filed a grievance, complaining that Ms. Brock had received overtime. Petitioner thought it was unfair for Ms. Brock, a medical records clerk, to receive overtime hours, while the housekeepers had their hours reduced. There is no evidence that Petitioner was treated any differently than any other housekeeper. At some point in time, Petitioner complained to Ms. Johnson and filed a grievance that Ms. Goldfarb was not doing her job. After receiving Petitioner's complaint, Ms. Johnson decided to obtain a statement from each housekeeper as to whether they had any concerns regarding Ms. Goldfarb. In March 2004, Ms. Johnson temporarily held all of the housekeepers' paychecks. She requested the housekeepers to visit her office, render their opinions about the housekeeping supervisor, and collect their checks. Petitioner, like all of the housekeepers had to visit Ms. Johnson's office to pick up her paycheck. While she was there, Petitioner signed a statement, indicating that Ms. Goldfarb did not treat her fairly. Subsequently, Petitioner filed a grievance, complaining, in part, because Ms. Johnson held the paychecks for the entire housekeeping department. There is no evidence that Petitioner was treated any differently than any other housekeeper. At the end of March 2004, Petitioner had a confrontation with a co-worker, Robert Goldfarb. Mr. Goldfarb was Sue Goldfarb's husband. The altercation occurred after Mr. Goldfarb walked across a wet floor that Petitioner had just mopped. Mr. Goldfarb had to walk across the wet floor to get to the restroom. Petitioner and Mr. Goldfarb cursed at each other and engaged in a shouting match. Petitioner filed a grievance about the incident. Respondent did not discipline Petitioner or Mr. Goldfarb for getting into the argument. Petitioner and Mr. Goldfarb have not had a similar exchange since the March 2004 incident. In September 2004, Petitioner and her supervisor, Ms. Goldfarb, engaged in an argument outside Ms. Johnson's office. Ms. Johnson suspended both employees for three days. After an investigation, Ms. Johnson reinstated Petitioner and Ms. Goldfarb and gave them back pay to make them whole. Since September 2004, Petitioner has received pay raises. She has not received any write-ups, reprimands, or any other type of discipline. She has not filed any grievances since September 2004. At the time of the hearing, Ms. Goldfarb was still Petitioner's supervisor. Petitioner was serving as Respondent's Chairperson of the Safety Committee, a position of special trust and responsibility.
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 October, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2005. COPIES FURNISHED: Dorina Smith 1160 East Mays Street Monticello, Florida 32344 Alvin J. Taylor Delta Health Group 2 North Palafox Street Pensacola, Florida 32502 Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue Suite 225 Tampa, Florida 33606 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
