The Issue The issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner based on his 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). Prior to July 1, 2005, Respondent operated the following rehabilitation programs: (a) Tallahassee-Leon County Human Services (TLC) serving outpatient adults in downtown Tallahassee, Florida; (b) a residential program for women and their children known as Sisters in Sobriety (SIS), which is located on Respondent's campus in Woodville, Florida; (c) a foster care program for teenage girls that Respondent houses in the St. Mark's Cottage, which is located on Respondent's campus in Woodville, Florida; (d) a foster care program for teenage boys that Respondent houses in the St. Mark's Lodge, which is located on Respondent's campus in Woodville, Florida; and (e) residential rehabilitation programs, which were located on Respondent's campus in Greenville, Florida. Sometime in July 2005, Respondent sold its Greenville Campus to another corporation. Petitioner is an African-American male. At all times relevant here, Petitioner worked full-time as the Director of Operations at Respondent's Woodville Campus. On August 19, 2002, Petitioner acknowledged receipt of Respondent's Equal Employment Opportunity/Anti-harassment Policy Statement, which states as follows in relevant part: Any employee who believes that she/her has been harassed or discriminated against in violation of this policy should report the problem immediately to the Director of Human Resources. Respondent's Human Resources Policies and Procedures manual states as follows in relevant part: Statement of Affirmative Action It is the policy of DISC Village, Inc., to provide equal opportunity for employment, training, promotion, compensation and all conditions of employment for individuals without regard to race, color, religion, sex, national origin, age except as provided by law, prior history of emotional, mental, drug or alcohol disability or physical disability. DISC Village will maintain a specific program to maintain and promote non-discrimination in accordance with the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990. Any perceived act of discrimination should be reported to the site director and the Human Resources Director . . . immediately. Anti-Harassment Policy DISC Village, Inc. is committed to maintaining a work environment that is free of unlawful harassment and will not tolerate any form of harassment or unlawful discrimination against our employees by anyone. Employees must report any form of harassment, especially sexual, to their direct supervisor and the Human Resources Director . . . as soon as possible. Upon hire, all new employees will receive a copy of the agency Anti-Harassment Policy & Procedure with signoff. At all times relevant here, Qua' Keita Anderson, an African-American female, was a counselor at Respondent's Woodville Campus. Ms. Qua' Keita Anderson worked in the SIS program. Ms. Qua' Keita Anderson's direct supervisor was Joni Morris-Anderson, Respondent's Director of Women's Residential Services on the Woodville Campus. At all times relevant here, Lisa Bergeron worked for Respondent as Program Supervisor of DISC Adolescent Treatment Center on the Woodville Campus. Prior to July 1, 2005, Harry Rohr, a white male, was the Director of Residential Services at Respondent's Greenville Campus and Woodville Campus. Mr. Rohr was Petitioner's direct supervisor, even though Mr. Rohr spent most of his time at the Greenville Campus prior to July 2005. Petitioner was in charge of the Woodville Campus when Mr. Rohr was not available. After July 1, 2005, Mr. Rohr spent most of his time at Respondent's Woodville Campus. Mr. Rohr made this change because Respondent no longer operated programs on the Greenville Campus. The sale of the Greenville Campus did not cause a change in title or job responsibilities for Petitioner or Mr. Rohr. At all times relevant here, Tom Olk, a white male, was Respondent's Chief Executive Officer. Mr. Olk's office is located in Respondent's administrative facility in Tallahassee, Florida. However, Mr. Olk frequently makes on-site visits to Respondent's Woodville Campus. At all times material here, Lou Logan was Respondent's Deputy Director and head of Respondent's Human Resource Department. Mr. Logan is a white male. Mr. Logan's office is located in Respondent's administrative facility in Tallahassee, Florida. In March 2004, Respondent was in the process of opening the foster care program on the Woodville Campus. Several staff members, including Petitioner, participated in refurbishing an old home as a residence for the foster children. Respondent's staff was hanging curtains when Mr. Logan paid an impromptu visit to the old home. The curtains were printed with African animals, including monkeys. When Mr. Logan stated how nice the curtains looked, a staff member made some comment about the monkeys in the curtains. Another staff member commented about Petitioner having a big role in the decorating project. Mr. Logan then stated, "Oh, Lester is always monkeying around." Mr. Logan made the statement in the spirit of the moment to show how happy he was that the staff was doing such a good job. Petitioner complained to Mr. Olk that Mr. Logan had called him a monkey. Mr. Olk discussed the incident with Mr. Logan and Petitioner, concluding that Mr. Logan had not called Petitioner a monkey. Mr. Olk properly determined that Mr. Logan never intended to make a racially derogatory comment about Petitioner and that Petitioner had taken Mr. Logan's statement out of context. In early June 2005, Petitioner called Ms. Qua' Keita Anderson at home on her day off to discuss some performance issues she was having at work. The conversation took an inappropriate turn when Petitioner asked Ms. Qua' Keita Anderson if she had a "sexual stress reliever." On August 3, 2005, Petitioner picked up a female teenage resident of St. Mark's Cottage from Respondent's offices in Tallahassee, Florida. Petitioner transported the female youth, alone and unsupervised, in his personal vehicle to look for a job. In so doing, Petitioner violated Respondent's policy relative to the transportation of residents and/or patients of the opposite gender. On August 3, 2005, Harry Rohr and Lisa Bergeron observed the same young female client leaning over Petitioner's shoulder at his computer desk in very close proximity to Petitioner's body. Petitioner did not maintain appropriate physical boundaries with the young girl. On August 3, 2005, Mr. Rohr spoke to Petitioner about his violation of the transportation rules and his failure to maintain appropriate physical boundaries with the female client. Mr. Rohr then wrote a memorandum to memorialize the conversation. In the memorandum, Mr. Rohr advised Petitioner to refrain from being alone with any of the teenagers and to concentrate his efforts on the boys of St. Mark's Lodge. Shortly thereafter, Respondent approved Ms. Qua' Keita Anderson's request for a transfer from the Woodville Campus to the TLC Campus. Ms. Qua' Keita Anderson wanted to work in downtown Tallahassee, Florida, because she was beginning graduate school and needed a smaller, less stressful caseload. On one occasion, Petitioner and Ms. Qua' Keita Anderson had lunch together at a picnic table on the Woodville Campus. On another occasion, Petitioner ordered take-out meals for Ms. Qua' Keita Anderson and himself. Ms. Qua' Keita Anderson paid Petitioner for her meal when she picked it up in Petitioner's office. There is no persuasive evidence that Petitioner ever paid for Ms. Qua' Keita Anderson's lunch, on or off the Woodville Campus. Upon realizing that Ms. Qua' Keita Anderson's last day at the Woodville Campus was approaching, Petitioner telephoned her at home. During the conversation, Petitioner told Ms. Qua' Keita Anderson that she "owed him something" before she transferred. Ms. Qua' Keita Anderson replied that she did not owe Petitioner anything. Petitioner then asked Ms. Qua' Keita Anderson to have lunch with him before her last day at work on the Woodville Campus. Ms. Qua' Keita Anderson did not agree to have lunch with Petitioner. Petitioner telephoned Ms. Qua' Keita Anderson one additional time at work. During the call, Petitioner again asked when Ms. Qua' Keita Anderson was going to have lunch with him. Ms. Qua' Keita Anderson advised Petitioner that she was uncomfortable having a personal lunch outside of the office. Once again she refused Petitioner's invitation. On August 8, 2005, Ms. Qua' Keita Anderson complained to her supervisor, Ms. Joni Morris-Anderson. Ms. Qua' Keita Anderson and Ms. Joni Morris-Anderson are unrelated. Ms. Qua' Keita Anderson complained about Petitioner's inappropriate sexual remark, his telephone calls to her home, his insinuation that she "owed him something" before she transferred, and his insistence that she have lunch with him. Ms. Qua' Keita Anderson repeated her complaint in the presence of Ms. Bergeron, who advised Ms Morris-Anderson to report the incidents to Mr. Rohr. Ms. Qua' Keita Anderson prepared a written statement and submitted it to Mr. Rohr. The statement reflected her "concern" about Petitioner's behavior, which made her feel uncomfortable and harassed. On August 8, 2005, Mr. Olk visited the Woodville Campus. During that visit, Mr. Olk and Mr. Rohr met with Petitioner to discuss Ms. Qua' Keita Anderson's sexual harassment complaint. The meeting also included a discussion involving Petitioner's unsupervised transportation of a female resident and his failure to maintain appropriate physical boundaries with the same female resident. Mr. Olk explained to Petitioner that Ms. Qua' Keita Anderson's complaint raised serious issues, which required an investigation. Mr. Olk advised Petitioner that if he did not participate in the investigation, he could resign or be terminated. In regard to Ms. Qua' Keita Anderson's allegations, Petitioner stated that "it didn't happen that way." He did not make any other statement except to say that “he needed time to think." Mr. Olk had another scheduled meeting on the Woodville Campus. Mr. Olk asked Petitioner to read Ms. Qua' Keita Anderson's complaint and to discuss it with Mr. Olk upon his return from the other meeting. Petitioner then asked Mr. Rohr if he could have the rest of the day off. Mr. Rohr denied this request because Mr. Olk wanted to continue his discussion with Petitioner and because Mr. Rohr wanted Petitioner to begin the cross-training of Jonetta Chukes. Ms. Chukes is a white female. Prior to July 1, 2005, Ms. Chukes worked in Respondent's office in Tallahassee, Florida, as a Medicaid specialist. Until the Greenville Campus was sold, Ms. Chukes also provided some paperwork services for the programs on the Greenville Campus. Sometime in July 2005, Respondent decided to let Ms. Chukes work part-time in the administrative office in Tallahassee, Florida, and part-time too as a secretary on the Woodville Campus. Additionally, Respondent wanted Ms. Chukes to cross-train in the following areas: (a) the client intake process, formerly exclusively performed by Petitioner; (b) the billing process, formerly exclusively performed by another secretary on the Woodville Campus; and (c) the workforce application process. Cross-training is important to Respondent to ensure that its programs function smoothly when any particular person is not at work. Ms. Chukes did not immediately begin working part-time on the Woodville Campus after Respondent made the decision about her new responsibilities. Ms. Chukes happened to begin that transition on August 8, 2005. When Mr. Olk and Mr. Rohr returned from the other meeting, they intended to finish their conversation with Petitioner. However, they could not locate Petitioner. They soon learned that Petitioner had turned in his keys and employer-provided cell phone, submitted a written letter of resignation, and left the campus. Petitioner never informed anyone that he believed Mr. Rohr was discriminating against him. Mr. Olk was very disappointed that Petitioner did not stay on the premises to complete their discussion. Mr. Olk believed Petitioner was a valuable employee with potential for career advancement. Mr. Olk encouraged Petitioner to pursue his undergraduate degree, which is a requirement for upper management. Respondent reimbursed Petitioner for his tuition at Tallahassee Community College. Respondent does not normally pay for its employees to attend college. In this respect, Petitioner was treated more favorably than his Caucasian counterparts.
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 July day of 20th, 2006, 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 20th day of July, 2006. COPIES FURNISHED: 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 Lester Levon Hall 3871 Gaffney Loop Tallahassee, Florida 32305 Amy Reisinger Harrison, Esquire Lindsay A. Connor, Esquire Ford and Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact The Petitioner began his employment with the Respondent on or about April 9, 2004. The Petitioner worked as a houseman. This job description was within the Respondent's housekeeping section. His original schedule required him to work a shift that ran from 6:00 a.m. until 2:00 p.m. In October or November of 2004, the Petitioner's work schedule changed and he was directed to work the overnight shift. The overnight shift personnel reported for duty from 11:00 p.m. until 7:30 a.m. The Petitioner accepted this re-assignment. The change in shift assignment was requested by Elizabeth Cortes' predecessor. Some time after December 2004, the Petitioner's supervising manager changed and Elizabeth Cortes became the director or manager for housekeeping. The Petitioner asked Ms. Cortes if he could return to the 6:00 a.m. to 2:00 p.m. shift. That request was not approved. The Petitioner accepted this decision and continued to work as scheduled. Ms. Cortes told the Petitioner at that time that she did not have another employee who would be available to take the night shift. In 2007 the Petitioner enrolled in school and requested that his shift be changed to a 9:00 p.m. to 5:00 a.m. shift so that he could attend school at Miami Dade. That request was approved. From the time of approval, the Petitioner was permitted to work three days from 9:00 p.m. to 5:00 a.m. (his school days) and two days from 11:00 p.m. to 7:30 a.m. The modification of the schedule allowed the Petitioner sufficient time to get to school in the morning. The Petitioner continued to work these shift times without complaint or issue. In November or December of 2006, the Petitioner made an application to become a banquet server for the Respondent's restaurant. He alleged that he gave the application to Elizabeth Cortes who was to sign it and forward it to Human Resources. According to Esther Sandino, the Petitioner did not file an application for restaurant server. Further, Ms. Cortes did not recall the matter. The Petitioner did not file a claim of discrimination for this alleged incident but presumably alleged that this incident demonstrates an on-going disparate treatment. There was no evidence that a non- Haitian was hired for the job as banquet server. There was no evidence any banquet servers were hired. Ms. Cortes did not hire banquet servers. Her responsibilities were directed at housekeeping. During the time Ms. Cortes was the housekeeping supervisor, the Respondent employed approximately 90 employees within the housekeeping section. Of those employees approximately 70 were Haitian. The remainder were Hispanic, Jamaican, Filipino, and other. Of the five persons who held supervisory positions, one was Haitian, two were Hispanic, one was from Czechoslovakia, and the country of origin of the fifth supervisor was unknown to Ms. Cortes. Ms. Cortes did not have the authority to terminate the Respondent's employees. Standard procedure would cause any allegation of improper conduct to be referred to the Human Resources office for follow up and investigation. There were two incidents referred for investigation regarding the Petitioner prior to the incident of April 22, 2007. Neither of them resulted in suspension or termination of the Petitioner's employment with the Respondent. On April 22, 2007, a security officer reported to the hotel manager on duty, Bingina Lopez, that the Petitioner was discovered sleeping during his work shift. Based upon that report, Ms. Lopez sent an e-mail to the housekeeping department to alert them to the allegation. When the Petitioner next reported for work, Mr. Saldana told the Petitioner to leave the property and to report to the Human Resources office the next day to respond to the allegation. The Petitioner did not report as directed and did not return to the property. Mr. Saldana did not have the authority to suspend or terminate the Petitioner's employment. Moreover, the Respondent did not send a letter of suspension or termination to the Petitioner. In fact, the Respondent assumed that the Petitioner had abandoned his position with the company. Ms. Cortes presumed the Petitioner abandoned his position because all of his uniforms were returned to the company. To avoid having the final paycheck docked, the Respondent required that all uniforms issued to an employee be returned upon separation from employment. The Petitioner acknowledged that he had his brother return the uniforms to the Respondent for him. The Respondent considered turning in uniforms to be an automatic resignation of employment. To fill the Petitioner's position (to meet housekeeping needs), the Respondent contacted an agency that provides temporary staffing. The person who came from the agency for the assignment was a male Hispanic. The male (who may have been named Lewis Diaz) arrived at the Trump Resort for work about ten days after the Petitioner left. The replacement employee's schedule was from 4:00 p.m. to midnight or 1:00 a.m. The temporary replacement remained with the Respondent until a permanent replacement for the Petitioner could be hired. It is unknown how long that was or who the eventual permanent employee turned out to be. Because the Petitioner never returned to the Trump Resort as directed, he was not disciplined for any behavior that may have occurred on April 22, 2007. The Petitioner's Employee Return Uniform Receipt was dated April 25, 2007. Prior to the incident alleged for April 22, 2007, the Petitioner had been investigated in connection with two other serious charges. Neither of those incidents resulted in discipline against the Petitioner. Both of the incidents claimed improper conduct that was arguably more serious than the allegation of April 22, 2007. Of the 400 plus employees at the Respondent's resort, the majority are Haitians. The Respondent employs persons from 54 different countries. The Petitioner's claim that he was referred to as a "fucking Haitian" by a security guard has not been deemed credible. The Petitioner was unable to indicate when the comment was made. Moreover, the Petitioner did not complain to anyone at the time the comment was allegedly made. Finally, no other employee could corroborate that the comment was made. One former employee testified that the Petitioner told him about the alleged comment. At best it was one offensive statement made on one occasion. There is no evidence that the Petitioner was treated in a disparate or improper manner based upon his national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 27th day of February, 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 27th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Warren Jay Stamm, Esquire Trump International Beach Resort 18001 Collins Avenue, 31st Floor Sunny Isles, Florida 33160 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did Respondent, Winn-Dixie Corporation (Winn-Dixie), discriminate against Petitioners on account of their race or sex, or retaliate against Petitioners in violation of chapter 760, Florida Statutes?
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Petitioners, Reginald Burden (Burden) and Donald Rockhold (Rockhold) were co-workers and Warehouse Supervisors for the night shift at Winn-Dixie's General Merchandise Distribution (GMD) facility on Edgewood Avenue in Jacksonville, Florida. At the time of their termination from Winn-Dixie, Rockhold had worked for Winn-Dixie for almost ten years and Burden for fourteen years. In March 2009, Rockhold's supervisor, Mark Murray (Murray) received an anonymous letter accusing Rockhold (a/k/a Rocco) of being unable to control his libido and attempting to "sleep with as many women under him as possible, married or single." Murray showed the letter to his immediate supervisor, Operations Manager Jayson Kielar (Kielar), who in turn showed it to his supervisor, Distribution Center Manager Robert Stewart (Stewart). Contrary to Winn-Dixie policy, the existence of the letter accusing an employee of sexual harassment was not immediately brought to the attention of the Winn-Dixie Human Resources (HR) office. According to Kielar, Stewart did not inform HR because he was afraid someone would be fired. Instead, it was decided the matter would be handled internally at the GMD. Stewart and Kielar informally questioned Rockhold, who denied all of the allegations in the letter. Kielar questioned Stewart's decision not to involve HR, but because Stewart was his boss, he capitulated. In December 2009, Winn-Dixie received a second, similar anonymous letter complaining about rampant sexual harassment in the GMD. This time, however, Peter Lynch, Winn-Dixie's CEO also received a copy. Entitled "Gross Abuse of Power Winn-Dixie Sex Camp," the letter contained lurid accusations of sexual misconduct and named Rockhold as the worst abuser. The letter also accused several other male supervisors, namely Burden (a/k/a Regis or Reggie), Kielar, Murray and Raynell Turner, of sexually harassing female employees. Winn-Dixie immediately launched an investigation to determine whether the allegations were accurate. Robert Scott (an African-American male), Tanya Kornegay (an African-American female), and Stacy Brink (a white female) interviewed numerous GMD employees and obtained written witness statements. Rockhold was interviewed twice (January 18 and 25, 2010) and Burden once (January 18, 2010). During the course of the investigation, it became evident that many of the more sordid accusations of overt sexual misconduct in the letters were false or unsubstantiated. However, the investigation did reveal violations by Petitioners of Winn-Dixie's "Written Company Policy Statement on Harassment, Including Sexual and Racial Harassment." That Statement provides in relevant part: The company will not tolerate any harassment that degrades or shows hostility towards an individual because of race, color religion, sex, national origin, age or disability, including, but not limited to slurs, jokes, verbal abuse, stereotyping, threats, intimidation, hostile acts, or denigrating or hostile written or graphic material circulated or posted in the Company premises. Anyone who violates these guidelines will be subject to termination. * * * 3. Management at all levels is responsible for reporting and taking corrective action to prevent harassment in the work place. * * * The following conduct, especially by managers, can be as serious (or even more serious) than harassment itself: Ignoring or concealing harassment, or treating it as a joke. Failing to report known harassment. Retaliating against associates reporting or complaining of harassment. Being dishonest or refusing to cooperate with a harassment investigation. With respect to Rockhold, the investigation revealed that Rockhold had heard racial slurs and racially inappropriate remarks among employees but failed to take any disciplinary action or report the harassment to HR. One employee complained that Rockhold observed African-American and white employees using the words "nigger" and "cracker" in the workplace. In addition, another employee complained that Rockhold ignored a co-worker saying, "If you come back in Middleburg, we'll show you how we used to do them black boys back in the days." At hearing, Rockhold acknowledged that he heard GMD employees calling each other "nigger" or "cracker." He stated that he "called them out on it." He explained his failure to take any formal disciplinary action by stating, "It wasn't malicious. It was the n-word between black guys being thrown back and forth as a nickname." According to Rockhold, he didn't think it was inflammatory in that context and was merely their vernacular. The investigation also revealed allegations from several employees that Burden made inappropriate sexual comments toward female employees. These included witness statements from John Mason, Tammy Underwood, Amber Brown and Frank Butler. Burden was reported as saying one female employee had "big titties," and telling another female employee that she looked good in her jeans, that Burden could "handle" her, and when was she going to let him be the one for her, and that she didn't need to mess with the young guys because he (Burden) could please her better in the bedroom. One GMD employee testified at hearing that he was present when Burden told a group of employees that he thought a particular female employee had "nice tits." Petitioners knew Winn-Dixie did not tolerate sexual or racial harassment in the workplace, and they were tasked with making sure the environment was not one where employees felt it would be tolerated. Both Petitioners received sexual and racial harassment training as part of their leadership training. Winn-Dixie's employment policies emphasize the importance of supervisors' roles as leaders and the importance of not giving the impression to employees that it is acceptable to make inappropriate jokes in the workplace. Moreover, a supervisor has a duty to act when observing harassing behavior in the workplace. The failure to act communicates to subordinates the company condones or tolerates the behavior. As a result of the investigation, Winn-Dixie decided to terminate Petitioners' employment. Several members of Winn- Dixie's management (male, female, white and African-American) were involved in making this decision. One of those involved in making the decision testified that the group never discussed or considered Petitioners' gender in their decision to terminate Petitioners' employment. The termination notices given to Petitioners are identical, and read as follows: "As the result of an anonymous letter received in early January 2010, addressed to Peter Lynch, a thorough investigation was conducted relative to alleged allegations of inappropriate comments by Associates regarding sexual and racial comments in the presence of management in the Jax-GMD Warehouse. The investigation clearly identifies you as a willing participant or lack of effective execution of the proper protocol established through management training (Duty to Act) to address inappropriate comments from Associates as required by Winn-Dixie's Policy in your Supervisor position." At hearing, Rockhold described his job as "being his life, other than his children." He also testified that being falsely accused of sexual misconduct or ignoring employees who engaged in sexual or racial misconduct, then being fired, ruined his life. He "poured his heart and soul into the company" and testified that no one had ever come to him, as a supervisor, with any kind of a problem with regard to sexual or racial misconduct. Burden testified that he believed that Robert Scott (African-American male) was the one that made the decision to terminate him, not Jayson Kielar (white male) since Kielar had written a letter of recommendation for Burden after he was terminated. Burden testified that he believed he was terminated because he was a man accused of sexual harassment and that somebody had to take the responsibility for the false allegations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petitions for Relief from an Unlawful Employment Practice filed against Respondent. DONE AND ENTERED this 17th day of June, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 17th day of June, 2013.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this discrimination case, Petitioner, Ausbon Brown, Jr. (Petitioner), who is an African-American male born on April 25, 1943, contends that Respondent, Department of Health (Department), unlawfully refused to hire him for any one of four positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends instead that Petitioner did not meet all of the qualifications for the positions, and that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took almost 21 months to complete, the Commission issued a Determination: No Cause on August 18, 1999. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. According to Petitioner's job applications received in evidence, as supplemented by testimony at hearing, from June 1965 until April 1994 Petitioner worked for the U. S. Department of Commerce, National Marine Fisheries Service, in various positions, including "survey statistician," "operations research analyst," "chief turtle headstart," "fisheries technician/biologist," and "Equal Employment Opportunity Counselor." Petitioner then retired from federal service. From July 28, 1995, until July 6, 1998, he was employed as a child support enforcement case analyst with the Florida Department of Revenue. Currently, he is employed by Daytona Beach Community College in an undisclosed capacity. In 1996, Petitioner filed a number of job applications with the former Department of Health and Rehabilitative Services (HRS). Shortly after the applications were filed, HRS was abolished and many of its functions were transferred by the Legislature to at least three other agencies, including the Department, the Department of Children and Family Services (DCFS), and the Agency for Health Care Administration. Four positions that followed the Department are in issue here, and they include positions 66224, 29618, 67370, and 80690. Position 29618 has a long and somewhat confusing history and was originally created for the Volusia County Health Department (Health Department) in January 1994. It was first filled in March 1994, but was vacated in June 1996. The position was then transferred to HRS and reclassified as an Operations and Management Consultant II. Even though it was advertised as a "pending" position in November 1996, Petitioner responded to that advertisement and filed a job application with HRS. Since it was a pending position, it was never filled and was "restructured" a month later to a Personnel Services Specialist. After the HRS reorganization became effective in late 1996 or early 1997, position 29618 was transferred to the Department where it was reclassified Personnel Officer I. The Department advertised the position in March or April 1997, and it was filled in April 1997 through a voluntary demotion taken by a DCFS employee whose prior position as a Senior Personnel Manager was lost through the reorganization. That individual was given priority in filling the position since the Legislature mandated that existing employees who lost their jobs through reorganization be given priority in filling other state jobs. Petitioner did not file an application for the position after it was advertised by the Department, and thus no consideration need be given to allegations pertaining to this job. Further, there is no evidence that the position was reclassified or transferred between the agencies on three occasions for the purpose of allowing it to be filled by a DCFS employee rather than by Petitioner. Position 67370 was classified as a data base analyst coordinator and was transferred from DCFS to the Health Department on an undisclosed date. When the job was advertised by the Health Department only five persons applied for the position, including Petitioner and Shirley Wilson (Wilson), the successful applicant whose race and exact age is unknown. Based on her dates of education, however, she is likely to be younger than Petitioner. In addition to the minimum qualifications, the Health Department desired a person with experience in Microsoft applications used by the Department, system security, supervision of employees in the automation field, and the data base itself. Because Wilson had experience in all of the above areas, was currently employed as a data base analyst/coordinator (system administrator) for the DCFS, and was "recognized statewide for her excellence within the CHD system," she received the highest score and was chosen for the position. Conversely, Petitioner could not match Wilson's direct experience in these fields and therefore did not have the qualifications possessed by the successful applicant. The evidence shows that the most qualified person was chosen. Contrary to a suggestion by Petitioner, the competitively-advertised position was not filled through the promotion of an existing employee, which would be contrary to personnel rules, but rather it was filled through the reassignment of another employee (Wilson). Position 80690, an Inspector Specialist, was located within the Department's Office of Inspector General. Over 130 persons filed applications, and score sheets were prepared for each candidate based on the applicant's education, experience in certain prescribed areas, written and verbal communication skills, and computer skills. Petitioner received an overall score of 136, while the successful candidate, Robert D. Cotton (Cotton), a white male three years younger than Petitioner, received 326 points. Although Petitioner received one of the highest point totals for education (84), he received only 21 points for his experience since his investigative experience was in the scientific area rather than in the areas unique to the Office of Inspector General. Thus, Petitioner's contention in his post- hearing filing that he should have been assigned 300 points for professional investigative experience (rather than 21) has not been accepted. In contrast, Cotton had extensive supervisory experience and prior work experience, including four years as the director of the office which processes and investigates licensee complaints for the Department of Business and Professional Regulation. Thus, Cotton was the most qualified person for the job. Petitioner also applied for position 66224, an Environmental Specialist with the Health Department. Forty-three persons filed applications, but only the nine who received more than 40 points were chosen for an interview. Petitioner was not in this group since he received only 26 points, for a ranking of twentieth on the overall list. A three-person evaluation committee initially reviewed the applications and assigned points on the basis of interview selection criteria. The successful applicant, Lawrence Pagel (Pagel), a white male whose exact age is unknown, received 51 points. Based on his dates of education, however, it is likely that Pagel is younger than Petitioner. Before accepting the job, Pagel had served as an Environmental Health Specialist for the Columbia County Health Department, and he had both a bachelor and master's degree in public health. The greater weight of evidence supports a finding that the most qualified person was selected for the job. While the Petition for Relief alleges that the Department "classified positions" and varied "conditions of employment" in an effort not to hire Petitioner, there was no credible evidence to support this claim, or that the Department's actions were a pretext for discrimination. Indeed, there is no evidence from which to even draw an inference that the employment decisions were grounded on discriminatory animus in any respect, or that the Department acted with discriminatory intent when it hired the successful applicants and rejected Petitioner. During cross-examination of Respondent's witnesses and his own rebuttal testimony, Petitioner suggested that employees within an agency have an inherent advantage over outsiders, such as he, since they can more easily obtain the specific job experience required for vacant positions. Even if this is true, however, it does not constitute a discriminatory act on the part of the Department within the meaning of Chapter 760, Florida Statutes. Petitioner also contended that his applications were not properly scored and that he should have been entitled to more points based on his work experience; the more persuasive evidence belies this contention.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief DONE AND ENTERED this 10th day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Steven W. Foxwell, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether respondent discriminated against petitioner on account of his age in terminating his employment, in violation of the Florida Human Relations Act, Section 760.10 et seq., Florida Statutes (1989)?
Findings Of Fact On July 3, 1989, when he was fired, Neal C. Currow, who was born on January 20, 1927, was by far the oldest employee (T.180) at the Panama City Marine Institute, (PCMI) a non-profit corporation that contracts with the Bay County School Board to provide alternative education programs; and with co- respondent Associated Marine Institutes, Inc. (AMI) to rehabilitate juvenile delinquents or furnish other services for young people. AMI "consists of" (T.225) or "operates" (T.226) 28 schools or institutes like PCMI, of which 13 are in Florida. AMI contracts with the Department of Health and Rehabilitative Services (HRS) to provide services, then subcontracts with its constituent schools. AMI has "central bookkeeping . . . all the payroll is done in Tampa." T.228. But AMI does not maintain complete personnel files on each employee centrally. A "40 year Water Safety Instructor Trainer with the American Red Cross," (T.181) Mr. Currow also holds a "100 ton Master's license for . . . Auxiliary Sail," id., issued by the U.S. Coast Guard. After 18 years as an independent building contractor, he became a junior college teacher and "started all of the building programs for the Gulf Coast [Junior] College." Id. Mr. Currow wears a hearing aid, but he still does aerobics five days a week. Before he went to work for PCMI as a paid employee on September 29, 1980, Mr. Currow had worked as a volunteer for approximately a year, donating money and the use of his motor home, as well as time. A "stable employee, he had all the knowledge . . . [and was] relied on for information . . . [about] how to do things." T.139. Other employees looked up to him and the children respected him more than most of the other teachers. Id. At PCMI, he suffered the gibes of Jack Ross, George M. "Mike" Larson, who was director of operations at the time, Mr. Larson's successor, with apparent good humor. In staff meetings, Messrs. Ross and Larson referred to him as "the old man" and "the old fossil." T.140-1. When Mr. Larson did "his hearing aid thing" (T.140), i.e., telling Mr. Currow to "turn it up Neal, or turn it down, Neal, or something referring to it . . . Jack would laugh." T.140. Danny Grizzard referred to Mr. Currow as "the old man" five or ten times a week, sometimes behind his back, and frequently asked questions like "Does Neal have his hearing aid turned up?" T.121. Danny Grizzard is "in his 40's" (5.12) and Jack Ross is "[m]aybe a couple of years younger." Id. As seamanship and vocational instructor at PCMI, Mr. Currow taught sailing and woodworking. T.30. He also had duties as a "Deep Sea Captain" (T.615) and "did all the training of the staff in aquatics." Id. He regularly took student teams to sailing regattas. Petitioner chaperoned "more student trips that anybody [else] in the institute. In fact, [he] taught about student trips at . . . staff conferences every year." T.172. On such trips and otherwise, PCMI students required supervision, an institute policy that was "stressed continually." T.221. The policy is that "[c]hildren should remain within the eyesight of the staff that they're assigned with," (T.17) but the policy was not always followed. T.105, 158. On overnight trips, official policy specified that the ratio of students to staff should not exceed 5 to 1. Petitioner's Exhibit No. 1, but compliance with this policy, too, was a sometimes thing. The Early Years As executive director of PCMI from March of 1983 to August of 1988, Larry Schmidt spoke to Mr. Currow about supervising children at least twice. Early on in this five-and-a-half-year period, on two occasions, students under petitioner's supervision reoprtedly misbehaved, both times at Etheridge Marina in Panama City. Once students smoked in the bathroom there and another time there "was a theft . . . [of] sodas or something," (T.221) or so Mr. Schmidt heard. Mike Larson, PCMI's Director of Operations for approximately a year ending in the middle of March 1989, testified that petitioner "would become insubordinate with me." T.214. He also testified: "[H]is students might be out on the dock and he would be in his classroom, okay, out of his supervision. There's other times, one case in memory, the students was in his classroom and he was next door at a business getting parts." T.213. (Of course, testimony that something "might be" cannot establish what in fact occurred.) Mr. Larson spoke to Mr. Currow about supervising the students on "several occasions." T.213. Jack K. Ross succeeded Mr. Schmidt as PCMI's Executive Director, approximately half way through Mr. Larson's tenure as operations director. Mr. Ross remembered an occasion in August of 1988 when Mr. Currow was in his classroom while "the kids were outside in the back yard without a staff member" (T.39) and another time when "there were kids out there on the dock . . . [and petitioner was in the seamanship] room getting fishing gear." T.39. On the latter occasion, Mr. Ross testified, he "walked into the seamanship room and I said, 'look Neal, you need to be with your kids', and he said, 'well, I can't be in two places at one time.' And I said, 'well then, you need to bring your kids with you in the class and do it as a group.' And at the staff meetings I reiterated the supervision on a couple of occasions." T.39. On at least one other occasion, Mr. Ross spoke to Mr. Currow individually about supervising children. Written Expectations Like Mr. Larson, Mr. Ross felt Mr. Currow was insubordinate at times. After Mr. Ross spoke to O.B. Standard, AMI's vice-president of operations, about petitioner, Mr. Standard visited PCMI, where he spoke further with Mr. Ross "worked with . . . [Mr. Larson] on his people skills" (T.51); and "had a nice conversation [with Mr. Currow] . . . for two or three hours . . . about supervision [and] everything else you could imagine." T.190. At Mr. Standard's suggestion, Mr. Ross then wrote Mr. Currow this memorandum, dated November 28, 1988: Neal, as a veteran staff member at PCMI, you are a vital part of a very elite team. Your commitment to PCMI and the kids over the past 10 years is of the finest standards. Your hard work and dedication has made you a legend within PCMI. As you are aware, there have been a few changes at PCMI over the previous months. As a professional, I am soliciting your help in supporting me with some of these often difficult changes. There comes a time in everyone's life when we have to stop and decide whether we can adapt and change, or whether we need to step down to reach a new personal challenge. Should you decide to remain with PCMI and continue using your expertise towards helping the troubled youth of Bay County, there are a few expectations I ask that you must consider. Below I have outlined what I expect from every member of the PCMI staff to continue to make PCMI a winning team. Supervision--a maximum of 7:1 ratio of students to staff member. You are to remain with the students you are assigned. Everything during the course of the day that you are involved with, should be done with every member of your class. Never separate the class and put yourself in a position where you cannot intervene with a situation. Negative comments--to display teamwork and integrity among the kids, we cannot expose ourselves as being negative around the students. Talking negative around the students about other staff members is not acceptable behavior. As a member of the PCMI team we are being observed the community 24 hours a day. When comments are made concerning the institute, they should always be made with PCMI's best interest at heart. Supporting the D.O.--The Director of Operations is the conductor of the orchestra. If he is not supported by the rest of the team, then the kids suffer. As the Executive Director I will not allow the kids to suffer. It is your responsibility to support the Operations Director if you are to remain a part of the team. Insubordination--insubordination is not accepting authority. As a captain you know that every member of your crew cannot give orders to control the boat. You expect every crew member to lend a hand and accept orders to ensure the success of the cruise. The same is true at PCMI. Insubordination is not acceptable at PCMI. These are the only changes I have made that I think you should re-evaluate. What I am talking about are values. Values are what we are trying to teach the kids. If we do not display them, then we are being hypocritical with the students. Neal, we need you at PCMI, and I sincerely hope you decide to personally accept these challenges and join the team again. Should you decide to continue with PCMI, and I hope you do, I and the rest of the PCMI team are willing to help you work on these problem areas. If this is asking too much, then I understand and I wish you the best of luck in the future. Respondent's Exhibit No. 3. Aside from this memorandum, no writing in respondent's personnel file made mention of any problems supervising students. T.50. Not long after the memorandum was written, PCMI sent Mr. Currow to Dallas with five or six students to pick up a sailboat. (T.193). Single Incident Next Year In years past staff and students alike had attended regattas on St. Andrew Bay as spectators when the PCMI team Mr. Currow coached participated. T.20. Again in 1989, the PCMI team won the regatta. But, when at least one instructor asked to take her students to watch, Danny Grizzard, who had taken over from Mr. Larson as operations director on March 6, 1989, had denied permission. Mr. Currow and seven PCMI students were together day and night during the regatta, which began on the last Monday in June and finished the following Thursday, June 29, 1989. At the banquet and awards ceremony with which the regatta concluded, Mr. Currow told Mr. Grizzard that "he and the kids were going out for ice cream with one of the other teams and that he was going to spend the night [with the students on a sailboat anchored] at the park." T.62. One of the young sailors in petitioner's charge that night, Shane Hernandez, lived on the same street as Fran, petitioner's "lady friend." At least as early as the banquet, there was talk of watching television at Shane's house. After the banquet and after ice cream, petitioner acquiesced, taking the students to Shane's house, where they found "the lights on . . . and the cars . . . there." T.171. While the others waited outside in the van, Shane went inside ostensibly to learn, as respondent had asked him to find out, if it would be "okay for [them] to watch TV." T.171. Shane reappeared saying it was "okay," and petitioner let the other students out of the van, saying he would be right back. Only later did Mr. Currow learn that neither Shane's parents nor any other adult had been at home when he left the children there. T.207. After dropping the students off at the Hernandezes', he drove "two doors down" "probably around 75 yards" (T.13) to his friend's house, parked and went inside. Before the awards banquet, Mr. Currow had gotten word that his mother was "in the hospital in Pensacola again, and . . . [had] a blood clot in her leg." T.170. Using Fran's telephone, he spoke to a hospital nurse in Pensacola. Fifteen or twenty minutes after dropping the children off, he started for the Hernandez home on foot. The students met him before he reached the house, asking for something to drink. Evidently Mr. Hernandez's girlfriend, who arrived at the Hernandez house shortly after the children did, (T.136) had nothing to offer. After Fran served the boys soft drinks, Mr. Currow drove them back to the sailboat where they all spent the night. Friday morning they returned to PCMI. Petitioner Discharged The next day Danny Grizzard telephoned Shane Hernandez. In response to his questions, Shane told him that the students had been unsupervised for 15 or 20 minutes. Immediately after talking to Shane, he telephoned Mr. Ross, and relayed the news. The next Monday, a day off for petitioner, Mr. Grizzard summoned him to PCMI's offices, where he and Jack Ross told him he no longer had a job. "Neal, you['ve] finally done it," (T.169) Mr. Ross said. Perplexed, Mr. Currow did not realize what he was talking about at first. Then he or Mr. Grizzard told him of the report that the children had been left unsupervised for 15 or 20 minutes, but nothing was said about his having sole supervision overnight of seven (rather than five or less) students, a ratio his supervisors had countenanced. Learning that Mr. Currow had resigned or been discharged, students prepared a petition which stated, in part: "We feel it is unfair that the most valued and loved instructor at PCMI be punished because he trusted us." Respondent's Exhibit No. 5. The petition was signed by 27 students, perhaps all of the students at PCMI. (Eric Hernandez, Shane's father, testified for petitioner at hearing.) Younger Men Hired The preceding Thursday (the day of the awards banquet), PCMI had hired Eddie Prevost, at the time 27 or 28 years old, to instruct in scuba diving and to do woodworking. "He did some vocational work, that was his background." T.34. Mr. Prevost, who, when hired, filled a newly created position, took over petitioner's duties as vocational instructor, after petitioner was discharged. The vacant slot created by petitioner's termination was filled by 25- year-old John Penland, who took over petitioner's duties as seamanship instructor. To the extent the place Mr. Currow had held in the organization was filled, younger men took his place. PCMI "had additional funding in July and . . . split the position into two positions . . .." T.74. PCMI "replaced [petitioner] with a vocational instructor and a seamanship instructor." Id. Some time after the discharge, PCMI proposed to petitioner that he continue training staff in aquatics on a contract basis, but petitioner turned down this offer to work two weeks a year for $75.00 a day. T.177. At no time after July 3, 1989, did AMI or PCMI offer petitioner any other employment. T.176. Nobody was hired to train staff in aquatics, as far as the evidence disclosed. Incident Was Pretext AMI and PCMI attach understandable importance to supervision of children for whom they are responsible. Yet, as far as the record shows, PCMI has never terminated any other employee for failure to supervise students. T.244. This is so even though it "was not unusual" (T.105) at PCMI for students to be out of sight of the instructors responsible for their supervision. T.158, 176. Sometimes as many as 14 students would be assigned clean-up out of doors (as punishment) and left without supervision, except for checks every 40 minutes or so. T. 106, 142. Certain staff members frequently permitted children to walk between the PCMI campus and the civic center unsupervised. These facts were known to some, probably all, supervisory personnel. Between November of 1988 and February 1, 1991, some of the 27 other schools that, together with PCMI, comprise AMI discharged a total of 43 employees citing problems supervising children. Respondent's Exhibit No. 7. The severity and frequency of such problems are not a matter of record, however, and nobody who had worked nearly as long as petitioner had was terminated for this reason. Id. Respondents showed that, of the 44 people discharged for student supervision problems during this period by all 28 schools, petitioner was the oldest: eight others were over 40 years old and four of them were also over 50. Respondent's Exhibit No. 7. The fact that Mr. Currow left the sailing team unsupervised for 15 or 20 minutes at the Hernandez house was not the real reason for his discharge, although, as petitioner himself conceded, Respondent's Exhibit No. 4, this lapse was a breach of institute policy for which discipline was appropriate. Messrs. Ross and Grizzard did not themselves view the incident as an adequate reason to discharge petitioner. Petitioner's dismissal was out of keeping with past practice at PCMI. His firing came as a genuine and understandable surprise to him and others, and was viewed by virtually everyone other than the decision-makers as an injustice. E.g., Respondent's Exhibit No. 5. The reaction to his discharge reflected how drastic the departure from ordinary practice was, and how implausible the reason assigned for the termination was.
Recommendation It is, accordingly recommended that the Florida Commission on Human Relations enter an order requiring respondents to reinstate petitioner (or make an appropriate award of front pay) and award back pay, attorney's fees and costs; and, in the event the parties cannot agree on the details of relief, that the Commission remand for further hearing as necessary. RECOMMENDED this 14th of October, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7301 With respect to petitioner's proposed findings of fact Nos. 1 and 2, Mr. Currow was a paid employee for less than nine years. Petitioner's proposed findings of fact Nos. 3, 4, 7, 9, 10, 11, 12, 13, 14, 15, 17, 18, 20, and 21 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 5 has been adopted, in substance, insofar as material, except for the date. With respect to petitioner's proposed findings of fact Nos. 6 and 8, somebody else was sent to help at one point. With respect to petitioner's proposed finding of fact No. 16, no such termination occurred after November of 1988, except for Mr. Currow's. With respect to petitioner's proposed finding of fact No. 19, the evidence did not show that the hearing impairment was age related. Respondent's proposed findings of fact Nos. 1, 2, 4, 9, 10, 11, 12, 13, 14, 15, 18, 24, 25, 26, 27, 28 and 30 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 3 and 33, numerous instances of students' going unsupervised were proven, including a 45-minute lapse by Mr. Grizzard. With respect to respondent's proposed findings of fact Nos. 5, 6, 7 and 8, nobody present at the time testified to these events. With respect to respondent's proposed finding of fact No. 16, the letter did not warn "that any further occurrence . . . would result in disciplinary action or termination." With respect to respondent's proposed finding of fact No. 17, it was not shown this was attributable to supervision as opposed to insubordination problems. Respondent's proposed findings of fact Nos. 19 through 23 pertain to subordinate matters. With respect to respondent's proposed finding of fact No. 29, petitioner was not offered work in a residential program. With respect to respondent's proposed finding of fact No. 31, Prevost was hired before July 3, 1989. With respect to respondent's proposed finding of fact No. 32, Penland assumed some of petitioner's duties. COPIES FURNISHED: Ronald M. McElrath, Executive Director Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1570 Rhonda S. Clyatt, Esquire P.O. Box 2492 Panama City, FL 32402 E. John Dinkel, III, Esquire Macfarlane, Ferguson, Allison & Kelly P.O. Box 1531 Tampa, FL 32601 Dana Baird, Esquire Harden King, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, 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 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 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 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
Findings Of Fact On October 1, 1978, Respondent initiated its Young Adult Conservation Corps program (YACC) at its Everglades Youth Camp. This facility is located in Palm Beach County on the J. W. Corbett Wildlife Management Area. It has traditionally served as a summer camp for children ages 8 through 14. The YACC was an experimental program funded by the Federal Government and was intended to train hard-core unemployed young people, ages 16 to 23. The enrollees in the program were required to live at the camp, which is located in a remote and isolated area. Petitioner was hired on a temporary basis to serve as a "houseparent." In this capacity, Petitioner was assigned responsibility for the enrollees conduct after the work day. He was to provide guidance during the evening hours and insure that enrollees observed the nightly curfew. Respondent received unconfirmed reports that Petitioner was fraternizing with a female enrollee and warned him that such conduct as unacceptable by letter dated December 7, 1978. Petitioner, who was single and about the same age as the enrollees, was not successful in maintaining the degree of enrollee discipline sought by Respondent. Because Petitioner's difficulty in maintaining the desired atmosphere resulted, in part, from his youth and marital status, Respondent determined that he should be replaced by an older, married couple. This was essentially a policy decision. However, Respondent had also decided to fire Petitioner because of his increasingly poor attitude toward his job and his inability to control the enrollees. By memorandum dated January 5, 1979, Respondent advised Petitioner that he was discharged based on the policy decision to fill houseparent positions with married couples. No reference was made to Respondent's performance in this memorandum.
Recommendation From the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding Respondent not guilty of an unlawful employment practice as charged in these proceedings. DONE AND ENTERED this 28th day of June, 1983, at Tallahassee, Florida. R. T. CARPENTER, 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 28th day of June, 1983. COPIES FURNISHED: Scott William Katz, Esquire 3959 Lake Worth Road Lake Worth, Florida 33461 G. Kenneth Gilleland, Esquire 620 South Meridian Street Tallahassee, Florida 32301 Colonel Robert M. Brantly Executive Director Game and Fresh Water Fish Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32301 Richard Williams, Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue Whether Respondent, City of Apopka, Florida, was guilty of an unlawful employment practice against Petitioner, Scott A. Roberts, according to the Florida Civil Rights Act of 1992, as amended, based on his "disability"; and whether or not he received "disparate treatment."
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is a 47-year-old Caucasian male, who, in November 2004, retired from Respondent's Fire Department as a engineer-paramedic as being permanently and totally disabled. Respondent is a municipality in Orange County, Florida. After Petitioner suffered a job-related injury that resulted in an anterior disc excision and fusion, C5-C6 and C6-C7, he elected to pursue disability retirement. In furtherance of his claim of total disability, he was examined by three physicians, Drs. Portnoy, Rojas, and Goll. Drs. Portnoy and Rojas determined that Petitioner had medical limitations that disqualified him from employment as a firefighter. Dr. Goll, prior to Petitioner's decision to proceed with a disability pension, had opined that he was fit for duty without limitations. Dr. Goll had the same opinion in January 2009. In 2009, Petitioner sought re-employment with Respondent. Incidental to his effort to be re-employed, he had an additional examination by Dr. Portnoy. Dr. Portnoy examines "thousands" of firefighters for Central Florida municipalities and usually conducts examinations for Respondent. Based on Dr. Portnoy's 2009 examination of Petitioner, Dr. Portnoy determined that Petitioner "was not qualified to be a firefighter for the City of Apopka." The National Fire Protection Association Standard 1582 ("NFPSA 1582") is referenced in Subsection 633.34(5), Florida Statutes, dealing with physical qualifications of a firefighter. While not required by statute, this standard is relied on by physicians conducting qualifying examinations. Petitioner's surgery is a basis for disqualification under NFPSA 1582. Respondent accepted Dr. Portnoy's opinion and did not re-employ Petitioner based on that opinion. Kevin Kwader, offered by Petitioner as an individual who received disparate treatment, apparently had cervical surgery; however, it is unclear whether the surgery was as comprehensive as Petitioner's. Mr. Kwader was returned to work by the surgeon who performed the surgery with "no restrictions." He was never evaluated by the physician conducting annual physical examinations for Respondent as "not fit for duty." Petitioner did not seek accommodation for a disability; in fact, he indicated, specifically, that he was not seeking any accommodation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent, City of Apopka, Florida. DONE AND ENTERED this 20th day of April, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 20th day of April, 2010. COPIES FURNISHED: 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 Thomas A. Moore, Esquire Moore, Peterson & Zeitler, P.A. Post Office Box 536636 Orlando, Florida 32853-6636 Frank Kruppenbacher, Esquire City of Apopka 120 East Main Street Apopka, Florida 32703 Scott Roberts 2839 West Fairbanks Avenue Winter Park, Florida 32789
