The Issue The issue for determination in this case is whether Respondent violated Chapter 760, Florida Statutes, as alleged, by its refusal to allow Petitioner to rescind a resignation.
Findings Of Fact Ardie Collins, a Black female, lives in Rockledge, Florida, and is currently self-employed as a beauty salon owner. She began working for the State of Florida in 1973, as a salon inspector with the Cosmetology Board. She maintained her title of investigator and continued employment after reorganization with the Department of Occupational and Professional Regulation and the Department of Professional Regulation (DPR), as the agency is now known. During the relevant period Ms. Collins worked out of the DPR Regional Office in Orlando. In August 1982, Ms. Collins was terminated by DPR. The case went to arbitration, and by order of the arbitrator dated December 17, 1982, she was reinstated with full back pay. She reported back to work on February 10, 1983. In January 1983, before she reported back to work Ms. Collins went to see the AFSME union representative, Eric Tait, in Cocoa. The union had represented her in the 1982 proceeding and Tait had assisted the union. In that January meeting, two letters were drafted, later typed by a clerk and signed by Ms. Collins. These letters were characterized by both Ms. Collins and Eric Tait as "intent to resign" and a letter of resignation. The "intent to resign" is dated, in error, January 12, 1982, and is addressed to Howard Kirkland, Personnel Officer. It provides, This is to inform you that it is my intention to submit my resignation from State Employment, effective June 6, 1983. This resignation is now held by Eric D. Tait, AFSME President, Local 3040. (Petitioner's Exhibit #2) The second letter is dated June 6, 1983, is also addressed to Howard Kirkland, and provides: Kindly accept this as my resignation as Investigator with the Department of Professional Regulation effective June 6, 1983. The Department of Professional Regulation has informed me that as of June 6, 1983 I will have completed 10 years creditable service in the Florida Retirement System. (Petitioner's Exhibit #11) The first letter was mailed to DPR in Tallahassee and the second was held by Eric Tait. The January 12th letter was stamped received in the DPR Personnel office on January 24, 1983. Howard Kirkland took this letter to be a resignation. He discussed it with the Division Director and with the Assistant Secretary and was authorized to accept the resignation. He then sent a letter to Ardie Collins, dated January 25, 1983, stating: Please be advised that we have accepted your resignation from employment with this agency effective June 6, 1983. (Petitioner's Exhibit # 3) Later, on January 31, 1983, in response to a contact from Eric Tait, James Kirkland sent a letter to Ms. Collins explaining that, if necessary, her date of resignation would be extended to insure that she had the necessary ten years of creditable service. DPR commenced advertisement and recruitment to fill the anticipated vacancy. Sometime in early May 1983, Eric Tait mailed the second letter dated June 6, 1983. The letter was stamped received in the DPR Office of Personnel on May 5, 1983. On May 6, 1983, Ms. Collins wrote to Howard Kirkland informing him: Notice is hereby given that proposed or intended resignation is cancelled until further notice. (Petitioner's Exhibit #7) Between January and May, DPR received no word from Ms. Collins or her representative about her resignation. Kirkland again discussed the matter with his supervisor and responded by letter to Ms. Collins dated May 25, 1983, that her voluntary resignation had already been accepted in good faith. (Petitioner's Exhibit #8) There is no written policy or rule at DPR regarding the rescinding of resignations. The agency follows the general personnel management principle that until the resignation is accepted, withdrawal is negotiable; after acceptance, withdrawal is solely within management prerogative. Generally it is considered bad personnel management to permit an employee to rescind a resignation once it is accepted, and in particular, once the position is advertised. Ms. Collins claims that DPR has allowed other employees, white males and females, and black males, to rescind resignations. In his personal knowledge, and after reviewing DPR personnel files, James Kirkland found one individual who was allowed to rescind a resignation - a clerk, who had given probably only an oral notice and shortly later asked to withdraw it. In that case, nothing had been done to act on the resignation. The individuals named by Ms. Collins: Robert Fleming, Edward Bludworth, and Will Merrill, were not allowed to rescind resignations. Rather, they each reapplied after leaving DPR. Each was hired again on probationary status. Ms. Collins claims that she reapplied by mail to DPR sometime in late June 1983. However, neither the Tallahassee office nor the Orlando regional office have a record of her application. If she had reapplied for a vacant position, she would have been considered with the rest of the applicants. DPR has received resignations from employees in a variety of forms and in various ways. Sometimes resignations are submitted directly to an immediate supervisor; other times they are directed to the personnel officer. It is not uncommon to have a resignation expressed as an "intent to resign". DPR acted in good faith and consistent with established personnel practices when it accepted Ms. Collins' letter dated January 12th as a resignation and when it refused to allow her to rescind that resignation when requested some four months later. DPR determined that Ms. Collins had obtained her ten years of service as of June 6, 1983. This was the only condition regarding her date of resignation of which it was on notice. The agency received both the "intent to resign" and the "resignation" letter prior to receiving Ms. Collins' "cancellation". The agency simply ratified its acceptance in its response to Ms. Collins.
The Issue The issue is whether Respondent, Lowe's Home Centers, Inc. (“Lowes”)1 committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2008),2/ by discriminating against Petitioner based on her gender or national origin (Hispanic) in its allowance of a hostile work environment, or by discharging Petitioner from her employment in retaliation for engaging in protected conduct.
Findings Of Fact Lowes is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. In November 2004, Petitioner, a Mexican-American female, was hired by Lowes to work at store number 2365 in Gainesville as a Commercial Sales Associate (“CSA”) in the Commercial Sales department, which serves contractors and large institutional customers. Petitioner’s primary duty was to assist customers in the selection, demonstration and purchase of products. At the time she was hired, Petitioner received from Lowes copies of the following documents: Lowes' Code of Ethics, Lowes' Equal Employment Opportunity Policy, Lowes' No Harassment Policy, and Lowes' Performance Management Policy 315 setting forth the company’s standards of conduct and discipline. These policies were in effect during the entirety of Petitioner’s employment at Lowes. Lowes' Code of Ethics specifically provides that employees “must maintain the confidentiality of information entrusted to them by Lowes or its suppliers or customers,” unless such disclosure is authorized by the company’s lawyers or is required by law. Lowes' Equal Employment Opportunity Policy provides that all reports and investigations of harassment “will be treated confidentially to the extent possible, and with the utmost discretion.” Lowes' Performance Management Policy 315 provides that unauthorized disclosure of company information is a “Class A violation,” which will normally subject an employee to immediate termination on the first occurrence. Petitioner’s allegations of harassment and hostile work environment center on a single Lowes co-worker, John Wayne Edwards. Mr. Edwards was another CSA in Commercial Sales. He had no supervisory authority over Petitioner and exercised no control over the terms and conditions of Petitioner’s employment. Petitioner has not alleged that Mr. Edwards subjected her to any unwanted sexual comments, sexual touching, or sexual advances. Petitioner’s factual allegations against Mr. Edwards involve three incidents. The first incident, in September 2007, was an argument between Petitioner and Mr. Edwards at work. Petitioner accused Mr. Edwards of taking a customer file from her. Mr. Edwards denied taking the file, pointing out to Petitioner that he had no reason to take her file. If Mr. Edwards wanted the information contained in Petitioner’s customer file, he could simply take it from the Commercial Sales department’s computer. Petitioner called Mr. Edwards a liar. Mr. Edwards denied being a liar. Petitioner said, “I’m going to get you.” Mr. Edwards asked Petitioner what she meant by that statement, and Petitioner called him coward. Mr. Edwards then said to Petitioner, “If you were a man, me and you’d go across the street right now and settle this.” Petitioner reported the incident to Lynette White, the Human Relations (“HR”) manager for Lowes store number 2365, alleging that Mr. Edwards had threatened to beat her up in the parking lot.4/ Ms. White investigated the matter, interviewing Petitioner, Mr. Edwards and two or three other CSAs who witnessed the incident. Ms. White concluded that Mr. Edwards had not threatened any physical harm to Petitioner, but that Mr. Edwards’ statement was nonetheless inappropriate. She counseled Mr. Edwards to take care in his workplace conversations so that no one could construe anything he said as a threat, and to avoid contact with Petitioner whenever possible. The second of the three incidents occurred on or about October 2, 2007. According to Petitioner, she was standing near a filing cabinet in Commercial Sales. Mr. Edwards was “talking and talking and talking,” “bragging about all sorts of stuff.” Petitioner told Mr. Edwards not to talk to her, but he continued in a very loud voice. Then, when he was finished bragging and talking, Mr. Edwards rushed toward the filing cabinet “like a football player” and hit the cabinet hard. Petitioner testified that Mr. Edwards hurt himself and ran and told management. Store managers came running to make sure that Petitioner was not hurt in the incident. Mr. Edwards had no recollection of such an incident. He stated that there are three CSAs and an assistant in an area that is 12 feet long and 42 inches wide, with a filing cabinet that is in use directly behind the computer work stations. It is unavoidable that people moving through such a space will touch or bump one another. Mr. Edwards was positive he would have excused himself if he inadvertently bumped Petitioner, and denied ever doing anything that could be construed as “charging” at the filing cabinet with the intention of hurting or frightening Petitioner. Ms. White investigated this incident, interviewing Petitioner, Mr. Edwards, and other persons who were in the area when the incident allegedly occurred. During her interview with Ms. White, Petitioner conceded that neither Mr. Edwards nor the file cabinet touched her. Ms. White asked Petitioner to show her how the incident occurred, using a file cabinet in Ms. White’s office. Petitioner was unable to show a scenario that, in Ms. White's words, “added up to someone coming towards you to attack you.” The two other employees who had been in the area saw nothing to indicate that Mr. Edwards made contact with or sought to harm Petitioner. Ms. White concluded that, at most, Mr. Edwards accidentally bumped the file cabinet while Petitioner was nearby. As to the third incident, Petitioner alleged that on three or four occasions in early 2008, Mr. Edwards approached her and, apropos of nothing, announced, “We need to build a fence around the Mexican border.” Petitioner testified that these bigoted comments were clearly intended to intimidate her and cast aspersions on her heritage. Petitioner took this complaint to Karla Daubney, then Lowes' HR district manager. Ms. Daubney investigated Petitioner’s complaint by interviewing Petitioner, Mr. Edwards, and other employees in Commercial Sales. Mr. Edwards denied making a comment about “building a fence around the Mexican border.” He testified that the only possible source for Petitioner’s allegation (aside from sheer invention) was a conversation he had with a male co-worker about the Iraq War. Mr. Edwards had stated his opinion that the United States would be better off bringing its soldiers home from Iraq and using the savings to shore up our borders with Mexico and Canada.5/ He had no idea whether Petitioner was within earshot during this conversation, and denied ever making anti-Mexican comments, whether or not they were aimed at Petitioner. Mr. Edwards testified that this allegation was particularly hurtful because he is the adoptive father of two Mexican children, a brother and sister. At the time Mr. Edwards adopted them, the girl was three years old and the boy was nine months old. The children are now adults. Mr. Edwards’ daughter is a surgeon, and his son is in the air-conditioning business. After her investigation, Ms. Daubney concluded that Petitioner’s allegations were unsupported by the evidence. Mr. Edwards was not disciplined for this incident. At the final hearing in this matter, Petitioner and Mr. Edwards testified about all three incidents. Petitioner produced two witnesses, neither of whom witnessed any of these events first-hand or had any clear recollection of the incidents as related by Petitioner. No witness other than Petitioner characterized Mr. Edwards as anything other than a good Lowes employee and a solid citizen. Far from allowing a hostile work environment, Lowes diligently investigated every accusation made by Petitioner. Mr. Edwards was by far the more credible witness, and was genuinely puzzled as to why Petitioner had selected him as the continuing focus of her ire. The evidence indicated that Petitioner had job performance issues that predated her odd vendetta against Mr. Edwards. She received an “Initial Notice” on November 6, 2006, for failure to follow up on various customer orders. On May 2, 2008, Petitioner received a “Final Notice,” the last step in Lowes' progressive discipline system prior to termination. Petitioner had used Lowes' confidential customer contact information to telephone a regular commercial customer, Justice Steele, at his home. Shortly after this conversation, Mr. Steele telephoned Charles Raulerson, the manager of store number 2365, to complain about Petitioner’s unprofessional conduct. Mr. Steele followed up the phone call with a letter, dated April 25, 2008, which stated as follows, verbatim: The evening of April 23, at approximately 6:30 P.M., I received a call from Rosie [Chavez] in Commercial Sales when I answered she proceeded to tell me that, she had heard John and I talking earlier. So I asked her what the problem was? At this point she started to tell me I had no right to critique her work, I tried to explain to her that I was quite unhappy that she had lost one order of mine and had mixed up another one in the same week. And had I known she was there I would have spoken to her face to face, at this point she became very argumentative and started telling me how she was the only person who did her job in commercial sales. And her co-workers where [sic] lazy and stupid that they should not even be there, personally I thought this was very very unprofessional on her part. Not to mention calling me at home considering I am in the store almost daily placing orders, getting estimates, etc. In the years I have been doing business with your company I always found the staff to be quite knowledgeable an courtesy I’m surprised that you would allow an employee to act in this manner. I’m aware you do your best to screen employees but if this issue is not addressed I will not continue doing any further business with your company. Thank you for your attention to this matter. In her meeting with Mr. Raulerson about Mr. Steele’s complaint, Petitioner asserted that her boss could not tell her what to do on her own time, and that Mr. Steele was lying about her phone conversation with him.6/ Mr. Raulerson attempted to explain that Petitioner was conducting Lowes business when she called Mr. Steele, and she was therefore a representative of Lowes whether or not the call was placed from the store. Petitioner continued to assert that she could do anything she wanted if she was not physically at the store. Mr. Raulerson issued the Final Notice and transferred Petitioner to the position of cashier in response to Mr. Steele’s complaint.7/ The transfer was a lateral move, involving no change in Petitioner’s employee status or pay. During the meeting at which the Final Notice was issued, Mr. Raulerson reminded Petitioner of Lowes' confidentiality policies and provided her with another copy of Performance Management Policy 315. The referenced Performance Management Policy would have allowed Mr. Raulerson to terminate Petitioner’s employment for her unauthorized use of confidential customer information. However, Mr. Raulerson decided to give Petitioner another chance to salvage her job, away from the Commercial Sales department.8/ On July 25, 2008, Mr. Raulerson received another complaint about Petitioner from Lowes customer Chris Bayne. Mr. Bayne was a registered nurse working in the emergency room at North Florida Regional Medical Center in Gainesville. On July 24, 2008, Petitioner phoned Mr. Bayne at his private cell phone number, which he had given to Lowes two years previously when buying lumber. Mr. Bayne was without knowledge of Petitioner’s grievances against Mr. Edwards, Mr. Raulerson and/or Lowes. Nonetheless, Petitioner caused Mr. Bayne to leave the emergency room in the middle of a procedure to take her phone call. Petitioner solicited Mr. Bayne to write a letter of character reference for her, to be used in a discrimination lawsuit against Lowes. Mr. Bayne had no idea what Petitioner was talking about. In an effort to get her off the phone and get back to his job, Mr. Bayne gave Petitioner his email address and told her to send any information via that route. After work, with more time to think about the call, Mr. Bayne became increasingly disturbed. He wondered how Petitioner had obtained his private phone number and began to worry about identity theft. The next morning, he telephoned Lowes and complained to Mr. Raulerson. Mr. Bayne later sent Mr. Raulerson a copy of the letter that Petitioner had emailed to Mr. Bayne. The letter read as follows: Hi. As many of you already know, I have been demoted to cashier. Mr. Justice Steele wrote a letter to Lowe's. According to Mr. Charlie Raulerson, store manager and Mr. Tom Bragdon, operation manager, Mr. Steele claimed that I called him on his personal time and that I argued with him. I always follow up on my orders. I overheard Mr. Steele tell someone that I lost his order. So I called him up to find out what happened and what is going on. I had informed Mr. Steele that I will be placing a copy of his estimate in front of his file folder because he had not paid for it yet. The copy was still there in front of his file folder. There was no argument. There were a couple of other things that were mentioned in which not a single word was brought up. I asked Charlie Raulerson the store manager for a copy of the letter and he refused to show me the letter because it was Lowe's property. I am defending myself. There is more than what you know is going on. I have been discriminated based on my national origin and my gender now for over eight months at Lowe's #2365 in Gainesville Florida on 13th Street. You are my fifth proof. I am knowledgeable about construction. I graduated from Building Trades. I loved my job and I loved the people. Please submit a character reference to Emily Davis, EEOC Investigator (Equal Employment Opportunity Commission) at Emily.davis@fchr.myflorida.com. For those who do not have e-mail, please mail reference to 2009 Apalachee Parkway, Suite 200, Tallahassee, FL 32301-4857. Tell her everything you know. Do not fear anything. The reference letter is not going to Lowe's. It is going to Emily Davis only. Everything is strictly confidential. Ms. Davis is currently investigating my case #15D200800721. Please keep me in your prayers. In addition, please give a copy of this letter to the prayer group at your church and ask them to pray for me. Please pass the word around because I did not get everyone’s phone number since I was immediately demoted to cashier on May 2, 2008, on a Final Notice. Please ask everyone to e-mail Emily Davis or write to her. Please help me and thank you for your help. Rosie At the hearing, Petitioner testified that she sent this letter to hundreds of people. As the text indicates, most of the recipients were current or former Lowes employees, but many were customers such as Mr. Bayne. None of the recipients had any personal knowledge of Petitioner’s allegations. Petitioner appeared to have no understanding that her actions were in clear violation of Lowes' confidentiality policies, not to mention common sense. Mr. Raulerson asked Ms. Daubney to investigate Mr. Bayne’s complaint. Ms. Daubney interviewed Petitioner in an attempt to understand why she called Mr. Bayne. Petitioner refused to answer Ms. Daubney’s questions. She insisted that her conversation with Mr. Bayne was none of Lowes' business. Mr. Raulerson testified that Mr. Bayne’s complaint provided more than adequate grounds for terminating Petitioner’s employment, but that he decided to give Petitioner yet another chance to turn her situation around and become a productive employee. Shortly after investigating Mr. Bayne’s complaint and learning that Petitioner had used Lowes' confidential business records to circulate her own complaint to hundreds of people, Ms. Daubney received a copy of a memorandum written by Linda Brown, Records Bureau Chief of the Alachua County Sheriff’s Office. Ms. Brown was the supervisor of Nanci Middleton, the wife of Larry Middleton, one of Petitioner’s co-workers at Lowes. Ms. Brown’s memo stated that she had received a telephone call from Petitioner seeking to discuss “an EEOC issue of discrimination” involving Mr. Middleton, and asking to speak with Ms. Middleton. Ms. Brown told Petitioner that it was inappropriate to contact Ms. Middleton at work about an issue unrelated to the Alachua County Sheriff’s Office. Petitioner testified as to her purpose in phoning Ms. Brown. Petitioner sought permission to eavesdrop on a proposed conversation between the Middletons, during which Mr. Middleton would somehow be urged by his wife to “tell the truth” about Mr. Edwards’ “fence around the Mexican border” statements. Petitioner wanted Ms. Brown to join her in eavesdropping on this conversation in order to serve as Petitioner’s witness in her discrimination case. Not surprisingly, Ms. Brown declined Petitioner’s proposition. Ms. Daubney concluded that Petitioner’s telephone call to Ms. Brown violated Lowes' confidentiality policies. In consultation with Ms. Raulerson, Ms. Daubney decided to terminate Petitioner’s employment with Lowes, effective August 8, 2008. The grounds for Petitioner’s termination were repeated customer complaints about Petitioner’s job performance and intrusions into customers’ privacy, and her repeated violations of Lowes' confidentiality policies despite numerous warnings. Petitioner’s position, repeated in her testimony at the hearing, was that Chapter 760, Florida Statutes, gave her the right to “defend” herself in any way she deemed appropriate, and to contact anyone who might help her, regardless of whether they had any knowledge of or connection to her disputes with Lowes. Petitioner refused to acknowledge that any of her actions had been inappropriate. Petitioner offered no evidence to establish that her employment was terminated because of her gender or national origin. Petitioner testified that her firing was unrelated to her national origin or her gender. Petitioner offered no credible evidence that Lowes discriminated against her because of her national origin or her gender, subjected her to harassment because of her national origin or gender, or retaliated against her in violation of Chapter 760, Florida Statutes. Petitioner offered no credible evidence to support her factual allegations against Mr. Edwards. The evidence did not establish that Mr. Edwards threatened physical harm to Petitioner or made derogatory remarks to Petitioner regarding her national origin. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Lowes for terminating Petitioner’s employment. The evidence established that Petitioner’s First and Second Complaints were devoid of merit. The evidence established that Lowes showed great forbearance in not firing Petitioner well before August 8, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Lowe's Home Centers, Inc., did not commit any unlawful employment practices and dismissing the Petitions for Relief filed in these consolidated cases. DONE AND ENTERED this 31st day of August, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2010.
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
The Issue Whether Petitioner, a member of a protected class, was demoted from her position as an Assistant Business Manager with the Respondent on February 22, 1988 on the basis of her sex (female), in violation of Section 760.10(1)(a), Florida Statutes (1989) Whether Petitioner, a member of a protected class, was discharged from her position as automobile salesperson with the Respondent on March 23, 1988 on the basis of her sex (female), in violation of Section 760.10 (1)(a), Florida Statutes (1989).
Findings Of Fact 12(a). Interpersonal relations and attitude training were not part of the skills training provided by Respondent to employees in the Assistant Business Manager's position. Personnel were expected to have developed such skills prior to their promotion to that position. 12(b). Petitioner brought the attitude and interpersonal skills which she had developed in sales with her to the new position. 12(c). In her position in sales, Petitioner was aggressive, outspoken, and forthright in dealing with her peers and with management. In spite of unfair, rude or obnoxious behavior toward her by other sales persons or her T.O., Petitioner took steps to insure that she met or exceeded her sales quota each month prior to her promotion. 12(d). These attributes, which were beneficial for her in an aggressive and competitive sales environment, were counterproductive in the Assistant Business Manager's position. Team work, with sales personnel and management, and a reassuring and persuasive personality were essential for success. Instead, Petitioner was in constant conflict with management and sales personnel over the closing of "deals." 13(a). Mike Pinto, the Business Manager, spent the same or greater time providing on the job training with Petitioner as with other similarly situated male employees. 13(b). When the Business Manager was not available for consultation with Petitioner, in January, 1988, due to a tent sale, other Assistant Business Managers, knowledgeable in the position, were available to answer Petitioner's questions. 13(c). Petitioner testified that her peers refused to allow her to sit in and observe their transactions with a client, as she requested. Standing alone, this conduct is insufficient to demonstrate disparate treatment in the training as an Assistant Business Manager. * * * The work environment between peers in sales at the Respondent's dealership was uncivil, rude, manipulative, hostile and highly competitive. It was common practice for sales personnel to harass and demean each other in an effort to be the "outstanding salesperson" for the month. Although sales personnel were ostensibly assigned to "teams", each salesperson was in direct competition with their team member. In order to retain their position at Respondent's dealership, a person in sales was expected to sell a minimum of ten units per month or their job was in jeopardy. Prior sales performance had minimum impact in retaining their position with the company. When a new customer came on to Respondent's lot, each salesperson had to be alert and position themselves so that they could be the first person to approach the customer. If that customer did purchase a vehicle, then the salesperson who "worked the deal" would be entitled to the commission. Therefore, aggressive sales people would devise various methods whereby they could be the first on the scene to approach a customer. It was common practice for male salespersons to lure female sales associates away from the lot during busy times. This was done by having them go out for sandwiches at lunch or to pick up their dry cleaning or do other errands. Male salespersons were not expected to run such errands during their working hours. During the period June 17, 1987 through January 10, 1988, when she was promoted, Petitioner steadfastly refused to participate in the subterfuge and no adverse employment decision was made against her. Therefore, the unfair labor practices employed by one salesperson against another at Respondent's dealership cannot be said to be gender based. The work environment fostered by management at Respondent's dealership toward its employees in sales and the Business Managers positions was uncivil, hostile, manipulative, arbitrary, capricious, secretive and unprofessional. However, from the evidence adduced at hearing, such conduct was not gender based. Due to the hostile work environment fostered by management, there was massive turnover in the sales and the Assistant Business Managers positions by both male and female employees. Terminations, both voluntary and involuntary, promotions, demotions, and latteral transfers took place at an astonishing pace. The evidence was insufficient to show that it was gender based. There was insufficient evidence to support a finding of hostile work environment based on gender. There was insufficient evidence to support a finding of sexual harassment directed to Petitioner. SUPPLEMENTAL CONCLUSIONS OF LAW In the instant case, the essential questions are whether the Petitioner has demonstrated, by a preponderance of the evidence, that the true reason for her demotion and eventual firing was intentional sex discrimination, and/or whether Petitioner was subject to harassment based on her gender or whether Petitioner was subject to a hostile work environment fostered by Respondent towards female employees. Although the testimony showed that the work environment fostered by Respondent was hostile and sales and entry level management personnel were subjected to constant harassment and threats to maintain sales quotas of face demotion or dismissal, the evidence was insufficient to show that such conduct created a pervasive hostile work environment that was gender based. As the Eleventh Circuit Court of Appeal stated in Nix v. WLCY Radio, 738 F.2d 1183, reh.denied 747 F.2d 710 (11th Cir. 1984), as follows: Title VII is not a shield against harsh treatment in the work place [citation omitted] nor does the statute require the employer to have good cause for his decisions. The employer may fire an employee based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason [citations omitted]. While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination. The employers stated legitimate reason . . . does not have to be a reason the judge or jurors would act on or approve. [citations omitted]. That is certainly the situation is this case. Respondent's reasons for demotions and firing of its employees both male and female, sales and management, certainly appears to have been arbitrary and capricious. However, the proof was insufficient to prove that its action was for a discriminatory reason. See also: St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which DENIES the Petition for Relief. DONE AND ENTERED this 19th day of March, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Accepted: Paragraphs 2 (in substance), 12. Rejected as against the greater weight of the evidence or irrelevant : Paragraphs 1, 3-11. Proposed Findings of Fact Submitted by Respondent: Accepted: Paragraphs 1,2,3,4,5,6,7,8,9,10,11,12,13 (in substance), 14 (in substance), 15 (in substance), 16, 17,18,19,20,22,23,25 (in substance), 26-33 (in substance), 34, 35-36 (in substance), 37, 38, 43 (in substance), 44,45,46,47,48,49,50,51,52,53,54-57 (in substance), 58 (in substance), 59-69 (in substance), 70,71,72-84 (in substance), 85,93,116,117,122,138. Rejected as irrelevant, subsumed or repetitive: 21, 24, 39-42, 86-92, 94-115, 118-121 (irrelevant), 123-137, 139-162. COPIES FURNISHED: Jeff Sapper, Representative Dana Baird 14052 Lake Tilden Boulevard General Counsel Winter Garden, FL 32787 Florida Human Relations Commission Kathryn L. Moon 325 John Knox Road 6460 Yellowstone Street Building F, Suite 240 Orlando, FL 32807 Tallahassee, FL 32399-1925 Leo P. Rock, Jr., Esquire Gray, Harris and Robinson, P.A. Post Office Box 3068 Orlando, FL 32802 Margaret Jones, Clerk Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 ================================================================= AGENCY REMAND ================================================================= STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS KATHRYN MOON, Petitioner, EEOC CASE NO. 15D881979 FCHR CASE NO. 88-7405 JIMMY BRYAN TOYOTA, INC., DOAH CASE NO. 89-1895 Respondent. FCHR ORDER NO. 90-025 / ORDER REMANDING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE Panel of Commissioners The following three Commissioners participated in the disposition of this matter. Commissioner Learna G. Ramsey, Chairperson; Commissioner Elena Flom; and Commissioner Ralph P. Mangione. Appearances For Petitioner Kathryn Moon: No appearance. For Respondent Jimmy Bryan Toyota, Inc.: Leo P. Rock, Jr., Esquire, Gray, Harris and Robinson, Suite 1200 Southeast Bank, 201 East Pine Street, Orlando, Florida 32801. Preliminary Matters Kathryn Moon, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1989), alleging that Jimmy Bryan Toyota, Inc., Respondent herein, unlawfully discriminated against Petitioner on the basis of sex. In accordance with the Commission's rules the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of the investigation was submitted to the Executive Director. On February 22, 1989, the Executive Director issued his Determination finding reasonable cause to believe that an unlawful employment practice occurred. Petitioner then filed a Petition for Relief from an Unlawful Employment Practice on March 27, 1989. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.016(1). The formal proceeding was held on January 19, 1990. During the course of the formal hearing, Respondent objected to Petitioner's introduction of testimony relating to sexual harassment and a hostile work environment. The hearing officer reserved ruling on the motion and Respondent maintained an ongoing objection and motion to strike all testimony relating to sexual harassment and hostile working environment. The objection was raised regarding testimony of Petitioner's witnesses as well as Petitioner's testimony. The hearing officer's recommended order granted Respondent's motion to strike all testimony regarding sexual harassment, hostile work environment and disparate treatment. Findings of Fact The hearing officer's finding of fact relate mostly to Petitioner's performance evaluation. The findings of fact failed to include any findings regarding: (1) alleged disparate treatment of Petitioner in respect to training in her new position; (2) alleged hostile work environment towards female employees; and (3) an alleged atmosphere of sexual harassment towards Petitioner and others. The hearing officer's findings of fact are therefore incomplete. Conclusions of Law The hearing officer granted Respondent's motion to strike testimony regarding sexual harassment, hostile work environment and disparate treatment. He gave no legal support for granting such a motion. Based upon his findings of fact, the hearing officer concluded that Respondent articulated a valid, nondiscriminatory reason as the basis for its decision to demote Petitioner. The hearing officer also concluded that Petitioner failed to prove a causal connection between her qualification for the position and her discharge. The hearing Officer recommends that the petition be dismissed. Upon consideration, we find that the hearing officer's granting of Respondent's motion to strike certain testimony was contrary to the law and therefore erroneous. Under a McDonnell Douglas analysis, Petitioner has the burden of rebutting Respondent's articulation of a nondiscriminatory reason for its actions by proving that the proferred reason was not the true reason for Respondent's actions. This can be accomplished through indirect evidence that shows disparate treatment. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). In Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988), the court reversed a lower court ruling that excluded several categories of evidence that tended to show a climate of racial and age bias at the employer's facility. The court held that such evidence was admissible and the cumulative effect of excluding the evidence was sufficiently prejudicial to justify reversal, even if each evidentiary ruling, in isolation, would not have justified reversal. The court reasoned that such background evidence may, in discrimination cases, be critical for an assessment of whether an employer was more likely than not to have acted from an unlawful motive. More recently, the principles enumerated in Estes were applied to a sex discrimination case in Hawkins v. Hennepin Technical Center 900 F.2d 153 (8th Cir. 1990), where the court reversed a lower court ruling that excluded several categories of evidence that tended to show a climate of sexual harassment. The court held that even though sexual harassment was not formally charged, a former employee should be permitted to introduce additional evidence as to specifics of such harassment to attempt to show an atmosphere of condoned sexual harassment in the work place, thereby increasing the likelihood of proving discrimination. The court reasoned that an employer's past discriminatory policy and practice may well illustrate that the employer's asserted reasons for disparate treatment are a pretext for intentional discrimination. Remand In consideration of the hearing officer granting Respondent's motion to strike testimony relating to sexual harassment, etc., and the absence of any factual findings regarding such testimony, we conclude that all testimony presented regarding sexual harassment, hostile work environment and disparate treatment should be considered by the hearing officer in recommending the final disposition of this case. Accordingly, the Petition for Relief from an Unlawful Employment practice is hereby REMANDED to the Division of Administrative Hearings for reconsideration consistent with this opinion. It is so ORDERED: Dated this 27th day of July 1990. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: BY: Commissioner Elena Flom; and Commissioner Ralph P. Mangione. Commissioner Learna G. Ramsey, Chairperson, dissenting. I would adopt the hearing officer's recommendation of dismissal. FILED this 27th day of July, 1990 in Tallahassee, Florida. Margaret A. Jones Clerk of the Commission ENDNOTE 1/ Unless otherwise indicated, all statutory references are to Florida Statutes (1989), and all rule references are to Florida Administrative Code. COPIES FURNISHED: Kathryn Moon, Petitioner Leo P. Rock, Jr., Respondent Daniel M. Kilbride, DOAH Hearing Officer Patricia Buttaro, Student Intern =================================================================
The Issue The issues are whether Petitioner is eligible for agency- sponsored employment services or whether he is capable of returning to suitable, gainful employment via an offer of employment from his former employer.
Findings Of Fact Petitioner began working for Ploof Truck Lines (Ploof) as a trainee over-the-road truck driver in August of 1995. Prior to his employment with Ploof, Petitioner worked in the aerospace industry. He had work experience in computer operations, computer software programs, and assembly of electronic accessories. Upon his employment with Ploof, Petitioner began a four- week training program, earning gross wages in the amount of $300 per week for the weeks ending August 24, 1995, August 31, 1995, September 7, 1995, and September 14, 1995. Upon completion of the training program, Petitioner worked as a single-seat truck driver, earning the following amounts: (a) $107.99, for the week ending September 21, 1995; (b) $160.25, for the week ending September 28, 1995; (c) $388.92, for the week ending October 5, 1995; (d) $601.49, for the week ending October 12, 1995; (e) $489.43, for the week ending October 19, 1995; (f) $571.53, for the week ending October 26, 1995; (g) $507.35, for the week ending November 2, 1995; (h) $594.19, for the week ending November 9, 1995; and (i) $526.43, for the week ending November 16, 1995. A trained truck driver's earnings depend on his or her productivity. The average salary of an experienced single-seat truck driver falls in the range of $400 to $600 per week. A novice single-seat truck driver earns an average salary in the range of $300 to $600 per week. Petitioner was a novice single- seat truck driver when he was injured. One of the duties that a truck driver has is to assess the safety of a tractor and trailer before accepting a hauling assignment. In other words, the truck driver must determine whether the tractor and trailer meet legal road requirements. In this case, there is no persuasive evidence that Petitioner's wages were lower than average at any time because Ploof did not have a "road ready" tractor/trailer available. To the contrary, Petitioner rejected all available trucks during the first week after his completion of the trainee program because the trucks were not clean. At Ploof, trainee truck drivers earn a salary of $300 per week for four weeks. Trained truck drivers are paid according to the number of miles they drive, 29 cents per mile loaded and 19 cents empty. If a truck driver is detained on the road because he or she has no work order or because of mechanical problems, the truck driver is paid a flat fee of $25 after 24 hours. The driver manager is responsible for assigning work to the truck drivers. A truck driver located at the terminal does not accrue mileage or a salary if the driver manager does not assign him or her a load to pickup or deliver. In that case, Ploof allows the truck driver to work in the warehouse or around the yard for an hourly wage. Petitioner presented no persuasive evidence that his wages as a truck driver were lower than average at any time because the driver manager was unable to or refused to assign him a load to pickup or deliver. Additionally, Petitioner did not present any credible evidence that his wages were ever lower than average because he was detained at a truck stop with no hauling assignment or a mechanical breakdown. On November 20, 1995, Petitioner fell, fracturing his left ankle, while employed as an over-the-road single-seat truck driver with Ploof. After Petitioner's injury, Ploof and its workers' compensation carrier calculated Petitioner's average weekly wage (AWW) as $395.97 per week, based on Petitioner's gross wages for thirteen weeks beginning on August 24, 1995, and ending on November 16, 1995. This figure does not include Petitioner's final gross wages as a truck driver for the period ending November 20, 1995, in the amount of $655.83. 1/ Respondent does not compute AWW. Instead, Respondent uses the AWW as computed by the employer and its carrier when determining an injured employee's average weekly earnings. In this case, Respondent based its decisions about suitable gainful employment for Petitioner using the $395.97 figure. If Respondent had included Petitioner's gross wages in the amount of $655.83 for the period ending November 20, 1995, Petitioner's average weekly earnings would have been closer to $423.34. Petitioner received immediate medical treatment at South Georgia Medical Center after his accident on November 20, 1995. Upon his return to Jacksonville, Florida, Dr. Harold Lynn Norman became Petitioner's treating physician. On February 5, 1996, Dr. Norman released Petitioner to return to part-time work (four hours a day) at light duty. Petitioner subsequently returned to work for Ploof. Petitioner worked in the safety/personnel department because his work restrictions precluded him from driving a truck. His job duties included calling applicants for truck driver positions and performing background checks on applicants. This job was within Petitioner's physical restrictions. He earned $7.50 per hour, which was close to the AWW as determined by the employer/carrier. On April 1, 1996, Dr. Norman increased Petitioner's work hours from four hours a day at light duty to eight hours a day at light duty. Petitioner continued to work for Ploof in accordance with his doctor's instructions. His job duties and salary remained the same. Ploof eventually changed Petitioner's job after he returned to work full-time at light duty. The new job involved operating the log scan machine. Initially, Ploof increased Petitioner's salary to $8.00 per hour. Ploof ultimately raised Petitioner's salary to $8.50 per hour. On or about May 6, 1996, Dr. Robert Yant became Petitioner's treating physician. On November 14, 1996, Dr. Yant placed Petitioner at maximum medical improvement (MMI). On that date, Dr. Yant gave Petitioner a zero percent permanent impairment rating with no permanent work restrictions. After this release to work, Ploof offered Petitioner a job in the safety department earning $8.50 an hour. Petitioner refused this job because he thought it was not "conducive" for him to return to work at Ploof at that wage and because he was not interested in returning to work with Ploof. His refusal was not related to his work restrictions. Petitioner's medical condition worsened after he refused the November 1996 job offer from Ploof. He eventually required additional ankle surgery by Dr. Yant. That surgery was performed on December 5, 1997. On or about June 29, 1998, Petitioner made an appointment to attend an orientation for Respondent's re- employment services program. On July 16, 1998, he attended the orientation, which is the first stage in the re-employment services program. That same day, Respondent signed a Request for Screening (Form DWC-23). Petitioner's signature on the form indicated his belief that he was eligible for screening by Respondent for re-employment services/benefits. The second stage in Respondent's re-employment services program is the screening phase. During this period, the Form DWC-23 is sent to the employer and/or its carrier. The employer's signature on the form indicates that there is no employment available for the injured employee with the employer of injury. The carrier's signature on the form indicates the carrier's agreement that the injured employee is entitled to screening for re-employment services or benefits. If the employer and/or carrier do not sign the form, Respondent takes the position that suitable employment is available with the employer. In this case, neither Ploof nor its carrier signed the Form DWC-23. Nevertheless, Respondent proceeded with the screening process to determine whether Petitioner was entitled to re-employment services or benefits. The program at issue is a return-to-work program, not a re-training or tuition assistance program. Respondent accomplishes the return-to-work program in one of three ways. First, Respondent attempts to place an injured worker directly in a job with a new employer when the worker has transferable skills, which permit return of the worker to the workplace in suitable, gainful employment. Second, Respondent contracts with an employer that will provide an injured worker with on-the-job training for specific tasks with Respondent reimbursing a portion of the worker's wages during the training period. Third, Respondent provides an injured worker with formal education and training under the following circumstances: (a) if the worker does not have transferable skills; or (b) if the labor market does not support the worker's transferable skills; and (c) if the worker is not able to perform his or her pre-injury work. If Respondent approves an injured worker for participation in a formal training and education program, the insurance carrier is obligated to pay temporary total rehabilitation payments (a workers' compensation benefit) to the injured employee. This payment covers living expenses during the re-training program, for a maximum of 52 weeks. Dr. Yant placed Petitioner at MMI for the second and final time on July 27, 1998. At that time, Dr. Yant gave Petitioner a seven percent permanent impairment rating. Petitioner's permanent work restrictions were one hour on, one hour off, and no stair or ladder climbing. On or about September 25, 1998, Respondent sent Dr. Yant an occupational description and job analysis report of a tractor/trailer truck driver. Respondent requested Dr. Yant to review the documents and determine whether this type of work would be appropriate for Petitioner based on his physical restrictions. Dr. Yant completed the physician's review on October 5, 1998. Dr. Yant added additional restrictions such as no lifting greater than twenty pounds and no repeated movement. Dr. Yant felt that repeated left foot clutch and assisting in any aspect of loading or unloading a truck would cause severe disability and pain. According to Dr. Yant, Petitioner is unable to return to work as a truck driver. By letter dated November 18, 1998, Ploof offered Petitioner another job as a driver recruiter. The duties of the job included telephone solicitation of qualified candidates from the Ploof office or Petitioner's home, direct contact with driver candidates at truck stops within a 50-mile radius of Jacksonville, and the option of recruiting drivers outside the Jacksonville area. The driver recruiter job paid $400 a week with future raises based on performance. This salary is consistent with the salaries of other Ploof employees performing the driver recruiter job. On December 8, 1998, Dr. Yant advised Petitioner that he should reject Ploof's offer of employment as a driver recruiter because the duties of the job required walking to and from areas of destination, climbing up and down stairs, and potential for out-of-town, overnight occasional travel. The next day, Petitioner rejected the job as driver recruiter because it was not within his job restrictions. He also believed it did not pay enough. On December 22, 1998, Respondent's staff performed a job analysis of Ploof's November 18, 1998, offer of employment as a driver recruiter. The job analysis included a site visit, task analysis, and interview with the owner of Ploof. By letter dated December 31, 1998, Respondent contacted Dr. Yant to determine whether the driver recruiter job was within Petitioner's work restrictions. In January 1998, Dr. Yant replied that the job was not appropriate for Petitioner because it involved ambulating on hard surfaces in parking lots. Dr. Yant was of the opinion that Petitioner should only perform sedentary type work. By letter dated January 28, 1999, Ploof offered Petitioner a modified driver recruiter job. Pursuant to the modifications, Petitioner would not have to travel to truck stops. Instead, he could work from the terminal office and assist with verification of applicants' employment background. The modified work position was within Petitioner's work restrictions. The modified driver recruiter job was the same type of work performed by Petitioner upon his return to work in 1996. Ploof's January 28, 1999, letter also offered Petitioner a job working as a log auditor in the log department at the terminal office. Petitioner had the necessary job experience and skills to perform duties of a log auditor. The physical requirements of the log auditor job were within Petitioner's work restrictions. Petitioner rejected Ploof's driver recruiter and log auditor job offers out-of-hand because he did not believe they paid enough and because he had no intention of ever working for Ploof again. Both positions pay $400 per week, which is at or close to Petitioner's AWW as determined by the employer/carrier. The jobs are currently available to Petitioner. On or about February 5, 1999, Respondent's staff performed a transferable skills analysis (TSA). The purpose of the TSA was to determine whether Petitioner had skills that would transfer to occupations in general, and if so, which of those occupations Petitioner could perform within his physical limitations. The analysis revealed 19 occupations which Petitioner could perform using his transferable skills. Of the 19 occupations, the following six occupations are appropriate for Petitioner considering his physical restrictions: (a) computer operator; (b) computer peripheral equipment operator; (c) routing clerk; (d) switchbox assembler I; (e) assembler, electrical accessories I; and (f) laborer, stores (shipping and receiving). Based on wage estimates in the Jacksonville labor market, the median salaries for these six positions range between $7.90 and $10.55 per hour. For example, the median weekly wage for a computer operator in the Jacksonville area is $422. This figure exceeds Petitioner's AWW as determined by Ploof and its carrier and is more in line with Petitioner's average weekly earnings corrected to include his wages for the period ending November 20, 1995. The Jacksonville labor market consistently has jobs available in the six occupations identified in the February 5, 1999, TSA. They would permit Petitioner to return to suitable gainful employment via direct placement rather than through training and education. 2/ Petitioner is capable of returning to work at suitable, gainful employment with Ploof. He also has transferable skills which would permit him to compete for other jobs providing suitable gainful employment within his physical limitations in the Jacksonville area.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is
Findings Of Fact The Respondent Conoco meets the statutory definition of an "employer" within the meaning of Section 760.02, Florida Statutes. Petitioner, Marlan D. Williams, who is black, is a member of a class protected by this statute. Petitioner began work at Conoco on January 4, 1990, as a sales associate and was discharged from his employment on May 27, 1992. When Mr. Williams was hired on January 4, 1990, he was required to sign a new employee agreement. Section 3 of that agreement explains to new employees the importance of good customer relations. After reading the employment contract, Mr. Williams signed the agreement. Mr. Williams testified that he understood the importance of good customer relations. Mr. Williams also testified that he understood that he could be terminated for multiple customer complaints and was aware of a white employee who had been terminated for customer complaints. Conoco's personnel policies and procedures regarding termination state in relevant part that, "involuntary terminations occur for a reason, such as when an employee's performance does not meet acceptable standards, if the employee violates Company policy, or when there is no work available for the individual." The details of Conoco's policy were left up to each sales district's manager. In this case, the district manager was Tammy Hunter. Her policy was that three complaints involving customers would result in termination. Ms. Hunter was not concerned with the truth behind these complaints, but only with the fact of multiple complaints. In the past, Conoco, through Ms. Hunter, has consistently applied its termination policy to employees receiving complaints involving customers in a nondiscriminatory manner. In fact, there was no evidence presented at the hearing that the policy was not applied in a nondiscriminatory or had unintended discriminatory impact. 1/ Over the term of his employment Mr. Williams received at least three complaints. Two of the complaints were made by customers directly to Ms. Hunter. One complaint was reported by management to Ms. Hunter and involved a very heated and nasty argument between Mr. Williams and a manager trainee in front of customers. Numerous other incidences of nonspecific poor customer relations involving employees and poor attitude were noted by the store manager, Julia Meuse. Mr. Williams received informal verbal and written counseling regarding his poor behavior towards customers, from his store manager and two assistant store managers. Conoco accordingly discharged Mr. Williams for violation of the Company policy regarding acceptable performance standards in customer relations and customer complaints. The evidence did not demonstrate these reasons were pretextual. Petitioner failed to present any evidence that he was replaced by a person not from a protected class. Therefore Petitioner has not established a prima facie case of discrimination. Finally, the decision to discharge Mr. Williams was made in good faith, for legitimate nondiscriminatory business reasons, and was based upon the objective application of Conoco's policies. Since Petitioner has failed to prove by a preponderance of the evidence that the reasons given by the Respondent for discharging him were a mere pretext to cover up discrimination on the basis of race, Petitioner has failed to establish he was discriminated against and therefore the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his race in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 2nd day of June, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1994.
Findings Of Fact Petitioner applied to Respondent for employment approximately September 1, 1981, and was hired on October 7, 1981, effective October 11, 1981. Hire dates were set by Respondent based upon the first day of work. Petitioner was terminated simultaneously with her husband on November 17, 1981. Larry G. Chivers, Petitioner's husband, was hired by Respondent on September 7, 1981, as a tractor--trailer driver, sharing driving with several other drivers until October 11, 1983. Thereafter, until he was terminated, he drove exclusively with Petitioner. Respondent claimed Mr. Chivers was initially hired as a "casual" driver and did not go on permanent status until his wife was hired. While his work did not change, with the exception of his new partner, his status with the company changed significantly since casual drivers accrued no seniority nor did the alleged 30 work day probationary period begin to run. Since Petitioner and her husband were fired a few hours after completing their work on their thirtieth day of work together and since probationary employees were given no recourse when fired, Mr. Chivers' status was important to him in any challenge to his discharge. The evidence was conflicting as to whether the Chivers were ever informed of their probationary status or if such status was intended by their employer. However, regardless of status at the time of firing, Respondent could not have lawfully discharged Petitioner because of her sex or marital status. See Subsection 23.167(1)(a), Florida Statutes (1981). The Chivers reported directly to Mr. Dennis O'Neal, Supervisor of Terminal Operations, Caribbean Air Express (CAX) a division of Westinghouse located at Sanford, Florida. O'Neal was responsible for driving assignments for CAX, which obtained its drivers from Respondent. Although O'Neal had no authority to hire or fire drivers, he made recommendations directly to Mr. Robert Adair, Manager of Personnel Relations for Respondent, who had such authority. On November 16 or 17, 1981, O'Neal recommended to Adair that the Chivers be fired and Adair instructed O'Neal to terminate them. Petitioner was the only female driver ever hired by Respondent and her hiring presented special problems. Although it was assumed that she would drive with her husband on a team basis, company policy required that she drive with any available driver in the event her husband was not available. Petitioner, her husband, Adair and O'Neal acknowledged that some drivers had indicated they would refuse to drive with a woman. Such refusal to drive was grounds for discharge under company policy and Respondent so advised at least one driver who raised this issue. Respondent urges a finding that Petitioner was guilty of "unsatisfactory performance" and was fired for that reason. See Petitioner's proposed findings numbered 14, 15, 16, 17, 18 and 19. Although the evidence establishes that the Chivers were unable to report their precise location on one trip during a scheduled call-in, and that on several trips they made excessive stops, their overall job performance met company standards. Their trip times were somewhat below the company average, but were not the slowest. There were no allegations against them of misconduct, unsafe practices or mishandling of company equipment or cargo. Therefore, "unsatisfactory performance" as a proffered basis for discharge is rejected. Respondent's primary grounds for discharging the Chivers involved their attitude. This reason was given to them at the time of firing along with the unsatisfactory performance assertion. Specifically, they were told that they did not have a "Westinghouse attitude." The Chivers made frequent complaints about the condition of their equipment to their supervisor, Dennis O'Neal. Although these complaints and "write-ups" had at least some validity, O'Neal resented their frequency. On their last trip from Sanford, Florida, to Irwin, Pennsylvania, where Robert Adair was located, the Chivers called on Adair to voice a number of grievances. Mr. Chivers did most of the talking, but Petitioner was present and indicated by her participation that she agreed with the complaints her husband presented. The Chivers complained that other teams were getting the longer, better paying routes and that the dispatcher was not following a first-in, first-out policy. They also accused another team which they met on the highway of being off-route and speeding. The Chivers further complained about their employing company and its practices to other drivers, dock workers, dispatchers and customers. In one case a dock foreman, Mr. Rick Scheaffer, asked O'Neal to keep Petitioner off his dock because of her griping. Petitioner contends that most of the complaining which her employer found unacceptable originated with her husband, and that his complaints were unfairly attributed to her. This argument must be rejected since Petitioner was present at virtually all times when her husbands complained to Adair or O'Neal. These supervisors reasonably understood all complaints to be hers as well as those of her husband by her participation and assent. The parties sought to develop evidence on the basis which drivers were hired and fired. Since Petitioner was the only female driver ever hired by the company (which is now out of business) the relevance of company practices is somewhat limited. Although the company tried to hire drivers as teams whenever possible, it did not fire them together unless both team members were guilty of the same misconduct or both were unacceptable workers. Respondent hired Petitioner in the face of opposition from its then exclusively male driving pool. Their concerns involved possible domestic relation problems which could arise if a married male driver was dispatched on an out of state trip with Petitioner. Respondent's refusal to give in to such pressure is inconsistent with Petitioner's claim that a month and a half later she was fired because of her sex and marital status.
Recommendation From the foregoing, it is RECOMMENDED that the Human Relations Commission issue a Final Order dismissing petitioner's complaint. DONE and ENTERED this 31st day of January, 1984, in Tallahassee, Florida. COPIES FURNISHED: Ransford C. Pyle, Esquire 621 East Washington Street Suite 7 Orlando, Florida 32801 Barnett Q. Brooks, Esquire Westinghouse Building Gateway Center Pittsburg, Pennsylvania 15222 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 31st day of January, 1984. Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle Suite 100, Montgomery Building Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Human Relations Commission Carlton Building Tallahassee, Florida 32301 =================================================================
The Issue Whether Respondent discriminated against Petitioner on the basis of sex in violation of Section 760.10, Florida Statutes, when it terminated his employment.
Findings Of Fact Respondent is a large corporate employer with corporate headquarters outside the State of Florida. Pertinent to this proceeding, Respondent has a large manufacturing facility located in Palm Beach County, Florida. Petitioner is a male who was employed by Respondent at its Palm Beach facility between August 1978 and February 1993. Petitioner is a college graduate who subsequently earned a Master's degree in Business Administration (MBA). Respondent first employed Petitioner as a Financial Trainee, which is designated as a Grade 41 on the system by which Respondent designated pay ranges and relative job responsibilities. Respondent promoted Petitioner to a position referred to as Financial Analyst in 1979, which is a Grade 43 position. Respondent promoted Petitioner in 1981 to a position referred to as Senior Analyst, which is a Grade 45 position. Respondent promoted Petitioner in 1984 and assigned him to its Saudi Arabia Program as the Continental U.S. International Administrator, which is a Grade 46 position. Respondent laterally transferred Petitioner in 1986 from the Financial Department into the Human Resources Department to a position designated as Personnel Representative, which is also a Grade 46 position. Respondent promoted Petitioner in January 1989 to a position designated as Senior Resources Representative, which is a Grade 48 position. Respondent informed Petitioner on February 12, 1993, that his employment would be terminated, effective February 28, 1993. Petitioner's base annual salary at the time his employment was terminated was $56,484.00. As of the formal hearing, Petitioner was working for his wife's appraisal company in a nonpaying job. Karen Roberts is a female who has been employed by Respondent at its Palm Beach County facility since June 1980. Ms. Roberts is also a college graduate who subsequently earned an MBA. In addition, Ms. Roberts has been designated as a Certified Compensation Professional by the American Compensation Association. Ms. Roberts first began her employment with the Respondent as a Financial Trainee, Grade 41. She was transferred out of the Finance Department into the Human Resources Department in July 1984 as a Human Resources Representative, which is a pay grade 45. She was promoted to Senior Human Resources Representative in October 1992, which is a pay grade 48. Respondent's upper management determined in 1992 that it was necessary to reduce the number of its employees as part of an overall restructuring of its operations. The reduction in force, which was to be the largest separation of employees that Respondent had ever experienced, was for valid business considerations which are not at issue in this proceeding. The management group set the target for the number of employees in each department of the Palm Beach facility whose employment would be terminated. The management group decided that the Human Resources Department of the Palm Beach facility, of which Petitioner was a part, would be reduced by between 20-25 employees in February 1993. That decision by the management committee is not being challenged in this proceeding. William Panetta was, at the times pertinent to this proceeding, the Respondent's Vice President of Human Resources for the West Palm Beach facility. The management group informed Mr. Panetta in the fall of 1992 of the upcoming reduction in force and gave to him the targets that had been set for the various departments for the West Palm Beach facility. Soon thereafter, Mr. Panetta began meeting with the heads of major departments to devise a procedure for making the reductions in force. Among the senior staff who met with Mr. Panetta was John Roberson, who was manager of Human Resources for non-engineering personnel. Petitioner worked in Mr. Roberson's department from the time he was transferred to its Human Relations Department in 1986 until the termination of his employment in 1993. Mr. Roberson was Petitioner's second line supervisor. At different times, Bob Vogel, Charles Wilson, and John Hopkins served as Petitioner's direct supervisor. Mr. Roberson was asked by Mr. Panetta to prepare a draft of a proposal for the procedure to be followed in carrying out the reduction in force. This draft was to include a method to identify those employees whose employment would be involuntary terminated. Pertinent to this proceeding, Mr. Roberson's draft included a provision for selecting among multiple incumbents when some job positions or functions were being eliminated. In that situation, Mr. Roberson proposed that seniority be the primary factor and that relative performance of the incumbents be considered only if the more senior employee was ranked as a low performer on his or her annual evaluation. Respondent annually evaluated employees such as Petitioner as being either a "T" (top), a "M" (middle), or an "L" (low). The employees were also given annual evaluations by their supervisors called Performance Management Reports, which rated the employees on a scale ranging between unsatisfactory to exceptional. During his entire tenure with Respondent, Petitioner was rated at least as being fully competent on his Performance Management Reports and, at different times, as being either in the "T" or the "M" category. The procedure drafted by Mr. Roberson was never intended to be the final procedure that would be followed in accomplishing the reduction in force. In late 1992, Mr. Panetta presented Mr. Roberson's draft to the senior staff for comment and revision. The senior staff determined that Mr. Roberson's draft overemphasized seniority and was too inflexible. It was determined that such emphasis on seniority would hamper management's efforts to retain the most qualified employees. The Human Resources Department assigned to each of Respondent's major departments a Personnel Support Representative to assist with employee relations and to provide administrative support in personnel matters. As part of the procedure followed for the 1993 layoffs, the Personnel Support Representative for each department reviewed the candidates for layoffs with the Department Head to determine whether the selection was fair and properly documented. The Personnel Support Representative was to provide support only. Each Department Head had the responsibility for determining the employees within a department to be laid off. During the same time period that senior staff was trying to develop the procedure that would be followed for layoffs, Mr. Roberson met with the Personnel Support Representatives and discussed with them the drafted procedure he had prepared. He informed them that the draft was not the final product and asked for discussion. Mr. Roberson discussed with the Personnel Support Representatives the final policies that senior staff adopted before final selections were made and informed them that rigid adherence would not be given to seniority. Respondent has never used seniority as the controlling factor in any previous layoff. The senior staff decided that it would consider the following criteria to determine which of its qualified employees to layoff: documented poor performance, the elimination or consolidation of different positions, relative performance among the candidates, and seniority. Mr. Panetta determined that those employees of the Human Resources department should be "generalists" who are capable of performing a wide range of responsibilities as opposed to specialists. Respondent's plan was to either eliminate functions that had been performed by specialists or to consolidate those functions with other specialized functions. The employees in Human Resources who would still be employed would be required to take on new responsibilities and to perform tasks that had previously been performed by specialists. In the Human Resources department, an employee would have to assume responsibilities in labor relations, employee relations, and compensation. Mr. Panetta decided after conferring with Mr. Roberson that the Management Training, Placement and Compensation section in the Human Resources department for non-engineering personnel would be eliminated. Senior Human Resource Representatives and Human Resource Representatives were candidates for layoffs and were put into a resource pool. The employees in the resource pool were thereafter considered for other positions by comparing their qualifications with those of employees whose positions were not being eliminated. If an employee in the resource pool was considered to be more qualified than an employee whose position was not being eliminated, the more qualified person in the resource pool would be retained to fill the existing job and the incumbent employee would have his employment terminated. Petitioner and Karen Roberts were assigned to the compensation function at the time of the layoffs, but their positions were eliminated as a result of the layoffs. Petitioner and Karen Roberts were placed in the resource pool. Dave Swanson was employed as a Personnel Support Representative in the Human Resources Department prior to the reduction in force. Mr. Swanson's position was not eliminated, but it was determined that there were employees in the resource pool, including Petitioner and Karen Roberts, who were more qualified than Mr. Swanson. Respondent selected Ms. Roberts to fill the position that had been filled by Mr. Swanson. Petitioner's employment with Respondent was terminated. Petitioner asserts that Respondent discriminated against him on the basis of his sex in deciding to retain the employment of Ms. Roberts and to terminate his employment. There is no assertion by Respondent that Petitioner was an incompetent employee. To the contrary, Respondent considered Petitioner to be a competent employee, which is why he was a candidate to fill Mr. Swanson's former position. At the time of the layoffs, John Hopkins was the Manager of Technical Development and Compensation and the direct supervisor of Petitioner and Ms. Roberts. While Mr. Panetta had the ultimate responsibility for deciding whether Petitioner or Ms. Roberts would be retained in Mr. Swanson's former position, he relied heavily on Mr. Roberson's recommendation in making that decision. Mr. Roberson in turn relied on his own knowledge of the respective performances of these two employees and on information that had been given him by Mr. Hopkins. Mr. Hopkins believed that Ms. Roberts was a more valuable employee than Petitioner. Mr. Hopkins testified that Petitioner failed to timely complete certain assignments, that certain aspects of his performance was not satisfactory, and that he had experienced problems working with others. Mr. Hopkins received separate complaints from Joe Bressin, who was in charge of Executive Compensation, and Henry Ugalde, who was in charge of the Equal Employment Opportunity function, that Petitioner had not rendered satisfactory assistance to them. Petitioner did not meet all of the interim deadlines for preparation of a negotiations book that was being complied for use in labor negotiations. Several of Petitioner's supervisors met with him during his tenure with Respondent to discuss his perceived deficiencies and to review his assignments. Mr. Roberson was aware of these deficiencies at the time he recommended to Mr. Panetta that Ms. Roberts be selected to fill Mr. Swanson's former position. Mr. Hopkins considered Ms. Roberts to be a "solid performer" who was enthusiastic, worked well with others, and was capable of performing a wide range of tasks. Ms. Roberts prepared a book for other employees in the compensation function that detailed the procedures involved in performing hourly compensation duties relative to collective bargaining agreements. In addition, Ms. Roberts was chosen by Mr. Panetta to assist Respondent's negotiating team during negotiations with the labor unions for the 1992-1993 labor contract. Ms. Robert's worked on a complex computer program that computed the costs to Respondent of various collective bargaining proposals. Ms. Roberts was chosen for this assignment because Mr. Hopkins believed her to be the best employee to assume this responsibility. Mr. Hopkins selected her because of her competence, her enthusiasm, her ability to maintain confidential information, and her willingness to work irregular hours. Gender was not a factor in selecting Ms. Roberts for this assignment. Ms. Roberts performed with distinction the duties that had been assigned to her as a member of the negotiating team, thereby favorably impressing Mr. Roberson and Mr. Panetta. Mr. Roberson was aware of Ms. Roberts' job performance at the time he recommended to Mr. Panetta that she be selected to fill Mr. Swanson's former position. Mr. Roberson and Mr. Panetta did not rely heavily on their most recent job evaluations, which were the only documents they reviewed, nor did they consider it significant that Petitioner was in a position that is designated as pay grade 48 when his last evaluation was written and that Ms. Roberts was in a position designated as pay grade 46 when her last evaluation was written. 1/ Mr. Roberson and Mr. Panetta considered the responsibilities and job duties of these two positions to be identical. The relative job performances of Petitioner and Ms. Roberts were evaluated by Mr. Roberson and Mr. Panetta taking into consideration the future demands of the job and were based, in large part, upon direct experience with the two employees. There was no written documentation of their rationale for selecting Ms. Roberts to fill Mr. Swanson's former position. Petitioner established that Mr. Roberson occasionally made comments about attractive female employees and that he seemed to prefer the company of certain female employees, one of whom was Ms. Roberts, at social events. While due consideration has been given this evidence, it is found that the greater weight of the evidence established that Respondent had legitimate, nondiscriminatory business considerations for the employment decision that was at issue in this proceeding. These considerations were not shown to be pretextual. Petitioner failed to establish that Respondent discriminated against him on the basis of his sex by its decision to replace Mr. Swanson with Ms. Roberts instead of with Petitioner. The petition Petitioner filed before the Florida Commission on Human Relations contains an allegation that Respondent discriminated against him on the basis of age. Petitioner abandoned that allegation at the beginning of the formal hearing. The petition Petitioner filed before the Florida Commission on Human Relations also contains an allegation that Respondent discriminated against him by failing to rehire him or recall him after his employment had been terminated. There was no evidence to support that allegation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that adopts the findings of fact and conclusions of law contained herein and that dismisses the Petition for Relief filed by Petitioner. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995.
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed an unlawful employment practice by termination of the Petitioner for discriminatory reasons, based upon her national origin (Panamanian/Hispanic).
Findings Of Fact The Petitioner is an Hispanic female of Panamanian origin. She began working for the Delta Health Group, the Respondent, as a Certified Nursing Assistant (CNA) on or about May 5, 2000. She was generally described by her supervisors as being a good worker. During times pertinent hereto, the Petitioner worked on an evening shift at the Respondent's nursing care facility. One of the residents assigned to her care was L.M., an elderly person. The Petitioner cared for Ms. M. for approximately one year. The Respondent is an employer with more than 15 employees. During times pertinent to this case it operated a nursing care facility located in the vicinity of Destin, Florida, at which the Petitioner was employed as a CNA. The Respondent, in its nursing facility operation, is closely regulated by the State of Florida, Agency for Health Care Administration and, as to its licensed personnel (CNA's, RN's, LPN's, etc.) are subject to licensure and practice standards and regulations of the Department of Health, Board of Nursing, etc. The operative regulations include, as to AHCA, requirements to report any incident involving harm or injury to a nursing home resident, as well as departures from nursing home operational regulation standards and nursing practice standards. There are extensive charting and record- keeping requirements with regard to all care and incidents involving residents. On or about the evening of January 2, 2006, the Petitioner was caring for Ms. M., when Ms. M. told her she wanted to wear some earrings that her grandson had given her. She asked the Petitioner to help her place the earrings in her ears. The Petitioner asked Ms. M. if her ears had been pierced and Ms. M. apparently told her that they had been. The Petitioner put the earrings in Ms. M.'s ears as requested. One went in easily, but the left earring felt somewhat tight. Ms. M. wore the earrings to dinner that night. At bedtime, the Petitioner asked her if she wanted to remove the earrings, but Ms. M. wanted to keep them in. She did ask the Petitioner to remove the earring from her left ear and purportedly asked her to put a string through the hole. The Petitioner maintains that the pierced hole in Ms. M.'s left ear was not opened well enough, and was "clogged-up and dirty." The Petitioner concedes that she put a string through Ms. M.'s left ear by tying it to the left earring and passing the string through the hole, through use of the earring, as Ms. M. purportedly requested. The evidence is conflicting somewhat on this. The Respondent's version of events, it purports to have gleaned from Ms. M., was to the effect that the Petitioner used a needle which she sterilized with a cigarette lighter before passing it through Ms. M.'s ear with the string. The Respondent relies on the out-of-court statement purportedly made by Ms. M., the resident, to its investigating personnel concerning the facts surrounding the piercing (or not) of the ear in question, how the string was inserted, and for what purpose. A hearsay objection was raised about testimony which relied on this statement and the Respondent relies on the hearsay exception for elderly or disabled adults contained in Section 90.803(24), Florida Statutes.1/ Starla Lindaas, LPN, came on duty on January 3, 2006, and noticed the string in Ms. M.'s left earlobe. Ms. Lindaas stated that Ms. M. told her that the Petitioner had pierced her ears. When she examined Ms. M.'s ears, however, she did not notice any redness, irritation, discharge or other issues indicating that any medical problem was occurring. The Risk Manager, Connie Hamilton, knew of and investigated the so-called ear piercing incident, but did not report it to the Department of Children and Family Services, or the Agency for Health Care Administration, because the Petitioner caused no abuse, neglect, or harm to the resident, nor did she intend to do so. The Petitioner was interviewed during the investigation of the incident by the Respondent, on January 3, 2006. The Petitioner related the version of events concerning the ear issue as first described above. The resident, Ms. M., purportedly described them to the Respondent's supervisory personnel as involving the Petitioner "piercing" her ear or ears, by the use of a needle for piercing of her earlobe, inserting the string, or both. CNA's are allowed to place earrings in pierced earlobes for residents, if the ears are already pierced. They are not authorized, and it is beyond their scope of practice, to carry-out ear piercing, however. In any event, the Respondent elected to rely on the version of events related by the resident in her statement, which therefore amounted, in the view of the Respondent, to the Petitioner acting beyond the scope of her CNA practice. She was therefore terminated from her employment on January 3, 2006. The Petitioner's salary at the time of her termination was $31,825.14 annually. During the year of her termination, after her termination, she earned from part-time employment $5,513.28 and also received $6,999.00 in unemployment compensation benefits. The Petitioner adduced testimony concerning a number of instances of what she maintains were disparate treatment occurrences, which she claims amount to national origin discrimination against her status as a Panamanian. She, in essence, claims that the comparator employees, who were all white, or non-Hispanic, were treated disparately by being treated more favorably in purportedly similar instances of employee misconduct and discipline. This testimony applies to both one element of her prima facie case of discrimination based upon national origin, regarding disparate treatment as compared to other employees not of her protected classification, as well as to an attempt to establish an ongoing pattern or pervasiveness of discrimination against Hispanics, as it relates to her attempt to establish discriminatory intent or motivation underlying the employment action of which she complains. This evidence relates to her ultimate burden of persuasion and her burden to show that the employer's reasons were pretextual. In this connection, in May 2004, the Petitioner was reprimanded ("written-up") for cutting a resident's hair, some three months after the event. She maintained that the nurse supervising her asked her to cut the resident's hair. She was written-up for cutting the resident's hair, because it is against policy at the Respondent's facility and beyond the range of practice for a CNA. A beautician is used for all haircutting and similar cosmetic duties at the facility. The Petitioner maintains that one Megan Teibo, a white female, also cut a resident's hair. The Petitioner states that she reported Ms. Teibo to her supervisors, and to the facility's management, but that Ms. Teibo was not disciplined. The Petitioner also contends that it was common practice for employees to be tardy arriving at work for their shift because of the very heavy traffic between Ft. Walton and Destin, the location of the Respondent's facility. She testified that it was routine for employees to call ahead and inform the supervisors that they would be late for work. The Petitioner maintains that she had to do this a number of times and yet she was written-up for being tardy, while other employees who are white were not so reprimanded. Additionally, in February 2004 she was out sick for six days. She had a doctor's excuse justifying her missing work for illness. When she returned to work, however, she contends she was written-up by the administrator and that four or five non-Hispanic employees who where out sick for six or seven days were not written-up. Additionally, Sandy Port, a nurse, was out sick and had a doctor's excuse and was not purportedly written-up. The Respondent's witnesses maintain that all employees, regardless of race or national origin, etc., were treated the same. If they were tardy they were counseled or written-up depending on the situation and the same was true if they were absent from work. They were counseled or "written-up" depending on the circumstances such as repetitiveness and severity. In this connection, the Petitioner only testified to these matters based upon her own opinion and undocumented, uncorroborated conversations she maintained she had with her co- workers, thus purportedly learning that those others who were absent or tardy were not reprimanded or disciplined for it. She offered no evidence, as for instance, obtained through discovery of the Respondent's employee records, that any non-Hispanic, non-Panamanian employees were treated differently for similar conduct involving tardiness (magnitude or degree, etc) and were treated more favorably. The same is true with regard to the category of absences from work for sickness or other reasons. Thus the record testimony in favor of the Petitioner is only the Petitioner's own unsupported opinion concerning these matters. The testimony adduced by the Respondent demonstrates that the Petitioner could not have known directly of any circumstances or details regarding the other employees' disciplinary situations regarding their tardiness or absence records, because she had no access to their records. Thus her testimony is only based on her own subjective opinion and, at most, out-of-court hearsay declarations by non-present, non-appearing, declarants. In July 2004, according to the Petitioner, the Respondent's facility needed CNA's to work the morning shift, which was shorthanded. The Petitioner asked her administrator if she could move from the evening shift to the morning shift and he told her that there were no openings at that time. She contends that white, non-Hispanic employees were, however, allowed to move to those positions, while she was not. In June or July of 2005, Caroline Gatewood, a resident of the Respondent's facility, suffered a fall. Nurse Toni Acosta grabbed her or picked her up without doing an assessment. She started pushing the resident, apparently trying to get her back to her room according to the Petitioner. The incident was reported to the Director of Nursing, and Ms. Acosta was suspended for several days during an internal investigation conducted by the Director of Nursing. The results of that were reported to the Agency for Health Care Administration. Ultimately, however, the nurse was determined to have not been at fault, and was restored to duty and paid for the days she had been suspended without pay. Thus no discipline was actually imposed against her. The Petitioner maintained that about one month after that incident nurse Acosta was accused of verbally abusing the same resident, but no action was taken against her. Ms. Acosta is a white female. The Petitioner merely stated her opinion or her subjective, hearsay-based knowledge regarding the situation, and had no corroborative evidence to show that Ms. Acosta was actually determined to have been guilty of any misconduct about either the pushing incident or the alleged verbal abuse one month later. Thus, it was not persuasively established that Ms. Acosta was disparately and more favorably treated than the Petitioner. In fact, it was not shown that the employees, Acosta and the Petitioner, were similarly situated, by committing similar purported acts of misconduct, concerning which they were allegedly disparately disciplined, or not disciplined, for that matter. In March 2005, the Petitioner was verbally accosted by a cook at the facility by the name of Mark. He apparently became angry and yelled at the Petitioner, using obscenities directed at her. She reported the conduct to the Assistant Director of Nursing, the Director of Nursing, and the Administrator. She maintains that no action was taken against the cook. Here again she is testifying of her own subjective knowledge or belief. She did not establish that she was aware of all facts concerning whether counseling or other disciplinary action may have been taken against the cook. In any event, even if no action was taken, it was not established that the Respondent condoned such conduct or allowed it to recur, once the Respondent knew of it. Such an isolated incident does not constitute the condonation of discriminatory conduct by a co- employee, on the part of a supervisor. Finally, in October 2005 the Petitioner had to go to Panama for several weeks for the funeral of her father and her brother. When she returned to work she maintains that she was written-up for a tardy instance "for three minutes," which occurred approximately a month before that. She maintains that employees "Todd," "Shauna," "Art," and "Deena" had come to work late and were not written-up. Here again this is her unsupported, subjective opinion without reference to any documentation from the Respondent's employee records, for instance. In fact, witness Nicole Coffield, for the Respondent, rebutted this testimony by establishing that these employees, indeed, were disciplined for their tardiness. Moreover, it was not shown that their degree or repetitiveness of tardiness, or the other circumstances surrounding it, were the same or similar to the Petitioner's. It was thus not established that these purported comparator employees indeed were similarly situated to the Petitioner in the circumstances of their conduct and any discipline (or the degree thereof). Additionally, the Petitioner recounted an instance in which she was accused of stealing cash donations, and was suspended for several days. She was accused of taking a "donation bucket" from a nurses station, and the money it contained, for her personal use. The matter was investigated and the Respondent concluded it by accepting the Petitioner's explanation. She had taken the money, with her supervisor's approval, to buy flowers or a gift for a co-worker, who was absent and gravely ill. The Petitioner was exonerated by the Respondent, restored to duty, and paid for the days she was suspended. The suspension during the pendency of the investigation was a routine practice according to the Respondent's established, normal policy concerning disciplinary procedures. In summary, the Petitioner admitted putting the string through the resident's ear and that she did not ask her supervisor for permission. The Respondent investigated the report purportedly made by Ms. M., the resident. The investigation was conducted by the Director of Nursing, the Risk Manager, and the Director of Human Resources. The Petitioner was suspended pending the results of the investigation, according to the Respondent's regular stated policy. In its investigation the Respondent determined to accept the version of events attributed to the statement or statements of Ms. M., the resident, as corroborated by the testimony of Ms. Lindaas, the LPN. Whether or not the resident's statement was true and whether or not it is inadmissible hearsay, the Respondent established that it relied upon that report in deciding the outcome of its investigation. Since the Respondent relied on the statement after corroborating it by Ms. Lindaas's reporting of the events, it established that it had a reasonable basis at the time for believing that the relevant events involving the Petitioner occurred in that way. The Respondent thus determined that the Petitioner had departed from the proper practice and appropriate conduct of a CNA and that this was a "category one offense" under the Respondent's corporate polices and disciplinary procedures. A category one offense requires suspension pending an investigation, and then either termination, or restoration of employment, with payment for the suspended period of time, depending on whether the allegations are determined true or not. In this instance, based largely on Ms. M.'s statement, corroborated by the statements of other personnel, who had observed or conversed with Ms. M., the Respondent determined that the Petitioner had not merely placed the earrings in the resident's ear, but had actually pierced the resident's ear with a needle. This was an inappropriate departure from the standards of conduct and practice of a CNA, which the Respondent established was a category one violation in its disciplinary policy, for which she was therefore terminated.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 28th day of November, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 28th day of November, 2007.
The Issue Did Respondent engage in unlawful employment practices against Petitioner on the basis of race, and if so, what remedies are available to redress the wrong? Sections 760.10 and 760.11, Florida Statutes.
Findings Of Fact Petitioner meets the definition of "person" in Section 760.02(6), Florida Statutes, entitled to assert claims for relief under the Florida Civil Rights Act. It was not disputed that Respondent is an "employer" within the meaning Section 760.02(7), Florida Statutes. Based upon the record it is inferred that Respondent is an employer subject to the Florida Civil Rights Act in the conduct of its employment practices. Respondent is a corporation with three shareholders who each have a one-third interest in the business. In the corporation the shareholders are Vehad Ghagvini and his brothers. Vehad Ghagvini is the president of the corporation and responsible for the day-to-day operation. Vicki Goodman serves as the Human Resources Administrator for the company and is responsible for matters associated with claims of discrimination by company employees. At times relevant Larry Smith was a supervisor for Respondent. On two separate occasions Petitioner worked for Respondent. The first occasion was from November 8, 1999, through June 7, 2000. His position with the company was that of a laborer. When he separated from employment on June 7, 2000, it was based upon his own decision. At that time it was indicated in his personnel record that Petitioner would be subject to being rehired and it was commented that Petitioner was considered to be a hard worker and reliable. The personnel records show the signature of Larry Smith as supervisor when Petitioner terminated his employment with Respondent on June 7, 2000. Petitioner returned to employment with Respondent in October 2000, and was involuntarily terminated on December 5, 2000, from his position of a laborer. According to the papers describing his separation from employment on December 5, 2000, he was terminated for "failure to attend job responsibilities; excessive absences on Saturdays." The form indicated that his work evaluation was poor. It was indicated that Respondent did not intend to rehire Petitioner beyond that date. Other comments in the discharge indicated that Petitioner "was a reliable and diligent worker during previous employment with the company but failed to work to same standards this time around." Petitioner was required to work on Saturday. He did not work on October 7, 2000, a Saturday, the Saturday of the week of October 9, 2000, the Saturday of the week of October 23, 2000, the Saturday of the week of October 30, 2000, the Saturday of the week of November 13, 2000, and Saturday, December 2, 2000. During this time frame Petitioner worked as a service truck operator with duties that included fueling Respondent's equipment on road construction jobs that were ongoing on the Saturday dates that Petitioner missed. Before his termination Petitioner had been counseled on October 17, 2000, and in November 2000 concerning his absences on Saturdays. Petitioner's testimony that he was only required to work on Saturday on a voluntary basis and that meant that he only needed to work one Saturday in his more recent employment is not accepted. Attached to Respondent's Exhibit numbered 5 is an EEO summary from Respondent pointing out that employees of various races had been subject to termination in a pattern that does not discriminate based upon race. Petitioner's termination on December 5, 2000, is in keeping with that practice. Petitioner has portrayed his dismissal from employment with Respondent as originating with his mistreatment by his supervisor, Larry Smith, not his absence from the job. As Petitioner describes it, about a week or two before he was terminated in December 2000, Larry Smith approached Petitioner and told Petitioner that he did not want Petitioner having conversations with females on the job. Petitioner is an African-American. At that time there were two Caucasian females working at the same location Petitioner worked. In particular, one of the females on the job asked Petitioner to take her position directing traffic on the roadway while she went to the restroom. Before she returned Mr. Smith pulled up and saw Petitioner holding the flag for directing traffic. Mr. Smith asked Petitioner why he was holding the flag. Petitioner explained that he was helping the female employee while she went to the restroom by directing traffic until she returned. Later Mr. Smith came back and told Petitioner that he did not want Petitioner having conversations with that female employee. Petitioner surmised that the reason that Mr. Smith had for Petitioner not speaking to the female employee was in relation to the difference in their races, Petitioner's race and that of the female employee. This opinion was reinforced in Petitioner's mind because a similar conversation about not speaking to the female employee occurred three times. Mr. Smith stated his position in such a manner as to have his comments pertain to both female employees on the job. Mr. Smith's remarks were not stated in a manner where he literally said that he did not wish Petitioner to speak to the female employees because Petitioner was an African- American or Black and that the other persons were Caucasian or White. Another incident described by Petitioner was one in which an African-American employee of Don Olsen Tire Company came to repair a tire on a piece of equipment belonging to Respondent. One of the female employees asked for a ride with that individual in his truck back to another location where her van was located. Petitioner, the Don Olsen truck driver, and the female employee rode in the tire repair truck. This was observed by Mr. Smith. Mr. Smith approached the female employee and told her that he did not appreciate that she was disrespecting him and his wife by being in the truck with two black guys. Later that day, a Friday, Mr. Smith approached Petitioner and stated that he did not want Petitioner having a conversation or anything to do with females on the job. The following Monday Petitioner was terminated. Petitioner believes that he was terminated because of the circumstances with the female employees of another race that have been described. Mr. Smith also told the Don Olsen employee that he did not want that individual back on the job site fixing anything because the white female employee had been in that individual's truck. There was no showing that Petitioner made Respondent's upper level managers aware of Mr. Smith's comments concerning conversations which Petitioner had with Caucasian females on the job. According to company records, at one time Petitioner had been informed by Respondent concerning the procedures for making complaints about employment practices related to issues of alleged discrimination. At the time that Petitioner was terminated, Mr. Smith pulled up beside him on the job site and commented to the effect "I don't need you no more." That was the only reason given at a subsequent time when Petitioner spoke to Mr. Ghagvini concerning Petitioner's termination. Mr. Ghagvini said that he had heard from Superintendent Smith and that he was going to leave it at that. Petitioner presented no evidence concerning his claim that Whites were allowed to stand around and talk and that black employees were not allowed to do so, or that black employees were in any manner worked harder than white employees. Notwithstanding the prospect that Mr. Smith's motives when telling Petitioner not to speak to female employees on the job was racially motivated, the reason for Petitioner's dismissal was in relation to his failure to attend his duties on Saturday at various times. That explanation was not created as a pretext to divert attention from racial discrimination. After his termination from Respondent, Petitioner filed for unemployment and received those unemployment payments until his eligibility ran out. In that time period he looked for jobs. Eventually Petitioner obtained a position as a pipe layer with Sayaler Utility. He began employment with that company in October 2002, and the employment was continuing at the time of the hearing. Petitioner receives $8.00 an hour for his work and works on an average 35 hours a week. When he was dismissed from his employment with Respondent, Petitioner was receiving $8.50 an hour and was working an average of 35 hours a week.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by FCHR dismissing Petitioner's Petition for Relief in all respects. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 14th day of February, 2003. COPIES FURNISHED: Lonnie Jennings Post Office Box 782 Greenville, Florida 32331 Vehad Ghagvini, President Vicki Goodman, Personnel Representative Sandco, Inc. 2811 Industrial Plaza Drive Tallahassee, Florida 32310 Cecil Howard, 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
