The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Rita Smith who, a friend testified, has "got to be" 90 years old, has owned the house at 1210 Alcaniz Street in Pensacola, Florida, at least since her husband died on March 20, 1982. Before he died, he gave her money to fix up the house, which she has rented. It needed a new roof, among other things. She spoke to respondent M. T. Motes after getting an advertisement for Mike's Painting & Contracting Company in the mail. It read: Painting -- Carpentry -- Remodeling Addition Carports Residential Specialist Prompt FREE Estimates (904)968-5912 ALL WORK GUARANTEED MIKE'S PAINTING & CONTRACTING CO. Post Office Box 261 Gonzalez, Florida 32560 Respondent himself--she knew him as "Mike"--seemed like he wanted to work so she sent him to take a look at what was involved. First she misdirected him to 1012 Alcaniz Street but the people who lived there told him there must be some mistake. The second time Mrs. Smith got the address right, and respondent Motes looked things over at the right house. They eventually agreed on a price of $2800, of which $1500 was to be paid in advance. On April 11, 1983, Charlie Freeman went down to the bank with Mrs. Smith to help her get the money and was present when it changed hands. Among the things Mr. Motes agreed to do in exchange for the $2800 was put on a new roof. As respondent's counsel conceded at hearing, there never was a written contract, but M. T. Motes did acknowledge in writing receiving "$1500 deposit toward repair of rental unit" from Rita Smith. He signed the receipt without mentioning Mike's Painting & Contracting Company. Respondent Motes and at least one helper worked on the house on April 12, 1983, and again on April 13, 1983. They patched the porch floor, put in some new rafters on the porch, and did some patching of the porch roof, replacing bad wood with good. After he had Mrs. Smith's $1500, Mr. Motes told Mr. Freeman that, although he was not a roofer, he would arrange for a roofer to do the roofing work, but the roof was never recovered. A. L. Cooper, an investigator for the Escambia County Construction Competency Board, inspected the house at 1210 Alcaniz Street on October 25, 1983, at petitioner's request. What had been accomplished there a man and a helper could do easily in two days. The going price for a job like the one Mr. Motes did ranges from $450 to $525. Mr. Motes, who is not licensed as a residential contractor, never obtained a building permit for the work he did for Mrs. Smith, which included "quite a few code violations." Mrs. Smith reached Mrs. Motes by telephone but did not succeed in her efforts to track down Mr. Motes. She made no payments beyond the initial one.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondent M. T. Motes pursuant to Section 501.207(1), Florida Statutes (1981). That petitioner dismiss the administrative complaint filed against Mike's Painting and Contracting Company. DONE and ENTERED this 3rd day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of February, 1984. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Bruce A. McDonald, Esquire Emmanuel, Sheppard & Condon Post Office Drawer 1271 Pensacola, Florida 32596 Curtis A. Golden, State Attorney First Judicial Circuit of Florida Post Office Box 12726 190 Governmental Center Pensacola, Florida 32501
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner had been subjected to a discriminatory practice or decision based upon his race.
Findings Of Fact The facts are hereby found to be as delineated above in the preliminary statement of this Recommended Order and they are incorporated by reference as findings of fact. The Petitioner has twice defaulted, failed to attend the hearing to present his case, and concomitantly failed to contact the Division of Administrative Hearings, the administrative law judge, or any party or party's representative to advise that he would not be able to attend and conduct the hearing on either of the noticed occasions. Such conduct abuses the legal process offered to the Petitioner by Chapters 760 and 120, Florida Statutes. The Petitioner has defaulted on two occasions in this proceeding. The Respondent has expended significant time and funds to prepare for and attend these hearings. The Respondent, by motion, has asserted that it has incurred costs and reasonable attorney's fees in the following total amounts: costs; $1,499.25, and attorney's fees are requested in the amount of $4,478.50. There has been no response to the motion. Accordingly, in view of the foregoing, it is concluded that this matter should be dismissed for lack of prosecution. The motion has preserved the request for fees and costs, which can be addressed once the Commission, by entry of the final order, has determined that the Respondent is the prevailing party. See § 57.105(5), Fla. Stat. Ruling on that motion is reserved until after the entry of the final order.
Recommendation Having considered the foregoing findings of fact, conclusions of law, argument of the parties, and the pleadings, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety while reserving determination of the issues of costs and attorney's fees. DONE AND ENTERED this 5th day of July, 2005, 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 5th day of July, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 G. Thomas Harper, Esquire Harper Gerlach, LLC 4110 Southpoint Boulevard, Suite 228 Jacksonville, Florida 32216 John F. McBride 201 North Cherokee Street Madison, Florida 32340
The Issue The issue in this case is whether Petitioner was wrongly terminated from employment by Respondent, and, if so, whether monetary damages are warranted.
Findings Of Fact Petitioner, Henry Woodie, is a 66-year-old African- American man. He has a bachelor's degree in math and education, a bachelor's degree in accounting, and a master's degree in business administration. Petitioner first became employed by Respondent in August 2004, as a DCC at Ranier House, a group home owned and operated by Respondent, Independent Group Home Living (IGHL). In February 2007, Petitioner was promoted to the position of overnight (or nighttime) ARM for Ranier House. This promotion occurred after Petitioner filed a lawsuit against Respondent for discrimination. A fellow employee (Sarah McElvain, a white female) had been promoted to ARM for Ranier House some months earlier. Petitioner felt slighted because he had not been granted an interview, although he had more formal education than McElvain. However, McElvain had considerably more experience in the healthcare industry than Petitioner at that time. Nonetheless, Respondent created a position for Petitioner equal in status to the position McElvain obtained. In February 2007, Petitioner was made the overnight ARM; he and McElvain were then co-managers of the Ranier House as McElvain took the day shift. Neither had supervisory status over the other. Each was responsible for assisting developmentally- disabled adults at Ranier House by providing hands-on assistance with daily living activities. Petitioner worked from approximately midnight until 8:00 a.m. as the nighttime ARM. McElvain's hours were generally 9:00 a.m. until 5:00 p.m. The two managers' paths did not cross very frequently, although McElvain would come in early on many occasions to have her morning coffee and chat with the DCC workers. She may or may not have contact with Petitioner during those visits. In mid-July 2007, Petitioner noticed that there was a shortage of available food products at Ranier House. Inasmuch as Petitioner was responsible for preparing bag lunches for the customers (residents of the house), he purchased some lunch meats and other products from his personal account on July 30, 2007, at 2:39 p.m., i.e., outside his normal work hours. It was understood that any such purchases would be reimbursed. Petitioner contends the food shortage existed because McElvain was overspending the funds budgeted for food, thus resulting in shortages. However, McElvain made food purchases using a WalMart debit card provided by Respondent. The card was replenished with funds each month by Respondent's corporate offices in New York. If the card was not timely replenished, McElvain could not make food purchases. This is the more reasonable and likely explanation of why shortages sometimes occurred. Any time a food shortage occurred, one of the ARMs could make a purchase with their own money (if they were able) and then obtain reimbursement from the corporate office. At 10:41 p.m. on July 30, 2007, some nine hours after Petitioner had made a food purchase using his own money, McElvain made a very large purchase ($711.11) of food and other items using the corporate WalMart card. McElvain was also shopping outside her normal work hours. McElvain brought the groceries to Ranier House at around 11:30 p.m., i.e., just prior to Petitioner coming on duty for his regular night shift. McElvain and DCC LaShonda Hemley sorted the purchase by item type. They then distributed the items to the rooms or areas where those items would ultimately be put away for storage. For example, cleaning products were left near the storage closet; food was left near the refrigerator or pantry; household goods were left in the kitchen, etc. After the food items had been distributed, McElvain saw Petitioner in passing and told him the goods needed to be put away. She then left the Ranier House. Petitioner does not specifically remember being told to put away the groceries. He does remember being told that the groceries were being distributed around the house so they could be put away, but assumed that someone else would do that job.2 McElvain and Hemley did not put the groceries away because of several stated reasons: McElvain had been working and going to classes all day and she was tired; the night shift was coming on duty and would be paid to put the groceries away, whereas McElvain and Hemley would have to be paid overtime to do that job; and McElvain made a presumption that Petitioner would follow through on her statement that "the food needs to be put away." Neither Petitioner, nor his DCC staff put away the food and supplies. As a result, dangerous chemicals were left sitting in the hallway all night long. Perishable foods were left in the garage (right next to the refrigerator) all night long and spoiled. Petitioner did not put away the food because of two stated reasons: Usually the person who buys the groceries puts them away; further, he had previously suffered a stroke and did not feel fully recovered. As for his medical condition, his physician had released Petitioner to work as of July 9, 2007 (several weeks prior to the incident in question), but Petitioner did not personally believe he was fully able to perform his duties. He did not make a request to his employer for a lighter work load or relief from his duties, however. Further, the final hearing was the first time Petitioner raised his health concerns as a reason why he did not put the groceries away. That testimony is not credible and flies in the face of the fact that Petitioner said he put away the groceries that he had purchased. Petitioner does not remember McElvain asking or telling him to put away the groceries. He says he would have, had he been asked. This statement is not credible since the groceries were in full view throughout Petitioner's shift, but he did not put them away. At some point during the night of July 30 or 31, 2007, Petitioner opened some of the bags containing perishable foods and used some of them to make sandwiches for the customers. He did not put the opened packages or any of the other bags of groceries into the refrigerator at that time. Petitioner does not accurately remember, but believes the lunch meats he used may have come from food he had bought (and put away) earlier in the day. Besides the perishable foods, there were also some bleach and cleaning supplies left unattended. These items were placed on the floor in a hallway immediately adjacent to a locked storage closet where they are to be stored. The closet was locked and the keys were located in the office at Ranier House. Petitioner maintained at final hearing that he did not see the items even though they were right next to customer rooms (which are supposed to be checked every 15 minutes throughout the night). It is hard to reconcile Petitioner's statement with the pictures of the bleach introduced into evidence at final hearing. The location of the bleach is patently obvious to even the most casual observer. Further, a letter written by Petitioner to an unknown recipient clearly states, "When I came to work at Mid-night [sic], I noticed about 50 bags of groceries spread out on the floors of different rooms." This letter, which Petitioner admits writing, contradicts his contention that he did not see the goods. One of the concerns about the bleach was that one customer was prone to getting up at night and finding something to drink. He would apparently drink anything, including bleach. Knowing that, it is unconscionable that Petitioner would allow the bleach to sit in close proximity to the customer bedrooms over an entire eight-hour shift. On July 31, 2007, McElvain came to work around 8:30 a.m. When she passed Petitioner on her way in, he said something akin to "I'm out of here" and left. McElvain then spotted the spoiled food and other items which had not been put away. She became extremely angry about that negligence. McElvain sorted through the food products and identified $167.27 worth of groceries that were no longer edible. She took pictures of the bags of groceries that were placed in different areas around the house. Then she called her supervisor, Joyce Herman, to lodge a complaint. McElvain told Herman that she (McElvain) had instructed Petitioner to put away the food items or, at least, had told Petitioner that the items needed to be put away. Herman contacted Petitioner at his home, inquiring as to why he had not put the groceries away. He said that he had not been told to do so. Herman says that the job descriptions for ARMs would suggest that someone needed to put the groceries away; if one ARM didn't, the other should. She places the primary blame in this case on Petitioner because the groceries were left out for his entire shift. Herman instructed Petitioner not to contact McElvain, but he did so anyway. Petitioner left a message on McElvain's home phone and then one on her cell phone. The messages were not preserved and could not be played at final hearing. However, a transcript of the home phone message, which both parties indicated was an accurate reflection of what was said, reads as follows: "Yes, Sarah, this is [Petitioner]. I was wondering why you told Joyce [Herman] that lie that you told me to put the groceries away and I didn't. Number one, you don't tell me what to do and number two, you could have put the groceries away yourself. Give me a call." McElvain says part of the message was stated in a "nasty tone," but Petitioner disagrees. McElvain contacted Herman and forwarded Petitioner's voicemail message so Herman could listen to it. Both McElvain and Herman describe the tone in Petitioner's voice as angry and confrontational. The voicemail was alternatively described by Respondent as "threatening," "confrontational" or "upsetting." Petitioner admits that he was angry when he made the call and might not have made the call had he not been angry. Petitioner and McElvain did not appear to have had a smooth or cordial working relationship, although they were peers. Upon hearing the voicemail and considering the facts as to what had occurred, Herman and her subordinate, Doris Diaz, made the decision to terminate Petitioner's employment. The basis of the termination was violation of the IGHL Code of Conduct, specifically the following language: "[D]ecisions on disciplinary action to be taken will be up to and including discharge. The following are examples of unacceptable behavior. . . . Confrontation with customers or co-workers." Petitioner acknowledged receipt and understanding of the Code of Conduct. Petitioner requested of Respondent a letter setting out the reason for his discharge. He was told that IGHL policy did not allow for a written statement; however, a letter was thereafter sent to him stating the basis for Respondent's action. The letter is unequivocal that the employer's reliance on confrontation with a co-worker was the basis for terminating Petitioner's employment. Petitioner presented no competent substantial evidence to support his claim of race, gender, or age discrimination as the basis for his termination from employment. Petitioner was promoted from DCC worker to nighttime ARM by IGHL. His promotion included a substantial salary increase, but not much change in his duties or responsibilities. He was, by his own admission, probably overpaid for the job he was performing. He claims that his termination from employment was for the purpose of eliminating this particular position. There is no evidence to support that contention.3 Petitioner claims retaliation may have occurred because of the fact that he pointed out McElvain's failure to stay within her prescribed food budget. There is no evidence that McElvain strayed from her budget. Rather, the evidence shows a failure on the part of IGHL's corporate offices to stay current when replenishing the WalMart card used for making purchases. The 90-day evaluation for Petitioner after his promotion to ARM is acceptable, but is considerably less laudatory in nature than McElvain's evaluation. It is clear Petitioner did have some minor issues relating to other employees, but that is often the case when someone is promoted from within an organization. If Petitioner is claiming retaliation based on his previous claim of discrimination against his employer, that claim is not supported by the evidence. As a matter of fact, Petitioner was promoted, not fired, as a result of the prior claim he filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding Respondent not guilty of an unlawful employment practice and dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 29th day of September, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2008.
The Issue Whether Petitioner was discriminated against by the Respondent based on race, and/or retaliated against due to the filing of a charge of discrimination with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Ronald Wilson, is an African-American male. Petitioner was employed with TMH on June 21, 1999, as an environmental services technician. On January 19, 2001, Petitioner received a disciplinary corrective action for discourtesy to a hospital visitor who had complained about Petitioner’s rude and overbearing behavior towards her in a visitor’s waiting area. After admitting the essential facts, Petitioner was suspended for two days for this infraction. On June 27, 2001, Petitioner filed a charge of discrimination with the FCHR, alleging he was wrongfully suspended because of his race. On September 5, 2001, Petitioner was told that his loan application with TMH Federal Credit Union had been denied. Petitioner told a credit union employee, Grace Chambers, that “God doesn’t appreciate people being treated this way” and “Someone is going to have some bad luck,” or words to that effect, when she advised him that his application had been denied. Although Petitioner was speaking metaphysically and did not intend to threaten Ms. Chambers, Ms. Chambers was upset by Petitioner’s comment, perceived Petitioner's comment as a threat and reported it to her supervisor, Marion McCaskey, President of the TMH Credit Union. McCaskey and Chambers, in turn reported Petitioner's threat to Charles Garner, Director of Security at TMH. Ms. McCaskey also reported that Petitioner was known for being unduly persistent in obtaining approval for a loan to the point she had become uncomfortable, albeit not physically threatened, in dealing with Petitioner. Mr. Garner reported Petitioner's conduct to his supervisor, Ron Dorsey. On September 6, 2001, Mr. Dorsey filled out a disciplinary action form recommending Petitioner's discharge because of his comment to Ms. Chambers. Because of Petitioner’s disciplinary history of insubordination and discourtesy, the recommendation was approved by TMH Human Resources, and Petitioner was given notice of his discharge on December 11, 2001. TMH's policy prohibits discourtesy to visitors and other employees, and threats to co-workers. Both of these violations are grounds for discharge. Petitioner produced no evidence that any other non- minority employee was charged with breaking these rules and was treated better. Without such evidence, Petitioner failed to establish any direct evidence that his suspension and discharge were racially motivated. Likewise, Petitioner failed to establish any circumstantial evidence of racial discrimination, since Petitioner’s statements to Ms. Chambers could arguably be considered a threat directed towards her, and there was no evidence that Ms. Chambers’ reaction was not genuine. Petitioner produced no evidence that Dorsey, Garner, Chambers, or McCaskey had notice or knowledge of his charge of discrimination when he was discharged. Therefore, Petitioner has failed to establish that he was discharged on September 11, 2001, in retaliation for filing the charge of discrimination on June 27, 2001. Petitioner produced no evidence that he suffered any past or future wage loss as a result of his discharge from TMH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of March, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 12th day of March, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Ronald Wilson 816 Cochran Drive Tallahassee, Florida 32304 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At the time this matter was called for hearing, counsel for all parties stipulated and agreed that probable cause existed for proceedings in circuit court. There was no stipulation as to the accuracy of the factual allegations of the administrative complaint, but there was agreement that there was no impediment of any kind to circuit court proceedings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to institute judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 4th day of October, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 4th day of October, 1983. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 James Fletcher Fleming, Esquire Post Office Box 1831 Pensacola, Florida 32598 Carey D. Bearden, Esquire 717 St. Charles Avenue New Orleans, Louisiana 70130
The Issue : The issue to be resolved in this proceeding concerns whether Petitioner has a disability, whether she was discriminated against based upon the disability, whether there was a reasonably requested accommodation which was refused by the Respondent employer, and whether it maintained a hostile working environment.
Findings Of Fact This cause arose upon the filing of a Charge of Discrimination and ultimately a Petition for Relief by the above-named Petitioner against the Respondent, Principal Senior Living Group, d/b/a Benton Village (Benton Village or Respondent). The Petitioner was an employee at the Respondent's assisted living and memory care facility, located in Panama City, Florida. That facility employs approximately 28 to 30 employees and had 53 residents as of the time of hearing. The Respondent has an equal employment opportunity policy in place which precludes discrimination on the basis of any protected status including handicap or disability as to any employees, customers, vendors, or applicants for jobs. The Petitioner signed a document indicating that she had received a copy of that policy when she began employment on or about January 29, 2007. The Respondent, enforces the policy against discrimination and harassment and encourages employees to bring any such discrimination or harassment issues to the Respondent's attention so that it can take necessary steps to correct the situation. The Petitioner received a handbook at the beginning of her employment period that outlined the Respondent's benefits, practices, and policies. The Equal Opportunity Policy is restated in that handbook. On page 18 of the handbook under the title "Discourtesy or Disrespect," the Respondent stated a rule as follows: We expect all employees to be courteous, polite and friendly to our residents, vendors, and to their fellow employees. No one should use profanity or show disrespect to a resident or co-worker, or engage in any activity that could harm the company's reputation. The Petitioner began working for the Respondent in early February 2007 as a personal care assistant (PCA). Her general job description included assisting residents with personal care and activities of daily living and performing daily housekeeping tasks. Mr. Alan Williams is the Respondent's executive director. His duties involve resident care staffing including evaluation for promotion and administering discipline and managing the facility's budget. Mr. Williams was responsible for evaluating the Petitioner's job duties and performance. The Petitioner's immediate supervisor was Tiffany Sims who was the Resident Services Director while the Petitioner was employed at the Respondent's facility. The Petitioner is hearing-impaired and wears a hearing aid that allows her to hear within a normal range and follow normal conversations. She does have difficulty hearing when people speak in a low voice and at times has to request them to speak louder. The Petitioner acknowledged that her hearing aid allowed her to perform her job without any special treatment. Moreover, she was able to attend training course, which involved listening to a lecturer in a classroom, and did not request or need any special accommodation to understand the lecturer. When the Petitioner was hired by the Respondent, she did not tell anyone she had a disability that prevented her from performing the job duties in her job description. She received the same training as the other employees and did not request or receive accommodations for her alleged hearing impairment during the training process. She acknowledged that she did not request special treatment because she did not need special treatment. During her testimony at hearing she admitted that she had never requested an accommodation of her employer. During less that three months of employment she was disciplined once by Ms. Sims and on two separate occasions by Mr. Williams. The Petitioner admits receiving corrective action admonishments from Ms. Sims on or about February 8, 2007. The corrective action document informed the Petitioner that there had been several resident complaints regarding the Petitioner's resident care and the care with meal assistance. The corrective action also embodied an instruction to the Petitioner that within 30 days she should show significant improvement with care of residents, with no resident complaints or she could be subject to termination. Mr. Williams disciplined the Petitioner on February 26, 2007. He was notified on that occasion by Supervisor Sandy Simon and his Assistant Director Renee Rhodes, that the Petitioner had been observed watching television by herself in the Alzheimer's ward. Mr. Williams went to an office where he could view a security monitor and personally observed the Petitioner watching television by herself. Mr. Williams accordingly executed a corrective action form or memorandum to the Petitioner, which the Petitioner admits receiving. Mr. Williams administered discipline to the Petitioner on a second occasion on Tuesday, April 3, 2007. Mr. Williams had learned that the Petitioner had been involved in an altercation with a resident that involved raising her voice, yelling and engaging in disruptive behavior. Mr. Williams informed the Petitioner that this was unacceptable behavior and reflected badly on the Respondent. The Petitioner admitted the occurrence to Mr. Williams when he questioned her. There is a dispute over whether the Petitioner quit or was terminated as a result of this discussion. Mr. Williams established that, under the duly-adopted policy, arguing with a resident can be a terminable offense. Mr. Williams' testimony is deemed credible and is accepted. It was thus established that the Petitioner became angry and informed Mr. Williams that she was quitting her employment during the course of this discussion. One other incident occurred with Mr. Williams when he terminated an employee because the employee had yelled or cursed at a coworker. The employee who was terminated did not have any sort of disability of which Mr. Williams was aware. Mr. Williams' undisputed testimony shows that the Petitioner's hearing impairment did not play any role in the decision to discipline for the television incident, nor in the decision to speak to her about the altercation with the resident or with any other employment decision he made with regard to the Petitioner. The Petitioner admitted that Mr. Williams never made any negative comments to her about her hearing or hearing impairment. The Petitioner contended that some co-workers made fun of her hearing impairment during the course of her employment. The Petitioner acknowledged, however, that she never complained of this to the Human Resources manager or to Mr. Williams, even though she had received a copy of the company's policies against harassment and discrimination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and 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 subject petition in its entirety. DONE AND ENTERED this 15th day of May, 2008, 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 15th day of May, 2008. COPIES FURNISHED: Demetrice Worthy Post Office Box 121 Panama City, Florida 32401 Scott E. Wood, Esquire 990 Hammond Drive, Suite 910 Atlanta, Georgia 30328 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
Findings Of Fact In March of 1983, Ms. Yvonne LeBerg purchased a green 1972 Pontiac Catalina from respondent MPG Economy Motors (MPG), after a conversation with respondent Leland A. Taylor. She told him she wanted to give her daughter and her family a car, and that her son-in-law could fix any minor problems. Mr. Taylor told her that the 1972 Pontiac (the car) had a hole in the trunk from rust; and there was some talk of "oil in the bottom"; but he assured her that the car was in "good running condition." Ms. Cardinale Williams, a friend of Ms. LeBerg who overheard discussions between Mr. Taylor and Ms. LeBerg, remembers Mr. Taylor's presentation that the car was in good running condition. Ms. LeBerg decided to buy the car, made a deposit against the purchase price, and left with Ms. Williams. Wallace Carter, who is married to Ms. LeBerg's daughter Suzanne, picked the car up and closed the transaction on March 12, 1983. Neither he nor Ms. LeBerg drove the car beforehand, although he did start the engine and suggest a test drive. Mr. Taylor said he wanted to get home to supper. As far as the evidence shows, Mr. Carter was aware at the time that the rear view mirror had come unattached and needed regluing. At no time did Mr. Taylor or anybody else disclaim any warranty in writing or otherwise. Boy scouts were in the car on an outing and Mrs. Suzanne Carter was driving, when the car caught fire; smoke billowed and everyone escaped unharmed. The fire is thought to have been caused by some electrical problem. The headlights have not worked since, and the car has hardly been driven since. About three months later, the Carters asked Mr. Wayne Sturdivant a "service advisor" at the local Pontiac dealer, to make a visual inspection of the car and estimate the cost of repair. The exhaust system needed replacement. A power steering hose leaked fluid, as did the transmission, which required a new front pump seal. Valve cover gaskets needed replacement. In addition, the air conditioning compressor was out, and, of course, the headlights did not work. According to Mr. Sturdivant's uncontroverted testimony, only the power steering and exhaust problems were serious enough to affect safety. The record does not establish the reasonable cost of repairs necessary to put the car in good running condition. The Carters brought their problems with the car to Mr. Taylor'S attention. They also complained of poor gas mileage and cracks at the edge of the windowshield that Mr. Carter uncovered when he removed some chrome trim. At one time Mr. Taylor offered to take the car back on consignment, do some repairs, and make the Carters whole (except for registration fees) if it could be sold for $100.00 more than Ms. LeBerg paid for it, and if Ms. LeBerg would withdraw her complaint. Negotiations faltered, however, and were eventually broken off, with Mr. Taylor declining to effect any repairs or rescind the sale. THE IMPALA The day the car she then had threw a rod, Ms. Barbara J. Blinz Wilson left it at the MPG lot, with Mr. Taylor's permission. On May 24, 1983, she bought a 1963 Chevrolet Impala from MPG, after a friend had looked the car over for her, and after a test drive. The sale documents include a form warranty disclaimer signed by Ms. Wilson and her daughter, which states: AS IS THIS USED MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY WARRANTY, EITHER EXPRESSED OR IMPLIED. THE BUYER WILL BEAR THE ENTIRE EXPENSE OF REPAIRING OR CORRECTING ANY DEFECTS THAT MAY PRESENTLY EXIST OR THAT MAY OCCUR IN THE VEHICLE. THE DEALER (SELLER) SHALL NOT HAVE ANY RESPONSIBILITY FOR CONSEQUENTIAL DAMAGES. DAMAGES TO PROPERTY, DAMAGES FOR LOSS OF USE, LOSS OF TIME, LOSS OF PROFITS, OR INCOME OR ANY INCIDENTAL DAMAGES WITH RESPECT TO ANY DEFE [sic] OR MALFUNCTION OR UNFITNESS OR OTHER DEFICIENCY OF THIS VEHICLE. Petitioner's Exhibit No. 4. Ms. Wilson understood that she was buying the Chevrolet as is. Mr. Taylor did not know that such forms existed at the time he sold Ms. LeBerg the Pontiac. Three weeks after she purchased the car, Ms. Wilson spent $31 for a radiator repair, and a water hose sprung a leak the day before the hearing. She still used the car daily. Her principal complaint was that, until it was removed, the headliner tended to fall from the ceiling in swatches, obstructing her view.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 2nd day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 2nd day of November, 1983. COPIES FURNISHED: Leland A. Taylor 828 Michigan Avenue Pensacola, Florida 32505 William P. White, Jr. Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501
The Issue Whether Respondent, Department of Economic Opportunity (DEO or Department), discriminated against Petitioner, Georgie Breville, in violation of the Florida Civil Rights Act of 1992 (the Act), sections 760.01–760.11 and 509.092, Florida Statutes, based upon her national origin, age, disability, or in retaliation.
Findings Of Fact Petitioner is a 64-year-old female from Mauritius, a French island nation off the coast of Africa. As such, she falls within a protected class based on age and national origin. Respondent, DEO, is the successor State agency to the former Agency for Workforce Innovation (AWI) with the responsibility to implement the FloridaWorks program. FloridaWorks is organized into Regional Workforce Boards which oversee the delivery of employment services in their local jurisdictions. Employment services delivered at local One-Stop Centers include job searches, job counseling, and resume drafting, among others. Petitioner was employed at the FloridaWorks Alachua County One-Stop Career Service Center in Gainesville, Florida, from 2001 through 2010. At all times relevant hereto, Petitioner was an employee of AWI in the position of Customer Service Specialist. In her capacity as Customer Service Specialist, Petitioner met with job seekers, assessed their needs, and referred them for assessment testing and community services. She also conducted workshops on resume writing, interviewing skills, and job search skills. In February 2009, Betty Holmes, an AWI employee, became Petitioner’s supervisor. By letter dated September 17, 2010, Petitioner was terminated from her employment with AWI effective October 1, 2010. The termination letter was hand delivered to Petitioner on September 20, 2010, by Ms. Holmes in her office at the One-Stop Center. The letter stated that Petitioner’s termination was due to loss of funding for the Regional Workforce Board. On October 22, 2010, Petitioner filed a Charge of Discrimination with the Commission alleging that Florida Management Solutions, Inc. (FMS), had discriminated against her on the basis of her national origin, age, and in retaliation by giving her unfair negative evaluations, harassing and demeaning her, assigning her a larger workload than other employees, and ultimately unfairly terminating her.3/ The Commission issued a Determination of No Cause on May 16, 2011, finding there was no cause to find that Respondent had committed an unlawful employment action. Petitioner timely filed with the Commission a Petition for Relief against FMS, which was forwarded to DOAH for assignment of an administrative law judge (ALJ) to conduct a fact-finding hearing. Following an evidentiary hearing on the matter, the ALJ entered a Recommended Order finding that FMS was not Petitioner’s employer during the time period in which the alleged acts of discrimination occurred. Rather, the ALJ found that AWI was Petitioner’s employer. The Recommended Order was entered on September 14, 2011. On September 29, 2011, Petitioner filed a Complaint of Discrimination against AWI alleging unlawful employment discrimination on the basis of her race, national origin, age, and in retaliation. Again, the Commission issued a Determination of No Cause and Petitioner filed a Petition for Relief, which was forwarded to DOAH and assigned to the undersigned for conduct of an evidentiary hearing. Petitioner’s Complaint of Discrimination alleges that she was discriminated against by being assigned a larger caseload and being held to different performance standards than similarly situated non-classified employees; denied training; given unmerited negative performance evaluations; harassed, demeaned, and threatened, resulting in negative health issues; and unlawfully terminated, resulting in loss of benefits and future employment opportunities. As such, Petitioner’s complaint raises both individual discrete acts of discrimination, as well as an ongoing hostile work environment. Petitioner’s complaint and testimony are largely focused on the treatment she received from Ms. Holmes, her supervisor from February 2009 to October 1, 2010. Petitioner alleges that when Ms. Holmes became her supervisor, Ms. Holmes removed Petitioner from her usual duties and assigned Petitioner a caseload of 150 cases in a program with which she was not familiar. Petitioner argues that the assignments were unreasonable and, perhaps, even unauthorized by the agency. Petitioner further alleges that Ms. Holmes was critical of Petitioner’s inability to complete the cases in a timely manner, and that Petitioner was denied the training she requested to better perform on the job. Ms. Holmes’ assignment of job duties to Petitioner, as well as Petitioner’s request for training, occurred more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. Petitioner alleges that the employee evaluations Ms. Holmes performed, completed, and signed in April 2009 and April 2010 were unmerited.4/ The evaluations complained of were completed more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. Petitioner alleges that Ms. Holmes unnecessarily contacted 9-1-1 on May 18, 2010, when Petitioner fainted in Ms. Holmes’ office, and allegedly told the paramedics that Petitioner was acting erratically prior to fainting, allegations which Petitioner denies. The incident during which Petitioner fainted and was taken to the hospital by the paramedics occurred more than 365 days prior to the date on which Petitioner filed her Compliant of Discrimination. Petitioner alleges that Ms. Holmes spoke harshly to her, yelled at her, told her to “shut up,” and made demeaning comments about Petitioner’s French accent. Petitioner testified that Ms. Holmes made Petitioner repeat after her, and on at least one occasion said, “This is how Americans speak.” All the statements alleged to have been made by Ms. Holmes occurred more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. On May 26, 2010, Petitioner filed a grievance with AWI Human Resources regarding Ms. Holmes’ alleged harassment of Petitioner as well as her unmerited negative evaluation. After filing the grievance, Petitioner met with Ms. Holmes and her direct supervisor, Arelis Rosario, to discuss her performance evaluation and other issues raised in Petitioner’s grievance. A written summary of the meeting was made and signed by Petitioner, Ms. Rosario, and Ms. Holmes on June 2, 2010. Petitioner disagrees with the substance of the summary and maintains that her grievance was not satisfactorily resolved. Petitioner alleges that she was terminated, in part, in retaliation for filing the grievance against Ms. Holmes. The grievance filed against Ms. Holmes, as well as the resolution meeting between Petitioner, Ms. Holmes, and Ms. Rosario, occurred more than 365 days prior to Petitioner’s Complaint of Discrimination. Petitioner was notified of her termination on September 20, 2010, which was a Monday. At hearing, Petitioner did not testify with certainty whether, or on which days, she was absent from work following notice of her termination. Petitioner had enough accumulated leave to take the two weeks off between termination and effective date. However, Petitioner chose not to. Petitioner was uncertain about the days that Ms. Holmes was in the office during either the week of her termination or the following week. At final hearing, Petitioner seemed confused about various events she related. On the whole, Petitioner’s testimony was inconsistent and equivocal. The evidence was clear that Petitioner was assigned no work during the period of September 20, 2010, through October 1, 2010. Petitioner had little, if any, interaction with Ms. Holmes during that same time period. She testified that her co-workers avoided her and barely spoke to her. Petitioner spent most of her time cleaning out her office and packing her belongings. In what must have been an awkward situation, Petitioner gave away many of her personal belongings to her co-workers during the time period between September 20, 2010, and October 1, 2010. Petitioner gave Ms. Holmes a vase from her office as a gift, although the exact date was not established. Petitioner introduced no evidence of any discrete acts of discrimination by Ms. Holmes, or any other AWI employee, between September 29, 2010, and October 1, 2010. Petitioner has been diagnosed with breast cancer and has been under treatment for several years. Petitioner did not take sick leave when employed at AWI. Instead, she took annual leave for her treatments or attended doctor’s visits during her lunch hour. The evidence did not support a finding that her employer knew of either her diagnosis or treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 26th day of September, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2013.
The Issue Did the Respondent engage in a discriminatory employment practice by suspending the Petitioner from work?
Findings Of Fact The Petitioner, Joeann F. Nelson, is a Black female. In 1997, she was employed as an aide working with developmentally disabled persons at Sunrise Community, Inc. The Respondent, Sunrise Community, Inc. (hereafter “Sunrise”) is an employer within the meaning of the Florida Civil Rights Act of 1992. On or about April 24, 1997, the Petitioner was suspended from her employment for a number of days by Sunrise. The Petitioner filed a complaint with the Florida Commission on Human Relations (hereafter “the Commission”) on May 8, 1997, alleging that her suspension was racially motivated, and a violation of Chapter 760, Florida Statutes. The staff of the Commission investigated the complaint, and issued its Determination of No Cause on May 16, 2000. At the same time, the Commission gave the Petitioner notice of her right to an administrative hearing on the Commission’s findings. The Petitioner, while employed by the Respondent, was asked by her immediate supervisor to participate in taking residents of the facility to their group home. The Petitioner refused to take the residents complaining that another co-worker was scheduled to take the residents on the day in question. The supervisor told the Petitioner that the person who was scheduled to take the residents was too old to handle that job, and the Petitioner got into an argument about this matter. As a result of this refusal to take the residents and the argument, the Petitioner was suspended for a number of days. The refusal to follow the directions of her supervisor regarding her work and the confrontational argument with the supervisor over being asked to do a specific task that was within her job duties generally were sufficient cause for discipline. The Petitioner did not show that she was singled out or treated differently because of her race, either in being asked to perform the task or in being suspended for refusing to do the task. Subsequently, the Petitioner filed a second complaint with the Commission on June 30, 1997, and raised additional issues regarding her discharge when she asked for her formal hearing on the Commission’s determination of no cause on the original complaint. However, the only matter properly before the undersigned in these proceedings is her suspension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the complaint upon a finding that there was no cause. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: JoeAnne Nelson Post Office Box 76 Crawfordville, Florida 32326 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger, Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY 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 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
