Findings Of Fact The Petitioner, Vernon Thomas, who is black, began working at the Tampa plant of the Respondent, Davies Can Company, in 1971. By 1990, he was working as a mechanic in the production department. In April, 1990, the Respondent's three-year labor union contract with the United Steelworkers of America covering its plant in Tampa, Florida, was due to expire. Knowing it was opening three new plants closer to its new sources of supply of raw material (tin plate), the Respondent was unsure how long it would continue to operate the Tampa plant and would only agree to extend the union contract for one year. During quarterly profit-sharing meetings with the union and the Tampa plant employees, the Respondent kept the union and the employees apprised of the company's plans. All were aware of the distinct possibility that the Tampa plant would be closed at the expiration of the extended union contract in April, 1991. Some employees at the Tampa plant, primarily supervisory and office personnel, were transferred to one of the new plants during the course of the year. When office personnel ceased employment, they were replaced by temporary employees. Other positions in the new plants were being filled by new employees who applied directly to the new plants. At some point before the quarterly meeting on February 25, 1991, the Respondent made a decision to close the Tampa plant. At the quarterly meeting, the Respondent's director of employee relations, Joseph Frabotta, announced that the Tampa plant was being closed and that all Tampa employees were being permanently laid off. He stated that most would be laid off as of March 8, and the rest as of March 15, 1991. In response to questions regarding the availability of work at one of the Respondent's new plants, he also stated that he knew of no positions available at that time but that if anyone interested left an application for employment with him by the time he left Tampa on or about February 28, 1991, he would transmit the applications to the managers of those plants. After the general announcement at the meeting on February 25, 1991, individual interviews were scheduled to discuss the particulars of the benefits due individual employees. The Petitioner's interview was on February 27, 1991. As the senior hourly employee at the Tampa plant, the Petitioner was told that he would work until March 15, 1991. He also was told the particulars of the benefits due him. Finally, he again was told that there were no positions at the new plants available for the Petitioner at that time but that, if he was interested, he should leave a completed application for employment with Frabotta by the time he left Tampa on or about February 28, 1991, and it would be transmitted to the managers of those plants. During the Petitioner's individual interview on February 27, 1991, the Petitioner also raised the subject of a problem he was having with disability insurance benefits for a period of disability the Petitioner had suffered from approximately November 12, 1990, through January 1, 1991. The disability insurance policy provided by the Respondent for its eligible employees is provided through an insurance company, not by the Respondent itself directly. However, in order to insure proper follow up on behalf of its employees, the Respondent has a policy of having all claims forms mailed to its corporate offices in Solon, Ohio, for processing. During his period of disability, the Petitioner had asked the Tampa plant manager for the appropriate claims form. The plant manager said he would furnish the Petitioner one but never did. When the Petitioner returned to work on January 2, 1991, he again asked for the claims form. Again, the Petitioner was promised that one would be provided but none ever was provided. At his February 27, 1991, interview, the Petitioner reported all of this to Frabotta, whose investigation verified the Petitioner's information. Frabotta promptly arranged for the Petitioner's claims form to be submitted for processing, and in May, 1991, the Petitioner received the disability benefits to which he was due. One other black employee was not given disability claims forms, for a disability in June, 1990, because the supervisor of the personnel office at the Tampa plant told the employee that he was not eligible. When the Petitioner told his fellow employee about his individual interview with Frabotta on February 27, 1991, the fellow employee told the Petitioner about his June, 1990, disability. The Petitioner recommended that the fellow employee ask Frabotta about it during his individual interview. Frabotta investigated the matter, and the benefits eventually were paid. The Petitioner understands that, most of the time, disability benefits are paid within a two to three weeks after submission of a claim, and he is aware of some whites who timely received disability benefits. With all the claims forms the Respondent's corporate headquarters processes for employees, errors occasionally are made, having nothing to do with race, and Frabotta has to become involved in correcting errors, just as he did in the case of the Petitioner and his fellow black employee. The Petitioner did not prove that the delay he and his fellow black employee experienced in receiving disability benefits was the result of racial discrimination. The Petitioner did not give Frabotta an application for employment with one of the new plants before Frabotta left Tampa to return to Ohio. Instead, he mailed an application on or about March 25, which Frabotta did not receive until early April, 1991. On March 15, 1991, the Petitioner was asked to work one more day to prepare the equipment for shipment the following day to the new plant in Georgia. His last day at work was March 16, 1991. Soon after his last day at work, the Petitioner came under the belief that white hourly employees from the Tampa plant had been transferred to the new plant in Georgia. As the senior hourly employee at the Tampa plant, the Petitioner believed he was entitled to the work under the union contract. But the union contract did not apply at any plant other than Tampa, and it expired in April, 1991. The employees hired at the Georgia plant had given applications to Frabotta before February 28, 1991, and were hired by the Georgia plant manager when a need arose for their services on or about March 18, 1991, at a point in time before the Petitioner submitted his application. In addition to the two white hourly employees, a black hourly employee also was hired in that fashion at the Georgia plant. Later, the Petitioner learned that two white hourly employees were continued on the payroll for a certain period of time. The Petitioner believed that, if any work was available for hourly employees in Tampa, he should have gotten it under the terms of the union contract since he had seniority. But there was another provision in the union contract, known as the "super seniority" provision, under which the president and chief steward of the local union were to be kept on the payroll in the event of a reduction in the work force at the Tampa plant. These union officials were white. The local union insisted that these two people be kept on the payroll after March 16, 1991. (They were not paid after the expiration of the extended union contract in April, 1991.
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 filed in this case. RECOMMENDED this 29th day of April, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 29th day of April, 1992.
The Issue The issues in this case concern the question of whether the Petitioners are entitled to certification as a Minority Business enterprise within the meaning of Chapter 288, Florida Statutes and Rule 13-8.005, Florida Administrative Code. The basic question is whether Bonnie M. Mobley, who is the minority person in Council Enterprises, Inc., and majority stockholder controls the management and daily operations of that corporation.
Findings Of Fact On July 1, 1984 council Enterprises, Inc. was incorporated as a Florida corporation. From that date until the Fall of 1985 the corporation was engaged in the business of plumbing and mechanical services in Florida. At the inception Luther E. Council, Jr., who is also known as "Snipes" Council, was the president, a director and stockholder within the corporation. His mother Bonnie M. Mobley, a minority person, was the majority stockholder and a director in the corporation. At the commencement of the corporation, Bonnie Mobley was secretary/treasurer. Her percentage of stock ownership was 51 percent and the other 49 percent was held by the son. The money which was used to capitalize the corporation in its inception was provided by the mother in the amount of $50,000. On June 14, 1985 by action of the Board of Directors, namely the mother and son, Luther E. Council, Jr. submitted his resignation as president. As the minutes of that meeting state, he did this having secured jobs for employees of Council Enterprises, Inc. with a firm known as Hays Heating and Plumbing Company. Council took a job with that company as manager. On the same date of the Board of Directors meeting, Bonnie M. Mobley was appointed as president, secretary and treasurer, in furtherance of a concern that each of these corporate officers be installed during the life of this corporation. When Luther E. Council, Jr. left Council Enterprises, Inc. to go and work with Hays he was no longer a director. It was further recommended by the son that his mother secure a Leon County Mechanical Contractor's License and serve as a qualifying agent and gain registration with the State of Florida. Other recommendations pursuant to Article II of the Articles of Incorporation were that she consider brokering mechanical equipment as a livelihood and secure a wholesaler's license as well. The events that took place by the corporation was in recognition of the fact that the corporation had concluded its business of offering plumbing and mechanical services. In fact, Bonnie Mobley had gone to work with Hays Heating and Plumbing Company on February 1, 1985 and would remain in her position as office manager at that company until January 9, 1987. During that time she was responsible for secretarial and bookkeeping responsibilities for Hays. During part of that time, as an aside, through Council Enterprises, Inc., she sold supplies to Hays for its use in projects. She tried to gain other contracts for supplies from companies other than Hays, without success. Luther E. Council, Jr., while working at Hays as a manager, was his mother's supervisor. He stayed with Hays from February 1, 1985 until June 19, 1987. As a consequence of leaving Council Enterprises, Inc. to go and work with Hays, Luther D. Council, Jr. transferred his stock in Council Enterprises, Inc. to his mother and she continues to hold all the stock in that company. In August, 1987 and to the present, Bonnie Mobley and her son Luther E. Council, Jr. reconstituted Council Enterprises, Inc. for purposes of offering services in plumbing, mechanical, fire protection, underground utilities, pollutant storage and as builders. They opened an office at 110 Perkins Street, Tallahassee, Florida, which continues to be their business location. Following the August, 1987 restructuring of the business Bonnie Mobley made her son vice-president and named him a director. This meant from that point forward, that there were two directors, Ms. Mobley and her son, Luther E. Council, Jr. In the past, Ms. Mobley had some familiarity with the heating, ventilation and air conditioning and plumbing business which her ex-husband, father of Luther E. Council, Jr. began in 1959. This business was Council Brothers, a company which her former husband and his brothers had started. Her awareness of that business corresponded to about an 11 year period in which at times she was involved to some extent in doing "take offs", cost estimating on jobs for her husband's company. Her principal occupation during the course of this period related to working in the Lewis State Bank as a secretary, receptionist and in the personnel department associated with payroll. She had also done some bookkeeping work for a small business which her ex-husband had relating to an air conditioning and heating service. Ms. Mobley has a license with Council Enterprises, Inc. related to Leon County in the mechanical field. As such, she is the qualifying agent for the corporation. Her son, by contrast, holds certified licenses with the State of Florida, Department of Professional Regulation, in the fields of plumbing contracting, mechanical contracting, building contracting, underground utility contracting, and pollutant storage contracting. In order to gain these licenses he had to have requisite experience in these fields and pass an examination. He also holds a First Class Fire Protection Contractor's License, and a Florida LP Underground Gas License issued by the State of Florida, Department of Insurance. Since the corporation returned to the active contracting business in August, 1987 Ms. Mobley's duties include giving instructions to an office secretary, Laverne Taylor, as needed, and generally keeping things running in the office. She is involved with final decisions about business choices to include an awareness of Dodge reports which advertise contract job opportunities and looking at the local newspaper to see about available work. She is involved in the purchase of equipment and has a say in those choices. She is involved with answering the phone at the office, paying bills, and taking care of the payroll. She sometimes goes to jobsites and stays a number of hours or even may stay all day. Luther E. Council, Jr. describes his position with the company as one of doing whatever needs to be done from running equipment, writing letters, raking and shoveling at jobs and doing job estimating. The mother and son and their field foreman, John W. Edwards, III, all involve themselves in bidding jobs which the company is interested in. The arrangement for hiring employees in the company is one in which a number of the employees who work for the company were associated with Hays and came to work at Council Enterprises, Inc. when Luther E. Council, Jr. returned from Hays to Council Enterprises, Inc. Mr. Edwards was an individual whom Luther E. Council, Jr. knew through their interest in law enforcement. Edwards as field manager is responsible for obtaining additional employees as needed in the field, subject to the approval of Ms. Mobley. Ms. Mobley has on occasion fired a couple of foremen with the company. This was against the recommendation of the field foreman Edwards. Another example of hiring relates to Laverne Taylor whom Ms. Mobley hired. The basic arrangement for hiring and firing in the company is premised upon consultation among Ms. Mobley, her son and the field foreman Edwards. Although 95 percent of the checks in the bank account by the company have been signed by Ms. Mobley, her son has signed the other 5 percent of the checks and has the authority to sign checks on the company's single signature accounts. In the bidding process which has been alluded to, all three persons, namely Ms. Mobley, Mr. Edwards and her son, Luther E. Council, Jr. are involved. Edwards is not as experienced as the son and neither is Ms. Mobley. Luther E. Council, Jr. has a better grounding in the business and in the more complicated issues that may arise in the bidding process. Ms. Mobley has been involved in the financial end of the corporation's activities and is well-grounded in that aspect of the business, to include major purchases, heavy equipment, the payment of routine items such as phone bills, and other account activities. Ms. Mobley, Luther E. Council, Jr. and Mr. Edwards are full-time employees for Council Enterprises, Inc. In obtaining recent loans in the amounts of $60,000 and $22,500, the initial amount being for cash flow on accounts receivable and the second amount having to do with a line of credit, it was necessary for Ms. Mobley and her son Luther E. Council, Jr. to guarantee the loans. In a related matter in the purchase of major pieces of equipment, both Ms. Mobley and her son signed the financial agreements involving the lease purchase of equipment. Bonding for the company in its projects include references to the resume's of both Ms. Mobley and her son. Approximately 80 percent of the work of Council Enterprises, Inc. involves underground utility installation and 20 percent is related to plumbing. In this process, Luther E. Council, Jr. is an indispensable person in deciding the direction which the company will pursue in its business activities, most especially related to understanding of the technical aspects of this company's business and the necessity to rely upon his licensing credentials in order to pursue its business functions. For thin's reason, Bonnie Mobley is not in a position to independently control the corporation's affairs and, in fact, has not controlled it, independent of her son a non-minority person. In this connection, Article II, Section 1 of the By Laws of the corporation, Council Enterprises, Inc., speaks in terms' of the business of that corporation being managed and its corporate powers being reposed in its Board of Directors. Further, Article II, Section 6 of those By Laws requires that the majority of the directors shall be necessary as participants at a meeting to constitute a quorum and that it is the act of the majority of those directors present at the meeting where there is a quorum that constitutes the actions of the Board of Directors. Given this circumstance, there are only two directors and Luther E. Council, Jr. has as much authority as Ms. Mobley in his capacity as director. As a result, he necessarily shares in the management of the company. Against this background information concerning Council Enterprises, Inc. it had sought to gain certification as a Minority Business Enterprise by the State of Florida, Department of General Services. It was denied that opportunity by action of the Department on April 8, 1988 and sought a formal hearing under Section 120.57(1), Florida Statutes, to resolve the question of its entitlement to such certification. The basis of denial was briefly described in the issue statement to this recommended order and will be more specifically referred to in the Conclusions of Law section of the recommended order which follows.
Recommendation Based upon consideration of the findings of fact and conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which denies the application of Council Enterprises, Inc. to be certified as a Minority Business Enterprise. DONE and ENTERED this 6th day of March, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 6th day of March, 1989. APPENDIX The following disposition is made of the proposed fact finding of the parties: Petitioner's Facts The Petitioner's facts are subordinate to the fact found in the recommended order. Respondent's Facts 1.-6. Subordinate to facts found. Subordinate to facts found with the exception of the next to the last sentence which is not necessary to resolution of the dispute. Subordinate to facts found with the exception of the first sentence which is contrary to facts found. First sentence is contrary to facts found. The balance of the sentences within that paragraph are subordinate to facts found with the exception of the discussion of use of Luther E. Council, Jr.'s licenses as qualifying to allow the company to conduct certain business in the contracting field. Although it may be customary to use someone else's license as a qualifier for the benefit of the company, under the present circumstances the person who is the qualifying agent is a director who must be appeased before the corporation can conduct its affairs and who by the facts of thin case, is the dominant figure in the pursuit of the business of the corporation. Contrary to facts found. COPIES FURNISHED: Donald S. Modesitt, Esquire 320 West Park Avenue Tallahassee, Florida 32301 Sandra E. Allen, Esquire Office of General Counsel Department of General Services Room 452 Larson Building 200 E. Gaines Street Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
The Issue The issue is whether Respondent discriminated against Petitioner in her employment based on her gender or disability, in violation of Section 760.10, Florida Statutes (2002).
Findings Of Fact Respondent had employed Petitioner as a Toll Equipment Technician/OMST III for over ten years at the time of her termination. Her responsibilities included maintaining the equipment at the toll plaza, troubleshooting shop work, traveling to various work sites, and communicating with the public. On November 17, 1998, while working in the vicinity of traffic at a toll plaza, Respondent was struck by a passing truck. Petitioner went to a clinic where her injuries were examined. When Petitioner returned to work about three days after the accident, she performed light duty for three days. After three days, Petitioner worked without restrictions and performed her full job functions. On January 16, 2000, Petitioner reinjured her back while attempting to lift a monitor over her head while at work. On March 28, 2000, Dr. Hubert Aronson performed a surgery on Petitioner for a herniated disc. On June 6, 2000, Dr. Aronson determined that Petitioner had reached maximum medical improvement, and he rated her with a permanent partial physical impairment of seven percent. He ordered a functional assessment test to identify any work restrictions, prior to releasing her for work. On June 22, 2000, staff of HealthSouth Rehabilitation Hospital conducted a functional assessment test on Petitioner. Based on the assessment, by note dated July 31, 2000, Dr. Aronson returned Petitioner to regular work duties, without restrictions, as of August 1, 2000. Unsure that Petitioner's physician understood the physical demands of Petitioner's job, Mr. Ayala ordered that the Division of Risk Management obtain another functional assessment of Petitioner. By report dated August 18, 2000, Options Plus noted that it had documented the demands of Petitioner's work and presented this material to Dr. Aronson, who again released Petitioner to return to her regular job. Although Mr. Ayala was doubtful of her ability to perform her regular job duties, Petitioner performed her work until Christmas 2000, when she went on leave. While on leave, Petitioner reinjured her back. Petitioner called in sick on January 7, 2001, and informed Mr. Ayala that her back was hurting. A workers' compensation representative called Petitioner and suggested that she visit Dr. Bernard Chapnick, who examined Petitioner on January 9, 2001. Dr. Chapnick restricted Petitioner to light duty and stated that she was not to work, if no light duty were available. Dr. Chapnick made a follow-up appointment for Petitioner on January 16, 2001. When Petitioner returned to work and gave Mr. Ayala the doctor's note, he responded that he had no light duty. He made an imaginary swing with a golf club, implying that Petitioner had injured her back while playing golf. Respondent then placed Petitioner on unpaid medical leave, and Mr. Ayala informed Petitioner that she would be required to resume her regular duties on April 23, 2001. On April 23, 2001, Dr. Aronson released Petitioner for work, but still on light duty. When Petitioner returned to work seeking light duty, Mr. Ayala informed her again that none was available. He offered her another period of unpaid medical leave, but Petitioner declined the offer. By letter dated May 10, 2001, Respondent informed Petitioner that it intended to dismiss her, effective no sooner than ten days from the date of the letter. The reason for dismissal, as stated in the letter, is Petitioner's inability to perform her duties and absence without leave for three or more workdays. Following a Predetermination Conference, by letter dated June 27, 2001, Respondent advised Petitioner that she was terminated, effective June 29, 2001, due to her inability to perform the duties of her position and absence without leave for three or more workdays. Petitioner's complaint that a disabled male coworker received preferential treatment is groundless. At all material times, he was medically cleared to lift up to 50 pounds, which was considerably more than was permitted by Petitioner's light duty.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of October, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2003. COPIES FURNISHED: 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 Roselisa Cocalis 15471 Southwest 110th Terrace Miami, Florida 33196 J. Ann Cowles Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue Whether Petitioner, Kurt Shannon, was subject to an unlawful employment practice by Respondent, Amalgamated Transit Union, Local 1593, based on his race in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a former bus operator for the Hillsborough Area Regional Transit (“HART”). Petitioner worked for HART from 2006 through January 2014. At all times relevant to this proceeding, Petitioner was a member in good standing with the Union. Petitioner joined the Union in 2006 as soon as he was eligible. The Union is the bargaining unit for HART. The Union has approximately 350-600 members. The Union’s membership consists of a majority of African-American and Latino members. The Union’s executive board is also majority African-American and Latino. HART terminated Petitioner based on an incident that occurred on December 6, 2013. At the time, Petitioner was operating his bus and had stopped to allow passengers to board. A young male patron climbed onto the bus and attempted to pay his bus fare with a pass card. The patron’s pass card would not work. Petitioner questioned the patron as to whether his pass card was expired. The patron became unruly and began cursing. Petitioner admonished him and ordered him off the bus. Immediately, thereafter, Petitioner left his seat (revealing he was not wearing his seatbelt) and followed the patron off the bus. Petitioner explained that he wanted to ensure that the patron did not attempt to re-enter the bus. When he stepped off the bus, however, Petitioner recounted that the two men exchanged heated words. Without warning, the patron lunged at Petitioner and hit him in his face. Petitioner testified that he could not retreat. Therefore, he punched the patron back in an attempt to defend himself. Several bus passengers stepped in to stop the fight. One of them called the police. Upon learning of the incident, HART initiated termination proceedings. HART asserted that Petitioner should never have left his seat. Instead, once the patron exited the bus, Petitioner should have closed the bus door and proceeded on his route. HART charged Petitioner with three infractions: use of threat or force, other than self-defense (a class “A” violation which may result in termination); disorderly/inappropriate conduct by leaving his seat and following the patron off the bus (a class “B” violation); and failing to actively and properly engage in work duties/responsibilities by not having his seat belt fastened (a class “C” violation). On January 14, 2014, HART formally notified Petitioner that it was terminating his employment. HART dismissed Petitioner based on the class “A” violation. HART and the Union are parties to a collective bargaining agreement entitled Contract Between Hillsborough Area Regional Transit Authority and Amalgamated Transit Union Local 1593 (the “Bargaining Agreement”). The Bargaining Agreement provides a grievance procedure to process complaints by aggrieved HART employees. The grievance procedure culminates in final and binding arbitration. The Union is required to process grievances for its members. Following his termination, Petitioner requested the Union take his case to arbitration. The Union executive board agreed. The Union timely notified HART that it was initiating the grievance process to contest Petitioner’s discharge. Petitioner’s grievance culminated in an arbitration hearing which was held on December 9, 2014. The crux of Petitioner’s complaint of unlawful discrimination, as more fully set forth below, is that the Union did not provide an attorney to represent him at his arbitration hearing. Instead, then-Union President James Saunders, a non- lawyer, decided to personally represent Petitioner at the arbitration. Unfortunately for Petitioner, his arbitration was not decided in his favor. Petitioner testified at the arbitration and asserted that his actions were simply self-defense. The Arbitrator agreed that Petitioner did not commit the alleged class “A” violation of assault because the evidence failed to show that Petitioner had placed the patron in fear of imminent harm. However, the Arbitrator concluded that Petitioner did commit two class “B” violations by leaving his seat and exiting the bus, and by gesturing in a provocative manner towards the patron. Moreover, the Arbitrator found Petitioner’s testimony to be less than credible because his version of events was inconsistent with his prior statements and other relevant evidence. Under the Bargaining Agreement, Article 74, Section 1, the penalty for two class “B” violations in close proximity includes discharge. Consequently, on or about March 13, 2015, the Arbitrator issued an opinion denying Petitioner’s request for relief and upholding the termination. At the final hearing, Petitioner asserted that he lost his grievance proceeding because of inferior representation at the arbitration hearing. Petitioner complained that President Saunders did a very poor job of defending him. Petitioner thought President Saunders was ineffective and unprepared, and made no effort on his behalf at the hearing. Petitioner complained that President Saunders did not offer any substantive comments and failed to present Petitioner’s primary defense to the Arbitrator--that Petitioner was not the aggressor and did not initiate the confrontation. As an example, Petitioner claimed that President Saunders did not offer the police report into evidence which would have supported his version of the incident.2/ Neither did President Saunders contest HART’s witnesses’ testimony or argue for a more appropriate punishment based on similar incidents. At the final hearing, Petitioner insisted that he had a good case. He asserted that he would have prevailed at the arbitration if he had an attorney representing him.3/ Petitioner claims that the Union deliberately decided not to provide him an attorney based on his race. Petitioner testified that the Union obtained attorneys to represent other Union members at their arbitration hearings. Petitioner did not believe that the Union took his case seriously. President Saunders was not present at the final hearing. Henry Marr, the Union’s financial secretary, testified regarding why President Saunders represented Petitioner instead of an attorney. Mr. Marr explained that the Union is not required to retain an attorney to represent its members in grievance proceedings. It is only required to provide representation. Mr. Marr relayed that the Union has conducted many hearings with non-lawyer representatives.4/ Mr. Marr recounted that in Petitioner’s grievance proceeding, after the Union agreed to take the case to arbitration, President Saunders decided that Petitioner’s matter did not warrant an attorney. Mr. Marr expressed that the Union felt comfortable with President Saunders’ decision to represent Petitioner himself. President Saunders had significant experience advocating for Union members. The Union had arranged for President Saunders to receive training from the George Meany Institute in Maryland on how to advocate for employees in arbitrations. President Saunders had also participated in many arbitration hearings on behalf of Union members. Mr. Marr believed that President Saunders’ decision to represent Petitioner himself was appropriate because Petitioner’s grievance did not present any technical questions and did not involve the application or interpretation of Florida Statutes. In 2015, following Petitioner’s arbitration decision, President Saunders resigned from his post with the Union. The Union replaced him with its vice-president, Daniel Silva. At the final hearing, President Silva testified regarding President Saunders’ decision to represent Petitioner. President Silva opined that President Saunders was sufficiently knowledgeable and experienced to present Petitioner’s case. President Silva also relayed that financial concerns factor into the Union’s decision on whether to provide private legal counsel to represent members. The Bargaining Agreement states that each party “shall bear the cost of preparing and presenting its case.”5/ The Union is conscious of the need to conserve its funds whenever possible, including attorneys’ fees. At the final hearing, Petitioner presented the names of three other Union members for whom the Union provided legal counsel at arbitration hearings. Petitioner did not provide details regarding the circumstances of HART’s employment actions or whether the underlying facts of each matter were substantially similar to his incident. At the final hearing, the Union conceded that for most arbitration hearings it offers its members the services of an attorney. However, President Silva testified that President Saunders represented at least one other white Union member at an arbitration in November 2014. This member, Robert Rackham, did not prevail at his arbitration.6/ President Silva and Mr. Marr testified that Petitioner’s race had no bearing in President Saunders’ decision not to assign an attorney to represent Petitioner at his arbitration hearing. Rather, President Saunders made his decision because he believed he could competently represent Petitioner on his own. Mr. Marr testified that he is not aware of any decision the Union has made based on a member’s race. Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that the Union discriminated against him based on his race in violation of the Florida Civil Rights Act.
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 Respondent, the Union, did not commit any unlawful employment practice against Petitioner and dismiss his Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 2nd day of December, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 2nd day of December, 2016.
The Issue Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race or handicap in discharging him from employment on February 25, 1992; and whether the Respondent unlawfully discriminated against the Petitioner and other black employees in pay for similar jobs.
Findings Of Fact During the summer of 1988, Larry Jelks, a black male, approached Jerry Sikes, the Director of Public Works of Suwannee Country, seeking employment. Petitioner, Jelks, explained and Sikes was aware that Petitioner had significant experience as a welder. Several weeks later, Sikes contacted Jelks and offered him a job as a laborer. The Petitioner began work of August 16, 1988 with a starting pay of $5.00/hour in the position of laborer, an entry level, unskilled job classification. The Petitioner received a copy of the employer's regulations. On August 24, 1988, the Petitioner was promoted to Serviceman, and his pay increased to $6.00/hour. On October 12, 1988, Sikes hired Mr. Praley, a white male, as a welder, although his expertise was as a mechanic and Praley was subsequently assigned duties as a mechanic by Sikes. Praley was paid a starting salary of $6.50/hour. The welder/mechanic position was open when Jelks was hired. On November 24, 1988, Petitioner completed his 100 day probation and given his annual 5 percent raise, increasing his pay to $6.30/hour. Other black employees also had their pay raises delayed until after their probation was completed. White employees, including Praley, received their annual raises in the year of their initial employment, notwithstanding their probationary status. This discrepancy in treatment of employees was not explained by the County. On September 30, 1989, the Petitioner laterally transferred to the position of truck driver for the refuse collection service because he did not enjoy the work of a serviceman. One October 1, 1989, Petitioner received an annual raise of 4 percent, to $6.56/hour. Subsequently, the axle in Petitioner's truck broke, and when he was questioned about it, he asked for a transfer. On March 3, 1990, the Petitioner was transferred to a shop position in which he repaired rusted or damaged garbage bins (dumpsters), by welding new sides and bottoms on them. The sheets of steel which Petitioner welded on the bins were 6 feet by 12 feet in size and 1/16" thick, and weighed approximately 180 pounds. These sheets were generally cut into smaller pieces prior to being moved from the stack in which they were stored. These pieces of material had to be moved into position to be cut and welded. The bins were moved using backhoes and forklifts. The Petitioner was responsible for moving the pieces of sheet steel and using the equipment to move the bins. On March 17, 1990, the Petitioner received a 5 percent pay increase to $6.89/hour. On April 28, 1990, the Petitioner received a 5 percent raise to $7.24/hour. On October 1, 1990, the Petitioner was given a 5 percent raise to $7.61/hour. In early 1991, the Petitioner's child became critically ill, and the Petitioner obtained leave to be with the child. In addition, Jerry Sikes approved flexibility in the Petitioner's scheduling to permit him be with the child conditioned upon Petitioner letting his supervisors know what he was doing and when he was going to be away from his job. Problems were encountered with Petitioner's attendance, and he was counseled about this and given a copy of the Country's leave policy. Generally, however, the Petitioner's performance was satisfactory, and he was considered a good and valued employee. On September 23, 1991, the Petitioner suffered a job- related injury, and was placed upon workers' compensation leave. The Petitioner received workers' compensation and disability benefits during his leave. During his absence the other employees performed his welding duties. While on leave, the Petitioner received a 3 percent pay increase to $7.84/hour. On November 25, 1991, Sikes wrote Petitioner a letter advising that he was required to submit doctor's notes concerning his absences while on workers compensation leave. On December 20, 1991, John B. Roberts, the County's workers' compensation (rehabilitation) consultant contacted Sikes and asked Sikes to identify an alternative position the duties of which the Petitioner could perform. Sikes advised Roberts that the County had no light duty jobs, but that driving a truck was one of the least physically demanding jobs in the County's maintenance department. He advised Roberts that he would assign the Petitioner to drive one of the light dump trucks if he returned to work. These trucks have an especially rough ride when operated off road, as these were. Roberts looked at the duties of the job, and determined that the Petitioner ought to be able to perform these duties. Roberts discussed returning to work and performing the duties of a truck driver with the Petitioner; however, the Petitioner advised Roberts that he wanted to talk with his attorney prior to returning to work. The Petitioner did not return and assume the duties of driving a truck in December as Roberts had arranged. On January 2, 1992, the Petitioner was sent a copy of a letter which was to Mr. Larry Sikes from Dr. Cason who had been treating Petitioner. The letter stated that the Petitioner was released from treatment to return to regular work activities as of January 2, 1992. On January 3, 1992, the Petitioner returned to work. He had a 4 percent permanent impairment, but his employer was not advised of this. His doctor advised the rehabilitation counselor that the Petitioner be placed on light duty because he would have to toughen up after returning to work. Sikes did not afford the Petitioner the opportunity to work back into the job. The Petitioner's work area was outside, behind the regular shop, exposed to the elements. It was very cold at the time the Petitioner returned to work. The Petitioner's production was low because he could not physically manhandle the large sheets of steel as he could prior to his injury. He asked that an inmate be assigned to work with him all the time, but assistance was denied to the Petitioner. The Petitioner asked for a backhoe, which he had previously modified, to move the bins and sheets around; however, this piece of equipment had been sent to the landfill. He was told to use a front end loader to do this work; however, he went to the landfill and retrieved the backhoe because he had difficulties climbing into the cab of the front end loader. His demands and getting the backhoe without permission created additional conflicts between the Petitioner and his supervisors. On January 8, 1992, Sikes issued the Petitioner a memo concerning his poor productivity and failure to follow the instructions of his supervisor. Prior to his injury, the Petitioner repaired approximately one bin per day. During the period after his return to work, he did approximately one bin every two to three days. When presented with the memorandum, the Petitioner advised that he was unable to do that which he had formerly done. The Petitioner was told that he was expected to do all his regular work. This motivated the Petitioner to return to the doctor and seek a clarification of what he could and could not do. In addition, Petitioner was also seeing a chiropractor regularly for treatment. Petitioner left work almost daily to see the doctor, and frequently did not return. He did not provide his employer with documentation of these visits. The Petitioner asked that an overhead chain hoist, similar to the one which was inside the shop area, be installed in his work area to move the sheets of steel to assist him. His direct supervisor, Mr. Horton, denied the request because it was expensive and required additional construction to support the mechanism. On January 13, 1992, the Petitioner received a second warning for being absent from work without notifying his supervisor. Sikes advised the Petitioner that he would have to comply with the County's personnel regulations which required prior notification and a note from the doctor. Although the Petitioner testified he was absent attending doctor's visits, he presented no other substantiation of these visits at the hearing. On January 22, 1992, the Petitioner submitted, as requested earlier, a report from Dr. James B. Slatery of Gainesville Orthopedic Group, advising that the Petitioner could return to work, but should avoid climbing and limit his lifting over 50 pounds to an occasional basis. A similar report was submitted by Dr. A. C. Bass. The metal sheets the Petitioner was lifting weighed over fifty pounds. The County failed to make accommodations for the Petitioner's physical problems upon his return to work in a manner it had for white employees. The county had placed recovering white employees in positions where they were flagmen, directed traffic, and in similar positions. The county placed the Petitioner back at his regular duties, stated it had no "light duty" positions, and demanded Petitioner perform all his duties to pre-injury standards of productivity. When the Petitioner asked for assistance in lifting the sheets of steel which were in excess of the weight allowance set by his doctor, the County told him to seek assistance from his coworkers, who were instructed to assist him. He had to wait until they finished with their immediate task, and they were less than happy about these interruptions, and going outside where the Petitioner worked. This slowed his production for which he received criticism from his supervisors. The conditions imposed by the employer were not so bad as to constitute a constructive discharge. However, had Petitioner filed an action at that time, he would have proven that he was treated differently than white employees who were accommodated for their physical problems when returning from workman's compensation leave. There was a verbal exchange between the Petitioner and one of his coworkers, Earnest Johns, arising out of their interactions in the shop. The Petitioner told Johns that he "would pass up a bus load of white girls, to make him (Johns) his bitch." Johns complained to Sikes about the Petitioner, and told Sikes, "he needed to do something about that Nigger." Sikes told Johns that he would take care of it and to calm down. Johns, who was very upset, subsequently apologized to Sikes for his confrontational manner in raising the matter with him. On January 25, 1992, Sikes sent the Petitioner another memo confirming a verbal warning about his poor work habits, wasting time, and absenteeism. On January 30, 1992, Sikes sent the Petitioner another memo regarding his poor work habits. In February, the Petitioner's wife, from whom he was separated, died, and he was granted three days bereavement leave for February 11-13, 1992. On February 18, 1992, the Petitioner called the shop and left word with a secretary that he would not be at work for the rest of that week. He did not submit a leave request for this period of time. Subsequently, the Petitioner was absent without permission from February 14 until February 24, 1992. The Petitioner did not obtain permission from his supervisors prior to taking this leave, did not request leave without pay, and did to explain his absence. Neither did his doctor, the rehabilitation counselor, his chiropractor, his attorney, or a member of his family or a friend report his absence and give any explanation. During this period, he appeared once at work to pick up his pay check on February 21, 1992. On this occasion the Petitioner did not address the matter of his absence with Sikes or Horton, although Horton advised he Petitioner that Sikes wanted to speak with him. The Petitioner had exhausted all of his sick and vacation leave prior to February 14, 1992. Under the County's rules, an employee had to request leave without pay after exhausting sick and annual leave, and the request had to be approved by the County Commission. The Petitioner did not make a request for leave without pay. Although the Petitioner asserts that he had not exhausted his sick leave because he was visiting the doctor during his absences which was covered by workers' compensation leave, he did not provide medical substantiation for the alleged treatments and doctors' visits as required by the employer's rules in order to obtain workers' compensation leave. On February 25, 1992, the Petitioner returned to work at starting time wearing work clothes. Horton stopped him on his way to his work area, and advised him that Sikes wanted to talk with him. Horton accompanied the Petitioner to Sikes office. Sikes asked the Petitioner were he had been, and the Petitioner answered that he had been attending to personal business. Sikes asked him for a more detailed explanation of his absence, and the Petitioner again told him that he had been tending to business and that Sikes should either fire him or get off his back. Sikes warned the Petitioner that unless he provided some explanation for his unauthorized absence, he would have to terminate him. The Petitioner refused to provide any additional explanation, but asked that his firing be put in writing. The Petitioner left the work place after the meeting, and did not return to work or attempt to explain his absences. Sikes viewed the Petitioner's absences and refusal to obey the personnel regulations as undermining his credibility as a supervisor. Several days after the confrontation on February 25, 1992, Sikes wrote a letter terminating the Petitioner for (1) continued or gross neglect of duty; (2) absence without leave; incompetence or unwillingness to render satisfactory service; insubordination; and (5) habitual absences, as provided in Parts X and XI of the County personnel regulations. Sikes extended special consideration to all employees of the department, who were permitted to take leave or be absent without applying for leave. The Petitioner was permitted to take leave without applying for it, and that considerable latitude was extended to the Petitioner regarding his absences prior to his being discharged. A white male, who was not handicapped, was hired on May 28, 1992 to file the position from which the Petitioner was discharged. The Petitioner appealed his discharge under the County's rules, and after an evidentiary hearing in which the Petitioner was represented by counsel, the county's hearing officer found that the dismissal was for cause in a Final Order dated September 24, 1992. Discrimination in Promotion and Pay among Blacks. The population and labor market statistics offered by the Petitioner in support of his contention that Blacks were discriminated against in promotion fail to support the proposition for which they were offered. For example, the Petitioner limits the labor pool to those persons who are over 16 and worked in 1989. However, there are those persons who are over 16 and would like to work, but who have not been hired. If the Petitioner's contention is correct, one would expect that for every white employee hired, there was a black applicant who was not hired. Therefore, comparisons based upon persons actually hired understate the percentage of Blacks in the labor pool. The relevant labor market for this dispute is Suwannee County, Florida, and the relevant labor pool are those people over 16 years of age who are now seeking, or who have in the past sought employment. According to the 1990 census, 14.7 percent of the population of the County is black. Blacks constitute 13.8 percent of the County's employees. The work environment was not overtly racist, and while, as stated above, racially charged verbal barbs were occasionally exchanged, there is no evidence that this was common or tolerated by the employer. The best evidence of discrimination by the employer were the actual practices engaged in by the County. During the 12 years prior to the termination of the Petitioner, the County had never had a Black supervisor. From 1989 to September 23, 1992, the County hired one black employee of 30 employees who it hired. Its top 10 highest paid employees were all white. The highest paid black was the forty-first highest paid employee of the County. Kevin Praley was placed in a welder's position despite the fact he was a mechanic at $6.50/hour; and Petitioner, who was a professional welder, was hired as a laborer at $5.00/hour in 1988. At the time Praley was hired, the Petitioner was making $6.00/hour, so that the differential between their pay was $.50/hour in 1988. After four years, Praley, who was hired after the Petitioner, was paid $2.01/hour more than the Petitioner for work which Sikes and others said was similar. This reflects continuing discrimination in hiring and paying Blacks. Blacks were hired in the lowest paying, menial jobs within the county, and this was not on the basis of education. All of the county's custodial employees are black. Only one of the county's secretaries is black. Until very recently, there were no black supervisors in the county's maintenance department. Most of the County's increases in Black employment and promotions occurred after institution of this case. The Clerk of the Circuit Court/Clerk of the Board of County Commissioners has not published a salary discrimination review required by Section 28.34, Florida Statutes. Further, the County's Equal Opportunity Program of 1992 provided for annual assessment of its progress in equal opportunity. As of May 9,1994, the County and not compile an annual report pursuant to its plan. The County did not train Black employees to assume greater responsibility, and did not utilize them as heavy equipment operators until after the institution of this action. The county did not pay Jelks and other Black employees annual pay raises while they were on probation; however, it did pay white employees Praley, Hardin, Simmons, Mobley, Luanne Mixon, Tervola, and Brother annual pay raises while they were on probation. These white employees were all hired prior to or during the year the Petitioner was hired. Jelks received the raise at the end of his probation period on November 24, 1988. Helen Stoudermire, Mattie L. Weatherspoon, Tyrone Tillman, and Marvette Gwinn, all black employees of the Respondent, did not receive annual raises while in probationary status, contrary to the treatment afforded white employees. The amounts of their collective salary losses were not presented as a finding of fact. The county did discriminate against the Petitioner and other black employees in pay and promotion during the period 1989 until February 25, 1992.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Florida Commission of Human Relations enter a Final Order directing that: The Petitioner's Petition for Relief relating to his discharge be dismissed; Black employees of the County be certified as a class for the period beginning August 1988 until the present; The County be ordered to cease and desist its discriminatory practices in pay and promotion against the class of black employees; The County's Clerk be ordered to file reports on salary differentials are required by statute; and Reasonable attorney's fees and costs be awarded to Petitioner's counsel. DONE and ENTERED this 8th day of September, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 8th day of September, 1994. APPENDIX CASE NO. 93-5330 Both of the parties submitted proposed findings which were read and considered. The following states which findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Rejected as contrary to more credible facts. See Paragraph 41. Paragraph 3 True, but part of statement of case. Paragraph 4 Paragraph 11. Paragraph 5 Paragraph 1. Paragraph 6 Subsumed in Paragraph 11. Paragraph 7 Subsumed in Paragraphs 11 and 17. Paragraphs 8,9,10 Paragraph 44. Paragraph 11 Conclusion of Law Paragraph 12 Paragraph 57. Paragraph 13 Contrary to facts. The Petitioner returned to duty. Paragraph 14 Irrelevant. Paragraph 15 Paragraph 48 Paragraphs 16,17,18 Paragraph 51 Paragraph 19,20 Contrary to more credible evidence. Paragraph 21 Subsumed in paragraph 54. Paragraph 22 Paragraph 56. Paragraphs 23,24,25 Paragraphs 2,3,4,58,60 Paragraph 26 Paragraph 26. Paragraphs 27,28 Paragraph 42. Paragraphs 29,30 Subsumed in 2,3,52,53. Paragraph 31 Rejected because Jelks received the raise at the end of his probation period on November 24, 1988. His reduction in pay was $.30/hour for October and November, or 8 weeks X 40 hours X .30 = $96.00. Paragraph 32 County's claims were rejected on this point. Paragraph 33 Paragraph 18 Paragraph 34 The statistical record is rejected for lack of credibility because it considers averages of both groups compared when there are findings which show whites held higher paying jobs. Paragraph 35 Subsumed in paragraph 32. Paragraph 36 Subsumed in paragraph 54. Paragraph 37 Rejected as contrary to better evidence. Paragraph 38 Subsumed in Paragraphs 26,27. Paragraph 39 Paragraphs 29,30. Paragraph 40 Is not addressed specifically because it violated the HO's directions that findings be kept short, and address specific factual matters, and is mostly argument. Paragraph 41 Subsumed in Paragraph 17. Paragraph 42 Paragraph 20. Paragraph 43 The County did accommodate some whites. Paragraph 44 Rejected as contrary to best evidence. Paragraph 45 Paragraph 50. Paragraph 46 Subsumed in Paragraph 55. Paragraph 47 Rejected. Welder and mechanic were the same job description. Paragraph 48 Irrelevant. Paragraph 49 Rejected because "handicap" relates to permanent conditions, and his permanent handicap was only 4 percent. It was his temporary condition which impacted his ability to perform the work. Paragraph 50 Irrelevant. Paragraph 51,52 The name calling by employees, to include Johns, occurred in the context of an angry exchange with Sikes, who cautioned Johns to calm down. Johns subsequently apologized to Sikes, and neither were aware that his comments had been overheard by Jelks. Paragraph 53 Paragraph 51. Respondent's Recommended Order Findings Paragraphs 1-5 Paragraphs 1-6 Paragraph 6 Subsumed in part in 1-6, and rejected in part as contrary to most credible evidence. Paragraphs 7,8 Paragraph 6 & rejected as contrary to most credible evidence. Paragraph 9 Rejected as contrary to most credible evidence. Paragraph 10,11 Paragraph 8 Paragraph 12,13,14 Paragraph 9,10 Paragraph 15 Paragraph 29 Paragraph 16 Paragraph 49 Paragraphs 17-23 Paragraphs 11-17 Paragraph 24 Paragraph 21 Paragraph 25 Paragraph 19. Paragraphs 26,27 Irrelevant. Paragraph 28 Paragraph 25 Paragraph 29 Paragraph 17 Paragraph 30 Rejected as contrary to most credible evidence. Paragraph 31 Paragraph 28. Paragraph 32 Irrelevant. Paragraph 33 Rejected as contrary to most credible evidence. Paragraph 34 Paragraph 20. Paragraphs 35,36 Paragraph 19 & rejected as contrary to best evidence. Paragraph 37 Paragraph 23. Paragraph 38 Paragraph 24. Paragraph 39 Paragraph 25. Paragraph 40 Paragraph 31. Paragraph 41 Rejected as irrelevant. Paragraph 42 Paragraph 33. Paragraphs 43,44 Paragraph 32. Paragraph 45 Paragraph 35. Paragraph 46 Paragraph 36. Paragraph 47 Irrelevant. Paragraph 48 Subsumed in paragraphs above. Paragraph 49 Subsumed in Paragraph 33. Paragraph 50 Paragraph 35, best evidence. Paragraph 51 Paragraph 32. Paragraph 52 True, but part of law. Paragraph 53 Paragraph 34. Paragraphs 54-58 Paragraphs 37,38,40,41 Paragraph 59 Irrelevant. Paragraph 60 Duplicative. Paragraphs 61,62 Irrelevant. Paragraph 63 Rejected as contrary to most credible evidence. Paragraph 64 Paragraph 48. Paragraph 65 Subsumed in Paragraph 41. Paragraph 66 Subsumed in Paragraph 48. Paragraph 67 Irrelevant. Paragraph 68 The wage disparity was the result of hiring Blacks in the lowest paying jobs. Paragraph 69 Subsumed in Paragraph 54. Paragraph 70 Paragraph 50. Paragraph 71 See comments to Paragraph 68. Paragraphs 72-83 Subsumed in Paragraphs 54, 55. COPIES FURNISHED: Michael Mattimore, Esquire Kimberly L. King, Esquire Suite 305 215 South Monroe Street Tallahassee, FL 32301 Toby Buel, Esquire Three Rivers Legal Services 817 West Duval Street Lake City, FL 32055 C. Dean Lewis, Esquire Post Office Box 8 Live Oak, FL 32060 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue This cause concerns a Charge of Discrimination and Petition for Relief filed by the above-named Petitioner, concerning which it must be determined whether she was discriminated against by being terminated from her employment for alleged reasons of gender discrimination (female) and age discrimination (age 59).
Findings Of Fact It was thus established that the Petitioner was working at the Lucent Technologies, Inc., job site (Lucent) as a security guard when she was terminated on June 1, 2001. She had previously been offered an opportunity to cross-train on other security posts, working in her job as a security guard so that if one post closed down, she would be already trained in performing the required duties at other security posts. She refused such cross-training, however. On or about June 1, 2001, Lucent, the client of the Respondent company, Ideal Services, Inc., notified the Respondent that it would have to close down the security guard post where the Petitioner worked. Because the Petitioner had not been cross-trained and there were no other security guard posts or positions where she could work, due either to her failure to become cross-trained or to be qualified with a weapon-carrying license or due simply to a lack of available positions, the Respondent was forced to terminate her. The Respondent offered the Petitioner other positions at comparable, although not necessarily exactly the same pay rates; some of them being at higher pay rates and one or more being lower. The Petitioner refused these job offers, however, telling the Respondent that she was going to truck-driving school to train to become a truck driver. The Respondent also offered to help the Petitioner out with on-call jobs, or "fill- in" work, which she also refused at the time. In fact, the Respondent offered the Petitioner still another full-time position at another job site at comparable pay to the pay she had earned before she was laid off, when her post closed down. She refused that job, as well. The Respondent had other women as employees in comparable positions to that occupied by the Petitioner. The Respondent's Exhibits numbered one through four, in evidence, show the Respondent's employee profiles by sex and age for the Orlando area and for the whole company at all of its operational locations. Exhibit numbered three shows the pay rates for all employees, as well as the contracted clients of the Respondent company, by way of coroborative proof of the competitive jobs offered to the Petitioner after she was laid off and which she refused. In summary, the evidence shows that the Respondent had a legitimate business reason to terminate the Petitioner from her employment. She had been advised to cross-train so that she would be qualified and competent to serve at different posts or positions of responsibility with the company. Her supervisor, Mr. Ray Bradley, had advised her to do this because he knew that Lucent was reducing operating costs and might close one or more security guard posts or positions. The Petitioner refused to so cross-train. Therefore, Mr. Bradley later did not have an opening for her when her post closed down, because he had to use other employees who had already cross-trained for varied positions or posts. Nonetheless, although it had its legitimate reason for not retaining the Petitioner in its employ, the Respondent continued to attempt to assist the Petitioner by offering her other comparable competitive positions with other security service clients, when they became available, which she refused.
Recommendation Accordingly, in consideration of the foregoing findings and conclusions, and being advised in the premises, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. 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 12th day of June, 2003. COPIES FURNISHED: Diane M. Cox Ideal Services, Inc. 211 North Ridgewood Avenue Suite 203 Daytona Beach, Florida 32114 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Janet Rousch 2212 Point of Rocks Road Chesterfield, Virginia 23836 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner, Mose Howard, Jr., was hired by the Respondent, K-Mart Corporation, as a night maintenance man at its store number 7339 located at 2620 N. Hiawassee Road in Orlando, Florida on July 10, 1984. According to Mr. Howard, his job was to help clean up after the store closed for the evening and to -notify the store authorities if and when the alarm went off during that period. His duty hours were from 9:00 p.m. to 7:00 a.m., Monday through Friday. He worked at the store for approximately six weeks during which time, according to him, he was never told by anyone in authority that his work was unsatisfactory. On August 16, 1984, Mr. Howard was called in by Mr. King who advised him that his work was not satisfactory. Mr. Howard contends that at the time in question, Mr. Ring gave him two pieces of paper to sign and advised him that if he didn't perform better, he'd be laid off. At the time, Mr. Howard looked at the papers and determined that his name was on them, but nothing else. The form in question was a Personal Interview Record consisting of two pages and Mr. Howard contends that that portion of the record dealing with the summary of discussion held between the parties at the interview was left blank. According to Mr. Howard, he signed the form in blank because he thought it was merely a notice that he was being placed on probation. In fact, though he may not have known it, he was on a probationary period from the time he was hired. During the course of the discussion, Mr. King advised him that the store had been receiving complaints about his work from undisclosed sources and also information that he had been sleeping on the job. Mr. Howard categorically denies having slept on the job at any time during the period of his employment and Respondent produced no evidence that he had. He admits, however, that his cleaning duties may have been, from time to time, accomplished in a less than satisfactory fashion. From time to time, when he was cleaning up paper and other debris from under the counters, crews of the contractor hired to maintain the floors in the store, whose job it was to strip and re-wax the floors periodically, were working on other aisles of the store. He contends that when this crew would go from one aisle to another, they would turn off and on the lights. Because he could not turn the lights on where he was working if the crew had previously turned them off, it was too dark for him to see and clean up well. He believes that it was this inability to clean up properly because of lack of lighting that formed the basis of the complaints against him. In addition, he states, the burglar alarms would periodically sound and when this happened, it would be necessary for him to call someone to come in and turn them off. This caused him to lose work time because when the alarm sounded, he felt he had to stop working and leave-the store because, had he stayed in there, the police might think he was breaking in. While denying, unequivocally, that he ever slept on the job, Mr. Howard admitted he would sit down from time to time in the break room but only on his two 15 minute breaks or during his 30 minute meal period. There were other times, he admits, that because of the lighting situation, he was unable to work in the store while the floor crew was there. In that case, he would sit down and wait until the crew would finish where it was working and he could go back to work. Sometimes this would be for an hour or even a couple of hours and during the period of enforced break from sweeping, he would try to find something else to do like cleaning the restrooms. In this regard, according to Mr. King, the cleaning of the restrooms was an integral part of Petitioner's responsibilities and his accomplishment of these duties was also periodically and repeatedly unsatisfactory. After the personnel interview conducted on August 16, 1984, Mr. Howard finished work for the evening and left. When he returned the following evening, a Friday, he was called in by another supervisor and advised that he was discharged. He says that at this point he was not given any reason for his discharge. However, he waited around outside the store until the closing time of 9:30 p.m. (approximately a half-hour after he came to work and was fired), went into the office, and picked up his paycheck from Payroll. The check he received that night was for all that was owed him up to the end of the pay period. A few days later, (the following Monday), he went back and was given another check for the day and a half wages owed him for the new pay period up until he was discharged. Mr. Howard denies having received a call in advance to advise him his work was unsatisfactory nor was he given a reason for being fired. Nonetheless, he did not question the basis for his firing either on August 17, or the following Monday, but merely accepted the pay due him and left. Even though Mr. Howard says he was not given a reason for his discharge and does not know why he was fired, he is convinced the discharge action was taken on the basis of his race because he always did his duty to the best of his ability and worked extra hours without pay on many occasions. It is because of his own satisfaction with his duty performance that he contends his discharge must have been racially motivated. However, he admits that no one from K-Mart Corporation or the store in which he worked ever gave him any indication of a desire to get rid of him or other black employees. Further, during the period of time he worked there, he never heard any racial comments or slurs from any employees, either upper management or low level, except from one young stockboy who used the term "nigger" frequently. He admits to being told on one occasion by an employee of the contractor that he had missed an area in his sweeping and had to go back and do it again and, on several occasions, he observed areas he missed and went back and cleaned them on his own, but aside from those instances, he contends no one from the corporation ever complained to him about the way he was performing his duties until the night of August 16, 1985, when he was interviewed by Mr. King about his performance. Even on that occasion, according to Petitioner, there were few specifics in Mr. King's comments. As he remembers it, Mr. King merely stated that he was deficient in keeping the floors, the walls, the restrooms, etc. clean but Mr. Howard states that these allegations are all lies. Mr. King, on the other hand, indicates that when Mr. Howard was hired, he was fully briefed on the nature and scope of his duties and was taken around the store and shown where and how things were to be done. At that time, the routine janitorial. duties such as wet mopping the floors, cleaning the restrooms and the cafeteria, and the other items of a similar nature were clearly made known to him. In the interim, Mr. King has personally discussed his performance, which was not up to par with Mr. Howard on at least three or four separate occasions, including in his comments such things as the stools not being kept clean, the floors not being mopped, spots being left on the mirrors. These duties and others of a similar nature were solely the responsibility of the Petitioner on the nights he worked. On each occasion, Mr. King found Petitioner's attitude to be negative. Mr. Howard gives the impression he feels he is performing satisfactorily and if management doesn't like the way he's doing his job, that's too bad. Though Mr. Howard contends that the problems he faced in accomplishing his duties were caused by the low availability of light in the store after closing hours due to the actions of the contractor's crew, he never complained to anyone about this. He didn't feel he had to say anything to the contractor's employees because he did not work for them and he felt that they could see the problem because it was obvious. He also contends that he cleaned the ladies' room as he was required to do and that any unsatisfactory condition may well have been caused by two white contractor's employees who would sleep in there from time to time. Again, he did not say anything to the contractor or anyone else about this because he thought what was happening was obvious. Petitioner's deficiencies and the counselings he received for them ultimately culminated in the personal interview reduced with a written memorandum on August 16, 1985. At that time, Petitioner was told that if he didn't improve, it would be necessary to get someone else to do the job. The personal interview on August 16, 1984 was the last effort on the part of K-Mart management to get Petitioner to do a better job. The description of his deficiencies, according to Mr. King, was placed on the interview form before the interview and was given to Petitioner to read at the time. Mr. King is quite certain that Petitioner looked at the form containing these comments and signed it. The personnel manager for the store was present at the time. When the work was not done properly that August 17, 1984 when he came to work, he recommended Petitioner's termination to the store manager. The other assistant manager, Mr. Avera, concurred in this recommendation on the basis that Petitioner was simply not getting the job done. Mr. King unequivocally denies that his recommendation for termination was racially motivated. He has, in the past, recommended only one other termination of an employee. This employee was white. The list of all employees terminated by this K-Mart store from August , 1983 through November, 1984, with reasons therefor, reflects that of the three other night maintenance personnel terminated during that period, two were white and one was black. The reasons for termination include sleeping on the job, unsatisfactory performance and drug possession. Of the fifteen total employees discharged during the period, at least ten were white, four were black, and one is not identified by race. On balance it is clear that Mr. Howard was terminated not as a result of any racial motivation but simply because he was a probationary employee and management was dissatisfied with his performance during the period of probation. Mr. Howard rejects Mr. King's evaluation of him on the basis that Mr. King did not personally supervise his work and that his analysis is based on matters outside his personal knowledge. He contends that his work was always done to the best of his ability and he does not accept the possibility that his performance could have resulted in his termination. Nonetheless, he does not know if any other black maintenance employees were discriminated against or, for that matter, if any other black employees in any job were discriminated against at this facility. Mr. Howard denies signing the separation report that was prepared on the night of his discharge even though, admittedly, it bears his signature. It is for this reason as well as because of his denial that any detail was included on the interview report when he signed it that a question is raised as to the accuracy of his analysis of the situation. In substance, there is ample evidence with specifics to establish the legitimate ground of inappropriate performance as the basis for his discharge and very little evidence other than his allegation to support a claim of racial prejudice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Petition of Mose Howard, Jr. be denied. RECOMMENDED this 30th day of September, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 30th day of September, 1985. COPIES FURNISHED Mose Howard, Jr. 67 West Michael Gladden Blvd. Apopka, Florida 32703 Janice Paulsen, Esq. International Headquarters K-Mart Corporation 3100 West Big Beaver Road Troy, Michigan 48084 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303 Aurelio Durana General Counsel Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, FL 32303
