Findings Of Fact At all times relevant hereto, Respondent Sun Personnel Services, Inc., was a licensed private employment agency, and Denise Farrow (formerly Denise Verrez) and Deborah Crawford Yates were licensed employees of that agency. Farrow had a client whom she was trying to place in the motel or motel business. In conjunction with such a placement, on October 2, 1979, she telephoned Marion Chadwick, Director of Marketing at the Sheraton-Tampa Motor Inns, to inquire regarding possible employment positions at the Sheraton. Chadwick advised Farrow that she was looking for someone to act as a convention coordinator and that an applicant for that position would also be required to type. She further advised Farrow that she was willing to train the person she hired, that the position paid $3.50 per hour, and that advancement in the position was possible. The position was not immediately available since Chadwick did not wish her current employee occupying the position to know that she was interviewing a replacement. In this same telephone conversation, Farrow scheduled an appointment for her client with Chadwick. Later that same day Farrow called Chadwick to cancel the interview since her client required a higher salary than Chadwick could pay. Farrow recorded the information she had obtained from Chadwick on one of Respondent's Job Order forms, thereby making available to other employees of the Respondent the information she had obtained from Chadwick. The only information she placed on that form regarding specific job duties were the words "convention coordination" and the required typing speed of "50+" words per minute. Shortly thereafter, Farrow's employment with the Respondent was terminated. As a result of an advertisement in the newspaper, Petitioner Marilyn Kelley went to Respondent's office on October 15, 1979, and was interviewed by Deborah Crawford Yates. Kelley entered into an employment agreement with Respondent, agreeing to pay a placement fee if she accepted a position of employment through the efforts of Respondent. Kelley indicated on the agreement that she was not being considered for employment at that time except for a position involving sales on the telephone of yellow pages. Kelley further advised that although she was a recent college graduate, her employment experience was that of a secretary and that her secretarial duties included supervising a typist and three part-time assistants, and coordinating activities in her boss's absence. She indicated she was seeking a position in the public relations field or as a travel coordinator. During the following weeks, Yates sent Kelley on interviews to Data Processing Services, National Cash Register, General Electric Credit Corporation, Southern Data, and Howard Johnson's. She also discussed with Kelley possible positions at Lanier and at Dobbs House. On November 6, 1979, Yates called Chadwick to inquire whether the position as convention coordinator was still available, and upon finding that it was, she scheduled an interview for Kelley on that same date. Prior to her interview, Yates had Kelley come to her office at which time she explained to Kelley the information she had regarding the position and specifically told Kelley that the ability to type more than fifty words per minute was required. She sent Kelley to the interview with Chadwick with an interview card which indicated the position being applied for was that of convention coordinator. On the following morning, Yates called Chadwick to inquire as to the result of the interview. Chadwick advised Yates that she was impressed with Kelley and would make a decision regarding employment later that week. On November 9, Chadwick called Yates and advised that she wanted to schedule a second interview with Kelley on that day. Yates contacted Kelley and had her come to the office prior to her second interview to pick up another interview card. While there, Kelley asked Yates for specific information regarding the job, and Yates advised Kelley to ask Chadwick for any additional information which she wanted regarding the job or benefits. Yates waited at her office, and when Kelley returned, Kelley advised that she had accepted the position at the Sheraton. Yates called Chadwick to confirm that Kelley had been hired by Chadwick as a convention coordinator and thereafter filled in the placement Data portion of Respondent's employment agreement. Kelley advised Yates that she would not begin working until the following Tuesday since Chadwick was going to use Monday to fire the person occupying the position. On the day of her first interview with Chadwick, Kelley completed the Sheraton's application for employment on which form she indicated that she was seeking a position as a convention coordinator. After her second interview, Chadwick completed the Sheraton's portion of that form, indicating that Kelley had been hired as a secretary in the sales department. Kelley did not see that portion of the employment application indicating she had been hired in a position with a title different than that which she sought, nor did any employee at Sun Personnel Services, Inc., see that portion of the form filled in by Chadwick. By the time of the final hearing in this cause, Kelley had forgotten that she had two interviews with Chadwick, that one week had transpired between her first interview and the time she started employment, and had also forgotten most of the other interviews that Yates had set up for her. She did remember that she never discussed with Chadwick her specific job duties, her salary, or her possible salary advancement. She does remember that Yates discussed with her the convention coordinator job and its responsibilities although Yates seldom discusses job details with an applicant since the applicant and the prospective employer would have more information regarding that than she. Chadwick not only told Kelley that the actual position required typing, filing, and general office work, she in fact gave Kelley a typing test. Kelley did understand that she was being placed in a position wherein she would be an assistant to Chadwick and should eventually be able to cover some of Chadwick's duties, particularly when Chadwick was not in the office. Apparently, Chadwick assumed Kelley was applying for a primarily secretarial position, and Kelley assumed that she was applying for primarily a convention coordinator position, which confusion was both spawned and continued by Kelley's failure to ask her prospective employer any questions regarding the soon-to-be available employment position. In reality, Chadwick's position as Director of Marketing encompassed those duties typically performed by a convention coordinator, and Kelley's gradual coverage of Chadwick's duties would put her in a position where she functioned as both a convention coordinator and as a secretary in varying degrees. During the week between Kelley's first interview and her actual employment at the Sheraton, nothing was either said or done by either Chadwick or Kelley that would put the employees of Respondent on notice that there was a discrepancy between Chadwick's overly enthusiastic job title for the position and Kelley's total failure to understand the purpose of a job interview. Kelley commenced her employment at the Sheraton on November 13, 1979, and spent the day typing, filing, and answering telephones. At the end of her first day, she asked a secretary at the Sheraton if her duties would change from what they were on that day and was advised that they would not. The following morning, she asked Chadwick what her job duties were and discovered, for the first time, that she was hired as a secretary. Kelley then called Yates to complain, and Yates advised her to come to Respondent's office so they could discuss the matter and attempt to find a solution. Kelley called Yates later that day and said that she had already quit her job at the Sheraton. On the following day Kelley met with Yates and Charles E. DeCroes, the president of the Respondent. DeCroes explained to Kelley that the Respondent had fulfilled its contractual obligation by placing her in a position that she had accepted, that the Respondent owed Kelley no further assistance, that the Respondent was entitled to retain the placement fee of $761.63 which Kelley had paid for the position, but that if Yates felt an obligation to attempt to find other employment for Kelley, then Yates was free to do so. Accordingly, DeCroes and Kelley signed an agreement amending their employment agreement whereby Respondent agreed to replace Kelley in a position at no additional fee. Thereafter, Yates arranged an interview for Kelley at the Holiday Inn and scheduled three interviews for Kelley with Lanier. Kelley failed to keep any of the appointments arranged by Yates at Lanier. In the meantime, Kelley advised Yates that although she was in need of employment, she felt her chances of obtaining a suitable position would be increased if she first had the braces on her teeth removed. Yates then attempted to place Kelley in a part-time sales position until after Christmas so that Kelley could realize some income to help her through her financial problems, so that Kelley would have free time to interview for a position desirable to her, and so that Kelley would have time to have her braces removed. Kelley rejected the sales positions which she felt beneath her dignity as a college graduate and filed a formal complaint against the Respondent with the Division of Licensing on December 4, 1979, although Yates continued to attempt to place her subsequent to that date. Upon receipt of Kelley's written complaint, the Division of Licensing assigned Frank Calhoun, Regional Supervisor for the Department of State, to conduct an investigation. As a result of his investigation, Dennis L. English, Chief of the Bureau of Regulation & Enforcement, directed a letter to DeCroes, Respondent's President, setting forth the Division's conclusion that the position at the Sheraton Inn was misrepresented to Kelley in violation of Chapter 449.02(1)(d), Florida Statutes, setting forth the Division's determination that a full refund of Kelley's placement fee of $761.63 should be made, and stating that if the refund was not made, the Division of Licensing might take further action in accordance with Chapter 449.02(1), Florida Statutes. Chapter 449, Florida Statutes, which gave to the Department of State regulatory authority over private employment agencies was repealed by the Legislature effective July 1, 1980.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered denying the relief sought by the Petitioners herein, dismissing the complaint filed by Petitioner Marilyn Kelley, and authorizing Respondent, Sun Personnel Services, Inc., to retain the placement fee earned by it. RECOMMENDED this 19th day of January, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1981. COPIES FURNISHED: James V. Antista, Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Cary R. Singletary, Esquire Yanger and Singletary, P.A. Exchange National Bank Building Suite 1625, 610 Florida Avenue Tampa, Florida 33602 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner, Clarence E. Burtoft, was hired by respondent, Southern Linen Service, in November, 1982 as assistant general manager at its Daytona Beach plant. Prior to this employment, he had back surgery performed in Augusta, Georgia but the effects of such surgery did not interfere with his job duties. After being on the job for approximately three days, he was told by the regional manager that labor costs needed to be reduced, and that one employee must be laid off. He was also told to shift two female employees from one department to another. There is a dispute between the parties as to what the actual instructions were, and whether they were in fact carried out by Burtoft. Nonetheless, the employer construed Burtoft's actions as not complying with its instructions, and Burtoft was accordingly terminated the following day and told he was not the right man for the job. The back surgery was not related in any respect to the termination and Burtoft himself acknowledged as much. Burtoft's complaint is that his job records at Southern Linen Service contain a notation that he was fired for refusing to follow instructions. He only wants that adverse information removed. 1/ He is not contending that his employer unlawfully discriminated against him, or requesting that his job be reinstated with full back pay. Indeed, it was only after he visited the State employment office that he filed this complaint upon that office's encouragement. At no time was he ever told by any Florida Commission on Human Relations representative that its jurisdiction extended only over certain employment practices, and that any complaint must necessarily be founded on some form of discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for relief filed by Clarence E. Burtoft be DENIED. DONE and ENTERED this 2nd day of March, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 March, 1984.
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
Findings Of Fact Petitioner, Carrie Suzette Johnson, is a 30-year old female residing in West Melbourne, Florida. Respondent, Kelly Ford, Inc., is a franchised Ford dealer located at 776 Magnolia Avenue, Melbourne, Florida. Petitioner was employed by respondent from October 11, 1977, to December 29, 1978. For the first 30 days of her employment, she occupied a training position to learn the job responsibilities of a service writer. Having satisfactorily completed the training phase, she was then employed in a permanent capacity as a service writer. In October, 1978, her position was reclassified to service writer and assistant service manager, although her duties remained essentially the same. Petitioner's responsibilities as a service writer were to greet customers, receive a verbal description from the customers of mechanical problems being experienced, and to record that information on a service ticket. She then transmitted this written information to a mechanic who diagnosed the problem and repaired the vehicle. After the mechanical work was completed, she was required to compute certain charges on cash tickets (as opposed to warranty tickets) and furnish that information to the Credit Department. In the event any questions were raised by a customer concerning his bill, petitioner was required to meet the customer and, if necessary, adjust the charges on the bill. The position of service writer does not require a high degree of mechanical skill. However, it is a position of high visibility in terms of meeting the public, and one which requires the proper temperment to deal with belligerent and often angry customers who are experiencing mechanical problems with their automobiles. The service writer can be described as an ambassador for the dealership, since he or she is in constant contact with customers on a daily basis. Petitioner is a highly active and energetic person. She is also impatient and aggressive. These traits carried over to her relationship with customers, and resulted in a number of complaints being lodged against her. In fact, more complaints were lodged against her than all other service writers combined. Additionally, there were instances when she had "loud" arguments with customers who questioned the charges on their bills, had dealings with customers in an abrupt manner, showed impatience with elderly customers, gave the appearance of being interrupted when called to discuss a problem with a customer, and recalculated charges on disputed bills in an aggressive and somewhat hostile manner. Being aware of these problems, management had discussions on several occasions with both her and her immediate supervisor, Mr. Harry Scabarozi, Jr., concerning her attitude and work performance. Despite these discussions, there was no discernible change in her relationship with customers. On or about December 28, 1978, petitioner was asked by Mr. Robert C. Utsler, Kelly Ford's service manager, to take a position as warranty clerk at a salary of $135 per week, which was approximately $65 per week less than her most recent earnings as assistant service manager. She expressed willingness to assume the responsibilities of the new job, if such was required, but refused to take a pay cut. After being told to go home and think about it overnight, petitioner returned the next day and advised Utsler she did not wish to be reclassified to a different, lower-paying position. Utsler then told her that if she did not take the warranty clerk position, she would be discharged. At that time he also advised her that the dealership wished to try an arrangement whereby all service writers would be men. Thereafter, petitioner met separately with Mr. Ross Hardy, parts and service coordinator, and Mr. Paul West, part- owner and general manager. Each told her that she was a dedicated and hard- working employee, but that she was more suited for the position of warranty clerk than service writer. During these meetings, neither Hardy or West mentioned or inferred that such reclassification was due to the fact she was a female; rather she was told that the change was in the best interest of the business. The specific reason for dismissal was her inability to maintain satisfactory relations with the customers. Because she refused to accept the new position, her employment was officially terminated on December 29, 1978. She was replaced by Jim Lutz, who had previously worked as a mechanic at Kelly Ford. Lutz was low-key and easygoing in temperament, possessed a high aptitude in mechanics, and was well qualified for the position. Petitioner was not employed on a full-time basis again until September 18, 1979, when she began working as a service writer at Jim Rathman Chevrolet- Cadillac in Melbourne. During the intervening period, she received unemployment compensation for 20 weeks, and worked at Montgomery Ward for approximately a month. She also filed a number of unsucessful applications for employment, including that of service writer at other Melbourne area car dealerships. Although Kelly Ford advertised for a service writer position in August, 1979, and petitioner applied for same, respondent would not hire her. Instead, it offered to hire her in the warranty clerk position at a salary of $155 per week, which she refused. Petitioner was originally hired by Harry Scabarozi, Jr., who supervised her from October, 1977, until September, 1978, when he left the dealership. He described her as "a worthy employee" and agreed she "very definitely" performed her job in a "competent fashion". (Petitioner's Exhibit 3). Petitioner asked for and received a letter of recommendation from Kelly Ford on January 2, 1979. The letter was signed by Utsler, Hardy and West, and described her as "a loyal, dependable employee in the position of Service Writer", and stated that "she was well qualified in the handling of Customer Relations and Service Selling". (Petitioner's Exhibit 1)
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Carrie Suzette Johnson for sanctions against Kelly Ford, Inc. under Section 13.261, Florida Statutes (1977) be denied. DONE and ENTERED this 28th day of April, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1981.
Findings Of Fact Petitioner is a black female. At all times material, Petitioner was employed by Respondent corporation in one of its general retail merchandise stores in Ocala, Florida. Petitioner was hired by Respondent's white male store manager, Mr. John Sasse, on October 20, 1992, as a stock clerk in the shoe department. Petitioner was terminated on January 10, 1993, within the ninety day probationary period published in Respondent's employee handbook. In making the foregoing finding of fact, it is recognized that Petitioner attempted to show that the probationary period for new employees was only sixty days. However, she only showed that the sixty day period was applicable in a different time frame than is material here. On October 31, 1992, while working in a stock room, Petitioner's back and neck were injured when a box fell on her. Supervisors called an ambulance, and Petitioner was transported to the emergency room of a local hospital. She was treated but not hospitalized. Respondent duly filed the "Notice of Injury" as mandated by Chapter 440 F.S., "The Florida Workers' Compensation Act," and began to pay Petitioner's medical expenses. Prior to her injury, Mr. Sasse considered Petitioner to be only a marginal employee. Petitioner was released by hospital doctors for return to work as of November 6, 1992. At that time, she had no work restrictions imposed by a doctor, so Mr. Sasse reassigned Petitioner to her usual duties. Petitioner worked at the tasks she felt she could do until November 11, 1992, when she returned to the hospital. She was examined and medicated. Later that same day, as is standard procedure with workers' compensation injuries wherein the employer pays for an injured worker's medical care and as a result has the legal right to specify which doctors attend the employee, Mr. Sasse ordered Petitioner to go to "Care One," a "walk-in" medical facility specializing in occupational medicine. Petitioner went to Care One, where she was again examined and medicated. Petitioner was released for work the same day with written work restrictions from the Care One doctor. Petitioner's resentment against Respondent that she had been injured in the first place apparently was a motivating force in her actions after she returned to work the second time. Petitioner's candor and demeanor while testifying, as well as her persistence in returning her testimony to the circumstances surrounding the box falling upon her in the storeroom, made it very clear that she considered it discriminatory, or at least unfair, that Respondent had "forced" her or anyone to work under the cluttered stock room conditions that had resulted in her initial accident or injury. In Petitioner's mind, at least, the fact that an accident or injury had occurred in the first place was sufficient to establish "dangerous working conditions" and "an unlawful employment practice." After November 11, 1992, she persisted with these complaints to the employer. However, no competent evidence established a nexus between Petitioner's race and her pre-injury job assignments, and no evidence demonstrated that after her accident, the Respondent-employer handled her workers' compensation medical care any differently because she was black. On November 11, 1992, Care One's written restrictions provided: Restricted Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and working above the shoulders. Employee should avoid lifting > 20 pounds, avoid frequent bending and twisting of the back, and avoid strenuous pushing and pulling. Mr. Sasse and his subordinate supervisors assigned Petitioner tasks consistent with Mr. Sasse's interpretation of Petitioner's written restrictions, as modified over time by subsequent information. On November 11, 1992, a position was created for Petitioner in the soft goods department. At this time, Petitioner became the only black clerk in the soft goods department. Initially, Mr. Sasse told her she was not to reach above her shoulders or bend to pick up anything below her knees. Petitioner complained that these tasks constituted too much physical exertion for her due to her physical condition. Petitioner continued to complain about the accident and her pain. The employer and insurance carrier continued to refer her back to Care One. There was a short delay with regard to some medical services requested by Petitioner or by referring and consulting doctors under the workers' compensation medical care delivery system, but the employer/insurance carrier in due course authorized physical therapy, a consultation with an orthopedic specialist, and magnetic resonance imaging (MRI) for further diagnosis. Derrick Proctor, a black male employee and Petitioner's friend, presented as a credible witness, even though he claimed to have been fired by Mr. Sasse under what Mr. Proctor termed "suspicious circumstances" and at the time of formal hearing had some type of action pending against this employer. Mr. Proctor described Petitioner as "embittered" against the employer because of the employer's refusal or delay in dealing with Petitioner's medical concerns and stress. However, it appears that Petitioner's problems, if any, were common disputes and communication delays inherent in the workers' compensation medical care delivery system. For instance, when asked, the doctors reported directly to the employer, insurance carrier, and store manager concerning the Petitioner- employee's medical condition, consultant treatment, and recovery progress. On December 10, 1992, Mr. Sasse told Petitioner that he had received an oral report on her December 9, 1992 MRI results and that they were negative. This conversation occurred before any of the doctors had reported the MRI results to the Petitioner, and Petitioner inferred therefrom that information was being withheld from her. Later, on December 22, 1992, Petitioner learned, during a reprimand and counselling session for insubordination and failure to work up to her capacities, that the employer had been informed much earlier that she could return to work with no restrictions. (See Findings of Fact 32-36) Although Mr. Sassy and others had told her this before December 22, 1992, the events of December 22, 1992 triggered a belief in Petitioner that the employer was "out to get" her. Notwithstanding the extreme light duty assigned her, Petitioner complained about the work assigned and was uncooperative about helping supervisors find a job description she felt she could perform. Although Petitioner may not have known about it until November 25, 1992, on November 20, 1992 Care One deleted the prior restrictions on lifting items over 20 pounds, bending, and strenuous pushing and pulling, and narrowed her restrictions to the following: Restricted. Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and work above the shoulders. In December 1992, Mr. Proctor was required to close his department, hardware, every night, and Petitioner closed the soft goods department some nights. Petitioner considered being required to close some nights to be discrimination against her since she was the only black employee in the soft goods department at that time and the white female employee in soft goods had been switched to the day shift in Petitioner's place. The greater weight of the evidence shows that the whole store's evening hours increased from midnight to 1:00 a.m. due to the Christmas season, and on December 6, 1992, Petitioner was assigned to work nights so that she could go to daytime medical and physical therapy appointments. The employer's accommodation of Petitioner's situation in this respect was comparable to the accommodation given a white female employee in soft goods. Beginning November 23, 1992, that white female employee, Ms. Audrey, had been assigned to a daylight shift so that her husband, who had bad night vision, could drive her to and from work. Race was not a factor in the accommodation rendered Ms. Audrey or Petitioner. Who closed the store during December 1992 depended upon who worked the evening shift, not race. It is not entirely clear on the record whether, on December 3, 1992, Petitioner withdrew from physical therapy because she could not do the weight training assigned her or was rejected by the physical therapist as a client because she would not cooperate in weight training. Petitioner testified that she returned to physical therapy thereafter for ultrasound treatment. It is clear that Petitioner believed she was rejected by the therapist because she could not lift the heavy weights assigned her by the therapist as part of Petitioner's planned recovery. It is also clear that the decision to end the weight phase of Petitioner's treatment did not have employer input. By December 5, 1992, Petitioner's personally professed physical limitations and complaints about Mr. Sasse's treatment of her had resulted in Mr. Sasse accommodating her by creating a "make-work" job description. Under it, she was asked to push a cart that other employees had hung clothes on; she was not required to load the car with clothes. She was required only to pick up single articles of clothing that were left in the women's dressing rooms and return them to the racks. She was told only to bend if an occasional article of clothing was found on the floor. She was also told to open dressing room doors for customers and, if requested, fetch more clothes for them to try on while they remained in the dressing room. Petitioner was permitted to wear her softly padded neckbrace at all times, even though she presented no written doctor's instructions to do so. Petitioner described it as an "agony" imposed on her by the employer when, on December 5, 1992, Mr. Sasse ordered her not to sit continuously on the sales floor in a chair she had removed from the women's dressing room. Petitioner had previously complained because she had been required to sit for long hours on a very hard chair Mr. Sasse had provided for her, and this time she had gotten a different chair herself. On December 5, 1992, Mr. Sasse told her she must leave the dressing room chair in the dressing room for the customers, that she was not permitted to sit all the time on the sales floor where customers could see her, and she must not just sit without doing any work, until all her work was done. He told her to do a variety of the tasks of which she was capable, including but not limited to sitting while pricing goods. Petitioner considered these orders to be contrary to her doctor's limitations and to constitute "physical abuse." Petitioner repeatedly requested time off with pay so that she could recover completely through bed rest. Mr. Sasse would not allow her time off for medical reasons without a doctor's written approval. Petitioner considered this condition imposed by management to be "abusive." Petitioner described Mr. Sasse as being rude to her on December 6, 1992, when he refused to discuss her accusations of "physical abuse" and her request for time off in the presence of other employees and customers in the public buffet area of the store, and walked off, leaving her there. Petitioner referred to this incident as at least part of her "opposition to unlawful employment practices" which she believed resulted in her termination. Petitioner presented no evidence that a doctor had ever recommended that she stay at home and do nothing so that she could heal. From all the evidence, it is inferred that as a probationary employee, Petitioner had no accrued sick leave to expend for this purpose. Ms. Gardner was a long-time white female employee who had her doctor's approval for knee surgery and who required a month of bed rest at home afterwards. The employer allowed Ms. Gardner to use earned compensatory time as sick leave for that purpose during the month of December 1992. By mid-December, 1992, Mr. Sasse was frustrated because Petitioner refused to do every job he devised, even the "make work" ones, and he believed that she only pretended to be busy when he was watching her. Mr. Sasse had told Petitioner that she could do normal work again and she would not accept this from him without hearing it also from her doctor. Mr. Sasse decided to discipline Petitioner for not working up to her limitations as he understood them and for insubordination. He directed the soft goods manager trainee, Ms. Lynn Tyler, a white female, to "write up" Petitioner. Ms. Tyler and the assistant store manager, Ray Harding, a white male, met with Petitioner on December 22, 1992 to discuss the contents of the prepared memo. One of the supervisors' concerns at the time Petitioner was "written up" was that they could not get Petitioner to do anything at all without an argument, even after pointing out various light work job duties on a walk around the whole store. They were also concerned that without Petitioner doing some tasks, the employer had to pay other employees overtime to accomplish what Petitioner was not accomplishing in her regular shift hours. It was stipulated that Petitioner was never asked to work overtime. Petitioner refused to sign the December 22, 1992 memorandum of reprimand because she did not agree with it and because Tyler and Harding were, in her opinion, "grudgeful." Petitioner was informed later on December 22, 1992 by her Care One doctor that he had, indeed, released her for normal work activities effective December 16, 1992. His December 16, 1992 report which had been previously received by the employer read: Please note employee's current duty status is as follows: Regular May return to normal work activities full time. After her accident, Petitioner was observed by Derrick Proctor doing some of the same types of physical exertion the employer had required that she do before the accident, including reaching above her head to put clothes on and take them off clothes racks and picking clothes up from the floor, but he never knew her medical restrictions other than what she told him. He also observed her in agitated conversations with Ms. Tyler and Mr. Sasse while she was wearing a neck brace. On January 7, 1993, he saw Ms. Tyler "very out of sorts" when talking to the Petitioner. At first, he stated that he did not consider Petitioner to be rude or insubordinate on these occasions because the topic was working conditions, but later he admitted that he could not overhear what was actually said on all these occasions. Mr. Proctor also observed that, "Mr. Sasse rode everybody pretty hard," including white workers. It was "his way of getting things done." Mr. Proctor once observed Petitioner hiding in another department, behind racks, to avoid management. Petitioner acknowledged and described her "hiding out" at that time to Mr. Proctor as due to her "feeling mistreated" and "avoiding management." In her formal hearing testimony, Petitioner described it as "opposing unlawful work practices and abusive treatment." After learning on December 22, 1992 of her release from all medical restrictions, Petitioner continued to be uncooperative with management. Petitioner's testimony conceded that she had understood that all doctors had released her with no restrictions as of December 28, 1992 and that she had still refused to reach and bend in the stock room when ordered to do so by Mr. Sasse and Ms. Tyler on January 7, 1993. After evaluating Petitioner's continued failure or refusal to perform even the lightest of duties, Mr. Sasse decided to terminate Petitioner before her ninety days' probationary period ended. Mr. Sasse, who was terminated by Respondent-employer sometime later in 1993 and who, at the time of formal hearing, was litigating an unemployment compensation claim against Respondent, had no reason to fabricate information or testify favorably for the Respondent-employer. He was credible to the effect that the decision to terminate Petitioner in January 1993 was his unilateral decision and that he made his decision without reference to, or motivation by, Petitioner's race. Specifically, it was Mr. Sasse's foundational assessment that Petitioner could physically do the light work he assigned her after reasonable accommodation for a temporary disability but that she would not do the work assigned by him that caused him to terminate her. Petitioner testified that she was replaced by a white female. In fact, a white female was hired approximately one or two weeks prior to Petitioner's January 10, 1993 termination, with a due date to report to work on January 11, 1993, which subsequently turned out to be the day immediately following Petitioner's termination. The employer did not hire this white female with the intent of replacing Petitioner, but she was ultimately placed into the soft goods department. Mr. Proctor testified that other blacks worked in soft goods after Petitioner's termination. Within four weeks of Petitioner's termination, three new employees were hired. None of these were assigned to the soft goods department. Mr. Standley Gillings, a black male, was originally employed in another of Respondent's Ocala stores. In October 1993, Mr. Gillings was demoted with a loss of pay and transferred to the store from which Petitioner had been fired ten months earlier. His new immediate supervisor in that store was also black. Respondent continued to employ Mr. Gillings under the black supervisor until Mr. Gillings found another job and quit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the Petition for Relief. RECOMMENDED this 25th day of August, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1994.
The Issue The central issue in this case is whether the Respondent terminated the Petitioner from his employment in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner is a black male who was employed by the Respondent, City Gas Company of Florida, from June, 1966 until October 31, 1988. At all times material to this case, the Respondent had an after hours policy which prohibited its employees from working for other gas companies, contractors, self employment, or any gas related field without prior permission from the Respondent's executive office. Failure to abide by that policy would subject an employee to immediate termination. The Respondent's policy for services performed while on duty required the employee to work only on behalf of the company. Monies for services rendered by Respondent's employees while on company time were to be remitted to the Respondent's office with the appropriate paperwork within a timely manner. Normal business practice would be for a repairman to remit monies and paperwork either the afternoon of the job or the next business day if a same day return to the office would be impractical. In April, 1988, the Petitioner was given a work assignment at the home of a customer named Mrs. Rhodes. Petitioner was to turn on Mrs. Rhodes' furnace. After inspecting the unit, Petitioner advised Mrs. Rhodes that the furnace should be cleaned. Subsequently, she authorized that work and the Petitioner dismantled and cleaned the furnace while on company time. Upon completing the task, Petitioner asked for and received from Mrs. Rhodes two checks: one payable to Respondent to cover the turn on and deposit; one made payable to Petitioner personally for the cleaning of the unit. The Petitioner cashed the second check, in the amount of $25.00, and remitted the other check to the company. Sometime later, the Respondent received a complaint from Mrs. Rhodes concerning the furnace. Mr. Hixon, vice president and general manager for the company, confronted the Petitioner regarding the matter. During that conference Mr. Hixon asked Petitioner for an explanation regarding the second check which Mrs. Rhodes had reportedly paid to him. Petitioner did not admit that he had performed additional work on company time (beyond the routine turn on). Also, Petitioner did not admit that he had received monies payable to himself, and that he had cashed that second check. Bill Joynt is a white male employed by Respondent. In September, 1988, Mr. Joynt was assigned to make a service call for a customer named Mr. Cox. After installing a valve on Mr. Cox's furnace, Mr. Joynt received $80.00 cash from the customer. Later Mr. Cox contacted the Respondent to complain that the furnace was still not operating correctly. Mr. Cox advised the company that he had paid $80.00 for the repair but that he was unsatisfied with the work. Mr. Hixon contacted Mr. Joynt and confronted him as to why the $80.00 had not been remitted to the company. Mr. Joynt immediately acknowledged that he had forgotten to turn in the payment. Subsequently, Mr. Joynt turned in the $80.00 to the company. Because he readily admitted his error, the Respondent suspended Mr. Joynt for three days without pay and allowed him to return to work. Because he did not admit his error (in fact, Petitioner continued to deny it until the day of the hearing in this cause), the Respondent terminated Petitioner from his employment. Petitioner's lack of forthrightness, not his race, was his own undoing. The vacancy created by Petitioner's termination was filled under the terms of the Company's bargaining agreement with the union. A white male was entitled to and did fill the vacant position. Since leaving Respondent's employment, Petitioner has become employed by the Brevard County School Board but earns less than his prior employment afforded him.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE and ENTERED this 13th day of May, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1991. APPENDIX TO CASE NO. 90-5856 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None timely submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is accepted. The first sentence of paragraph 2 is accepted. With regard to the remainder of the paragraph, it is accepted that Petitioner knew all on duty work was to be done for the company; off duty work was performed by employees, including this Petitioner, with Respondent's approval and assistance. Paragraphs 3 through 6 are accepted. With the deletion of the word "repeated" paragraph 7 is accepted. With the clarification that Mr. Joynt agreed to turn the money in when he was confronted (perhaps found out), paragraph 8 is accepted. Paragraphs 9 and 10 are accepted. Paragraph 11 is rejected as irrelevant or hearsay. The first sentence of paragraph 12 is accepted. The remainder of the paragraph is rejected as contrary to the weight of the evidence. The company loaned Petitioner tools and sold him appliances to install during his off duty time. His failure to the company resulted from his on duty activities in his own cause and his failure to readily admit his error when confronted. Paragraphs 13 through 16 are accepted. COPIES FURNISHED: Susan K. Erlenbach 503 South Palm Avenue Titusville, Florida 32796 C. Graham Carothers Post Office Box 391 Tallahassee, Florida 32302 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
Findings Of Fact Frank Bowder began his employment with Exports, Inc., under the tutelage of Kenneth L. Kellar, President and sole stockholder of Exports, Inc., at the office in Washington state approximately 20 years ago. He became very knowledgeable about the company's business, and approximately 15 years ago he was sent by Kellar to operate the company's Florida office. He was given the title of general manager of the Florida office and remained an excellent employee until his recent death. Kellar considered Frank Bowder to be an excellent manager of the product of Exports, Inc., but recognized that Frank Bowder had a large turnover of employees. His wife Mae Bowder was also an employee of Exports, Inc., and was considered by Kellar to be "the best cleaning woman there is." She was in charge of cleaning and maintenance duties at the Florida office. At some point Mae Bowder began representing to people that she was the office manager of the Florida office. That information was brought to Kellar's's attention on several occasions, and he corrected that information by explaining that she was simply in charge of maintenance. At some point Mae Bowder's son, Wayne Evans, became employed by the Bowders in the Florida office and was given the title of warehouse manager. Within the last several years, Frank Bowder allowed his wife to "become" the office manager. When Kellar found out, he fired her because he believed that she was "not office material." Approximately a year later Kellar found out that Mae Bowder was once again the office manager. He spoke to Frank about it, and Frank explained, essentially, that Mae was giving him so many problems at home about it that he had to hire her back. Kellar fired her once again. Sometime thereafter, Kellar found out that Frank was ill. He came to the Florida office and discovered Mae Bowder once again employed as "office manager." He again discussed the matter with Frank and determined the extent of Frank's illness, which was terminal. He told Frank that Frank was too ill to be running the office full time and told Frank that he should only come to the office a few hours a day. Frank responded that he did not know what to do about his wife. Kellar then went to Mae Bowder and discussed with her the fact that he only wanted Frank to be at the office a few hours a day and that it was too difficult for Frank to continue working full time. He also told Mae Bowder that she should be staying home and taking care of Frank because Frank was so sick. Mae Bowder specifically asked Kellar if he were firing her, and Kellar responded "no" but that she should be staying home to take care of her husband. Mae Bowder "got in a huff," threatened two of the female office personnel, and left. Kellar did not see her again until the final hearing in this cause. Kellar began investigating the operations of the Florida office at that point and began discussing with the other employees there how the office had been managed. He discovered problems. He was told that the Bowders gave highly preferential treatment to Wayne Evans in comparison to the other employees. He discovered that Mrs. Bowder did not like to hire black employees, and the black employees who were hired were not given keys to the office. There was a stated policy by Mrs. Bowder to not hire people with children. Specifically, one black employee did not tell Mrs. Bowder that she had a child when she was hired. When she later became pregnant, Mrs. Bowder was furious. The employee was given one month for unpaid maternity leave and when she called at the end of that month, Mrs. Bowder told her she had been laid off. When she called two months later, the time by which her baby who was sick could be left with someone else, Mrs. Bowder returned her call a week later telling her she could come back to work because another black employee had left. Lastly, the other employees reported that Mrs. Bowder would yell and curse at them, threaten to hit them with an upraised hand, and even pushed and shoved an employee on one occasion because that employee had made a mistake in her work. The employees had previously not made these complaints because they could have only complained to the general manager who was the husband of the person about whom they would be complaining. Kellar brought an employee from the Washington office down to the Florida office to assist Frank Bowder and continued to pay Frank Bower his salary until he died. No evidence was offered that Kellar would not have continued to pay Mae Bowder her salary if she had reduced her hours in order to take care of Frank rather than walking out when Kellar tried to discuss the matter with her. No one else was present when Kellar and Mae Bowder had their discussion at the time when Mae Bowder resigned. Later that day, according to her son, Kellar made a comment that the Bowders had been the last of the married couples working for the company. Such a statement, if it were made, is susceptible of many interpretations, including sadness for the end of an era. Kellar did not fire Mae Bowder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered finding Exports, Inc., not guilty of committing an unlawful employment practice and dismissing Petitioner's Petition for Relief filed in this cause. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. LINDA M. RIGOT 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 26th day of May, 1989. COPIES FURNISHED: James R. McGlynn, Esquire 4633 10th Avenue North Lake Worth, Florida 33463 Kenneth L. Kellar President/Owner Exports, Inc. Post Office Box 449 Blaine, WA 98230 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Petitioner was discriminated against by Respondent, based upon his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. As such, he is a member of a protected class. Petitioner was employed as a co-manager at a Delchamps grocery store in Destin, Florida. The Destin store was a high- volume operation. In January 2001, Bruno's, Inc., acquired the Delchamps' Destin store and converted the store to a Bruno's supermarket. Petitioner was retained in the co-manager position while Bruno's conducted a full assessment of the staff and store. Under the Bruno's assessment, the company found several employees, including white employees, underperforming pursuant to Bruno's goals for high volume stores. Petitioner was one of the individuals found to be underperforming at the Destin store. On November 4, 2001, Bruno's moved Petitioner as a co- manager to a lower volume store in Niceville so that he would have a better opportunity to grasp management protocol under the Bruno's umbrella and develop professionally. During the same time period, another employee at the Destin store, Steve Aaron, who is Caucasian, was transferred to another store for the same reason. Petitioner’s duties and work conditions at the new store did not materially change. As before, all managers in the store, including himself, regardless of race, had the same hours, had the same working conditions in the store and closing the store, had the discretionary authority to hire additional staff as needed, and had an opportunity to use their discretionary authority in managing and operating the store. Petitioner’s pay and benefits at the new store, also, did not change. The transfer was abrupt since Petitioner was told to and did report to his new store immediately. The reason for the transfer was not fully explained to him. However, other than to inquire about the reason for the transfer, Petitioner did not complain about or object to the transfer even though he was aware of Bruno’s policy against racial discrimination and the various mechanisms to report such activity. There was no evidence that Petitioner’s transfer was based on Petitioner's race. Neither the abruptness nor the lack of explanation supports a finding that the transfer was based on Petitioner’s race since the transfer was part of Bruno’s review and adjustment process for the stores it had acquired, and other employees who were not members of Petitioner’s protected class were also transferred. Indeed, the evidence showed that employees of all races were and continue to be transferred from one store to another under Bruno's operations for business reasons, such as the reason that precipitated Petitioner’s transfer. Such employee development and training are legitimate, non-discriminatory reasons for the transfer of Petitioner to another store. Petitioner offered no evidence that demonstrated the reason for his transfer was pretextual. Moreover, Petitioner's first complaint based on race regarding his transfer was filed on January 14, 2003, more than a year after his transfer and is therefore time barred. In June 2002, Bruno's Supermarkets received separate complaints from four female employees at the Niceville store that Petitioner had subjected them to unwelcomed touching, rubbing, massaging and/or kissing. The complaining employees were Dawn Lawson, Christina Gore, Donna Ermilio, and Erin Epperson. None of the young women that placed complaints against Petitioner were at risk of losing their job nor did they have anything to gain in placing the complaints against Petitioner. Dawn Lawson was an assistant deli bakery manager and subordinate of Petitioner. She complained that while at work Petitioner would rub her arms, massage her shoulders, and kissed her once while she was on the phone. All the aforementioned was unwelcomed by Ms. Lawson and made her feel uncomfortable. Petitioner did not deny these actions, but thought he was making an effort to comfort Ms. Lawson who was experiencing some personal problems. Ms. Lawson also accused Petitioner of spending an inordinate amount of time in the deli area of the store. However, the evidence demonstrated that Petitioner had been instructed to closely monitor the deli operation because it was below the standards Bruno’s expected of its deli operations. Ms. Lawson also complained that while at work, Petitioner gave her several gifts of alcohol and a card in which Petitioner wrote, "Know you are a very special someone" and drew several ‘X’s and ‘O’s. Petitioner admitted to giving the alcohol and card to Ms. Lawson, but again thought he was being friendly and trying to comfort her. Petitioner denied drawing the ‘X’s and O’s on the card. However, Petitioner’s denial is not credible since the drawing is in the same type of ink as the writing and the letters are similar to the handwritten portions of the card. Additionally, on New Year's Eve, December 31, 2001, Petitioner gave Ms Lawson a miniature bottle of Southern Comfort. Later, Petitioner called Ms. Lawson twice at her home in the early morning between 1:30 a.m. and 3:00 a.m. Ms. Lawson felt very uncomfortable regarding these calls. Clearly, the kiss, the late night phone calls, and the note violated Bruno’s anti-harassment policy. More importantly, at the same time Petitioner gave Ms. Lawson the Southern Comfort, he gave Erin Epperson, a co- worker of Ms. Lawson, a miniature bottle of alcohol. Petitioner knew Ms. Epperson was 19 years old and under the age at which she could legally possess or drink alcohol. Petitioner denied giving Ms. Epperson any alcohol. However, given the demeanor and candor of the witnesses, Petitioner’s denial is not credible. Providing alcohol to a minor was in violation of state law, could have caused the store to lose its liquor license or incur other penalties, and violated the store's policy of not providing alcohol to minors. This act alone justified Petitioner’s termination. Donna Ermillio, a cashier, utility clerk, and a subordinate of Petitioner similarly complained that while she was at work Petitioner would rub her arms, massage her shoulders, compliment her arms, feet and hands and tell her she was beautiful and too much "of a woman to be as young" as she was. All the aforementioned was unwelcomed by Ms. Ermillio and made her feel uncomfortable. Again, Petitioner thought that he was trying to soothe Ms. Ermilio, who was clearly nervous around him. He noticed others’ hands and feet because he had a friend who was a hand and foot model. However, Ms. Ermilio’s complaints are consistent with the other complaints received by Bruno’s and show a pattern of intrusive behavior on Petitioner’s part. Christina Gore, a cashier, customer service representative, and subordinate of Petitioner complained that Petitioner rubbed her, massaged her, and kissed her while she was at work. All the aforementioned was unwelcomed by Ms. Gore and made her feel uncomfortable. Petitioner admitted kissing Ms. Gore because she had graduated from high school. The kiss occurred after her boyfriend had walked away and Petitioner, jokingly, told Ms. Gore that he couldn't have kissed her while her boyfriend was around. Again, Petitioner’s actions were overly intrusive. In response to these complaints, the company conducted a timely and thorough investigation. The investigation included interviews and statements from Petitioner, Ms. Ermillio, Ms. Lawson, Ms. Gore, and Ms. Epperson. The evidence did not demonstrate any deficiency in the investigation. At the conclusion of the investigation, the investigator, the district manager, the store manager, a representative from the legal department, and the human resources director met and reviewed the investigation and evidence. After all the aforementioned parties assessed all the evidence, the team unanimously decided to terminate Petitioner’s employment. Bruno's terminated Petitioner because he violated the company's anti-harassment policy and gave alcohol to a minor employee. There was no evidence that Bruno’s did not consistently apply these policies to other employees in its organization. The only evidence Petitioner presented regarding the consistent application of these policies was that a Danny Johnson allegedly sexually harassed Dawn Lawson and was not terminated and that a Dan Gaston also allegedly sexually harassed "someone." However, Dawn Lawson never complained to the company regarding Danny Johnson and testified that Mr. Johnson had never harassed her. Petitioner had no personal knowledge about Mr. Gaston's alleged harassment and could not provide any details. The human resources director for the store testified that no one had ever made a sexual harassment complaint against Mr. Gaston. Therefore, Petitioner failed to present evidence showing a similarly situated employee that allegedly committed the same acts as Petitioner and was not terminated. Based on the evidence, Petitioner had legitimate, non- pretextual reasons for terminating Petitioner, and this action should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing this action. DONE AND ENTERED this 16th day of June, 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 16th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert L. Young, Jr. 409 Elaine Avenue Fort Walton Beach, Florida 32548 Dan Burchfield Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Faye R. Rosenberg, Esquire Corporate Counsel Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether respondent discriminated against petitioner on account of his race in terminating his employment?
Findings Of Fact Larry Drake, who is black, began his employment at Whataburger, Inc., on May 2, 1983, as a management trainee in Pensacola. He trained first under June Bell at Unit No. 168, then under Kin Pearson at Unit No. 42. New Warrington Road On July 17, 1983, he became assistant manager at Unit No. 25, Whataburger's restaurant on New Warrington Road, where he was put in charge of the "early bird" or late night shift, from eleven at night to seven in the morning. Randall Potts occasionally worked the late night shift, and, during his tenure as assistant manager in charge of the shift, Mr. Drake supervised Elijah Johnson and Randy Cotton, as well. He initially supervised only one employee, but when Linda Blevins began on the late night shift, he also supervised her. As manager of Unit No. 25, Byron Reno was Mr. Drake's supervisor while Mr. Drake worked there. Mr. Reno came in at six or seven in the morning and left before the late night shift began, but he saw petitioner when the night shift started on numerous occasions, in addition to occasionally overlapping petitioner's shift in the morning. He worked with Mr. Drake when, as sometimes happened after Mr. Drake's initial three months at Unit No. 25, Mr. Drake worked the day shift. On October 30, 1983, Mr. Reno prepared a written evaluation of petitioner's job performance on a form calling for a "CLASSIFICATION EVALUATION" and for a separate "PERFORMANCE EVALUATION." Respondent's Exhibit B-2. On the "CLASSIFICATION EVALUATION" section, he gave hid a total score in the "needs improvement" range, although written comments indicated he was "FULLY ADEQUATE IN MOST AREAS." On the "PERFORMANCE EVALUATION, he gave him a score of 41.4, half a point from the "needs improvement" cut-off. These ratings may be lower than those for "the bulk of the" (T.i27) assistant managers. By May 5, 1904, when Mr. Reno prepared a second evaluation using the same format, he rated petitioner fully adequate overall, and gave him a score in the outstanding range for "CLASSIFICATION EVALUATION." Respondent's Exhibit A-2. Sometimes petitioner complained he was tired when he reported for work at Unit No. 25, and Mr. Reno felt his energy level was low in general. Mr. Reno also felt that inaccuracies in the daily reports and in inventory reports should be eliminated. During the time Mr. Drake worked at Unit No. 25, Sonya Jarman worked, at various times, on both day shifts. On the later shift, she was sometimes unable to leave at eleven, because petitioner had not yet arrived at work. Sometimes she telephoned petitioner to wake him up so he would relieve her. On the other hand, Mr. Drake also "stayed over plenty of times" (T.75, 76) for late replacements. On the earlier day shift, Ms. Jarman sometimes arrived to find that the night shift's paperwork had not been done. Mr. Drake asked her more than once to do the paperwork for the night shift, saying he would help serve customers. Sometimes he sat in his office, reading the paper and smoking cigarettes, while Ms. Jarman completed reports which night shift personnel were charged with filling out. One night Mr. Drake was on duty, Ms. Jarman was summoned "to fix the register because the drawer had jammed." (T.149). When she arrived, she found petitioner had left the premises, leaving the cash register with open drawer in the care of a subordinate. In general, Ms. Jarman characterized her experience working with petitioner as "wild." In her opinion, "Larry ... just wasn't Whataburger material." (T.14i) He did not pitch in when things got busy. He was slow on the grill ... and even on the board he wasn't fast (T. 148). For part of the time petitioner worked as assistant manager at Unit No. 25, Elijah Johnson worked under his supervision as a crew leader. Mr. Johnson once left the premises to buy Krispy Kreme doughnuts. Petitioner once left to buy cigarettes. Gregory Street When Mr. Drake tired of working the graveyard shift, he asked the senior area supervisor, Mr. Turbeville, for a new assignment. Mr. Turbeville obliged and petitioner began work at the Gregory Street Whataburger, Unit No. 42, as assistant manager for the day shift, on August 12, 1984, under the supervision of Bob Echois, a long-time Whataburger manager and a former marine. The third time in eight days that petitioner reported late for work, Mr. Echois, who had come to view petitioner as incompetent after he sent to the bank $100 more in cash than the deposit slip reflected, made a written report of Mr. Drake's tardiness and forwarded it to Mr. Turbeville, the area supervisor, who counselled petitioner, urging him to come to work on time. Mr. Turbeville was present on August 28, 1984, when petitioner arrived or 30 minutes late, his fourth late appearance for work at Unit No. 42. He had had a flat tire on his way to work, abandoned the car, and run the rest of the way. Mr. Turbeville asked for directions to the abandoned car, confirmed that the tire was flat, and asked Mr. Drake to report to his office the following day. At the meeting the following day, Mr. Turbeville placed him on disciplinary leave for four days for "excessive tardiness," Respondent's Exhibit A-30, after first, however, telling him he was going to fire him. To this, petitioner had responded with a claim that another employee, Ronnie Hill, had an even less satisfactory record for prompt arrivals which, he said, the time cards would bear out; and he threatened to retain a lawyer. It was true that Ronnie Hill arrived late some days, but it was because Mr. Echois instructed him to pick up certain supplies on his way to work. (T.157) Ronnie Hill is white. Unit No. 21 Instead of returning to Mr. Echois' supervision, petitioner reported to Unit No. 21 on September 2, 1994. He chose this assignment over returning to Unit No. 25, the alternative Mr. Turbeville offered. Petitioner felt the manager of Unit No. 21, Kim Pearson, did not back him up properly in his dealings with a subordinate, who was also a friend of the manager. In any event, the manager of Unit 21 gave petitioner a written reprimand for "[f]ailure to use proper set out procedure for breakfast items," Respondent's Exhibit A-28, on October 29, 1984, but, on November 3, 1984, rated him fully adequate in his overall classification and performance evaluations, while indicating that improvement was needed in certain categories, including dependability. Jack Riley replaced Don Turbeville as Whataburger's senior area supervisor. In speaking to managers in the area, he asked most of them, including Pearson, how he could help improve day-to-day operations. In reply, Mr. Pearson complained that Mr. Drake would not take directions. Mr. Riley had not received a good report from Mr. Turbeville about Mr. Drake, and, in visiting Whataburger outlets, had not been favorably impressed with petitioner. Once he walked in the unit... "[and] was probably in the unit ten to fifteen minutes before Larry even knew ... [H]e was busy reading the newspaper." (T.163) One Sunday afternoon he found petitioner watching a basketball game on a television set he had brought to work. (T.62). Unit No. 169 In order, he testified, to see how petitioner Drake would do in a "clean environment," Mr. Riley transferred him to Unit No. 169, where Jamie Harrelson was manager, and assigned him to the late night shift. The transfer was effective March 3, 1985. Respondent's Exhibit A-32. Some two weeks later, Mr. Riley terminated petitioner's employment, effective March 16, 1905. In the interim, Messrs. Drake and Riley spoke three times, the first at Mr. Riley's office when petitioner asked why he had been transferred. As reasons for discharge, Mr. Riley cited "poor attitude, failure to follow orders and being late for work on several occasions." Petitioner did not do his job well at Unit No. 169. He ignored instructions the manager left for him in a notebook, refused to look at her when she spoke to him, called the manager at home at 10:30 or 11:00 at night to complain about his schedule, called her at two in the morning to ask her permission to lend another Whataburger unit a CO2 tank which, as assistant manager, he might well have lent without special authorization, and arrived late for work by, at least on one occasion, well over an hour. That night he called to say "he was having his car repaired at almost 9:00 o'clock at night." (T. 203). Assistant managers who were white have been terminated "for being late to work in the same situation. (T.169) Mr. Riley believed that no Whataburger manager in Pensacola was willing to accept petitioner as an assistant manager. Employees' Race On June 2, 1985, Whataburger promoted Elijah Johnson, a black assistant manager, to manager. On January 27, 1985, Whataburger promoted Sandra Mack, another black assistant manager, to manager. Under Mr. Riley, who is white and still works as the senior area supervisor, Whataburger's employment of black persons reached a peak in the Tallahassee-Pensacola area. Of the 174 persons Whataburger employs in the area as "team members," 45, or 26 percent, are black. About 26 percent of the assistant managers in the area are also black and, since the recent promotions, three of eleven (or 33 percent) of the managers are black. Fifty-eight percent of the area's "team leaders" and 67 percent of the "breakfast coordinators" in the area are black. Until Mr. Drake made these accusations, neither Whataburger nor any of the managers with whom he worked had been accused of discriminating on grounds of race. Nor, however, was there a black manager in Pensacola until after petitioner was fired and complained to the FCHR.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race or sex.
Findings Of Fact Petitioner is Valerie Miller-Moskowitz. She was employed by Respondent from August 4, 1987 until termination of her employment on September 9, 1987. Respondent is the Tom James Company, an interstate mail order clothing business based in Brentwood, Tennessee with an area sales office in Tampa, Florida. Respondent sells garments through its salespersons as opposed to operation of a retail store. These salespersons, including the office manager, are generally in the office only in the late afternoon in order to make telephonecalls and arrange appointments with customers for the following day. The manager of Respondent's Tampa office, with authority to fire, hire and impose disciplinary actions upon employees at all times pertinent to these proceedings, was Mark Dunphy. Through a process of interviews, Petitioner became a finalist for Respondent's vacant position of "operations manager" in the Tampa office. In the final interview, Petitioner went to Dunphy's home where he and his wife observed Petitioner's operation of a personal computer. Skill in the usage of the personal computer was important to Dunphy since he expected the new operations manager to prepare letters for mass mailing to potential customers through the use of a software program on the computer. The letters, extolling the company's products, would be mailed to potential customers after preparation by the operations manager. Following completion of all interviews, including a psychological evaluation of Petitioner conducted over the telephone with Petitioner by an individual hired by Respondent for that purpose, Dunphy formally hired Petitioner. This occurred sometime around the first of August of 1987. Petitioner's duties as operations manager consisted of being a "jack of all trades" with responsibility for typing, telephone answering and meeting with customers in the absence of salespersons in the office. She was also expected to operate the computer, now moved to the office from Dunphy's home, and to prepare mass mailings. Petitioner initially reported for work on August 4, 1987. At the conclusion of Petitioner's first day on the job, Dunphy went by Petitioner's home at her request. Petitioner was upset as the result of a telephone call from her husband and talked with Dunphy regarding her martial problems. After some discussion, Dunphy, who was growing hungry, asked Petitioner to have a drink and dinner at a local Mexican restaurant. Petitioner consented. The two went to the restaurant, had dinner and continued to discuss their personal backgrounds and experiences. Petitioner, who is black, related her disappointment with her present separation from her husband, who is white. Dunphy is also white. At the conclusion of the dinner, both left for their respective homes in their separate automobiles. As her employment progressed in the following days, Petitioner experienced some difficulty operating the personal computer at the office and called Dunphy's wife on several occasions for guidance in the effective use of the machine. While she managed accounting matters in the office quite well, Petitioner was unable at any time during her brief employment to produce mass mailing letters in a quantity sufficient to meet Dunphy's expectations. Although he was becoming aware that Petitioner's computer skills were not as proficient as he desired, Dunphy continued an amicable relationship with Petitioner. On August 6, 1987, he again invited Petitioner to go out for drinks, but she refused. There were subsequent invitations from Dunphy during thenext week to go out for drinks, to go jogging, and to go dancing. Petitioner declined all these invitations from Dunphy. Approximately two weeks after beginning her employment, Petitioner went to Jacksonville, Florida, for a job related training session sponsored by Respondent. Upon conclusion of the training session on or about August 14, 1987, she and Dunphy agreed in the course of a telephone conversation that Dunphy would meet her at the airport and give her a ride to her home. Dunphy complied and upon arriving at Petitioner's residence, Dunphy escorted her inside where he attempted to embrace and kiss her. Petitioner told him "you shouldn't do this to your wife." Dunphy did not attempt to press his affections further and left Petitioner's home. One day during the next week, in the course of conversation, Petitioner told Dunphy that the day, August 18, 1987, was her birthday. Dunphy proceeded to give her a birthday card in which he inscribed the following: Happy B. Day Val- you inspire me with your attitude toward life, and what life throws at us from time to time. Your[sic] tough in your determination to make a success of your self even in tough personal times. I know you will help me in achieveing[sic] my goals while we are associated together. I know I will be helpful to you in achieveing[sic] your dreams & goals. --This good for one marguerita. Mark In the ensuing days, Petitioner began to be late for work at various times, although Dunphy did not formally document this deterioration of Petitioner's attendance in any time records. Petitioner's car was burglarized during the week of August 24, 1987, and she took time from work to replace her driver's license, credit cards and other documents that were stolen from the vehicle. Dunphy became concerned about Petitioner's attendance at work and the two of them quarreled. Petitioner's husband contacted her in the early part of September, 1987. He was ready to conclude their separation and needed her to come to New York and assist in his move to Florida. Petitioner met with Dunphy on the morning of September 9, 1987, and informed him of her intention to take the following two work days (Thursday and Friday) off in order to go to New York to deal with family business matters. When Dunphy expressed reluctance to authorize the time off for Petitioner, she became angry and declared that she would be taking the time off anyway because her "family came first." Dunphy, already disappointed with Petitioner's failure to meet expectations regarding operation of the personal computer and preparation of mass mailing materials, also became angry and told Petitioner to leave since she was going anyway. Petitioner took Dunphy's response to mean that she was fired and left the business premises. Later in the day, Petitioner contacted an accountant in the company's home office for assistance in persuading Dunphy to reconsider and continue her employment. Those efforts were unsuccessful. After conclusion of her trip to New York, Petitioner wrote to Respondent's president at the company's home office on September 16, 1987, and complained of Dunphy's verbal abuse and unprofessional displays of anger. In the letter, she opined that Dunphy was a good salesman, but needed additional training in order to become a "people oriented supervisor." Notably, she made no specific reference to racial discrimination or sexual harassment in the letter, although she noted Dunphy's attempts "to pressure the Operations Manager into going out for drinks, when both parties are married."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 10th day of April, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 10th day of April, 1990. APPENDIX The following constitutes my ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Rejected, not supported by the weight of the evidence. Adopted in substance, though not verbatim. Rejected, a mere restatement of Petitioner's position. To the extent that this proposed finding seeks to establish that Petitioner rejected advances of Mark Dunphy, the proposed finding has been substantially adopted with regard to one occasion, but not verbatim. Adopted in substance. Rejected, argumentative as to legal conclusion regarding burden of proof rather than proposed finding of fact. 6 Rejected, not supported by the weight of the evidence. Rejected, relevancy, conclusion of law. Adopted in substance as to firing and date of same. Rejected, not supported by weight of the evidence. Rejected, not supported by the weight of the evidence, legal conclusion and argumentative. Rejected, not supported by weight of the evidence. Rejected, not supported by the weight of the evidence. Respondent's Proposed Findings 1.-3. Rejected, unnecessary. Modified to extent that Dunphy operated Respondent's Tampa office. Addressed in substance as to Respondent Tom James Company. 6.-10. Adopted in substance, but not verbatim. Petitioner's hiring found to have occurred on August 4, 1987, otherwise this proposed finding is adopted in substance. Adopted by reference. Not supported by weight of the evidence with regard to lack of capability of Petitioner, adopted in substance with regard to Dunphy's disappointment with her performance abilities. Adopted in substance. Petitioner's version that August 4, 1987, was her first day of work is adopted on the basis of the witness' credibility as opposed to Dunphy's testimony on this point. 16.-19. Adopted in substance. 20. Rejected, relevancy. 21.-23. Rejected, relevancy. 24. Adopted by reference. 26. Rejected, relevancy and cumulative. 27.-28. Adopted in substance. 29.-30. Rejected, relevancy. Rejected, cumulative. Rejected, cumulative. 33.-34. Rejected, unnecessary. Adopted in substance. Rejected as to Dunphy's version of these events on the basis of the comparative creditability of the witnesses on this particular point. Adopted in substance, though not verbatim. 38.-41. Adopted in substance, though not verbatim. 42.-44. Rejected, not supported by the weight of the evidence. 45.-48. Rejected, unnecessary. 49.-66. Rejected as argumentative of proposed findings postulated by Petitioner. COPIES FURNISHED: Donald A. Griffin Executi
