The Issue In her charge of discrimination Ms. Alexander alleges that her employer created a hostile work environment and unfair conditions of employment when it singled her out as a thief of a stolen purse, denied her overtime, disciplined her for the size of her earrings, and made insulting statements about African Americans. The issues in this proceeding are whether that discrimination occurred, and if so, what relief is appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the FCHR enter its final order dismissing the complaint by Felicia A. Alexander against Dynair. DONE AND ENTERED this 2nd day of August, 2000, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Felicia A. Alexander Post Office Box 549 Sanford, Florida 32772-0549 Gabriel G. Marrero, Administrator Dynair Services, Inc. Two Red Cleveland Boulevard, Suite 205 Orlando-Sanford International Airport Sanford, Florida 32773 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Petitioner was wrongfully terminated from his position as a janitor with Respondent because of his handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Lee, was hired by Respondent in August 1994 as a custodial worker at the Tallahassee Mall in Tallahassee, Florida. As a janitor Petitioner's duties included bending, stooping, and lifting. He was assigned to zone 3 in the Mall. Up until 1996, when Petitioner was injured, Petitioner received good evaluations on his job performance. Indeed Petitioner was very proud of the quality of his work and took special care to do his job well. Sometime prior to May 20, 1996, Petitioner, while at work and in the scope of his employment, stepped on a set of stairs which were not properly attached to a stage in the Tallahassee Mall. The steps slipped causing Petitioner's feet to come out from under him. Petitioner fell flat on his back. As a consequence Petitioner suffered a permanent back injury for which he received workers' compensation. The injury impairs his ability to work and therefore is a handicap. Around May 20, 1996, Petitioner was released by his doctor and was given orders for light duty with no bending, stooping, or heavy lifting. Petitioner gave these orders to his supervisor, Mr. Navin, when he returned to work on May 20, 1996. Respondent had light duty work available which Petitioner was qualified to perform. However, Respondent did not assign Petitioner to light duty work, but changed his work area from zone 3 to zone 1. Zone 1 is located at the front entrance to the mall and requires more work to maintain. Petitioner attempted to perform his duties but could only work for 3 1/2 hours before being overcome by pain from his injury. Petitioner could not work the next four working days because of the aggravation of his injury. On May 28, 1996, after returning to work, Petitioner was again given full duty work. Petitioner attempted to perform his custodial duties for about 2 weeks. However, the pain from his injury was so severe he again requested light duty work. Petitioner's supervisor asked Petitioner to bring him another notice from his doctor. Petitioner's doctor faxed the supervisor a second notice and Petitioner was placed on light duty work. Once Petitioner was placed on light duty work, the mall manager, Mr. Renninger, followed Petitioner around the mall watching him all the time while he worked. On July 8, 1996, prior to the mall opening for business, Petitioner was helping one of the mall store owners with a problem. Such aid was part of Petitioner's job. The mall manager walked up to Petitioner and began to yell at him in a very rude and disrespectful manner. The manager would not listen to Petitioner's explanation of the event. The manager gave Petitioner a written disciplinary notice for his aid to the mall store owner. The manager continued to follow Petitioner around the mall while he worked. Sometime around August 15, 1996, the mall manager advised the mall's employees that they should take their respective vacations prior to October. Petitioner thought it would be a good time for him to take the 4-day vacation time he had accumulated during his employment with the mall. He could use the time to allow his back to heal more. On August 15, 1996, Petitioner requested vacation leave and vacation pay for the period beginning September 3, 1996 and ending September 9, 1996. Initially, the request was denied. Petitioner's supervisor felt he had missed too much work and been late too often. However, Petitioner had only been absent or late in relation to his back injury. Petitioner explained that fact to his supervisor. His supervisor agreed and approved Petitioner's vacation. Petitioner returned to work on August 10, 1996. An argument with the administrative assistant occurred when she refused to recognize that Petitioner was entitled to be paid for his vacation time. She was not going to turn in any time for him so that Petitioner could get paid while on vacation. Getting a paycheck was a serious matter to Petitioner, and Petitioner, understandably, became gruff with the administrative assistant. Petitioner only raised his voice at the administrative assistant. He was not abusive and did not curse at her. In fact, the administrative assistant yelled at Petitioner when he raised the subject of his pay "Now, before you start bitching." Petitioner called the headquarters of Respondent and confirmed he had vacation time and pay accrued. After this incident Petitioner was fired ostensibly for mistreating the administrative assistant. The administrative assistant, who was incorrect, was not terminated. The reason appears to be a pretext. Petitioner's pay was $5.35 per hour and he worked a 40-hour-work-week. After his termination, Petitioner actively sought employment but could not find any until September 1, 1997. At that time he began work for Tallahassee Community College as a custodial worker with light duties at a higher rate of pay. Petitioner's search for work was reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding Respondent guilty of an unlawful employment practice against Petitioner and awarding Petitioner backpay in the amount of $11,770.00. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. 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 27th day of October, 2000.
The Issue The issue is whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification for employment in a position of trust.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons, such as Medicaid recipients and the Medicaid program, and, in that capacity, it maintains discretion to approve or deny requests for exemption from disqualification. Petitioner is seeking to work as a certified nursing assistant. Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses to prohibit her from working with AHCA-regulated facilities. Petitioner’s background screening of February 5, 2020, identified the following five criminal offenses: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting executive officer with minor injury. By letter dated February 5, 2020, AHCA notified Petitioner that she was disqualified from employment due to the disqualifying offense of “04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter also informed Petitioner that she may be eligible to apply for an exemption from disqualification and how to apply. On or around February 7, 2020, Petitioner submitted a request for exemption from disqualification and supporting documentation to AHCA. By letter dated February 18, 2020, AHCA denied Petitioner’s request for exemption. On April 6, 2020, Petitioner submitted a second Application for Exemption (“exemption package”) to AHCA. Petitioner’s exemption package contained documentation including employment history, education/training, a criminal history report, arrest reports, investigation reports, a California Department of Public Health investigation report, and a 12-month suspension of nurse assistant certification. By letter dated April 7, 2020, AHCA denied Petitioner’s request for exemption, stating Petitioner is not eligible for the exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399 Petitioner contested the denial and requested a formal administrative hearing. AHCA acknowledged the disqualifying offense error in the denial letter of April 7, 2020, and corrected its denial letter. The corrected denial letter dated September 8, 2020, deemed Petitioner not eligible for an exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: Corrected Disqualifying Offense: 04/22/2017 SHERIFF’S OFFICE SAN DIEGO, RESISTING AN OFFICER (California Penal Code section 148,) Case Number CN372399. Hearing At hearing, Petitioner testified about the incident that occurred on April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in California. Petitioner explained that three police officers came to her job at Fallbrook while she was working her shift and asked to speak to her outside the facility about allegations of resident abuse. Petitioner testified she refused to leave the facility upon multiple instructions from the police to leave. Petitioner admitted that after an officer told her several times he was going to arrest her, she told the police “you don’t have a right to arrest me.” Petitioner detailed how she did not allow the police to put handcuffs on her because she believed the reports about her were lies. Ultimately, the incident escalated--Petitioner testified that when she did not allow the police to handcuff her, the three police officers put her on the ground, one put his knee on her back, and she was handcuffed. Petitioner weighed approximately 125 pounds when arrested. After the police got Petitioner outside, the three police officers picked her up, put her in the police car, and took her to jail. Petitioner was charged with: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting an officer, all stemming from the same April 22, 2017, incident. The elder abuse and trespass charges against Lalanne were dismissed. On January 30, 2018, Petitioner proceeded to a bench trial before a judge on the resisting an officer charge. At trial, Petitioner was found guilty and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case number CN372399. That same day, the judge sentenced Petitioner to three years’ probation2 and community service for the resisting an officer conviction. Subsequently, the County of San Diego, California, probation department provided Petitioner a certificate of completion for completing her three days of public work service on or about September 13, 2018. Petitioner testified that she made a mistake when she did not listen to the officers and it was a lesson for her. She also testified that she believed there was no harm to the police and her offense is a misdemeanor not a felony. Vanessa Risch (“Risch”), AHCA’s operations and management consultant manager in the Background Screening Unit, testified that because Petitioner’s offense occurred in California, AHCA had to evaluate the nature of the offense, what occurred during the incident, and the final outcome of the case to determine the correlating criminal offense in Florida. Risch testified that she contacted the California Clerk of Courts to validate the outcome of Petitioner’s case and probationary status. Risch testified that, through her investigation, she confirmed that Petitioner’s probation started on January 30, 2018, and terminates on January 30, 2021. Risch also detailed how AHCA converted Petitioner’s California resisting an officer charge to a Florida resisting arrest with violence felony offense, after determining the officers in California had to force Petitioner’s body to the ground after Petitioner did not comply with the officers’ repeated instructions. AHCA concluded that Petitioner’s actions of opposing the three 2 The compelling evidence at hearing supports Petitioner’s probationary sentence. The undersigned finds that Petitioner failed to testify honestly and forthright regarding her three-year probationary period. First, Petitioner denied knowledge of any probationary period even though probation was listed on the sentencing documents Petitioner presented as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally, Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s knowledge of her probationary period. officers is equivalent to the criminal offense of resisting arrest with violence in Florida. Risch testified that resisting an officer with violence is a disqualifying felony offense. Risch testified further that AHCA ultimately concluded that Petitioner was not eligible to apply for an exemption. Risch explained that Petitioner’s current probationary status prohibited her from being eligible to apply for an exemption because eligibility starts three years after Petitioner’s probationary period for the disqualifying felony offense is terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration, enter a final order denying Shaddainah Lalanne’s, request for an exemption from disqualification. DONE AND ENTERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2020. COPIES FURNISHED: Shaddainah Sherly Lalanne Apartment 206 6609 Woods Island Circle Port St. Lucie, Florida 34952 (eServed) Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue Whether Petitioner was wrongfully terminated from his position at the City because of his physical handicap, diabetes, in violation of Section 760.10(1(a), Florida Statutes. Whether Petitioner could be reasonably accommodated to perform the essential functions of his duties as an Engineer I position with the City Sewer Department.
Findings Of Fact Petitioner is a 40 year old male. Petitioner was diagnosed with Diabetes Mellitus in 1979. This is a Type I Classification of diabetes which required that Petitioner must take insulin from its onset. Petitioner is further classified as a "brittle" diabetic, which is a type that is difficult to control. Additionally, Petitioner has hypothyroidism (underactive thyroid) and an adrenal insufficiency. This combination is rare. Petitioner is a handicapped person. Petitioner worked steadily at a variety of jobs in the engineering construction field from 1979 to the time he was hired by the City of Tampa on December 12, 1990. Petitioner's diabetic condition did not place any restrictions on his ability to fulfill his job responsibilities at any of his places of employment between 1979 and December 12, 1990. Petitioner was hired by the City of Tampa, an employer, as an Engineer Tech 2 on December 12, 1990. As an Engineer Tech 2, Petitioner was responsible for monitoring the electrical and instrumentation construction at a sanitary sewage treatment plant, and for sewage pumping stations throughout the city. He was essentially an inspector. Prior to accepting employment with the City, Petitioner talked with his prospective supervisors, Jack Kulik and Jeff Taylor, about his diabetic condition. During the period Petitioner was employed as an Engineer Tech 2, he had some insulin reactions on the job in the office. Those reactions were caused by a lowering of Petitioner's blood sugar level. When these reactions occurred, office personnel would assist Petitioner by encouraging him to eat a food product containing sugar. The episodes would take 15-30 minutes to subside. During the period Petitioner was employed as an Engineer Tech 2, he drove a City car alone while at work, and drove his personal car to and from work. When at a construction site, Petitioner went near high voltage panels, into manholes, and also into open pits with open wells on a regular basis. The supervisor, Jack Kulik, did not have any concerns about Petitioner's ability to drive a car. Petitioner received a good performance evaluation for his work as an Engineer Tech 2 on June 12, 1990. He was rated as either "Excellent" or "Fully meets Expectations" in all 13 rating categories. Petitioner's diabetes did not prevent him from performing the essential functions of his job. Petitioner was promoted to an Engineer I position in August 1990. From August 1990 through early February 1991, Petitioner worked half- days at the Hookers Point facility, and then commuted to downtown Tampa to work a half-day. The Engineer I position was primarily an office job, with 80% of the responsibilities in-office and 20% at various job sites. During the period between August 1990 and February 1991, Petitioner had several insulin reactions in the office of the Engineer I position. His new supervisor Korchak did not recognize the symptoms of Petitioner's reaction. He characterized Petitioner as being "asleep" on the job on three occasions, and was impaired on numerous other occasions. Due to his physical handicap, Korchak lost confidence in Petitioner's ability as an engineer. Petitioner ate food to counteract the reactions, which took 20 to 30 minutes to subside. In August 1990, shortly after Petitioner was promoted to an Engineer I position, he was involved in an automobile accident, while driving his personal car. The accident resulted from a diabetic reaction. When he was able, Petitioner called his supervisor, Mr. Korchak, and reported the accident. Mr. Korchak relayed the information about the accident to Andy Cronberg, a deputy director, second in command of the department, who was in an office adjacent to Mr. Korchak when he received the call from Petitioner. Mr. Cronberg made a decision, at that moment, in August 1990, based solely on his conversation with Mr. Korchak, to revoke petitioner's privilege to drive a City car. The decision to revoke Petitioner's driving privileges was made in accordance with a general policy of the City, and not on individualized analysis of Petitioner's condition. The decision to restrict Petitioner's driving privileges was not communicated to Petitioner until a performance review on February 8, 1991. In addition, during this same period, Korchek began tailoring and limiting Petitioner's position to in-office functions only, based on what Korchek believed Petitioner could accomplish safely, and downgraded his evaluation when he rated him on his performance review. Prior to the implementation of the decision to restrict Petitioner's driving privileges on February 8, 1991, the City's representatives did not speak to Petitioner about his driving abilities; they did not speak or consult in any way with Petitioner's doctors; nor did they speak with Petitioner's previous supervisor with the City, Jack Kulik. The first contact the City had with Petitioner's doctor was a response to a questionnaire sent to Dr. Sumesh Chandra and, received by the City on February 27, 1991, wherein Dr. Chandra indicated that Petitioner could safely and effectively operate an automobile. The City's representative Mr. Rice indicated that Dr. Chandra's response raised more questions than it answered, and the City did not restore Petitioner's driving privileges. Neither Mr. Rice, nor any other City employee ever consulted with Dr. Chandra to clear up the confusion they had over Dr. Chandra's statement that Petitioner could safely and effectively drive a car. Petitioner is licensed to drive by the State of Florida. His license has never been revoked, either in Florida or any other state. Dr. Chandra stated that, in his opinion, Petitioner could safely and effectively operate an automobile because, "He's capable, dexterous, and coordinated. He's like any normal individual except that he is unfortunately diabetic. So for routine capacity his skills are like any other normal individual." Twenty percent of the Engineer I position required travel to various job sites. Because Petitioner was not allowed to drive an automobile on city time, and was restricted in in-office functions while performing his Engineer I position, he was not able to fulfill the essential functions of the Engineer I position. Following a request by Phil Rice of the Sewer Department, the City received a letter from Dr. Jai H. Cho, a physician on May 15, 1991, that Petitioner had seen for a short period of time. Dr. Cho's letter indicated, among other things, ". . . it is inevitable, that he will develop hypoglycemia with loss of consciousness in the future because of his concurrent illness with diabetes and adrenal insufficiency." Dr. Cho never specifically addressed the issue of whether Petitioner could safely drive an automobile or work alone at job sites, either in writing or in phone conversations with Mr. Rice. No City representatives ever discussed Petitioner's ability to drive a car or work alone on a job site with Petitioner, Dr. Chandra, Dr. Cho, Petitioner's previous supervisors with the City, or Petitioner's previous supervisors with other employers. On May 20, 1991, the City terminated Petitioner's employment. Petitioner was informed of his termination by Mr. Korchak, Mr. Hoel, and Mr. Rice. Mr. Rice told Petitioner that the reason for the termination was the City's concern about its potential liability. Following his termination, Petitioner was unemployed for nine months. Petitioner was then hired in September, 1992, by Omega Tech in Hardee County, Florida, to work at the Hardee Power Station, performing the same duties as he performed as an Engineer Tech 2 for the City of Tampa. Petitioner commutes the 68 miles each way from Tampa to Hardee County every day in his own car. At the Hardee Power Plant, Petitioner is exposed to the same conditions to which he was exposed while working for the City of Tampa. During the 13 years since Petitioner was diagnosed with diabetes, he has never injured any other person as a result of his diabetes, nor received any serious injury to himself. At the present time, the position of Engineer I with the City of Tampa has been eliminated, and has been replaced by a person holding a contractors license. If Petitioner had remained employed with the City of Tampa, he would have earned $36,294.44 from the period June 20, 1991, through September 18, 1992, exclusive of health benefits.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A Final Order be entered that Petitioner was discriminated against on the basis of his handicap when his employment was terminated; The Petitioner receive back pay and health benefits in accordance with applicable law; and The Petitioner be awarded the attorney's fees and costs incurred as a result of this action. DONE and ENTERED this 28th day of December, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39(in part), 40, 41, 42, 43 Rejected as against the greater weight of evidence: paragraph 15, 39 (Petitioners was hired by Omega Tech) Rejected as hearsay: paragraph 33 Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1,2,3,4,5,6,7,10,11(in part), 12,13,14(in part),15,17,18,19,20(in part),22(in part),23,25,26,30,31 Rejected as irrelevant or immaterial or argument: paragraphs 8,9,11(in part),14(in part), 20(Petitioner's written comment),21,24(in part),27,28,29 Rejected as hearsay: paragraphs 16,22(in part),24(in part) COPIES FURNISHED: Mark Herdman, Esquire KELLY, McKEE, HERDMAN & RAMUS, P.A. 1724 E. Seventh Avenue Tampa, Florida 323605 Margaret A. Jones, Clerk Commission On Human Relations 325 John Knox Rd. Building F Suite 240 Tallahassee, Florida 32303-4113 Mr. Kenneth C. Perry City of Tampa 306 East Jackson Street 7N Tampa, Florida 33602 Dana Baird, Esquire Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
Findings Of Fact Vince Campbell was employed as a corrections officer for the Alachua County Department of Criminal Justice Services from 1985 until his termination on August 8, 1991. Numerous incidents led up to his termination. During 1985-1987, Campbell had repeated problems with tardiness and absenteeism, for which he received numerous disciplinary actions including warnings and suspension at no pay. On August 2, 1989, Campbell was arrested by the Alachua Police Department for multiple charges including resisting arrest with and without violence. Campbell was observed running two stop signs. When he was stopped, he became agitated and refused to give his name or driver's license. He resisted arrest and struggled with the officers. One officer was injured. At the police station, Campbell continued to struggle and kicked an officer in the stomach. Throughout this time, Campbell was exhibiting vast mood swings and was alternating among belligerence, laughing, crying, and making irrational threats, such as telling the officers that they would have to kill him before he would let himself be taken to the jail in which he worked. After Campbell was released, he was advised that he could return to work pending resolution of the criminal charges. Nevertheless, Campbell failed to appear for work on August 3 or 4, 1989, and did not call in to advise that he would not be at work. He received a warning for his failure to come to work or call in. On April 23, 1990, Campbell instigated an incident at work which involved his verbal abuse, pounding on a window, cursing and yelling at coworkers and finally publicly giving the finger and saying "fuck you" to a coworker. He received another warning for that incident. Campbell received another warning and letter of reprimand on May 14, 1990, for an incident where his negligence allowed an inmate to receive money belonging to another inmate. On May 5, 1990, Campbell was again arrested for resisting arrest, battery on a law enforcement officer and breach of the peace. This arrest occurred in Union County even though Campbell was on probation for the first criminal offenses and was not allowed to leave Alachua County without permission of his probation officer. The Union County arrest involved an altercation which occurred at a hospital after Campbell had taken his brother there for treatment of injuries received in a melee at a local bar and dance hall. Campbell was cursing and yelling at the nurses. The Union County Sheriff, Jerry Whitehead, went to the scene and Campbell screamed and swore at the sheriff. When he was told to leave the hospital, he refused and he was placed under arrest. He resisted arrest and fought with Sheriff Whitehead and a deputy, causing injuries to the sheriff. As a result of that incident, Campbell was suspended with pay until May 25, 1990, at which time he was suspended without pay pending resolution of the charges. Sentencing occurred on July 8, 1991, and Campbell met with his superiors on July 11, 1991. Major Garrahan, Chief of Security, proposed termination on July 17, 1991, and held a pre-termination hearing on July 29, 1991. As a result of Garrahan's recommendation and having reviewed all the relevant information, the Department Director, Walter P. Byrd, terminated Campbell on August 8, 1991. In addition to the incidents described above, Byrd also had information regarding other events involving Campbell. On one occasion, Campbell was at the firing range for routine in-service firearms instruction. While on the line with his firearms, he was displaying severe mood swings, including alternately laughing hysterically and crying and becoming angry when one of the instructor cautioned him about safety on the firing line. All firing had to be delayed while Campbell regained his composure. He had to lay his shotgun on the ground to wipe tears from his eyes. On another occasion at the firing range, Campbell requested to speak with "Melda," a fellow officer. He was anxious, nervous, and crying. He told Melda that he was seeing officers hiding in the woods around his house and that they were after him. Campbell was referred to Employee Assistance for a review of his mental state and stability. Byrd was also advised that Campbell's driver's license had been suspended on two occasions because of failure to pay traffic fines, but Campbell had not advised his employer that his license was suspended. Possession of a valid driver's license is one job requirement for a correctional officer. Byrd considered the arrests and convictions, Garrahan's recommendation, the in-house incidents, Campbell's emotional stability and the danger to Campbell's safety and that of inmates. He was very concerned that the County may be exposed to liability for Campbell's actions and apparent volatility and uncontrolled outbursts, if Campbell remained employed by the department. Byrd did not believe that Campbell was fit for continued employment because he was not emotionally stable. Byrd is black, as is Campbell. At no time was race a consideration in Campbell's termination. Campbell alleges that two white male employees were reinstated with back pay despite similar criminal charges. However, Campbell presented no evidence to support these allegations. One of the others resigned rather than be terminated and the other was not shown to have had similar charges or to have been reemployed by the department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief filed by Vince Campbell. DONE and ENTERED this 4th day of November, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 4th day of November, 1992. COPIES FURNISHED: Robert M. Ott Litigation Attorney Office of Alachua County Attorney Post Office Box 2877 Gainesville, FL 32602-2877 Vince Campbell Post Office Box 964 Alachua, FL 32615 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149
The Issue Whether or not Petitioner, Cynthia C. Barber, was harassed, and suffered constructive or retaliatory discharge from employment by Respondent, Modern Plumbing Industries, Inc. ("MPI"), as a result of racial and gender discrimination in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a black female who, at all times material to the allegations of discrimination in the case, was employed as a plumbing apprentice by Respondent. Respondent is a Florida corporation which operates a commercial plumbing business. At any given time, Respondent may have 20-30 commercial plumbing jobs in Central Florida. These jobs run the spectrum from small residential repair jobs to major commercial installations in shopping centers. Petitioner began working for Respondent in 1996; first as a plumbing assistant, then, after being enrolled in a formal plumbing apprentice program, as a plumbing apprentice, assisting licensed plumbers. When she began working, Respondent sent Petitioner to a wholesale tool supplier where she purchased plumbing tools she would need. Respondent advanced Petitioner the money with which to purchase the tools; this advance was being paid back by automatic withdrawals from Petitioner's pay. In September and October 1997, Petitioner was working as a plumber's apprentice at a job known as the "Oviedo Mall" job. She was one of 10-40 MPI employees on the job. Steven Lewis was the project manager for all MPI jobs. Vincent Pizzuti was the job-site supervisor for the Oviedo Mall job. Chris Bateman was a MPI employee at the Oviedo Mall job working as a plumber. Mr. Bateman had no supervisory authority. In September 1997, an incident occurred wherein Mr. Bateman, who is a white male, threw paper which had been used to wrap a sandwich and a soda can in Petitioner's hard hat. Petitioner was offended by Mr. Bateman's actions and reported the incident to her crew foreman, Mike Higdon. Mr. Higdon immediately asked Mr. Bateman to stop; after a moment, Mr. Bateman stopped. Petitioner believed that this matter was handled satisfactorily. On October 1, 1997, late in the work day, while riding on a golf cart with Mr. Higdon, Petitioner was struck in the back with a "dirt rock." When she turned in the direction the "dirt rock" had come from, she saw Mr. Bateman and another employee looking her way and laughing. Petitioner confronted Mr. Bateman. When she returned to the golf cart, Mr. Bateman threw another "dirt rock." This time the confrontation became physical, and Petitioner and Mr. Bateman had to be separated by co-employees. Petitioner then reported the incident to Mr. Pizzuti who called a co-employee/supervisor on the radio and asked that Mr. Bateman be directed to come to MPI's on-site office. Mr. Bateman had either left the job-site or wouldn't respond to the directive to report to the office; as a result, Mr. Pizzuti advised Petitioner that he would talk to Mr. Bateman the following morning. Later that same evening Petitioner called Mr. Lewis, the project manager. Mr. Lewis advised Petitioner that Mr. Pizzuti had already advised him regarding the altercation, that Mr. Bateman's conduct was unacceptable, and that Mr. Bateman would be fired the following day. The following morning (October 2, 1997), Mr. Bateman was standing outside the job-site office when Petitioner arrived. During a discussion with a co-employee, Petitioner heard Mr. Bateman referring to her as a "bitch" and a "nigger." This resulted in another confrontation. Petitioner then went into the MPI job-site office and reported this incident to Mr. Pizzuti. Mr. Pizzuti then radioed Mr. Bateman's supervisor and directed that Mr. Bateman report to the office. After a few minutes, when Mr. Bateman had not reported to the office, Petitioner advised Mr. Pizzuti that she "could not work under these conditions" and left the job-site. Later that same day, Petitioner received a telephone call from Mr. Lewis who asked her "to come back to the job site, that something would be done" about Mr. Bateman. She told Mr. Lewis that the atmosphere was "too hostile." On October 2, 1997, shortly after Petitioner left the job-site office, Mr. Pizzuti met with Mr. Bateman about his conduct and attitude; an incident report authored by Mr. Pizzuti reflects that Mr. Bateman "became aggravated and stormed out of my [the] office in the middle of the conversation." At this point, Mr. Pizzuti terminated Mr. Bateman. Two days after being terminated, Mr. Bateman was rehired because he "begged for his job back"; MPI was desperate for help; and Petitioner was no longer working at the job-site. Approximately one week after leaving her job, Petitioner attempted to collect her last pay check. She was advised by Mr. Lewis that she had no pay coming because the money advanced for tools had not been paid back. He further advised her that she could be paid if she returned to work and the automatic deduction from her pay continued. During this discussion Mr. Lewis advised Petitioner (quoting Petitioner's testimony) that she "would not have to work with Chris Bateman," apologized for what happened, and assured her "this won't happen again." Petitioner elected to return to work and was assigned to a MPI job-site at Walt Disney World. Mr. McCandless was her job-site supervisor. Although the Walt Disney World job-site was not as convenient to her home as the Oviedo Mall job-site, Petitioner did not make any complaint to MPI management about the re-location. After she started working at the Walt Disney World job-site, Petitioner requested a Friday day-off for child- related reasons; her request was granted. The following Sunday, Petitioner called the MPI answering service to determine what job-site to report to the next day. This was a procedure that was normally used to determine where to report for work. The answering service advised that she was scheduled "off" for Monday. She repeated the process on Monday night and was again advised that she was scheduled "off" for Tuesday. On Tuesday morning, Petitioner telephoned the MPI office and asked to speak to Mr. Lewis and was advised that Mr. Lewis was on vacation. Petitioner then asked to speak to the owner of MPI; she was advised that the owner was not available. Petitioner did not telephone or visit the MPI office following the Tuesday morning telephone call. She did not attempt to call her job-site supervisor, Mr. McCandless. Petitioner just stopped working at MPI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief herein should be dismissed with prejudice. DONE AND ENTERED this 9th day of August, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 9th day of August, 2002. COPIES FURNISHED: Cynthia C. Barber 1704 Hawkins Avenue Sanford, Florida 32771 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amanda J. Green, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Human Rights Act by maintaining racially segregated restroom facilities, as alleged by Petitioner; and, if so, the affirmative relief which should be granted.
Findings Of Fact At all times material hereto, the COMPANY operated a business establishment located at Pompano Beach, Florida. BOYKIN a black male, was employed by the COMPANY during a one-week period in 1978. During BOYKIN'S employment, the COMPANY maintained separate restroom facilities, segregated on the basis of race. (Testimony of Boykin.) The COMPANY'S two restroom facilities were racially segregated by the use of signs affixed to the outside door of each restroom--one sign labeled "Colored," and the other, "White." (Testimony of Boykin.) The COMPANY'S maintenance of racially segregated restrooms was offensive to BOYKIN, and the other black employees. (Testimony of Boykin.) As of September 26, 1980, the offending signs by which the COMPANY racially segregated its restrooms were no longer affixed to the restroom doors. (Viewing by hearing officer, accompanied by parties.) The COMPANY presented no evidence controverting BOYKIN'S allegation that it maintained racially segregated restrooms during the time in question. Neither did it assert a legitimate, nondiscriminatory purpose for maintaining segregated restroom facilities. BOYKIN presented no evidence to establish that the COMPANY employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1977 or 1978.
Conclusions Conclusions: Respondent company maintained racially segregated restrooms for Petitioner and its other employees. The signs, by which the restrooms were labeled, "Colored" and "White" were no longer affixed to the restrooms at the time of final hearing. However, Petitioner failed to prove an essential elements of his claim-- that Respondent is an "employer" within the meaning of the Human Rights Act. Recommendation: That the Petitioner for Relief be DISMISSED. Background: On November 27, 1978, Petitioner Michael C. Boykin ("BOYKIN") filed with the Florida Commission on Human Relations a complaint of unlawful discrimination against Respondent H. L. Westberry Paving and Trucking Company ("COMPANY"). The gravamen of BOYKIN'S complaint was that he was subjected to an unlawful condition of employment by virtue of the COMPANY'S maintenance of racially segregated restroom facilities. After investigation, the Commission on Human Relations issued its determination that there was reasonable cause to believe that the COMPANY had engaged in an unlawful employment practice, as alleged, in violation of the Human Rights Act, Sections 23.161, et seq., Florida Statutes. After an unsuccessful effort to effect voluntary conciliation of the dispute, the Commission issued a Notice of Failure of Conciliation on June 11, 1980. Within the requisite 30-day period thereafter, BOYKIN filed a Petition for Relief from the alleged unlawful employment practice. Notwithstanding the COMPANY'S failure to file any pleading responding to BOYKIN'S Petition for Relief, or request a hearing thereon, the Commission forwarded it to the Division of Administrative Hearings on July 10, 1980, for the assignment of a hearing officer. By Notice of Hearing, final hearing was thereafter set for September 26, 1980. At final hearing, counsel for the COMPANY represented that on September 25, 1980, he received a telephone call from an unidentified employee of the Commission purporting to cancel the hearing scheduled for September 26, 1980. As a result, he asserted his witness was not present at final hearing; he then proffered that, if present, his witness could testify that signs indicating "Colored" and "White" were not now affixed to the doors of the separate restrooms located on the COMPANY'S premises. In order to avoid continuing the hearing, the parties agreed that the undersigned hearing officer should determine whether or not the described signs were present by conducting a viewing of the COMPANY'S premises. In light of this viewing, the COMPANY declined to request a continuance, and indicted that it wished to present no further evidence. The COMPANY also moved to dismiss the Petition for Relief, claiming that the Commission lacked jurisdiction based on: (1) federal preemption of the area by Title VII of the Civil Rights Act of 1964, and (2) failure of the Commission to complete its proceeding within 120 days from the Federal Equal Employment Opportunity Commission's deferral of this matter to the Florida Commission on Human Relations. Respondent's Exhibit 1 was offered, and received in support of the motion, after which the motion was denied. The only witness who testified at final hearing was BOYKIN. No other exhibits were offered by either party. The Florida Commission on Human Relations was not represented at final hearing; BOYKIN represented himself, in proper person, and without assistance by the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended: That the Petition for Relief filed by Petitioner be DISMISSED. DONE AND ENTERED this 10th day of October 1980 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1980. COPIES FURNISHED: Michael C. Boykin 801 Powerline road, #161 Pompano Beach, Florida 33060 Thomas P. Quinn, Esquire 2455 East Sunrise Boulevard Suite 605, International Building Fort Lauderdale, Florida 33404
The Issue Whether Respondent, David Costa Enterprises, Inc., d/b/a McDonald’s (“Costa Enterprises”), discriminated against Petitioner, Labrentae B. Claybrone, in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact Mr. Claybrone is an African-American male, approximately 25 years of age. He resides in Fort Walton Beach, Florida, with his mother. At all times relevant to this proceeding, Mr. Claybrone was working at one or another of the 21 McDonald’s restaurants operated by Costa Enterprises. Mr. Claybrone presents as a somewhat effeminate person, with braided, colored hair, earrings, polished fingernails, etc. He admits to being either gay or bisexual despite being married to-–but not living with-–a woman. In his Petition for Relief filed at FCHR, Mr. Claybrone refers to humiliation being imposed on him due to his “transgender and sexual orientation.” In March 2015, Mr. Claybrone was hired as a shift worker at the McDonald’s restaurant located inside the WalMart in Destin, Florida (hereinafter the “WalMart McDonald’s”). He had been hired by the general manager of that store, Ligaya Mumford. Mr. Claybrone did not at any time discuss his sexual orientation with his employer or other store personnel. On or around April 28, 2015, Mr. Claybrone thought he heard the general manager, Mrs. Mumford, refer to him as “ma’am.” He said that Mrs. Mumford also made comments about the way he walked and talked and that he reminded her of a female. Mrs. Mumford, whose testimony under oath at final hearing was entirely credible, denies making any such comments to Mr. Claybrone. Rather, Mrs. Mumford remembers talking to a young female employee on that day as they stood at the grill in the restaurant. The young lady was very respectful and always called Mrs. Mumford “ma’am,” so Mrs. Mumford had responded to the employee in kind, calling her “ma’am” as well. Mrs. Mumford believes Mr. Claybrone mistakenly believed she was referring to him when in fact she was not. As to the other comments Mr. Claybrone testified about, Mrs. Mumford categorically denied making them at all. When Mr. Claybrone went home that night and told his mother what he thought had happened, his mother insisted he complain about the comments. Mr. Claybrone says that his mother immediately called Roza Atanasova, general manager of the WalMart McDonald’s and another store known as the Destin McDonald’s. By virtue of her position as general manager, Ms. Atanasova was Mrs. Mumford’s supervisor. Ellie Montero, shift manager at the Destin McDonald’s, later notified Mrs. Mumford that Mr. Claybrone’s mother had called Ms. Atanasova with a complaint. Mrs. Mumford attempted to call Mr. Claybrone and sent him texts asking Mr. Claybrone to call her. He intentionally ignored the calls and texts because he did not want to talk to Mrs. Mumford. When Mr. Claybrone came to work for his next assigned shift, Mrs. Mumford apologized to him for the comment he (thought he) had heard. According to Mrs. Mumford, Mr. Claybrone was a good employee and never gave anyone trouble. He was kind to the customers and worked hard. She had absolutely no problem with Mr. Claybrone being one of her shift workers. Mrs. Mumford is one of Costa Enterprises’ most dependable, respected, and admired workers. She has received numerous citations and awards relating to her work ethics and skills. She is known to help employees in need, lending them her car, loaning money, and providing other assistance. Within a week after the misunderstanding with Mrs. Mumford, Mr. Claybrone heard that another co-employee, Ken Hislop, had mentioned to a fellow worker that he (Hislop) was surprised to hear that Mr. Claybrone had a child because Mr. Hislop presumed Mr. Claybrone was gay. Mr. Hislop cannot fully remember making the comment, but he meant nothing negative about Mr. Claybrone, it was just an observation. When he was advised that Mr. Claybrone was offended, Mr. Hislop offered an apology. He did not feel like the apology was accepted by Mr. Claybrone. Mr. Claybrone did not feel like the apology was sincere. Mr. Claybrone said that he was uncomfortable working with Mrs. Mumford and Mr. Hislop after the alleged slurs. At some point, it was mutually agreed by Mr. Claybrone and Costa Enterprises that Mr. Claybrone would be transferred to a different store, the Destin McDonald’s. Mr. Claybrone was transferred to the Destin McDonald’s and was, at first, a dependable worker. Then he began to be tardy and to miss his shifts, even though the Destin McDonald’s was closer to his home than the WalMart McDonald’s had been. After a while, Mr. Claybrone’s supervisor reduced his weekly hours in an effort to motivate him to do better about his attendance. Mr. Claybrone took offense to the reduction in hours and, after clocking in one day, immediately clocked out, left the store as he cursed loudly, and did not return. Mr. Claybrone effectively abandoned his position. Meanwhile, Mr. Claybrone filed a complaint with the Florida Commission on Human Relations, which ultimately led to the instant action at DOAH. Mr. Claybrone admitted that the alleged discriminatory events all transpired within a few days, no longer than a week in duration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Costa Enterprises, Inc., d/b/a McDonald’s, did not discriminate against Labrentae B. Claybrone. DONE AND ENTERED this 21st day of October, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2016.
