The Issue The issue is whether Respondent discriminated against Petitioner based on his race contrary to Section 760.10, Florida Statutes (2009).
Findings Of Fact Respondent operates a lumber mill in a community known as Cypress near Marianna, Florida. In 2007, Respondent hired Petitioner, an African-American male, to operate a 966 Caterpillar loader (the loader) at the mill. Melvin Lewis is an African-American male. Mr. Lewis is a second-shift supervisor. At all times relevant here, Mr. Lewis was Petitioner's immediate supervisor. Mr. Lewis reports directly to Ross Jackson, a white male. Mr. Jackson has been Respondent's general manager since January 2008. In May 2008, Mr. Lewis told Petitioner that the loader was slowly leaking brake fluid. Mr. Lewis instructed Petitioner to always check the loader to ensure that it had brake fluid. On or about Thursday, May 28, 2009, between 2:30 a.m. and 3:00 a.m., Petitioner was involved in an accident while operating the loader. Petitioner told Mr. Lewis that a log fell onto the loader, the brakes failed, and the loader went over a retaining wall. After the accident, Mr. Lewis immediately checked the brake fluid reservoir. He found the reservoir empty. Petitioner knew or should have known the standard procedure to follow when, and if, a log rolled onto a loader. In that event, the loader operator was supposed to immediately call his supervisor on the two-way radio and request help. At the time of the accident, Petitioner and Mr. Lewis had working two-way radios. Petitioner used the radio to call Mr. Lewis right after the accident. He did not call for help when the log first rolled onto the loader. On May 28, 2009, Petitioner was operating the 966 loader on a ramp that is 75-feet long and 40-feet wide with a retaining wall on each side of the ramp. At the high end of the ramp is a flat area where Petitioner was picking up logs from a pile. To get off of the flat part of the ramp, Petitioner had to accelerate backwards to then go down the ramp. When the accident occurred, Petitioner had traveled almost all of the way down the 75-foot ramp and then turned the loader 90 degrees toward the retaining wall. To go over the one and one-half foot retaining wall, the loader must have been traveling at a fairly high rate of speed. The accident tore the transmission off of the loader. The loader was inoperable and had to be repaired. The cost of the repairs was over $14,000. After the accident, Mr. Lewis told Petitioner that "this is really bad." Mr. Lewis first directed Petitioner to clock-out and go home. Mr. Lewis then told Petitioner to stay until Mr. Jackson arrived at work at 5:00 a.m. When Mr. Jackson came in to work, he told Petitioner that he would be suspended until Mr. Jackson and Mr. Lewis had a chance to review the situation. Mr. Jackson told Petitioner to report back on Monday, June 1, 2009. Mr. Lewis decided that Petitioner should not be allowed to operate equipment for the following reasons: (a) Petitioner failed to keep brake fluid in the loader as instructed; (b) Petitioner failed to call for help on his radio when the log rolled onto the loader; and (c) with the log on the loader, Petitioner accelerated backward down the ramp, turned the loader 90 degrees, and drove the loader fast enough to hit the retaining wall and bounce over it. Mr. Lewis recommended termination of Petitioner's employment. Mr. Jackson concurred. Petitioner was terminated on June 1, 2009. No evidence indicates that the decision to terminate Petitioner's employment was based on his race. There was no persuasive evidence that Respondent gave any white employee more favorable treatment under similar circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 10th day of August, 2010. COPIES FURNISHED: Eric J. Holshouser, Esquire Fowler, White and Boggs, P.A. 50 North Laura Street, Suite 2800 Jacksonville, Florida 32202 Gary Powell 6782 Bumpy Lane Grand Ridge, Florida 32442 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether Respondent discriminated against Petitioner based on his race, and if so, what relief should be granted.
Findings Of Fact Respondent is a Florida corporation with its principal business location in Ormond Beach, Florida. Respondent operates a restaurant in Daytona Beach, Florida, known as IHOP 35. At all times material here, IHOP 35 had a racially-diverse workforce. Scott Studner is Respondent's President. Mr. Studner has direct supervisory authority over Respondent's management employees and ultimate supervisory authority over the non- management employees at IHOP 35. Mr. Studner is responsible for making all decisions relating to promotions and terminations of employees. Petitioner is a single African-American male with a minor son. Respondent hired him as a line cook in January 2007. At that time, Petitioner did not have any management experience. Petitioner worked as a cook on the day shift for approximately 15 months before Respondent terminated his employment. Petitioner began working 40-hour weeks for $9.00 per hour. He received at least five raises over a 12-month period, increasing his hourly wage to $10.00. Petitioner and all of the staff had to work some overtime during busy periods like "Race Week." Shortly after Petitioner began working, Mr. Studner asked Petitioner if he had any interest in a future management position. Mr. Studner routinely asks this question of all newly hired cooks. Mr. Studner told Petitioner about Chester Taylor, an African-American male, who began working for Mr. Studner as a dish washer and now owns and operates two IHOP restaurants of his own. Mr. Studner never made any representation or promise regarding Petitioner's potential advancement into a management position at IHOP 35. Shortly after he was hired, Petitioner began to demonstrate poor performance traits. He frequently arrived late to work. Occasionally Petitioner called to say that he could not work due to personal reasons. While working for Respondent, Petitioner reported several specific instances of racial hostility in the workplace to the general manager, Kathy, who tried to correct each problem as it arose. On one occasion, Petitioner discussed one incident with Mr. Studner, months after it occurred. In February 2007, Petitioner reported to Kathy that a white server named Sharon Blyler had made an inappropriate comment. Specifically, Petitioner accused Ms. Blyler of stating that she would get her orders out faster if she was black like a server named Angela. Kathy wrote Ms. Blyler up on a disciplinary form, advising her that comments about someone's race or color would not be tolerated. Mr. Studner was never informed about this incident. In April 2007, a white co-worker named Kevin called Petitioner a "monkey" several times. The name calling initially arose as a result of someone in the kitchen requesting a "monkey dish," which is a term commonly used in restaurants to describe a small round bowl for side items such as fruit. Petitioner reported Kevin's inappropriate comments to Kathy, who wrote Kevin up on a disciplinary form and suspended him for a week. Apparently, Kevin continued to work in one of Mr. Studner's restaurants but did not return to work at IHOP 35. Three or four months after Kevin was suspended, Mr. Studner asked Petitioner if Kevin could return to work at IHOP 35. When Petitioner objected, Mr. Studner said he would put Kevin on the night shift. During the conversation, Mr. Studner told Petitioner that he should have punched Kevin in the face for calling him a monkey. In the summer of 2007, there was an ordering mix-up involving a Caucasian server named Tiffany. When Tiffany became upset, Petitioner told her to calm down. Tiffany then called Petitioner a "fucking nigger." Kathy immediately had a talk with Tiffany, who then quit her job. Mr. Studner was never informed that Tiffany used a racial slur in reference to Petitioner. In August 2007, Petitioner received a formal verbal warning that was memorialized on a disciplinary form. The warning related to Petitioner's tardiness for work and for not maintaining his work area. When Kathy left her job as general manager of IHOP 35 in October 2007, there was no one person in charge of the kitchen. Petitioner and the other cooks continued to do their previously assigned jobs. On one occasion, Petitioner and another African- American male cook got into an argument. Someone at the restaurant called the police to intervene. Petitioner denies that he picked up a knife during the confrontation. At some point, Mr. Studner began working in the kitchen with Petitioner. Mr. Studner worked there for approximately five straight weeks. While Mr. Studner was working in the kitchen, he never saw any signs of racial hostility. However, Mr. Studner was aware that Petitioner could not get along with the rest of the staff. Mr. Studner realized that the staff resented Petitioner's habit of talking on his cell phone and leaving the line to take breaks during peak times. Respondent had an established and disseminated work policy that employees are not allowed to take or make cell phone or other telephone calls during work hours except in emergencies. Compliance with the policy is necessary because telephone calls to or from employees during paid working time disrupt the kitchen operation. Petitioner does not dispute that he made and received frequent calls on company time for personal reasons. Sometimes Mr. Studner would enter the restaurant and see Petitioner talking on the phone. Mr. Studner would reprimand Petitioner, reminding him that phone calls on company time were restricted to emergency calls only. Mr. Studner had video surveillance of the kitchen at IHOP 35 in his corporate office in Ormond Beach, Florida. Mr. Studner and his bookkeeper, Steven Skipper, observed Petitioner talking on his cell phone when Mr. Studner was not in the restaurant. Eventually, Mr. Studner decided to transfer Petitioner to another one of his restaurants to alleviate the tension caused by Petitioner at IHOP 35. After one day at the other restaurant, Mr. Studner reassigned Petitioner to IHOP 35 because he realized that Petitioner was unable to get along with the staff at the new location. Respondent never gave Petitioner any managerial responsibilities. Petitioner did not approach Mr. Studner or otherwise apply for the position of Kitchen Manager or any position other than cook. Respondent never denied Petitioner a promotion. In December or January 2007, Respondent hired Larry Delucia as the Kitchen Manger at IHOP 35. Mr. Delucia had not previously worked with Respondent, but he had extensive management experience at three different restaurants. When Mr. Delucia began working at IHOP 35, Petitioner and the other cooks were asked to help familiarize him with the menu and the set-up of the kitchen and coolers. They were not asked to train Mr. Delucia, whose job included scheduling and working on the computer, as well as supervising the kitchen. In February 2008, Petitioner told a white busboy named John to bring him some plates. John then told Petitioner that he was not John's boss and called Petitioner a "fucking nigger." The front-end manager, Pam Maxwell, immediately suspended John for a week but allowed him to return to work after two days. Mr. Studner was not aware of the incident involving John. Petitioner then asked Mr. Delucia and Ms. Maxwell for the telephone number of Bob Burns, the district manager for the International House of Pancakes, Inc. Mr. Studner was not aware of Petitioner's request for Mr. Burns' telephone number. Days later, Mr. Studner instructed Mr. Delucia to terminate Petitioner's employment. The greater weight of the evidence indicates that Mr. Studner decided to terminate Petitioner solely because of his continued cell phone usage on company time as observed in person and on surveillance tapes. At first, Petitioner did not realize he had been permanently terminated. During the hearing, Petitioner testified that he tried to return to work by talking to Mr. Delucia, who told him to call Mr. Studner. Mr. Studner did not return Petitioner's calls. For years, Mr. Studner has employed African-Americans to work as servers, cooks, hostesses, kitchen managers, front- end managers, and general managers. Mr. Studner owns five other restaurants, including two other IHOPs. Over the last two years, Mr. Studner has hired three African-American general managers.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and Petition for Relief. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 <day> day of <month>, <year>. COPIES FURNISHED: Sebrina L. Wiggins, Esquire Landis, Graham French 145 East Rich Avenue, Suite C Deland, Florida 32721 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was wrongfully terminated from her position as a hostess with Respondent because of her handicap, in violation of Subsection 760.10(1)(a), Florida Statutes (2003).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, a 47-year-old female, was hired by Respondent on or about July 15, 2003, as a part-time hostess at Respondent's restaurant in Cocoa Beach, Florida. The understanding at that time was that she would be called in to work three to four hours a day, three to four days a week, as a leased, at-will employee from SkilStaf. SkilStaf would be the employer of record for wage and payroll reporting purposes. Respondent, BB & D of Cocoa Beach, Inc., is a franchisee of Perkins Restaurant and Bakery and is an employer under the provisions of Chapter 760, Florida Statutes (2003). Petitioner first reported for work on July 17, 2003, and received training as a hostess/cashier by Debra Russell, associate manager, and received the same information about the job requirements, duties, and benefits given to all new hires. During her training, Petitioner was advised that in addition to seating guests and operating the cash register, a hostess would be required to bus tables when the restaurant was busy and the other staff was in need of help, although this requirement was not listed on the printed job description. Petitioner did advise Respondent that she had a disability and that she required a reasonable accommodation in order to perform her job. She stated that several years before she had undergone back surgery as a result of an injury that was not job related and could not perform a job that required heavy lifting. Petitioner advised Russell that she could not bus tables because it would require heavy lifting. Russell asked Petitioner to provide Respondent with a doctor's note advising them of the nature of her disability and what accommodations she required. Petitioner continued to work as a hostess at the Perkins Restaurant through July 22, 2003, and performed the job satisfactorily. She was not asked to bus tables during this period. Petitioner was not called back to work as a hostess after July 22, 2003, and did not receive any notification that she was terminated. Petitioner obtained a note from her physician dated July 28, 2003, which indicated that she was capable of working four to five hours a day as a hostess. This evidence is hearsay. In addition, it is not convincing that Petitioner turned in a copy of the note to management anytime after that date. She tried to talk to management about her status, but was unsuccessful. Although Petitioner did not prove that she is a disabled person, she was perceived to be disabled by her employer. Petitioner testified that she talked to Russell some time in early August. Petitioner claimed that Russell said that she had talked to the owner who said that he did not think Petitioner should be working as a hostess, but should get a desk job sitting down. Russell denied making such a statement. No other evidence was offered to support this statement. Therefore, said statement is uncorroborated hearsay and unreliable, and will not be relied upon as a finding of fact. Petitioner presented evidence that since July 2003, she has been unemployed, in spite of her making reasonable efforts to obtain suitable part-time employment. Respondent demonstrated that Petitioner sought to have several days in a row off after working only three days. Petitioner worked six shifts total during her employment with Respondent. Respondent needed two other part-time hostesses for the other shifts because the restaurant was open seven days a week, 24 hours a day, for a total of 21 shifts per week. Respondent demonstrated that the summer business that year was slower than projected and never picked up. The restaurant business is labor-intensive and accounts for 30 to 40 percent of overhead costs. In order for management to control costs, it must cut back on employees. Petitioner was involuntarily terminated because sales were underperforming projections and labor costs were being controlled by a reduction in force. Petitioner was unable to prove that her termination was the result of her disability or perceived disability and that Respondent's proffered reason for her termination was pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice with prejudice. DONE AND ENTERED this 23rd day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 23rd day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Shahrooz Banapoor BB & D of Cocoa Beach, Inc. 5590 North Atlantic Avenue Cocoa Beach, Florida 32931 Anne E. Dorfler 700 North Courtney Parkway Apartment 524 Merritt Island, Florida 32953 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner demonstrated that she was terminated from employment by Respondent, Florida Department of Health- Volusia (Respondent or FDOH-Volusia), as the result of an unlawful employment practice based on her identification with a protected class, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health services in Volusia County, Florida. Among the programs administered by FDOH-Volusia is the Women, Infants, and Children program (WIC). WIC is a federally-funded nutrition program, which provides healthy foods, nutrition education and counseling, breastfeeding support, and referrals for health care and community services. At all times relevant to this proceeding, FDOH-Volusia operated WIC health clinics in Daytona Beach, New Smyrna Beach, Orange City, and Pierson. Petitioner began working for FDOH-Volusia in June 2010, as a nutrition program director. In her capacity as nutrition program director, Petitioner was responsible for certain management activities of WIC. The State of Florida maintains close supervision of WIC. FDOH-Volusia is required to provide an annual Nutrition Plan (the Plan) to the State. The Plan is a report of WIC operations, sites, hours of operation, various objectives, local agency plans for increasing participation, local agency disaster plan, and staffing. As nutrition program director, Petitioner is responsible for preparing the Plan, and submitting it for revisions and/or final approval by FDOH-Volusia’s administrator. Ms. Boswell became the administrator of FDOH-Volusia on or about April 1, 2016. Dr. Husband, who is African-American, became Petitioner’s direct supervisor beginning in July 2016. As Petitioner’s direct supervisor, Dr. Husband provided oversight of WIC. In 2016, FDOH-Volusia consolidated its Deland and Deltona WIC offices into the office in Orange City. Petitioner was very involved in the move and was, during the period of the move, reassigned from her primary duties in Daytona Beach to duties in Orange City. By all accounts, the move went well. On September 23, 2016, Ms. Boswell requested that Petitioner meet with her and Dr. Husband to discuss the draft Plan provided by Petitioner on September 21, 2016, and for Ms. Boswell and Dr. Husband to provide comments, suggestions, and revisions to the Plan, which was due for submission to the State of Florida on September 30, 2016. The purpose of the meeting was to discuss the steps necessary to get the Plan in final form for submission. At the onset of the September 23, 2016, meeting, Ms. Boswell complimented Petitioner and her staff for getting DOH-Volusia’s new Orange City location “up and going.” Petitioner responded that “it’s good to hear something positive after so much negative.” The comment was directed at Dr. Husband, who Petitioner thought had been negative towards various aspects of her job performance. Petitioner’s comment led to tensions between Petitioner and Dr. Husband. Both said, at one time or another during the meeting, words to the effect of “don’t speak to me like that.” Ms. Boswell became a little uncomfortable with the interaction between the two. During the September 23, 2016, meeting, a number of deficiencies in the draft Plan were identified, including grammatical and syntax errors, discussion that did not align with the corresponding graphs, and a lack of data to support the Plan conclusions. Dr. Husband gave guidance and feedback on the Plan. Ms. Boswell indicated that, but for Petitioner’s comment regarding Dr. Husband’s negativity, the meeting was otherwise professional. At the hearing, Petitioner explained that Dr. Husband made other negative comments to her at various times, stating that at a meeting with the director of nursing regarding WIC work schedules, Dr. Husband said “we’re not going to nitpick”; and that on another occasion during a discussion on the difficulty of recruiting and retaining staff at base salary, Dr. Husband said to Petitioner “that’s the way you designed it.” According to Petitioner, Dr. Husband made similar comments to other of her direct reports. Dr. Husband testified at the hearing that she thought -- before and after the September 23, 2016, meeting -- that Petitioner was insubordinate, disrespectful to employees and supervisors, and rude. Petitioner would take meeting notes in red ink when she perceived instances of “negativity” and “unacceptable behavior” from her direct supervisor, which she described as her “red flag system.” Petitioner argued that since she “spoke up and spoke out” during the September 23, 2016, meeting, she has been the subject of retaliation by Ms. Boswell and Dr. Husband. She expressed her belief that Ms. Boswell was upset that Petitioner criticized Dr. Husband because Dr. Husband was Ms. Boswell’s direct report, i.e., that Petitioner’s criticism “was a reflection on her.” On or about October 5, 2016, Petitioner was informed that her duty station was being changed from Daytona Beach to New Smyrna Beach. Petitioner testified that she posed four questions to Dr. Husband as to the reasons for the transfer and that, in her opinion, Dr. Husband’s responses did not justify the action. Petitioner felt that as the WIC nutrition program director, she should be in Daytona Beach, the largest administrative office. Thus, Petitioner could think of no reason for the move other than retaliation for her criticism of Dr. Husband. Ms. Boswell testified credibly that the reason for Petitioner’s transfer was that New Smyrna Beach was reopening WIC services at the office. In light of how well things went with the opening of the Orange City office, she wanted Petitioner to go to New Smyrna Beach to make sure that location was up and running. She testified that the reassignment was not a punishment, rather, “that was her job” to make sure WIC was running well. Her testimony is credited. In addition to the fact that Dr. Boswell had perfectly legitimate reasons for having Petitioner cover the New Smyrna Beach office, it is clear that Petitioner suffered no adverse employment action as a result. Petitioner lives between Daytona Beach and New Smyrna Beach, and the New Smyrna Beach office is no further from her home than the Daytona Beach office. Petitioner’s pay was not changed, her title was not changed, and her benefits were not changed.1/ More to the point, Petitioner neither pled nor proved that the change in duty station had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. On or about October 18, 2016, Petitioner received a Documented Counseling and Performance Notification (Documented Counseling) from Dr. Husband. The Documented Counseling included a number of deficiencies in performance, and several corrective measures. The deficiencies included: that Petitioner failed to monitor and spend allocated WIC funding during the 2015-16 fiscal year; that the Plan submitted by Petitioner was rejected by the administrator for lack of detail, grammatical errors, and poor work product, and when the Plan was finally completed it was discovered that Petitioner’s staff performed the majority of the work; that the WIC participation rate (65 percent) was significantly less than the program goal (85 percent); and that Petitioner failed to support efforts to refer WIC clients to the dental hygienist at the Orange City location. The Documented Counseling also reflected that Petitioner had been disrespectful to Ms. Boswell and Dr. Husband. Petitioner refused to sign the Documented Counseling to acknowledge her receipt. Petitioner provided excuses for the deficiencies noted, e.g., she used most of the allocated WIC funding; the draft Plan was mostly complete, and she had never before been required to submit a draft nine days before its final submission date; she was only required to increase WIC participation by four percent per year; it was not in the WIC scope of work to facilitate clients to get dental services, just to refer them; she objected to co-location of the dental hygienist in the WIC office and, in any event, referrals were not the responsibility of management, only staff. None of Petitioner’s explanations were convincing. Rather, the testimony of Ms. Boswell and Dr. Husband that the Documented Counseling was completely performance-based and had nothing to do with the September 23, 2016, meeting, was compelling and is accepted. More to the point, Petitioner neither pled nor proved that the Documented Counseling had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. On or about December 16, 2016, Petitioner received an oral reprimand. The oral reprimand noted that Petitioner violated prior instruction and FDOH-Volusia written policy regarding absence from work and reporting such absences to her supervisor by telephone. The oral reprimand was documented. Petitioner refused to sign the oral reprimand documentation to acknowledge her receipt. Petitioner acknowledged that prior notice of absences is important so that FDOH-Volusia could make sure personnel were available to perform clinical services. Despite Petitioner’s prior knowledge that she would not be at work on November 28, 2016, she did not call her supervisor, Dr. Husband, until after 8:00 a.m. on November 28, 2016. She left an earlier voicemail with a direct report. The testimony of Ms. Boswell and Dr. Husband that the oral reprimand was completely performance-based and had nothing to do with the September 23, 2016, meeting, was compelling and is accepted. More to the point, Petitioner neither pled nor proved that the oral reprimand had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. On April 12, 2017, Petitioner was required to participate in an investigatory interview to determine why she was absent from her duty station on numerous occasions between January 4, 2017, and April 10, 2017. Petitioner testified that she saw no problem in coming to work late since, if she was not scheduled for clinic duties, there was no adverse affect on staff or the clinic. Petitioner thought the investigatory interview for her failure to be at work during scheduled hours “was a bit harsh,” and felt that FDOH-Volusia was “monitoring her coming and going.” She testified that the monitoring of her “daily schedule, coming and going,” was related to the September 23, 2016, meeting. Petitioner provided information on her “tardies” to Ms. Ayers. Ms. Ayers had by then been assigned as Petitioner’s supervisor since Petitioner had, in another act of “speaking up and speaking out,” filed a formal grievance against Dr. Husband for retaliation.2/ Ms. Boswell testified convincingly that Petitioner was not authorized to unilaterally “flex” her time; that an agency cannot be run when employees alter their schedules without notice; and that Petitioner’s excessive absences from her duty station violated the Employees’ Handbook. The documentation provided by Petitioner was deemed to be insufficient to justify her absences, and did not explain why Petitioner failed to get approval from a supervisor before modifying her work schedule. Thereafter, on or about June 22, 2017, Petitioner received a written reprimand for the absences. Petitioner refused to sign the written reprimand to acknowledge her receipt. The testimony of Ms. Boswell and Ms. Ayers that the written reprimand was completely performance-based and had nothing to do with the September 23, 2016, meeting, was compelling and is accepted. More to the point, Petitioner neither pled nor proved that the written reprimand had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. The June 22, 2017, written reprimand was the last of the retaliatory actions for the September 23, 2016, meeting alleged by Petitioner. Petitioner has alleged that the October 5, 2016, change in duty station; the October 18, 2016, Documented Counseling; the December 16, 2016, oral reprimand; the April 12, 2017, investigatory interview; and the June 22, 2017, written reprimand were all unwarranted retaliation for the statement she made during the September 23, 2016, meeting, i.e., that Dr. Husband had been negative towards her. Petitioner acknowledged that there was “some truth” in the discipline, but lots of “fluff.” To the contrary, the evidence is convincing that, if anything, FDOH-Volusia was, and remains, exceedingly lenient and accommodating to Petitioner with regard to the substantiated discipline meted out. As set forth previously, Petitioner has not been terminated or demoted, and has not suffered a pay decrease or a decrease in benefits. While her duty station was moved from Daytona Beach to New Smyrna Beach, those locations are approximately the same distance from Petitioner’s home, and she has since been moved back to Daytona Beach for “need” related reasons. Respondent in this case presented hours of compelling testimony from multiple credible witnesses regarding Petitioner’s poor management skills, poor interpersonal skills, poor leadership skills; her tense, argumentative, and disrespectful attitude; and more. The testimony was, presumably, offered to demonstrate that FDOH-Volusia had a legitimate, non- discriminatory basis for the alleged adverse employment actions taken against Petitioner. The testimony and evidence was unnecessary. Not once during the course of the hearing did Petitioner allege or argue that the actions taken as described herein had anything to do with discrimination or retaliation based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. Petitioner stated that the actions taken against her were the result of her having “spoken up and spoken out” against negative comments from her supervisor, Dr. Husband. There was nothing raised in Petitioner’s Employment Complaint of Discrimination, in her Petition for Relief, in her statement of position in the Joint Pre-hearing Stipulation, in the testimony and evidence that she offered at the final hearing, or in her Proposed Recommended Order that even intimates that FDOH-Volusia committed an unlawful employment practice as established in section 760.10, Florida Statutes. As will be discussed herein, the failure to allege, argue, or prove discrimination or retaliation based on a protected class or opposition to an unlawful act constitutes a failure to meet the most basic jurisdictional element of an unlawful employment practice complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner, Lisa J. Funchess’s Petition for Relief, FCHR No. 201701356. DONE AND ENTERED this 17th day of January, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 17th day of January, 2019.
The Issue The issue is whether Respondent, a restaurant, unlawfully discriminated against the Petitioner, who is African-American, by refusing to serve her because of her race.
Findings Of Fact At approximately 2:25 p.m., on July 2, 2003, Petitioner, an African-American resident of Minneapolis, Minnesota, entered the premises of a Denny’s Restaurant located at 14697 Duval Road, Jacksonville, Florida, to eat a meal. Petitioner had spent the previous night in Gainesville, Florida, and had interviewed for a position with the City of Gainesville that morning before driving to Jacksonville to fly home to Minneapolis. Petitioner approached the wait stand and waited approximately three minutes to be seated. Petitioner noticed only five guests in the restaurant at the time she was seated, all of whom were Caucasian. Petitioner was seated close to a Caucasian family of four and a single Caucasian male seated at another table. Petitioner did not claim that she had been segregated in the restaurant, and admitted that she had been seated close to tables with customers of other races. Immediately after being seated, Petitioner asked the hostess for a cup of hot water with lemons, which was promptly delivered to her by the hostess. Petitioner was treated respectfully by the hostess. After the hostess left, Petitioner drank her beverage while she reviewed the menu and waited to be greeted by her server and to have her order taken. Although there appeared to be three servers in the restaurant at the time of Petitioner’s visit, only one appeared to be serving. The others appeared to be completing their “side work,” that is, restocking and end-of-shift cleaning duties. The only person actually serving customers during Petitioner’s visit was Rhonda Nicks, a Caucasian woman. The restaurant was short staffed during this period due to a shift change and another server’s failure to show for her shift. While she waited to be served, Petitioner observed that two Caucasian women entered the restaurant, were seated, and were promptly served by Ms. Nicks who appeared to be the only server in the restaurant. Petitioner next observed as a Caucasian man and woman entered the restaurant, were seated, then promptly had their drink and food orders taken and served by Ms. Nicks. After waiting 20-25 minutes, and not having her food order taken, or even being acknowledged by the server, Petitioner went to the cashier’s stand where she was met by Audrey Howard, an African-American employee of the restaurant, who asked Petitioner if she wanted to see a manager. Petitioner replied that she did want to see a manager, and one was summoned. After waiting a few minutes, Petitioner was greeted by a Caucasian manager who identified himself as Mike Kinnaman. After speaking with Petitioner, Mr. Kinnaman offered to immediately put in Petitioner’s food order, to even cook the meal himself, and to provide the meal at no charge. Petitioner refused Mr. Kinnaman’s offer, stating that she had to return her rental car at the airport, then catch a flight. Mr. Kinnaman then offered Petitioner a business card on which he wrote “1 free entrée, 1 free beverage, 1 free dessert . . . Unit #1789." Mr. Kinnaman told Petitioner that she could use the card for a free meal at another time. This offer was made based upon the manager’s belief that Petitioner did not have time to eat and needed to leave for the airport. After speaking with the manager, Petitioner left the restaurant at approximately 3:00 p.m. She drove the short distance to the airport, removed her luggage and belongings from the rental car, turned in the car, and received her receipt which showed that she had turned in the car at the airport Hertz location at 3:20 p.m. Although Petitioner told the Respondent’s manager that she had to leave to catch a flight, the evidence showed that Petitioner’s flight was not scheduled to leave for another four hours. Petitioner’s rental car receipt documented the fact that she had a two-day rental and could have kept the car for almost another full day. Petitioner was in no jeopardy of incurring additional rental car charges or of missing her flight when she hurried from the restaurant at 3:00 p.m. Although Petitioner observed only nine other customers in the restaurant while she waited to be served, Respondent’s records and the testimony of Audrey Howard, a former cook at Respondent’s restaurant, 24 customers were served in the restaurant between 2:00 and 3:00 p.m. on the day of Petitioner’s visit. Although Petitioner testified that she was the only African-American customer in the restaurant, Ms. Howard recalled a table of two African-American patrons who were served during the time period when Petitioner was in the restaurant. She specifically recalled these patrons because the gentleman returned his omelet to the kitchen, asking for more cheese. During her time in the restaurant, Petitioner observed only five employees. Respondent’s records demonstrate that 14 hourly employees were in the restaurant between 2:25 and 3:00 p.m. From where she was seated in the restaurant, it is likely that Petitioner could not see every customer and employee in the restaurant. Petitioner never attempted to call a server over to her table, nor did she ask the hostess to either take her order or ask a server to provide her with service while she waited. Petitioner did not complain to the manager that she had been discriminated against. She complained that she had received poor service. Respondent requires training for all of its employees on diversity and discrimination issues before they are allowed to work for Respondent. Every server who testified at hearing had specifically undergone diversity and discrimination training. Although Respondent has a history of past discrimination against African-Americans as evidenced by a consent decree entered into by the company with the United States Justice Department, it has since received national awards and recognition for its strides in the areas of discrimination and diversity. Respondent takes claims of discrimination very seriously, and has a zero tolerance standard for acts of discrimination by its employees. Respondent’s managers are required to report all claims of racial discrimination to a 1-800 hotline. No call was made by the manager in this case because he did not believe that a claim of discrimination had been made by Petitioner when she claimed she had received poor service. Petitioner offered no evidence that she had suffered damages as a result of the poor service she received at the restaurant.
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 dismissing Ms. McAdory's Petition for Relief. DONE AND ENTERED this 20th day of December, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 20th day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan S. Erdelyi, Esquire Marks Gray, P.A. Post Office Box 447 Jacksonville, Florida 32201 Charlene McAdory 417 Oliver Avenue North Minneapolis, Minnesota 55405 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent's contract of employment as a cafeteria worker should be terminated.
Findings Of Fact Dorothy Golden was employed as a lunchroom worker at Cottondale High School. She had been employed as a lunchroom worker since 1984. Ms. Golden's contract of employment was for one year and expired in the latter part of April, 1991. The contract was not renewed for the 1991-92 school year. During the 1990-91 school year, Dorothy Golden's immediate supervisor was Dorothy Barnes. Dorothy Barnes became the Cafeteria Manager at Cottondale High School after the retirement of Lela V. Gardner in approximately 1988. Although Ms. Golden inquired about assuming the manager's position at the County office, she never submitted an application because she decided she did not want the responsibility of the job. Ms. Golden did not resent the fact that Dorothy Barnes was hired as the Cafeteria Manager at the high school. Dorothy Barnes was supervised by the principal, Henry Ezell and the food service director, Ralph Harrison. Both Ms. Barnes' supervisors thought highly of Ms. Barnes because she had turned the cafeteria into a paying enterprise for the school. Over time a personality conflict gradually developed between Ms. Golden and Ms. Barnes because of Ms. Barnes' dictatorial style of management. In fact, Ms. Barnes could be so overbearing that at least two lunchroom employees who worked with Ms. Barnes testified that they would resign their jobs rather than work under her supervision again. 1/ Over the years Ms. Golden and Ms. Barnes had several minor conflicts. These conflicts basically stemmed from the personality conflict between the two women and Ms. Barnes' perception that Ms. Golden was unwilling to perform the duties Ms. Barnes assigned to her and/or that Ms. Golden was not prompt in the performance of such assigned tasks. Ms. Golden tried her best to get along with Dorothy Barnes. Ms. Golden felt that she could never do enough to satisfy Ms. Barnes. Apparently, until March, 1990, none of the alleged problems between Ms. Golden and Ms. Barnes were sufficient to justify a downgraded evaluation in any particular category or a failure to recommend her for reemployment for the following year. In fact, for each of the school years 1984-85 through 1989-90, Ms. Golden received satisfactory evaluations and had her annual contract of employment renewed. Given these facts and the supportive testimony of Ms. Golden's co- workers, the School Board has failed to demonstrate any cause for terminating Ms. Golden which could be attributed to the period of time prior to March 28, 1991. On March 28, 1991, Ms. Golden was sick with a temperature. Even though she was ill, Ms. Golden went into work with the intention of going to see the doctor during the day. She informed Ms. Barnes that she was sick and was going to see the doctor. However, the doctor could not see Ms. Golden on March 28. Ms. Golden therefore continued to work throughout the day. Near the end of the March 28 workday, Ms. Barnes instructed Ms. Golden to grind five pounds of cheddar cheese and five pounds of white cheese. The cheese was needed for the next day's meal. Because she felt so bad and had time the next day to grind the cheese, Ms. Golden asked Ms. Barnes if she could wait until the next day to grind the cheese. When Ms. Barnes did not tell her not to, she assumed she had permission to wait until the next day. The next day, March 29, 1991, a Friday, Ms. Golden attempted to grind the cheese. Ms. Barnes had revised her instruction to require that Ms. Golden grind 45 pounds of cheese even though only 10 pounds were needed for that day's meal. Clearly, the remaining 35 pounds of cheese would have to be stored in some fashion. The usual practice was to store cheese in bulk in one large freezer bag. The practice did not include using several small used bread bags in lieu of one large freezer bag. Ms. Golden attributed the practice of using one large freezer bag to prior instructions from the health inspectors. The cheddar cheese ground properly. However, Ms. Golden had difficulty grinding the white cheese because it was not frozen solid and gummed up in the grinder. Ms. Rouhlac, a co-worker of Ms. Golden, observed Ms. Golden's difficulties in grinding the white cheese and told her to get Ms. Barnes to help her. Ms. Golden said that she would rather clean the machine and try it one more time before seeking assistance from Ms. Barnes. The white cheese continued to gum up the grinder. In order to come up with enough cheese for that day's meal, Ms. Golden used some other cheese which was already shredded along with the amount that she had ground. Ms. Golden placed the remaining cheese in a large bag in the refrigerator to return to later. Ms. Golden continued to perform other tasks for the remainder of the day until Ms. Barnes requested her to place the cheese in smaller bread bags. Ms. Barnes' request was made ten minutes before quitting time. Ms. Golden searched for smaller bags to put the cheese in but could not find any. Ms. Golden asked Ms. Rouhlac about bags in her area. Ms. Rouhlac looked for some small bags but could not find any. Consequently, Ms. Golden placed the cheese back in the refrigerator until she could get some bags. Ms. Golden suspected that Ms. Barnes was responsible for the bags disappearing based on Ms. Barnes' previous practice of playing little tricks on employees by hiding things. The search for the small bags took up the remainder of the work day. Ms. Golden was not allowed to stay after normal working hours and she left for the weekend. On Monday, April 1, 1991, Ms. Golden was washing lettuce in prepartion for making a green salad. Ms. Golden was using one half of a double sink to wash the lettuce. The other half of the sink had dirty utensils soaking in it. Ms. Golden had previously been instructed that the side of the sink with the utensils in it was for the cook and not to use that side of the sink. Ms. Barnes told Ms. Golden to wash the sink. Ms. Barnes intended the word "sink" to refer to both sides of the double sink being used by Ms. Golden. Ms. Golden understood the word "sink" to mean one side of the double sink. She washed the side of the sink she was working in. A short time later, Ms. Barnes again told Ms. Golden to wash the sink. Ms. Golden told her that she had already washed her sink. After a brief discussion on this issue between the two women and Ms. Barnes made her intent clear, Ms. Golden washed both sides of the sink in accordance with Ms. Barnes' instructions. Later that evening, Mrs. Golden attended a meeting of food service workers at which there was a discussion about how to get along with someone at work who was difficult to deal with. The advice given was to simply "turn the other cheek" and be silent so as not to exacerbate the problem. Mrs. Golden decided to take this approach with Mrs. Barnes in the hope that it would avoid further instances of Mrs. Barnes "jumping down her throat" for no apparent reason. On Tuesday, April 2, 1991, Ms. Golden, following the advice she had received the night before, did not reply verbally to Ms. Barnes when she was greeted the next morning. She simply went about her work in silence, avoiding Ms. Barnes where possible to avoid a controversy. During this time, Ms. Barnes instructed Ms. Golden to refill the milk shake machine. Having performed this task many times before, Ms. Golden knew exactly what to do and simply verified which day of the week it was to determine which flavor of milk shake mix to put in the machine. To avoid conflict with Ms. Barnes, Ms. Golden directed these questions to her fellow employees. Ms. Barnes, angry over her perceived rebuke when she greeted Ms. Golden, chastised Ms. Golden for her inquiry. The evidence indicates that Ms. Barnes apparently misheard some of Ms. Golden's inquiry. 2/ On Wednesday, April 3, 1991, Ms. Golden came to work and began preparing a salad. Ms. Barnes came in and angrily slammed the cheese from the cooler down in front of her and shouted "Stop what you are doing right now and bag this cheese." Ms. Golden had inadvertently forgotten about the cheese in the refrigerator. She said she would bag the cheese if there were some small bags available. When she went to look for bags, there were plenty of small bags in the place where such bags are normally kept, but which was empty the previous Friday. When Ms Golden discovered the return of the small bags she said to the other employees present "These bags must have walked back." Following the discovery of the small bags and within a few seconds of Ms. Barnes slamming down the cheese, Ms. Christmas, a co-worker of Ms. Golden, came over and helped Ms. Golden bag the cheese in small bags. During the bagging of the cheese a shouting match erupted between Ms. Golden and Ms. Barnes. When they were finished bagging the cheese, Ms. Golden went to Ms. Barnes' office to ask her whether she wanted the cheese in the cooler or in the freezer. The shouting match continued. Ms. Barnes was on the phone talking to someone whom Mrs. Golden assumed was Ralph Harrison because Mrs. Barnes was always threatening to call Ralph Harrison out to the school as a means of intimidating Ms. Golden. Later, Ms. Golden realized from comments made by Ms. Barnes that it was the Principal, Henry Ezell, to whom she was talking. During the conversation, Ms. Golden asked Ms. Barnes to permit her to tell her side of the story when she was through. Ms. Barnes became very angry and stated that "Here she is again telling me what to do," and threw the phone down, bouncing it off the floor. Later, both Ms. Barnes and Ms. Golden met separately with Mr. Ezell and Mr. Harrison. During Ms. Barnes' meeting, Ms. Barnes stated essentially that she had had enough of Ms. Golden and that something must be done about Ms. Golden or she would not continue to work in the cafeteria. During Ms. Golden's meeting, Ms. Golden answered the questions asked of her. When she was asked whether she would comply with Ms. Barnes' instructions Ms. Golden stated that she was doing everything she could to comply with Mrs. Barnes' directives. She told them that she felt that nothing she could do seemed to satisfy Ms. Barnes, but that she would continue to try and get along with Mrs. Barnes and to do her job as she had been. Mr. Ezell and Mr. Harrison interpreted Ms. Golden's response to mean that she did not believe there was a problem between her and Ms. Barnes and that she would not follow Ms. Barnes' directives. Ms. Golden meant just the opposite by her statements. Based on the above interpretation and to satisfy Ms. Barnes, the entire blame for the perceived problems Ms. Barnes was having with Ms. Golden was placed on Ms. Golden. Ms. Golden was told, by Mr. Harrison, that either the manager had to go or she had to go. Later, Ms. Golden was informed that she was suspended with pay pending a recommendation of dismissal. Written documentation to that effect followed. The evidence in this case, demonstrated that Ms. Barnes and Ms. Golden were not very good at communicating with each other. The difficulty in communication resulted not so much from disliking each other as from an imbedded inability in each women's personality and social skills to relate their meaning to each other. Ms. Barnes' failure was her overquick perception that she was not being obeyed, lack of pateince with Ms. Golden because of her perceptions about her and her lack of flexibility in manner of performance for a given task. Ms. Golden's failure was that she was somewhat slow in understanding and lacked flexibility in performing her functions because of her slowness. The evidence relating to the specific incidents outlined above clearly demonstrates that there was no failure on the part of Ms. Golden to perform her functions in the cafeteria. In each instance, there was never a refusal to comply with Ms. Barnes' directives but simply a failure to understand the directive or a disagreement about what was necessary to accomplish the task. All tasks were eventually performed once a meeting of the minds was achieved. None of the incidents outlined above warrant the early termination of Ms. Golden since she essentialy successfully and satisfactorily performed her job as a lunchroom worker during the time period from March 28, 1991-April 3, 1991.
Recommendation It is accordingly, recommended that the School Board of Jackson County enter a Final Order awarding Respondent backpay for the period of time from her suspension until the School Board's action not to renew her contract. RECOMMENDED this 28th day of February, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1992.
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Great Southern Café is a restaurant located in Seaside, Florida. The restaurant is owned by James Shirley. As owner, Mr. Shirley did not generally involve himself in personnel decisions at the Café. Such decisions and the day-to- day management of the restaurant were the responsibility of the general manager, who at the time period relevant to this case was William “Billy” McConnell. Petitioner Janet D. Mayes is female. Petitioner has ADD, ADHD, OCD, and general anxiety disorder. She has been diagnosed with these conditions for 20 years and they are all controlled through medication. More importantly, the evidence did not demonstrate that Petitioner’s disorders interfered with her ability to work or significantly impacted any other major life activity. Indeed, Petitioner has worked in the restaurant business for about 30 years and has held a variety of different positions during that time, often working long hours. Since her disorders did not interfere with any of Petitioner’s major life activities, the evidence did not demonstrate that such disorders were disabilities or handicaps for purposes of employment discrimination. Sometime around March 2012, Petitioner interviewed for employment with Respondent. She was initially hired as a hostess for the restaurant by the then general manager, Jim Ruby. Shortly thereafter, Mr. McConnell, who was then assistant manager, replaced Mr. Ruby as general manager. At the time, Mr. McConnell had 35-40 years of experience as a restaurant manager in Alabama and Florida and had managed the predecessor restaurant to Great Southern Café known as “Shades.” Mr. McConnell’s management philosophy was to be patient with employees, to train them in the right way, and to ask employees to do their best. He would give employees the benefit of the doubt, and when disciplinary action was necessary, would sit down and talk with the employee to build confidence in them. Mr. McConnell’s disciplinary style was informal and it was not his general practice to issue formal written discipline to employees. Mr. McConnell liked Petitioner’s work ethic and thought she did a good job as hostess. Under Mr. McConnell’s management, Petitioner was promoted by Mr. McConnell to relief manager in May of 2012. In August 2012, she was again promoted by Mr. McConnell to full manager. Mr. McConnell did not know about, nor was he provided with any documentation regarding, Petitioner’s disorders. Indeed, the evidence showed that Petitioner’s disorders were not so obvious that anyone who encountered her necessarily would have known about those disorders. There was no evidence that Petitioner ever sought any kind of accommodation from Respondent for her disorders. Since Mr. McConnell worked only the day shift and Petitioner usually worked nights, their paths did not often cross at work. However, the evidence demonstrated that Mr. McConnell occasionally used the term “bitch” to refer to Petitioner. The evidence also demonstrated that he did so not in a malicious or discriminatory way, but in a joking manner because of Petitioner’s actions that he witnessed or that were described to him. Petitioner conceded that it was “like it was a joke” when Mr. McConnell referred to her as a “bitch.” There was no testimony that Mr. McConnell used this term on repeated occasions so that its use rose to the level of harassment or that he used it to belittle or demean Petitioner. Sometime in April 2013, the Café catered a very large event known as “JazzFest.” Petitioner assisted Mr. McConnell in the planning and execution of this event for the Café. Her husband, William, who had been unemployed, was hired to help in food preparation at the event. In general, JazzFest was stressful for all those who worked the event. Both Mr. McConnell and Petitioner worked many extra hours at the festival. During the course of JazzFest, Mr. McConnell, as manager, permitted the employees to get food from the banquet line since they had been working all day without breaks for nutrition. Petitioner and her husband loudly and inappropriately berated Mr. McConnell in public and in front of other employees about allowing employees to get food from the banquet line. Mr. Shirley witnessed the confrontation and considered the display to be an inappropriate method by Petitioner to communicate her disagreement regarding Mr. McConnell’s management decision. Mr. McConnell also observed that during JazzFest, Petitioner was “too pushy” and “too bossy” with the staff without having any good reason for such treatment of employees. Additionally, Mr. McConnell observed that Petitioner was “not herself” and “wound up a little too tight” during JazzFest. Further, Mr. McConnell was aware that Petitioner had some recent personal stressors, such as her husband having issues with unemployment and one of her sons being arrested and incarcerated. He believed Petitioner’s behavior was due to the pressures in her family life combined with the pressure from working Jazzfest. Therefore, Mr. McConnell decided to give Petitioner a week off, with pay, for rest and relaxation. He hoped that Petitioner would come back refreshed and ready for the busy beach season after her break. Mr. Shirley knew of and supported the time off for Petitioner and hoped that Petitioner’s time away from work would ease some of the undercurrent of negative feelings that had built up between Petitioner and some of the employees. After Petitioner returned from her week off, Mr. McConnell received reports from some of his employees that Petitioner was being unreasonable, raising her voice and losing her temper “numerous” times. He also received reports that Petitioner was “hard to work for,” and “a bully.” In addition, owner James Shirley received some complaints from employees that Petitioner was “going off on people.” Indeed, her treatment of the employees had gotten to the point that several employees no longer wished to work with her. These employees were considered good employees and were part of the restaurant team. The evidence showed that it is very important for restaurant staff to function as a team and that maintaining good working relationships among team members is one important component of a good functioning restaurant. Mr. McConnell spoke to Petitioner about the subject of the complaints and asked why she was pushing the staff so hard and creating a bad environment. Petitioner said she would try to do better. During this conversation, Mr. McConnell did not remember asking Petitioner whether her meds were “out of whack,” but he has stated this to other people as a figure of speech in the manner of “get your act together.” The evidence did not show that Mr. McConnell’s use of the phrase was discriminatory, harassing or demonstrative of any knowledge of Petitioner’s alleged disability or perception of the same. After his talk with Petitioner, things improved for a couple of days. However, Mr. McConnell received more and similar complaints about Petitioner from the same employees who previously complained about her, with some indicating they would quit if Petitioner continued to work at the restaurant. Mr. McConnell feared that if something was not done about Petitioner some of his good team employees would leave and he would not be able to run the restaurant. The better evidence demonstrated that Mr. McConnell met with Petitioner and offered her two weeks’ severance pay. He spoke with her about her inability to get along with the employees and function as a team member at the restaurant. The meeting lasted about 20-30 minutes. Ultimately, Petitioner refused the severance pay, handed over her keys, and left. There was no credible or substantial evidence that Petitioner’s termination was based on disability, perceived or otherwise. Similarly, there was no credible or substantial evidence that Petitioner’s termination was based on her sex. Although Petitioner asserted harassment from Mr. McConnell, no evidence to support this claim was adduced at the hearing. Respondent hired and promoted Petitioner to a manager position, allowed Petitioner to hire her husband and son (and at least one of her son’s friends), and gave her a paid week off after JazzFest to refresh and relax from a stressful event. The evidence showed that Mr. McConnell gave Petitioner the benefit of the doubt, as he did with all his employees, and only decided to terminate her after talking with Petitioner and determining that giving her time off did nothing to eliminate the negative energy Petitioner was bringing to the job. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on sex or disability when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of June, 2015, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2015. COPIES FURNISHED: Robert L. Thirston, II, Esquire Thirston Law Firm Post Office Box 19617 Panama City Beach, Florida 32417 (eServed) Timothy Nathan Tack, Esquire Kunkel Miller and Hament 3550 Buschwood Park Drive, Suite 135 Tampa, Florida 33618 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
Findings Of Fact Respondent is a non-instructional employee of Petitioner. Respondent is employed by Petitioner in its food services division. Respondent sustained an injury to her lower back on or about April 21, 1994, within the scope of her employment with Petitioner. Respondent reached for a box in an overhead location and fell backward onto her buttocks. She complained of discomfort in her lower back. Dr. Thomas J. Brodrick treated Respondent for her injury. The course of treatment included a magnetic resonance image ("MRI") and two electromyographic studies ("EMGs"). On January 26, 1995, Dr. Brodrick discharged Respondent from his care. Dr. Brodrick determined that Respondent has no physical impairment and no permanent disability. After January 26, 1995, Respondent failed to return to work. By letter dated February 3, 1995, Petitioner directed Respondent to report to work on February 8, 1995. In the same letter, Petitioner notified Respondent that she would be terminated from her employment if she did not report to work. On March 28, 1995, Respondent was evaluated by Dr. Urbach. Dr. Urbach examined Respondent, reviewed the records of Dr. Brodrick, and reviewed the MRI and EMG results. Respondent is physically capable of returning to work. Respondent has degenerative disk disease at levels L-1-2 and L-2- 3. Respondent's complaints are caused by functional overlay, or secondary gain motives, rather than by a physical impairment or permanent disability. On March 28, 1995, the Florida Department of Labor and Employment Security, Division of Workers' Compensation, issued a Notice of Claimant Disability Status. The notice determined that Respondent is able to return to work without restrictions. Since January 26, 1995, Respondent has been physically able to return to work without restrictions. Respondent failed to return to work after January 26, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from her employment. RECOMMENDED this 6th day of October, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1995. COPIES FURNISHED: Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771 Ned N. Julian, Esquire Director of Legal Services Seminole County Public Schools Post Office Box 1358 Sanford, Florida 32772-1538 Teresa Rynczak, pro se 1006 Aviles Court Oviedo, Florida 32765
Findings Of Fact Petitioner worked for Golden Crust Bakery, Inc. at Grants Bakery, one of seven retail stores owned by Respondent, for approximately one week and was terminated by direction of Kenneth Judd, manager of Golden Crust Bakery, Inc. Ms. Confer had been hired by the manager of Grants, Ms. Collachio, as a sales clerk. Each day the sales clerks run a tally on their sales and it should match with the cash register receipts. When Petitioner's accounts failed to balance every day of the one week she worked at Grants, Judd told Mrs. Collachio to let her go. On one occasion Petitioner was told by Ms. Collachio that she couldn't hear the customers when her back was turned to the customers. At the time Judd directed that Ms. Confer be fired he had no knowledge that she had a hearing problem. At the hearing Ms. Confer presented no evidence that she had a hearing disability. Her only testimony was that she was told by Ms. Collachio that when she turned her back to the customers she couldn't hear the customers and Ms. Collachio would have to let her go.
The Issue Whether the Petitioner, a member of a protected class, was terminated from his employment with the Respondent in the Hospitality Department at the Grand Floridian Hotel on or about March 18, 1993 on the basis of his national origin (Hispanic-Dominican Republic), in violation of Section 760.10(1)(a), Florida Statutes (Supp. 1992).
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. The Petitioner was employed by the Respondent at its Grand Floridian Hotel as a valet/greeter/bellman in the Hospitality Department during the relevant period of time, including March of 1993. The Petitioner is of Hispanic origin from the Dominican Republic and is a member of a protected class. In approximately October of 1988, the Petitioner began his employment with the Respondent at the Contemporary Hotel as a valet/greeter. In April of 1989, the Petitioner received a written reprimand for not logging in a piece of luggage. The Petitioner did not grieve the April 1988 written reprimand. In May of 1989, the Petitioner transferred to the Respondent's Grand Floridian Hotel, where he was a valet/greeter/bellman. In February of 1990, the Petitioner received an oral reprimand for three separate incidents of improperly logging luggage. 9. The Petitioner could not recall if he grieved the February, 1990 oral reprimand. In August of 1990, the Petitioner again received an oral reprimand, this time for mixing up luggage while loading it into vehicles. The luggage had to be mailed to each rightful owner at the Respondent's expense and caused an inconvenience to the guests. The Petitioner could not recall if he grieved the August 1990 oral reprimand. In December of 1991, the Petitioner mishandled luggage by failing to tag all of a guest's bags. In May of 1992, the Respondent's management discussed with the Petitioner his failure to tag a piece of luggage. In July of 1992, the Petitioner received a verbal reprimand for failing to log in a guest's luggage. The Petitioner's verbal reprimand in July of 1992 was the result of a direct complaint by a guest, who was required to search for a piece of his own luggage in the Hotel's storage room. The Petitioner could not recall if he grieved the July 1992 verbal reprimand. In September of 1992, the Petitioner received a verbal reprimand for approaching a guest to discuss splitting a tip with a bellman, an impermissible practice. The Petitioner was not suspended for this incident. In December of 1992, the Petitioner received a written reprimand for failing to follow proper procedures regarding a guest's luggage on two separate occasions. The Petitioner did not grieve the December 1992 written reprimand. The Respondent decided not to consider the two incidents in December of the Petitioner's luggage-mishandling as separate incidents for progressive discipline purposes, even though such action was permissible under the collective bargaining agreement. The Respondent's decision not to consider the two December 1992 incidents separately for progressive discipline purposes was based upon the Petitioner's length of service and his good performance in other areas. The Petitioner had a good attitude, had good people skills, and had received good guest comments during the course of his employment. In December of 1992, the Petitioner understood that he was in the progressive discipline process. In January of 1993, the Respondent met with the Petitioner and offered to remove him from the responsibility of handling luggage by putting him in a non-tipped, dispatcher position. Also, in January of 1993, the Respondent and the Petitioner's union representative were working together to preserve the Petitioner's job. The Petitioner was reminded by his union representative about his previous reprimands and that one more incident would cause his termination. The Petitioner was told by his union representative that the purpose of moving him to a dispatcher position was to get him away from the luggage-handling area. The Petitioner was told that if he remained free of similar reprimands for one year, he could return to the tipped position of valet/greeter with no loss of seniority. After initially refusing the dispatcher position, the Petitioner accepted. The Petitioner was given the shift that he requested when he was transferred to the dispatcher position. In February of 1993 while on duty as a dispatcher, the Petitioner received a three-day suspension, without pay, for using poor judgment. He interrupted a valet while the valet was servicing a guest. The Petitioner did not grieve the February 1993 suspension. The Petitioner's action as a dispatcher of interrupting a valet was grounds for the valet to grieve such actions to the union. The suspension in February of 1993 for the Petitioner's poor judgment as a dispatcher was not the basis for his termination. The Petitioner requested a reclassification back to valet/greeter/bellman position. The Petitioner understood that one more incident of any kind would result in his immediate termination. The Petitioner requested the change from dispatcher back to valet/greeter/bellman for personal financial reasons; and his union representative also advised him that if one more incident of any kind occurred, he would be terminated. On March 16, 1993, the Petitioner mishandled luggage. The Petitioner did not properly log in a guest's luggage (a garment bag). 35. The Petitioner was terminated on March 18, 1993 for poor job performance. The progressive discipline which the Petitioner received was consistent with the union contract. The contract provides that an employee can be terminated for the next offense following a single written reprimand. The Petitioner had the opportunity to grieve all of the reprimands he received, and his union representative was aware of the actions taken in connection with the Petitioner's employment. The Petitioner grieved his termination, and that grievance was denied. The Petitioner failed to provide evidence of any similarly-situated employee who was not terminated for mishandling luggage on as many occasions as he had. The Petitioner failed to provide evidence regarding any discrimination against other Hispanic employees, other than his own belief, speculation or conjecture. The Petitioner understood that the Respondent's management was closely checking into everyone's performance. Management asked all of the employees at the Grand Floridian Hotel to help the Hotel earn a five-star rating. The Petitioner was never part of the Respondent's management and did not attend manager meetings. During the course of his employment, the Petitioner was chosen to train other employees because he knew the proper procedures for his valet/bellman/greeter position. The Petitioner knew the proper procedures for handling luggage received from guests. The Petitioner knew the proper procedures for logging in and handling bags. The Petitioner received copies of the Respondent's policies and procedures for a valet/bellman, including luggage handling. The Petitioner did not report many of the alleged discriminatory actions of his co-workers to management. The Petitioner conceded that on those occasions when he did make reports to management, these alleged actions stopped. The Petitioner received the overtime and schedules which he requested because of his seniority. The number of minorities employed at the Respondent's Orlando, Florida, work site has increased from 1993 to 1996. The number of minorities employed at the Respondent's Grand Floridian Hotel has either remained the same or increased from 1992 to 1995. In January of 1993, the number of minorities in the Grand Floridian Hotel's Hospitality Department was 14, of which 11 were Hispanic; and there were four Hispanics in the valet/greeter classification. In February of 1996, the number of minorities in the Grand Floridian Hotel's Hospitality Department (including valets, bellmen, greeters and dispatchers) was 16, of which 12 were Hispanic; and there were four Hispanics in the valet/greeter classification. The Petitioner failed to produce any evidence of an overall plan by the Respondent's management to eliminate minorities, including Hispanics, from employment at the company. The Respondent allows employees to review their employment records at any time upon request. The Petitioner presented only his own beliefs, speculation or conjecture as a basis for his claims of national origin discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which denies the Petition for Relief. DONE AND ENTERED this 19th day of April, 1996, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3990 The following constitute my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. The Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by the Respondent: Accepted in substance: paragraphs 1-20, 22-31, 33-39, 41-61. Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 21, 32, 40. COPIES FURNISHED: Mr. Jorge V. Jimenez 2716 FDC Grove Road Davenport, Florida 33837 Myrna L. Galligano, Esquire Garwood, McKenna & McKenna, P.A. 731 North Garland Avenue Orlando, Florida 32801 Dana C. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
