The Issue Whether the Respondent, Mario Medero, discriminated against the Petitioner, Sharon L. Zbikowski, on the basis of her sex, female?
Findings Of Fact The Parties. The Petitioner, Sharon L. Zbikowski, is a female. The Respondent, Mario Medero, is a male. Dr. Medero is a physician. He practices medicine as a professional association. Dr. Medero is the chief executive officer and the supervisor or principal of the professional association. The professional association operates a medical office in Ocala, Florida. The medical practice performed by Dr. Medero consists primarily of treating individuals who have been injured on the job and who are covered by workers compensation insurance. Ms. Zbikowski's Employment. On August 20, 1992, Ms. Zbikowski was hired for employment by Dr. Medero's professional association as the front desk receptionist at Dr. Medero's office. At the time she was hired, Ms. Zbikowski was told that she would be considered for an accounts payable clerk position at the office. The position was held by Barbara Redding if Ms. Redding left the position. Ms. Zbikowski was told at the time of her employment that her consideration for the position of accounts payable clerk was dependent upon Ms. Redding actually leaving. Ms. Redding ultimately decided not to resign her position. The evidence failed to prove that Ms. Zbikowski was hired as a bookkeeper or accounts payable clerk, or that she was not placed in the position she was hired to fill. Ms. Zbikowski's Performance. Ms. Zbikowski worked initially at the front desk. Her performance was considered inadequate by Marilyn Hartsel, the office manager and Ms. Zbikowski's immediate supervisor. Ms. Zbikowski was moved to other positions within the office. She worked for a while in medical records and for approximately one day in accounts payable with Ms. Redding. Ms. Zbikowski's performance in medical records and in accounts payable was also considered inadequate by Ms. Hartsel. Within three or four weeks after Ms. Zbikowski began her employment, Ms. Hartsel had decided to recommend that Ms. Zbikowski be terminated because of the inadequacy of her work. Ms. Zbikowski's Employment by Dr. Medero. At the time that Ms. Zbikowski was initially employed at Dr. Medero's office, Dr. Medero had caused the office to advertise for a housekeeper for his home. Ms. Zbikowski discussed the position with Dr. Medero. Dr. Medero agreed to employ Ms. Zbikowski as his housekeeper and Ms. Zbikowski agreed to work as Dr. Medero's housekeeper. Ms. Zbikowski agreed to clean Dr. Medero's house, run errands for him and the office, pick up his son from school and take his son to and from tennis lessons, meet Dr. Medero's former wife half way between Ocala and Tampa to pick up or to drop off Dr. Medero's daughter, who was in the custody of his former wife, and generally oversee his household. Although the evidence failed to prove that Ms. Zbikowski performed services in her capacity as housekeeper for anyone other than Dr. Medero, Ms. Zbikowski was paid for her services out of accounts of the professional association and Ms. Hartsel continued to be her immediate supervisor. The evidence failed to prove that Ms. Zbikowski was forced in any way to accept employment as Dr. Medero's housekeeper. The evidence proved that she accepted the position voluntarily and without coercion. Ms. Zbikowski continued to work as Dr. Medero's housekeeper until September 28, 1992. During her employment as Dr. Medero's housekeeper, Dr. Medero was satisfied with Ms. Zbikowski's performance. Alleged Sexual Harassment. The evidence failed to prove that Dr. Medero sexually harassed Ms. Zbikowski. Ms. Zbikowski testified about very few specific alleged incidents involving Dr. Medero and the evidence failed to substantiate those incidents. Ms. Zbikowski admitted that she had had no physical contact with Dr. Medero except for one occasion when she hugged him from advancing funds to her to pay for her son's day care and on another occasion when he gave her a physical examination after being in an automobile accident. The evidence failed to prove that either incident involved improper conduct by Dr. Medero. Ms. Zbikowski's testimony that Dr. Medero evidenced a "flirtatious manner" was not substantiated by competent substantial evidence of specific incidents. The most specific incident, and the incident which led to Ms. Zbikowski's termination from employment, took place on Thursday, September 24, 1992. At lunch on that day, Ms. Zbikowski and her four year old son were in Dr. Medero's back yard. Ms. Zbikowski was cleaning lawn furniture. Dr. Medero and Ms. Redding came to Dr. Medero's house, waved at Ms. Zbikowski and went into Dr. Medero's bedroom. The curtains/blinds to the bedroom windows were closed soon after Dr. Medero and Ms. Redding went into the room. Dr. Medero and Ms. Redding, both of whom were not married at the time, were lovers. Ms. Zbikowski was aware of their relationship. At no time did Ms. Zbikowski see Dr. Medero or Ms. Redding in Dr. Medero's bedroom. Ms. Zbikowski believes that Dr. Medero and Ms. Redding engaged in sexual intercourse while in the bedroom. This belief was not, however, substantiated by competent substantial evidence. Dr. Medero and Ms. Redding, who is not longer involved personally or in a working relationship with Dr. Medero, both testified that they did not engage in sexual intercourse. Ms. Zbikowski did not see them engage in intercourse. At best, Ms. Zbikowski's belief was based upon hearing "giggling" and "these little, um, sounds and things" from the bedroom. Ms. Zbikowski's Termination from Employment. On the afternoon of September 24, 1992, Ms. Zbikowski spoke with Ms. Hartsel and told her that Dr. Medero and Ms. Redding had sexual intercourse in her presence and her son's presence. Ms. Zbikowski was very upset and Ms. Hartsel told her to take the afternoon off and report to the office the next morning. Ms. Zbikowski also made other allegations, which the evidence failed to substantiate, of incidents of sexual harassment by Dr. Medero. Ms. Zbikowski left a beeper and a garage door opener she had been provided by Dr. Medero at Dr. Medero's home and left. The next morning, Friday, September 25, 1992, Ms. Zbikowski reported to the office. She was told that she would be expected to the work at the office in the mornings and then work at Dr. Medero's home in the afternoons. Ms. Zbikowski left at lunch and did not return. Ms. Zbikowski informed Ms. Hartsel that she did not intend to return that day because she did not want to return to Dr. Medero's home. Ms. Hartsel told Ms. Zbikowski that she would discuss the matter with Dr. Medero. Ms. Hartsel did not, however, order Ms. Zbikowski to return to work that day or inform her that she was not authorized to stay home. After speaking to Ms. Hartsel by telephone that weekend and being told that Ms. Hartsel had not yet discussed the matter with Dr. Medero, Ms. Zbikowski reported to work Monday, September 29, 1992. By the time that Ms. Zbikowski returned to the office on Monday, Dr. Medero had been informed of the allegations of sexual harassment she had made against him to Ms. Hartsel. Shortly after arriving at the office, Ms. Zbikowski was escorted to her automobile by Dr. Medero, Ms. Hartsel and a nurse and was told by Dr. Medero not to return. Ms. Zbikowski was, therefore, fired by Dr. Medero. Ms. Zbikowski was terminated because of the allegations she made concerning Dr. Medero and Ms. Redding and the other allegations of sexual harassment. Ms. Zbikowski was not terminated because she was not performing her duties as Dr. Medero's housekeeper in a satisfactory manner. Ms. Zbikowski's Subsequent Employment. Ms. Zbikowski was employed, and eventually terminated, by other physicians after her termination from employment by Dr. Medero. The evidence failed to prove that Dr. Medero was involved in any manner in Ms. Zbikowski's subsequent terminations from employment. Ms. Zbikowski's Charge of Discrimination. Ms. Zbikowski filed a Charge of Discrimination against Dr. Medero with the Florida Commission on Human Relations. Ms. Zbikowski alleged that she had been discriminated against based upon the following: I am a female. I worked for the above named respondent since August 20, 1992, until September 28, 1992 when I was discharged from my position of maid. During my employment I was subjected to sexual harassment by Dr. Mario Medero, and also I was subjected to different terms and conditions in my employment. I believe I have been discriminated against because of my sex, in violation of Title VII of the Civil Rights Act of 1964, as amended. On September 2, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Zbikowski filed a Petition for Relief, requesting a formal administrative hearing on October 19, 1993. In the Petition for Relief filed with the Commission Ms. Zbikowski alleged, in part, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The disputed issues of material fact, if any, are as listed below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The ultimate facts alleged and entitlement to relief are as listed below: . . . . The alleged fact memos are that Petitioner was hired for a "Bookkeeping" position but was never given the opportunity to work in this position as original Bookkeeper (Dr. Medero's girlfriend) decided not to leave her position, so Petitioner was given a less meaningful job as "Housekeeper" but was subjected to harassing sexual misconduct by Respondent. The relief is as follows: Petitioner has for 1 year been trying to maintain and seek employment in the Medical field, one which she has worked in for 13 years, but because of Dr. Medero's influence in the Medical field has made it very hard for Petitioner to continue in this field. Petitioner is seeking recovery for the discriminating position he placed her in while under his employment plus relief from the undue hardship which has been placed upon her because of his lies in this matter. . . . . . . . Ms. Zbikowski proved the following allegations contained in her Charge of Discrimination and the Petition for Relief: "I am a female." "I worked for the above named respondent since August 20, 1992, until September 28, 1992, when I was discharged from my position of maid." "Petitioner did not abandoned [sic] her job." The remaining allegations contained in the Charge of Discrimination and the Petition for Relief were not supported by the weight of the evidence. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Zbikowski. Ms. Zbikowski failed to prove that any action of Dr. Medero was based upon Ms. Zbikowski's sex: she was not held to any standard or requirement based upon her sex, she was not sexually harassed and she was not terminated because of her sex. Ms. Zbikowski failed to prove that any policy or standard of Dr. Medero or his office had a disparate impact on female employees. Ms. Zbikowski failed to prove that she was replaced by a male or that other female employees with comparable or lessor qualifications were retained. Ms. Zbikowski failed to prove that she was sexually harassed by Dr. Medero. Ms. Zbikowski failed to prove that Dr. Medero or his office discriminated against her on the basis of her sex, female.
Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on April 22, 2005.
Findings Of Fact Petitioner is an African-American female who began her employment with Respondent on May 7, 2004. Respondent, the Department of Children and Family Services (Department), is an employer within the meaning of the Florida Civil Rights Act. At all times while she was employed by Respondent, Petitioner worked as a child protective investigator (CPI) and was on probationary status. That is, she had not yet achieved permanent status in the Career Service System and was an "at will" employee. After being hired as a CPI, Petitioner received classroom pre-service training and computer training which is provided to every new CPI. Following this initial training, new CPI's are assigned a limited case load, as was Petitioner. Allegations of Race Discrimination Wilfredo Gonzalez is a child protective investigator supervisor (CPIS) and has been a supervisor for approximately 10 years. At all times material to this proceeding he was Petitioner's immediate supervisor. Mr. Gonzalez is an Hispanic male. After Petitioner was assigned cases, she received additional on-the-job training and coaching by Mr. Gonzalez. Other child protective investigator supervisors and experienced CPI staff were also available to the Petitioner to answer questions. The work of new CPIs is carefully scrutinized by supervisors. They are expected to learn from mistakes and become increasingly proficient at the job. Mr. Gonzalez did not give Petitioner a semi-annual performance evaluation at the mid-point of her probationary period due to workload issues, although he was supposed to have done so. However, Mr. Gonzalez regularly met with Petitioner, in his office and in hers, to discuss the progress of her cases and to advise her of areas in which she needed improvement. He also provided e-mail comments and other instruction with regard to her performance on specific cases as well as on Department policy. He also provided her with reports from Respondent's computer case system, HomeSafeNet, which showed whether or not she was meeting certain performance standards. During these communications with Petitioner, Mr. Gonzalez informed Petitioner of problems with her performance. In addition to Mr. Gonzalez, there are two other CPISs in the Alachua County office of Respondent: Haydee Shanata and Patricia Alvarado, who are white females. In instances in which a person's immediate supervisor is unavailable, other CPISs review a CPI's work and deal with other office issues. Because of the nature of the work involved, CPIs and CPISs have to work weekends, nights, and holidays. If a CPI works at a time that his or her immediate supervisor is not on duty, the CPI reports to the CPIS on duty at that time. During the fall of 2004, Ms. Shanata prepared a holiday "on-call" schedule for December 2004. This was done with input from the other CPSIs. Leave was approved for certain employees, including Petitioner, during the holidays. However, due to some CPIs being out due to illness, the holiday on-call schedule had to be revised so that there would be sufficient staff to cover the holidays. The revisions in the holiday on-call schedule placed Petitioner on-call on days that she originally did not have to work. She was upset to see the revised on-call list. Upon learning that she would have to work on days when she originally was not scheduled, she called Ms. Shanata on her cell phone to ask her about these changes. Ms. Shanata explained that the changes were due to not having enough staff scheduled to cover the work. On December 10, 2004, Petitioner complained to Mr. Gonzalez about the revised holiday on-call schedule. During that meeting, Petitioner called CPIS Shanata a liar to Mr. Gonzalez. In addition, Petitioner wrote an e-mail entitled "Poor Holiday Planning." Petitioner sent the e-mail to the three CPISs, Mr. Gonzalez, Ms. Shanata, and Ms. Alvarado. The e-mail also copied their supervisor, Barbara Ross, and the District Administrator, Ester Tibbs. The e-mail reads in pertinent part: I am writing to express my total dissatisfaction with the planning for the holidays by the supervisors here at the Alachua County office. It is apparent to myself as a new employee and should have been apparent to the experienced supervisors here at the Alachua County office that about half of the current staff here is new. I understand that there are some time difficulties and that in the normal day of conducting business that things can be hectic as you are unaware of what may happen however, there is no excuse for poor planning and then FORCING a new investigator to cover three on call shifts during both Christmas and New Years holiday weekends within a seven day work week when originally being scheduled for only one day. As I know that sometimes duty calls however, no organization should infringe on the personal lives of their employees. From this day on, I will be sure not to make plans with my son, as the supervisors here in Alachua County can easily cover their failure to plan properly by dictating to me what time I can spend with my family and when. Also, I was told in a conversation with Haydee Shanata when the schedules were originally created that I did not want to work any more back to back on-call days (clarified by two days within a three day period) and Haydee assured me that she would not schedule me any more back to back days and then I was randomly selected for two additional on-call days which included both Christmas and New Year weekends without my agreement. This e-mail did not complain of race or sex discrimination. The racial composition of those persons whose on-call schedules were changed is not in evidence. Mr. Gonzalez responded the same day with an e-mail that read as follows: Demetria at the writing of your email you had 21 open cases. I was actually locking a case. A case in which I was helping you by going ahead and editing the evidence entries and also entering the findings that you had failed to enter. I was doing this because I know you have been overwhelmed and also to help you get some cases closed that you are soon to roll-over so that you can attend the conference next week. I locked that case and now you have 20 open cases. I try to provide as much support as possible. Earlier this afternoon I pointed out that Myrtle Hodges will be assisting you with your cases so you can get over that hump created by the number of cases you received in Oct. In addition to that--while on-call supervisor for the month of November I specifically limited the number of cases the trainees would receive. In November you were one of the CPI's with the fewest cases at 9 total. This month CPIS Shanata worked hard to try and prevent those staff who will be here at the end of the month from receiving a lot of cases. You are one of those again who benefited. You have been off rotation since Wednesday and as of today you have received only one case for the month of December. On-call is a function of the CPI and CPIS position. This months on- call was an experience unlike any I've experienced since being a supervisor. I have been a supervisor for quite some time. We limited the leave requests we approved. In addition we tried to help persons plan by preparing and presenting the schedules in advance. Since then we've had a CPI out on extended leave as well as other action that limited the number of staff available to accept reports. Because of this we have had to revise the schedule. No doubt that in the work we do, someone has to work holidays and around the holidays. This IS a job that in a sense infringes on our personal lives. Every time I get a call in the middle of the night to assist a CPI investigating a case can be perceived that way but it is not. It's my job. As supervisors we do the best we can and hopefully in the process we learn along the way. Barbara has come to morning meetings and indicated that when there are concerns you should follow the chain of command. Though you addressed the email to me and the other supervisors you copied Barbara as well as Ester Tibbs. Give us the chance to resolve the issues before you send it up the chain of command. (emphasis in original) Incredibly, Petitioner responded with another e-mail to Mr. Gonzales with copies to Ms. Shanata, Ms. Alvarado, and Ms. Ross, accusing the supervisors of being inconsiderate, not courteous or professional, and that the supervisors "shoved it" in her face. On December 15, 2004, Petitioner wrote an apology for the choice of words she used in the series of e-mails regarding the holiday on-call schedule and for violating the chain-of command. Mr. Gonzalez wrote a letter of counseling dated December 27, 2004, to Petitioner regarding her unprofessional behavior toward Ms. Shanata and the insubordinate and disrespectful nature of her e-mails. Mr. Gonzalez admonished her for not following the chain of command and reminded her that she must treat her supervisors and co-workers with respect and courtesy. He also reminded her that she was not a permanent employee and that failure of her to use appropriate behavior would result in her immediate dismissal. The December 27, 2004, memo was the first time that Mr. Gonzalez had issued a counseling memo to Petitioner. Petitioner believes that her e-mail complaining about the holiday on-call schedule was the trigger for what she inaccurately believes was retaliation. Petitioner was scheduled to attend a conference in January 2005. The conference, referred to as the Dependency Summit, involved participants from throughout Florida and involved discussions and training that was separate from the general training given to CPIs when they begin employment with the Department. At some point, Petitioner's name was removed from the list of persons approved to attend the conference. Of the seven CPIs approved to attend the conference, four were African-American. During the early months of 2005, both Mr. Gonzalez and Ms. Shanata expressed concerns over Petitioner's work performance. Ms. Shanata sent several e-mails to Mr. Gonzalez documenting incidents in which Petitioner failed to respond to her e-mails requesting information or directing action on a case. Of particular concern was Petitioner's failure to contact law enforcement on cases in which law enforcement should have been called, such as cases involving sex abuse allegations. According to Ms. Shanata, if a criminal act has occurred, law enforcement must be notified immediately and they then take the lead in the case investigation. Mr. Gonzalez had instructed Petitioner on several occasions to involve law enforcement immediately in certain types of investigations. On March 7, 2005, Ms. Shanata received a telephone call from Detective Sherry French of the Alachua County Sheriff's Office regarding cases assigned to Petitioner that should have been referred to law enforcement, but had not. Ms. Shanata's supervisor, Ms. Ross, instructed Ms. Shanata to review Petitioner's cases which Detective French called her about. During her review, Ms. Shanata became concerned about Petitioner's handling of a case that involved a child who had been taken to the hospital on December 31, 2004. In that case, the child had tears to her vaginal area, which is an indication of possible sexual abuse. Ms. Shanata noted that Ms. Alvarado had "backed down" the case from being classified as an immediate case to a 24-hour case. In this type of case, it is important that the Child Protection Team become involved immediately to conduct their examination of the child, as vaginal tears heal quickly. Ms. Shanata discussed this case with Ms. Alvarado who recalled the circumstances of the case. According to Ms. Alvarado, Petitioner informed Ms. Alvarado that the Child Protection Team had seen the child, which led Ms. Alvarado to authorize that the case be "backed down." Ms. Alvarado considered receiving inaccurate information regarding a case of this nature to be an extremely serious problem. During her review, Ms. Shanata found other cases in which Petitioner had not followed Department policy and operating procedures. Ms. Shanata reported her findings to her supervisor, Ms. Ross, and to Mr. Gonzalez in an e-mail dated March 10, 2005. On March 24, 2005, Petitioner was directed to take a child to the Child Advocacy Center for a forensic interview. However, she failed to do so. In addition to these job performance issues, Mr. Gonzalez and Ms. Shanata expressed concern that Petitioner was habitually late to morning meetings at which cases are presented and discussed. On March 24, 2005, Mr. Gonzalez completed a Performance Evaluation of Petitioner. Performance ratings range from one to five points, with "5" being the highest rating in any category. A rating of "2" means that the employee's performance sometimes meets expectations and needs improvement. Petitioner received a "2" rating in three performance expectations. Her overall rating was a 2.70. A rating of "3" means that an employee's performance consistently achieves expectations. On March 29, 2006, Mr. Gonzalez wrote a memorandum to Marc Williams, District Operations Manager, detailing concerns about Petitioner's work and recommending that Petitioner be removed from her position. Mr. Williams is a white male. Petitioner was reassigned to a non-CPI position on March 26, 2005. She received the same pay and benefits during her period of reassignment. Consistent with Department policy, the reassignment was done abruptly and Petitioner was no longer allowed access to the Department's case management system. Petitioner requested a meeting with Mr. Gonzalez and Mr. Williams. Petitioner met with Mr. Gonzalez, Mr. Williams and Bonnie Robison on March 29, 2005, to discuss the Department's concerns and to give her a chance to present her side of the story. Petitioner was presented with a copy of her performance appraisal at this meeting. At the meeting, Petitioner requested a list of the issues regarding her job performance and an opportunity to respond to their concerns. The meeting lasted two to three hours. Petitioner was provided a bulleted list of concerns on April 1, 2005, which contained issues of concern that Mr. Williams felt she had not adequately refuted at the March 29, 2005, meeting. Petitioner provided a response on April 6, 2005. Probationary employees may be fired at will. The employing agency only needs to notify the employee that he or she has failed to complete the probationary period. Although probationary employees may be fired at will, Mr. Williams does not lightly recommend dismissal of a CPI investigator. However, Mr. Williams expects mistakes to diminish over time and, in Petitioner's case, the mistakes had not diminished and supervisors found that she was not receptive to coaching. Further, Mr. Williams felt that they had reason to doubt Petitioner's word. He recommended Petitioner's dismissal to Ester Tibbs. Ester Tibbs is the District 3 Administrator of the Department. She has the final authority in making the decision with regard to whether or not to terminate an employee. Ms. Tibbs is an African-American woman. According to Ms. Tibbs, she expects supervisors and managers to present compelling reasons as to why a probationary CPI should not be retained in a permanent status. This is because recruitment and training of CPIs are costly and terminating a probationary CPI interrupts investigations and adds to the workloads of other CPIs. In order to make the decision to terminate the employee, she must be convinced that the Department has provided appropriate training, necessary coaching, and support and that, despite their best efforts, she is convinced that the employee cannot carry out the demands of the job. Ms. Tibbs approved Petitioner's termination. On March 31, 2005, Petitioner filed a Career Service Employee Grievance seeking reinstatement of employment, and modification of her performance appraisal. The grievance alleges that she had been harassed by Mr. Gonzalez, Ms. Shanata, and Ms. Alvarado; that she disagreed with her performance appraisal; and that she was discriminated against based on sexual orientation on July 1, 2005. The grievance does not allege race discrimination. As a probationary employee, Petitioner was not entitled to a grievance process regarding her dismissal. The record is not clear as to whether Petitioner should have been provided an opportunity to grieve the portion of her grievance relating to her performance appraisal, since she had already been informed she was being terminated at the time she filed the grievance. In any event, there is no evidence that not granting her request for a grievance process was based upon race. Other Employees in the Alachua County Office of Respondent Amanda Mash is a senior CPI with five years experience and permanent career service status. Ms. Mash is a white female. She was frequently late to morning meetings. However, if she was going to be late for a morning meeting, she called to let her supervisor know that she would be late. She has turned in cases late. She has not received disciplinary action. Ms. Mash never called a supervisor late at night and failed to inform of critical information; never failed to take a child to a child advocacy center appointment when asked to do so; never failed to respond to e-mails from supervisors asking information about cases; never neglected to submit her files to her supervisor when required to do so; and never called her supervisor a liar. Melissa Delcher is a CPI and is a white female. In February 2005, she interviewed a child in a case that was not assigned to her. The case was assigned to Petitioner. The child had disclosed to Ms. Delcher that he had been hit, but she did not see any visible signs of injury. According to Ms. Delcher, she did not contact the child protection team or law enforcement because the case was not assigned to her. Crystal Long-Lewis, an African-American female, was secretary for Mr. Gonzalez from July 2003 through April 2005. She was terminated from her position for conduct unbecoming a state employee and falsifying documents. She was a permanent career service employee at the time of her termination. It is Ms. Long-Lewis's perception that she was not treated fairly because of her race and her young age. She believed that there was favoritism of white CPIs over non-minority CPIs. Myrtle Hodges, an African-American female, became a probationary CPI when her other job with the Department was privatized. She received a below standards evaluation and was encouraged to resign rather than face termination. When asked was it possible that she was terminated based upon her race, she responded, "No, I don't think I was terminated on race." Torrey Kincade, an African-American male, was a CPI in the Alachua County office until he was transferred to another city where he currently works for Respondent. His supervisor while in Alachua County was Ms. Alvarado. He believes that when he worked for Ms. Alvarado, that she targeted him by giving him more tasks and "riding him" harder than a non-minority CPI. He believes he was held to a different standard regarding the dress code. He also believes that he did not receive as high a pay increase as his coworkers, who did not testify. There was no evidence presented as to employees' salaries or amount of pay increases for Mr. Kincade or any of his coworkers. Regarding his perception of the office while he worked under Ms. Alvarado's supervision, he stated, "I definitely--I can't say its discriminatory behavior, but I could say that each minority in the office was at one point targeted." Monica Felder is an African-American female who was employed by the Department for approximately a year and a-half. She was terminated from employment in January 2006 for personal misuse of the cell phone issued to her by the Department and failure to reimburse the Department for the personal calls. As a permanent career service employee, she appealed her dismissal to the Public Employees Relations Commission which affirmed her dismissal. In March 2005, Ms. Felder had received a satisfactory performance appraisal from Ms. Alvarado. Ms. Alvarado made positive comments on Ms. Felder's March 2005, performance evaluation. In January 2004, an employee of Respondent sent an e- mail to Ms. Tibbs regarding concerns about Ms. Alvarado, including an allegation of racism. Ms. Tibbs determined that an internal investigation was needed, and one was conducted. The investigative report concluded that while certain employees held this perception, there was no evidence that Ms. Alvarado targeted anyone based on race. The remaining allegations concerned Ms. Alvarado's management style. Allegation of Sex Discrimination In July 2004, Mr. Gonzalez was approached by another CPI in his unit. Mr. Gonzalez was informed by the CPI that Petitioner had been seen hugging another female CPI in her office in a "romantic way." He instructed that person not to repeat that information and then conferred with his supervisor at that time, Lori Walker. As a result of hearing this allegation, Mr. Gonzalez called Petitioner into his office and told her that there was a rumor in the office that she was having a relationship with another female employee, that her conduct needed to be professional, and that she should keep her door open when that CPI was in her office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2006.
The Issue Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, whose correct name is AIG Marketing, Inc. is a subsidiary of American International Group, Inc. ("AIG"). Respondent supplies marketing services for AIG. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003). Petitioner is an African-American female. She began working for Respondent as an "insurance consultant" on April 22, 2003. Petitioner resigned her employment by letter dated February 17, 2004. Petitioner's last day at work for Respondent was March 2, 2004. Petitioner worked at Respondent's facility in Seminole County, Florida. An insurance consultant's primary job responsibility is to answer incoming telephone calls from prospective customers seeking information concerning automobile insurance. Respondent has an anti-discrimination and anti- retaliation policy. Respondent has a published policy specifically prohibiting discrimination and retaliation. The policy states that discrimination, including that based upon race and color "is strictly prohibited." The policy states that any employee found to have engaged in any form of discriminatory harassment will be subject to appropriate disciplinary action, up to and including termination. The policy states that Respondent will not tolerate any retaliation against any employee for making a complaint, bringing inappropriate conduct to the Respondent's attention, or for participating in an investigation of an alleged act of harassment. Respondent's management employees support and enforce its policies against discrimination and retaliation. After she was hired in April 2003, Petitioner received training for a period of approximately 10 weeks. Thereafter, on approximately July 1, 2003, she was placed on a "team" with other insurance consultants. The Petitioner's immediate supervisor was Melody Garcia-Muniz. While on Ms. Garcia-Muniz' team, Petitioner also received instruction, also called "coaching," from Nirmala Sookram. Ms. Garcia-Muniz is an Asian female. Ms. Sookram is an Indian female. Approximately one month after she was placed on Ms. Garcia-Muniz' team, on or about August 2, 2003, Petitioner had a confrontation with Ms. Sookram. Thereafter, by correspondence dated August 2, 2003, Petitioner wrote Respondent's Human Resources Office and Ms. Garcia-Muniz complaining of "the work condition, I have been experiencing with team leader Nirmala Sookram." As a result of Petitioner's August 2, 2003, letter, Respondent replaced Ms. Sookram as the team coach with another coach. Respondent also immediately investigated the allegations contained in Petitioner’s August 2, 2003, correspondence. This investigation was conducted by Ms. Garcia-Muniz and another management employee Dawn Bronwnlie. No evidence of discrimination was revealed. In approximately September or October 2003, Petitioner was transferred from Ms. Garcia-Muniz' team to a team supervised by Beverly Swanson. Ms. Swanson is a Caucasian female. This transfer was done pursuant to a reorganization of Respondent's shifts. Respondent had two business practices which are relevant to this matter and which are acknowledged by Petitioner. First, Respondent requires that its insurance consultants respond to in-bound calls from customers as soon as possible. Respondent has a policy prohibiting insurance consultants from making out-bound calls if there are in-bound calls waiting. Out-bound calls would typically be follow-up calls between an insurance consultant and a prospective customer. Second, Respondent has a policy prohibiting one insurance consultant from accessing an insurance quote being worked on by another insurance consultant. This policy is intended to prevent one insurance consultant from "stealing" a customer from another insurance consultant. Petitioner consistently violated Respondent's policy against making out-bound calls when in-bound calls were waiting. She was counseled with respect to this policy on August 5, 2003. Petitioner continued to violate this policy and received a verbal warning on September 19, 2003. The verbal warning confirmed Petitioner had been counseled in August with respect to this policy. The verbal warning confirms that for a 14-day period Petitioner made 649 out-bound calls while only receiving 444 in-bound calls. The verbal warning stated that at no time should Petitioner's out-bound calls exceed her in-bound calls. With respect to Respondent's policy prohibiting one insurance consultant from accessing a quote for a customer of another insurance consultant, Petitioner was advised on November 7, 2003, about the proper procedures to handle such situations. Though Petitioner claimed that she did not know accessing a quote for another insurance consultant's customer was inappropriate until November 7, 2003, she admits that on that date she was so advised and from that date forward knew that it was a violation of Respondent's policies. Nonetheless, on December 10, 2003, Petitioner's then supervisor Ms. Swanson was advised that Petitioner had accessed a quote for another insurance consultant's customer in violation of Respondent's policies. This occurred on December 9, 2003. Two days later on December 12, 2003, another insurance consultant, Steve Mintz advised Ms. Swanson that Petitioner had also accessed one of his insurance quotes. Ms. Swanson investigated and determined that Petitioner had, in fact, violated Respondent's policies by accessing the quote of another insurance consultant's customers. As part of that investigation, Ms. Swanson interviewed Petitioner and reviewed reports. Petitioner's statements were inconsistent with the reports, and Ms. Swanson ultimately determined that Petitioner had been untruthful with her during the investigation. As a result of Petitioner's violation of the policy, on December 16, 2003, Ms. Swanson issued Petitioner a written warning for inappropriate sales conduct. The written warning noted that Ms. Swanson had thoroughly investigated "several" complaints about Petitioner's sales conduct and confirmed that Petitioner had processed sales incorrectly despite several discussions with other supervisors as well as Ms. Swanson. The written warning also confirmed that Petitioner had been untruthful with Ms. Swanson during Ms. Swanson's investigation into this matter. As a result, Ms. Swanson placed Petitioner on a written warning which advised her that should her practices continue, her employment would be terminated. In accordance with Respondent's policies, Petitioner was ineligible to post for a position, switch shifts, or work overtime. Immediately after the December 16, 2003, meeting during which Ms. Swanson issued the written warning, Petitioner contacted Respondent's Human Resources department. As a result, Louisa Hewitt, Respondent's Human Resources professional, undertook an independent investigation to determine the accuracy or inaccuracy of Ms. Swanson's findings which formed the basis for the written warning. Ms. Hewitt is a Hispanic female. Ms. Hewitt's independent investigation determined that Petitioner had, in fact, improperly processed sales and inappropriately accessed quotes. Accordingly, Ms. Hewitt met with Petitioner on December 31, 2003. In attendance was another of Respondent's managers Patricia Brosious. During this meeting, Ms. Hewitt advised Petitioner that the written warning was appropriate. Despite the fact that the December 16, 2003, written warning prohibited Petitioner from switching shifts, Respondent allowed Petitioner to switch shifts in order to allow her to care for an ill relative. This request was received on or about December 21, 2003, and granted on December 22, 2003. Dawn Bronwnlie (one of the Respondent's assistant managers who investigated Petitioner's August 2003 complaint) requested the accommodation on Petitioner's behalf by e-mail dated December 21, 2003, sent to, among others, Petitioner's immediate supervisor Ms. Swanson. Petitioner and Respondent management employee Patricia Brosious were copied on the e-mail. Approximately one month later, Petitioner again requested a shift change. By e-mail dated January 26, 2004, Respondent's management employee Patricia Brosious informed Petitioner of all of the shifts that were open at that time to which a transfer was possible. Ms. Brosious copied Ms. Hewitt and Timothy Fenu on this e-mail. Mr. Fenu is the manager of Respondent's facility in Lake Mary, Florida, and the highest- ranking employee of Respondent at that facility. On January 27, 2004, Petitioner responded to Ms. Brosious' e-mail, which had advised Petitioner of the shifts that were available. In response, Mr. Fenu sent an e-mail to Petitioner advising her that the shifts offered to her were based on business need and current unit sizes. Mr. Fenu advised Petitioner that her response was inappropriate and requested her to advise Respondent if she desired to change shifts. After initially scheduling a meeting with Mr. Fenu, Petitioner canceled the meeting by e-mail dated February 10, 2004. Petitioner resigned her employment February 17, 2004. Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S 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 12th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia McGee Post Office Box 550423 Orlando, Florida 32855 Daniel C. Johnson, Esquire Carlton Fields, P.A. Post Office Box 1171 Orlando, Florida 32802 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The policy being challenged provides that: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. This provision is routinely and customarily embodied in the notices issued by Respondent to parties before it in matters arising under Florida Statutes 447.307 and 447.503. The Respondent acknowledges that it did not adopt and promulgate the policy pursuant to Florida Statutes 120.54 or any other relevant provision of Chapter 120. On 12 July 1979 Petitioner filed a petition with Respondent in which Petitioner sought to represent certain employees employed by the Collier County Board of County Commissioners. This petition was accepted by Respondent and on 30 July 1979 Respondent issued a Notice of Representation Hearing and a Prehearing Order. This Prehearing Order directed the parties to that proceeding to file with Respondent at least seven (7) days prior to the date of the hearing, and serve upon each other, a prehearing statement, identifying: Those fact disputes to be presented for resolution. Any and all legal questions to be presented for resolution. The legal authority to be relied upon by each party in presenting its arguments. Those witnesses to be called at the hearing, except rebuttal witnesses. The approximate time necessary to present the party's case. Any outstanding motions or procedural questions to be resolved. This Pre-Hearing Order then provided: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. Petitioner did not file its prehearing statement within the prescribed 7-day period and on 21 August 1979 Petitioner was notified that the hearing scheduled to commence 23 August had been cancelled. On 22 August Petitioner was advised that a written order cancelling the 23 August hearing had been entered by the Commission. Thereafter Petitioner filed the petition here under consideration contending that the policy of Respondent to enter the cancellation-of-hearing notice in prehearing orders is a rule and invalid by reason of not being promulgated pursuant to Chapter 120. Respondent takes the position that the provision in the prehearing order is not a rule, but even if it could otherwise be considered to be a statement of general applicability, it is exempt from being so found by 447.207(6), Florida Statutes.
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
