The Issue Has Respondent violated the Human Relations Act of 1977 with regard to Petitioner by an unlawful employment practice?
Findings Of Fact In the course of hearing several motions and rulings were made which arose out of the prehearing procedural background of the case, which of necessity now become findings of fact. This cause commenced by "Transmittal of Petition" from the Florida Commission on Human Relations for hearing de novo upon a Petition for Relief filed by Petitioner Leroy McDuffie Jr. from that agency's determination of "no cause" to believe that an unlawful employment practice had occurred in regard to Petitioner and Respondent's employment relationship. Included with that transmittal were copies of all pleadings and jurisdictional papers previously filed with the Commission. On or about October 25, 1984 Respondent filed with the Division of Administrative Hearings a Motion to Dismiss Petition for Relief from Unlawful Practice for Failure to State a Cause of Action Upon Which Relief May Be Granted, and/or Motion for More Definite Statement. On or about October 29, 1984 the Commission on Human Relations transmitted to the undersigned a handwritten notice from Petitioner of a change in his mailing address from "159 9th Street, Winter Haven, Florida 32787" to "1600 W. Washington St., Orlando, Florida 32805 PH. No. 425-1851." The undersigned determined that certificate of service on Respondent's pending Motion to Dismiss recited only Petitioners old address of "159 9th Street, Winter Garden, Florida 32787" and entered a November 5, 1984 Order requiring re-service of the Motion upon Petitioner at his new address and requiring Respondent to initiate a formal hearing on the motion. The parties were encouraged to use a telephonic conference call. Due to typographical error, a Corrected Order was entered November 8, 1984. The original order was mailed to Petitioner at "1600 W. Washington Street, Orlando, Florida 32805" and the Corrected Order was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32805." Neither was returned to the undersigned by the U.S. Postal Service. The Motion was re-served by mail to the new address of "1600 W. Washington Street, Orlando, Florida 32805," but Respondent was unable to complete connections for a telephone conference call on a number of occasions, so on December 28, 1985, the undersigned issued a Notice of Motion Hearing to the parties for a date and time certain requiring Petitioner to contact Respondent and for Respondent's attorney to initiate such a call. This Notice was sent to Petitioner at "1600 West Washington Street, Orlando, Florida 32805." It was not returned to the undersigned by the U.S. Postal Service. At the time scheduled for the telephonic conference call (1:00 p.m., January 9, 1984) Respondent's attorney represented that he had had no contact from Petitioner and had, himself, been unable to reach him by phone. Since in excess of the time permitted by rule for filing of a response by Petitioner had passed, and since notice of the hearing was apparently complete with no response by Petitioner, argument was heard without Petitioner on the line. An order was entered January 23, 1985 denying Respondent's Motion to Dismiss but requiring that Petitioner file a more definite statement within 30 days. This Order reflects it was mailed to "Leroy McDuffie, Jr., 1600 West Washington Street, Orlando, Florida 32802." Also on January 23, 1985, the undersigned entered a Notice of Hearing for 11:00 a.m., April 5, 1985 and standard Pre- Hearing Order with detailed instructions cutting off discovery, requiring exchange of witness and exhibit lists, and requiring pre-hearing stipulation or statements by the parties. The Pre- Hearing Order indicates it was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32802" and "159 Ninth Street, Winter Garden, Florida 32787." The Notice of Hearing indicates it was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32802" and "129 Ninth Street, Winter Garden, Florida 32787." However, based on recollection and standard business procedure in the office of the undersigned, it appears that duplicates of the Order for More Definite Statement and Notice of Hearing and Pre-Hearing Order all of the same date of January 23, 1985 were all mailed to Petitioner together in envelopes addressed to both addresses as set out above. There was no return from either address by the U.S. Postal Service. Petitioner did not timely comply with the January 23, 1985 Order requiring more definite statement and on March 1, 1985 Respondent moved for entry of sanctions, including but not limited to dismissal. This Motion was served on Respondent at "1600 West Washington Street, Orlando, Florida 32802." Petitioner did not timely file a response in opposition to the March 1, 1985 motion but by Order of the undersigned dated March 15, 1985, dismissal was still not granted and the sanctions specifically requested were not granted. The only sanctions imposed by the undersigned in response to the general prayer of Respondent's Motion were that to prevent unfair surprise to Respondent due to lack of a More Definite Statement, Petitioner would not be permitted to call at formal hearing any witnesses other than himself and would not be permitted to submit at formal hearing any documentary evidence; further, Respondent was relieved of filing the Pre-Hearing Statement previously mandated by the Pre-Hearing Order. Petitioner was further ordered to show cause in writing by March 26, 1985 why his failure to comply with the January 23, 1985 Order requiring More Definite Statement should not be deemed an admission there were no disputed issues of fact and why a Recommended Order of Dismissal ought not to be entered accordingly. This Order was mailed to Petitioner at "1600 W. Washington Street, Orlando, Florida, 32802" and "129 Ninth Street, Winter Garden, Florida 32787." It was not returned to the undersigned by the U.S. Postal Service from either address. Petitioner did not timely show cause why this action should not be dismissed. Petitioner did not timely file a unilateral Pre-Trial Statement as required by the January 23, 1985 Pre-Hearing Order, which portion had not been rescinded by subsequent orders. Nonetheless, in what may have been an overabundance of caution, the undersigned did not enter a Recommended Order of Dismissal at that point nor did she cancel the hearing scheduled for April 5, 1985. At the time and place appointed for final formal hearing, Petitioner appeared on his own behalf. Before proceeding into final formal hearing on the merits, the undersigned inquired why the Petitioner had failed to comply with all prior orders and requested he show cause orally why the action ought not to be dismissed. It was Petitioner's explanation that although he received his mail at "1600 West Washington Street, Orlando, Florida 32805" he had never received any orders or correspondence or papers from the undersigned at that address. Upon inquiry as to how he knew to be at the formal hearing scheduled at that particular time and place, Petitioner said he had only received a phone call from his former residence in Winter Park that morning and so he arrived only at the last moment. The undersigned observed Petitioner arrived some 10 minutes before Respondent's attorney. Petitioner conceded that with the exception of the last digit of the zip code all orders and Notices had been correctly addressed to "1600 West Washington Street, Orlando, Florida" but maintained he had received none. He permitted the undersigned to examine the papers he had brought with him and indeed no pleadings or orders were included. Petitioner indicated he normally got no mail at the old address but sometimes he had his children pick up his mail there and deliver it to him which would explain why the items mailed to Winter Garden were not returned to the undersigned. Further, by his own admission, someone at the old Winter Park address appears to have opened duplicate mail there and relayed him messages about it. Petitioner apparently does not physically reside at either address, but does intend to receive all his mail at the West Washington Street address. However, Petitioner had no explanation why the items were not delivered to him or alternatively returned to the undersigned from the 1600 West Washington Street address. Petitioner stated that he had received phone calls and mail from the Respondent's attorney at the old address. Respondent's attorney stated with one exception everything sent by his office had been sent to "1600 West Washington Street, Orlando, Florida 32802 and nothing had ever been returned to him by the U.S. Postal Service. In light of all of the foregoing, the undersigned ruled that she must conclude that a last digit zip code error was not sufficient to indicate Petitioner had not timely received all pleadings and orders at the 1600 West Washington Street address, and that having received them and having failed to comply, the sanctions previously imposed would stand. However, the undersigned also ruled that in light of Petitioner appearing for the hearing, and obviously indicating a controversy of some kind, she would proceed with the formal hearing and allow him to present his own testimony and at the conclusion of his testimony, so as to prevent any surprise to Respondent, the hearing would be continued to allow Respondent to prepare a defense and present it at a subsequent date by bifurcated hearing. This would be done because the Petition had never set out even the disputed issues of material fact and no More Definite Statement had corrected that deficit. Petitioner refused to be sworn, refused to indicate the issues of material fact in dispute, refused to give testimony and refused to present any evidence at all. The undersigned explained to Petitioner that the burden of proof was his, that if he put on no case whatsoever he could not prevail and she would have no choice but to enter a Recommended Order of dismissal upon all grounds raised by Respondent, upon failure to prosecute, and upon failure to carry the burden of proof. Petitioner stated he did not care as long as he had an appeal and could get a lawyer to "write it out" and "tell somebody what was going on here." The undersigned explained that after entry of a Recommended Order she would lose jurisdiction, that the Florida State Commission on Human Relations would then enter a Final Order which might accept, reject or diverge from the Recommended Order and then an appeal could be had to a District Court of Appeal, but that it was in Petitioner's interests to proceed now. Petitioner moved for a continuance so that he might hire a lawyer, stating he had the money to hire one now that he was working. The undersigned observed that Petitioner had had notice of this hearing since late January and had not hired a lawyer. Petitioner said he had consulted a lawyer who told him to get his papers together but had never gone back to hire that lawyer. The gist of Petitioner's argument on continuance was that a previous continuance had been granted to Respondent by an internal hearing officer or investigator for the Florida Human Relations Commission prior to commencement of this de novo proceeding pursuant to Section 120.57, Florida Statutes. The undersigned concluded Petitioner had had opportunity to hire an attorney if he chose and denied a continuance. Petitioner again refused to be sworn or to put on any evidence. Respondent renewed all previous motions and it was stipulated that rulings thereon and the rulings made at the hearing would be incorporated in this Recommended Order.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Relations Commission enter a Final Order dismissing with prejudice the Petition herein. DONE and ENTERED this 26th day of April, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of April, 1985. COPIES FURNISHED: Leroy McDuffie, Jr. 1600 West Washington Street Orlando, Florida 32805 Charles M. Rand, Esquire 10th Floor, CNA Building Post Office Box 231 Orlando, Florida 32802 Commission on Human Relations c/o Suzanne Oltman, Clerk 325 John Knox Road, Suite 240 Tallahassee, Florida 32303 Donald A. Griffin, Executive Director 325 John Knox Road, Suite 240 Tallahassee, Florida 32303
The Issue Whether Respondent unlawfully terminated the employment of Petitioner on July 31, 2000, because of his race and/or age in violation of the Florida Civil Rights Act of 1992, Subsection 760.10(1), Florida Statutes (2001).
Findings Of Fact Respondent, Argenbright Security, Inc., now known as Cognisa Security, Inc., is an Atlanta, Georgia-based corporation that provides commercial security services to customers on a nationwide basis. Respondent employs security officers who are placed on assignments at customers' premises. Relevant to this action, Respondent maintains an office in Orlando, Florida, to support its commercial security services in Central Florida. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 (FCRA). Petitioner was employed with Respondent from May 1998 to July 31, 2000. Petitioner is an African-American male who was 50 years of age upon hiring and 52 years of age upon his discharge from Respondent's employ. During his employment with Respondent, Petitioner was provided with Respondent's employment policies, including the equal employment opportunity policy which prohibits all types of unlawful discrimination in the workplace. Throughout his employment with Respondent, Petitioner worked as a district manager and was supervised by Buckwalter, who was Respondent's vice president and general manager of the Southeast region. Buckwalter made the decision to hire Petitioner and made the decision to discharge him. Based on a decline in business and a lack of work, Buckwalter himself was discharged by Respondent in January 2002. Petitioner's job duties as a district manager included supervising Respondent's account managers who managed security officer accounts and ensured overall customer satisfaction. Petitioner was responsible for supervising the management of approximately 60 customer accounts in Orlando, Jacksonville, Tampa, and St. Petersburg. Petitioner supervised a staff of approximately 33 employees, excluding Respondent's security officers. The list of Respondent's customers in Petitioner's region included, but was not limited to, the following entities: the City of Orlando, U.S. Airways, Delta Airlines, Northwest Airlines, Orange County, C&L Bank, Citrus Center (also known as Tricony Management), Florida Power Corporation, Solivita (also known as Avitar), and Ocwen. Respondent alleges that Petitioner's performance deteriorated during the last six months of his employment, and as a result, Petitioner was discharged on July 31, 2000. Buckwalter testified that he made the decision to terminate Petitioner's employment based on his receipt of numerous customer complaints regarding Petitioner's management of accounts and failure to resolve problems, numerous complaints from Petitioner's subordinates regarding Petitioner's management style and lack of guidance, and Petitioner's failure to properly perform his administrative duties. Buckwalter received eight to ten complaints from Respondent's customers about Petitioner's management of their accounts. Several of Respondent's customers repeatedly complained about Petitioner's management skills. Buckwalter received complaints from Respondent's customers regarding Petitioner's lack of attentiveness towards their accounts, failure to conduct client meetings, and inability and unwillingness to resolve client problems. When Buckwalter discussed the customer complaints with Petitioner, Petitioner sometimes acknowledged the seriousness of the concerns and sometimes became defensive and dismissed the complaints as unreasonable client demands. Two of Respondent's customers, Tricony Management and C&L Bank, specifically demanded that Petitioner be removed from the management of their accounts based on his lack of service and "cavalier" attitude toward their requests. Linda Mansfield, who was the client contact at Tricony Management, sent an e-mail complaint to Respondent's business development manager, Warren Bovich, in regard to Petitioner and Robert Stevenson on February 8, 2000. Tricony Management did not cancel its account with Respondent. However, they insisted that Robert Stevenson and Petitioner be removed from the account. Petitioner admitted that the following customers complained regarding his servicing of or management of their accounts: Ocwen, Citrus Center/Tricony Management, City of Orlando, Avitar/Solivita, C&L Bank, and Florida Power Corporation. Petitioner disagreed with the substance of those complaints. Petitioner also admitted that he had a personality conflict with a Citrus Center employee. Regarding the City of Orlando account under Petitioner's supervision, Petitioner admitted that employee turnover was a problem, that the account was not meeting the budgeted goals, and that Respondent's employees routinely missed their scheduled work shifts. Petitioner further admitted that Avitar/Solivita was upset with him about his unauthorized recruiting efforts. In addition to the customer complaints, Buckwalter received approximately 30 to 35 complaints from Petitioner's subordinates regarding Petitioner's management style. Petitioner's subordinates complained that Petitioner was not concerned with their career development, failed to provide them with timely performance evaluations, failed to conduct staff meetings on a routine basis, failed to attend staff meetings which he had scheduled, did not provide proper support and mentoring for customer accounts, and was generally unavailable to them based on his lack of time in the office. Petitioner admitted that a subordinate complained to Buckwalter regarding Petitioner's failure to provide him with a performance evaluation in a timely manner. Petitioner also acknowledged that Buckwalter received a complaint from Respondent's employee regarding his failure to properly process administrative paperwork. Petitioner admitted that he does not know whether Buckwalter received additional complaints from his subordinates regarding his management. Accordingly, Buckwalter's testimony that he received 30 to 35 complaints from Petitioner's subordinates regarding Petitioner's management is credible. Buckwalter's decision to discharge Petitioner was also based, in part, on Petitioner's failure to properly process administrative paperwork. Buckwalter informed Petitioner, in writing, that his neglect of his administrative duties was unacceptable. Buckwalter also determined that on several occasions, Petitioner provided misleading information about his whereabouts by falsely reporting that he was out of the office conducting client appointments. In addition to Petitioner, Buckwalter supervised several other of Respondent's district managers, including Blake Beach (Beach) and Scott Poe (Poe)--both of whom were formerly employed as district managers in South Florida. While serving as Beach's supervisor, Buckwalter received a single complaint from Respondent's customer, United Airlines (United), regarding Beach's sending of an inappropriate e-mail. United's compliant did not concern Beach's servicing or management of United's account. Other than United's single compliant, none of Respondent's other customers submitted complaints regarding Beach. Based on United's complaint regarding Beach's inappropriate e-mail, Respondent transferred Beach from South Florida to the Baltimore/Washington, D.C., area. While serving as Poe's supervisor, Buckwalter received complaints from two of Respondent's customers (in the South Florida region) regarding Poe's management of their accounts. Because Poe had been successful with other accounts, Buckwalter believed that the two complaints might have been based on a personality conflict. Buckwalter decided to transfer Poe from the district manager position in South Florida to the district manager position in Central Florida. Buckwalter never received complaints from Poe's subordinates regarding Poe's management or supervision. After Poe became the district manager in Central Florida, Respondent received additional complaints from several customers regarding Poe's handling of their accounts. Based on these complaints, Buckwalter made the decision to terminate Poe's employment with Respondent. Buckwalter made the decision to discharge Poe and Petitioner based on a similar number of complaints received from customers in their respective regions; but unlike Poe, Petitioner was discharged for additional reasons: the numerous complaints from his subordinates and the neglect of his administrative duties. Robert Matecki, who was 55 years old when he was hired, replaced Petitioner as Respondent's district manager in Orlando. Petitioner does not allege that Respondent discriminated against him at any time prior to Petitioner's termination on July 31, 2000. Petitioner does not contend that Buckwalter (the decision-maker in this case) ever made any discriminatory comments to him. Petitioner admits that he does not know what factors Respondent considered in making the decision to terminate his employment. Buckwalter testified that he did not consider Petitioner's age and race in making the decision to discharge Petitioner. Instead, he based the decision on customer and subordinate complaints about Petitioner's management style and Petitioner's failure to perform his administrative duties. Because Petitioner admits that he does not know upon what factors Buckwalter based his decision, Buckwalter's testimony is undisputed. Petitioner bases his allegations on his own personal beliefs about his performance and his disagreement with the substance of the complaints made by Respondent's customers and his subordinates.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Florida Commission on Human Relations enter a final order which denies Petitioner's Petition for Relief and dismisses his complaint with prejudice. DONE AND ENTERED this 25th day of June, 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 25th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Wayne Johnson, Esquire DeCiccio, Johnson, Herzfeld & Rubin 652 West Morse Boulevard Winter Park, Florida 32789 John S. Snelling, Esquire James P. Ferguson, Jr., Esquire Duane Morris, LLP 1180 West Peachtree Street, Suite 700 Atlanta, Georgia 30309 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2007),2 by discriminating against Petitioner based on her national origin.
Findings Of Fact The Omni, advertised as "Omni Orlando Resort at ChampionsGate," is a golf resort located in the Orlando tourist corridor near Walt Disney World. The Omni is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner, Suhra Merdanovic, is a Bosnian female, and her first language is Bosnian. She speaks and understands English, but is more fluent and comfortable using her native language. Ms. Merdanovic was employed by the Omni from approximately August 22, 2006, to October 9, 2006. Ms. Merdanovic worked in the kitchen of the Broadway Deli, a sandwich shop located in the resort. The Broadway Deli was one of several restaurants in the Omni complex. During the brief period of Ms. Merdanovic's employment, the Broadway Deli did not have a full-time manager. Ms. Merdanovic reported to Silvio Rosalen, the sous chef at Teri's Restaurant, near the Broadway Deli in the Omni complex. Mr. Rosalen reported to Robert Fohr, the assistant food and beverage manager for the Omni. The Omni has established a policy that prohibits harassment in the workplace. The policy defines harassment as: ny unwelcome verbal, non-verbal, physical or other conduct or behavior relating to an individual's race, religion, color, sex, national origin, age, disability or any other categories protected by state, federal or local law, that is made a term or condition of employment, is used as the basis for employment or advancement decisions, or has the purpose or effect of unreasonably interfering with work or creating an intimidating, hostile or offensive work environment. The policy "strictly prohibit[s]" employees, supervisors, and members of management from harassing other employees, supervisors, or members of management. The policy directs an employee who has a complaint of harassment to report that complaint to any manager or supervisor, the human resources director, the general manager, or the regional vice president of operations. The complaint triggers a formal investigation, usually conducted by the human resources director. The Omni's harassment and equal employment opportunity policies are set forth in the Omni's Associate Handbook, which is provided to all employees. The handbook is reviewed during an orientation session that all newly hired Omni employees must attend. Ms. Merdanovic attended an orientation session on August 26, 2006, and testified that she was familiar with the harassment policy. The Omni calls the first 90 days of employment an "introductory period." The Associate Handbook describes the introductory period as follows: During this time you will have a chance to see whether you like your job and Omni Hotels will have an opportunity to evaluate your performance and suitability for your position. If Omni Hotels concludes that your job performance and/or suitability have been unsatisfactory, you may be dismissed at any time during the introductory period at Omni Hotels' complete discretion. You may also be dismissed at any time after the introductory period at the sole discretion of Omni Hotels. Both during and after the introductory period, all associates are associates at will. If an employee's manager determines within the first 90 days of employment that an employee's job performance and/or "suitability" is unsatisfactory, the manager will meet with the employee to review the manager's concerns. After this meeting, the employee's job status is "suspended pending investigation" while the manager confers with the human resources department to review the issues. If the manager and the human resources department agree that the employee should be terminated, then human resources will advise the employee of the decision. Ms. Merdanovic testified that two Hispanic co-workers, Erica Torres and Charlotte Ruiz, harassed her because of her nationality. Ms. Torres asked her what she was doing in America and refused to go into the kitchen with her. Both women made jokes and laughed about Ms. Merdanovic being from Bosnia. Ms. Merdanovic testified that her co-workers also disliked her, because she refused to give them free food from the Broadway Deli's kitchen. Ms. Merdanovic did not complain to a manager, supervisor, or any other Omni employee about the harassment she claimed to have experienced. Mr. Rosalen testified that he received numerous complaints about Ms. Merdanovic's job performance from her co- workers. The co-workers told him that Ms. Merdanovic failed to follow instructions, argued with guests and co-workers, interrupted co-workers who were trying to explain how to complete job tasks, gave guests the wrong order at least twice, and failed to comply with the posted work schedule. Mr. Rosalen personally observed Ms. Merdanovic's performance deficiencies on several occasions. The guest complaints were most significant to Mr. Rosalen. On one occasion, the guest had ordered a turkey sandwich, but was served a pastrami sandwich by Ms. Merdanovic. Rather than correcting the order immediately, Ms. Merdanovic attempted to convince the guest to keep the pastrami sandwich by telling him it was good and he would like it. On a second occasion, a guest ordered a milkshake and was served iced coffee.3 At the hearing, Ms. Merdanovic testified that she was unaware of any complaints about sandwiches. She stated that she has worked in kitchens for years and understands how to make sandwiches in a deli. She did complain that she was never trained to operate the "front of the store" equipment such as the milkshake machine or coffee machine, yet was expected to somehow be able to operate them. Mr. Rosalen orally counseled Ms. Merdanovic on multiple occasions regarding her performance deficiencies, but he never observed any improvement. Pursuant to the process for terminating employees during their introductory period, Mr. Rosalen and Mr. Fohr decided to meet with Ms. Merdanovic to discuss her performance deficiencies and to advise her not to return to work until she heard from human resources. After this meeting, Mr. Rosalen and Mr. Fohr would meet with the human resources director to discuss whether to terminate Ms. Merdanovic's employment. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution Notice" form, dated October 2, 2006, that set out the performance deficiencies and possible corrective actions for Ms. Merdanovic. This notice was intended to be the outline for discussion during the meeting with Ms. Merdanovic. Under the heading "Specific Nature of Problem" were various categories, including absenteeism, tardiness, violation of company policies, and unsafe actions. Ms. Merdanovic's problem was categorized as "Performance Below Standards." The specific performance problems were set out as follows: There have been numerous complaints about Suhra Merdanovic's job performance from several of her co-workers. These complaints include: Does not follow training of food preparation techniques and quantities. Does not follow food, coffee and drink recipes. Does not know what all the ingredients are to be able to make recipe. Looses [sic] tickets for orders. Has become argumentative with employees and guests when told that the product is wrong. Has tried to convince guests that mistakenly prepared food is good and tried to get them to take it. Does not understand the schedule after repeatedly having it explained. Interrupts employees and does not let people finish talking when trying to explain how a task needs to be completed. Is not a team player. The notice set forth the following under the heading, "Expected performance or conduct/corrective action required": Suhra must adhere to the following guidelines: Must be receptive to and accept training in all facets of Broadway Deli culinary operations with a positive attitude. Must follow all standard recipes without deviation to achieve a consistent product. Must produce orders in timely fashion in accordance to [sic] the guest's specifications. Must never become argumentative with a guest and try to force a guest to take a product they do not want. Must get along with and assist teammates with all guest needs. The notice concluded that the "disciplinary action taken" would be "Suspension/Termination." On October 2, 2006, Mr. Rosalen and Mr. Fohr met with Ms. Merdanovic in Mr. Fohr's office to review the contents of the Problem/Solution Notice. When her supervisors began reviewing her performance deficiencies, Ms. Merdanovic interrupted to argue with them. Mr. Fohr pointed out that this was the same sort of conduct that led to this counseling session in the first place. Before Mr. Rosalen and Mr. Fohr could present her with the notice and commence the formal suspension/termination process, Ms. Merdanovic began to cry in a way that Mr. Rosalen described as "almost hysterical" for several minutes. Ms. Merdanovic then walked to the kitchen of the Broadway Deli. Mr. Rosalen followed her, both to make sure she was all right and to escort her off the Omni property. Ms. Merdanovic again began crying and saying that she could not breathe. She described her condition as "couldn't breathe, couldn't think, couldn't stay." Mr. Rosalen called in the Omni's security team, which also acts as the resort's first responder in medical emergencies. The entry of the security guards threw Ms. Merdanovic into a greater panic. Eventually, at Ms. Merdanovic's request, the Omni called an ambulance service, which transported her to Florida Hospital in Orlando. Ms. Merdanovic was diagnosed with high blood pressure and discharged after an overnight stay in the hospital.4 After the incident leading to Ms. Merdanovic's hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde- Christie, the Omni's human resources manager, to discuss their meeting with Ms. Merdanovic, the complaints about her from guests and co-workers, and Mr. Rosalen's observations of her performance deficiencies and his previous attempts to correct them. Ms. Borde-Christie agreed that Ms. Merdanovic was not meeting the Omni's performance expectations for her position. In light of Ms. Merdanovic's failure to improve her performance despite Mr. Rosalen's several attempts at verbal counseling, Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was unlikely that Ms. Merdanovic's performance would improve in the future. They decided to terminate her employment. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen met with Ms. Merdanovic to tell her that her employment was terminated and to review the performance deficiencies that caused her termination. When Ms. Borde-Christie attempted to review the performance issues, Ms. Merdanovic became argumentative, stating that these issues were all lies and that her co-workers did not like her. Ms. Borde-Christie testified that Ms. Merdanovic said nothing about her national origin being an issue in the workplace. Ms. Merdanovic produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. The Omni's management did not become aware of her allegations of harassment due to her national origin by her co-workers until Ms. Merdanovic filed her Employment Complaint of Discrimination, more than two months after her dismissal. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination all related to her job performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Omni Hotel Resort did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 26th day of March, 2008.
The Issue The issues to be resolved in this proceeding are whether the Petitioner was discriminatorily dismissed from her employment by the Respondent on the basis of race and whether she was retaliated against by the Respondent for filing a complaint of discrimination with the City of Jacksonville.
Findings Of Fact The Respondent, the University of Florida, is a state university located in Gainesville, Florida. The Respondent, through its Institute of Food and Agricultural Sciences, operates a Cooperative Extension Service, which maintains a county extension office in each of the 67 counties in the State of Florida. Each of these offices is headed by a county extension director. On September 13, 1991, the Petitioner, Pamela R. Dallis, was hired by the University of Florida as a part-time secretary for the Expanded Food and Nutrition Education Program (EFNEP) in the Duval County Extension Office located in Jacksonville, Florida, which is headed by Mr. Thomas Braddock. The Petitioner was hired in a temporary position known as Other Personal Services (OPS). The Petitioner was initially interviewed for a permanent position, but she did not meet the minimum qualifications for the position because she did not achieve the required score (35 c.w.p.m.) on the typing test. The Respondent changed the classification of the position from permanent to temporary in order to be able to hire the Petitioner despite her typing deficiency. As an OPS employee, she did not have permanent status in the position and was not subject to a probationary period or to periodic written evaluations concerning her performance. The Petitioner's immediate supervisor, Ms. Deborah Patterson, provided the Petitioner training as to the policies and procedures applicable to her position. Specifically, the Petitioner received training concerning data entry, reimbursement of expenses incurred for EFNEP and travel reimbursement vouchers. The Petitioner was also provided assistance concerning computer data entry from another employee in EFNEP. The Petitioner was provided oral counseling concerning deficiencies in her performance on several occasions beginning on January 7, 1992. By June 22, 1992, Respondent considered dismissing the Petitioner from her employment because of her performance deficiencies. Due to budgetary constraints, the decision was made to work more closely with the Petitioner because if she were dismissed, there was no assurance that her position could be filled by another individual. On July 6, 1992, in order to provide closer supervision to the Petitioner, the Respondent moved the Petitioner's work station to a location close to her supervisor's office. Prior to this time, the Petitioner's immediate supervisor had requested to Mr. Braddock that this move be made. Mr. Braddock did not approve the request and recommended that the Petitioner be counseled concerning her work performance. In July, 1992, Mr. Braddock agreed to the move because the Petitioner's performance had not improved despite the performance counseling provided. On July 24, 1993, a few weeks after the Petitioner's work station was moved, she reported to Mr. Braddock an incident that had occurred with a white co-worker, Rachel Fleming. Mr. Braddock spoke separately with each employee and asked for their written description of the incident. There were no other witnesses to the incident. Mr. Braddock received conflicting reports from the Petitioner and Ms. Fleming. The Petitioner stated that on July 24, 1992, after informing Ms. Fleming of her dislike for "chain letters" while talking in the printing room, Ms. Fleming placed a chain letter on the Petitioner's desk with her name on it. The Petitioner scratched her name, placed Ms. Fleming's name on the letter and taped it on Ms. Fleming's desk drawer. The Petitioner stated that she later went to the restroom, and as she was exiting, Ms. Fleming came in, blocked her exit, pushed and grabbed her, and said, "I don't like you no more than you like me, bitch!" Ms. Fleming then allowed her to exit. Ms. Fleming acknowledged in her statement that she had an exchange of words with the Petitioner concerning a chain letter that she had given the Petitioner. Ms. Fleming stated that the Petitioner told her, "This is stupid and so are you." Ms. Fleming also stated that about 15 minutes later, she saw the Petitioner as she was leaving the restroom, asked to speak with her, but the Petitioner "brushed past her" saying nothing. Ms. Fleming grabbed the Petitioner, turned to face her and told her that they did not like each other and to "leave me the hell alone". Ms. Fleming denied pushing the Petitioner or calling her a "bitch". She said she called the Petitioner "a biddy". Based upon the unsubstantiated conflicting reports given by each employee, Mr. Braddock determined that no disciplinary action was warranted and counseled each employee. A few weeks after the incident with Ms. Fleming, the Petitioner filed a complaint of discrimination with the Equal Employment Opportunity Office of the City of Jacksonville on the basis that Ms. Fleming had not been disciplined. After having learned of the complaint, the Petitioner's second level supervisor, Ms. Halusky, advised the Petitioner that the proper avenue for her to file a complaint was through the University's Office of Equal Employment Opportunity, not the City of Jacksonville. The City of Jacksonville did not proceed with the Petitioner's complaint because she was not an employee of the City of Jacksonville. The Petitioner never filed a complaint with the University of Florida. Despite the performance counseling and assistance provided to the Petitioner, her performance did not improve. The deficiencies concerning the Petitioner's data entry skills continued. Two reports that were due in September, 1992 at the main EFNEP office in Gainesville were late because the work done by the Petitioner had to be redone. The Petitioner's supervisor decided that the Petitioner's continuing performance deficiencies were causing additional work for the EFNEP staff and, even without the assurance of a replacement, it was better to have the position vacant rather than having to redo the Petitioner's work to correct the mistakes. By letter dated September 10, 1992, the Petitioner's immediate supervisor advised her of her termination effective at the close of business that day. The reason given for her dismissal was that she had not developed in her job as expected and because of performance deficiencies. Sixty-six percent of the employees in EFNEP in the Duval County Office are African American. They serve a clientele that is 75 percent African American. Thus, EFNEP is interested in hiring and retaining African American employees for the program. Three of the individuals who testified at the Petitioner's request are African Americans who work at the Duval County Extension Office. They testified that they had not experienced discrimination in their employment at the Duval County Extension Office. Two of those three employees are in EFNEP. One has been an employee in the office for 23 years, and the other has been an employee for 14 years.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's petition for relief. DONE AND ENTERED this 1st day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 2nd day of December, 1994. APPENDIX TO RECOMMENDED ORDER The Respondent's proposed findings of fact are all accepted. The Petitioner filed no proposed findings of fact. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Pamela R. Dallis 8050 Arlington Expressway #C-401 Jacksonville, FL 32211 Isis Carbajal de Garcia, Esq. Associate General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611
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
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
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 the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 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
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.
