The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed an act of employment discrimination by totally reducing the employment hours of the Petitioner, such that the Petitioner was constructively discharged and whether such action was on account of his race, in the manner proscribed by Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Lavon A. Baker, was employed by the Respondent at a convenience store which operated in Jackson County, Florida, at times pertinent hereto. He performed various jobs involving cooking, cleaning, cashier duties, checking and maintenance of inventory at the "Jr. Food Store" involved. His employment record is without blemish, having no disciplinary incidents on his record with that employer, the Respondent. The Petitioner's immediate supervisor and employment decision-maker was Dina C. Bonine, the manager of the store involved. The Respondent, Jr. Food Mart of America, Inc., is a corporation headquartered in Jackson, Mississippi, which owns and operates convenience stores in various locations, employing more than 15 employees. The Petitioner is a black man. He was employed at the Respondent's store until October 1992 with no difficulties with his employer. His work record was good and free of disciplinary incidents. Beginning in early October 1992, he began to have his hours of employment per week reduced in number. This became a problem for him because he was earning insufficient income to meet his monthly expenses. He discussed the possibility of obtaining a second job so that he could earn sufficient income, but his supervisor, Ms. Bonine, advised him that he had to work "at her convenience" and would risk termination if he took a second job. Upon his hours of employment at the Respondent's place of business being reduced to approximately 8-10 hours per week, he was forced to take a second job at the Pizza Hut. He began working at the Pizza Hut for 28 hours per week at the minimum wage rate of $4.65 per hour, beginning in March of 1993. Although his supervisor, Ms. Bonine, cautioned him against taking a second job at the risk of being terminated from his job with the Respondent, she allowed a white female employee, Becky Baxter, and a white male employee named "Bobby", who were more recently hired than the Petitioner, to get additional hours of employment, while the Petitioner's hours were being reduced. At the same time, she allowed these two white employees to work at a second job with another employer, as well. Both Ms. Baxter and "Bobby" had been discharged by the Respondent, or Ms. Bonine, in the past, but had been rehired by her and given preferential treatment, in terms of working hours and accommodation of a second job, which treatment was not accorded to the Petitioner. In fact, Ms. Baxter worked in a second job at the Pizza Hut at the same time the Petitioner did, but received the overtime hours formerly given to the Petitioner at the Respondent's place of employment, while the Petitioner's hours were cut to nothing. The Petitioner testified that "she was already at 40 hours and she just got more". These employees, hired since the Petitioner, got all the working hours they wanted from the Respondent and convenient working time schedules, as well, compared to the Petitioner's hours. Ultimately in April of 1993, the Petitioner's working hours were totally eliminated and therefore his employment was effectively terminated. Upon taking the second job at the Pizza Hut, his employer at that facility allowed him to schedule his hours at the Pizza Hut so that he could still obtain all of the working hours he needed at the Respondent's facility. Nevertheless, his hours were constantly reduced by Ms. Bonine to the point that, in April, he had no hours scheduled for several weeks, effectively resulting in his termination. Debra McDaniel is a home health aide and certified nursing assistant. She is a friend of the Petitioner, and when he lost his automobile due to his reduced working hours and reduced income, she often transported him to and from his job. She therefore was able to observe on several occasions the work schedule placed at the Respondent's facility. She observed, for several weeks at a time, that the Respondent had given the Petitioner no working hours. She testified that Ms. Bonine told the Petitioner that she would post a new schedule with his working hours on it, but that never occurred. This observation was made sometime in April of 1993. Ms. McDaniel's testimony thus corroborates that of the Petitioner. Up until the first of October of 1992, the Petitioner earned $160.00 per week at the Respondent's employment facility, without overtime hours calculated in that figure. There is no evidence of what he earned in terms of overtime hours. His employment hours at the Respondent's facility were reduced to 8 hours per week by March 1, 1993. At that point in time, he took the job at Pizza Hut at 28 hours per week at a rate of $4.25 per hour. He worked at that job at Pizza Hut at the rate of 28 hours per week until the end of November, 1993. He was out of employment and looking for work until December 18, 1993, when he became employed with "Seminole Outdoors", at the rate of $5.00 per hour for 32 hours per week. He remained with that employer at that rate until February 28, 1994, when he resigned to return to school full time. He is in a law enforcement education program at Chipola Junior College. The Respondent adduced no evidence in this proceeding and failed to appear. The notice of hearing was issued on April 11, 1994 and served on the Respondent at its address of record, as previously mentioned in the above Preliminary Statement.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that the Petitioner has established that he is a victim of employment discrimination in the form of constructive discharge, following discriminatory reduction of his hours of employment, and opportunity to hold non-conflicting outside employment, all on account of his race, and that he be reinstated in his position with the Respondent and awarded back pay in an amount reflective of the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 10th day of August, 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 10th day of August, 1994. COPIES FURNISHED: Mr. Lavon A. Baker Post Office Box 1276 Sneads, FL 32460 Ms. Cheryl Little Administrative Assistant Jr. Food Mart of America, Inc. P.O. Box 3500 Jackson, MS 39207-3500 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
The Issue The issue in this proceeding is whether Petitioner's position was properly reclassified from Career Service status to Selected Exempt status.
Findings Of Fact Prior to July 1, 2001, Petitioner, Jolly was employed in the Comprehensive Health Planning Section of the Programs, Regulation and Health Facilities Division of the Department of Children and Family Services (DCFS) in a Career Service employment position classified and titled Administrative Assistant II Career Service. At the time, Petitioner held permanent Career Service status. The Administrative Assistant II position was certified by the Public Employees Relations Commission (PERC) as within the Career Service Administrative-Clerical collective bargaining unit, represented by the Florida Public Employees Council 79, AFSCME. In her position, Petitioner performed clerical functions. She did not supervise other employees, perform any managerial functions, or perform any confidential duties. She had no role in labor relations, collective bargaining, the adjustment of grievances filed by employees, or the imposition of discipline upon other employees for breaches of conduct. Similarly, Petitioner had no role in the preparation of agency budgets for collective bargaining, or for other purposes. Sometime around June 15, 2001, Petitioner was notified by DCFS that her position as an Administrative Assistant II would be reclassified as a position within the Selected Exempt Service (SES). The reclassification was effective July 1, 2001. No input from the Petitioner regarding the duties of her position was sought by the Department in its decision to reclassify Petitioner's position. Indeed, the Department reclassified the position based on the fact that Petitioner assisted or aided managerial employees and allegedly had access to confidential material. However, there was no evidence in the record that Petitioner's position involved any confidential matters. Petitioner was terminated from employment with DCFS, without explanation, on June 28, 2002. In terminating her employment as an Administrative Assistant II, DCFS represented that Petitioner had no appeal rights either to PERC or under the bargaining agreement between AFSCME and the State of Florida because her position had been reclassified. However, the evidence does not demonstrate that Petitioner's position was managerial, confidential or supervisory. Therefore, Petitioner's position should not have been reclassified to SES and she is entitled to her rights as a Career Service employee.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Background Petitioner, Karen M. Mallory, who is black, has been employed since June 1986 by respondent, Department of Corrections (DOC). On January 1, 1988, she was transferred to Tomoka Correctional Institution (TCI) in Volusia County, Florida. In a charge of discrimination executed on May 16, 1994, and later filed with the Florida Commission on Human Relations (Commission), petitioner has contended that she was subjected to harassment by her TCI supervisors by virtue of her race. After conducting a preliminary investigation, the Commission found probable cause that a violation of the law had occurred. On January 5, 1995, petitioner filed a petition for relief in which a general allegation was made that she had been "treated unfairly on a regular basis (by her supervisors) because of (her) race and this has caused a very uncomfortable and stressful work environment." The DOC denies this contention. This proceeding followed. The Allegations Petitioner was first hired by DOC in 1986 as a clerk typist. When she was transferred to TCI in January 1988, she assumed the position of fiscal assistant I. Within a few years, she was promoted to a fiscal assistant II in the accounting unit, a position she has retained since that time. From October 1991 until October 1993, Cynthia Griggs, a white certified public accountant (CPA), was employed by TCI as an accountant supervisor II. Griggs supervised eight employees in the accounting unit, including petitioner. During Griggs' tenure at DOC, the unit consisted of the following sections: inmate bank, major institutions, general inventory and health services. One of Griggs' primary goals was to cross-train employees in her unit so that personnel could move between sections to cover vacant positions caused by illness or termination. It is undisputed that, in comparison to the prior supervisor of the unit, Griggs was perceived by her subordinates as a "tough" manager. Upon assuming her role as supervisor, Griggs began enforcing a recently adopted policy that no two employees in a particular section could take breaks at the same time so that there would always be someone to answer the telephone. This policy, and other office disciplinary measures, were always applied in an even- handed manner by Griggs. Even so, Griggs' management style did not sit well with petitioner who speculated that she was being singled out for special treatment. This speculation, however, was just that and was not grounded on discriminatory reasons. Among other things, petitioner claims that in April 1992 she was unfairly and discriminatorily counseled by Griggs for misconduct and insubordination. However, the facts show otherwise. On April 6, 1992, Griggs orally instructed petitioner to implement a new procedure for her inmate bank duties, including making a telephone call to the mail room to verify certain information. The instruction was based on Griggs' experience as a CPA and her understanding of a recent audit of inmate bank accounting procedures. Petitioner became "very upset" with Griggs' instruction, and she stated that the instruction was not in comformity with the intentions of the audit. Griggs replied that she interpreted the audit differently and it was her intention that the new procedure be implemented. Petitioner then told Griggs not to talk to her that way and to come back when Griggs could talk to her in a "civil" manner. This exchange occurred in the presence of two other employees and an inmate. Griggs acknowledged that she became "very angry," especially since she had not spoken to Mallory in an "uncivil" tone. Because other persons were present, she asked Mallory to come to her office to discuss the matter privately. Petitioner refused saying she would be there in a few minutes. However, she never went to Griggs' office, and this prompted Griggs to issue a counseling memorandum for misconduct and insubordination. In doing so, Griggs was not motivated by discriminatory animus but rather she issued the memorandum for a legitimate reason. The record also shows that Griggs had issued a similar memorandum to another white female employee for tardiness. When the April 1992 incident occurred, Michael Gulnac, who is white and the TCI business manager, was Griggs' supervisor and was required to approve the counseling memorandum. Petitioner contends that because of her race, Gulnac refused to meet with her alone to discuss this and other grievances and, unlike his meetings with other employees, Gulnac always insisted that a third party be present. The evidence shows, however, that before this incident occurred, Gulnac had met privately with petitioner on several occasions. But after these meetings were held, petitioner would often misstate what Gulnac said during those meetings. Because of this, and for no other reason, Gulnac insisted that a third party be present in his office whenever petitioner requested a meeting. Contrary to petitioner's claim, there was no discriminatory animus on the part of Gulnac in requiring a third party to be present for meetings with petitioner. Petitioner further contended that, unlike other employees, she was not given specialized training to assist her in mastering her new cross-training duties and thus she was denied employment opportunities on account of her race. For example, she pointed that a white male employee, Tom West, had been sent to Tallahassee for specialized training. However, unlike petitioner, West had no prior accounting background before assuming his fiscal assistant II slot and therefore required more intensive training. Like other employees, petitioner was given on-the-job training as an aid to learning her new duties. There was no discriminatory animus on the part of DOC in failing to send her to Tallahassee for specialized training. Finally, petitioner contended that Griggs accused her of wasting time and engaging in too much socializing in the office while failing to treat white employees in the same fashion. Because there is less than a preponderance of evidence to sustain this allegation, this charge must also fail. In summary, the evidence does not support a finding that petitioner was subjected to a discriminatorily hostile and abusive environment at her workplace. While petitioner has been unhappy with her job since 1991, and she was particularly displeased with the management style of the now-departed Griggs, there is no evidence, or even an inference, that any actions taken against petitioner were because of her race. Therefore, she has not been discriminated against with respect to her terms, conditions and privileges of employment at DOC, nor has she been deprived of employment opportunities because of her race.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 15th day of November, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 15th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0270 Petitioner: 1-2. Partially accepted in finding of fact 1. 3-7. Partially accepted in findings of fact 6-9. 8-11. Partially accepted in finding of fact 9. 12-15. Partially accepted in finding of fact 5. 16-20. Partially accepted in finding of fact 10. 21-22. Partially accepted in finding of fact 11. 23-24. Rejected as being contrary to the more persuasive and credible evidence. Respondent: The proposed findings submitted by respondent have been adopted in substance, albeit with considerable change. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, not supported by the evidence, cumulative, or a conclusion of law. COPIES FURNISHED: Eddie J. Bell, Esquire 62 Springwood Square Port Orange, FL 32119 J. Yvette Pressley, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
Findings Of Fact Respondent employs petitioner as a youth counselor II in Ft. Pierce, Florida. Petitioner attained permanent career service status in May of 1972. In addition to "carrying a normal caseload," i.e., supervising 85 to 88 youngsters in the customary fashion, petitioner met four times weekly with children who had been referred by courts or school authorities for intensive counseling. These groups counseling sessions began at six o'clock in the evening and lasted from one to one and a half hours. John B. Romano became petitioner's immediate supervisor on March 18, 1977. With the acquiescence of Mr. Romano's immediate predecessor, Ben Robinson, petitioner ordinarily reported for work between half past nine and half past ten in the morning. The week Mr. Romano started as petitioner's supervisor, he noticed that petitioner arrived for work between half past nine and ten in the morning. When he spoke to petitioner about this, petitioner told him of an accommodation that had been reached with Mr. Robinson, on account of petitioner's staying at work late to conduct group counseling. Mr. Romano told petitioner that he should report for work at half past eight in the morning, until a youth counselor's vacancy that then existed in the office could be filled. Subsequently, on at least one occasion before May 31, 1977, Mr. Romano spoke to petitioner about being late for work. On May 31, 1977, by which time another counselor had been hired, petitioner reported for work at approximately half past ten. On June 7, 1977, after petitioner had been suspended, Mr. Romano issued a written reprimand to petitioner, characterizing petitioner's arrival at half past ten on May 31, 1977, as "an insubordinate offense." Respondent's exhibit No. 5. One Harry Greene told Earl Stout, a service network manager for respondent and Mr. Romano's superior, that a boy whom petitioner had supervised had accused petitioner in open court of selling drugs and smoking marijuana. Messrs. Greene, Stout and Romano visited the facility at which petitioner's accuser was incarcerated and interrogated him. On May 13, 1977, a Friday, Mr. Romano told petitioner to meet him at nine o'clock the following Monday, but did not explain why. Present at the meeting on May 16, 1977, were petitioner, Mr. Romano, Mr. Greene and Mr. Stout. Petitioner was told of the accusations against him, but the accuser's identity was withheld. Mr. Stout gave petitioner the choice of resigning his position or taking annual leave for the duration of a formal investigation. Petitioner refused to resign. Mr. Stout instructed petitioner to tell no one that he had been asked to take leave or that he would be the subject of an investigation. When petitioner left this meeting he promptly told his fellow youth counselors that the had been suspended. For this petitioner received a written reprimand dated June 7, 1977. Respondent's exhibit No. 6. Petitioner subsequently availed himself of grievance procedures to raise the question whether he should have been permitted to take administrative leave instead of annual leave; and it was decided that he was entitled to take administrative leave. On June 8, 1977, Earl Stout wrote petitioner a letter which began "On June 1, you were advised by me that effective June 2, you were being suspended for insubordinate acts . . . ." This letter was sent to petitioner by certified mail. Mr. Stout testified without contradiction that blanket authority had been delegated to him to suspend employees under him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the suspension be upheld. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. J. Wayne Jennings, Esq. 2871 Forth-Fifth Street Gifford, Florida 32960 Mr. K.C. Collette, Esquire Forum 3, Suite 800 1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
Findings Of Fact The Petitioner, Claude A. White, is a black man employed by the Department of Health and Rehabilitative Services, the Respondent ("Department"), as a Detention Care Worker II at the Department's Juvenile Justice Center, a facility where the Department keeps juveniles under involuntary detention. The Petitioner has been so employed for approximately 17 years. The Respondent is an agency of the State of Florida and an employer within the meaning of Chapter 760, Florida Statutes. At all times pertinent hereto, it has been the employer of the Petitioner, Claude A. White. In approximately December, 1989, the Petitioner became involved in an altercation with a "client " or "inmate" of the detention center during his duty in the dining hall at lunchtime. Because a client was not obeying rules and policies, the Petitioner began escorting the client to his dormitory room. While they were walking down the hall, an argument or altercation ensued between the client and the Petitioner. The Petitioner maintains that the client, R.H., swung around toward him to face him and the Petitioner then put his hands up to protect his face, accidentally striking the client on the cheek as he was doing so. The Petitioner's supervisor, Mr. Barrett, maintains that he observed the Petitioner strike R.H., the inmate, with his fist. An investigation ensued by the Department and the Petitioner's supervisory personnel with the result that on January 19, 1990, the Petitioner was terminated for striking the child in question, as an incident of child abuse. The Petitioner filed an action with the Public Employees Relations Commission seeking to be reinstated in his employment position and to receive back pay and all due benefits. Ultimately, the Petitioner prevailed in that case and was reinstated on July 21, 1990 to his employment position, with award of back pay. The Petitioner alleges that in 1989, he sought a promotion to a supervisory position and was not promoted to that position but, rather, another person was promoted to it. The Petitioner then apparently filed a discrimination complaint with the Florida Commission on Human Relations and now alleges that he was retaliated against for filing that claim by the fact of and the manner in which he was terminated as a result of the child abuse incident allegedly occurring on December 29, 1989, for which he was terminated on January 19, 1990. The Petitioner also alleges that since his termination and reinstatement, he applied for another supervisory position, but that a white employee was promoted to that position. The Petitioner also contends that he overheard Mr. Barrett, his supervisor, tell Mr. Voldheim, in Mr. Barrett's office, that Mr. Voldheim had to find a basis to "terminate that nigger", meaning the Petitioner. The Petitioner also maintains that Mr. Barrett had written a note to Mr. Rivenbark, his superintendent, stating "there are too many niggers working here...we are going to change that...". Henry Bennett, a co-worker with the Petitioner who has known the Petitioner for approximately ten years, testified. The Petitioner had maintained that Mr. Bennett had told him of the memo or note allegedly written by the supervisor, Mr. Barrett, referencing "too many niggers" employed at the facility. In fact, Mr. Bennett testified that he had never told the Petitioner of any such memo and had never heard Mr. Barrett use the racial epithet "nigger". In fact, Mr. Bennett said he had never seen any memoranda whatever referencing race at all, including the use of that term. Mr. Bennett would have been incensed had he seen the use of such a term by the supervisor, Mr. Barrett, because he is black also, however Mr. Bennett saw no such reference. Mr. Barrett, in his own testimony, also, denied ever using the word "nigger", either verbally or in writing. Mr. Barrett's testimony establishes that during a recent alleged child abuse claim by one of the detention center inmates against the Petitioner, Mr. Barrett, in fact, believing that the Petitioner was not guilty, let him continue working without even temporarily suspending him, as is the normal practice. This fact tends to show that Mr. Barrett is not biased against the Petitioner and is not seeking an opportunity to retaliate against the Petitioner for the Petitioner's past civil rights activism on the job, which he admits and for his past filing of discrimination claims. Mr. Don Bell, the personnel director for HRS District I and the custodian of the employee records for the respondent agency, testified. He illustrated a comparison between March, 1989 through March, 1992, covering the time periods at issue in this case, showing the black versus white racial ratios, by position, for employees at the detention center. All positions, both that of superintendent and assistant superintendent, including various other supervisory positions, were thus shown to be occupied by more blacks than whites. In fact, the black/white ratio of employment positions at the facility presently is 19 blacks and 11 whites. Formerly, there were as many as 27 blacks and 3 whites. The increase in white employees and corresponding decrease in black employees was not shown to be other than a natural occurrence through such things as, for example, transfers, voluntary terminations of employment, or even involuntary terminations. The change in the number of black employees was not shown to be the result of any intent or practice of discrimination exercised by the Respondent employer, however and the number still shows that a majority of blacks hold positions at the detention center. Mr. Barrett established that the reason the Petitioner was not promoted to the supervisory position of which he complained was not on account of his race, not because of any effort to retaliate against him for his civil rights activism on the job or his past filing of claims against the employer, but rather was due to his record of inadequate behavior on the job, and that poor conduct was the reason he was denied the promotion. Mr. Barrett's testimony, concerning his not having used the term "nigger", in writing or verbally, was corroborated by that of Mr. Bennett, a black employee, who the Petitioner testified told him of the alleged memo where Mr. Barrett was supposed to have indicated that there were too many "niggers" employed at the facility. Mr. Barrett's and Mr. Bennett's testimony is accepted, as is that of Don Bell, the personnel director. The Petitioner's testimony is not credited, as it is not judged credible when compared to that of Mr. Bennett, Mr. Barrett and Mr. Bell. Mr. Bennett's testimony particularly contradicts that of the Petitioner, and there was absolutely no motive to lie, on the part of Mr. Bennett, demonstrated in the evidence of record. The Petitioner has demonstrated that he had to borrow money during the time he was out of work, after he was dismissed for striking the minor inmate, and that he has never been recompensed for the interest he paid on that borrowed money, that he was embarrassed as a result of the firing incident and has missed chances at promotion. However, based upon the testimony of the above-named witnesses, the Hearing Officer having weighed the candor and credibility of all witnesses in reaching that decision, it has not been established that the Petitioner was not promoted due to any discriminatory intent on account of his race nor on account of retaliation for his having filed past claims against his employer. It has not been shown that the termination of the Petitioner, with regard to the "child striking" incident, was levied against the Petitioner by the Respondent in retaliation for any past claims or past civil rights activism or other dispute with the employer. Although the Petitioner demonstrated that he failed to get the supervisory position and established that a white man was promoted to that position, who had been working for the employer for a shorter period of time, it was not shown that the hiring of the white person was done for any discriminatory motive. In view of the fact that at all times pertinent to this proceeding, the Respondent has employed significantly larger numbers of black employees than white employees across most of its position categories, the mere fact that a white person was promoted to the supervisory position in question instead of the Petitioner does not establish a prima facie case of discrimination. Even if it had, the Respondent established a legitimate business reason for the failure to promote the Petitioner, in that the Petitioner's attitude and conduct was not sufficiently satisfactory to justify his promotion to a supervisory position like that in question. Further, the testimony of Mr. Bennett and Mr. Barrett established that there was no ongoing policy or motive on the part of Mr. Barrett or other supervisory personnel to retaliate against the Petitioner for his past activist attitude and conduct in the work place nor for his past filing of claims of discrimination against the employer. In fact, the testimony of Mr. Bennett shows that the Petitioner was simply not telling the truth about the alleged written memo concerning the so- called issue of "too many niggers" being employed at the facility. An employee's attitude and conduct on the job are an important part of his job performance and have a direct and important bearing on whether that employee is adequately performing his job. If one employee, even assuming they were equally qualified (which was not established by the Petitioner) has a record of improper behavior and attitude on the job and the other employee is promoted to a position at issue, the employee with the poorer behavior or conduct record cannot, thus, show discriminatory intent or motive even if the employee promoted happened to be white because such is a legitimate business reason not to promote the employee situated like the Petitioner. Moreover, although the employee, Mr. Kreitzer, who was promoted instead of the Petitioner, is white and had been there only a short period of time (or something over six months) whereas the Petitioner had been employed for 17 years, the Petitioner did not establish that the two employees, he and Mr. Kreitzer, were similarly situated because he did not establish that their qualifications were equal or that he was better qualified than Mr. Kreitzer, other than in time of service, which is only one criteria in considering qualifications. In summary, the Petitioner did not demonstrate that his earlier termination and his failure to be promoted to the supervisory position in question was due to discriminatory reasons. He has not shown that he was accorded disparate discriminatory treatment, as opposed to white persons similarly situated, because although the employee who got the promotion in question was white, it was not shown that the Petitioner and that employee were equally qualified or that the Petitioner was better qualified than the white person who was promoted and thus that they were similarly situated. Thus, a prima facie case has not even been established. The Respondent demonstrated that there was no retaliatory intent with regard to the "child striking incident" because a later incident occurred when the Petitioner could have been accused of child abuse because of an altercation with a minor inmate, and Mr. Barrett allowed the Petitioner to continue working when he could have suspended him, at least temporarily, during an investigation of the incident. This shows a lack of retaliatory motive. Moreover, with regard to the termination incident, the Petitioner did not establish that white employees who were involved in similar altercations with inmates and accused of child abuse had not been terminated. Thus, no disparate treatment has been demonstrated.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore, RECOMMENDED that a Final Order be entered holding that no discriminatory employment action occurred and that the Petition be dismissed in its entirety and that the motion for fees and costs be denied. DONE AND ENTERED this 29th day of September, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 29th day of September, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7256 Petitioner's Proposed Findings of Fact 1-5. Accepted, but not in themselves materially dispositive. 6. Rejected, as contrary to the preponderant weight of the evidence. 7-9. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as not in accordance with the preponderant weight of the evidence. 12-16. Accepted, but not in themselves dispositive of the material issues presented. Rejected, as contrary to the preponderant weight of the evidence. Rejected, as not supported by competent, substantial evidence of a preponderant nature. Respondent's Proposed Findings of Fact 1-10. Accepted. Rejected, as subordinate to the Hearing Officer's findings of facts on this subject matter. Accepted. Accepted. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Gregory P. Farrar, Esq. 109 N. Palafox Street Pensacola, FL 32501 Rodney M. Johnson, Esq. District Legal Counsel Department of HRS P.O. Box 8420 Pensacola, FL 32505-8420
The Issue The issue for determination in this case is whether Respondent violated Chapter 760, Florida Statutes, as alleged, by its refusal to allow Petitioner to rescind a resignation.
Findings Of Fact Ardie Collins, a Black female, lives in Rockledge, Florida, and is currently self-employed as a beauty salon owner. She began working for the State of Florida in 1973, as a salon inspector with the Cosmetology Board. She maintained her title of investigator and continued employment after reorganization with the Department of Occupational and Professional Regulation and the Department of Professional Regulation (DPR), as the agency is now known. During the relevant period Ms. Collins worked out of the DPR Regional Office in Orlando. In August 1982, Ms. Collins was terminated by DPR. The case went to arbitration, and by order of the arbitrator dated December 17, 1982, she was reinstated with full back pay. She reported back to work on February 10, 1983. In January 1983, before she reported back to work Ms. Collins went to see the AFSME union representative, Eric Tait, in Cocoa. The union had represented her in the 1982 proceeding and Tait had assisted the union. In that January meeting, two letters were drafted, later typed by a clerk and signed by Ms. Collins. These letters were characterized by both Ms. Collins and Eric Tait as "intent to resign" and a letter of resignation. The "intent to resign" is dated, in error, January 12, 1982, and is addressed to Howard Kirkland, Personnel Officer. It provides, This is to inform you that it is my intention to submit my resignation from State Employment, effective June 6, 1983. This resignation is now held by Eric D. Tait, AFSME President, Local 3040. (Petitioner's Exhibit #2) The second letter is dated June 6, 1983, is also addressed to Howard Kirkland, and provides: Kindly accept this as my resignation as Investigator with the Department of Professional Regulation effective June 6, 1983. The Department of Professional Regulation has informed me that as of June 6, 1983 I will have completed 10 years creditable service in the Florida Retirement System. (Petitioner's Exhibit #11) The first letter was mailed to DPR in Tallahassee and the second was held by Eric Tait. The January 12th letter was stamped received in the DPR Personnel office on January 24, 1983. Howard Kirkland took this letter to be a resignation. He discussed it with the Division Director and with the Assistant Secretary and was authorized to accept the resignation. He then sent a letter to Ardie Collins, dated January 25, 1983, stating: Please be advised that we have accepted your resignation from employment with this agency effective June 6, 1983. (Petitioner's Exhibit # 3) Later, on January 31, 1983, in response to a contact from Eric Tait, James Kirkland sent a letter to Ms. Collins explaining that, if necessary, her date of resignation would be extended to insure that she had the necessary ten years of creditable service. DPR commenced advertisement and recruitment to fill the anticipated vacancy. Sometime in early May 1983, Eric Tait mailed the second letter dated June 6, 1983. The letter was stamped received in the DPR Office of Personnel on May 5, 1983. On May 6, 1983, Ms. Collins wrote to Howard Kirkland informing him: Notice is hereby given that proposed or intended resignation is cancelled until further notice. (Petitioner's Exhibit #7) Between January and May, DPR received no word from Ms. Collins or her representative about her resignation. Kirkland again discussed the matter with his supervisor and responded by letter to Ms. Collins dated May 25, 1983, that her voluntary resignation had already been accepted in good faith. (Petitioner's Exhibit #8) There is no written policy or rule at DPR regarding the rescinding of resignations. The agency follows the general personnel management principle that until the resignation is accepted, withdrawal is negotiable; after acceptance, withdrawal is solely within management prerogative. Generally it is considered bad personnel management to permit an employee to rescind a resignation once it is accepted, and in particular, once the position is advertised. Ms. Collins claims that DPR has allowed other employees, white males and females, and black males, to rescind resignations. In his personal knowledge, and after reviewing DPR personnel files, James Kirkland found one individual who was allowed to rescind a resignation - a clerk, who had given probably only an oral notice and shortly later asked to withdraw it. In that case, nothing had been done to act on the resignation. The individuals named by Ms. Collins: Robert Fleming, Edward Bludworth, and Will Merrill, were not allowed to rescind resignations. Rather, they each reapplied after leaving DPR. Each was hired again on probationary status. Ms. Collins claims that she reapplied by mail to DPR sometime in late June 1983. However, neither the Tallahassee office nor the Orlando regional office have a record of her application. If she had reapplied for a vacant position, she would have been considered with the rest of the applicants. DPR has received resignations from employees in a variety of forms and in various ways. Sometimes resignations are submitted directly to an immediate supervisor; other times they are directed to the personnel officer. It is not uncommon to have a resignation expressed as an "intent to resign". DPR acted in good faith and consistent with established personnel practices when it accepted Ms. Collins' letter dated January 12th as a resignation and when it refused to allow her to rescind that resignation when requested some four months later. DPR determined that Ms. Collins had obtained her ten years of service as of June 6, 1983. This was the only condition regarding her date of resignation of which it was on notice. The agency received both the "intent to resign" and the "resignation" letter prior to receiving Ms. Collins' "cancellation". The agency simply ratified its acceptance in its response to Ms. Collins.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a black male, was hired by Respondent on February 11, 1985. Petitioner was employed as a wet mill laborer at Respondent's Florida Plant located in Bradford County, Florida. Petitioner's primary duties consisted of washing spirals and performing general housekeeping. Petitioner, like all newly hired employees, was hired subject to a ninety (90) day probationary period. Petitioner was provided an orientation period, given training, and was informed verbally during his employment about the importance of good job performance during his probation period. Petitioner was terminated by Respondent on April 1, 1985 during Petitioner's probationary period. Petitioner reported to four (4) first-line supervisors during his short period of employment which was the result of Petitioner being primarily on the day shift while the supervisors worked on a rotating shift basis. Petitioner's supervisors and the dates under each supervisor are as follows: C. A. Baldree during the weeks ending February 17, 1985 and March 17, 1985; J. W. Sherrill during the weeks ending February 24, 1985 and March 31, 1985; D. W. Baldree during the weeks ending March 3, 1985 and March 24, 1985 and; W. J. Frick during the week ending March 10, 1985. Although Petitioner's testimony conflicted with all three (3) first- line supervisors who testified concerning the fact surrounding the incidents which eventually gave rise to Petitioner's termination, the more credible evidence shows: During the week ending March 17, 1985, Supervisor C. A. Baldree instructed Petitioner and another employee to clean handrails in a specific area where a management visitation group would be observing. Petitioner proceeded to clean handrails in an area other than the one specified by the supervisor and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner became abusive toward the supervisor and argued that he was following instructions. The Area Supervisor Gilberto Valazquez observed the incident and tried to resolve the matter with a meeting between Petitioner and Supervisor C. A. Baldree but Petitioner declined, commenting that he was afraid of losing his job. During the week ending March 24, 1985, Supervisor D. W. Baldree assigned Petitioner and another employee to wash some spirals in a specific area where visiting management would be observing. Again, Petitioner took it upon himself to clean spirals in a different area and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner responded that he felt that where he had started was as good as any place to start, notwithstanding that Petitioner was aware of the reason for starting where the supervisor had instructed him to start cleaning. Also, during the week ending March 24, 1985, Supervisor D. W. Baldree repeatedly instructed Petitioner concerning the replacement of hoses and cutters that may be disconnected during the washing of the spirals. However, on several occasions Petitioner failed to replace the hoses and cutters that were disconnected during the washing process as instructed. During the week ending March 31, 1985, Supervisor J. W. Sherrill instructed Petitioner to clean out a tail box that was plugged with sand and adversely affecting production. When the supervisor returned in approximately 20-30 minutes he found the tail box still plugged. When the supervisor attempted to inform Petitioner of his failure to unplug the tail box, Petitioner became argumentative and pointed out that he had unplugged the tail box and that it was only water from a clear water hose that was dripping, notwithstanding the fact that a large amount of sand had accumulated and that muddy water rather than clean water was running from the tail box. At the end of the work week ending March 31, 1985, Supervisor Valazquez met with Petitioner and Supervisor Sherrill concerning an alleged promise made by Supervisor Sherrill to allow Petitioner to leave work early which Petitioner felt Supervisor Sherrill had reneged on, notwithstanding that supervisor had explained to Petitioner why he could not leave early. During the course of the discussion, Petitioner became very belligerent towards Supervisor Sherrill which prompted Supervisor Valazquez to review Petitioner's overall employment record to determine whether Petitioner should continue in the employment of Respondent. Supervisor Valazquez, in investigating Petitioner's overall performance, discussed Petitioner's employment record with all of Petitioner's first-line supervisors and also asked each of them for written comments. Based upon his own observations of Petitioner's job performance and his attitude toward supervision, the supervisors' comments, and the fact that as a short service probationary employee Petitioner was making no effort to improve his job performance or his attitude toward supervision, Supervisor Valazquez felt that Petitioner may not be salvageable as an employee and questioned Petitioner's continued employment with Respondent. Supervisor Valazquez reviewed Petitioner's performance record with his superiors and the site's Employee Relations Supervisor L. H. Wood, who was the site's Affirmative Action Officer. Wood found no evidence of discriminatory motivation. Valazquez's superiors concurred in the discharge recommendation. On April 1, 1985, Valazquez met with Petitioner to discuss the potential discharge action but approached the meeting with the view that should Petitioner show a change in his attitude in regard to his job performance and in accepting supervision, then Valazquez would change his mind and give the Petitioner another chance. When Valazquez attempted to review Petitioner's poor job performance and attitude problems with Petitioner, Petitioner again became very defensive and argumentative. As a result of Petitioner's attitude in this meeting, Valazquez proceeded with the discharge action that had been approved by management. Although the record reflects that Petitioner did not receive any written or verbal warnings from any of his shift- supervisors that his performance was so unsatisfactory that if improvement was not made he would be terminated, Petitioner was made aware, by his shift-supervisors and area supervisor that poor job performance was a basis for termination, particularly during his probationary period. There was at least one (1) occasion, the incident which occurred during the week ending February 17, 1985 with C. A. Baldree, where Petitioner commented about the possibility of losing his job and Valazquez advised him that he would not lose his job so long as he performed properly and showed respect for his supervisors. On three (3) other occasions, his supervisors made the Petitioner aware of his poor job performance and poor attitude. Petitioner was not advised of any written memorandums concerning his job performance or possible termination had been prepared until April 1, 1985, the date Petitioner had a conference with Valazquez and, due to his defensive and argumentative attitude, was not allowed further opportunity to improve his job performance or his attitude and was terminated. No formal employee/supervisor conferences were held with Petitioner until April 1, 985, the date Petitioner was terminated. On the same date that Petitioner was hired, Robert McGee, a white male, was hired by Respondent as a laborer. McGee was assigned to a field laborer position, reporting almost exclusively to one (1) supervisor, Doris Cole. Field laborers work in an area separate and apart from the wet mill and report to different first-line supervisors than the wet mill laborers. On April 25, 1985, within McGee's probationary period, McGee received a formal employee/supervisor conference concerning his unsatisfactory job performance and his damaging of company equipment, warned that definite improvement in his job performance was expected or probation or possibly termination could be expected. On July 3, 1985, McGee received another employee/supervisor conference which involved McGee, Doris Cole and Valazquez and McGee was informed that his performance had improved slightly but significant improvement was expected in the next two (2) weeks or he could expect termination. McGee was placed on probation at this time. On August 2, 1985, another formal employee/supervisor conference was held with McGee wherein it was noted that McGee had demonstrated that- he could perform at a satisfactory level but that continued improvement was expected and that McGee would remain on probation until October 3, 1985. The final employee/supervisor conference record dated October 4, 1985 concluded that McGee could not consistently perform satisfactorily, therefore termination was recommended. McGee did not attend this conference but resigned by telephone on that date in lieu of being terminated. McGee reviewed each of the employee/supervisor conference reports with the exception of the one on October 4, 1985 and each of the reports were included in his personnel file, including the one for October 4, 1985. McGee was a marginal employee who tried to perform his job properly and was receptive to constructive criticism; however, he was unable to improve his performance to a point that was acceptable to Respondent's management. McGee worked on the wet mill for brief periods without incident. McGee had no history of refusing to follow instructions of his supervisor or of being argumentative with the supervisors. The Respondent had no stated policy that required written warnings of poor job performance to employees by their respective supervisors. It was the general policy of the -shift supervisors that during the probationary period, especially during the early part of the probationary period, warnings of poor job performance were given verbally to the employee and that a formal employee/supervisor conference was reserved for more severe matters such as violation of safety rules. However, the manner in which a supervisor handled a particular warning of poor job performance during an employee's probationary period was left to the discretion of the individual supervisor. The record reflects only two (2) other incidents where an employee/supervisor conference was held with an employee during the employee's initial probationary period: Kathy D. Sanders, a black female, on June 5, 1985 and; Bernard Brown, a black male, on March 27, 1984. C. A. Baldree, D. W. Baldree and J. W. Sherrill, three (3) of Petitioner's shift supervisors, were all white as were the supervisors of McGee. Respondent has, and had during Petitioner's employment, an aggressive Affirmative Action program which applied to all aspects of the employment environment. Respondent has in the past received national and local recognition for its Affirmative Action efforts. Respondent's employment of minorities has exceeded the availability of minorities in the labor supply area. Although the local availability of minorities was fifteen percent (15 percent), twenty to twenty-one percent (20-21 percent) of employees at the site were minorities. Of the forty three (43) individuals hired, closely related in time to Petitioner's dates of employment, ten (10) or twenty-three percent (23 percent) were black. Although at the time of Petitioner's initial employment, Respondent had some misgivings about Petitioner's failure to disclose certain information on his employment application, Respondent decided to hire Petitioner anyway because of its Affirmative Action efforts and Petitioner's tests results. The clear weight of the evidence shows that Respondent's reasons for discharging Petitioner was his poor job performance and his argumentative and abusive behavior towards the supervisors when instructed to correct a situation where Petitioner had failed to follow instructions, either intentionally or because he had misunderstood the instructions. The clear weight of the evidence establishes that Petitioner was treated in a dissimilar manner from the white employee, but the disparity of treatment resulted from a dissimilar attitude toward job performance and supervision rather than racial motivation. Area Supervisor Valazquez, the supervisor primarily involved in the decision to discharge Petitioner, is Hispanic.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Milton Baker, was not discharged due to his race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed. Respectfully submitted and entered this 16th day of March, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3623 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-3. Adopted in Finding of Fact 1. The first sentence adopted in Finding of Fact 4. The second sentence rejected as immaterial and irrelevant. Adopted in Finding of Fact 3. 6.(a-c) Adopted in Finding of Fact 5 (a-d) but clarified. Adopted in Finding of Fact 10 but clarified. Adopted in Findings of Fact 6 through 9 and 27. Adopted in Finding of Fact 12. Rejected as not supported by substantial competent in the record. Adopted in Finding of Fact 12. Adopted in Findings of Fact 2, 13, 14 and 17. Adopted in Findings of Fact 15 and 18. Adopted in Findings of Fact 16 and 18. Adopted in Finding of Fact 17. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 22. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Rejected as immaterial and irrelevant. Respondent had no Finding of Fact 3. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5(a) but modified. Adopted in Finding of Fact 5(b) but modified. Adopted in Finding of Fact 5(c) but modified. Adopted in Finding of Fact 5(d) but modified. Adopted in Finding of Fact 6 but modified. Adopted in Finding of Fact 7 but modified. Adopted in Finding of Fact 8 but modified. Adopted in Finding of Fact 9. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Facts 17 and 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Findings of Fact 10, 11 and 12. Adopted in Findings of Fact 14, 15 and 16. Adopted in Finding of Fact 21. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25 but clarified. COPIES FURNISHED: John F. MacLennan, Esquire Kattman, Eshelman & MacLennan 1920 San Marco Boulevard Jacksonville, Florida 32207 Jerry H. Brenner, Esquire Legal Department E. I. du Point de Nemours and Company 100 West 10th Street Wilmington, DE 19898 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent, American Pioneer Title Insurance Company, discriminated against Petitioner, Dennise Raines, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is an African-American female who worked for Respondent from 1999 until October 11, 2002, when her employment was terminated. Respondent owns and operates a title insurance company and is subject to Chapter 760, Florida Statutes (2002). Petitioner was first employed as a data entry operator. In January 2001, she was promoted to a research position and received a pay increase. After an initial period of positive work performance and interaction with co-employees, Petitioner's attitude changed. Her work and relationships with co-workers deteriorated. As a result, in July 2002, Ms. Kathy Bowles, who had hired and supervised Petitioner and who had recommended Petitioner's advancement, demoted Petitioner due to Petitioner's negative behavior toward co-employees which included addressing them with profanity and demonstrated disrespect toward her supervisors. Although Petitioner was demoted, her pay remained the same. The July 2002 demotion is memorialized by an Employee Performance Enhancement Plan (Respondent's Exhibit 6). Subsequent to her demotion, Petitioner requested that her work hours be adjusted to allow her to attend classes. This request was approved, and Petitioner's work hours were changed. Thereafter, Petitioner's attendance and punctuality suffered. In September 2002, Petitioner was absent or late more than one-half of the work days; of these days, there were seven instances of tardiness. Petitioner was counseled regarding tardiness on September 27, 2002. Similarly-situated Caucasian employees, Mss. Beverly Dease and Linda Shapiro, had only been late for work one time between them for the entire year. Petitioner was late for work twice during the first five work days of October. Following the second tardiness, on October 7, 2002, Ms. Bowles counseled Petitioner that an additional tardiness would result in her being discharged. On the third work day following counseling, Petitioner was absent from work. Following this absence, Petitioner was discharged for her attitude, tardiness, and absenteeism. She was replaced by a Hispanic female. Respondent has an extensive, well-conceived, Equal Employment Opportunity policy which prohibits unlawful discrimination. This policy is posted in the workplace and is distributed to every employee as a part of the Employee Handbook at the time he or she is employed. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Although she acknowledged awareness of the policy, Petitioner did not avail herself of it. Ms. Bowles, Petitioner's supervisor, hired, promoted and then, demoted Petitioner. No evidence received supports Petitioner's contention that Ms. Bowles or any other employee of Respondent unlawfully discriminated against Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 15th day of September, 2005, 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 15th day of September, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Dennise Raines 1165 West 16th Street, Apartment B Sanford, Florida 32771 Andrew G. Wedmore, Esquire Jill Schwartz & Associates 180 North Park Avenue, Suite 200 Winter Park, Florida 32789-7401 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Respondent engaged in an unlawful employment practice contrary to Chapter 760, Florida Statutes, by discharging the Petitioner?
Findings Of Fact The Petitioner, Loreal Bailey, is an African-American woman who was employed as a cashier by the Respondent. One of the tasks that the cashiers were required to do was make a count of their registers at the end of their shift and "drop" the receipts, the cash, and their count of their cash drawer into a safe. The cashier did not have access to the safe. Cashiers were not supposed to let any other employee handle their deposit. On or about January 7, 2003, the Petitioner was on duty, and, at the close of her shift, she was being assisted in closing out her tour by another employee, who helped her count her money. The other employee, Hattie Killingsworth, an African-American woman, dropped Petitioner's package containing the receipts, the cash, and her count of the cash drawer into the safe. A subsequent accounting of the deposits revealed that $400 was missing from the Petitioner's "drop." The Respondent discharged the Petitioner shortly after this incident on January 13, 2003. Killingsworth was also terminated at this time. Both women were terminated for failing to follow company procedures that prohibited an employee from handling another employee's money. The matter was reported to the local sheriff's office; however, no charges were brought. Testimony by the Respondent's managers revealed that the money was most probably taken by a management employee of the company who was video-taped shutting off the security cameras prior to a period when money went missing. Money was missing on more than one occasion. It was surmised by management that this employee had found a way to access the safe. When this employee was terminated, the losses stopped. The general manager, Richard Eschenbacher, testified that the policy of not letting an employee touch another employee's money was not only to protect the employees, but to permit employees to testify about chain of custody of moneys if there were problems. The actions of Killingsworth and Bailey prevented Bailey from being able to testify that she had counted and deposited the money without interference from anyone else. Such testimony is helpful in prosecutions when a thief is caught, and a conviction without such chain of custody evidence is difficult to obtain. The Petitioner presented no evidence showing that the grounds presented by the Respondent for her discharge were pretextual.
Recommendation Based upon the foregoing findings of law and conclusions of law, it is recommended that the Florida Commission on Human Relations enter its final order dismissing the Petitioner's complaint. DONE AND ENTERED this 13th day of July, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 13th day of July, 2004. COPIES FURNISHED: Loreal Bailey 621 Smith Road Monticello, Florida 32344 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lorraine Maass Hultman, Esquire Kunkel, Miller & Hament Orange Professional Centre 235 North Orange Avenue, Suite 200 Sarasota, Florida 34236 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Respondent YWCA is a nonprofit corporation that sponsors educational, social, and recreational programs. The YWCA's purpose states that it is a "movement rooted in the Christian faith"; however, expressed belief in Christianity is not required for membership in the YWCA or for employment by the YWCA. Its membership is comprised of adult women seventeen years of age and older. The personnel policy of the YWCA expressly states that: "Equal employment opportunity and affirmative action will be applied in recruitment, hiring, compensation, fringe benefits, staff development, and training, promotion, and any other condition of employment regardless of race, color, religion, sex, handicap, age, national origin, or any other nonperformance factors." (Emphasis added.) Regarding termination, the personnel policy of the YWCA expressly states that: "Reasons for staff termination must be carefully documented. They should be based upon objective performance appraisals, which in turn are based upon job descriptions, work plans, and performance standards. Except in cases of reorganization/retrenchment or termination for cause, a probationary period for work improvement must be provided, followed by another performance appraisal." The YWCA of West Palm Beach operates three facilities: Central and Residence, the Mamie Adair Branch, and the Recreation Center. The Mamie Adair Branch primarily serves the black community in West Palm Beach and includes a day-care facility. The Petitioner, Davis, was hired as the Branch Executive of the Mamie Adair Branch of the YWCA, effective July 21, 1980, at a starting salary of $12,000.00. The Petitioner was given copies of the YWCA's personnel policy, affirmative action plan, and job description. She was not given notice of particular standards of behavior to which she was required to conform away from the job. As branch Executive she was supervised by the Executive Director, Jo Prout. The Petitioner successfully completed her initial 90-day probationary period, and her annual salary was increased by five percent to $12,600.00. In October 1981, however, the Petitioner received her annual evaluation and was again placed on three months probations due primarily to an unsatisfactory working relationship with the Branch Committee. The Petitioner had a bad attitude and was antagonistic. The Petitioner became pregnant but did not immediately disclose the fact of her pregnancy. In approximately December, 1981, the Petitioner confided to a coworker that she was pregnant and the coworker, in turn, told the YWCA's Executive Director, Jo Prout, that the Petitioner was pregnant. The YWCA's Executive Director was concerned that the Petitioner's relationship with the Branch Committee would be severely adversely affected if the Committee found out the Petitioner was pregnant and unmarried. Because of this concern, the Executive Director removed the Petitioner from her position as Branch Executive, effective December 31, 1981. The Petitioner would not have been removed from her position on December 31, 1981, but for the fact that she was pregnant and unmarried. Prior to removing the Petitioner from her position as Branch Executive, the Executive Director did not attempt less drastic alternatives such as asking the Petitioner not to discuss or disclose her marital status or asking the Petitioner to take a leave of absence. Prior to her removal, the Petitioner had not discussed the fact that she was pregnant and unmarried with members of the Branch Committee or with the YWCA membership in general. At no time had the Petitioner advocated unwed motherhood as an alternative life- style or otherwise advocated or espoused principles contrary to her understanding of Christianity. In the past, certain employees of the YWCA whose on-the-job behavior was contrary to Christian principles received job discipline but were not removed from their positions. A desk clerk at the YWCA's residence, for example, who was found to have stolen property from residence guests was not discharged. The removal of the Petitioner from her position by the YWCA because she was pregnant and unmarried was not justified by the business necessity rule because: A requirement to conduct one's life, including one's off-the-job activities, according to Christian principles, was not disclosed to the Petitioner or to other employees; The YWCA did not discipline or discharge other employees for conduct which conflicted with the YWCA's alleged requirement to conduct one's life by Christian principles; and The YWCA did not show that a requirement of all employees to conduct their lives by Christian principles has a manifest relationship to the employment in question. Then the Petitioner was removed from the Branch Executive position, she was transferred to the position of center consultant for gymnastics. The position of the center consultant for gymnastics to which the Petitioner was transferred was a demotion in that the Petitioner went from an administrative to a non-administrative position. The transfer also changed the Petitioner's employment status from full-time employee to part-time employee with a 25 percent decrease in earned income and a lunch "hour" reduced to 30 minutes. The petitioner's new position as center consultant was a temporary one designated to last no longer than five months. Petitioner was removed from probationary status as a result of the transfer. The position of center consultant to which the Petitioner was transferred was not a legitimate position. The position did not exist prior to December 31, 1981, the date the Petitioner was transferred. No job description was ever written for this position, despite the fact that the YWCA personnel policy required job descriptions. The Petitioner was verbally assigned job tasks inconsistent with her title of center consultant, including cleaning toilets at the gymnastics center. The position was eliminated on February 16, 1982, approximately six weeks after it was created, allegedly due to financial streamlining. The YWCA committed an unlawful employment act against the Petitioner, discriminating against her on the basis of sex and marital status by removing her from her position as Branch Executive because she was pregnant and unmarried. Moreover, this transfer was not justified by business necessity. Because the YWCA committed an unlawful employment act against the Petitioner, the Petitioner could be entitled to be reinstated to her former position or to a comparable position and could also be entitled to recover lost wages and fringe benefits, plus interest thereon, from the date of the wrongful act, December 31, 1981, to November 31, 1982, the date she was hired by the Lutheran Ministries, set off by any interim earnings and reduced by the Petitioner's unemployment compensation benefits plus her reasonable attorney's fees and costs. Regarding reinstatement, the Petitioner has been and is now willing and able to be reinstated to her former position as Branch Executive or to a comparable administrative position. The employer's argument that the Petitioner is not entitled to reinstatement because she was an unsatisfactory employee is rejected for the following reasons: The employer's allegations that the Petitioner will not satisfactorily perform her job if reinstated are too speculative and any doubts about the Petitioner's entitlement to reinstatement should be resolved in favor of the victim of discrimination; and In the event that the Petitioner's job performance upon reinstatement is not satisfactory, the employer may avail itself of the procedures set forth in its personnel policy to improve the Petitioner's performance or discharge her for unsatisfactory job performance. However, reinstatement may not be feasible in this case due to the fact that another employee has been placed in the Petitioner's former position. If the Petitioner is not reinstated to a comparable administrative position, then she should be compensated by the award of six months front pay in lieu of reinstatement. The Petitioner is entitled to damages in the amount of $13,551, which represents a back pay award of $11,000 plus 10 percent interest, six months front pay in the amount of $6,000, minus $1,575 for salary paid from January 1, 1982 - February 16, 1982, including two weeks severance pay and $2,974 in unemployment compensation benefits. The Petitioner is also entitled to costs of $232.65 and attorneys fees totaling $5,000.
