The Issue Whether Petitioner, a member of a protected class, was denied training, subjected to unequal terms of employment and denied promotion to three jobs including the position of Lead Custodian with the Respondent in the Physical Plant Department in 1993, on the basis of his gender (male) and race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1993).
Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a custodian in the Physical Plant Department since July 1989 and during the relevant period of time including 1993 and 1994. Petitioner is a male African-American, and a member of a protected class. Petitioner applied for a promotion to three different positions at the college between August 26, 1993 and December 6, 1993. In late August, 1993, Petitioner applied for the part-time position of House Manager at the college theatre. Petitioner was not selected because his present work schedule would overlap the position at the theatre and his prior work experience was not relevant to the position. In addition, another candidate possessed better interpersonal and communication skills, and his education and work experience was more relevant to the position than the Petitioner's. In early October, 1993, Petitioner applied for the position of HVACR (heating, ventilation, air conditioning and refrigeration) apprentice. The position is a learning position which requires working with a lead mechanic. Part of the job requirement for the apprentice position was the ability to attend trade school in HVACR. During the employment interview Petitioner expressed reservations about attending the HVACR training because he was presently enrolled in night classes at Rollins College. In addition to Petitioner, two white males and a Hispanic male applied for the position. A Hispanic male was selected for the position who had better qualifications. Thereafter, the racial make-up of the HVACR Department consisted of two whites, one black and one Hispanic male. On October 14, 1993, three vacancies for the newly created position of Lead Custodian in the Physical Plant Department was advertised by Respondent. Petitioner was one of nine applicants for the position. The nine individuals who applied for the position of Lead Custodian consisted of four African-American males, three African-American females and two Caucasian females. Following the review of each persons application and file and a personal interview, two African-American males and one African-American female were selected for the positions. Petitioner was not recommended for one of the vacancies. The selection process was based on relevant work experience and work history, and was not based on improper or discriminatory race or gender considerations. Petitioner was not denied training based on his race or gender. Petitioner applied for and attended six seminars covering a variety of subjects over the last several years. Respondent's stated reasons for its promotion and training decisions were not proven to be pretextual.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 24th day of October, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner: Accepted in substance: paragraphs: none Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 1, 2, 3, 4, 5, 6. COPIES FURNISHED: Lea Ann Banks, Esquire BAKER & HOSTETLER P. O. Box 112 Orlando, Florida 32802 Mr. Ulysses B. Williams 1020 Polk Avenue Orlando, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue The issue to be resolved in this proceeding concerns whether the above-named Respondent discriminated against the Petitioner based upon her race, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Barbara Means, is an employee of the Department, occupying the position of "Accountant III." She has been employed with the Department since 1994. She applied for a promotion to a position of "Accountant IV" in October 2003. She competed for that position with other employees. The Petitioner was one of three finalists for the Accountant IV position. The other two finalists for the position were employees who had been hired by the Department in 1995 and 1997. One factor considered in the evaluation process for the promotion position was the various employees' most recent performance evaluations. The Petitioner had received lower overall performance evaluation scores than had the other two finalists. The three finalists, including the Petitioner, were interviewed by a panel of four supervisors, one of whom was Omar Arocho, the Petitioner's own supervisor. Mr. Arocho supervised both Petitioner Means and Ms Wells, one of the other finalists for the accountant position. The four interviewers asked each employee applicant the same ten skills questions and then recorded their responses, for comparison with standard acceptable answers to the questions. The employee performance during this skill interview was considered to be crucial to a determination of who was to be promoted to the subject position. The testimony of Mr. Arocho persuasively established that the Petitioner was excelled in these interviews by the two competing co-workers. This is shown in his testimony, in the recorded responses to the questions in evidence, and their comparison to the standard acceptable answers provided. The conclusion of the evaluation panel of four supervisors, according to Mr. Arocho's testimony which is accepted, was that the Petitioner and the other two applicants were qualified, but that the other two applicants were more qualified than the Petitioner. The Petitioner was not promoted to the position of Accountant IV and remains in the position of Accountant III with the Department. There was no substantial, persuasive evidence to show that the employment decision made by the panel of four supervisors, including supervisor Arocho, was based in whole or in part on any intentional discrimination or animus based upon the Petitioner's race.
Recommendation Having considered 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, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 1st day of November, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 1st day of November, 2004. COPIES FURNISHED: Barbara Means Post Office Box 1345 Newberry, Florida 32669 Mark Simpson, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concern whether the Petitioner's decedent, Barbara J. Taylor, was discriminated against in an employment decision (termination) by the Respondent based upon her gender and alleged disability.
Findings Of Fact The Petitioner, James Saemenes, is the Personal Representative of the Estate of Barbara J. Taylor. Barbara J. Taylor was the Petitioner's sister. Ms. Taylor, at times pertinent to the facts in this case, had been an employee of the Utilities Department of the City of Fort Walton Beach, working in the Utility Wastewater Treatment Facility Laboratory as Laboratory Manager. The Petitioner, Mr. Saemenes, did not participate in the hearing. The City of Fort Walton Beach provides public utilities to its citizens including wasterwater operations. Mr. John Hofstad is employed as the utilities director for the city, and oversees the city's wastewater operation. Mr. Hofstad was Ms. Taylor's supervisor at times pertinent to this case. The wastewater operation is responsible for collection and treatment of raw waste to suitable discharge standards. There are 13 individuals employed at the wastewater treatment facility. The positions consist of one plant supervisor, eight licensed wastewater treatment plant operators, one pre-treatment coordinator, two maintenance employees, and one laboratory manager. Ms. Taylor was the laboratory manager at times pertinent to this case and her immediate supervisor, Mr. Hofstad was responsible for evaluating her work and initiating any discipline against her, if necessary. Her duties included managing the day-to-day activities of the laboratory, collecting samples throughout the facility, analyzing samples, managing the quality assurance and quality control plan required by the State of Florida and associated daily paperwork. Her duties required effective cooperative interaction with other employees of the facility and the city on a daily basis. Over a substantial period of time, Mr. Hofstad received numerous complaints and expressions of concern from almost every employee regarding the appropriateness of Ms. Taylor's conduct while at work. Employees complained that she was intimidating and abrasive toward them. She demeaned fellow members of the staff based upon their educational background or their level of knowledge about the operations and their jobs. Mr. Hofstad counseled Ms. Taylor on a number of occasions regarding her co-workers' concerns. Mr. Hofstad witnessed Ms. Taylor harassing Mr. McDowell, the Pre-treatment Coordinator, while working in his office. Specifically, she physically placed an object in Mr. McDowell's pocket despite his previous request for her to refrain from distracting him. Mr. McDowell became visibly upset when Ms. Taylor thereafter made an obscene gesture towards him as she left the office area. Mr. Hofstad drafted a memorandum on December 6, 1996, pertaining to the aforementioned incident and provided a written disciplinary action form to Ms. Taylor because of it. Mr. Hofstad executed a personnel evaluation regarding Ms. Taylor on December 9, 1996. She received an unsatisfactory rating in the area of cooperation with fellow employees and team-work. Mr. Hofstad gave Ms. Taylor that rating due to numerous employee complaints indicating that Ms. Taylor had initiated confrontations. Thereafter on March 6, 1998, Mr. Hofstad drafted a memorandum regarding a confrontation which had occurred the day before between Ms. Taylor and Mr. James Whitley. Without authorization Ms. Taylor directed Mr. Whitley to stop conducting certain tests because they would interfere with her job. Ms. Taylor possessed no supervisory authority over Mr. Whitley. When Mr. Hofstad intervened in the situation Ms. Taylor spoke to him in a insubordinate loud and hostile fashion. She raised her voice at Mr. Hofstad and stated that he did not know how to do his job much like the other individuals employed by him. Mr. Hofstad considered her tone and manner to be inappropriate and insubordinate. He executed a Notice of Disciplinary Action based on Ms. Taylor's actions and demeanor and gave her a copy. Thereafter on or about May 14, 1998, Mr. Hofstad was again verbally assaulted by Ms. Taylor. She spoke in an enraged, loud, and abusive manner in the presence of several subordinate employees. Ms. Taylor stated that Mr. Hofstad had no control over the laboratory. Following this incident which he also considered insubordination, Mr. Hofstad spoke to the Public Works Director his superior, Mr. Mark Tate, regarding Ms. Taylor's conduct. Mr. Tate reviewed Ms. Taylor's disciplinary history and in conjunction with Mr. Hofstad determined that the best course of action, after having tried graduated discipline was to terminate her employment. Mr. Hofstad and Mr. Tate spoke with the Human Resources Department Director regarding Ms. Taylor's behavior and potential termination. The Director of Human Resources agreed that Ms. Taylor's termination was appropriate considering her history of progressive discipline and current misconduct amounting to repeated insubordination. Thus Ms. Taylor's employment was terminated. Her termination was not based upon her gender. In fact, she was replaced in her position with another female, Ms. Harriett Holloway. The current laboratory manager, Melissa Woodall, is a female. Mr. Hofstad never discouraged Ms. Taylor from filling out complaint forms during the course of her employment. In fact, he provided such forms to Ms. Taylor in the event that she had a complaint. Her termination was not related to any complaint filed by her, or for engaging in any other protected activity such as applying for vocation rehabilitation benefits or assistance. Further, her termination was not related to any health conditions she possessed. Mr. Hofstad at the time was unaware of any disability or health condition endured by Ms. Taylor. He did not perceive her as disabled. She was fully capable of performing the duties of her job in terms of her physical abilities and would have continued to be employed but for the misconduct referenced above. She never requested any accommodations for any disability or impairment in the workplace from Mr. Hofstad or others in a supervisory role. Neither Mr. Hofstad, nor any other witness, described any occasion where Ms. Taylor was harassed by operations staff. According to unrefuted evidence of record, Ms. Taylor was always the harasser of other employees. Moreover, when Ms. Taylor sought assistance from Mr. Hofstad, he promptly addressed her concerns in a reasonable, unbiased way. The Petitioner never testified in this proceeding.
Conclusions Petitioner: No Appearance Respondent: Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
Recommendation Having considered 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, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 31st day of July, 2007. COPIES FURNISHED: Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James P. Saemenes, Personal Representative 46 Higgins Road Brighton, Tennessee 38011-3602
The Issue Whether Respondent is guilty of an unlawful employment practice by failing to hire Petitioner on the basis of age or in retaliation.
Findings Of Fact On February 24, 1994 (amended March 10, 1994), Petitioner filed a Charge of Discrimination, based on age and retaliation, with the Florida Commission on Human Relations. That charge listed the most recent discrimination as October 18, 1993 and alleged that Petitioner had been rejected for a post in Panama City; that Respondent, through a Ms. Retherford, had denied Petitioner access to other applicants' records for ten days; and that Ms. Retherford, Ms. Jenkins, and Ms. Ciccarelli of Respondent's District 2, had made sure everyone in their District knew Petitioner's name and to avoid hiring him. To further specify his charges, Petitioner attached a December 16, 1993 memorandum from Ms. Radigan to Mr. Clary. (See below, Finding of Fact No. 56). The Charge of Discrimination then concluded, "the specific job for which I applied was set in Marianna and closed on 18 October; though I had been referred to that job by Karen Dalton, an HRS specialist at HRS headquarters, I never had a chance at that job." (P-2) By a "Determination: No Cause", dated March 20, 1995, the Commission advised Petitioner that he could file a Petition for Relief within thirty-five days, pursuant to Section 760.11 F.S. On April 22, 1995, Petitioner filed his Petition for Relief, which was referred to the Division of Administrative Hearings for a formal evidentiary hearing, pursuant to Section 120.57(1) F.S.. That timely Petition for Relief alleged both age and retaliation discrimination by Respondent's failure to hire Petitioner for a number of posts, none of which the Petition specifically named by position number or date. The retaliation allegation was based on Petitioner's "causing trouble," not due to his filing any prior formal complaints with the federal Equal Employment Opportunity Commission or Florida Commission on Human Relations or upon his participation in these types of litigation on behalf of anyone else. Although the subject matter jurisdiction of the Division of Administrative Hearings is bounded by the Charge of Discrimination, the Petition for Relief, and Chapter 760 F.S., the parties were permitted to present some historical information. Even so, the parties' presentation of evidence did not always clearly correlate Respondent's dated employment advertisements for named, numbered, or described positions to specific applications of Petitioner and/or specific interviews or hirings of other persons. Respondent agency demonstrated that as of October 13, 1993, it was employing at least one employee older than Petitioner, at least one in her sixties, others in their fifties, and hundreds who were over 39 years old. However, none of this information is particularly helpful in resolving the issues in this case. While Respondent's figures may speak to longevity of employees or duration of their employment with Respondent, they are silent as to each employee's age as of the date Respondent first hired each one. (R-9) Petitioner is a white male who at all times material was 63-65 years of age. Petitioner repeatedly applied for job vacancies advertised by Respondent agency and was not hired for any of them. Every position for which Petitioner applied required, at a minimum, that applicants have a bachelor's degree from an accredited college or university plus three years' professional experience in one or more of the following employments: abuse registry; developmental services; law enforcement investigations; licensed health care; children, youth, and family services; child support enforcement; economic services; aging and adult services; licensed child day care; mental health; or elementary or secondary education. Specific types of bachelor's degrees or any master's degree could substitute for one of the three years' required experience in the named programs. Specific types of master's degrees could substitute for two years of the three years' required experience in the named programs. However, no matter how many or what type of college degrees an applicant had earned, Respondent still required applicants to have at least one year of specialized experience. (P-1, R-1, R-2, R-4, R-5, and R-7). In fact, Petitioner met the foregoing requirements at all times material. "In the late summer of 1992," Petitioner first responded to one of Respondent's advertisements for a Protective Investigator position in Panama City. (P-1, P-14) He was turned down without an interview for that position by a letter dated September 22, 1992. (P-1). Feeling that he was qualified for the foregoing position and that he should have at least been given the opportunity to interview, Petitioner made an appointment with Ms. Charlie Retherford, who had advertised the position. The contents of Ms. Retherford's explanation about ten days later is not of record, but Petitioner remained dissatisfied. Petitioner next made a request pursuant to Chapter 119 F.S., The Public Records Act, to view the records of other applicants. Petitioner felt he was "hassled" over this request, but admitted that Respondent provided the records within two weeks. Petitioner did not elaborate upon why he felt "hassled," only stating that he felt two weeks was an "unreasonable delay." Petitioner analyzed the records and formed the opinion that "there was good reason to believe" Respondent did not interview him because he was over 60 years old. Petitioner testified that those applicants selected by Respondent for interviews averaged 29 years old, but Petitioner did not offer in evidence the records he had reviewed so as to substantiate his assertion. In correspondence and interviews which occurred after September 22, 1992, Petitioner revealed his age to various employees of Respondent. (See Findings of Fact 14, above, and 24, 41, and 45 below). However, an applicant's age or birth date is not required on Respondent's standard employment application form, and on Petitioner's September 5, 1992 application received by Respondent September 9, 1992 (P-14), Petitioner had left blank the "optional" line for date of birth. Therefore, it was not established that the Respondent knew, or even how the Respondent could have known, Petitioner's age prior to its September 22, 1992 failure to hire him. Despite Petitioner's testimony as to the average age of interviewees, the mean age of all the applicants up to September 22, 1992 was not established, so it is not clear whether any twenty-nine year olds or persons younger than Petitioner also were not interviewed as well as Petitioner, who was not interviewed and who was in his sixties. Additionally, no nexus between any other applicant's qualifying credentials and Petitioner's qualifying credentials was put forth. Therefore, it is impossible to tell if those applicants who were interviewed prior to September 22, 1992 were more or less qualified than Petitioner, or if there was any pattern of Respondent refusing to interview applicants of any age. By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator with its Aging and Adult Services Unit in Chattahoochee. (P-4). By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-5) By a January 22, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-6) By a January 27, 1993 letter, Respondent turned down Petitioner's application as a Protective Services Abuse Registry Counselor after he was interviewed. (P-3, P-7) (See Findings of Fact 24 and 41, below. By a February 25, 1993 letter, Respondent turned down Petitioner's application for Research Assistant Position No. 05396 at Florida State Hospital. (P-8) Petitioner did not offer in evidence any of his applications corresponding to the Respondent's refusals to hire him between September 22, 1992 and February 25, 1993. 1/ For the period of September 22, 1992 through February 25, 1993, Petitioner's only evidence of age or retaliation discrimination was his subjective personal conviction that age was a factor in Respondent's refusal to hire him and the Radigan memorandum issued ten months later and discussed in Findings of Fact 56-65, below. Affording Petitioner all reasonable inferences, the undersigned infers that due to Petitioner's post- September 22, 1992 interview with Ms. Retherford, Respondent's District 2 hiring personnel could have been aware of Petitioner's age from late September 1992 onward. However, there was no evidence presented by which it can be affirmatively determined that between September 22, 1992 and February 25, 1993 that Respondent knew the age of all other applicants before deciding which ones to interview or that there was a pattern of only interviewing persons under a certain age. 2/ Further, in an August 12, 1993 letter, Petitioner stated to the Secretary of Respondent agency that he had, in fact, been interviewed by Respondent in January 1993. (P-3) (See below, Finding of Fact 41.) It also must be inferred from that information that Respondent did not systematically exclude Petitioner from the interview process on the basis of age or retaliation at least through January 1993. Petitioner's last application before October 14, 1993 which was admitted in evidence is dated April 8, 1993. It was stamped "received" by Respondent on April 9, 1993. It also does not give his age or date of birth. It specifies that Petitioner was applying for a Protective Investigator position closing April 12, 1993. (P-15). In April 1993, Brenda Ciccarelli, an official in Respondent's District 2, requested Karen Dalton, a recruitment coordinator in Respondent's Personal Services Section, to review Petitioner's employment application to determine if he met the minimum requirements for employment in the advertised position. Ms. Dalton's testimony is not altogether clear as to which application or applications she reviewed in April 1993, but from the evidence as a whole, it is inferred that she reviewed Petitioner's September 5, 1992 (P-14) and/or his April 8, 1993 (P-15) applications or applications by Petitioner which were substantially similar. Ms. Dalton analyzed Petitioner's application(s) and determined that Petitioner did not meet Respondent's minimum requirements. She satisfied herself that she had made a correct analysis by conferring with Mr. Joe Williams of the Department of Management Services. By a May 7, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-9) Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from May 24, 1993 to June 7, 1993. (R-1) Respondent readvertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from June 21, 1993 to July 26, 1993. (R-2) Effective August 6, 1993, Respondent hired Jack Connelly, then 45 years old, for Position No. 48210 in Port St. Joe, Gulf County. (R-3) Respondent introduced a tabulation of the ages of the applicants for Position No. 48210 which was completed as of the effective date the position was filled. It included columns listing birth dates of applicants, if known; a column indicating applicants' handicaps, if any; a column indicating whether an applicant was eligible; and a column indicating which applicants were interviewed. (R-3) Mr. Connelly, the successful applicant, was interviewed, as were eleven other applicants. Ten applicants, among them Petitioner, were not interviewed. (R-3) The applicants who were interviewed were respectively forty-five, fifty, forty-six, forty-one, thirty-seven, fifty-eight, one unlisted, forty- four, forty-one, forty-four, and thirty-one years of age. The ages of those not interviewed were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two. (R-3) There is nothing in the record to show that the qualifications of the applicants interviewed or those of Jack Connelly, who was hired, were lower than Petitioner's qualifications. There is no discernible pattern of excluding anyone by age. 3/ Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 50968 in Panama City, Bay County from May 17, 1993 to May 31, 1993. (R-4) Respondent readvertised Protective Investigator/8308 Position No. 50968 in Panama City, Bay County from June 21, 1993 to July 6, 1993. (R-6) By a July 20, 1993 letter, Respondent turned down Petitioner's application for Protective Investigator in Panama City. (P-10) Effective August 6, 1993, Respondent hired Edward Bonner, then fifty- three years old, for Position 50968. He was one of the applicants interviewed. (R-6) Respondent presented another columnar tabulation completed as of the effective date Mr. Bonner was hired. It showed that the interviewed applicants were ages fifty-three, fifty, forty-six, forty-one, twenty-seven, fifty-eight, one unlisted, forty-six, forty-one, forty-four, and thirty-one, respectively. The uninterviewed applicants were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-seven, and thirty-two respectively. (R-6) Again, there is no discernable pattern of excluding anyone by age. 4/ There is nothing in the record to show that the qualifications of the interviewees or of Edward Bonner were lower than Petitioner's qualifications. On August 12, 1993, Petitioner wrote the agency Secretary, Mr. H. James Towey, complaining that he had been discriminated against because of his age, which he then gave as This letter listed the dates of discrimination as 9/22/92, 11/24/92, 11/24/92 again, 1/22/93, 1/27/93, 2/25/93, 5/7/93/ and 7/20/93. Therein, Petitioner admitted that Respondent had interviewed him approximately January 1993 for a System Abuse Registry Counselor position and that the interview had gone very well from his point of view. (P-3) Respondent advertised Protective Investigator/8308 (anticipated vacancy) Position No. 04385 in Panama City from June 21, 1993 to July 6, 1993. (R-7) Effective September 3, 1993, Respondent hired Johnnie A. Knop (female), DOB unlisted, for Position No. 04385. Respondent's tabulation completed on the effective date of hiring Ms. Knop showed that not counting Ms. Knop, whose age does not appear, the interviewees were thirty-eight, fifty, forty-six, forty-one, thirty-three, fifty-eight, forty-four, forty-one, forty- four, and thirty-one years of age, respectively. The non-interviewees were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two years of age. (R-8) Once more, there is no discernible pattern of excluding anyone by age. Moreover, it is not possible to tell whether or not Respondent hired someone older or younger than the Petitioner. 5/ There is nothing in the record to show that Johnnie Knop's qualifications were lower than Petitioner's. In September, 1993, Ms. Dalton had a conversation with Petitioner which lasted approximately ninety minutes. Based upon the contents of Petitioner's Exhibit 13, it is found that this conversation occurred on September 13, 1993 in response to letters of complaint written by Petitioner on May 20 and August 12, 1993. The Petitioner's May 20 letter is not in evidence, but it is inferred that the August 12 letter referenced in P-13 was Petitioner's complaint to Secretary Towey (P-3) concerning age discrimination and discussed above in Finding of Fact 41. During their conversation, Ms. Dalton discovered that some of Petitioner's remote job experiences were useful for certifying him qualified. Together, Petitioner and Ms. Dalton worked through a list of Respondent's job openings, and Ms. Dalton sent one of Petitioner's applications on to Cheryl Nielsen who was hiring for a position in Marianna. At formal hearing, Ms. Dalton explained credibly that she had not originally categorized Petitioner as meeting the professional experience requirement in the "elementary or secondary education" category because she misunderstood his prior application(s) which she had reviewed. Where the September 5, 1992 application had related Petitioner as employed as "a teacher at Dozier School for Boys (Washington County Program at Dozier)" and the April 8, 1993 application listed him as " a teacher at Dozier School for Boys" for eleven months in 1990-1991, Ms. Dalton previously had understood that his employment merely constituted "shopwork, independent living", which is literally part of what Petitioner had written. Ms. Dalton previously had not equated that phraseology with professional teaching experience in an elementary or secondary school. Ms. Dalton also credibly explained that she had the erroneous perception of Petitioner's past experience listed as "supervisor, driver education" at Parks Job Corps Center as being solely employment in a private driver's education school. Petitioner had written "vocational training center," to describe the Center's function. Less understandable but unrefuted was Ms. Dalton's testimony that she had not equated Petitioner's teacher status for eight years in the Oakland County, California Public Schools as "teaching" because of the way Petitioner's application(s) had presented that prior employment which had occurred in the late sixties and early seventies. Despite both applications clearly stating this was public school teaching, Ms. Dalton had once again erroneously assumed that Petitioner had worked in a driver education school, when he had, in fact, been teaching a regularly scheduled minor course curriculum of driver's education in the standard curriculum of a public high school. Apparently, she had given less emphasis to this and had become confused by the explanatory material that Petitioner had added to explain the other things he had done besides teaching. She also gave less emphasis to other employments involving several years even if they included the word "teacher" because they were remote in time. (P-14 and P-15; compare P-16). After their clarifying interview, Ms. Dalton considered Petitioner qualified for the position(s) applied for, even though his qualifications previously had not been apparent to her from his written application(s). Convinced that Petitioner's application style did not present him to best advantage, Ms. Dalton advised Petitioner how to re-do his application to emphasize the factors significant to Respondent and maximize his employment opportunities with Respondent. On the basis of their conversation alone, Ms. Dalton sent a September 15, 1993 letter to Petitioner, and copied Ms. Jenkins and Ms. Ciccarelli, both employed in Respondent's District 2, to the effect that Petitioner met the eligibility requirements for the Protective Investigator classification. (P-13) Petitioner revised his application to detail that some of his school activities which were remote in time actually involved teaching. He submitted the rewritten application to Ms. Dalton approximately October 14, 1993. (P-16). After the revision, Ms. Dalton credited Petitioner with three years and nine months of "teaching in an elementary or secondary school" based only on his teaching during the 1960's. She also forwarded the revised application to Marianna and Ms. Nielsen. A review of the Petitioner's only three applications in evidence (September 5, 1992 at P-14; April 8, 1993 at P-15; and October 14, 1993 at P-16) reveals that Petitioner's original application style is so detailed and thorough that some portions September 1992 and April 1993 applications are less than clear as to what entity employed him and what his title was. For instance, he frequently used job titles that were more administrative, like "program manager", than educational, like "teacher". While a thorough reading of either of the applications in Petitioner's original style would probably reveal that he had, indeed, been employed in public school teaching positions approximately 30 years before, Petitioner's original applications require much more concentrated reading than does his revision in order to sort through the material matters and exclude extraneous and cumulative material that had no significance to Respondent's application process. The unrevised applications are not clear that he actually "taught" for a total of three years and nine months in public elementary or secondary schools as understood by Respondent's assessment system. According to Cheryl Nielsen, the position in Marianna for which Petitioner was certified eligible by Ms. Dalton and which closed October 18, 1993 was a temporary position. It existed solely because the individual holding the permanent position had been on workers' compensation leave. When it became apparent to Ms. Nielsen that the injured job holder would not be returning permanently, she decided not to continue the hiring process for the temporary position. Instead, she decided to advertise and fill the position in Marianna as a permanent position once the appropriate waiting period ran out. This was a reasonable decision because it would require six weeks' training before any hiree would be useful and because by going directly to the hiring of permanent personnel, Ms. Nielsen could avoid having to repeat the training process with a different person in a short period of time. No one was interviewed or hired for the temporary position for which Petitioner applied. There is no evidence in this record to tell the undersigned if Petitioner applied for Miss Nielsen's permanent position. Indeed, there is no evidence that Petitioner applied for any positions with Respondent after October 14, 1993. On November 26, 1993, Petitioner wrote Mr. Clary, Respondent agency's Deputy Secretary for Administration. The "Re:" line of this letter states that the letter refers to "'contracts' which cost HRS a fortune but serve no legitimate purpose." A fair reading of Petitioner's letter is that he was complaining concerning a letter from Dr. James Henson of Tallahassee Community College (TCC) which constituted a reply to Petitioner's inquiry concerning a TCC job vacancy announcement. Neither Petitioner's letter to Dr. Henson nor Dr. Henson's reply letter to Petitioner are in evidence to further explain what was actually going on. In his November 26, 1993 letter to Respondent's Deputy Secretary Clary, Petitioner characterized Dr. Henson's letter to him as "condescending" and "elitist" and stated Petitioner's opinion that Respondent should not have contracted with TCC to recruit field instructors because it was a waste of money. Petitioner's letter is entirely coherent, but its tone is agitated and vituperative. It attacks the agency's expenditure of funds to Dr. Henson and TCC and their qualifications. It does not mention Petitioner's age or job applications to Respondent in any way. (P-12) Apparently as a result of yet another of Petitioner's letters dated November 19, 1993, which November 19, 1993 letter is not in evidence, Ms. Radigan, Respondent's Assistant Secretary for Children and Family Services, wrote the following December 16, 1993 memorandum to Deputy Secretary Clary, copying Secretary Towey and the Assistant to the President of TCC. I wanted to give you some feed back on this issue. Mr. Sondel has written many such letters across the last six to eight years. He is very well known by the recruitment and personnel professionals in the Tallahassee area, in both the private and public sectors. Bob Roberts discussed this issue with Mr. Marshall Miller, special assistant to Dr. Henson at Tallahassee Community College (TCC). Mr. Miller suggested that DHRS [Respondent agency] should make no response to or take any action pertinent to the letter. Dr. Henson would prefer that he or his attorney make any response as he sees proper. The field instructor position in question is one of twenty new contracted professionals being recruited state wide that will be located in each district to provide clinical expertise, technical assistance, job coaching and staff training for a four unit staff in the Children and Family Services Program. Due to the nature of the job tasks that will be assigned to the new contracted professionals, the Districts expect that they will have relevant professional training and work experience in public child welfare systems. Please let me know if you have any questions, or wish to have additional information. Emphasis and bracketted explanatory material supplied. (P-11)57. The language emphasized above was not emphasized in Ms. Radigan's original memorandum, but has been characterized in Petitioner's testimony as "the smoking gun" upon which Petitioner relies to demonstrate that Ms. Radigan, via "retaliatory slander", had prevented Respondent agency from hiring Petitioner throughout 1992- 1993. He attributed her remarks to be the result of his letters to the Respondent complaining of age discrimination. Petitioner testified credibly and without refutation that he had never applied for employment with Respondent before the summer of 1992 and that he was first denied employment by Respondent on September 22, 1992. This is accepted. At the time of Ms. Radigan's memorandum, Petitioner had filed no formal charges of discrimination against Respondent. Therefore, it is impossible for any retaliation by Respondent between September 22, 1992 and October 18, 1993, if it existed, to have been based upon formal charges by Petitioner. Petitioner's subjective reading of the Radigan memorandum to the effect that it presents him as a "kook who should not be taken seriously" is one possible interpretation, but otherwise, Petitioner's interpretation is flawed. The Radigan memorandum is dated well after Respondent's last failure to hire Petitioner. That alone is not conclusive to show that its contents did not affect Respondent's hiring process between September 22, 1992 and October 18, 1993 because it could relate back to Respondent's prior retaliatory non- hiring practices. However, a clear reading of the memorandum itself does not permit such an interpretation. First, the memorandum refers to a letter by Petitioner dated approximately a month after the Respondent's last failure to hire Petitioner. Although Petitioner claimed that the Radigan memorandum refers to Petitioner's complaints of age discrimination, that was not proven. Since the Petitioner's November 19, 1993 letter, which the Radigan memorandum addressed, is not in evidence, it is impossible to determine precisely which of Petitioner's complaints Ms. Radigan's memorandum addressed, but even if Petitioner's November 19, 1993 letter had complained of age discrimination, that complaint was made after Petitioner had ceased to apply with Respondent. Therefore, retaliation at that point could not relate backwards to hiring practices already concluded. The letters of Petitioner over six to eight years to which the body of the memorandum refers apparently include his letters to private sector entities as well as government agencies other than Respondent agency. Therefore, the fact that Petitioner had only been applying to Respondent for two, not six or more, years (see Finding of Fact 58, above) does not establish any intentional misstatement of fact by Ms. Radigan. If these letters and Petitioner's November 19, 1993 letter to Respondent all contained complaints of age discrimination, then it was appropriate for Ms. Radigan to report that fact, but there simply is insufficient evidence in this record to determine if that is what happened here. Ms. Radigan's memorandum says nothing to the effect that Respondent should not hire Petitioner, that TCC should not hire him for itself, or that TCC should not recruit him for a position with Respondent. Nothing in the memorandum permits the inference that Ms. Radigan did anything except investigate the situation existing between Petitioner and TCC and report back to her superior all available information, including gossip about Petitioner from both the public and private sectors. Gossip is always reprehensible, but people talking about unspecified letters Petitioner wrote without more does not constitute retaliatory discrimination or age discrimination. Whether the situation between Petitioner and TCC had to do with TCC's failure to recruit Petitioner or with Petitioner's complaint about the cost of Respondent's contract with TCC to do its recruiting is unclear in this record. (P-12) (See Finding of Fact 55 above). If anything, the latter is more likely since in his Charge of Discrimination (P-2), even Petitioner described the Radigan memorandum as addressing "a matter only tangentially related to my employment possibilities." Therefore, no retaliation discrimination for raising the issue of age discrimination has been clearly proven.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying and dismissing the Petition for Relief. RECOMMENDED this 14th day of December, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 14th day of December, 1995.
The Issue Whether Petitioner, Norma J. Nolan, was discriminated against by Respondent, K.D.P., Inc. d/b/a Western Sizzlin Steak House, in violation of the Human Rights Act of 1977, as amended, Section 760.10, Florida Statutes, on the basis of handicap, constituting an unlawful employment practice. Whether Petitioner has established a basis for, or entitlement to, an award of damages if, in fact, the alleged unlawful employment practice occurred.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: K. D. P., Inc., operated a restaurant known as Western Sizzlin Steak House in Bradenton, Florida, which business was established prior to the alleged incident of July 1990. This business has continued in operation to the current time under the same management and with many of the same employees, although the restaurant has subsequently become known as Cattle Company Cafe. The Respondent, K. D. P., Inc., d/b/a Western Sizzlin Steak House, now known as Cattle Company Cafe (KDP), owned by Jack Parrish, has been managed by Kevin Wreford for approximately twelve years. Parrish relies on Wreford for the day-to-day operation of the business, hiring and firing decisions, and supervisory responsibility. The Petitioner was employed from December 1989 through February 1990 by Upjohn Health Care on a part-time basis as a respite worker. While she was physically able to do that job, Petitioner chose to leave that employment as it had little work available for her with that agency and Petitioner wished to work at a location closer to her home. Petitioner applied for employment with KDP by way of written application on August 2, 1990. Petitioner's employment application did not indicate any physical handicap, disability or limitation. Wreford interviewed Petitioner for the position of part-time cashier in early 1991. During the interview, Wreford discussed with the Petitioner the duties of the position for which she had applied. Those duties included taking payment from customers at the cashier's stand, overseeing the salad and sundae bar, checking the women's restroom, cleaning glass in the area of cashier's stand and watching for walkouts (walkouts being customers who walk out without paying for their meals). Petitioner advised Wreford that she was capable of performing these duties but was concerned about her lack of experience in working with cash and making change. Wreford hired Petitioner as a temporary, part-time cashier, and Petitioner began work in that capacity for Respondent on February 3, 1991. Petitioner continued in the employment of the Respondent in the capacity of part-time cashier through July 17, 1991. At the time Petitioner was hired by Respondent on February 3, 1991 there was a large wooden bar stool located behind the counter where the cashier took payments for meals. All cashiers working for the Respondent, including Petitioner, were allowed to sit on this stool at times when they were not waiting on customers (cashiers were required to stand while waiting on customers) or performing other assigned duties as set out in Finding of Fact 6. Sometime around July 1, 1991, Wreford discussed with the cashiers, including Petitioner, his concerns about the cashiers not performing their other assigned duties when they were not waiting on customers. Performing other assigned duties required the cashiers to be away from the cashier's area. At this time, Petitioner made Wreford aware of her knee problem and advised him that she may have difficulty standing for long periods of time. There had been no mention of this problem previously nor had Petitioner experienced any problem with her knee previously. Likewise, Petitioner did not experience any problems with her knee in carrying out her assigned duties during the next two weeks. In fact, both Wreford and Parrish were pleased with Petitioner's performance during this period. On or about July 12, 1991, Parrish's wife who had become involved in the management of the restaurant advised Parrish that the stool needed to be removed from the cashier area because: (a) the stool was showing its wear and tear and was aesthetically unpleasing; (b) the stool was taking up too much room resulting in the cashiers not being able to perform their duties properly, particularly looking for walkouts and; (c) to prevent a certain cashier (not Petitioner) from abusing the privilege of the stool by sitting on the stool for extended periods of time and not performing her other assigned duties. On or about July 12, 1991, Parrish removed the stool from the caahier's area and placed it in his office where it remains today because the stool has a sentimental value in that Parrish used the stool in his first restaurant. On or about July 13, 1991, when Petitioner arrived for work and noticed the stool had been removed she met with Parrish and Wreford and advised them that she could not work without the stool because of her knee. Parrish and Wreford offered to accommodate her problem by allowing Petitioner to sit at a table adjacent to the cashier area when she was not waiting on customers or performing her other assigned duties. Petitioner advised Parrish and Wreford that she could not work under those conditions but that she would stay on until a replacement was found. Parrish and Wreford accepted Petitioner's resignation but encouraged Petitioner to continue her employment until she could determine if the accommodation would be satisfactory. Petitioner continued to work for Respondent until July 17, 1991, and was able to function without any problems with her knee under the accommodations provided by Respondent. However, after Petitioner resigned she never asked to be reinstated even though she was able to function under the accommodations provided by Respondent. Although Petitioner alleged that she had a physical disability/handicap because of problems she had related to an alleged right knee replacement done some years earlier, there was no medical evidence or other documentation establishing any physical handicap or restrictions/limitations in her ability to work. There were other cashiers employed by Respondent who had conditions similar to Petitioner's conditions who were able to function with the same accommodation offered Petitioner. One of those was the person hired by Respondent to take Petitioner's position. Petitioner collected unemployment compensation after leaving Respondent's employment, as well as other forms of assistance, such as food stamps and housing assistance. Additionally, after leaving Respondent's employment Petitioner developed "female problems" and is not seeking employment even though she attended computer school. There was no evidence as to the amount of damages suffered by Petitioner. There is insufficient evidence to establish facts to show that Petitioner was discriminated against on the basis of a handicap by Respondent or that any unlawful employment practice occurred. There is competent substantial evidence in the record to establish facts to show that there were legitimate, nondiscriminatory business reasons for the action taken by Respondent in removing the stool and providing other accommodations for the cashiers, including Petitioner. There was insufficient evidence to establish facts to show that the Respondent's articulated reasons for its action were pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Norma J. Nolan, was not discharged due to her handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed. RECOMMENDED this 8th day of June, 1993, at Tallahassee, Florida. WILLIAM R. CAVE 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 8th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3903 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. Petitioner's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 13 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. Respondent's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 32 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. COPIES FURNISHED: Norma J. Nolan, Pro Se 1109 Harvard Avenue Bradenton, Florida 34207 Donna L. Derfoot, Esquire Post Office Box 3979 Sarasota, Florida 34230 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahasse, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).
Findings Of Fact Petitioner, a Caucasian male, was born on March 23, 1949. At the time of the alleged unlawful employment practice at issue in this case, Petitioner was 52-53 years old. Petitioner was employed by Respondent since 1973. He was terminated effective August 15, 2001. Respondent, at all times material to this case, is an employer within the meaning of the Florida Civil Rights Act. Respondent, at all relevant times, is in the business of providing telephone services to individuals and businesses in south Florida and elsewhere. At all relevant times, Petitioner was employed as a Service Technician. Service Technicians are responsible to install and repair telephone equipment in response to customer requests. At all relevant times, Respondent employs individuals as Service Technicians who are older than Petitioner. Many other individuals employed as Service Technicians are over the age of 40 at all times relevant to this case. Beginning in 1997, Respondent began to evaluate its Service Technicians according to a system called "Integrated Technicians Performance Plan [ITP].” The purpose of ITP was to improve customer service by evaluating Service Technicians and the individuals who manage them, on a regional basis, in accordance with standardized performance measures. Service Technicians whose ITP evaluations revealed deficiencies, including Petitioner, were provided assistance pursuant to individualized Technician Development Plans (TDP) and given a reasonable period of time to improve. From the time ITP was implemented in 1997, Petitioner was at all relevant times on a TDP because of deficiencies in his job performance. Petitioner's job performance was consistently deficient from 1997 throughout the remainder of his employment. From 1997 throughout the remainder of his employment Petitioner was provided assistance to help him improve his performance. Despite the assistance provided, Petitioner failed to improve his job performance to minimum levels required of all Service Technicians and required by his TDP. By August 2001, supervisors responsible for the training, evaluation and supervision of Service Technicians had determined that Petitioner did not maintain his job performance at the minimum levels required of Service Technicians and did not fulfill the requirements of his TDP. Accordingly, Respondent terminated Petitioner’s employment. Petitioner could have been terminated earlier than he was. In consideration of the fact that Petitioner had been a long-time employee of the company, he was given more time to improve his performance than company policy required. Petitioner presented no persuasive evidence that age played any role in Petitioner's termination. Petitioner did not prove that after he was terminated, a younger worker replaced him. Similarly, Petitioner presented no persuasive evidence that he is disabled within the meaning of the Florida Civil Rights Act, or that any disability played any role in his termination. Petitioner alleged his disabilities as “war wounds, tinnitus and hearing loss.” Petitioner never informed Respondent that he suffered from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Furthermore, Petitioner never informed Respondent that the disabilities alleged would in any way prevent him from performing his job as a Service Technician, or from satisfying the TDP developed to assist in ameliorating his performance deficiencies. Petitioner never informed Respondent that the alleged disabilities substantially impacted any major life function, or affected Petitioner’s ability to perform the essential functions of his Service Technician job. Respondent was not, at relevant times, on notice that Petitioner might suffer from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Respondent never perceived Petitioner to be disabled at times relevant to this case. During his employment as a Service Technician, Petitioner did not indicate a need for or make any request to Respondent for accommodations for any physical condition. Finally, Petitioner alleged that his termination was in retaliation for complaints he had filed in another forum. This allegation was not proved; rather, the evidence established that Petitioner never opposed any practice which is an unlawful employment practice under the Florida Civil Rights Act. In sum, the evidence established that Respondent discharged Petitioner solely on account of inadequate job performance as a Service Technician, and not on account of his age, disability, or in retaliation for complaints filed in another forum.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and argument of the parties, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of October, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 11th day of October, 2005.
The Issue Whether Respondent discriminated against Petitioner on the basis of his age as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2010).
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Respondent is a mental health facility and employs more than 15 persons. Petitioner was hired as an Assessment Specialist II on February 18, 2008. At the time he was discharged, he was 51 years old. An Assessment Specialist II performs mental health assessments of individuals brought to Respondent's facility by law enforcement, hospital transfers, or walk-ins. As part of his job duties, Petitioner also provided crisis intervention, diagnostic impression, and referral information as part of an initial assessment to clients who sought services at Respondent's facility. Completion of the assessments are important, because the doctors review them to assist them in determining the direction to take for treatment. Respondent observed that Petitioner’s monthly average productivity, measured in assessments performed per shift, was well below that of the other assessment specialists who worked the same shift as Petitioner and that his assessments were of poor quality. In response, Petitioner’s supervisors counseled him, provided Petitioner with written warnings, and, eventually, placed Petitioner on a 30-day Performance Improvement Plan. Petitioner was informed that he had to increase his productivity to a goal of an average of three assessments per shift. Other assessment specialists were also disciplined and/or terminated for low productivity and poor quality of assessments. These employees were also told to average three assessments per shift during their performance evaluations, and while they sometimes did not achieve that goal, their performance showed significant improvement, as compared with Petitioner. At the conclusion of the 30 days provided under the Performance Improvement Plan, Petitioner’s productivity had only slightly improved and not to the goal of three assessments per shift. As a result, Respondent terminated Petitioner’s employment on February 17, 2009. The consensus among the witnesses was that the quality of Petitioner's mental health assessments was poor and his productivity was unacceptably low. This consensus is accepted as credible and was the basis for Petitioner's discharge. Petitioner was disciplined for selling personal items while at work and claims disparate treatment. The basis for his discharge is poor performance, not selling personal items while at work. Evidence was presented by both parties regarding the fact that Petitioner was not promoted within Respondent's organization; the Petition for Relief is silent regarding this issue. The evidence on this subject indicated that Petitioner submitted his application three days after the period for applications closed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Lakeside Behavioral Health Care, did not discriminate against Petitioner, Kenneth D. Craven, and dismissing the Petition for Relief. DONE AND ENTERED this 15th day of December, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2010. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Deborah L. La Fleur, Esquire Matthew A. Klein, Esquire GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802-3068 Kenneth D. Cravey 1201 Lavanham Court Apopka, Florida 32712
Findings Of Fact Martin Marietta Corporation is a multi-state, multi- national defense contractor. Respondent functions as one of its primary divisions/operations in Orlando, Florida. The Petitioner, Frank Maggio was born on April 3, 1914. Petitioner was employed by Respondent on June 16, 1981 in the position of Quality Control Fabrication Inspector A (Fate A Inspector) at Respondent's Orlando facility. Respondent's primary role within the overall corporate operation is the production of highly sophisticated, high-tech missile systems. The development and production of these weapons is maintained under tight security due to the involvement of the national defense effort. Because of Respondent's participation in military and defense programs, the manufacturing process is constantly reviewed and critically inspected by governmental agencies. The Respondent utilizes "state-of-the-art" machines and equipment on its advanced, technical and highly complex defense projects. Petitioner's responsibilities as a Fab A Inspector included checking the first piece of hardware off of the machines, qualifying the tape that runs the machine with his stamp and checking the dimensions of the first layout. This procedure is referred to as a set-up and, once "bought off" "accepted) by the "A" inspector, it establishes the critical reference point or benchmark for the sophisticated, state-of- the-art-manufacturing processes of the Respondent. Respondent's operations involve the manufacture or production of weaponry or weapons systems that require tolerances The Petitioner was given a warning that another similar incident might result in further disciplinary action, up to and including discharge and specifications which are not found or even known in consumer oriented production plants. Certain pieces of equipment used will drill and measure within one one-thousandth of an inch (1/1,000"). The integrity of the highly integrated and closely coordinated production procedures depends upon the correct initial setting, which "commits" the production process. If the initial setting is off or in error, nonconforming parts or items will be manufactured. If the nonconforming parts cannot be reworked or brought into tolerances, they are regarded as scrap and represent a loss to the company. The Petitioner functioned as the only Fab A Inspector on the second shift with very little, if any, supervision. "B" and "C" Inspectors were present, but not performing in a capacity that could provide a backup for Petitioner. In February, 1983, Petitioner functioned under the direct supervision of Charles Holley, Chief Quality Inspector. Although both men worked on the second shift, Petitioner performed as a Fab A inspector and was responsible for making the initial, critical decisions on "set-up" tapes for the second shift production operations. On April 5, 1983, while on his second shift assignment, Petitioner "bought off" on a first piece inspection in order to qualify a newly released tape. On April 7, 1983, the first shift rejected a piece on that particular tape because the dimensions were out of tolerance. Subsequently, after a second inspection of the piece by the senior tool inspector, it was determined that the part was non-conforming and out of tolerance. This error lead to the production of approximately 180 pieces of "scrap" and a loss of about $100,000. As a result of this incident, Mr. Holley, Petitioner's superior, completed a Significant Incident Report (S.I.R.) dated April 18, 1983, which was placed in Petitioner's personnel file. Pursuant to routine procedure, Petitioner was counseled about the S.I.R. and given an opportunity to respond. The Petitioner was given a warning that another similar incident might result in furhter disciplinary action, up to and including discharge. Following the April, 1983 incident, Mr. Holley felt that Petitioner's work performance began to decline. Mr. Holley was dissatisfied because Petitioner often used scales for measurements at times when Mr. Holley believed that calipers should have been used. In addition, Petitioner used his lunch break to take naps, and several times he was late returning to work. Sometime in late September or early October, the Petitioner approved a piece of hardware similar to that involved in the April, 1983 incident and it too was rejected for being out of tolerance. Following this incident, Mr. Holley once again went to the Personnel and Industrial Relations Department (S.I.R.) attempting to have another S.I.R. placed in Petitioner's file. However, the management in P.I.R. did not allow the report to be placed in Petitioner's file. Subsequently, Petitioner was not reprimanded or otherwise disciplined and no official record was kept of this incident. During February, 1984, a "set-up" error by Petitioner on a secret laser tracking missile project know as "Hell-Fire" caused unusable parts to be manufactured and a financial loss to Respondent. Prior to submitting an S.I.R., Mr. Holley met with management in the Personnel and Industrial Relations Department to discuss the Petitioner's situation. It was at this time that Mr. Thomas Mallis, supervisor of employee relations, seized upon the idea of Petitioner's upcoming 70th birthday on April 3, 1984 as a way in which to be rid of Petitioner. Mr. Mallis reasoned that rather than attempting to terminate Petitioner for cause, Petitioner's 70th birthday would provide a point where Petitioner could be "gracefully retired" under Martin Marietta Corporation's corporate retirement policy. Martin Marietta Corporation has a nationwide corporate retirement which requires retirement at age 70. Generally, the company does not enforce this requirement at facilities which are located in states where such a policy violates age discrimination laws. Likewise, Respondent does not generally enforce the corporate wide retirement policy at its Orlando facility because it is subject to Florida state law concerning age discrimination. As of April 4, 1984, Respondent employed approximately 11,000 employees. Approximately 5,017 of those employees were 40 years of age and a small number were over 70. Although the company's age 70 retirement policy is not generally enforced at Respondent's Orlando facility, the retirement plans provided by the company and the benefits package negotiated by the union with the company for retirement pay focus on age 70 as the point at which retirement benefits mature or "top out." After age 70, no further benefits accrue under the retirement plan. Thus, as a matter of established practice and/or expectation on the part of the employees, virtually all workers have retired or plan to retire on or before their 70th birthday. Therefore, Mr. Mallis believed that having respondent "retire" at age 70 would be an easy non-confrontational way to terminate Petitioner's employment. As a member of the United Aerospace Workers local bargaining unit, Petitioner would have had the right to object and file a grievance concerning any proposed termination for cause by Respondent. By "retiring" Petitioner under the corporate policy, Mr. Mallis believed that a "bitter challenge" under the union's often cumbersome grievance/arbitration procedures could be short-circuited. Under the Respondent's progressive discipline system, generally employees are given 3 to 5 S.I.R.'s or written warnings before any stronger action is taken. At the time of his involuntary retirement by Respondent on April 4, 1984, the Petitioner was not vested under the company's retirement program and was not entitled to any benefits thereunder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that a Final Order be entered finding that the Respondent is guilty of a violation of Section 760.10, Florida Statutes and awarding the Petitioner attorney's fees. It is further RECOMMENDED that the Petitioner be reinstated to his former position. The Respondent may seek to institute proceedings within 30 days from the date of the final order to terminate Petitioner for cause based on his work performance up to April 4, 1984. If the respondent is barred from attempting to terminate Petitioner for cause based on those past incidents for whatever reason, if Respondent chooses not to institute termination proceedings, or if the Respondent successfully defends any termination proceedings, then the Petitioner shall be entitled to back pay for the statutory maximum of two years. DONE and ORDERED this 18th day of August, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, 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 18th day of August, 1986. COPIES FURNISHED: Joseph Egan, Jr., Esquire Post Office Box 2231 Orlando, Florida 32802 Thomas C. Garwood, Jr., Esquire 57 West Pine Street, Suite 202 Orlando, Florida 32801 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 APPENDIX 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 to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. Adopted in Findings of Fact 1 and 3. Partially adopted in Findings of Fact 14 and 16. Matters not contained therein are rejected as misleading. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as misleading. Adopted in Finding of Fact 5. Adopted in Findings of Fact 4, 5, and 6. Adopted in Finding of Fact 7,/ Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 10 and 11. Matters not contained therein are rejected as unnecessary and subordinate. Partially adopted in Findings of Fact 13, 14, 16, and 17. Matters not contained therein are rejected as not supported by competent substantial evidence and/or subordinate. In particular, the finding that the "Petitioner under normal circumstances, should have been discharged for his pattern of poor performance and the associated financial impact upon the company" is rejected as not supported by competent substantial evidence. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as argumentative and/or subordinate. ================================================================ =
The Issue The issue is whether Petitioner was terminated from her employment with Respondent for a discriminatory reason.
Findings Of Fact Petitioner, Sharon Singleton, was employed by Respondent in the Information Technology (IT) Department. Petitioner served, as did other IT employees, under an annual contract. Respondent is the administrative government entity for the public schools of Escambia County, Florida. Contracts of employment are with the Escambia County School Board. Mr. Johnnie Odom supervised Petitioner until the last eight months of her employment. Her supervisor was Kathy Cooper during the last eight months of her employment. For many years, Petitioner and the other technicians used a software program that supported the management of school records that was known as “TERMS.” During the last few years of Petitioner’s employment, the District changed the supporting software program from TERMS to a program known as “FOCUS.” This was a major conversion of software programs that took place over an extended period of time. When the FOCUS program was initiated, Respondent hired three additional technicians to support FOCUS. Petitioner disagreed with the hiring of new technicians to support FOCUS, but acknowledges she was not treated any differently from the other Tech III support staff. Her disagreement was over the hiring of the new technicians, rather than allowing the existing ones to serve as primary support for FOCUS. Petitioner sought a promotion to a higher level position in 2011. The promotion process was administered by a selection committee that interviewed and evaluated candidates. As a result of the competitive selection, Petitioner was not recommended or selected for the promotion. On two prior occasions, Petitioner had sought a promotion, and on both occasions a selection committee ranked and evaluated the candidates. Petitioner was not successful in being selected or promoted on those two prior occasions. For the 2011-2012 school year, Petitioner received unsatisfactory ratings for her administrative/professional techniques and skills, as well as for her professional relationships with staff. The evaluation contained a note stating that Petitioner has difficulty in resolving conflicts with her co-workers and that her supervisor would like to see her resolve conflicts with her co-workers in a more diplomatic manner. Petitioner had received some unsatisfactory or needs improvement marks in her previous years’ evaluations, so 2011- 2012 was not the first time she had received less than satisfactory marks. Nevertheless, following the 2011-2012 annual evaluation, Petitioner received an annual employment contract for the next school year. At the end of the next school year, Petitioner again received an unsatisfactory mark for her professional techniques and skills. She also was cited for needing improvement in other areas. The notes to that evaluation stated Petitioner had improved her relationships with co-workers, but was still having problems adjusting to the new programs that required modernizing her skill set. Despite a few negative marks on her evaluation, Petitioner received an annual contract for the 2013-2014 school year. Petitioner did not dispute the fact that her evaluator and supervisor, Mr. Odom, believed her performance was unsatisfactory. She disagreed, however, with his assessment of her performance. Petitioner believed she had been demoted in the 2013-2014 school year and testified she signed a paper acknowledging a demotion in a disciplinary meeting with the IT department director, Tom Ingram. She did not receive a reduction in salary or benefits, however. Mr. Ingram classified the action taken against Petitioner as a restriction of her duties to Level I telephone support, rather than the more challenging Level II telephone support duties that she had performed in the past. He did not consider this a demotion, but more of a recognition of assigning Petitioner to duties that he believed she could better handle with her skill set. Petitioner testified that Ms. Cooper told her on several occasions she should consider retirement. Petitioner took this as evidence of Ms. Cooper’s belief she was too old to perform her job. Ms. Cooper testified she made the suggestion because Petitioner had an elderly mother who lived in a nursing home and needed assistance. Ms. Cooper was responding to Petitioner having told her she was left with little time to care for her mother when she finished with work. Petitioner acknowledged that her mother was elderly and needed help and that she had told this to Ms. Cooper. During Petitioner’s final eight months of employment, she worked mainly telephone support under the direction of Ms. Cooper, the support manager for the District. Ms. Cooper manages the help desk and IT support staff. She manages two levels of support. Level I support involves matters that can be resolved by telephone, while Level II support is for matters that cannot be resolved in five minutes or less and require more expertise to cure. Ms. Cooper developed concerns about Petitioner’s support performance. She took her concerns to the Director of IT, Mr. Ingram. Similar concerns with Petitioner’s performance had been raised by another support technician, as well. That technician reported that one of the schools to which he and Petitioner had both been assigned, asked that Petitioner not be allowed to return there for support in the future. When Ms. Cooper brought her concerns about Petitioner to Mr. Ingram, he asked that she bring him documentation of her concerns evidencing recent issues concerning Petitioner’s performance. Mr. Ingram met with Petitioner on September 3, 2013, to review her performance. Mr. Ingram’s notes from that meeting document his concern with Petitioner’s performance and he restricted her duties at that time to telephone support because he did not believe she could independently provide on-site support to more schools. His notes further indicate that Petitioner was not satisfied with his conclusions regarding her performance. Mr. Ingram conducted a follow-up interview with Petitioner on September 4, 2013, because Petitioner wanted to share with him the evaluation she had received from Mr. Odom for the 2012-2013 school year. Mr. Ingram told Petitioner he agreed with the evaluation conducted and recorded by Mr. Odom. Mr. Ingram had yet another meeting with Petitioner in March 2014 regarding her performance. With Ms. Cooper present, Mr. Ingram reviewed documentation concerning Petitioner’s unsatisfactory performance. The meeting was held pursuant to a Notice of Consideration of Disciplinary Action served on Petitioner. As a result of the meeting, Mr. Ingram was not confident Petitioner could satisfactorily improve her performance. He believed that Petitioner refused to accept the representative examples he gave her of her unsatisfactory performance. After concluding at the March meeting that Petitioner’s performance would not sufficiently improve, Mr. Ingram decided not to renew Petitioner’s annual contract when it expired in June 2014. Petitioner believed she had been marginalized by her perceived demotion to a Level I telephone support technician. She also was removed from ZENworks, a scheduling program she had previously been involved with over the years, becoming the only employee on the support team that was not allowed to participate in that program. Petitioner believed that all the criticisms of her work by management were hyper-technical, and that she received little, if any, feedback or training during the period for which she was evaluated when the unsatisfactory findings were made. She also attempted to show that others who made errors similar to hers were given promotions. The evidence presented on this point was insufficient to support her claim of disparate treatment. Several retired or long-serving District employees testified that their interaction over the years with Petitioner resulted in responsive and high-quality service from Petitioner. None of these witnesses testified about specific support they received from Petitioner during the last three years of her employment, employing the new FOCUS system, which served as the basis for the non-renewal of her contract. Petitioner testified she should receive damages in the amount of $384,000 as the result of her employment being terminated while she was a participant in the midst of D.R.O.P.
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 Respondent did not commit the “unlawful employment practice” alleged by Petitioner and dismissing Petitioner’s employment discrimination charge. DONE AND ENTERED this 11th day of December, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2015. COPIES FURNISHED: Ryan M. Barnett, Esquire Whibbs and Stone, P.A. 801 West Romana Street, Unit C Pensacola, Florida 32502 (eServed) Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
