Findings Of Fact The Petitioner is Gail C. Selvaggio, who currently resides in Palm Beach Gardens Florida, and at the time of the events complained of resided in Tallahassee, Florida. The Respondent is the Knight-Ridder Publishing Company, doing business as The Tallahassee Democrat (hereafter "The Democrat"). The Democrat is located in Tallahassee, Florida. The Petitioner commenced her employment with the Respondent as a secretary in its advertising department on February 13, 1978, at a salary of $160 per week. Petitioner's supervisor in the advertising department and the person for whom she primarily performed her secretarial duties was the advertising director, Martin Steinberg. Petitioner was hired to replace Judy McGinnis, who had been an administrative assistant to the previous advertising director whom Steinberg had replaced. McGinnis, who had supervisory duties in her position, had terminated her employment approximately six months prior to the time Petitioner was hired. When McGinnis left, her vacancy was advertised in August, 1977, as administrative assistant pursuant to the instructions of John Veenstra, the then advertising director. No one was hired at that time. When Veenstra left The Democrat in late 1977, the position was frozen. When Steinberg was hired by Respondent as its advertising director, he informed Personnel that he wanted a secretary and not an administrative assistant. Personnel then contacted the people who had earlier applied for the administrative assistant position and invited them to apply again, but informed them that the position had been changed to that of a secretary. Petitioner was referred to The Democrat on February 9, 1978, by Snelling and Snelling, an employment agency. A job counselor at that agency advised Petitioner that The Democrat had an opening for an administrative assistant, information given in a job order when McGinnis left The Democrat in August, 1977. The employment agency did not have any official business connection with The Democrat, and The Democrat had not informed the agency of any job opening when the agency referred Petitioner to The Democrat six months after the agency's job order was written. Based upon the information given her by the agency, Petitioner completed an application for employment with The Democrat by stating that she was applying for the position of administrative assistant. Petitioner was interviewed for employment by Tracy Rowe, who was at that time the personnel assistant at The Democrat. Ms. Rowe conducted approximately ninety percent of the initial employment interviews for The Democrat. She would then refer qualified applicants to the department head where the position was open. Rowe informed Petitioner during the initial interview that the position was not an administrative assistant position but rather was a secretarial position. Petitioner took a typing test as part of this initial interview. Petitioner then interviewed with Mr. Steinberg on February 9, 1978, and on February 10, 1978. Steinberg told Petitioner that the position was that of a secretary and explained to her the history of the position as it was held by Ms. McGinnis and his reasons for not wanting an administrative assistant. Steinberg had earlier told Rebecca Bradner when she interviewed for the position that the position was secretarial. He had also earlier told Mr. Harwell, the publisher of The Democrat, that he expressly did not want an administrative assistant because he did not want anyone with that much authority. Steinberg discussed with Petitioner possibilities of advancement during both her interviews and early employment, including agreeing with Petitioner's suggestion that she might write a training manual, which she never did, and conduct a sales training program. He did not make any promises to her regarding her future advancement or assignments. Petitioner received a salary increase to $180 per week within two weeks after beginning her employment, in accordance with her agreement with Steinberg. This was done to enable Petitioner to pay a lower fee to her employment agency. Steinberg did not promise any other pay increase to Petitioner. Petitioner was given an orientation program at The Democrat so that she could become familiar with the various departments of the newspaper and know who to consult with if problems arose when Steinberg was not in the office. Petitioner had no supervisory responsibilities in her position at The Democrat. During the initial months of her employment, Petitioner was basically a satisfactory employee, although she made mistakes in typing correspondence and various monthly reports. Steinberg brought these errors to her attention during the early months of her employment. Steinberg's practice in correcting documents and correspondence was to circle or underline the error in ink, thereby requiring the page to be retyped even if the error were minor. At times, he would sign correspondence without first reading it and later would find errors on the copy returned to him prior to filing, after the original of the letter had been mailed. Steinberg followed the practice of marking errors in ink from the beginning of Petitioner's employment. This practice was a personal habit of his which he followed with other employees as well. This practice was not an attempt on his part to harass Petitioner. Karen Sheffield, who sometimes handled secretarial duties for Steinberg, did not interpret this practice as harassment, although she frequently retyped the same document several times because of this practice. Petitioner made errors in the addresses and salutations of Steinberg's correspondence, which errors were especially noticeable to those to whom the letters were addressed. Several of the people with who Mr. Steinberg corresponded informed him of errors that had been made, and one person received a letter so full of typographical errors that he involved the publisher of The Democrat in the matter. Petitioner had the responsibility to correct correspondence. Steinberg did not instruct her to leave incorrect punctuation or grammar or spelling in a letter. Steinberg discussed Petitioner's unacceptable performance of her job duties with other management personnel, including Keith Helen, Walter Harwell, and Vernelle Tucker, on several occasions. Mr. Harwell advised Steinberg that it was necessary for Steinberg to turn out better work and that the secretary should be more careful. Steinberg counseled Petitioner about her mistakes and told her she needed to improve her performance on several different occasions. Petitioner was informed specifically about errors in the "Merchant letter" in May, 1978, and about errors in other letters as they occurred. Petitioner occasionally filled in for outside salespersons and made their calls for them when they were on vacation or sick. She performed as well as could be expected, although she made more errors than the regular salespersons made. Steinberg and Petitioner had a friendly, personal relationship in the earlier months of her employment and exchanged confidences with each other. Petitioner is a friendly, outgoing, gregarious person, and it was not unusual for her to put her arms around male employees while at work and hug them and even kiss them. On one occasion, Tracy Rowe observed Petitioner walk up behind Steinberg when he was sitting at a desk and throw her arms around him and kiss him. Steinberg, as a supervisor, was demanding but fair. Petitioner had marital problems in the fall of 1978 and discussed those problems with Steinberg. Her marriage terminated in a divorce in November, 1970. Beginning approximately in August and September, Petitioner's job performance suffered as she began to spend more time away from her desk. Part of the reason for her time away from her duties was her participation as co- chairperson of The Democrat's United Way campaign. She voluntarily assumed duties in connection with that campaign above any required of her and more than her co-chairperson. She frequently returned from United Way luncheons much later than the other employees who were in attendance at those luncheons. Although she chose to entertain at some of the luncheons, she had time to eat during the business portion of the meetings and could have returned to work sooner. During this time period, Steinberg discussed with Petitioner and with other management personnel problems with correspondence typed by Petitioner and with her tardiness. Prior to her divorce, Petitioner began to date another employee of The Democrat, Ron Selvaggio, her present husband, who was then head of the promotion department at The Democrat. Petitioner was frequently observed in his office to an extent greater than her United Way role required. Additionally, she often went to lunch with him and frequently returned late. Petitioner frequently socialized with others in the department. She would leave her desk to socialize with other employees, and other employees would come by her desk. Many employees noticed that Petitioner spent an unusual amount of time not working, and this fact was conveyed to Steinberg by other management personnel. The time spent by Petitioner socializing and participating in the United Way campaign prevented her from completing her work in a timely manner. Steinberg discussed this with her and with other management personnel. There was always work to be done in the advertising department, and Petitioner's neglect of her duties was noticed by other employees of The Democrat who depended on her to get their work done. Steinberg, complained to Vernelle Tucker that his work was not being completed because of Petitioner's activities in the United Way. Mrs. Tucker counseled Petitioner and told her that her job duties still had to be fulfilled despite her participation in the United Way campaign and that her work was priority. Steinberg began to write private memoranda on Petitioner's performance and work habits beginning in November, 1978, at the suggestion of Mrs. Tucker. Steinberg told Tucker that he did not believe Petitioner should get a raise because of her poor work performance, and Tucker told him to start documenting problem areas. Steinberg did not show those memoranda to Petitioner, nor did he forward them immediately to the personnel office to be included in her file. However, in most of these instances, Steinberg counseled Petitioner at the time about the matters he had noted. Other supervisors at The Democrat followed the same practice with regard to private memoranda. This practice allowed them to record their observations and counsel the offending employee in the hope that whatever problem existed might be eliminated. If the problems were not resolved in that manner, the memoranda could then become part of the employee's file. Otherwise, the memoranda could be destroyed without ever being sent to Personnel, so that temporary problems need not become a part of the employee's permanent file. The memoranda by Steinberg were made at the time of the events recorded and were not manufactured as after-the-fact justification for Petitioner's termination. It is the policy of The Democrat to include raises for its employees in the annual budget. The supervisors actually determine which employees will get raises and how much they will receive. The supervisors have authority to withhold any or all of the budgeted raise from an employee. Petitioner did not receive a raise budgeted for December, 1978, because her job performance did not warrant a pay raise. The paperwork Petitioner was required to complete increased during the fall of 1975 due to the normal increase in advertising business experienced by The Democrat from the return of students to school and the Thanksgiving and Christmas holiday seasons. Other reasons for the increase in workload at that time are that budgeting and forecasting for the following year is conducted during the fall, as is preparation of the next year's rate structure. The workload increases for everyone in the advertising department at that time of year. Petitioner's workload did not increase as a result of any attempt by Steinberg to harass her. In December, 1978, Petitioner approached Karen Sheffield about a transfer because of the increased paperwork. Sheffield was the secretary to Mrs. Tucker and Mr. Selvaggio at that time. She did not work in personnel. Petitioner did not approach anyone in Personnel about a transfer. Petitioner was not overworked in comparison with other employees. Petitioner was assigned the responsibility for answering a bank of telephones during the time that the advertising department was in a temporary working area due to construction in the building. Steinberg could give that task to no one else due to spacing in the temporary work area. Petitioner was assigned the task of copying multiples because Jean Ash Webb, who had been performing the duty, had been incurring a considerable amount of overtime because of that duty together with her other duties. Steinberg reassigned this task to Petitioner to reduce that overtime. The amount of overtime worked is a matter of great importance to management at The Democrat. Steinberg instructed Petitioner to use carbons in making copies where practicable rather than using a copying machine. He told her that the reason for using carbons was to save money. This change was effected at the direction of Mr. Harwell, the publisher, who was concerned over expenses at that time. There was a valid business reason for the use of carbons. This policy was instituted throughout The Democrat and not simply against Petitioner. Petitioner resented being given what she considered to be menial tasks and complained to other employees about having to perform such tasks. She complained about having to collate the Belden (Building) Study. She complained about having to perform the task of copying multiples. She complained about being overworked. She complained about having to retype letters. Petitioner's hours of employment were changed to 10:00 a.m. to 7:00 p.m., effective January 18, 1979. Petitioner had changed her own work hours to suit her personal schedule on several occasions prior to her hours being changed to 10:00 a.m. to 7:00 p.m. Her method of changing her hours was simply to begin coming in at a different time and then to secure approval from Steinberg after he noticed the change. The reason for the change to 10:00 a.m. to 7:00 p.m. was to provide assistance to the outside sales staff upon their return to the office in the afternoon after making sales calls. Outside salespersons in the advertising department frequently work late to finish the required paperwork and layouts for ads sold during the day. Persons used to provide such assistance to the outside sales staff after normal hours are known as "ad-assists." Petitioner was assigned ad-assist duties only for part of the day, from 5:00 p.m. to 7:00 p.m. There had been a need for an additional person in the ad-assist position for some time. The need for an additional person in that position had been under discussion by outside salespersons and by the management of the advertising department for several months. Steinberg had discussed the problem with Petitioner and had solicited her advice on how to handle the problem. Mr. Harwell would not approve hiring a new employee for the position because of the financial pressures on The Democrat at that time. Steinberg, with Keith Balon, considered and evaluated the secretaries, clerks and others in the department to see whose hours could be changed and who had the most work flexibility. Steinberg also discussed his selection with Mr. Harwell. Petitioner's duties as secretary were more flexible and less demanding than those of Jean Ash Webb, Dianna Moyer, Becky Savilla, and Linda Crews, who were other employees of the advertising department considered for the move. Jean Ash Webb and Linda Crews could not be moved into the ad-assist position because they had specialized jobs to perform and because they had deadline functions which required their presence at a specific time in the morning and, thus, dictated their departure time in the evening. Also, Dianna Moyer worked for Keith Balon and the sales staff, and Ms. Savilla worked for other supervisors. Steinberg did not have anyone other than Petitioner to place into the ad-assist position. Harwell agreed with Steinberg's decision. There was a legitimate business reason for changing Petitioner's hours to 10:00 a.m. to 7:00 p.m. The Democrat is a twenty-four-hour business. Employees other than Petitioner have left the company because they would not work the hours they were assigned. Petitioner informed Steinberg and others that she would not accept the change in her hours and that she would look for another job. Petitioner complained to other employees about the change in her hours and made derogatory remarks about Steinberg. Mr. Harwell told Steinberg that he should get a timetable for Petitioner's departure so that new people could be interviewed for the position, and he suggested a two-week period. Harwell also instructed Steinberg to caution Petitioner about "bad-mouthing" either the company or Steinberg during her remaining time at The Democrat. He instructed Steinberg that if Petitioner made statements which could hurt the morale of the department, she should be terminated immediately. Steinberg initially advised Petitioner that she could continue to work at The Democrat until she found a new job so long as she did not make derogatory remarks about him or The Democrat. Petitioner initiated conversations with other employees in which she complained about Steinberg. These remarks were creating a morale problem in the department. She also told other employees that her telephone was being tapped. On January 22, 1979, Steinberg asked Petitioner for a timetable for her expected departure so that plans could be made for her replacement. Petitioner refused to provide a timetable. Petitioner continued to make derogatory remarks about Steinberg. Upon the instructions of Mrs. Tucker, Steinberg discharged Petitioner on January 23, 1979. Upon Petitioner's termination, another person assumed the ad-assist duties in the 10:00 a.m. to 7:00 p.m. time slot. The day Petitioner was discharged, she interviewed with Keith Balon, the retail advertising manager, for a position as an outside salesperson in the advertising department. Steinberg was aware of this interview and did nothing to prevent Petitioner from interviewing or from obtaining the position. In fact, he did not include his private memoranda in her personnel file and did not inform Mr. Balon of the existence of such memoranda or their contents. Outside salespersons for The Democrat regularly worked until 7:00 p.m. and frequently as late as 8:30 p.m. in order to complete their duties for that day. Petitioner gave no explanation regarding how she could work those hours for Mr. Balon when she had refused to work until 7:00 p.m. for Mr. Steinberg. Balon hired another person whom he believed to be more qualified than Petitioner. His decision was not made to discriminate against Petitioner in any way. In October, 1978, Steinberg gave Petitioner a 3" X 5" card stating "from one who is one to one who could be one Thanx Marty." Above that notation was drawn a large six-pointed star. Steinberg gave the card to Petitioner in response to several gifts given to him by her and her statement to him that she wanted to be his "Jewish mother." The card did not have any sexual connotation, and Petitioner did not perceive any sexual connotation to the card. Steinberg frequently worked on Saturdays after having been out of the office during the latter part of the workweek. He called Petitioner on occasion at her home on Saturday mornings when he had a question about what had happened at work. Steinberg also called his other employees at their homes on Saturday mornings for the same purpose. Although some social conversation did occur during the calls to Petitioner, the calls were not used to sexually harass her. There were no statements made about sex during these calls. When Petitioner announced her engagement to Mr. Selvaggio, Steinberg expressed a concern since an employee of his would be married to another department head. There was no sexual connotation to this remark. By Petitioner's own testimony, this remark related to Steinberg's concern for the confidentiality of certain information concerning his department. He also discussed his concern about confidentiality with Mr. Harwell and with Mrs. Tucker during this same time period. Steinberg once mentioned to James Reeves, Petitioner's then husband, that Petitioner was like an "office wife." Reeves did not consider the remark to have any sexual connotation but rather understood that Steinberg meant that Petitioner was his confidant. Petitioner married Mr. Selvaggio, who was then the promotion manager of The Democrat, on December 21, 1978. There was some confusion between Steinberg and Petitioner regarding the time she was to take off for her wedding. However, Petitioner admits that this was simply a misunderstanding. This confusion was not an incident of sexual harassment. There were two romantic interludes between Petitioner and Steinberg which occurred in the board room at The Democrat. The first incident occurred in September, 1978, when Petitioner was helping to compile and collate the Belden (Building) Study, which was an advertising research study that had been made. Petitioner complained about having to perform such a menial task although Rebecca Bradner, a supervisor, participated in the collating as did several other employees. Petitioner told Ms. Bradner that the collating was not Petitioner's job, that she was going to lunch, that she would take a long lunch, and that if Steinberg did not like that, he could come in and tell her so. Bradner relayed this information to Steinberg. Steinberg then came to the board room. While Petitioner and Steinberg were alone in the board room, he kissed her, and she kissed him. This was a voluntary act on the part of both persons. The second incident occurred several weeks later when Steinberg invited Petitioner to walk to the board room with him. When they got there, they began kissing each other. Steinberg touched Petitioner's breasts, and Petitioner placed her hands on his genitals. Again, each participated willingly and voluntarily. Steinberg's only superiors at The Democrat were Mrs. Tucker and Mr. Harwell. Petitioner admitted she never reported the board room incidents or any alleged incidents of sexual harassment to either of those persons, to any other management or supervisory personnel at The Democrat, or to any other employee of The Democrat. Further, neither Harwell nor Tucker, nor any other management or supervisory personnel at The Democrat had any knowledge of any alleged incidents of sexual harassment. Petitioner admitted that Steinberg never expressly or indirectly conditioned her continued employment or any term or condition of her employment upon acceptance of sexual advances. Petitioner does not know of anyone who was ever terminated from employment at The Democrat because he or she filed a complaint about a supervisor for any reason, nor of any employee who was ever fired because of making allegations of sexual harassment against a supervisor. On one occasion, Petitioner told Mrs. Tucker that Steinberg wanted to know where and with whom Petitioner went to lunch. This occurred in connection with the concern of Steinberg that Petitioner was returning late from United Way luncheons. Tucker agreed to speak with Steinberg about Petitioner's duties with the United Way. Petitioner told Tucker during this conversation that Steinberg was infatuated with Petitioner; however, Petitioner did not indicate that she found the alleged infatuation to be a problem for her, and she specifically did not inform Tucker of any alleged sexual advance or sexual harassment. Further, Petitioner later told Tucker that things had improved. The Democrat conducts what are called "management coffee breaks," at which "rank and file employees" meet with the publisher, Mr. Harwell, and the personnel director, then Mrs. Tucker. Supervisors and department heads are specifically excluded from attending. These conferences are used so that the employees may present grievances, complaints, or discuss any other problems or policies that they wish. At these sessions, employees are encouraged to speak with management privately on matters that cannot be discussed in a group meeting. Petitioner attended one of these conferences and could have used it to bring her alleged problems to management's attention. The Tallahassee Democrat's employee handbook contains a statement of policy which prohibits discrimination. The Democrat has a policy regarding supervisors having affairs with employees. Two supervisors, one male and one female, had previously been terminated because of sexual relationships with their employees. Other employees of The Democrat knew about these supervisors being terminated, Mr. Harwell testified that he would have taken corrective action by terminating Steinberg had Harwell known of any sexual harassment by Steinberg. Petitioner presented no evidence of discrimination based upon her sex or marital status and failed to request any affirmative relief.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations declaring that Gail C. Selvaggio was not discriminated against on the basis of her sex or marital status and dismissing her Petition for Relief with prejudice. RECOMMENDED this 18th day of June, 1981, in Tallahassee, Florida. LINDA M. RIGOT, 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 June, 1981. COPIES FURNISHED: Edward S. Jaffry, Esquire S. Jack Carrouth, Esquire Horne, Rhodes, Jaffry, Horne & Carrouth Post Office Box 1140 Tallahassee, Florida 32302 C. Gary Williams, Esquire Charles L. Early, Jr., Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Dana Baird, Esquire Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Mr. Norman A. Jackson Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue Whether Respondent unlawfully terminated the employment of Petitioner, because of his age in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes. Whether Respondent retaliated against Petitioner by terminating him on October 3, 2005, after Petitioner filed a complaint with human resources alleging a hostile work environment.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Leviton Manufacturing Corporation manufactures electrical equipment and components. It is a New York corporation licensed to do business in the State of Florida. Inter allia, Respondent employs a sales force that covers the entire State of Florida. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 ("FCRA"). Respondent has implemented an employee handbook aimed at fostering a work environment that is free from harassment, discrimination and retaliation. Respondent's policies contain reporting and investigation procedures that encourage employees to report any and all incidents of perceived discrimination or harassment, and ensure that all reported incidents are investigated. Petitioner was employed with Respondent from June 1995 until November 2003, and from July 2004 through October 3, 2005. At the time of his termination, Petitioner was 49 years old. Petitioner first began working for Leviton in 1995 as a Service Representative. He received merit pay raises and promotions until November 2003, when Respondent laid-off 150 people in the retail division, including Petitioner. Petitioner was rehired in July 2004, as a Sales Representative. Upon rehire, Petitioner was supervised by District Manager Scott Robbins ("Robbins"). Petitioner presented the testimony of three of Respondent's managers, one retired, who supervised Petitioner for various periods of Petitioner's nine and one-half year career with Respondent. Each of them testified that Petitioner was dedicated and professional in which ever position he was assigned, including two assignments as a manager. Scott Robbins, Petitioner's supervisor immediately prior to Goodman, recommended Petitioner for re-hire as a Sales Representative following a lay-off, and was satisfied with his work in that position. Petitioner also presented the testimony of 12 customers of Respondent, in the territory that he covered between July 2004 and October 2005. Each of them expressed their opinion that Petitioner was an honest, diligent, and professional sales representative for his employer. Respondent presented the testimony of one customer who was not satisfied with Petitioner's performance as a sales representative. In January 2005, District Manager Warren Goodman ("Goodman") replaced Robbins and assumed his territories as well as his role as Petitioner's supervisor. At the time Petitioner was terminated, Goodman was 48 years old. Goodman supervised, and currently supervises, at least, 12 Sales Representatives, the majority of whom are over the age of 40, to wit: Name Age Name Age Roy Boykin 59 Mickey Ferrell 49 Don Yeager 59 Jose Monzon 40 Michael O'Reilly 56 Duane Bishop 38 Dave Lenoir 37 Kevin Bouton 34 Ken Davis 54 Paul Dube 41 Brad Taylor 10. When Goodman 52 took over as District Manager, it became readily apparent that Goodman's management style was distinctly different from Robbins. Goodman is demanding, blunt and aggressive, and closely manages his sales representatives. He expected prompt and accurate responses to his requests from his sales representatives. Petitioner was required to fulfill the same job expectations that were demanded of all other Sales Representatives. It included, but was not limited to, the timely submission of complete and accurate paperwork, client follow up, and travel to specific areas within his designated territory. Petitioner's area extended from Lakeland, Florida, to Thomasville, Georgia. Goodman expected Petitioner to visit customers in his territory at least every three weeks, staying at least two to three days on each trip at each location. Goodman's job as District Manager is to oversee his sales force and to enforce Leviton's guidelines, as he interprets them. Moreover, Goodman is charged with measuring his employees' compliance with Leviton's policies and procedures. Over the course of his tenure, Petitioner failed to abide by company rules and policies, as well as the terms of his employment, as understood by Goodman. On more than one occasion, Petitioner failed to provide expense reimbursements in an appropriate and timely manner. He also failed to travel with the frequency required by his sales position. Additionally, on numerous occasions, Petitioner failed to verify the accuracy of orders he placed for customers. On May 2, 2005, Goodman sent Petitioner an email addressing the importance of administrative responsibility and consistency. Goodman had just reviewed Petitioner's expense reports and noted that they covered a ten-week period, clearly in violation of the requirement that they be submitted within 30 days. Goodman also noted that the expense reports reflected no travel over a two-month period to the Thomasville/Tallahassee area, which composed a large portion of Petitioner's territory. Goodman requested that, thereafter, Petitioner forward his itinerary weekly, attaching as an example a copy of itineraries submitted by Petitioner's colleagues. Petitioner responded, apologizing for the late expenses. He attributed his tardiness in part to a change in his cellular telephone carrier. Petitioner set forth all his travel dates within the northern portion of his territory since his re-hire. The dates provided demonstrated that he was not in compliance with the travel requirements established for all Sales Representatives. Goodman responded and reminded Petitioner of the importance of adhering to guidelines for travel and paperwork submission. He encouraged Petitioner to improve his performance and to do what was necessary to satisfy Goodman's expectations of the proper skills necessary to do his job effectively. On May 9, 2005, Petitioner sent Goodman an email indicating his car was being repaired. The repair estimates attached to the email evidenced that Petitioner had been driving a 12-year-old vehicle, which was not within Respondent's car policy guidelines. Petitioner had reviewed and signed the car policy guidelines on January 12, 2005, and began receiving monthly payments (including retroactive payments), effective February 11, 2005. On May 18, 2005, Petitioner received and signed an Employee Warning. Significantly, Petitioner signed the Employee Warning indicating that he read and understood it. The Employee Warning cited violations for substandard job performance and violations of company policies or procedures, with specific reprimands for: (1) failure to timely submit expense reports; (2) failure to travel as specified and agreed to; (3) sloppy submission of paperwork; (4) lack of involvement with customer; and (5) failure to maintain a proper company vehicle in accordance with company policy. Shortly thereafter, Petitioner purchased a new truck for the purpose of meeting the company vehicle policy. On May 31, 2005, Goodman reviewed numerous quotes submitted by Petitioner for review and renewal. Goodman informed Petitioner that upon review, the quotes prepared by Petitioner were inaccurate and required various revisions and corrections. Some quotes were priced higher than stock; different prices were entered for the same item in a different color (when there should have been no price difference); there were items on quotes that were never purchased; and there was no increase in items ordered/quoted. In August 2005, Goodman advised Petitioner that his sales goals were not ambitious enough and that Petitioner needed to re-evaluate and re-consider his year-end goals. Petitioner indicated that he would do as instructed. In mid-August 2005, Petitioner once again submitted an incomplete quote to Goodman for approval. When brought to Petitioner's attention, he added the items missing from the quote, offering no explanation for this oversight. On August 30, 2005, Petitioner submitted order adjustments to Goodman's administrative assistant for completion. When the request was forwarded to Goodman, he immediately reminded Petitioner that all changes were required to be submitted to him, not his assistant. Moreover, the requested changes contained errors. Goodman requested that Petitioner review the complete order and re-submit it when it was accurate. Three days later, Petitioner still had not acknowledged or responded to Goodman's request. Goodman completed and submitted Petitioner's performance review on July 25, 2005. Due to the fact that no prior goals or skills development were accomplished by Petitioner, his review was deferred until the end of 2005. Based upon his seven-month assessment of Petitioner, Goodman felt that Petitioner only partially met expectations. Rather than precluding a merit increase in salary, Goodman gave Petitioner an opportunity to improve his performance by deferring his review for several months. Petitioner signed this July review, indicating that Goodman discussed the review and appraisal with him. On September 5, 2005, (Labor Day, a holiday) Goodman sent an email to all of his Sale Representatives, which required a response to specific inquiries no later than 5:00 p.m. Petitioner did not respond until September 7, 2005, at 4:15 p.m. This was clearly past the deadline. Goodman reprimanded Petitioner in his responsive email, specifically advising Petitioner that his continued employment was in jeopardy. He invited Petitioner to call Goodman the next day to discuss Petitioner's lack of diligence and timeliness. Only after a telephone call on the morning of September 9, 2005, did Petitioner, for the first time raise the issue of unfair treatment, but he did not raise age as a factor. Petitioner requested, via email, that Goodman assist Petitioner in filing a complaint against Goodman with Leviton's Human Resource Department for creating a hostile work environment. In this same email, Petitioner informed Goodman that Petitioner had involved clients in his grievance by requesting that the clients evaluate Petitioner's performance and provide their input to Respondent. Based upon the preceding client involvement, Goodman advised Petitioner on September 12, 2005, that he was suspended immediately, with pay, pending the outcome of Respondent's investigation regarding Petitioner's inappropriate conduct. Petitioner was therefore instructed to maintain contact with only the Human Resources Department (HR) until further notice. Thereafter, Petitioner corresponded, via email, with Shephard. On September 13, 2005, Petitioner forwarded his May 5, 2005, email exchange with Goodman to Kimberly Shephard, Respondent's Corporate Human Resource Manager. On that same day, Petitioner sent another email to Shephard containing a list of items that were still incomplete and required follow up. In forwarding this lengthy "to do" list, Petitioner demonstrated his inattention to detail and inability to complete administrative tasks. On September 16, 2005, Shephard drafted Petitioner's allegations in memorandum format, the accuracy of which Petitioner verified and signed on September 20, 2005. Goodman was given a copy of the allegations and provided a written response on September 19, 2005, refuting each of Petitioner's allegations. Meanwhile, HR conducted interviews with a random selection of Goodman's employees in the district and noted each employee's assessment of Goodman. Goodman was determined by each of the interviewed employees to provide equal treatment to all employees. The employees interviewed ranged in age from 35 to 58. On or about September 20, 2005, Shephard completed her investigation of Petitioner's complaint and determined that there was no basis that Goodman created an unlawful hostile work environment. Rather, it was determined that Goodman set the same standards for all of his employees; treated them all the same; and that accordingly, there was no basis to conclude Petitioner was singled out. Petitioner was ultimately terminated on October 3, 2005. The reasons cited by Respondent were based on Petitioner's unsatisfactory job performance. The specific reasons given for Petitioner's termination were: (1) his inability to perform the tasks associated with the Sales Representative position; (2) his failure to develop end-users sufficiently; (3) his administrative inadequacies; (4) his failure to meet deadlines and failure to follow instructions; and (5) his choosing to enlist customers in an internal company matter pertaining to Petitioner's poor job performance. Although Respondent determined that Petitioner's involvement of customer's in an internal dispute was grounds for immediate termination, Respondent determined it would investigate Petitioner's complaint prior to taking other action, since it occurred at the same time as the allegations of improper conduct by Goodman. At no time was Petitioner's age raised as a factor in any of the terms and conditions of his employment by Respondent. Nor was it a factor in any work related complaints regarding his deficiencies. Petitioner never informed any member of Respondent's management that he believed he was treated differently during his employment because of his age, or that he had been terminated due to his age. After Petitioner was terminated, Respondent did not hire anyone to replace him. Rather, Respondent re-assigned Petitioner's territory to existing salesmen. Paul Dube ("Dube"), aged 41, inherited the majority of Petitioner's territory. Goodman did not require that Dube travel to, or invest time in customers that only did a nominal amount of business with Respondent. Petitioner attempted to establish that he was unable to respond to several of Goodman's inquiries in a timely manner, or at all, because Petitioner's computer was being repaired by Respondent's IT department. Nevertheless, Petitioner had access to his work email via Respondent's webmail program during this period. Petitioner failed to prove by a preponderance of the evidence that he was terminated by Respondent because of his age. Respondent failed to prove by a preponderance of the evidence that he was subject to retaliation after he filed a hostile work environment complaint with Respondent's HR department.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Petitioner's Petition for Relief and dismissing his charge with prejudice. DONE AND ENTERED this 13th day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2007.
The Issue The issues in this case are whether former Hillsborough County Administrator Patricia G. Bean (Respondent) violated section 112.313(6), Florida Statutes (2011),1/ and, if so, what penalty, if any, should be imposed.
Findings Of Fact Beginning in 2003, and at all times material to this case, the Respondent was employed as the county administrator for Hillsborough County, Florida. In Spring 2006, various departments of the Hillsborough County government were engaged in reviewing their responsibilities and developing proposals to increase efficiencies and reduce costs for upcoming budget years. An "executive team" of county employees met periodically to determine which of the proposals met or exceeded efficiency goals that were targeted towards reducing costs while maintaining services. In the Summer or Fall of 2006, the Respondent, Deputy County Administrator Walter Hill, and County Budget Director Eric Johnson began to discuss ways to encourage and reward department directors who met efficiency goals. At that time, the county government had three existing "award" options that could be used to reward employees for exceptional service. One award consisted of a paper certificate called the "Extra Mile Award." There was no monetary gain associated with receiving an "Extra Mile Award." The second award (the "Productivity Award") included a monetary bonus and was available to most employees (with some exceptions) for exceptional performance. The third award was the "Discretionary 1% Merit Increase" available to senior management employees. This award consisted of a one percent "merit" salary increase over and above any regular pay raise that the employee would have received. The Respondent, along with Deputy County Administrator Hill and County Budget Director Johnson, decided to use the "Extra Mile Award" and the merit salary increase to reward department directors who met efficiency goals. The Respondent was responsible for the final determination as to which employees would receive awards. The "Extra Mile Certificate" awards were announced at a budget "kick-off" meeting on the morning of February 1, 2007. After the meeting, the Respondent issued a written congratulatory memo to each employee who received a certificate. She also used the memo to notify those employees who had been awarded the salary increase. The Respondent's department met the efficiency goals. At the time of the budget kick-off meeting, the Respondent believed that her employment contract with Hillsborough County precluded her from accepting it, and she excluded herself from the salary increase. The Charter of Hillsborough County provided that the "compensation" for the county administrator "shall be fixed by the Board of County Commissioners by ordinance" and that such compensation "may be set by contract if allowed by and pursuant to ordinance." The Respondent's employment contract with Hillsborough County established her initial salary as $179,000. According to Section 6 of the contract, the Respondent was entitled to receive the same "annual market equity increase" provided to "all other unclassified managerial employees of the County." The section also stated that additional salary or benefit increases could be granted by action of the BCC within 60 days of her annual performance evaluation. Hillsborough County Attorney Renee Lee and Director of the Hillsborough County Environmental Protection Commission Richard Garrity also met the efficiency goals, but their employment contracts with the county contained provisions similar to those of the Respondent, and, so, the Respondent excluded Ms. Lee and Mr. Garrity from receiving the salary increase. Both received the "Extra Mile Award" at the budget kick-off meeting. After the meeting had concluded, Ms. Lee sent an email addressed to the Respondent and Deputy County Administrator Hill wherein she asserted that the terms of her contract allowed her to receive "the award." In the email, Ms. Lee cited a provision in her contract that referenced entitlement to "such other benefits" as were made available to other county employees. Although there appears to have been some confusion regarding the names of the awards available to recognize county employees for their performance, it was clear that the reference to the "Extra Mile Award" in Ms. Lee's email referred to the salary increase. The Respondent's employment contract contained language similar to that cited in Ms. Lee's email, whereby the Respondent was entitled to the "benefits" available to other managerial employees in the county. As the county attorney, Ms. Lee reported directly to the BCC and, pursuant to the county charter, was the chief legal advisor for the BCC on all matters of county business, including personnel matters. The Respondent had no managerial authority over the county attorney at any time relevant to this proceeding. There is no evidence that the Respondent discussed the matter with Ms. Lee. After receiving Ms. Lee's email, the Respondent directed Deputy County Administrator Hill to contact Christina Swanson (director of the Employee Benefits Division in the county's Human Resources Department) and ask her to evaluate Ms. Lee's email. Deputy County Administrator Hill apparently did so, and Ms. Swanson thereafter asked Ms. Lee to provide a written legal opinion addressing whether the salary increase could be awarded under the terms of the contracts. On February 2, 2007, Ms. Lee issued a written legal opinion addressed to Ms. Swanson, stating that both Ms. Lee and the Respondent could receive the salary increases under the terms of their respective contracts. Although she had received a law degree, Ms. Swanson had not worked as a practicing attorney. The issues of the whether the salary increases underlying this case constituted a "benefit" of employment with Hillsborough County, and whether Ms. Lee's written legal opinion was correct, are not at issue in this proceeding. After Ms. Swanson received Ms. Lee's written legal opinion, the Human Resources Department processed the forms required to implement the salary increases for the Respondent and for Ms. Lee. The Respondent testified that she discussed the matter with Ms. Swanson after Ms. Lee issued the legal opinion. Ms. Swanson did not recall the conversation. In any event, the evidence fails to establish that the Respondent directed Ms. Swanson, or any other employee in the Human Resources Department, to process the paperwork required to implement the salary increases. On February 7, 2007, George Williams, the director of the county's Human Resources Department, signed the form ("Report of Change of Status"), approving the one percent salary increase awarded to the Respondent. The Respondent's hourly salary rate was increased from $101.82 to $102.84, effective January 7, 2007. The Respondent did not receive a copy of the form. Deb Dahma, a staff member in the Human Resources Department, signed the form approving the one percent salary increase awarded to Ms. Lee. The signature on that form was undated. There is no evidence that the Respondent directed either Mr. Williams or Ms. Dahma to sign the forms. The executed forms were sent to the county's payroll department, and their salary increases were implemented. On February 8, 2007, Ms. Lee authored another email to Ms. Swanson wherein she opined that, upon review of Mr. Garrity's contract, he was also eligible for the salary increase. There is no evidence that the Respondent participated in any effort to award the salary increase to Mr. Garrity, or that he accepted or received the salary increase. Both the Respondent and Ms. Lee accepted the salary increases. The county administrator's staff was responsible for preparation of agendas for BCC meetings. The Respondent participated in the preparation process and could direct placement of items on the agenda. The Respondent did not provide the BCC with an opportunity to consider the salary increases referenced herein and did not seek the explicit approval of the salary increases from the BCC either prior to or after they were implemented. The Respondent believed that the Human Resources Department, which handled personnel matters, would seek any approval of the salary increases required from the BCC, but the Human Resources Department did not bring the matter to the BCC for review. Although the BCC approved the Respondent's salary, including the increase underlying this case, during the Respondent's subsequent performance review, the evidence fails to establish that the BCC was advised that the salary included an increase that had not been approved by the BCC. At some later point, the Respondent's salary increase apparently became a matter of conflict with the BCC, and her salary was reduced to negate the one percent increase. The Respondent reimbursed Hillsborough County for the funds she received through the salary increase. The Respondent's employment as the Hillsborough County administrator was eventually terminated. An investigation of the circumstances of the raise that was conducted by the Florida Department of Law Enforcement resulted in no criminal charges being filed against the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that Patricia G. Bean did not violate section 112.313(6) and dismissing the complaint filed in this case. DONE AND ENTERED this 31st day of May, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 31st day of May, 2012.
The Issue The issue in this case is whether Respondent engaged in an unlawfully discriminatory employment practice against Petitioner on the basis of race and religion, and retaliated against him, in violation of the Florida Civil Rights Act of 1992 ("FCRA").
Findings Of Fact The Parties Petitioner, Lawrence N. Brown, III, is an African- American male and is of the Christian faith. Petitioner has been employed with Respondent since April 14, 2014, at its store located at 3800 Oakwood Boulevard, Hollywood, Florida (hereafter, the "Store"). As of the final hearing, Petitioner continued to be employed by Respondent at the Store. Respondent is a corporation doing business in Florida. Respondent owns and operates the Store at which Respondent was employed at the time of the alleged discriminatory and retaliatory actions. Employment Charge of Discrimination and Petition for Relief Petitioner filed an Employment Charge of Discrimination ("Discrimination Charge") with FCHR on or about March 10, 2016.4/ The pages attached to the Discrimination Charge form (which apparently was filled out in typewritten form by FCHR staff) were prepared by Petitioner. On or about July 18, 2016, Respondent issued a Determination: No Reasonable Cause, determining that Petitioner had not shown reasonable cause to believe that Respondent had committed unlawful employment practices against him. On or about August 16, 2016, Petitioner timely filed a Petition for Relief requesting a hearing to determine whether Respondent committed unlawful employment practices against him. The Petition for Relief alleges that Respondent engaged in unlawful discrimination against him on the basis of both his race and religion, and also alleges that Respondent engaged in unlawful retaliation. These charges, as specifically set forth in the Petition for Relief, are the subject of this de novo proceeding.5/ In the Petition for Relief, Petitioner claims that Respondent discriminated against him on the basis of race by failing to promote him into supervisory or managerial positions for which he claims he was qualified; by giving him lower scores on his employment evaluations than were given to a white employee working in the same position (part-time hardlines merchandiser); by not paying him as much as they paid that same white employee; and by retaining that same white employee as a part-time hardlines merchandiser in the Toy Department, while moving Petitioner to another position as cashier. Petitioner also claims that Respondent discriminated against him on the basis of his religion by scheduling him to work on Christmas Day 2015, while giving other employees that day off. Additionally, Petitioner claims that Respondent retaliated against him for complaining to Respondent's corporate legal department about having to work on Christmas Day 2015, by removing him as a hardline merchandiser in the Toy Department and reassigning him to a cashier position, then subsequently effectively "terminating" (in his words) his employment. Petitioner seeks an award of $5,000,000 in damages in this proceeding. Background Events As noted above, Petitioner was hired by Respondent on or about April 14, 2014. Petitioner initially was hired in a part-time position as a part-time overnight hardlines replenishment associate. In this position, Petitioner's work scheduling availability was between 10:30 p.m. and 6:00 a.m. When Petitioner was hired, Alberto Rodriquez was the Store manager. In his position as a part-time employee with Respondent, Petitioner was not guaranteed any specific number of weeks or hours of employment in any given calendar year, nor was he guaranteed that he would attain full-time employee status. The number of work hours Petitioner was assigned was dependent on the company's business needs and on Petitioner's ability to meet the applicable job performance standards. Petitioner acknowledged these and the other conditions of his employment as evidenced by his signature on the Pre-training Acknowledgment Summary dated April 14, 2014. As a result of the elimination of the overnight replenishment associate position, on or about October 26, 2014, Petitioner was transferred to another position as a part-time daytime hardlines merchandiser. In this position, his work scheduling availability was between 6:00 a.m. and 1:00 p.m. As a hardlines merchandiser, Petitioner was responsible for stocking store shelves with merchandise, straightening merchandise on store shelves, putting returned merchandise on shelves, and generally keeping the hardlines departments neat and the shelves fully stocked. The Toy Department at the Store was one of several departments that were categorized as "hardlines" departments. In his duties as a hardlines merchandiser, Petitioner was not assigned to any specific hardlines department, and his responsibilities entailed working in any hardlines department as needed. However, as a practical matter, due to the work demand, Petitioner worked mostly, if not exclusively, in the Toy Department until he was reassigned to the cashier position after Christmas 2015. David Leach became the Store manager in April 2015. At some point before Christmas Day 2015, the work schedule for the week of December 20 through 26, 2015, was posted. Petitioner was scheduled to work on Christmas Day, December 25, 2015. Petitioner did not volunteer, and had not otherwise requested, to work on Christmas Day 2015. The Store was closed on Christmas Day 2015, which was a paid holiday for Respondent's employees. On or about December 23, 2015, Petitioner contacted Respondent's corporate legal department, requesting to be removed from the work schedule for Christmas Day 2015. Pursuant to a directive from Respondent's corporate office, Petitioner was removed from the work schedule for that day. Petitioner was not required to work on Christmas Day 2015, and he did not work that day. Petitioner was paid for the Christmas Day holiday. Although the Store was closed on Christmas Day 2015, some Store employees were scheduled to work, and did work, that day on a volunteer basis, for which they were paid. On December 28, 2015, Leach presented Petitioner with a Request for Religious Accommodation form to sign. Petitioner signed the form. The form was marked as showing that Respondent "granted" the religious accommodation. Also on December 28, 2015, Leach informed Petitioner that he had eliminated the part-time daytime hardlines merchandiser position. He offered Petitioner other part-time positions, either as a cashier or in making pizza at the Little Caesar's pizza station in the Store. Leach did not offer any other positions to Petitioner at that time. Petitioner was reassigned to the cashier position, but informed Leach that he was unable to stand in a single place for long periods of time due to injuries he previously had sustained while working on the overnight shift. Petitioner was reassigned to the cashier position, effective January 3, 2016.6/ Petitioner's hourly wage did not change when his position changed to cashier. He continued to make the same hourly wage that he had made as a daytime hardlines merchandiser. At some point on or after December 28, 2015, Petitioner signed a Personnel Interview Record form that reflected his revised work hours associated with his position change to cashier. The form stated his availability to work between 8:00 a.m. and 5:00 p.m., Monday through Saturday. The evidence is unclear as to whether Petitioner did (or did not) call in to inform the appropriate Store personnel that he would not be working on Tuesday, December 29, or on Thursday, December 31, 2015. Regardless, the persuasive evidence shows that Petitioner worked on Monday, December 28, 2015; did not work on Tuesday, December 29, or Thursday, December 31, 2015; and worked on Saturday, January 2, 2016. The work schedule for the week of January 3 through 10, 2016, was computer-generated some time during the week of December 27, 2015, through January 3, 2016. If an employee does not report to work when scheduled and does not call in to be excused from work on those days, this situation is termed a "no call-no show," and the employee will not be scheduled to work the following week. This is to ensure that there are cashiers available as needed to work on upcoming dates. Regardless of whether Petitioner did or did not call in to inform Respondent he would not be working on Tuesday, December 29, or Thursday, December 31, 2015, the posted work schedule for the week of January 3 through 10, 2016, showed Petitioner as not being scheduled to work that week. However, the evidence shows that Petitioner did, in fact, work a total of 15.90 hours the week of January 3 through 10, 2016. The work schedule posted as of Saturday, January 9, 2016, also showed Petitioner as not being scheduled to work the week of January 10 through 16, 2016. However, the evidence shows that Petitioner worked a total of 15.41 hours the week of January 10 through 16, 2016. At some point between January 13 and January 26, 2016, Petitioner was moved from the cashier position to the Store's date code specialist position. The date code specialist position also is a part-time position, for which Petitioner is paid the same hourly wage as he was paid as a daytime hardlines merchandiser. As of the final hearing, Petitioner continued to be employed by Respondent, working as the Store's date code specialist. Race Discrimination Claims As previously noted, Petitioner began working for Respondent at the Store on April 14, 2014. His initial employment position was as a part-time overnight replenishment associate. In October 2014, he moved to a part-time daytime hardlines merchandiser position. In both positions, he was responsible for stocking and restocking merchandise in all hardlines departments, so was not assigned exclusively to the Store's Toy Department. However, as noted above, due to work demand in the Toy Department, Petitioner did most, if not all, of his work in that department until he was moved to the cashier position in late December 2015.7/ Petitioner contends that starting in mid-2014,8/ he periodically requested to be promoted to "Toy Lead" or to another supervisory or managerial position. He testified that he had undertaken many activities and implemented various systems to improve the efficiency and productivity of the Toy Department and other departments at the store, and had documented these activities and transmitted that information to the Respondent for inclusion in his personnel file. He testified that rather than promoting him to a supervisory position in the Toy Department, Respondent instead hired a non-African-American person to fill that position.9/ Petitioner additionally testified that he periodically would request to be transferred or promoted to other supervisory positions, but that Respondent did not grant these requests. He contends that since he was qualified for these positions, the only basis for Respondent's decision to fill those positions with other employees was discrimination against him on the basis of his race. In response, Leach testified that there was no formal "Toy Lead" position at the Store; rather, the person supervising the Toy Department is an assistant store manager, a position that entails supervising other hardlines departments besides the Toy Department. Further, Leach testified that in his view, Petitioner was not qualified to occupy certain supervisory positions because of his lack of experience in those areas and his relatively short period of employment with Respondent. Leach also testified that Petitioner had not ever formally applied for a promotion through Respondent's online application process. Petitioner further asserts that Respondent discriminated against him on the basis of race because he was not paid the same amount as Corey Harper, a white male hardlines merchandiser who also often worked part-time in the Toy Department on the afternoon or evening shift, even though he worked harder and received higher evaluation scores than did Harper.10/ However, Leach credibly testified that Respondent does not currently base its pay rate for part-time employees on job performance evaluation scores, but instead pays them a set hourly pay rate. According to Leach, Respondent has not given an hourly pay rate raise to part-time employees since 2009, so that any pay differential depended on whether employees were hired before or after 2009. Leach credibly testified that Harper has been employed by Respondent since 2004, so had received hourly pay rate raises between 2004 to November 2008; this would result in his hourly pay rate being higher than Petitioner's, even though both are part-time employees. Petitioner testified that when he was moved from the daytime hardlines merchandiser position to the cashier position after Christmas 2015, he made it clear that he wanted to remain in the Toy Department; however, Respondent transferred him out of that department while allowing Harper to remain in a hardlines merchandiser position, which entailed work in the Toy Department. Petitioner also made clear that he wished to return to the hardlines merchandiser position in the Toy Department when such a position became available; however, at some point, Leach reassigned Carol Yaw, who was white, from her previous office manager job to a hardlines merchandiser position. Petitioner asserts that Respondent's actions in allowing Harper to remain as a part-time hardline merchandiser and reassigning Yaw to a hardlines merchandiser position constituted discrimination against him on the basis of his race. However, Leach credibly testified that the part-time daytime hardlines merchandiser position that Petitioner had occupied was eliminated because of the lack of work in that position, primarily due to declining Toy Department sales after the holiday season. Additionally, immediately after Christmas 2015, Leach consolidated the overnight merchandise unloading and daytime shelf stocking positions and moved the overnight unloading employees to the day shift, where their duties consist of unloading merchandise from trucks and stocking shelves.11/ Leach credibly testified that Harper was not moved from his position because Leach had specifically decided not to move others unaffected by this reorganization out of their existing positions, and that Harper was an afternoon/evening hardlines merchandiser. Leach also credibly testified that he had moved Yaw to a full-time hardlines merchandiser position after her office manager position was eliminated because she was a 25-year employee of Respondent, and he felt that she deserved that position out of loyalty for being a long-term employee of Respondent. Petitioner also contends that Respondent's evaluation of his job performance was unfair because it was conducted by an assistant store manager, Marjorie McCue, who was not his direct supervisor. Specifically, he contends that McCue was unfamiliar with his job performance, so did not appropriately consider, in his evaluation, improved Toy Department sales performance and efficiency that were due to measures that he had implemented. Petitioner also contends that McCue initially deliberately gave him an inaccurately low job performance evaluation in an effort to create a record to support terminating his employment, but that when he complained, those lower scores were changed to higher scores. The only performance evaluation regarding Petitioner's job performance that was admitted into evidence is a document titled "Employee Review" that was dated January 31, 2015; Petitioner received a 3.10 overall performance score on this performance evaluation.12/ The Employee Review for Harper dated January 31, 2015, also was admitted into evidence; Harper's overall performance score was 3.00. Upon careful consideration of the competent substantial evidence in the record, it is determined that Petitioner failed to carry his burden13/ to establish a prima facie case of employment discrimination by Respondent on the basis of his race. To do so, Petitioner must show that: (1) he is a member of a protected class; (2) he was subject to adverse employment action; (3) he was qualified to do the job; and (4) his employer treated similarly-situated employees outside of his protected class more favorably than he was treated.14/ It is undisputed that Petitioner, as an African- American, is a member of a protected class. However, the evidence does not support a finding that Petitioner was subject to adverse employment action. With respect to his assertion that Respondent failed to promote him on the basis of his race, Petitioner needed to show that, in addition to being a member of a protected class, he applied for and was qualified for a promotion; that he was rejected despite his qualifications; and that other equally or less-qualified employees outside of his class were promoted.15/ While Petitioner frequently sent email correspondence to Respondent's corporate legal office requesting to be promoted, the evidence does not show that he followed Respondent's formal online application process for applying for promotions.16/ Further, although the evidence indicates that Petitioner is very hard-working, energetic, bright, and detail-oriented, he did not demonstrate that those characteristics necessarily qualified him for the supervisory positions about which he inquired. He also did not demonstrate that Respondent filled the positions about which he had inquired with less-qualified non-African-American employees. In fact, Petitioner acknowledged, in testimony at the final hearing and in email correspondence with Respondent's corporate legal office, that in his view, some of the individuals who had been promoted were qualified for the positions to which they had been promoted. For these reasons, it is determined that Petitioner did not demonstrate adverse employment action by Respondent by failing to promote him on the basis of his race. Petitioner also did not show that he received a lower pay rate and lower evaluation scores than did other similarly- situated employees who were not members of his protected class. The only comparator to which Petitioner referred was Harper, the other part-time hardlines merchandiser that sometimes worked in the Toy Department. However, as discussed above, the evidence showed that Harper actually scored lower than did Petitioner on the January 31, 2015, evaluation.17/ Further, Harper was not similarly situated to Petitioner with respect to pay rate because Harper is a longer-term employee who had received hourly pay rate raises in 2005 through 2008, before Respondent ceased giving raises of hourly pay rates in 2009, but Petitioner was hired in 2014, after Respondent ceased giving hourly pay raises. Petitioner also did not show, by the greater weight of the evidence, that Leach discriminated against him on the basis of his race by electing to reassign him, rather than Harper, to a cashier position after Christmas 2015, and by later reassigning Yaw to fill a full-time hardlines merchandiser position that included responsibilities of working in the Toy Department. As discussed above, when Leach decided to eliminate the part-time daytime hardlines merchandiser position, he chose not to reassign other employees who were not directly affected by the elimination of that position. The evidence shows that Leach did not reassign Harper to a cashier position because Harper's position was not directly affected by the elimination of the daytime hardlines merchandiser position——not because Leach favored Harper over Petitioner due to race. Also as discussed above, Leach reassigned Yaw to a full-time hardlines merchandiser position after her office manager position——also a full-time position——was eliminated. Because Yaw was a full-time employee, she did not fill a position for which Petitioner was eligible as a part-time employee; furthermore, under any circumstances, she was not similarly situated to Petitioner because of her longer term of employment with Respondent. For these reasons, neither Harper nor Yaw are similarly situated to Petitioner for purposes of being comparators. For these reasons, it is found that Petitioner did not establish a prima facie case of employment discrimination against him by Respondent on the basis of his race. Further, even if Petitioner had established a prima facie case of employment discrimination on the basis of race, Respondent articulated legitimate, non-discriminatory reasons for its actions with respect to Petitioner. As discussed above, Respondent did not promote Petitioner because he did not go through Respondent's formal application process for seeking promotions, and also because Leach determined, on the basis of Petitioner's lack of experience and employment longevity, that Petitioner was not qualified for supervisory positions at that time. Additionally, Leach's decisions regarding reassigning Petitioner to a cashier position while retaining Harper and reassigning Yaw to hardlines merchandiser positions were management decisions based on business needs and requirements, rather than on the basis of race. Petitioner did not present evidence showing that these reasons were a pretext for discrimination against him on the basis of his race. Based on the foregoing, it is determined that Respondent did not discriminate against Petitioner on the basis of his race, in violation of section 760.10(1)(a). Religious Discrimination Claim As previously discussed, shortly before Christmas Day 2015, the employee work schedule for the week of December 20 through 26, 2015, was posted in the Store. This schedule showed Petitioner as being scheduled to work from 6:00 a.m. to 3:00 p.m. on Christmas Day, which fell on a Friday in 2015. The Store was closed on Christmas Day 2015, which was a paid employee holiday; however, employees could work that day on a voluntary basis and they would be paid time-and-a-half for doing so. As noted above, Petitioner did not volunteer or otherwise indicate that he was willing to work that day. Upon seeing that he was scheduled to work on Christmas Day, Petitioner contacted Respondent's corporate legal department, which then contacted Leach. Leach had Petitioner removed from the work schedule for December 25, 2015. Petitioner was not required to work that day, did not work that day, and was paid for the Christmas Day 2015 holiday. Petitioner claims that by scheduling him to work on Christmas Day, Respondent discriminated against him on the basis of his religion. Petitioner asserts, as evidence of Respondent's discriminatory intent, that there are others who worked in the Toy Department who were not of the Christian faith, so that if someone was needed to work on Christmas Day, one of those individuals could instead have been scheduled. As previously noted, on December 28, 2015, Leach presented Petitioner with a Request for Religious Accommodation form to sign. Leach credibly testified that the purpose of having Petitioner sign the form was to have a written record of Petitioner's religion so that Petitioner would not again be assigned to work on a Christian religious holiday. Petitioner signed the form, but protested being required to do so, because, in his view, Respondent already was on notice that he is of the Christian faith because he always had Sundays off of work. Petitioner testified that when he was hired in April 2014 (notably, before Leach became Store manager) he had verbally requested Sundays off, effectively placing Respondent on notice that he is of the Christian faith. On this basis, Petitioner asserts that Leach and other managers and supervisors at the Store knew that he is Christian and that they nonetheless intentionally scheduled him to work on Christmas Day. Petitioner acknowledged that he never heard Leach make any comments with respect to his (Petitioner's) religion. Leach credibly testified that before he was contacted by Respondent's corporate office regarding Petitioner's concerns about being scheduled to work on Christmas Day 2015, he did not know that Petitioner was Christian, and he had not inferred that from the fact that Petitioner did not work on Sundays.18/ Leach testified, credibly and persuasively, that Petitioner was scheduled to work on Christmas Day 2015 by mistake. He explained that the work schedule for the week of December 20 through 26, 2015, was generated using a pre-populated "template" method. This method, which is a method by which the Store sets its weekly work schedules, entails week-to-week copying of the regular——i.e., "template"——work schedule for all Store employees, then modifies that schedule as needed to address changes to individual employee work schedules. Leach explained that in using this method to establish the work schedule for the week of December 20 through 26, 2015, Respondent had inadvertently scheduled employees who had not volunteered to work on Christmas Day. He surmised that this was a possible explanation for why Petitioner mistakenly was scheduled to work that day. As noted above, Petitioner was not the only Store employee scheduled to work on Christmas Day 2015. Upon consideration of the competent substantial evidence in the record, it is determined that Petitioner failed to carry his burden to establish a prima facie case of employment discrimination by Respondent on the basis of his religion. To do so, Petitioner must show that he: (1) was a member of a protected class; (2) informed Respondent of this belief; and (3) suffered adverse employment action as a result of failing to comply with the employment requirement that conflicted with his belief. It is undisputed that Petitioner falls within a protected class for purposes of a discrimination claim on the basis of religion. However, Petitioner did not prove the existence of the other two elements necessary to establish a prima facie case of employment discrimination on the basis of religion. Specifically, Petitioner did not prove that Respondent knew that he was Christian or that his Christian faith prohibited him from working on Christmas Day. As noted above, Petitioner was hired at the Store before Leach became Store manager. Further, because Petitioner had not been required to complete a written religious accommodation form when he was hired in April 2014, Respondent did not have any written notice in its possession that would have informed Leach that Petitioner was Christian or that Petitioner needed certain Christian holidays, such as Christmas Day, off of work. As noted above, Leach credibly testified that he did not know that Petitioner was Christian until Respondent's corporate legal office contacted him regarding Petitioner's religion-based complaint about being scheduled to work on Christmas Day 2015. The evidence also shows that Petitioner did not suffer any adverse employment action. As soon as Respondent was informed of Petitioner's complaint, Petitioner was removed from the work schedule for Christmas Day 2015, did not work that day, and was paid for that holiday. For these reasons, it is determined that Petitioner did not establish, by the greater weight of the evidence, a prima facie case of discrimination by Respondent against him on the basis of his religion. However, even if Petitioner had established a prima facie case of discrimination on the basis of religion, Respondent produced credible, persuasive evidence showing a legitimate, non- discriminatory basis for its action——that is, that through the Store's use of the template work scheduling system, Petitioner was mistakenly scheduled to work on Christmas Day 2015. As noted above, as soon as Petitioner complained to Respondent, Respondent immediately accommodated his request by removing him from the Christmas Day 2015 work schedule. Petitioner did not present any evidence showing that Respondent's proffered reason for scheduling him to work on Christmas Day 2015 was a pretext for discrimination on the basis of his religion. For these reasons, it is determined that Petitioner did not show, by a preponderance of the evidence, that Respondent discriminated against him on the basis of his religion, in violation of section 760.10(1)(a). Retaliation Claim Petitioner claims that Respondent retaliated against him for complaining to Respondent's corporate legal office about being scheduled to work on Christmas Day 2015 by reassigning him from his position as a daytime hardlines merchandiser——a position that he clearly liked and at which he believed he excelled——to a cashier position——a position that he clearly considered demeaning and that also was physically difficult for him to perform due to a previous injury. Petitioner was informed that he was being reassigned to a cashier position only five days (and the first workday) after he complained to Respondent's corporate legal office about being scheduled to work on Christmas Day.19/ Petitioner testified that Leach told him that the part- time daytime merchandiser position had been eliminated due to the lack of work demand, particularly in the Toy Department, after the Christmas season was over. Petitioner testified that when he asked Leach about available positions in to which he could transfer, Leach told him that only cashier or pizza-making positions were available. Petitioner provided evidence that a softlines customer service job, which he claims he would have preferred, was open at the time he was reassigned and that Leach did not inform him of that opening or offer him that position. Petitioner also disputes that the part-time daytime merchandiser job that he had occupied had been eliminated. As evidence, he contends that Harper continued to occupy that position, and also that Leach subsequently reassigned Yaw to a full-time hardlines merchandiser rather than transferring him back into a hardlines merchandiser position, as he had requested. The part-time cashier position to which Petitioner was transferred was the same level of employment position in Respondent's employment hierarchy as was the part-time daytime merchandiser position that he previously held. Additionally, as discussed above, as a part-time cashier, Petitioner continued to receive the same hourly pay rate and work scheduling availability as he had received when he was employed as a part-time daytime hardlines merchandiser. As discussed above, on or before January 26, 2016, Petitioner was reassigned to the Store's date code specialist position. According to Leach, that position came open after Petitioner was reassigned to the cashier position, and Leach believed that the date code specialist position would play well to Petitioner's strengths of being methodical and detail- oriented. Petitioner bears the burden, by the greater weight of the evidence, to establish a prima facie case of retaliation by Respondent. To establish a prima facie case of retaliation, Petitioner must show that: (1) he engaged in a protected activity; (2) he suffered a materially adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action.20/ For the following reasons, it is found that Petitioner did not satisfy his burden to establish a prima facie case of retaliation. It is determined that Petitioner engaged in a "protected activity" when he complained to Respondent's corporate legal office, by email dated December 23, 2015, that he had been scheduled to work on Christmas Day 2015. The email stated: Attn: Legal My schedule states that I am scheduled for Christmas day. I am a Christian I exercise religious right no work on a high religious day. Christmas is the day I celebrate the birth of Christ thus the name Christmas day. A Jewish person was assigned to my department (toys) and was allowed to have off all the Jewish holidays. I was told that is his right and approved, I said fine, I don't know who was arguing this but this was fine with me, because I have many Jewish friends, so I understand. Easter which falls on a Sunday and Christmas are my holidays. I am requesting off. I am requesting Christmas day off with holiday pay as my religious day, just like I requested Sundays off. Only I can change my religious day and work on Sunday, which I might have to when promoted. If management tells me I cannot be promoted because I exercise my religious right not to work on the seventh day, then I will have to do as Jewish people have done for centuries, they are released from the commandment that they may only eat Kosher. If captured by the enemy they may eat to survive. So if I can only be manager if I give up my religious right not to work on Sunday, then I will do what management says is a requirement. Thank you. Lawrence Brown Kmart-Hollywood, Fl Oakwood Plaza To be a "protected activity," the activity giving rise to the alleged retaliatory action must, at the very least, communicate to the employer that the complainant believes the employer is engaging in discrimination against him. Petitioner's email can be read broadly to inform Respondent that he believed he was being discriminated against on the basis of his religion by being scheduled to work on Christmas Day 2015. To that point, Petitioner specifically compared his circumstances to those of a Jewish employee who had requested and been allowed to have all Jewish holidays off of work. While not specifically using the word "discrimination," Petitioner's email can be reasonably read to place Respondent on notice that Petitioner believed he was being treated differently than a similarly-situated employee who was not a member of Petitioner's protected class and who had been excused from work on the holidays observed by his religion. Additionally, Leach was aware that Petitioner had complained to Respondent's corporate legal department about being scheduled to work on a Christian holiday. Accordingly, it is determined that Petitioner has established the "protected activity" element of his retaliation claim. However, Petitioner did not show that he suffered a materially adverse employment action as a result of having engaged in protected activity. His reassignment to the part-time cashier position effectively was a lateral transfer that did not affect his hourly pay rate or hours of work scheduling availability. Although Petitioner subjectively considered the cashier position to be demeaning and below his skill level21/ and although his job responsibilities changed, the evidence shows that Petitioner was not reassigned to an objectively less prestigious or otherwise inferior employment position. Furthermore, in any event, approximately three weeks after Petitioner was reassigned to the cashier position, Respondent reassigned him to a position as the Store's date code specialist——a position that he has officially held since January 26, 2016, and from which he has not requested to be transferred. In this position, Petitioner earns the same hourly wage and has the same number of hours of work availability as he did in the hardlines merchandiser and cashier positions. He is solely responsible in the Store for ensuring that date-coded merchandise on the shelves has not exceeded its expiration date—— a position that entails significant responsibility and, as Leach put it, is "very important." The evidence also does not support Petitioner's assertion that his removal from the work schedule in early January meant that he was effectively terminated. Although the evidence does not clearly show what days Petitioner did not work during the week after Christmas in 2015, or whether he did (or did not) call in to notify Respondent that he would be absent, the evidence does clearly establish that Petitioner was not scheduled to work the first week of January 2016, and it is also clear that management personnel at the Store did not believe that he had called in to notify them of his absence. Leach explained that if an employee does not report to work when scheduled and does not call in to notify the Store of his or her absence, the employee will not be scheduled to work the following week; this is to ensure that there are enough cashiers available as needed to work in the upcoming week. In any event, when Petitioner noticed that he had not been scheduled to work, he contacted the Store's human relations manager, who told him to come back to work. In fact, Petitioner worked the first and second weeks of January 2016, and thereafter, and he continues to be employed at the Store. Further, Petitioner was never told or otherwise notified, formally or informally, that his employment with Respondent had been terminated. For these reasons, it is determined that Petitioner did not suffer a materially adverse employment action by being reassigned for a short period of time from a part-time daytime hardlines merchandiser to a part-time cashier position. Petitioner also did not demonstrate the existence of a "causal link" between a protected activity and adverse employment action. As discussed above, Petitioner's sending an email to Respondent's corporate legal office about being scheduled to work on Christmas Day 2015 constituted a "protected activity." However, as discussed above, it is determined that Respondent did not engage in an adverse employment action; thus, Petitioner's engagement in protected activity did not "cause" Respondent to take any material adverse employment action against him. Furthermore, in any event, Respondent articulated a legitimate, non-discriminatory reason for reassigning Petitioner to a cashier position shortly after Christmas Day 2015—— specifically, that the part-time daytime merchandiser position that Petitioner had held was eliminated due to seasonal workload decline and other business management decisions reallocating hardlines merchandise-related tasks between the overnight and daytime shifts. For these reasons, it is determined that Petitioner did not prove, by the greater weight of the evidence, that Respondent retaliated against him for engaging in a protected activity, in violation of section 760.10(7). Damages Petitioner has requested an award of damages in the amount of $5,000,000. However, section 760.11(6), which governs the award of remedies in administrative proceedings brought under the FCRA, does not authorize DOAH to award damages. Further, the evidence establishes that Respondent did not engage in any unlawful employment practices with respect to Petitioner, and, in any event, Petitioner did not present any evidence to support his entitlement to an award of damages in this proceeding.
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 dismissing the Petition for Relief. DONE AND ENTERED this 14th day of June, 2017, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 14th day of June, 2017.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was discriminated against through an adverse employment decision by the Respondent, because of the Petitioner's age.
Findings Of Fact The Petitioner was hired by the Respondent on or about April 27, 1998, as a salesperson. When the Petitioner was hired he was 77 years of age. He is currently 84 years of age. Apparently the principal reason the Petitioner was hired was because of his substantial business contacts and principal client, which was Winn Dixie Stores, Inc. The Petitioner had sold food, principally seafood, to Winn Dixie for a substantial period of time. The Petitioner worked for a division of the Respondent known as the Great Fish Company. The Great Fish Company began operations in October of 1998. Mr. Carter, the president of Great Fish Company was the Petitioner's supervisor. During his employment with the Respondent, the Petitioner worked from his home. He sold seafood to customers, principally Winn Dixie, for which he was primarily paid on a commission basis. During his term of employment his compensation plan was periodically changed by the Respondent. Some of those changes financially benefited the Petitioner in some years and other changes served to reduce his commission or compensation. During the term of the Petitioner's employment with the Respondent, the Respondent also periodically changed the compensation plans of other employees of the Respondent; some of those changes involved reductions of their compensation plans and some involved increases. This depended upon the sales volume of those individual employees or the revenue situation of the company overall. In or about June of 2003, the Respondent changed the Petitioner's compensation plan. This change did not benefit the Petitioner but represented a reduction in compensation. This change to his compensation plan, however, was based upon legitimate business and financial reasons and was non- discriminatory, because it was based upon a down-turn in business, sales, and revenue for the company. Around the same period of time, the Petitioner advised the Respondent that he believed he was underpaid on earned commissions. Because of this the Respondent performed an audit of the Petitioner's commissions to determine if indeed he had been underpaid. The results of that audit did not establish that the Petitioner had been underpaid but rather that he had been overpaid by approximately $9,000.00 dollars. The audit results were provided to the Petitioner and the Petitioner disputed the results. The Petitioner never complained during his employment to any employees of the Respondent or supervisors suggesting that any employees or supervisors had discriminated against him or retaliated against him because of his age or because of his dispute concerning compensation, during his term of employment. There is no evidence that the Petitioner was singled-out or treated less favorably than other employees, including other employees of different ages, in terms of his compensation or other employment conditions. Indeed, there was no persuasive evidence presented at hearing that the Petitioner was treated less favorably in any way than other employees of the Respondent, regardless of their ages. There apparently came a time after June of 2003 and during 2004 when the Petitioner earned very little or no commissions from the Respondent. His employment was never actually terminated by the Respondent. The Petitioner rather either voluntarily quit his employment sometime prior to the final hearing or his sales opportunities dropped off so that, essentially, he was earning little or no compensation from the Respondent, while working out of his home in accordance with their arrangement. This down-turn in business apparently had a great deal to do with the severe financial circumstances his principal customer, Winn Dixie Stores, Inc., found itself in during this same period of time. In any event, the reduction in the Petitioner's commissions and compensation was not shown to be due to any effort or intent by the Respondent to single him out because of his age and reduce his compensation in some effort to force him to resign or retire. The reduction in his compensation was for the business reason of a decrease in revenues generated by the Petitioner himself or being experienced by the company as a whole, necessitating reduction of not only the Petitioner's but other employee's compensation, as a matter of a prudent business practice by the Respondent.
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, 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 11th day of August, 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 11th day of August, 2004. COPIES FURNISHED: Cecil Howard, 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 Wyn Samuel 130 Willow Pond Lane Ponte Vedra Beach, Florida 32082 J. Scott Hudson, Esquire 200 South Orange Avenue, Suite 1220 Orlando, Florida 32801 Robert J. Stovash, Esquire Stovash, Case and Tingley, P.A. SunTrust Center 200 South Orange Avenue, Suite 1220 Orlando, Florida 32801
The Issue The issue is whether Respondent, Pritesh, Inc., d/b/a IHOP 36-151 ("IHOP"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2011),1/ by discharging Petitioner from her employment in retaliation for her complaints regarding racial and religious discrimination in the workplace.
Findings Of Fact IHOP is an employer as that term is defined in subsection 760.02(7), Florida Statutes. IHOP is a restaurant in Leesburg. IHOP is owned by Pritesh Patel, who owns and operates a total of four International House of Pancakes stores in the Leesburg area through his corporation, Pritesh, Inc. Petitioner is a black female who is an observant Jew. Because of her religious beliefs, Petitioner does not work on the Sabbath, from sundown on Friday until sunset on Saturday. Petitioner was hired to work as a server at IHOP on March 19, 2012. She made it clear that she did not work on the Sabbath, and IHOP agreed to respect her religious beliefs. There was some difference in recollection as to the notice Petitioner gave to IHOP. Petitioner testified that she made it clear she could not work until sundown on Saturdays. The store manager, Brian Jackson, also recalled that Petitioner stated she could only work Saturday evenings. Mr. Patel testified that Petitioner said that she could work on Saturday "afternoon." Petitioner's version is credited as being more consistent with her stated beliefs, though there is no doubt that Mr. Patel was testifying honestly as to his recollection. Petitioner was the only black server working at IHOP at this time. Both Mr. Patel and Mr. Jackson credibly testified that IHOP has had many black servers through the years. Mr. Jackson noted that Petitioner only worked for IHOP for a period of two weeks and therefore was in no position to judge IHOP's minority hiring practices. Petitioner testified that assistant manager Hemanshu "Shu" Patel, a relative of the owner, created a hostile working environment for her from the time she started on March 19. She complained that Shu would alter the seating chart so that she would have fewer tables to cover, meaning a reduction in her tips. Petitioner also stated that Shu was disrespectful and rude, in a manner that caused her to believe there was a racial motivation behind his actions. Despite the fact that Shu was subordinate to Mr. Jackson, Petitioner believed that Shu was really in charge because he was a relative of Mr. Patel and therefore "untouchable" as an employee of IHOP. Petitioner's main complaint was that Shu, who was in charge of work schedules for the restaurant, scheduled her to work on Saturdays. Petitioner testified that on the first Saturday of her employment, March 24, Shu called her to come into work at noon. She replied that she could not come in until after sundown. This problem was apparently worked out to Petitioner's satisfaction, and she was not required to report to work on Saturday afternoon. However, when Shu posted the next week's schedule on the following Tuesday, Petitioner saw that she had been scheduled to work on the morning of Saturday, March 31. Petitioner complained. Both Mr. Patel and Mr. Jackson testified that Shu had merely made an error in scheduling that was rectified as soon as Petitioner notified them of the problem. Petitioner did not deny that the problem was resolved mid-week, well before any Sabbath conflict could arise. Mr. Patel testified that he wanted Petitioner to work from 4 p.m. until midnight on Saturday, March 31, so that she would not lose a day's work due to the scheduling error. Shu phoned Petitioner early on Saturday afternoon and asked her to come in. Petitioner told Shu that she could not come in until 8 p.m. Mr. Patel testified that he did not need someone to work a four-hour shift, and that Petitioner was told not to come in. As a further reason for declining to work on Saturday evening, Petitioner testified that she had only been trained for the morning shift. Mr. Jackson testified that the only distinction between the dayshift and the nightshift is that the latter is less busy. All servers are trained for the morning shift. Mr. Jackson stated that, once trained for the morning shift, a server would find the night shift "a piece of cake." Petitioner's reason for not working in the evening was not credible in this respect. Mr. Patel testified that he had no problem with Petitioner's not working on that Saturday, provided that she understood she was going lose a day. Mr. Patel stated that from his point of view the problems began when Petitioner insisted that he give her weekday hours to make up for the lost Saturday hours. Mr. Patel declined to cut another employee's hours for Petitioner. Petitioner came in to work on the morning of Sunday, April 1. Sunday morning is a busy time for IHOP. According to head server Bernadine Hengst, Petitioner stood near her at the register and voiced her complaints about Shu, who was working in the kitchen. Shu heard Petitioner and stepped into the dining room, asking her, "You got something to say to me?" Petitioner and Shu became loud, and their argument was moved outside for fear of disturbing a restaurant full of people. Petitioner finished her shift then went home and composed a letter to Mr. Patel. She made copies of the letter for every employee at IHOP. Ms. Hengst was the first to see the letter. She phoned Mr. Jackson at home to tell him about it, and Mr. Jackson phoned Mr. Patel. The letter read as follows: On March 19, 2012, I was hired to work as a server. I am a professional, pleasant, respectful, prompt and dutiful individual. As the only African-American server, it is imperative that you know since I have arrived at IHOP, I have faced fierce blatant hostility from a manager ("Shu") and co- workers ("C.C., Misti and Cherish"). I feel Shu has deliberately created a divisive and hostile working environment. It is my understanding Shu is a family member yet his behavior is definitely bad for business. On two separate occasions, Shu altered the seating chart that Brian originally created and took two tables from me. He lacks proficient management skills and is totally unprofessional, disrespectful and rude. On Sunday, April 1, 2012, Shu spoke to me in a loud, impolite manner in front of staff and customers. Shu communicated in a very bellicose fashion and for a moment, it felt as though he would physically attack me. You must take it serious that Shu's conduct is detrimental to your business. When Shu hired me I made it clear that I am Jewish and do not work on the Sabbath ("Saturday"). Nevertheless, Shu called me to come into work on Saturday about noon; I told him I would come in after the Sabbath at 7:00 p.m. The following week I was scheduled to work a Saturday, which in turn caused me to lose a day of work. Also on April 1, 2012, Shu assigned me only two booths for the whole day; when I spoke up about it he threatened to take another booth from me. This type of attitude and his unfair behavior cannot be tolerated in the United States of America in 2012. Shu is outwardly mean, discriminative, and racist towards me. He acts like a tyrant, a bully and he feels he is untouchable. On Sunday, April 1, I was only assigned two booths while my co-workers had four to six tables. This was unfair seating arrangements. At the end of the day, Bernie [Hengst] told all the servers to tip out the busboy, yet I did not because I was unjustly treated by only being assigned two tables. This was one-sided and insulting. I am an exceptional waitress and I depend on this job to pay my bills. During my first week, I was scheduled to work 36.10 hours and this week I was only given approximately 23.0 hours. Everyone should be treated fairly and equally. I ask that you continue to give me a full schedule each week. This letter officially informs you of the battles I have dealt with in your establishment and I have not worked here for one whole month. All Americans have the right to work without being harassed. I urge you to intervene and equitably resolve this issue. Ms. Hengst testified that Shu is a loud person who "talks with his hands," but she saw nothing that gave her the impression that Shu would "physically attack" Petitioner. She did not detect that Shu treated Petitioner any differently than he treated other servers. Ms. Hengst saw Petitioner as an equal participant in the April 1 confrontation. As to Petitioner's complaint about the number of tables to which she was assigned, Mr. Jackson testified that servers are always trained on two booths and then moved to four booths after training is completed. He stated that Petitioner was doing a "terrible" job working four booths, which caused Shu to move her down to two. Mr. Jackson stated that it is counterproductive to overwhelm a new server, and that the server must demonstrate the ability to perform the basics before taking on more tables. On the morning of April 2, after reading Petitioner's letter, Mr. Patel went to the IHOP and sat down for a meeting with Petitioner in hopes of addressing her complaints. Mr. Patel testified that the first thing Petitioner asked him was, "Do you know how many black employees you have?" Though he had been willing to discuss Petitioner's grievances concerning scheduling, Mr. Patel decided to fire Petitioner when she started "threatening us" based on claims of "black and white discriminating." He decided to fire Petitioner for the future of his business, because he did not want the problems associated with allegations of discrimination. Mr. Jackson was also at the April 2 meeting, and testified that Petitioner claimed she was being singled out because of her race. Based on all the testimony, it is found that Petitioner had little basis for claiming that IHOP was discriminating against her based on her race or religion during the actual course of her job. She was mistakenly scheduled to work on Saturday, but was not required to come in to the store once she made management aware of the error. She did lose one shift's worth of work for March 31, but that was partly due to her declining to work the evening shift. The evidence established that Shu Patel was loud, somewhat hotheaded, and perhaps not the ideal choice for managing a busy restaurant, but did not establish that he singled out Petitioner for particular abuse because of her race or religion. The evidence established that Petitioner's poor job performance was the cause of at least some of the friction between her and IHOP management. However, Mr. Patel's own testimony established that he dismissed Petitioner in direct retaliation for her complaint of discriminatory employment practices. IHOP offered no legitimate, nondiscriminatory reason for Petitioner's dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Pritesh, Inc., d/b/a IHOP 36- 151 committed an act of unlawful retaliation against Petitioner. It is further recommended that the Florida Commission on Human Relations remand this case to the Division of Administrative Hearings for an evidentiary proceeding to establish the amount of back pay/lost wages owed to Petitioner. DONE AND ENTERED this 5th day of March, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2013.
Findings Of Fact Joe Francis, Orvil Ownby, and Roscoe Cleavenger are all permanent Career Service Commission employees with appeal rights to the Career Service Commission. The appellants each filed a timely appeal of their reduction in pay by the Department of Transportation with the Career Service Commission. The parties stipulated to the following facts: The reduction of the pay of the appellants was not a disciplinary action. Under protest, some employees have paid back money allegedly overpaid, and other employees are in the process of paying back money allegedly overpaid. The performance of all the affected employees was rated as satisfactory or above, and no basis existed for any reduction in pay due to unsatisfactory performance. All the affected employees initially had their pay reduced to the "current" maximum salary. Thereafter, those employees who did not elect to pay the money back in a lump sum had their pay reduced by a fixed amount to repay monies allegedly overpaid, or alternatively, the employees have made similar monthly payments by personal check to the State under protest. Exhibits A through E were admitted into the record together with the entire personnel file of each appellant. In 1972, Jay McGlon, then State Personnel Director, authorized employees in the classes of Maintenance Foreman II to be changed from pay class 16 to pay class 17. Similar authorization was given to change Sign Erector Foreman from pay class 16 to pay class 17. Pay class 17 had a pay range of $544.62 to $744.72. This adjustment in pay class was effective November 16, 1972, pursuant to McGlon's letter of authorization. See Exhibit A. In the instant case, the affected employees were being paid a geographical pay differential. When their pay was increased by the difference between the minimum salary of the class of which they had been a member and the minimum salary of the class to which they were raised, their adjusted pay, together with the geographical pay differential, exceeded the maximum pay range of the new class. On October 30, 1975, Conley Kennison, McGlon's successor as State Personnel Director, wrote David Ferguson, personnel officer of the Department of Transportation. This letter was in response to Ferguson's letter of May 23, 1975, requesting retroactive approval of a $16.00 biweekly pay adjustment, effective November 16, 1972, for all Dade County employees in the classes of Highway Maintenance Foreman II and Sign Erector Foreman II. In this letter, Kennison cites that the pay increases were not in accordance with the final implementation instructions. However, from the text of this letter, it is unclear whether the instructions referred to relate to the salary increases or the geographical pay differentials discussed in the letter. Kennison, in this letter, denies the request made by Ferguson and directs that steps be initiated to recover the overpayments to employees. Two weeks were given for the Department of Transportation to inform Kennison the method by which the overpayments would be recovered and the amounts owed by individual employees to which overpayment had allegedly been made. It was determined that Cleavenger owed $971.74, Francis owed $821.30, and Ownby $600.01. The Department of Transportation reduced the pay of the affected employees by $16.00 per pay period in order to recover the amount of the overpayment. This reduction occurred effective the first pay period following December 5, 1975.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Career Service Commission rescind the action taken by the agency, and that all monies collected from the affected employees be returned to them. DONE and ORDERED this 17th day of January, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phillip S. Bennett, Esquire Mrs. Dorothy Roberts Department of Transportation Appeals Coordinator Haydon Burns Building Career Service Commission Tallahassee, Florida 32304 530 Carlton Building Tallahassee, Florida 32304 Ronald A. Silver, Esquire 2020 Northeast 163rd Street, S204 Joe Francis North Miami Beach, Florida 33162 3830 Day Avenue Coral Gables, Florida Rosco Homer Cleavenger 1901 N.W. 107th Street Miami, Florida 33167
The Issue Whether Respondent discriminated against Petitioner as stated in the Petition for Relief in violation of Chapter 760, Florida Statutes (2007).
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Respondent, Atria Windsor Woods, provides retirement and assisted living facilities and employs more than 15 persons. Petitioner, Judith Monteiro, was hired as a housekeeper in 2002 at the age of 57. On or about November 29, 2006, Petitioner was discharged from her employment with Respondent. She was advised that she was discharged for violating company policy regarding entering an apartment while the occupant was absent due to hospitalization. Petitioner testified that she entered an apartment of an absent occupant when she smelled spoiled food, disposed of the spoiled food, and reported the matter to her supervisor. On the following day, a theft of approximately $150.00 was reported from the apartment. Petitioner appears to be the victim of disgruntled relatives of the apartment's occupant who, apparently, complained about the purported theft to Respondent and confusing rules about when to enter an unoccupied apartment and who was authorized to enter an unoccupied apartment. Petitioner presented no direct or circumstantial evidence that her discharge was based on age, sex, or any other right actionable under Chapter 760, Florida Statutes, the Florida Civil Rights Act.
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, Atria Windsor Woods, did not discriminate against Petitioner, Judith Monteiro, and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of March, 2009, 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 18th day of March, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas J. Birchfield, Esquire Fisher and Phillips, LLP 220 West Main Street, Suite 2000 Louisville, Kentucky 40202 Judith Monteiro 13738 Lavender Avenue Hudson, Florida 34667
The Issue The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.
Findings Of Fact Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1 Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances." Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement. Petitioner's date of birth is May 18, 1948.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 30th day of November, 2009.
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
