The Issue The issue herein is whether petitioner was unlawfully terminated from her employment with respondent because of race. Based upon all the evidence herein the following findings of fact are determined:
Findings Of Fact Petitioner, Ruby McKenzie, is a black female who was first employed by respondent, Bach Engineering, Inc. (Bach), on June 14, 1982, in the position of electronics assembler. She initially held a temporary position but was later placed in a permanent position in March, 1993. At the time of her termination on February 17, 1984, she was earning $4.82 per hour. Bach, which is located in Altamonte Springs, Florida, is a manufacturer of radio systems, components and parts for the airline industry. As such, it requires that workers have some degree of skill and precision. The business employs some 55 to 50 persons, of whom perhaps a dozen are black, and is functionalized into departments (e.g., quality control, repair, final assembly and stockroom). All departments are under the control of a supervisor. During much of her employment with Bach, McKenzie's supervisor was Ida Metzer, who was responsible for most of her performance evaluations and criticisms. However, Metzer was killed in an automobile accident in late 1984. At the time of her discharge, McKenzie was in the repair department where her supervisor was Karen Miller, a white female. Bach's personnel policies regarding attendance and tardiness are set forth in a document entitled "Personnel Manual." Although its president, Michael Bach, claimed that this document is disseminated to all employees, there was evidence that this was not true. Nonetheless, all employees including McKenzie, had the "understanding" that if they were going to be absent or late for work (which began at 7:00 a.m. each day Monday through Friday), they were to call their department supervisor before the beginning of the work day. This was generally consistent with the instructions in the personnel manual. Under company "policy", an employee with "excessive" absenteeism or tardiness is first given a verbal warning, then a written warning, and is then subject to termination. McKenzie understood that even after a verbal and written warning had been given, she would then be placed on probation for a 50 or 90 day period rather than being terminated. However, Michael Bach said his policy was that once a verbal warning is given, the employee is automatically placed on probation for "around" 90 days. In all cases, he stated that a verbal and written warning is given prior to an employee being discharged. Bach hires both temporary (part-time) and permanent employees. The temporary employees are generally supplied by a local agency that provides this type of employee. The rules regarding absenteeism and tardiness apply to both temporary and permanent employees, although Michael Bach stated that mode leeway is given temporary employees when enforcing the rules. McKenzie worked in various departments within the firm. She was described by Michael Bach and the operations manager as being capable of doing a food job, but did so only when she enjoyed the job she was performing. If she did not like her job, her work was described as being less than satisfactory. Nonetheless, she received at least a satisfactory rating for each six month period she worked at Bach, the last being for the period July 5, 1983 through January 5, 1984, or approximately six weeks before being discharged. Bach stated that even though McKenzie received a satisfactory rating, these evaluations were not always accurate, because if less than satisfactory ratings were given, it would tend to discourage a worker from performing satisfactorily during the next six months period. Despite the satisfactory performance evaluation, McKenzie's most recent performance on the job was characterized as "very poor" by the operations manager. She was also criticized for poor workmanship on the "boards," did not wear glasses as required by her job, and was slower than counterparts in performing her work duties. This was confirmed by a coworker (black) who stated that she worked twice as many boards each day as did McKenzie, and frequently had to do "rework" on McKenzie's errors. Bach gives each worker five days sick leave and five days vacation time annually. Employees are expected to use their vacation time during July of each year when the plant is shut down. McKenzie was absent from work or tardy a total of 100 hours during 1983, or more than her allotted amount of sick and annual leave, and 19.5 hours the first month and a half in 1984. In 1983, she received a verbal warning for her absenteeism and tardiness on March 31 and October 12, and a written warning concerning the same on April 19, 1983. She was again given a verbal warning on February 15, 1984. The next day she was discharged for "absenteeism, inconsistent (sic) in quality and quantity of work." Her termination prompted the instant proceeding. McKenzie's dismissal was ordered by Michael Bach after McKenzie's immediate supervisor (Karen Miller) complained to the operations manager (Sonja Schultz) about McKenzie's continued tardiness, absences and poor work. Indeed, most recently, she had been late on February 10 and 13, and simply left a message on February 15 that she "wasn't coming in." The termination notice reflected that the "employee was warned on several occasions about attendance and workmanship, failure to do acceptable jobs in areas required", and that she was ineligible for reemployment "due to attendance and workmanship." To substantiate her complaint, McKenzie points to two white female employees, Debbie Price and Connie McIntosh, both temporary employees, who had more absences than her when she was fired, but were allegedly not terminated by Bach. Mclntosh was absent 50.5 hours from October 13, 1983 through the end of the year, and 85.5 hours from January 1 through March 9, 1984 when she was laid off because of a production slowdown. However, more than half of Mclntosh's absences were due to her child's illness. She was given a verbal warning concerning her attendance on February 15, 1984, or just prior to being laid off. The other employee (Price) requested a change to a permanent status in her job, but was turned down because of poor attendance. Because of this, she quit her job on February 17, 1984, the same day McKenzie was discharged. A third employee, also a white female was fired on March 10, 1984, for excessive absenteeism after receiving two verbal warnings and two written warnings between September, 1953 and February, 1984. In the latter case, the employee had been absent 114 hours in 1983 and 90 hours in 1984 prior to her termination. Bach has been in operation for some five years. Its president has a policy of treating all employers equally, and claims its hiring and firing policies apply equally across the board to all employees regardless of race or sex. A number of employees (all black) confirmed this and denied the existence of any discriminatory practices employed by the company. Indeed, McKenzie herself could not identify any such practices, and merely "guessed" that the reason she was fired was because she was black. After being terminated by Bach, McKenzie was unemployed for approximately six weeks. She then obtained a job with Sonitrol Electronics Corporation at an hourly wage of $4.00, or .82 cents less an hour than she earned at Bach. She has been employed continuously with Sonitrol since obtaining that job. In this proceeding, she asks for the difference between her present salary and the salary she received at Bach, the loss of wages while she was unemployed, and reasonable attorney's fees and costs for prosecuting this complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that petitioner's petition for relief be GRANTED, that respondent be found guilty of unlawful employment practice, and that petitioner receive the relief set forth in paragraph 5 of the conclusions of law portion of this order. DONE and ORDERED this 8th day of May, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 8th day of May, 1985. COPIES FURNISHED: Harry L. Lamb, Jr., Esquire 521 N. Fern Creek Avenue Orlando, Florida 32803 Mr. Michael C. Bach 654 N. Douglas Avenue Altamonte Springs, Florida 32301 Aurelio Durana, Esquire 325 John Knox Road, Ste. 240, Bldg. F Tallahassee, Florida 32303
Findings Of Fact Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes. In May of 1990, Petitioner, a black male, began working as a delivery driver for the former owner of the Domino's Pizza franchise in Tallahassee, Florida. Respondent bought the franchise in March of 1992 and retained Petitioner as a driver to deliver pizza at store number 5131. On March 30, 1992, Petitioner signed a statement that he had read and understood the Respondent's Employee Orientation Manual setting forth, among other things, standards for personal conduct. This manual specifically advises that an employee may be disciplined or discharged for: (1) negligent handling of company funds; (2) insubordination and refusal to do assigned work; (3) disturbing the work force and/or creating a disturbance; and (4) harassment of team members. At all times material hereto, Scott Nelson was the store manager at Respondent's store number 5131. Mr. Nelson had authority to hire and fire employees at that location. Though it was against store policy, Mr. Nelson and other employees frequently used profanity and told vulgar off- color jokes while working. Sometimes the jokes involved inappropriate racial overtones. At times Mr. Nelson would call black customers "stupid niggers" after they left the store. Petitioner would also use the term "nigger" in conversations but in a context he believed to be acceptable. Mr. Nelson encouraged employees to discuss any problem they had with management in the privacy of the office at the rear of the store. Mr. Nelson told the employees that they could speak freely during these discussions and nothing they said would be taken personally. The purpose of holding the discussions in the office was to prevent customers from overhearing the conversations. Occasionally, Mr. Nelson and an employee would have a heated argument and curse at each other as long as no customers were in the store. Other employees heard these arguments but there is no evidence that the arguments took place outside the confines of the office. During some of these arguments, Mr. Nelson would threaten to fire employees but not follow through with his threats or report the incidents to his superiors. At all times material to this proceeding, Niki Supplee, a white female, worked as a delivery driver at Respondent's store number 5131. She and Mr. Nelson had heated arguments in which they cursed each other. She was never written up or disciplined after these outbursts. The record does not reveal the location or the subject matter of the arguments between Ms. Supplee and Mr. Nelson. At all times material to this proceeding, Ms. Supplee had a black boyfriend. Upon learning that her boyfriend was black, Mr. Nelson offended Ms. Supplee by asking why she was attracted to a black man. He wanted to know what was wrong with her and why she could not find a white guy. Once or twice when Ms. Supplee heard Mr. Nelson use a racial epithet, she informed him that she did not appreciate that kind of language. Subsequently, Mr. Nelson would use a racial slur then apologize to Ms. Supplee. Petitioner and Mr. Nelson occasionally had a beer together after work. On one of these occasions, Mr. Nelson admitted that he had been raised in an environment where there were very few black people. Mr. Nelson admitted that he had to learn how to get over certain feelings about being around black people when he first began working at Domino's Pizza. At the hearing Mr. Nelson admitted that on occasion he may have made racial slurs in front of his employees about customers after they left the store. However, prior to the incident which is the subject of this proceeding, no employee ever complained to Mr. Nelson's supervisor, Ron LeStourgeon, about Mr. Nelson's use of racial epithets or perceived racial prejudices. There is no evidence that Mr. Nelson ever used a racial slur directed towards his employees or in relation to an employment decision. During the period of Petitioner's employment, he was given verbal warnings about failing to be at work on time, making personal stops on company time without permission, and refusing to perform certain tasks on the premises. Mr. Nelson would occasionally instruct Petitioner to do an assigned task at the store when other white employees were standing around talking. However, there is no persuasive evidence that Mr. Nelson's instructions to Petitioner were anything more than a reminder to do a previously assigned routine job for the day. Mr. Nelson required Petitioner to sign a statement on September 7, 1993, as a result of his refusal to follow directions without complaint. Mr. Nelson prepared the statement in which Petitioner agreed to follow the direction of management staff promptly and without complaint or risk disciplinary action including termination. The statement advises Petitioner that he should go directly to Mr. LeStourgeon if Petitioner had a complaint he could not resolve with Mr. Nelson. There is no competent persuasive evidence that Mr. Nelson created written or verbal policies designed to adversely impact Petitioner and not other employees. Mr. LeStourgeon was in the store 275 to 300 times during 1993. Petitioner did not attempt to contact Mr. LeStourgeon regarding any perceived racial discrimination at work. Petitioner's testimony to the contrary is not persuasive. On October 21, 1993, Petitioner filed a claim with the United States Department of Labor, Wage and Hour Division of the Employment Standards Administration. This complaint alleged that Respondent did not pay Petitioner for all of the hours he worked. Mr. Nelson subsequently resolved this dispute by taking Petitioner's word that he was due the money and including that amount in the next pay check. There is no competent persuasive evidence that Respondent's decision to terminate Petitioner's employment was related to the filing of this claim. On October 21, 1993, Petitioner also went to the Florida Commission on Human Relations and spoke to an in-take counselor. He did not file a claim but wanted advice because he believed the problems he and other blacks were experiencing at work were due to racial discrimination. On November 16, 1993, Petitioner made a certain pizza delivery and inadvertently failed to turn in $8.55 when he checked out that night. Milton Finkelstein, the assistant manager on duty, realized after Petitioner left for a two-day vacation that the store was short by that amount. Mr. Nelson was not on duty that evening. Mr. Nelson returned to work on November 17, 1993, but Mr. Finkelstein had the day off. Mr. Nelson did not determine which driver was responsible for the missing money until Mr. Finkelstein returned to work on November 18, 1993. Petitioner lived very close to the store but had no telephone. On occasion, a driver was sent to Petitioner's house to ask him to report to work. However, Petitioner let the managers know that he did not want to be bothered at home when he was off. Petitioner did not return to work until November 19, 1993. Mr. Finkelstein showed the ticket for the missing money to Petitioner who confronted Mr. Nelson in the office. Because Petitioner denied that he made the delivery, Mr. Nelson called the customer who thought a black man delivered the pizza three days before. Petitioner was the only black driver on duty at store number 5131 on November 16, 1993. Petitioner's testimony that he worked at another Domino's Pizza store for most of that evening is not persuasive. After the telephone call, Mr. Nelson insisted that Petitioner would have to reimburse the store for the missing $8.55. Mr. Nelson also told Petitioner that he would have to pay future missing receipts even if management did not identify Petitioner as the responsible driver for three days. Petitioner began to argue loudly and yell at Mr. Nelson. As Petitioner stormed out of the office, he screamed back, "Fuck you, Scott," repeating it several times. Three employees in the front of the store heard Petitioner make these statements. Mr. Nelson then told Petitioner to, "Go get your money. Go get your mileage." Mr. Nelson was upset at the time of this incident because it was the most threatening scene that had ever occurred in the store. Petitioner and Mr. Nelson had argued in the past but Petitioner had never been so openly defiant. Mr. Nelson intended to take some disciplinary action but did not make an immediate decision to fire Petitioner. Petitioner's testimony that Mr. Nelson fired him before he yelled profanities is not persuasive. When Petitioner left the store on November 19, 1993, he had cash from that day's deliveries that belonged to the store. Mr. Nelson sent Mr. Finkelstein and another employee to Petitioner's home to retrieve the cash. Upon their arrival, Petitioner was uncooperative and verbally abusive. They returned to the store without the cash. Mr. Nelson called Mr. LeStourgeon, to advise him of the situation and ask him what, if any, disciplinary action should be taken. Mr. LeStourgeon directed Mr. Nelson to do what was necessary to retrieve the day's receipts and fire Petitioner for insubordination. Mr. Nelson called the Tallahassee Police Department. Two police officers interviewed Mr. Nelson then went to Petitioner's house. The officers returned to the store without the cash receipts. There is no evidence that Mr. Nelson ever signed a complaint. About 1:30 a.m. on November 20, 1993, Petitioner voluntarily returned to the store and gave the cash receipts from November 19, 1993, to Mr. Nelson. He did not pay the $8.55 which he owed the store. Petitioner inquired whether he was fired. Mr. Nelson informed Petitioner that he was fired for insubordination. Petitioner did not hire black people to work in the store then cut back their hours or fire them in order to replace them with more recently hired white people. Testimony to the contrary is not persuasive. Mr. Nelson was more than just insensitive at times to other people's feelings. He often failed to conduct himself in a professional manner. He had difficulty supervising and working with white and black employees. He no longer works for Petitioner as a store manager. Regardless of Mr. Nelson's inappropriate behavior and lack of management skills, his decision to report Petitioner's insubordinate conduct to Mr. LeStourgeon was not motivated by intentional racial discrimination. Rather, Mr. Nelson sought the advice of his superior because of Petitioner's gross insubordination: (1) he cursed the store manager in front of other employees; (2) he refused to pay $8.55 for the pizza delivered on November 16, 1993; (3) he refused to promptly turn in the cash receipts from November 19, 1993 upon request; and (4) he verbally abused the assistant manager and the other employee who attempted to retrieve cash receipts. Competent persuasive evidence indicates that Mr. LeStourgeon made the decision to fire Petitioner based on his conduct alone with no knowledge of Mr. Nelson's policies regarding profanity or vulgarity. Mr. Nelson's racial prejudices, if any, were unknown to Mr. LeStourgeon and not a consideration in the employment decision. Moreover, Mr. LeStourgeon would have fired Petitioner because of his blatant insubordination and threatening attitude even if he had been aware that Mr. Nelson had tolerated similar conduct in the past. The same decision would have been reached absent the presence of Mr. Nelson's alleged discriminatory motive. There is no evidence that Petitioner replaced Petitioner with another driver, white or black. Mr. Nelson hired Mr. Finkelstein's daughter, a white person, while Petitioner was still working for Respondent. She backed into a customer's car in the parking lot. Respondent gave the customer twenty-five free pizzas for damage to his car because Mr. Finkelstein agreed to pay Respondent for the pizzas. Mr. Finkelstein subsequently reimbursed Respondent. This incident does not show favoritism for white employees. During 1993, Respondent had approximately twenty-three (23) employees at store number 5131. Of those employees, sixteen (16) were white, five (5) were black, and two (2) were Hispanic. Petitioner was the only employee fired from Respondent's store number 5131 in 1993.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor or the witnesses, it is recommended that the Florida Commission on Human Relations enter a Final Order finding that Respondent did not discharge or otherwise discriminate against Petitioner on account of his race and dismissing the Petition for Relief. RECOMMENDED this 29th day of June, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer 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 29th day of June, 1995. APPENDIX The following constitutes specific rulings on the Petitioner's Proposed Findings of Fact pursuant to Section 120.59(2), Florida Statutes. Respondent did not file Proposed Findings of Fact. Rejected. Testimony of management concerning this point is more persuasive. Rejected. See paragraph 20. Accepted as modified in paragraphs 5-7. Accepted as modified in paragraph 8. Rejected. See paragraphs 16-17. Rejected. Not supported by competent persuasive evidence. Rejected. See paragraph 30. Accepted as modified in paragraphs 5, 10, and 12. Reject the last sentence entirely as argumentative. Rejected. See paragraph 30. Rejected. See paragraph 16. Rejected. See paragraph 16. Rejected. See paragraph 25. Rejected. See paragraph 22. Rejected as not supported by competent persuasive evidence. Rejected. No evidence that Petitioner applied for promotion. COPIES FURNISHED: Lenny Fulwood, II 790 El Dorado Street Tallahassee, Florida 32304 Thomas Bean President of Seminole Pizza, Inc. 6005 Benjamin Road, Suite 100 Tampa, Florida 33643 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
The Issue The issue for consideration in this case is whether Petitioner was discriminated against in employment by Respondent because of his race or gender.
Findings Of Fact Petitioner, Brian Poole, started work for the Respondent, Manatee Association for Retarded Citizens (MARC) on September 7, 1993. He was employed as a habilitation assistant and earned $5.48 per hour. As a rehabilitation assistant, his job was to help with clients who were retarded workers employed by MARC. These workers needed supervision at all times. A part of his job was to write case notes about the workers, and these notes were reviewed by Laurie Mayberry, the Department of Heath and Rehabilitative Services liaison. Petitioner’s immediate supervisor at the time was James Disbro, with whom he did not get along very well. He claims that in October 1994, after he had been employed at MARC for over a year, and had already received one raise to $6.01 an hour and was expecting another to $6.73 an hour, he was interviewed by Disbro who went over his performance with him to determine if he would get the raise or not. During the interview, Petitioner claims, Disbro said he felt Petitioner did not deserve a raise, but Petitioner took the matter to John Schwartz, the MARC Chief Executive Officer, who reversed Disbro’s decision to deny Petitioner the raise. As they left Schwartz’ office, however, Dosbro reportedly told Petitioner that so long as he, Disbro, was there, Petitioner would not get a promotion. In November 1994, Petitioner received another evaluation to decide how large his raise would be. It ultimately was determined he should be raised by $45.00 per month. In December 1994, just before Christmas, a job opening was announced, for which Petitioner applied. A co-worker, Ms. Bradford, also applied for the job and she was interviewed first. Petitioner was then interviewed as well, but Ms. Bradford was given the position because, Petitioner was told, she was more qualified than he was. What bothers Petitioner about the situation is that while he was being interviewed, Disbro kept interrupting to get Petitioner to do other things. When Petitioner later complained to the CEO about this, he was told Disbro would be counseled about it and that he should overlook Disbro’s conduct. At this particular time, the only black employees at MARC were Petitioner and Mr. Lee. Others were hired later. Petitioner contends that a black female employee quit because of similar working conditions, but there is no identification of the employee or independent evidence of when or why she quit. It also appears other black employees were employed on a routine basis. When Petitioner came to work on January 31, 1995, he was told he did not get the job he had been interviewed for before Christmas. It seemed to Petitioner that everyone but him knew the job had gone to the female employee. He relates that another female employee told him that she could have had the job because of her close relationship with management. Again, however, there is no independent evidence to support this claim. Petitioner contends that the environment within his section was uncomfortable for him. That is why he applied for other jobs within the organization. It was to get out of the situation in which he found himself more than to seek promotion. As an indication of what he considers to be the antipathy toward blacks in evidence at MARC, Petitioner notes that when one black employee was absent from work on January 31, 1995, a white assistant commented that Petitioner and Lee would know where he was because they lived on that side of town. To Petitioner, this was a case of the white employee inferring that because Petitioner and Lee were black, they would automatically know where other black employees lived. The employee who allegedly made this comment was not identified. Later that day, however, another "anti-black" comment was made regarding a white residence manager to the effect that he was not a "preppie" because he went with a black girl. According to Petitioner, comments such as this were not uncommon at Respondent’s facility at the time, but there is no independent evidence to support the claim. At an in-service luncheon one day, Petitioner recounts, a white lady implied that the two black attendees were rude and inconsiderate and did not know how to act in public. She allegedly stated they should be grateful they had been taken out for lunch. There is no evidence to indicate if Petitioner present at the time, or who the speaker was. On February 9, 1995, Petitioner was absent from work. While he was gone, Ms. Carrol, a lab worker, approached Mr. Lee, a black employee, and asked him if he believed Petitioner was sick or out looking for another job. Mr. Lee called Petitioner at home and reported this. While Petitioner considers this a racially motivated comment, absent any independent information surrounding it, it is not found to be so. On February 10, 1995, Disbro told Petitioner and Mr. Lee to move all the furniture out of the work shop and clean the shop. While the two black employees were pulled off their jobs to do this, all the white employees, both male and female, continued to do their regular jobs. Being away from his duties to do the clean-up put Petitioner behind in his regular duties. When Petitioner tried to talk to Disbro about why other employees couldn’t help with the move, Disbro allegedly said he and Lee were to do it and a complaint to Mr. Schwartz would be non- productive. No evidence was presented to support Petitioner’s claim this was racially motivated. The mere fact that two black males were directed to do manual labor does not prove racial discrimination absent a showing there were others capable of doing the work who were not occupied with other, more demanding duties. On February 15, 1995, Petitioner was supervising a female client who needed help to go to the bathroom. Consistent with the rules for that situation, Petitioner called for help but was put off with what he considered to be a lie. When he reported this to Disbro, Disbro said to forget it. Petitioner is sure that if it had been him who was complained about, Disbro would have taken corrective action, but there is no evidence to show this. In late February 1995, a special training program in Orlando was announced. Management asked who wanted to go. It was reported that those who received the training would be certified and would receive more money. Though Petitioner applied, he was not selected to go. When he asked if his failure to get the training would be held against him if he applied for a better job, he was told it would not. However, subsequent to the training, whenever he applied for any jobs in that area, he was rejected because he was not trained. Mr. Schwartz, the CEO, contends that all employees were offered the opportunity for in- house training. Training away from the facility, however, was offered to those who would best benefit from the training due to their responsibilities. Schwartz insists that in making the selection of those to attend the away-training, the employee’s performance and disciplinary records were not considered - just the need for the training. One of those selected was Ms. Sparks, who had a background in special education and a demonstrated ability to deal with retarded clients. The agency’s position seems reasonable, and no evidence was offered to indicate its assertion is not true. In March 1995, a social worker from the Department of Health and Rehabilitative Services, Ms. Peterson, accidentally threw away an assessment of a client Petitioner had done and asked Petitioner to re-do it. Petitioner refused and she complained to Disbro who, in what Petitioner considered to be a harsh manner, directed him to do so. Petitioner felt this was unfair and wrong, aside from Disbro’s use of abusive language. It is a fact, however, that case notes are the responsibility of the habilitation assistant. If no record is made, there is no way to recover information relating to the clients. Though Petitioner claimed he was being treated unequally in that other assistants did not have to do what he was directed to do, this allegation was unexplained. On March 16, 1995, Petitioner complained to Disbro about the way he felt he was being treated. Disbro said that they would work it out - the past was past. However, later that day a statement was made that Petitioner was improperly eating in the workshop. When Petitioner told Disbro he was not eating, Disbro replied that there were chicken bones all over; a comment which Petitioner took as racially-oriented. Petitioner claims to have been humiliated by the comment, and when he got upset at that comment, he claims Disbro wrote him up for his response. Disbro claims the write-up was for eating on duty. He claims he saw chicken bones in the trash in Petitioner’s area, and eating at a work station is not permitted under MARC rules. After that incident, Petitioner requested to see Mr. Schwartz, but his request went unanswered. This led Petitioner to believe that not only was his rapport with his supervisor, Mr. Disbro, poor, but so it was with Mr. Schwartz. Petitioner concluded this also based on his perception that Mr. Schwartz never acted on any of his complaints against Disbro. In early May 1995, Ms. Carrol came into Petitioner’s workshop at least three to five times a day. Petitioner felt she was spying on him, but when he complained about this to Disbro, Disbro contended she was just lonesome for her old work group. He indicated he would follow up on it, but to Petitioner’s knowledge, nothing further was said about that situation. However, at the end of the day, Disbro called Petitioner aside and spoke to him about a reported safety violation. He was told another worker had reported that she thought Petitioner was improperly running a machine which could have resulted in injury to a client. When Petitioner indicated he was not satisfied with Disbro’s attitude toward other employees "spying" on Petitioner, and asked to speak with Mr. Schwartz, Disbro reportedly stated "I really hate you guys." Disbro would not explain what he meant by that comment, but Petitioner considered it a racial slur. Disbro denies having made the comment. Assuming it was made, however, absent other evidence to support Petitioner position, it cannot be concluded that the comment was racially motivated. It could well have been a reference to a myriad of other things. On May 19, 1995, Petitioner noticed a posting for a job which he felt he could do and which would get him out of the environment in which he was having so much trouble. Petitioner applied for the job but heard nothing about it in response. He was the only applicant from within the agency, and the job was not a promotion. He reports that all the associates laughed at him when he applied, and he didn’t know why. A month later, when Petitioner still had not heard about the job, he was told by a co-worker that the job had been filled. When he checked on it and found that report was true, he asked the personnel staffer why he hadn’t been interviewed and, reportedly, she just laughed. This made it clear to Petitioner that he was not going to get any other job at MARC. Mr. Schwartz claims it is normally MARC policy to promote from within if they have personnel in house who possess the needed qualifications. He recalls the incident about which Petitioner complains. This job required an enormous amount of non-supervised performance, and due to Petitioner’s record of absenteeism, tardiness, and other documented problems, it was felt he did not meet the qualifications of the job. Management believed Petitioner needed much more structure and direct supervision than this particular job would provide. On June 21, 1995, he told the personnel people he felt he had been discriminated against in his initial hiring, his salary, in promotions, and in working conditions. He was told to speak with Mr. Schwartz about it, but when he tried to do so, Schwartz suggested he speak with someone else in the agency, Mr. Paul Welsh. Petitioner was not able to reach Mr. Welsh for several days, however, both Mr. Schwartz and the personnel staffer indicated it was MARC policy to hire first from within the agency. In Petitioner’s case, Mr. Schwartz said he didn’t think it was a question of discrimination, but he would look into it. A few days after this conversation, Mr. Schwartz’ secretary told Petitioner that Mr. Schwartz wanted to see him. When the two met, Schwartz asked Petitioner if he felt he was being discriminated against. Petitioner explained how he felt. Schwartz then thanked Petitioner and said he would get back to him. On June 27, 1995, Schwartz told Petitioner he had been too busy to talk to Mr. Welch about Petitioner’s situation but would do so and get back to him. The next day Schwartz called Petitioner to tell him he had met with Welch and would speak with Petitioner the next day. Petitioner did meet with Schwartz the next day and Schwartz told him that HRS had changed the requirements of the job he had applied for and that was the reason he wasn’t selected. Petitioner asked to see the changes but was not shown anything to support Schwartz’ claim. Petitioner claims he asked if the training he had applied for but not received would have helped, but Schwartz was unable to give him a firm answer. When Petitioner asked if there were some form he could fill out to complain about the treatment he had received, he was told to ask the secretary. The secretary advised him she didn’t have the forms. Several days later Petitioner saw an EEOC poster with an 800 number which he called. When he explained his situation, he was told what to do and furnished with the forms he needed. He filled them out and submitted them, which initiated this action. Petitioner resigned from MARC in August 1995, after about a year and a half on the job because he was fed up with what was going on as it related to him. Documentation introduced at the hearing reflects that on most appraisals he received he was rated down because of his attitude, yet he continued to received periodic pay raises. However, though Petitioner and Ms. Sparks, a white employee, were doing the same work, he discovered, when he accidentally received her paycheck instead of his own, that she was making more than he was. Mr. Schwartz indicates, however, that Ms. Sparks dealt with more difficult clients than did Petitioner, which required her to assume a greater responsibility than his, and according to Mr. Schwartz, she had far greater experience in the program than he did. According to a co-worker, Ms. Ball, Ms. Sparks has a background in special education. She had the proper attitude for working with retarded clients and was very conscientious and dedicated. She had an extra ability to work with autistic individuals and those with behavioral disorders. If true, and no evidence was presented to show it was not, this would justify her receiving a higher pay than Petitioner who was only employed at the facility for a total of a year and a half. According to Mr. Schwartz, MARC had several other individuals doing the same work as Petitioner was doing. Three were black males, and the remainder were white females. MARC had an equal employment policy which was enforced. At the time Petitioner was employed there approximately 30 percent of the employees were male and 70 percent were female. There were two Hispanics of whom one was male and one was female. The reason for the predominately female employee census was that most applicants for jobs were female. The racial mix at the facility, 25 percent black and 75 percent white, was approximately equivalent to that in the community. Schwartz categorically denies there was any policy calling for a difference in pay due to race or gender, nor were minority males singled out for the dirty jobs, as Petitioner contends. He admits, however, that because Petitioner and Lee were the only two males on the floor in that shop, they were assigned jobs from time to time which females could not do readily, because of their size or strength. The immediate supervisors, such as Disbro in Petitioner’s case, were responsible for day-to-day supervision and were usually left alone to manage their work load and their employees. If, however, a situation arose which needed next- level intercession, Schwartz would step in. He was the appeal authority in disciplinary matters, and remembers serving as such several times for Petitioner. He cannot recall the details of the incidents, however. Mr. Schwartz also recalls an incident where Petitioner was requested to bring in a doctor’s slip to justify his being absent for several days. The documents Petitioner presented were inconsistent with his story. On follow-up, it was determined that neither was a legitimate report relating to Petitioner’s condition. One was from a gynecologist and one from a pediatrician. Mr. Schwartz also acknowledges that Petitioner came to him to express concern over Disbro’s alleged comments which Petitioner felt were racially motivated. In that same vein, though Petitioner contends that MARC management did not want minority job coaches to represent it in the community, Mr. Schwartz denies that race or gender played any part in promotions or assignments. The sole issue was who could best do the job. Petitioner also objects to being the only employee written up as the result of an incident when a client eloped, even though at least one other employee was present at the time. Habilitation assistants are responsible for the well-being of their clients and cannot afford to lose track of clients whose safety is at risk. Petitioner was the individual responsible for the client who eloped. Disbro, as Petitioner’s immediate supervisor, oversaw the employment of eight employees. Of these, four, including Petitioner, were black and four were white. Most were female. All did the same type of work, except for specific personal care issues where gender was a consideration. Work requiring heavy lifting was done by whoever was there to do it and was capable of doing so. Pay was based on performance without regard to minority status or gender. While Petitioner was supervised by Disbro there were times when Disbro felt it necessary to discipline him. In one case Disbro observed Petitioner sleeping at work. This was also observed by a vocational trainee, and others have seen similar instances. Petitioner claims he was not sleeping and that the observers were mistaken because of his small eyes. Disbro has no doubt that Petitioner was sleeping, and from personal observation of Petitioner at hearing, his eyes did not appear significantly smaller than those of any other person. Petitioner was written up for tardiness numerous times during the course of his employment, as well as for a general lack of attentiveness. As a result, he was placed on probation for a period of time, and at least one pay raise was deferred. On one occasion, he was suspended without pay for three days. Though Petitioner claimed he was discriminated against when not selected to attend away training, he was scheduled for an in- service training which he failed to attend and failed to call in to advise he would not be there. When subsequently asked why he had not been present, Petitioner claimed he didn’t need the training being offered. On August 23, 1995, he was issued a letter of reprimand for this. According to Disbro, at no time did he ever address Petitioner or any minority employee in a racially derogatory manner. He denies ever having used the term, "you guys," to Petitioner. He adamantly rejects any contention that he treated Petitioner any differently than any other employee, and denies he was ever instructed to do so. Disbro contends Petitioner could not take constructive criticism and when corrected, would become very defensive. Petitioner’s progress notes kept on the clients he served were not up to par, according to Ms. Mayberry, the individual responsible for developing client program systems and overseeing documents prepared by Petitioner and other habilitation assistants. Case notes have to be a direct reflection of the program plans, and must show goals, accomplishment, plans, and the like. The goals indicated what information needed to be reported, and case notes were the support documents for funding from HRS, Medicaid, and other fund sources. In the opinion of Ms. Mayberry, Petitioner had an ongoing struggle with the documentation system. He was not the only habilitation assistant who had problem with case notes, and whenever she found a problem, she would send a memo about it to the assistant and to Disbro. Though the other assistants cooperated, Petitioner’s general attitude toward case notes was that he was willing to sit down with her and review them, but he often became frustrated and felt he was being picked on. As a result, she developed fill-in forms to help him provide the proper information. Nonetheless, Petitioner seemed to have both an attitude problem and an ability problem with the case notes. As other assistants improved in the note preparation, Petitioner continued to struggle without much improvement. Ms. Bouse, also an habilitation assistant, as were Petitioner and Mr. Lee, could not recall either ever having been singled out for dirty jobs. She observed Petitioner on the job and noted that he slept a lot during the workday and talked on the phone a lot. In her opinion, he did not do his job very well. He was absent a lot and often tardy, and when he was not there, the other assistants had to do his work as well as their own. Ms. Lawrence worked with Petitioner one day shortly after she was hired during which he showed her the ins and outs of the cable contract on which he and his crew were working. After that day, she took that contract over from him. On one occasion, Ms. Lawrence and Petitioner attended a convention in Sarasota, and during the course of a lecture, she had to wake him twice. Other than that incident, she denies having seen him sleep on the job. Janet Ball has worked at MARC for 19 years as the adult basic education teacher. As a part of her duties, though she did not supervise Petitioner, she could observe him for approximately an hour and a half per day while she was working in the same module as he was. On at least two occasions she observed him asleep. On one of those it appeared his son had been sick all night. She considers this significant because the safety of the clients is an issue. Petitioner supervised ten individuals, all of whom were severe and profoundly retarded, and he had to remain alert at all times with them. Since his resignation from MARC, Petitioner has worked for a construction company at $9.50 per hour for 40 to 50 hours per week. However, on July 28, 1996, he was involved in an automobile accident which kept him out of work for a while, and, in any event, made it impossible for him to do construction work ever again. After his recovery, Petitioner worked at several jobs including temporary services. At one job, with Wellcraft, he earned $7.77 per hour for a 40 hour week, plus overtime, and worked there for about two months until he was fired for leaving the job early. He then went to work for a cleaning service and eventually obtained his own franchise from which he earns approximately $2,000 per month. Except for his period of recuperation after the accident, he has worked full-time since leaving MARC, at a rate higher than he earned there.
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 Brian C. Poole’s Petition For Relief alleging employment discrimination based on race and gender. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1999. COPIES FURNISHED: Brian C. Poole 817 18th Street East Bradenton, Florida 34208 Omer Causey, Esquire Nelson Hesse 2070 Ringling Boulevard Sarasota, Florida 34237 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978 Richard Fisher was employed by Acco Mechanical Contractors; Inc. on this project as a plumber. During this time Fisher was paid at the rate of $6.50 per hour for regular time and $9.75 per hour for overtime. The difference between the amount paid the Petitioner for regular time hours worked and the prevailing wage is $3.57 and the difference between the amount paid the Petitioner for overtime and the prevailing wage is $5.35 per hour. The Respondent also controverts the number of hours asserted to have been worked by Fisher. The Respondent asserts in its hearing brief that Fisher worked 459 regular hours and 50 overtime hours. The claim presented by Fisher indicated that he worked 512 regular hours and 50 overtime hours. Exhibit 8 reflects that Fisher worked 459 regular hours and 55 overtime hours. Exhibit 8 further reflects that Fisher received $6.50 per hour for regular time worked and $9.75 per hour for overtime worked. The prevailing wage rate established by the division was $10.07 per hour. The difference between the wage paid Fisher for regular time hours and the prevailing wage was $3.57. The difference paid Fisher between time and a half computed on the prevailing wage and time and a half paid Fisher is $5.35 per hour. The amount Fisher was underpaid is equal to the sum of the regular hours worked (459) times $3.57 end the overtime hours worked (55) times $5.35, or a total of $1,941.13. The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. Said affidavit was filed within the time prescribed by statute. Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Service is presently withholding $2,322.35 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
Conclusions Petitioner has established that he was hired and worked for Acco, Inc. as a plumber and that he was paid $6.50 per hour rather than the prevailing wage of $10.07 for plumbers on the project in question. Petitioner is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the prevailing wage. The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employee be paid "not less than the prevailing wage." Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime pay, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage for the total number of hours worked at a rate less than the prevailing wage. Therefore, Petitioner is entitled to $1,638.63. Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted. Respondent argues that additional insurance benefits should be included in the wage rates, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim. It is, therefore, hereby ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay the Petitioner, from the amount it is withholding in this claim, the amount of $1,638.63, and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc. DONE and ORDERED this 19th day of December, 1978 at Tallahassee, Leon County, Florida. STEVEN H. CAMPORA, Director Division of Labor Florida Department of Labor and Employment Security Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32304 Telephone No.: (904) 488-7396 COPIES FURNISHED: DEWEY H. VARNER, JR., ESQUIRE Attorney for Petitioner 3003 South Congress Avenue Palm Springs, Florida 33461 L. BYRD BOOTH, JR., ESQUIRE Attorney for Respondent O'Neal and Booth, P.A. Post Office Drawer 11088 Fort Lauderdale, Florida 33339 LUTHER J. MOORE, Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 THOMAS A. KOVAL, ESQUIRE Florida Department of Labor and Employment Security 401 Collins Building Tallahassee, Florida 32304 STEPHEN F. DEAN, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $1,941.13 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Culp and Fisher 3003 South Congress Avenue Palm Springs, Florida 33461 Byrd Booth, Jr., Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR RICHARD E. FISHER, Petitioner, vs. CASE NO. 78-1283 ACCO, INC., Respondent. / FINAL ADMINISTRATIVE ORDER Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978 in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer. STATEMENT OF CLAIM: Petitioner, Richard E. Fisher, filed a claim against Respondent, Acco, Inc., alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes. The question presented in this case is how many hours the Petitioner, Richard E. Fisher, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage. FINDINGS OF FACT: Acco, Inc. was a subcontractor in the construction of the Regional Juvenile Detention Center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978, Richard E. Fisher was employed by Acco, Inc. on this project as a plumber. During this time, Fisher was paid at the rate of $6.50 per hour. The difference between the amount paid Petitioner and the prevailing wage is $3.57. The Petitioner has complied with the prOvisions of se6ion 215.19(3)(a) 1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was timely filed. Exhibit No. 8, the Weekly Time Reports for Richard E. Fisher, establish that Fisher corked 459 hours at the rate of $6.50 and 55 hours at the rate of $9.75. The difference between what Petitioner was paid and what he should have been paid at the prevailing wage rate is equal to the sum of hours worked (459) times $3.57 or a total of $1,638.63. Pursuant to the statute, the Department of Health and Rehabilitative Services is withholding $2,322.35 from Acco, Inc. pending the outcome of this claim.
The Issue Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race or handicap in discharging him from employment on February 25, 1992; and whether the Respondent unlawfully discriminated against the Petitioner and other black employees in pay for similar jobs.
Findings Of Fact During the summer of 1988, Larry Jelks, a black male, approached Jerry Sikes, the Director of Public Works of Suwannee Country, seeking employment. Petitioner, Jelks, explained and Sikes was aware that Petitioner had significant experience as a welder. Several weeks later, Sikes contacted Jelks and offered him a job as a laborer. The Petitioner began work of August 16, 1988 with a starting pay of $5.00/hour in the position of laborer, an entry level, unskilled job classification. The Petitioner received a copy of the employer's regulations. On August 24, 1988, the Petitioner was promoted to Serviceman, and his pay increased to $6.00/hour. On October 12, 1988, Sikes hired Mr. Praley, a white male, as a welder, although his expertise was as a mechanic and Praley was subsequently assigned duties as a mechanic by Sikes. Praley was paid a starting salary of $6.50/hour. The welder/mechanic position was open when Jelks was hired. On November 24, 1988, Petitioner completed his 100 day probation and given his annual 5 percent raise, increasing his pay to $6.30/hour. Other black employees also had their pay raises delayed until after their probation was completed. White employees, including Praley, received their annual raises in the year of their initial employment, notwithstanding their probationary status. This discrepancy in treatment of employees was not explained by the County. On September 30, 1989, the Petitioner laterally transferred to the position of truck driver for the refuse collection service because he did not enjoy the work of a serviceman. One October 1, 1989, Petitioner received an annual raise of 4 percent, to $6.56/hour. Subsequently, the axle in Petitioner's truck broke, and when he was questioned about it, he asked for a transfer. On March 3, 1990, the Petitioner was transferred to a shop position in which he repaired rusted or damaged garbage bins (dumpsters), by welding new sides and bottoms on them. The sheets of steel which Petitioner welded on the bins were 6 feet by 12 feet in size and 1/16" thick, and weighed approximately 180 pounds. These sheets were generally cut into smaller pieces prior to being moved from the stack in which they were stored. These pieces of material had to be moved into position to be cut and welded. The bins were moved using backhoes and forklifts. The Petitioner was responsible for moving the pieces of sheet steel and using the equipment to move the bins. On March 17, 1990, the Petitioner received a 5 percent pay increase to $6.89/hour. On April 28, 1990, the Petitioner received a 5 percent raise to $7.24/hour. On October 1, 1990, the Petitioner was given a 5 percent raise to $7.61/hour. In early 1991, the Petitioner's child became critically ill, and the Petitioner obtained leave to be with the child. In addition, Jerry Sikes approved flexibility in the Petitioner's scheduling to permit him be with the child conditioned upon Petitioner letting his supervisors know what he was doing and when he was going to be away from his job. Problems were encountered with Petitioner's attendance, and he was counseled about this and given a copy of the Country's leave policy. Generally, however, the Petitioner's performance was satisfactory, and he was considered a good and valued employee. On September 23, 1991, the Petitioner suffered a job- related injury, and was placed upon workers' compensation leave. The Petitioner received workers' compensation and disability benefits during his leave. During his absence the other employees performed his welding duties. While on leave, the Petitioner received a 3 percent pay increase to $7.84/hour. On November 25, 1991, Sikes wrote Petitioner a letter advising that he was required to submit doctor's notes concerning his absences while on workers compensation leave. On December 20, 1991, John B. Roberts, the County's workers' compensation (rehabilitation) consultant contacted Sikes and asked Sikes to identify an alternative position the duties of which the Petitioner could perform. Sikes advised Roberts that the County had no light duty jobs, but that driving a truck was one of the least physically demanding jobs in the County's maintenance department. He advised Roberts that he would assign the Petitioner to drive one of the light dump trucks if he returned to work. These trucks have an especially rough ride when operated off road, as these were. Roberts looked at the duties of the job, and determined that the Petitioner ought to be able to perform these duties. Roberts discussed returning to work and performing the duties of a truck driver with the Petitioner; however, the Petitioner advised Roberts that he wanted to talk with his attorney prior to returning to work. The Petitioner did not return and assume the duties of driving a truck in December as Roberts had arranged. On January 2, 1992, the Petitioner was sent a copy of a letter which was to Mr. Larry Sikes from Dr. Cason who had been treating Petitioner. The letter stated that the Petitioner was released from treatment to return to regular work activities as of January 2, 1992. On January 3, 1992, the Petitioner returned to work. He had a 4 percent permanent impairment, but his employer was not advised of this. His doctor advised the rehabilitation counselor that the Petitioner be placed on light duty because he would have to toughen up after returning to work. Sikes did not afford the Petitioner the opportunity to work back into the job. The Petitioner's work area was outside, behind the regular shop, exposed to the elements. It was very cold at the time the Petitioner returned to work. The Petitioner's production was low because he could not physically manhandle the large sheets of steel as he could prior to his injury. He asked that an inmate be assigned to work with him all the time, but assistance was denied to the Petitioner. The Petitioner asked for a backhoe, which he had previously modified, to move the bins and sheets around; however, this piece of equipment had been sent to the landfill. He was told to use a front end loader to do this work; however, he went to the landfill and retrieved the backhoe because he had difficulties climbing into the cab of the front end loader. His demands and getting the backhoe without permission created additional conflicts between the Petitioner and his supervisors. On January 8, 1992, Sikes issued the Petitioner a memo concerning his poor productivity and failure to follow the instructions of his supervisor. Prior to his injury, the Petitioner repaired approximately one bin per day. During the period after his return to work, he did approximately one bin every two to three days. When presented with the memorandum, the Petitioner advised that he was unable to do that which he had formerly done. The Petitioner was told that he was expected to do all his regular work. This motivated the Petitioner to return to the doctor and seek a clarification of what he could and could not do. In addition, Petitioner was also seeing a chiropractor regularly for treatment. Petitioner left work almost daily to see the doctor, and frequently did not return. He did not provide his employer with documentation of these visits. The Petitioner asked that an overhead chain hoist, similar to the one which was inside the shop area, be installed in his work area to move the sheets of steel to assist him. His direct supervisor, Mr. Horton, denied the request because it was expensive and required additional construction to support the mechanism. On January 13, 1992, the Petitioner received a second warning for being absent from work without notifying his supervisor. Sikes advised the Petitioner that he would have to comply with the County's personnel regulations which required prior notification and a note from the doctor. Although the Petitioner testified he was absent attending doctor's visits, he presented no other substantiation of these visits at the hearing. On January 22, 1992, the Petitioner submitted, as requested earlier, a report from Dr. James B. Slatery of Gainesville Orthopedic Group, advising that the Petitioner could return to work, but should avoid climbing and limit his lifting over 50 pounds to an occasional basis. A similar report was submitted by Dr. A. C. Bass. The metal sheets the Petitioner was lifting weighed over fifty pounds. The County failed to make accommodations for the Petitioner's physical problems upon his return to work in a manner it had for white employees. The county had placed recovering white employees in positions where they were flagmen, directed traffic, and in similar positions. The county placed the Petitioner back at his regular duties, stated it had no "light duty" positions, and demanded Petitioner perform all his duties to pre-injury standards of productivity. When the Petitioner asked for assistance in lifting the sheets of steel which were in excess of the weight allowance set by his doctor, the County told him to seek assistance from his coworkers, who were instructed to assist him. He had to wait until they finished with their immediate task, and they were less than happy about these interruptions, and going outside where the Petitioner worked. This slowed his production for which he received criticism from his supervisors. The conditions imposed by the employer were not so bad as to constitute a constructive discharge. However, had Petitioner filed an action at that time, he would have proven that he was treated differently than white employees who were accommodated for their physical problems when returning from workman's compensation leave. There was a verbal exchange between the Petitioner and one of his coworkers, Earnest Johns, arising out of their interactions in the shop. The Petitioner told Johns that he "would pass up a bus load of white girls, to make him (Johns) his bitch." Johns complained to Sikes about the Petitioner, and told Sikes, "he needed to do something about that Nigger." Sikes told Johns that he would take care of it and to calm down. Johns, who was very upset, subsequently apologized to Sikes for his confrontational manner in raising the matter with him. On January 25, 1992, Sikes sent the Petitioner another memo confirming a verbal warning about his poor work habits, wasting time, and absenteeism. On January 30, 1992, Sikes sent the Petitioner another memo regarding his poor work habits. In February, the Petitioner's wife, from whom he was separated, died, and he was granted three days bereavement leave for February 11-13, 1992. On February 18, 1992, the Petitioner called the shop and left word with a secretary that he would not be at work for the rest of that week. He did not submit a leave request for this period of time. Subsequently, the Petitioner was absent without permission from February 14 until February 24, 1992. The Petitioner did not obtain permission from his supervisors prior to taking this leave, did not request leave without pay, and did to explain his absence. Neither did his doctor, the rehabilitation counselor, his chiropractor, his attorney, or a member of his family or a friend report his absence and give any explanation. During this period, he appeared once at work to pick up his pay check on February 21, 1992. On this occasion the Petitioner did not address the matter of his absence with Sikes or Horton, although Horton advised he Petitioner that Sikes wanted to speak with him. The Petitioner had exhausted all of his sick and vacation leave prior to February 14, 1992. Under the County's rules, an employee had to request leave without pay after exhausting sick and annual leave, and the request had to be approved by the County Commission. The Petitioner did not make a request for leave without pay. Although the Petitioner asserts that he had not exhausted his sick leave because he was visiting the doctor during his absences which was covered by workers' compensation leave, he did not provide medical substantiation for the alleged treatments and doctors' visits as required by the employer's rules in order to obtain workers' compensation leave. On February 25, 1992, the Petitioner returned to work at starting time wearing work clothes. Horton stopped him on his way to his work area, and advised him that Sikes wanted to talk with him. Horton accompanied the Petitioner to Sikes office. Sikes asked the Petitioner were he had been, and the Petitioner answered that he had been attending to personal business. Sikes asked him for a more detailed explanation of his absence, and the Petitioner again told him that he had been tending to business and that Sikes should either fire him or get off his back. Sikes warned the Petitioner that unless he provided some explanation for his unauthorized absence, he would have to terminate him. The Petitioner refused to provide any additional explanation, but asked that his firing be put in writing. The Petitioner left the work place after the meeting, and did not return to work or attempt to explain his absences. Sikes viewed the Petitioner's absences and refusal to obey the personnel regulations as undermining his credibility as a supervisor. Several days after the confrontation on February 25, 1992, Sikes wrote a letter terminating the Petitioner for (1) continued or gross neglect of duty; (2) absence without leave; incompetence or unwillingness to render satisfactory service; insubordination; and (5) habitual absences, as provided in Parts X and XI of the County personnel regulations. Sikes extended special consideration to all employees of the department, who were permitted to take leave or be absent without applying for leave. The Petitioner was permitted to take leave without applying for it, and that considerable latitude was extended to the Petitioner regarding his absences prior to his being discharged. A white male, who was not handicapped, was hired on May 28, 1992 to file the position from which the Petitioner was discharged. The Petitioner appealed his discharge under the County's rules, and after an evidentiary hearing in which the Petitioner was represented by counsel, the county's hearing officer found that the dismissal was for cause in a Final Order dated September 24, 1992. Discrimination in Promotion and Pay among Blacks. The population and labor market statistics offered by the Petitioner in support of his contention that Blacks were discriminated against in promotion fail to support the proposition for which they were offered. For example, the Petitioner limits the labor pool to those persons who are over 16 and worked in 1989. However, there are those persons who are over 16 and would like to work, but who have not been hired. If the Petitioner's contention is correct, one would expect that for every white employee hired, there was a black applicant who was not hired. Therefore, comparisons based upon persons actually hired understate the percentage of Blacks in the labor pool. The relevant labor market for this dispute is Suwannee County, Florida, and the relevant labor pool are those people over 16 years of age who are now seeking, or who have in the past sought employment. According to the 1990 census, 14.7 percent of the population of the County is black. Blacks constitute 13.8 percent of the County's employees. The work environment was not overtly racist, and while, as stated above, racially charged verbal barbs were occasionally exchanged, there is no evidence that this was common or tolerated by the employer. The best evidence of discrimination by the employer were the actual practices engaged in by the County. During the 12 years prior to the termination of the Petitioner, the County had never had a Black supervisor. From 1989 to September 23, 1992, the County hired one black employee of 30 employees who it hired. Its top 10 highest paid employees were all white. The highest paid black was the forty-first highest paid employee of the County. Kevin Praley was placed in a welder's position despite the fact he was a mechanic at $6.50/hour; and Petitioner, who was a professional welder, was hired as a laborer at $5.00/hour in 1988. At the time Praley was hired, the Petitioner was making $6.00/hour, so that the differential between their pay was $.50/hour in 1988. After four years, Praley, who was hired after the Petitioner, was paid $2.01/hour more than the Petitioner for work which Sikes and others said was similar. This reflects continuing discrimination in hiring and paying Blacks. Blacks were hired in the lowest paying, menial jobs within the county, and this was not on the basis of education. All of the county's custodial employees are black. Only one of the county's secretaries is black. Until very recently, there were no black supervisors in the county's maintenance department. Most of the County's increases in Black employment and promotions occurred after institution of this case. The Clerk of the Circuit Court/Clerk of the Board of County Commissioners has not published a salary discrimination review required by Section 28.34, Florida Statutes. Further, the County's Equal Opportunity Program of 1992 provided for annual assessment of its progress in equal opportunity. As of May 9,1994, the County and not compile an annual report pursuant to its plan. The County did not train Black employees to assume greater responsibility, and did not utilize them as heavy equipment operators until after the institution of this action. The county did not pay Jelks and other Black employees annual pay raises while they were on probation; however, it did pay white employees Praley, Hardin, Simmons, Mobley, Luanne Mixon, Tervola, and Brother annual pay raises while they were on probation. These white employees were all hired prior to or during the year the Petitioner was hired. Jelks received the raise at the end of his probation period on November 24, 1988. Helen Stoudermire, Mattie L. Weatherspoon, Tyrone Tillman, and Marvette Gwinn, all black employees of the Respondent, did not receive annual raises while in probationary status, contrary to the treatment afforded white employees. The amounts of their collective salary losses were not presented as a finding of fact. The county did discriminate against the Petitioner and other black employees in pay and promotion during the period 1989 until February 25, 1992.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Florida Commission of Human Relations enter a Final Order directing that: The Petitioner's Petition for Relief relating to his discharge be dismissed; Black employees of the County be certified as a class for the period beginning August 1988 until the present; The County be ordered to cease and desist its discriminatory practices in pay and promotion against the class of black employees; The County's Clerk be ordered to file reports on salary differentials are required by statute; and Reasonable attorney's fees and costs be awarded to Petitioner's counsel. DONE and ENTERED this 8th day of September, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1994. APPENDIX CASE NO. 93-5330 Both of the parties submitted proposed findings which were read and considered. The following states which findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Rejected as contrary to more credible facts. See Paragraph 41. Paragraph 3 True, but part of statement of case. Paragraph 4 Paragraph 11. Paragraph 5 Paragraph 1. Paragraph 6 Subsumed in Paragraph 11. Paragraph 7 Subsumed in Paragraphs 11 and 17. Paragraphs 8,9,10 Paragraph 44. Paragraph 11 Conclusion of Law Paragraph 12 Paragraph 57. Paragraph 13 Contrary to facts. The Petitioner returned to duty. Paragraph 14 Irrelevant. Paragraph 15 Paragraph 48 Paragraphs 16,17,18 Paragraph 51 Paragraph 19,20 Contrary to more credible evidence. Paragraph 21 Subsumed in paragraph 54. Paragraph 22 Paragraph 56. Paragraphs 23,24,25 Paragraphs 2,3,4,58,60 Paragraph 26 Paragraph 26. Paragraphs 27,28 Paragraph 42. Paragraphs 29,30 Subsumed in 2,3,52,53. Paragraph 31 Rejected because Jelks received the raise at the end of his probation period on November 24, 1988. His reduction in pay was $.30/hour for October and November, or 8 weeks X 40 hours X .30 = $96.00. Paragraph 32 County's claims were rejected on this point. Paragraph 33 Paragraph 18 Paragraph 34 The statistical record is rejected for lack of credibility because it considers averages of both groups compared when there are findings which show whites held higher paying jobs. Paragraph 35 Subsumed in paragraph 32. Paragraph 36 Subsumed in paragraph 54. Paragraph 37 Rejected as contrary to better evidence. Paragraph 38 Subsumed in Paragraphs 26,27. Paragraph 39 Paragraphs 29,30. Paragraph 40 Is not addressed specifically because it violated the HO's directions that findings be kept short, and address specific factual matters, and is mostly argument. Paragraph 41 Subsumed in Paragraph 17. Paragraph 42 Paragraph 20. Paragraph 43 The County did accommodate some whites. Paragraph 44 Rejected as contrary to best evidence. Paragraph 45 Paragraph 50. Paragraph 46 Subsumed in Paragraph 55. Paragraph 47 Rejected. Welder and mechanic were the same job description. Paragraph 48 Irrelevant. Paragraph 49 Rejected because "handicap" relates to permanent conditions, and his permanent handicap was only 4 percent. It was his temporary condition which impacted his ability to perform the work. Paragraph 50 Irrelevant. Paragraph 51,52 The name calling by employees, to include Johns, occurred in the context of an angry exchange with Sikes, who cautioned Johns to calm down. Johns subsequently apologized to Sikes, and neither were aware that his comments had been overheard by Jelks. Paragraph 53 Paragraph 51. Respondent's Recommended Order Findings Paragraphs 1-5 Paragraphs 1-6 Paragraph 6 Subsumed in part in 1-6, and rejected in part as contrary to most credible evidence. Paragraphs 7,8 Paragraph 6 & rejected as contrary to most credible evidence. Paragraph 9 Rejected as contrary to most credible evidence. Paragraph 10,11 Paragraph 8 Paragraph 12,13,14 Paragraph 9,10 Paragraph 15 Paragraph 29 Paragraph 16 Paragraph 49 Paragraphs 17-23 Paragraphs 11-17 Paragraph 24 Paragraph 21 Paragraph 25 Paragraph 19. Paragraphs 26,27 Irrelevant. Paragraph 28 Paragraph 25 Paragraph 29 Paragraph 17 Paragraph 30 Rejected as contrary to most credible evidence. Paragraph 31 Paragraph 28. Paragraph 32 Irrelevant. Paragraph 33 Rejected as contrary to most credible evidence. Paragraph 34 Paragraph 20. Paragraphs 35,36 Paragraph 19 & rejected as contrary to best evidence. Paragraph 37 Paragraph 23. Paragraph 38 Paragraph 24. Paragraph 39 Paragraph 25. Paragraph 40 Paragraph 31. Paragraph 41 Rejected as irrelevant. Paragraph 42 Paragraph 33. Paragraphs 43,44 Paragraph 32. Paragraph 45 Paragraph 35. Paragraph 46 Paragraph 36. Paragraph 47 Irrelevant. Paragraph 48 Subsumed in paragraphs above. Paragraph 49 Subsumed in Paragraph 33. Paragraph 50 Paragraph 35, best evidence. Paragraph 51 Paragraph 32. Paragraph 52 True, but part of law. Paragraph 53 Paragraph 34. Paragraphs 54-58 Paragraphs 37,38,40,41 Paragraph 59 Irrelevant. Paragraph 60 Duplicative. Paragraphs 61,62 Irrelevant. Paragraph 63 Rejected as contrary to most credible evidence. Paragraph 64 Paragraph 48. Paragraph 65 Subsumed in Paragraph 41. Paragraph 66 Subsumed in Paragraph 48. Paragraph 67 Irrelevant. Paragraph 68 The wage disparity was the result of hiring Blacks in the lowest paying jobs. Paragraph 69 Subsumed in Paragraph 54. Paragraph 70 Paragraph 50. Paragraph 71 See comments to Paragraph 68. Paragraphs 72-83 Subsumed in Paragraphs 54, 55. COPIES FURNISHED: Michael Mattimore, Esquire Kimberly L. King, Esquire Suite 305 215 South Monroe Street Tallahassee, FL 32301 Toby Buel, Esquire Three Rivers Legal Services 817 West Duval Street Lake City, FL 32055 C. Dean Lewis, Esquire Post Office Box 8 Live Oak, FL 32060 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
Findings Of Fact Petitioner was a lead operator on the first shift of the data entry section of Respondent company. Mr. John Goolsby was also a lead operator but on the second shift in the data entry section. Petitioner was discharged due to elimination of the position of lead operator and Mr. Goolsby was not. During the period encompassing the elimination of Petitioner's job, Respondent reduced its staff from 73 to 57 people and the data entry staff was reduced from 12 to less than 8 people. The decision as to which lead operator in the data entry section would be released from employment was based upon a decision to keep the most productive employee on the basis of quality and quantity of work. Although both the Petitioner and Mr. Goolsby were satisfactory employees, the most productive individual was identified through a series of evaluations by interviewing management personnel to Mr. Christman, Respondent's Executive Vice-President. Probably the most significant- input in the decision-making process was from Sandra Howell, immediate supervisor of both Petitioner and Goolsby, and the tabulations and comparisons of data were done by Walter E. Wilfong, Operations Manager. They all identified John Goolsby as the most productive individual and the decision to release Petitioner was made by Mr. Christman. At the time she was released, the company had no alternative position to offer Petitioner. She has since been offered reemployment in a different position. Petitioner was unable to establish that in making their recommendations to Mr. Christman either of the middle managers gave special or undue consideration to Mr. Goolsby's school schedule. Petitioner never received any written complaints or warnings or reprimands about her work performance and it was unrebutted that her job performance was satisfactory. Petitioner testified that the comparison of production between herself and Mr. Goolsby was invalid because Mr. Goolsby worked the night shift and Petitioner worked the day shift. Witnesses for the Respondent conceded that the night shift was generally not as productive as the day shift. However, the immediate supervisor of both the Petitioner and Mr. Goolsby both before and Mr. Goolsby after Petitioner's termination testified that Mr. Goolsby's work quality and quantity was superior to that of the Petitioner. This testimony was unrebutted. In addition, it was unrebutted that Mr. Goolsby had been nominated for company-wide awards for his quality as an employee on several occasions both before and after the Petitioner's termination and the Petitioner had never been nominated. Although there is some indication in Mr. Wilfong's testimony that Mr. Goolsby had the "edge" with him because Wilfong wanted someone who could communicate with Wilfong for liaison between various shifts, the evidence falls short of establishing this consideration was a deciding factor or that any edge was given Goolsby in the evaluation reports. Further, Wilfong attempted to compensate for Goolsby's showing greater productivity due to the "less people- more work" element of the night shift by reviewing Petitioner's productivity records from then she had previously been on the night shift, which did not compare favorably with Goolsby's for quantity. There is no competent evidence that Respondent terminated Petitioner on the basis of her gender, female, by the ruse of eliminating her position. Further, at the date of formal hearing, Mr. Goolsby's supervisor remained female (Sandra Howell) and there are 6 female/6 male supervisors and a higher female to male ratio of the total 57 retained employees.
Recommendation It is recommended that the Human Relations Commission enter a final order dismissing the Petition/Complaint herein. DONE AND ENTERED this 4th day of November, 1986, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2866 All of the Respondent's Proposed Findings of Fact are accepted. All are adopted, as modified to conform more closely to the record in this cause. COPIES FURNISHED: Ms. Terri Tibble 3040 Aloma Avenue, Apt. J-9 Winter Park, Florida 32791 Thomas R. Pepplar, Esquire Graham, Clark, Pohl & Jones 369 New York Avenue Post Office Drawer 1690 Winter Park, Florida 32790 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32299-1570
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Background Petitioner, Karen M. Mallory, who is black, has been employed since June 1986 by respondent, Department of Corrections (DOC). On January 1, 1988, she was transferred to Tomoka Correctional Institution (TCI) in Volusia County, Florida. In a charge of discrimination executed on May 16, 1994, and later filed with the Florida Commission on Human Relations (Commission), petitioner has contended that she was subjected to harassment by her TCI supervisors by virtue of her race. After conducting a preliminary investigation, the Commission found probable cause that a violation of the law had occurred. On January 5, 1995, petitioner filed a petition for relief in which a general allegation was made that she had been "treated unfairly on a regular basis (by her supervisors) because of (her) race and this has caused a very uncomfortable and stressful work environment." The DOC denies this contention. This proceeding followed. The Allegations Petitioner was first hired by DOC in 1986 as a clerk typist. When she was transferred to TCI in January 1988, she assumed the position of fiscal assistant I. Within a few years, she was promoted to a fiscal assistant II in the accounting unit, a position she has retained since that time. From October 1991 until October 1993, Cynthia Griggs, a white certified public accountant (CPA), was employed by TCI as an accountant supervisor II. Griggs supervised eight employees in the accounting unit, including petitioner. During Griggs' tenure at DOC, the unit consisted of the following sections: inmate bank, major institutions, general inventory and health services. One of Griggs' primary goals was to cross-train employees in her unit so that personnel could move between sections to cover vacant positions caused by illness or termination. It is undisputed that, in comparison to the prior supervisor of the unit, Griggs was perceived by her subordinates as a "tough" manager. Upon assuming her role as supervisor, Griggs began enforcing a recently adopted policy that no two employees in a particular section could take breaks at the same time so that there would always be someone to answer the telephone. This policy, and other office disciplinary measures, were always applied in an even- handed manner by Griggs. Even so, Griggs' management style did not sit well with petitioner who speculated that she was being singled out for special treatment. This speculation, however, was just that and was not grounded on discriminatory reasons. Among other things, petitioner claims that in April 1992 she was unfairly and discriminatorily counseled by Griggs for misconduct and insubordination. However, the facts show otherwise. On April 6, 1992, Griggs orally instructed petitioner to implement a new procedure for her inmate bank duties, including making a telephone call to the mail room to verify certain information. The instruction was based on Griggs' experience as a CPA and her understanding of a recent audit of inmate bank accounting procedures. Petitioner became "very upset" with Griggs' instruction, and she stated that the instruction was not in comformity with the intentions of the audit. Griggs replied that she interpreted the audit differently and it was her intention that the new procedure be implemented. Petitioner then told Griggs not to talk to her that way and to come back when Griggs could talk to her in a "civil" manner. This exchange occurred in the presence of two other employees and an inmate. Griggs acknowledged that she became "very angry," especially since she had not spoken to Mallory in an "uncivil" tone. Because other persons were present, she asked Mallory to come to her office to discuss the matter privately. Petitioner refused saying she would be there in a few minutes. However, she never went to Griggs' office, and this prompted Griggs to issue a counseling memorandum for misconduct and insubordination. In doing so, Griggs was not motivated by discriminatory animus but rather she issued the memorandum for a legitimate reason. The record also shows that Griggs had issued a similar memorandum to another white female employee for tardiness. When the April 1992 incident occurred, Michael Gulnac, who is white and the TCI business manager, was Griggs' supervisor and was required to approve the counseling memorandum. Petitioner contends that because of her race, Gulnac refused to meet with her alone to discuss this and other grievances and, unlike his meetings with other employees, Gulnac always insisted that a third party be present. The evidence shows, however, that before this incident occurred, Gulnac had met privately with petitioner on several occasions. But after these meetings were held, petitioner would often misstate what Gulnac said during those meetings. Because of this, and for no other reason, Gulnac insisted that a third party be present in his office whenever petitioner requested a meeting. Contrary to petitioner's claim, there was no discriminatory animus on the part of Gulnac in requiring a third party to be present for meetings with petitioner. Petitioner further contended that, unlike other employees, she was not given specialized training to assist her in mastering her new cross-training duties and thus she was denied employment opportunities on account of her race. For example, she pointed that a white male employee, Tom West, had been sent to Tallahassee for specialized training. However, unlike petitioner, West had no prior accounting background before assuming his fiscal assistant II slot and therefore required more intensive training. Like other employees, petitioner was given on-the-job training as an aid to learning her new duties. There was no discriminatory animus on the part of DOC in failing to send her to Tallahassee for specialized training. Finally, petitioner contended that Griggs accused her of wasting time and engaging in too much socializing in the office while failing to treat white employees in the same fashion. Because there is less than a preponderance of evidence to sustain this allegation, this charge must also fail. In summary, the evidence does not support a finding that petitioner was subjected to a discriminatorily hostile and abusive environment at her workplace. While petitioner has been unhappy with her job since 1991, and she was particularly displeased with the management style of the now-departed Griggs, there is no evidence, or even an inference, that any actions taken against petitioner were because of her race. Therefore, she has not been discriminated against with respect to her terms, conditions and privileges of employment at DOC, nor has she been deprived of employment opportunities because of her race.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 15th day of November, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0270 Petitioner: 1-2. Partially accepted in finding of fact 1. 3-7. Partially accepted in findings of fact 6-9. 8-11. Partially accepted in finding of fact 9. 12-15. Partially accepted in finding of fact 5. 16-20. Partially accepted in finding of fact 10. 21-22. Partially accepted in finding of fact 11. 23-24. Rejected as being contrary to the more persuasive and credible evidence. Respondent: The proposed findings submitted by respondent have been adopted in substance, albeit with considerable change. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, not supported by the evidence, cumulative, or a conclusion of law. COPIES FURNISHED: Eddie J. Bell, Esquire 62 Springwood Square Port Orange, FL 32119 J. Yvette Pressley, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
Findings Of Fact Petitioner John A. Fritz was employed by Respondent Department of Transportation for approximately four years, working on a bridge crew from the Fort Lauderdale maintenance yard. On June 23, 1985, Petitioner was placed on workers' compensation disability leave; he returned to his normal duties on July 15, 1985. He was again placed on workers' compensation disability leave on July 26, 1985. During the week before Monday, December 16, 1985, Petitioner presented to Respondent a note from his treating physician stating that Petitioner was ready to return to work performing his regular duties on Monday, December 16, 1985. Petitioner did not report for work on Monday morning and did not contact Respondent regarding his failure to report to work until approximately lunch time when he telephoned Joseph Soucy, operations engineer. Petitioner advised Soucy that he was in jail, that he needed Soucy to contact Petitioner's credit union to obtain $200 bail money but that Soucy should contact the bail bondsman first. Soucy telephoned Petitioner's bail bondsman and found out that $200 was not what the bondsman needed; rather, the bondsman was requiring the deed to Petitioner's home as collateral. When Soucy telephoned the jail to relay the information to Petitioner, he was unable to speak to Petitioner directly but left a message explaining that the bail money would not be coming from the credit union since the bondsman required the deed to Petitioner's home. During the conversation that Petitioner had with Soucy, Soucy advised Petitioner that Petitioner was expected to report to work on the 16th of December and that if he did not do so, he would be considered absent without leave. Petitioner remained in jail until approximately December 23, 1985. He did not report for work on December 16, 17, or 18, 1985. After Petitioner's telephone call to Soucy on December 16, 1985, requesting Soucy's assistance in arranging his bail, Petitioner had no contact with the Department of Transportation until January 7, 1986, when he acknowledged receipt of the letter of termination sent to him by Respondent by certified mail, return receipt requested. On April 25, 1983, Petitioner signed an Acknowledgment of Receipt of the Florida Department of Transportation Employee Handbook. That handbook advises employees, on page 43, that an unauthorized leave of absence for three consecutive days will result in the Department considering the employee to have abandoned his position and to have resigned from the Career Service. Petitioner had previously requested leave, following all proper procedures, on previous occasions during the calendar year 1985. He did not, however, request leave nor was any authorized for December 16, 17, or 18, 1985. Further, Petitioner did not request leave nor was any leave authorized for the entire time period of December 16, 1985, through January 7, 1986, when Petitioner again contacted the Department of Transportation. On December 19, 1985, Respondent advised Petitioner that he was terminated from his employment with the Department of Transportation effective December 18, 1985, at 4:30 p.m. for abandonment of his position for failing to report for work since December 16, 1985, and for failing to advise his supervisor of his intention relative to his job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner abandoned his position with the Department of Transportation and resigned from the Career Service. DONE and RECOMMENDED this 9th day of June, 1986, at Tallahassee Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1986. COPIES FURNISHED: Gilda A. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Vernon L. Whittier Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 John A. Fritz 301 N.W. 51 Court Fort Lauderdale, Florida 33309 Augustus D. Aikens, General Counsel Department of Administration 530 Carlton Building Tallahassee Florida 32301
Findings Of Fact Petitioner was first employed with the State of Florida, Department of Management Services, Division of Facilities Management, Bureau of Maintenance (DMS), in 1979 or 1980. Her date of retirement was February 19, 1993. Petitioner graduated from Florida A&M high school and attended Florida A&M University for approximately one and one-half years. Between 1950 and 1979 or 1980, Petitioner was primarily a homemaker but also worked in various clerical positions until starting work with the Department of Management Services as a custodial worker. Petitioner began working as a custodial worker at the Twin Towers Building in Tallahassee, Florida. In that capacity, Ms. Lewis was responsible for dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. During her tenure at the Twin Towers Building Ms. Lewis received the following discipline: Oral reprimand for excessive absenteeism, on September 20, 1982. Written reprimand for excessive absenteeism; on September 15, 1983; and Suspension for three workdays for the third offense of excessive absenteeism on September 5, 1984. Additionally, around April 30, 1985, the building superintendent at Twin Towers gave Ms. Lewis a memorandum of concern about her absenteeism. Around April 23, 1987, she was given a memorandum of concern about tardiness in reporting to work because she had been late to work twelve times in the three month period prior to the memo. Ms. Lewis seemed to improve her daily attendance at work but, the problem of tardiness to work continued. Petitioner began working as a night shift custodial worker at the Capitol in May of 1988, when she was transferred from the Twin Towers Building. The transfer was necessary because all of the full-time custodial positions at the Twin Towers Building were changed to halftime positions. DMS custodial workers at the Capitol on the night shift were responsible for cleaning of the public areas and offices of the capitol complex, including dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. Generally, four employees work as a team to quick clean certain areas and do more thorough cleaning in other areas each night as assigned by that shift's custodial supervisors. All members of the general cleaning teams were expected to arrive at work at 5:00 p.m. and work until 1:00 a.m. The lunch break was considered work time for the employees and was therefore paid. Upon joining the custodial workers at the Capitol, Ms. Lewis was assigned the task of dusting the historic capitol building. Her performance appraised by Tommy Denis, Custodial Supervisor III, indicated that she was a good worker with attendance and tardiness problems. Eventually, Petitioner, at her request, was moved to work with a team on the plaza level at the Capitol. Her duties consisted of dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. She continued to receive good appraisal ratings with the problems of attendance and tardiness noted. Another change in duty assignment placed Ms. Lewis with a team working on multiple, upper floors of the Capitol. Her principal duty continued to be dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. Ms. Lewis reported to her doctor that she was assigned the duty of dusting. Petitioner testified she could empty the small office trash cans. Ms. Lewis was not assigned to lift recycle paper and not assigned to pull bags of trash out of the large trash barrels on wheels. Additionally, Ms. Lewis, along with other custodial workers were instructed not to lift anything that was too heavy and to call for help when such a situation was encountered. At some point in her employment, Ms. Lewis injured her back while lifting trash. Because of the injury she experienced recurrent pain in her right leg and lower back. In August of 1989, Ms. Lewis had surgery for her back problem. Soon after the surgery in September of 1989, Ms. Lewis fell out of bed onto her hip. The fall delayed her in recovering from the surgery mainly due to new pain in her hip. The pain for which she had the surgery was absent. However, Ms. Lewis did not communicate with DMS regarding her status and her ability to return to work. Since her medical condition was unclear to Building Superintendent Boynton, he requested the assistance of the Bureau of Personnel Management Services. Bureau Chief Dave Fulcher wrote Ms. Lewis to ascertain her status. She solicited her surgeon, Dr. Geissinger, to respond to Mr. Fulcher. Dr. Geissinger evaluated the duties of the position held by Ms. Lewis from her position description. On November 30, 1989, Dr. Geissinger wrote Mr. Fulcher that Ms. Lewis could be expected to perform the duties of her position. Dr. Geissinger also attached a copy of his office notes dated 11/30/89, which indicated Ms. Lewis still experienced some pain but that she was not in acute distress. In November 1989, Dr. Geissinger did not specify "light duty" for Petitioner but at other times, Dr. Geissinger and other doctors specified a weight limit for Petitioner's lifting. The suggested limits did not exceed the lifting requirements of Petitioner's position. Dr. E. E. Lowder sent the last "light duty" restriction for Ms. Lewis. He limited her lifting to 10 - 15 pounds and indicated that her release from doctor's care was pending. Importantly, there was no evidence which indicated that Petitioner's back problem amounted to a condition which impaired any major life function of Petitioner. Moreover, there was no evidence that DMS perceived Petitioner's back problem as a handicap. In fact, the evidence presented at the hearing demonstrated Petitioner's condition was not a handicap and was not perceived as such by her employer. During the six month period from 5/8/92 to 11/5/92, Ms. Lewis was tardy 46 times by eight minutes or more. During the eight month period from 6/20/90 to 2/28/91 Petitioner was tardy 46 times. Following 2/28/91, Ms. Lewis was tardy at least 5 more times. On April 11, 1991 Ms. Lewis received an oral reprimand for her tardiness. Ms. Lewis was again tardy two more times and received a written reprimand for excessive tardiness on May 7, 1991. Later, Petitioner received a three workday suspension for tardiness which was served on January 12, 13, and 14, 1993. Ms. Lewis did not deny that she had been tardy. Other employees, males and females, were disciplined for excessive absenteeism and tardiness. After the suspension was served in January, 1993, Ms. Lewis was tardy 15 times in the next 18 days, nine days of which were 8 minutes or more. The fact that some of the days Petitioner was late were for less than seven minutes does not eliminate the tardiness. DMS rules on the subject only address when an employee's wages can be docked for such lateness. Since Ms. Lewis continued to be tardy, Allen Dallis, Maintenance Supervisor, initiated the first step of a recommendation to dismiss Ms. Lewis for continuing tardiness. Ms. Lewis gave reasons for being tardy which included, being stuck in traffic, doctors' appointments, her ride to work being late, caring for her grandchildren, and sickness of her daughter. Often she was late simply because, for unknown reasons, she waited outside her place of employment before coming into work. At no time in the disciplinary process leading up to the suspension or after the suspension did Ms. Lewis assert that she was being singled out due to her sex or handicap. In fact, Ms. Lewis would not talk with her supervisors about her tardiness or her assignments. In general Ms. Lewis did not communicate well with her supervisors and had formed the habit that if they said something to her, she would walk off and not respond. Generally, Ms. Lewis did not notify her supervisors ahead of time that she would be tardy even though she knew in advance when her tardiness might occur. She occasionally called Mr. Rivers, a custodial supervisor, on the same day that she would be tardy to tell him she would be late. Mr. Rivers was not available for calls until 5:00 p.m. each day after the shift had begun. Occasionally, Ms. Lewis would advise her supervisors the evening before that she would be late the next day. After July 12, 1990, Ms. Lewis received leave without pay (LWOP) when she was more than seven minutes tardy and she had not brought in medical certification. Tardiness of custodial workers presented problems in scheduling the work because the workers were organized in teams whose members moved together doing their tasks. If one of the usual team members was absent or late at the beginning of the shift, the supervisors would organize the employees who were present into different teams in order to try to cover all areas with the available workers and have no one working alone. Frequently it was not evident whether Ms. Lewis was tardy or absent for the evening. Ms. Lewis asked that if she were tardy in reporting to work, she be allowed to make up the amount of time she had been tardy on the same night. She did not request a change in her schedule. Her choice of make up time was during the lunch break when her time was already counted as work-time, or after 1:00 a.m., when all workers and supervisors were gone from the building. The request was denied because a daily schedule which changes as the employee chooses would not fit the staffing organization of the custodial work force in the Capitol. Additionally, a worker could not stay in the Capitol past the end of the shift at 1:00 a.m. with no supervisors present. No employee was permitted to adjust their daily schedule in such an unpredictable manner. A few years ago, Dunk Chambers, at the time a custodial worker on a floor team, and Johnny Pease, at the time a Custodial Supervisor I, had flexible schedules in which they reported to work at 5:30 p.m. each day except Wednesday. On Wednesdays they reported to work early enough to make up time missed during the week. These schedules were predictable and set well in advance. Currently, Mr. Chambers, Custodial Supervisor II, and Mr. Pease, Custodial Supervisor III, currently follow the regular night shift schedule. Presently, two female custodial workers at the building where Tommy Denis is supervisor, follow a schedule in which their arrival and departure from work is different from that of other employees. Again these schedules are predictable and are set well in advance. The denial of Ms. Lewis' request to make up time when she was tardy was not due to a medical condition, handicap or sex. At least one other female employee who had no medical problem was disciplined for excessive tardiness to work. Allen Dallis asked Ms. Lewis if she wanted to work part-time as a suggestion of a possible change that would enable her to report to work on time, but she walked off with no answer. The option of retirement was offhandedly mentioned to her also. During these conversations, there was no coercion, duress, misinformation or deception by the supervisors and there was no indication that Ms. Lewis was in any way harassed by her supervisors. During her tenure with DMS, Ms. Lewis did not present any medical justification for nor request any specific accommodation for her back problems other than temporary light duty for a condition from which she would soon be released. The evidence was very clear that Petitioner was only doing light duty work which work could not be lightened further. Finally, there was no evidence that Petitioner was subjected to any discrimination based on sex or handicap. Finally, the evidence did show that Petitioner's discipline was justified, that she was not constructively discharged, and that Petitioner chose to retire in February 1993. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that she was discriminated against because of her sex or handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE and ORDERED this 30th day of November, 1994, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 30th day of November, 1994. APPENDIX TO DOAH CASE NO. 94-3996 The facts contained in paragraphs of 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 22, 23, 34, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 48, 49, 52, 54, 55, 57, 60, 62, 63, 64, 65, 66 and 68 Respondent's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3,,, 13, 14, 15, 21, 25, 39, 40, 41, 42, 43, 50, 51, 53, 56, 58, 59, 61, 67, 70, 71, 72 and 73 of Respondent's proposed findings of fact are subordinate. The facts contained in paragraphs 4, 5, 6, 7, 10, 14, 43, and 44 of Petitioner's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 9, 11, 18, 13, 18, 20, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 40, 45, 46 and 47 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 8, 15, 16, 17, 19, 21, 28, 36, 37, 38, 39, 41 and 42 of Petitioner's proposed findings of fact were not shown by the evidence. COPIES FURNISHED: Joan Van Arsdall Department of Management Services Suite 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 Marie Mattox 3045 Tower Court Tallahassee, FL 32303 Helen Burgess AFSCME Florida Council 79 345 South Magnolia Drive Suite A-13 Tallahassee, FL 32301 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination due to Petitioner’s national origin.
Findings Of Fact Respondent Employer is a paper packaging plant located in Cantonment, Florida. It fills orders from retailers as specified on purchase order forms (POFs). Respondent manufactures a variety of bags for containing retail goods. Petitioner worked for Respondent for more than eight years. During part of this time, he was a member of a union which had a collective bargaining contract with Respondent. At all times material, he did shift work involving heavy machinery "on the floor." Petitioner was terminated on June 13, 2003, after a series of disciplinary actions, the last of which arose out of events occurring on June 9, 2003. Petitioner contends in his Proposed Recommended Order that Respondent did not follow the guarantees of his union’s collective bargaining contract, the established grievance procedures, and/or Respondent’s policy and procedure manual for tier-disciplining or for counseling him. However, Respondent’s failure to comply with these artificial standards, or Respondent's failure to only partially comply with them, is not determinative of any issue under Chapter 760, Florida Statutes, unless Petitioner also can show that other employees, who were not of Petitioner’s protected class, were treated differently or more favorably than Petitioner in a similar situation. It appears, however, that each time Petitioner requested union representation, he was provided with union representation. When he did not request union representation, he was not provided with union representation. On his Charge of Discrimination, Petitioner checked only the box for “national origin.” He did not check the box for “race.” However, under the portion of the form reserved for “The Particulars Are:”, Petitioner filled in: During my employment, I was constantly harassed by being called racially derogatory names. On June 13, 2003, I was terminated because of national origin (Native American). I was told that I was terminated for negligence. On his Petition for Relief, Petitioner complained, among other things, of “ethnic slurs” such as: Hay [sic.] Indian called Derogatory – names such as two Dog about my color and race. About a year before his termination, Petitioner had a feud with a white male co-employee, Clifford Stuckey. This feud is described below more fully and in sequence with other events. Generally, however, Petitioner was a non-confrontational employee with a good work ethic. With regard to his job performance, Petitioner was a model employee until he was promoted to machine operator more than two years before his termination. Petitioner had done well as an assistant machine operator, but after promotion, Petitioner was disciplined for a rash of quality control errors. The nature of his quality control errors was the same as that of many other similarly-situated employees, but his errors differed from other employees' errors in that he accumulated more quality control errors in a shorter period of time than any of his co- workers; he demonstrated too many such flaws within a single twelve-month period; and he cost the employer a considerable amount of money in wasted goods. For the eight-plus years of his employment, nicknames were the common way Petitioner and his co-employees addressed one another, day-in and day-out on the floor of the plant. Some supervisors picked up these nicknames due to their regular and pervasive use among subordinates. Many employees had nicknames that they did not object- to. One Black male employee purchased a vanity license plate which read "African," so co-employees called him "African," without anyone considering the nickname to be a racial slur or otherwise derogatory. Carl Broadnax (Black male) was proud to be called "Black Stud." Ronald Moran (white male) was known as "Big Ron." A Puerto Rican employee named Tony Crevice (phonetic spelling) was called "Julio." Eric Adkins (Black male) called another employee (race and gender unspecified) "Pooh Bear." Wesley N. Houston (white male) was called "Cowboy." In the course of disciplinary actions against him during the last fifteen months of his employment, (see Findings of Fact 52-53, 65-70, 80 and 81), Petitioner told Nancy Glass, Respondent's white female Human Resources Director, that he was an "Indian." She understood that he perceived himself to be an "Indian." During his eight-plus years in Respondent's employ, Petitioner was perceived by many of his co-employees as an “Indian” or “Native American.” Some of them called him by his first name, "James," but most of them also called him by the nicknames, “Indian,” “Two Dog,” “Two Dogs,” and/or “Two Dogs Fucking.” No clear evidence was presented as to how often any or all of these nicknames were used to address, or in reference to, Petitioner, but their usage must have been as common, continual, and pervasive as any of the other nicknames used day- in and day-out on the floor. The foregoing nicknames for Petitioner were used by co- employees and accepted by Petitioner for more than eight years without rancor or dismay on either side. For more than eight years, the users did not perceive that the nicknames might be racially provocative or demeaning of Petitioner's race or national origin, and they did not sense that he might be hurt by the nicknames, because he did not express hurt feelings or offense to anyone. Only one witness thought Petitioner's nicknames were a bad thing. Ronald Williams (Black male and current union president) knew that "Two Dogs" was a common name given to Petitioner and that it was an abbreviation for "Two Dogs Fucking." He heard the abbreviation "Two Dogs" directed to Petitioner, but he never heard the full phrase even used around Petitioner. He considered both phrases to be racial in origin and racial in context, but even Williams could not say that Petitioner ever reacted oppositionally to any of the nicknames. No other witness acknowledged hearing the nickname "Two Dogs Fucking." All of them thought the other nicknames which were applied to Petitioner were neither racial nor offensive. For instance, on a regular basis, Ricky Mitchell (white male) called Petitioner "Indian," without considering it a racial slur. Petitioner addressed Mitchell as "Paw Paw." Ronald Moran (white male) called Petitioner "Two Dogs," as a nickname, without assuming any racial connotation. Frank Talamo (white male, and sometimes-union shop steward) has used the term "Nigger" in his private life, but stated that he would not use it on the job, because it is, in his opinion, a racial slur. Mr. Talamo heard Petitioner referred-to as "Indian" and "Two Dogs" on a regular basis. Mr. Talamo testified that although he did not, himself, use the nicknames "Indian" and "Two Dogs" with Petitioner, he also did not consider them to be racial slurs, as he would have considered the word "Nigger." Eric Adkins (Black male) heard Petitioner called some "bad" or "harsh" names, but he did not specify what the names were; he also did not characterize the bad or harsh names as "racial." Carl Broadnax (Black male) testified that he called Petitioner "Two Dogs" because Petitioner's Cousin Joey, another Indian who worked in the plant, told Broadnax to call Petitioner by his Indian name, "Two Dogs" or to call Petitioner "James," Petitioner's given name. Because of Joey's instruction, Mr. Broadnax thought everybody called Petitioner "Two Dogs." Mr. Broadnax heard Petitioner called "Indian" by others. Ivory Stallworth (white female) heard Petitioner called "Two Dog." Aaron Hodges' paternal grandmother is "Indian" or "Native American." Mr. Hodges does not make a distinction between the two designations, "Indian" and "Native American," and does not consider either designation to be derogatory language toward his grandmother or toward anyone else. He picked up the nickname, "Two Dogs" from its general usage on the plant floor to, and about, Petitioner. Cynthia Perkins (white female) stated that Petitioner was called "Two Dogs" in "general talking." Wesley N. Houston heard Petitioner called "Indian" and "Two Dogs," but did not consider these nicknames to be racist remarks or derogatory language. Clifford Stuckey (white male), with whom Petitioner feuded for a time, regularly called Petitioner "James" and "Two Dogs," because those names were what Petitioner was being generally called when Mr. Stuckey came to work for Respondent. He only knew Petitioner by his nicknames for two years, while they were "on the job friends" and "house visiting friends." Stuckey never heard anything else added to "Two Dogs." Apparently, Stuckey called Petitioner both "James" and "Two Dogs" before, during, and after the height of their feud, described more fully below. Also, at least two supervisors (Allen Givens and Eddie Jeffres) used some of these nicknames in addressing Petitioner. Jeffres participated in an early disciplinary action against Petitioner, but neither Jeffres or Grimes participated in Petitioner's eventual termination. Allen Givens was a machine operator, and thus a co- employee of Petitioner. Sometimes, he was also an "acting supervisor" over Petitioner. He heard others on the floor call Petitioner "Indian" and "Two Dogs." He personally called Petitioner "Indian" or "James." Givens testified that if Petitioner had ever intimated, while Givens was "acting supervisor," that Petitioner had a problem with any nickname, he, Givens, would have put a stop to it. At some point, Givens, while he was "acting supervisor" over Petitioner's shift, took Petitioner into the office and explained that Petitioner needed to do something about his body odor. The meeting between Givens and Petitioner was one-on-one, with no union representative or other employees present, and it was not written-up. Petitioner did not testify concerning this meeting. Givens was the only other person in the meeting, and he testified that he had initiated the conversation informally when he did, because he personally had noticed Petitioner's unpleasant body odor that day and because other employees had complained to him that day about Petitioner's body odor. Givens, whose grandmother is an American Indian or Native American, did not consider his comments to Petitioner about body odor to be racial in nature, and race or national origin was never mentioned by either himself or Petitioner during their meeting. Givens further testified, without refutation, that such a meeting happened only the one time; that the conversation was in the nature of "counseling," as opposed to the formal disciplinary step of "coaching" Petitioner; that he had felt he was protecting Petitioner's feelings and privacy by not making a record of this counseling session; and that no record was made because it was not part of the employer's three- tiered disciplinary formula. Other witnesses confirmed that general day-to-day supervision, which did not lead to some form of oral or written warning or other standardized disciplinary action against an employee, was not normally written-up for the employee's personnel file. Not making a record of a minor counseling session was to the employee's advantage, because once something was recorded, it could be used against the employee as part of the employer's three-tier progressive discipline formula. Although all witnesses concurred that working in the employer's un-air-conditioned plant, around heavy machinery, was sweaty work and that everyone smelled bad at some time or other, Frank Talamo, Eric Adkins, and Aaron Hodges also testified that at some point, Petitioner had a particularly offensive body odor. On one occasion, Talamo had asked a foreman to speak to Petitioner about it. No witness attributed Petitioner's body odor problem to his national origin or his race. Although Petitioner may have been the only employee counseled about body odor by Givens, other supervisors had counseled other employees. After being told about his body odor problem, Petitioner kept deodorant in his tool box and used it. Respondent never disciplined Petitioner for body odor. Eddie Jeffres, (white male) was Petitioner's team manager/supervisor. Many witnesses heard Jeffres address Petitioner as "Two Dogs." Mr. Jeffres addressed Petitioner as "Two Dogs," without any add-on, because that was the nickname Petitioner's co-workers used. He testified that he did not consider the nickname "professional," but he used it in a spirit of levity and camaraderie. He further testified that he would not have used it if, at any time, Petitioner had objected to it or had acted embarrassed by it. Because Petitioner always replied professionally and without rancor when the nickname was used, Mr. Jeffres did not equate its use with giving offense or hurting feelings. Jackie Hodge was department manager. He considers himself to be "Cherokee-Irish." He never heard "Two Dogs" used with an add-on. He did not hear the abbreviated form used in Petitioner's presence, either, but he heard Petitioner referred- to as "Two Dogs." He, personally, did not refer to Petitioner as "Two Dogs," but he also did not think the term was racially demeaning. If he had thought that the term were racially demeaning, he would have sought out Petitioner's opinion on the matter. If Petitioner had complained to him, he would have prevented use of the nickname by other employees. However, it is his managerial style not to start an inquiry unless an employee complains, and Petitioner never came to him directly. Indeed, none of Respondent's co-employees or supervisors thought Petitioner objected to any of the nicknames used to his face or used about him in general conversation, because Petitioner answered to the nicknames and did not complain or answer back with rancor when the nicknames were used. Additionally, Ms. Stallworth thought "everyone was okay with what was going on," because Petitioner answered to "Two Dog." Robert McCollough was production manager. He considers himself to be "an American with an Indian great-grandmother who was full-blooded Cherokee." McCollough's wife of over 30 years is a Creek Indian, and his children went to college on an Indian grant. He never heard of "Two Dogs" and was not aware it was being used to refer to Petitioner, but he testified that unless Petitioner complained about the nicknames, the employer's management would not root out a problem where none was perceived. Respondent Employer's predecessor in interest had an Anti-Sexual Harassment Policy in its employee's manual as of 1988. This policy was carried over by Respondent Employer. Petitioner received, and signed for, the Anti-Sexual Harassment Policy when he was first employed by Respondent Employer in approximately 1995. In 1999, when Respondent promulgated a similar Anti-Workplace Harassment Policy that specifically prohibited discrimination on the basis of race or national origin, Petitioner received a copy of it.6/ The employer's Anti-Workplace Harassment Policy incorporates a procedure for confidentially addressing employee discrimination complaints, including harassment complaints. Briefly, that policy provides that an employee who feels harassed should directly tell his or her harasser what act or speech is offensive. If that confrontation does not end the problem, the offended employee is encouraged to go to the Human Resources Office, or to any supervisor on the chain of command, to lodge a confidential complaint. Even an "800" telephone number is provided so that a harassed employee may report the problem in complete confidentiality to the employer's legal office. Since 1999, Petitioner has attended annual meetings discussing the Anti-Workplace Harassment Policy.7/ The Anti-Workplace Harassment Policy is posted in the plant where any employee can refer to it, and it is sent out to employees' homes in newsletters. Respondent Employer also has in place, and has posted, an Equal Employment Opportunity Policy. All witnesses agreed that while employed, Petitioner never raised his nicknames as a harassment or racial issue or as an issue of national origin to anybody.8/ Nancy Glass confirmed that, despite her "open door policy," Petitioner never filed a formal written protest with the employer's Human Resources Office because of any nickname. Petitioner took the machine operator certification course, but he did not pass it the first time. The second time he took the course, he passed. He became an operator about 1999. Prior to that time, he was an assistant operator a/k/a "a feeder" or "a helper." Machine operators receive an Operator Skills Training Handbook during their initial 40-hour machine operator certification course. The handbook describes the functions of the machines on which the operators work and the policies and procedures that operators and their assistants are required to follow, including proper preset procedures, proper set-up procedures, proper sleeve types, and how often quality checks should be done by both operators and assistant operators. As an operator, Petitioner received quality assurance training twice-a-year. If an employee's job performance requires correction, he first would be provided additional training. This training would be documented as a coaching session, rather than as discipline. Other than that, the employer has a three-tiered corrective action (discipline) program in place, as set out in the employees' handbook. All levels of discipline are documented in writing, even oral warnings. If supervisors do not perceive an error as correctable by retraining an employee, an "oral warning" is issued "in writing" for the employee's first error. The employee's next substandard performance results in a "written warning." The third step is to put the employee on paid Decision Making Leave (DML) for one day, to go home and think about how to correct his flaws and to write out a letter saying how he is going to accomplish that correction. If all three steps occur in a 12 month-period, a fourth error is supposed to result in termination. If the employee passes the 12 months' mark without a third error, the tiers recycle. On average, the employer expects its operators and assistant operators to check their machines for accuracy every half hour. Usually, the operator and assistant operator stagger their respective checks in hourly sequences, so one man checks on the hour and one man checks on the half-hour. This means that the machine/product is checked every half hour by one or the other of them. Some POFs require more frequent quality control checks. At the beginning of each shift, each new operator coming on duty is responsible for comparing the POF to be run, or still running from the last shift, with the product currently coming off the end of his machine. If that operator does a quality check at the very beginning of his shift, and then checks repeatedly at the required intervals throughout his shift, no more than thirty minutes (and thirty minutes' equivalent of non-conforming bags) can go by before an error is noticed. The point of quality control checks is to ensure that the employer avoids running non-conforming bags. Sometimes, non-conforming bags can be sold to a different buyer, often at a lesser profit. More often, they cannot be sold, cannot be recycled, and must be trashed. There was no substantial difference in the discipline the employer applied to employees producing non-conforming bags which could be sold to a different buyer and the discipline it applied to employees who produced non-conforming bags, all of which had to be destroyed for a total loss. The employer has been reasonably consistent in holding responsible everybody associated with a machine's quality control error who was on the shift when the quality control error was discovered, such as that shift's assistant operator, operator, and ending supervisor, for the same machine. Depending upon when respective POFs were started and finished, the employer has also held responsible whichever operator preset the machine on the previous shift and that operator's assistant operator, both of whom should have performed the quality control checks on the previous shift. Sometimes that shift's ending manager was disciplined, too. Usually, the operator coming on shift and his assistant operator also have both been disciplined if non-conforming bags are run. Sometimes that shift ending manager was also disciplined. Basically, if the prior operator and his assistant run bad bags, they are disciplined for their own error, and if the next shift operator comes on shift and does not immediately check to prevent further errors, both operators and their assistants are written-up. Put another way, if there was a bad pre-set by an earlier shift, the operator, assistant, and manager on that shift are disciplined for the bad bags they have actually run, and the next shift operator, his assistant, and his manager are disciplined if bad bags result from the new operator's failure to check the pre-set as soon as the new operator comes on duty. If it is a totally new set-up by the new shift operator, then only that operator, his assistant, and his ending manager, are disciplined. The degree of discipline for quality control flaws imposed upon any of the respective employees from either shift depended upon whether they already had gone through any of the three tiers of progressive discipline within the preceding 12 months. Neither race, national origin, nor union membership affected who was disciplined or the degree of discipline any employee, including Petitioner, received for producing non- conforming bags. On March 19, 2002, a random quality audit was performed by a manager. Petitioner received an oral warning which was written-up, because he had personal items (two packs of cigarettes) on his work bench/machine, and for failing to make on-going quality control checks of the weight of the bags his machine was running. No evidence of other employees also being written up for the offense of personal items in view was offered, but there also was no evidence others had personal items on their work benches in the same time frame without being written-up. Several witnesses testified that at one time having personal possessions in view had been permissible, but then a rule or instruction by the employer had prohibited this "in view" practice. Petitioner did not contest this discipline at the time. On April 3, 2002, Petitioner set the product up to run with the wrong sleeve paper and then went off shift. His feeder had brought him the wrong sleeve paper. The feeder had not been disciplined previously, so she received a write-up of oral coaching. Petitioner did not run non-conforming bags himself, but he failed to follow the preset procedure, so he did not catch the feeder's error. The wrong sleeve paper resulted in 12,500 defective bags being run on the following shift. These bags could not be used and had to be thrown away. Petitioner was orally counseled, by two supervisors, regarding his quality control flaw, and received a written warning for his failure to follow proper preset procedures. Eric Adkins, the operator on the next shift, and Adkins' helper, Larry Calhoun, both of whom actually ran the non-conforming bags using Petitioner's improper preset, and supervisor Eddie Jeffres, also were written-up for this error. The type of write-up each person got depended upon where his particular error ranked in the sequence of his respective number of prior errors, if any. Petitioner did not dispute this discipline at the time. Clifford Stuckey had come to work for Respondent about three years after Petitioner. This was perhaps early 1998. Petitioner and Stuckey were "on-the-job friends" and "house- visiting friends" in their private lives for awhile. Unfortunately, about a year before Petitioner was terminated, perhaps June 2002, they had a falling-out. Because Petitioner did not testify, the only first- hand explanation of what started their feud came from Stuckey. Apparently, Petitioner left his wife's car at Stuckey's home, with the intent of buying a second car for use as parts. The two men had an expectation that Mr. Stuckey, who was a good shade tree mechanic, would use the parts of the second car to fix Petitioner's wife's car. However, Petitioner's wife's car was left at Stuckey's home, without the "parts" car being supplied by Petitioner, for seven months, a period of time that was longer than Stuckey thought appropriate. Stuckey gave Petitioner an ultimatum that if Petitioner's wife's car were not removed, Stuckey would leave it on the road. When Petitioner and his wife arrived at Stuckey's home to get the car, Stuckey was still on the job at the plant. Petitioner and his wife phoned Stuckey from a neighbor's home, but Stuckey refused to leave work and come home with the key to his house so that Petitioner and his wife could get their car key. Harsh words were exchanged over the telephone, and Stuckey addressed Petitioner's wife disrespectfully. It is unclear whether Stuckey also made an oral threat of unexplained consequences against Petitioner over the phone, but it is clear that Stuckey was in no position to physically assault Petitioner or his wife over the telephone line. Later, Petitioner and his wife found their car in a ditch by the side of the road leading to Stuckey's home. Stuckey testified that for awhile after the car incident, Petitioner, while passing Stuckey's work station in Respondent's plant on his way to the restroom, would grab his own crotch or "flip me the finger." These are universal signs of contempt, designed to provoke another into striking the first blow. After one such crude challenge by Petitioner, Stuckey told Petitioner "if he did it again, I would whip his tail." It is presumed that Stuckey's foregoing on-premises oral threat was actually delivered in somewhat cruder and more urgent language than he admitted-to on the witness stand. Nancy Glass testified that shortly after the car incident, and still about a year before Petitioner's termination, Petitioner approached her and Robert McCullough in her office, and told them that he was "not saying he wouldn't or couldn't work with Stuckey," but that there had been an off- premises incident involving Petitioner's car being found on the road; that the dispute between himself and Stuckey had gotten "pretty nasty"; and that Stuckey had "smart-mouthed" him in the plant, as they had passed each other when Stuckey was going off shift and Petitioner was coming on shift. Petitioner acknowledged to them that no one had witnessed the "smart-mouth" incident. Petitioner did not tell Glass or McCullough that he had been threatened by Stuckey or that his feud with Stuckey involved any discrimination against him. He told them he did not want to have a sit-down discussion with Stuckey and that he did not want to make a big deal out of the incident, but he thought they should know about it. Petitioner said nothing about discrimination on the basis of his being Indian or Native American. He said nothing about any nicknames applied to himself. Since Petitioner did not wish to pursue the matter, Glass just told him to let them know if there were any further trouble between himself and Stuckey. Robert McCullough recollected, not that Petitioner had mentioned Stuckey in a meeting in Glass's office, but that Petitioner told McCullough while they were both on the plant's floor, that he and Stuckey had "a cussing" at one another off the plant premises. McCullough also did not recall Petitioner ever saying any incident had occurred on the plant premises or that Petitioner wanted to stay away from Stuckey. Petitioner said nothing to McCullough about discrimination, race, or national origin before his termination a year later. (See Finding of Fact 81.) For an indeterminate period of time, Petitioner and Stuckey avoided each other at the plant, and it was clear to some co-workers that there was "bad blood" between them. During this time, never proven rumors circulated on the floor that Petitioner and/or his wife had been threatened by Stuckey. A never proven rumor reached Stuckey that Petitioner and his wife had "telephoned" Robert McCullough about the car problem. However, Nancy Glass confirmed that Petitioner never filed a formal protest concerning his problems, whatever they might have been, with Stuckey, and he never said anything more about their feud to her for the year leading up to his June 2003 termination. Some co-employees never heard about the feud until after Petitioner's termination, when a never proven rumor started that Stuckey had sabotaged Petitioner's machine after Petitioner went off shift, thereby subjecting Petitioner to the final discipline of termination (see Findings of Fact 83-84) There was another never-proven rumor that Stuckey had rifled Petitioner's tool box while Petitioner was on suspension. Still other co-employees did not hear about the feud between Petitioner and Stuckey until a few days before the merits hearing on this case, when one party or the other contacted them about subpoenas. Most of the co-employees who had heard of Petitioner's and Stuckey's feud before Petitioner's termination thought the feud had blown over by the time Petitioner was terminated in June 2003. On December 3, 2002, Petitioner was given a "written warning" for failing to follow an order approval on a quality checklist which resulted in 1,500 defective bags being run. These bags had to be thrown away because they were created with a crease cut so that they could not be filled with the customer's product. The error should have been detected on the set up or on a later quality check. Petitioner was counseled regarding this error, as was the manager who approved the bag. Because Petitioner already had received an "oral warning" and a "written warning," his December 3, 2002, error should have resulted in Petitioner being placed on DML. However, Jackie Hodge wanted to work with Petitioner, rather than to have to retrain someone new. Hodge also felt that steps in the disciplinary tier system should not be duplicated. Therefore, he reduced Petitioner's December 3, 2002, write-up to a "coaching session" and required Petitioner to retrain on the order approval procedure for the type of bag he created and on its quality checklist procedures. Petitioner's manager was also counseled. On January 13, 2003, Petitioner was placed on DML, with one day's pay, for failing to perform quality check procedures which resulted in approximately 6,000 bags, with cuts on the main score, which had to be scrapped. If Petitioner had made the required quality checks, the error would not have occurred. Petitioner's union representative attended the meeting in which Petitioner was placed on DML. Jackie Hodge also gave Petitioner a card for confidential Employee Assistance counseling, which is an employee benefit. Petitioner's manager was also counseled and written-up, consistent with his own respective number of substandard performances. Petitioner returned to work with his DML letter dated January 24, 2003. The DML letter Petitioner composed and turned in did not set a specific date for formal review of his performance and improvement progress.9/ However, in the letter, Petitioner pledged to follow quality control procedures in the future. The letter was accepted by management, and Petitioner was put back to work. Because the management team had not been physically able to meet with Petitioner within one day to review his DML letter, and because DML is technically a suspension, Jackie Hodge arranged for Petitioner to be paid for a second day without his actually working. This was a deviation from the standard disciplinary policy, but it was a deviation to Petitioner's advantage. On May 16, 2003, although Petitioner's quality checklist accompanying an order indicated that quality checks had been performed every half hour, the sleeve construction and placement on the bags produced were not correct. As a result, nearly 7,000 defective tubes had to be thrown away. Petitioner, his manager, and his helper were all disciplined for this quality control error. One of the concerns of management at this stage was that Petitioner and his helper may have falsified their checklists showing that the quality control checks had been made when the checks were not, in fact, made. If the checks had been made, in reality, and not just the paper work filled-out, the error would have to have been "caught" in less than an hour, and far fewer non-conforming bags would have been created. If the checks had been made and apparent errors corrected at any stage, 7,000 non-conforming bags could not possibly have been created. Petitioner's union representative signed-off on his suspension. Petitioner met with Jackie Hodge, Ron Williams, Nancy Glass, Robert McCullough, and Leo Willoughby on May 22, 2003, while he was on suspension, pending probable termination for too many progressive disciplines within a 12-month period. Petitioner agreed that if they brought him back to work, he would follow all plant procedures, including quality control checks. Management side-stepped a union grievance and brought him back to work, with the understanding that if he again failed to follow instructions, he would be terminated. It was Jackie Hodge's job to schedule available workers' hours and shifts in order to keep Respondent's plant fully operational at all times. On June 9, 2003, he assigned Petitioner, as operator, and Stuckey, as assistant operator, to the same machine on the same shift. Stuckey testified, without refutation, that it was "just luck" he and Petitioner were not scheduled to work together on the same shift or same machine while their feud had been in progress. It was management's mind-set that in the absence of discrimination, "problems were not moved, but solved," and that any disputes arising off-premises were up to employees to work out on their own. The same was essentially true for personal, non-discrimination problems arising within the plant. There is a discrepancy in the testimony as to when, precisely, Jackie Hodge found out that Petitioner and Stuckey had their feud. Nancy Glass testified that she "thought" she told Hodge about the off-premises car incident and on-premises "smart mouth" incidents a year before June 9, 2003. (See Findings of Fact 57-58). Hodge, himself, testified that he knew nothing about the off-premises car incident and on-premises "smart mouth" remark until Petitioner was "on suspension." Because Petitioner was on suspension of some kind on January 13, 2003, May 16, 2003, and after June 9, 2003 (See Findings of Facts 67-70 and 79-81) it is hard to say with any assurance whether or not Hodge knew, when he assigned them to the same machine for June 9, 2003, that Petitioner and Stuckey had feuded a year before. Yet, regardless of when Jackie Hodge knew Petitioner and Stuckey did not get along, there is absolutely no evidence that Petitioner's and Stuckey's personal problems, on or off the employer's premises, were motivated, affected, or prolonged because of discrimination against Petitioner as an Indian or Native American. Moreover, Stuckey testified that although he and Petitioner never sat down and formally discussed their problems or agreed to be friends again, he also testified, without refutation, that he thought that he and Petitioner had resumed their friendship by the time they were scheduled to work together on Petitioner's last night of employment, June 9, 2003. Finally, after Jackie Hodge posted the machine and shift assignments for June 9, 2003, neither Stuckey nor Petitioner approached him to request that he reassign one or the other of them to a different shift or machine. Petitioner and Stuckey worked the same machine on the same shift on June 9, 2003. When Petitioner and Stuckey went off shift on June 9, 2003, their machine was producing bags without a tuck-in sleeve, contrary to the POF. Defective bags were created with the glue under the valve, in the wrong position on the bag. If Petitioner and Stuckey had performed the required quality control checks, the machine should have been producing the correct type of bag when they turned it over to the next shift. Because they had left the incorrect set up, and because the operator coming on shift after them did not immediately catch their error, the machine continued to create unusable, non- conforming bags well into the following shift. Petitioner's June 9, 2003, quality checklist indicated that he had performed all the quality checks. However, the order ran at the rate of 2,000 bags per hour and the order called for quality checks to be performed every 15 minutes. Thus, during the six hours it took to run close to 12,000 bags, a total of 24 quality checks should have been performed by Petitioner, Stuckey, and the next operator and his assistant, each of which checks could have caught the error. Because the error was not caught during the quality check procedure, all 10,850 bags actually produced had to be scrapped. Petitioner and Stuckey were both disciplined for the June 9, 2003, problem. At this point, Petitioner's accumulated disciplinary record clearly required that he be terminated. As before, he was suspended, pending a decision on termination. Stuckey's situation had not reached that stage, and he received a written warning. After a review by McCullough and McCullough's superior, the decision was made to terminate Petitioner and he was notified by telephone. Petitioner filed a union grievance. During the review and grievance process, Petitioner admitted to McCullough that he and Stuckey had been signing off on the quality control checks for each other on June 9, 2003. Only after these reviews and grievance procedures were completed and the grievance was denied, did Respondent consider Petitioner "terminated," as opposed to "suspended." In all, the employer calculated that Petitioner was fully or partially responsible for 39,000 bad bags at approximately 33 cents per bag, or $12,870.00, worth of bad bags. Stuckey testified without refutation that he had not altered the machine in question. After some more operators (race and national origin unspecified) were disciplined for quality control errors on the same machine to which Petitioner and Stuckey had been assigned on June 9, 2003, it was discovered that a part on the machine was gradually slipping a little more each half hour so that the bags became increasingly non-conforming as time progressed. That discovery enabled Respondent to fix the machine, but the discovery did not alter anyone's prior discipline because timely quality control checks still would have prevented the production of so many non-conforming bags. There was no evidence that any of Petitioner's disciplinary problems was due to his race or national origin. There was no evidence that any of Petitioner's disciplinary problems or quality control issues arose from errors he made because of the nicknames he was called.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 17th day of September, 2004.