The Issue Whether Respondent Employer is guilty of an unlawful employment practice pursuant to Section 760.10, Florida Statutes, by discriminating against Petitioner based upon her sex (gender). Specifically, whether Petitioner was sexually harassed in the work place and/or unlawfully terminated for refusing sexual favors.
Findings Of Fact Respondent is a corporation engaged in the utility construction business. Respondent employs approximately 150 people for a variety of tasks. At all times material, Respondent's president, Bill Beers (male), had at least a partial ownership interest in the company. He currently "owns" the company. Petitioner is female. Petitioner was initially employed with Respondent as an accounting assistant on July 22, 1998. Petitioner had earned a high school diploma and an accounting certificate from Lake Technical Center. She has completed approximately one year of junior college. Jerry Schinderle (male), Respondent's Vice-President of Finance and its Comptroller, made the decision to hire Petitioner. He was in charge of Respondent's accounting department in which Petitioner was employed. Bill Beers did not participate in, or have input for, the decision to hire Petitioner. Mr. Schinderle promoted Petitioner to an accounts payable position on or about August 21, 1998, when another female employee was either terminated or quit. With her promotion, Petitioner received a raise in pay. In her new position, Petitioner's duties were to handle accounts payable, job costing reports, and job tracking. From Petitioner's date of hire until approximately October 1999, Mr. Schinderle was Petitioner's sole immediate supervisor. At all times during this period there were a total of four employees in the accounting department, including Petitioner, Mr. Schinderle, and two female employees. From approximately October 1998 to October-November 1999, Petitioner and Bill Beers engaged in a consensual and intimately sexual romantic relationship. While they were dating in 1998 and 1999, Petitioner gave Mr. Beers a kiss in the morning in his office on the ground floor of the employer's building, before she reported to work in her second floor office. However, it is undisputed that Petitioner and Mr. Beers never had sexual relations at the office. During the period from October 1998 to October-November 1999, their sexual activities occurred only after the work day was over or during their mutual lunch hours in Petitioner's home, in Mr. Beers' home, or in a car. In 1999, Deborah Goodnight (female) was hired from outside the company as Mr. Schinderle's Assistant Comptroller. As such, Ms. Goodnight became Petitioner's immediate superior, and Mr. Schinderle remained in a supervisory capacity over the entire accounting department, which continued to be made up of four employees, counting himself, Ms. Goodnight, Petitioner, and one other female employee. Petitioner complained herein that Mr. Beers promised her the promotion and that she should have been promoted instead of Respondent's hiring Ms. Goodnight from outside the company. Mr. Beers testified that he had refused Petitioner's request to intervene on her behalf with Mr. Schinderle about the promotion. Mr. Schinderle confirmed that Ms. Goodnight was hired solely by himself. Ms. Goodnight had a four-year bachelor's degree in accounting and had been comptroller of another company previously. Ms. Goodnight's qualifications for the position for which she was hired clearly exceeded those of Petitioner. Thereafter, until Petitioner was laid off by Respondent on June 1, 2001, there continued to never be more than a total of four employees in the accounting department: Mr. Schinderle, Deborah Goodnight, Petitioner, and one other female employee. Most of Respondent's employees became aware that Petitioner and Mr. Beers were dating when Mr. Beers escorted Petitioner to a company Christmas party (year unspecified). Petitioner personally told Ms. Goodnight that they were dating. However, no employee who testified was aware of any unprofessional or inappropriate conduct by Mr. Beers with Petitioner in the office at any time while she was employed by Respondent. Sadly, Petitioner's and Mr. Beers' relationship was rocky, and in October or November 1999, Mr. Beers initiated a break-up of their consensual sexual relationship. Petitioner initially claimed that she initiated the break-up but ultimately admitted that she and Mr. Beers mutually agreed to terminate their consensual sexual relationship at that time. Petitioner and Mr. Beers have different views of who pursued whom between November 1999 and February 2000, but both agree that in February 2000, they resumed a sexual relationship outside the office. By each protagonist's account, during a large part of the period from February 2000 to late summer or the autumn of 2000 (see Findings of Fact 16-17), there were periods of good relations and periods of bad relations between the two of them. There were break-ups, one-night stands, and reconciliations at various times. It was, at best or worst, an "on-again-off- again" romance, but there still was no unprofessional or improper conduct observed by anyone at the office. Any sexual liaisons occurred outside the office as previously described. It is undisputed that in July 2000, Mr. Beers left a note on Petitioner's vehicle in which he expressed his desire to terminate their relationship once and for all. Mr. Beers and Petitioner disagree as to whether or not they had sexual relations after July 2000. Petitioner claimed that Mr. Beers importuned her at every possible opportunity, in or out of the office, to have sex with him and had sex with her as late as January 2001. Mr. Beers denied any pursuit of Petitioner and denied any sexual contact with Petitioner after July 2000. Both Petitioner and Mr. Beers have some confusion of dates between what happened at their November 1999 break-up versus their July 2000 breakup, and it is possible to interpret part of Mr. Beers' testimony to the effect that there was a sexual encounter between them as late as November 2000, but upon the greater weight of the credible evidence as a whole, it is found that their sexual relationship ended once and for all in July 2000.. In August 2000, Mr. Beers began dating another woman. In February 2001, he became engaged to her, and she moved into his home. They were married in July 2001. Petitioner claimed to have been harassed by co-workers at Mr. Beers' instigation from the beginning of her employment in 1998 to its end on June 1, 2001. She further alleged that from February 2000 until her termination on June 1, 2001, she strongly felt that she had to comply with Mr. Beers' requests for sexual favors or she would receive some "punishment" in the workplace or lose her job. Likewise, she believed that any advantage she gained in the employment field also was a "gift" from Mr. Beers either to woo her for future sexual favors or to reward her for immediately past sexual favors. Some of Petitioner's allegations in this regard are less than credible simply because she claimed that she was "punished" even while she was engaging in admittedly consensual sex with Mr. Beers from October 1998 to November 1999. Other of her specific allegations of receiving quid pro quo advantages and punishments from Mr. Beers after February 2000, were either not credible on their face or were affirmatively refuted as set out infra. Testimony from other employees and record evidence indicated that Respondent's employment practices were uniform towards all employees, including Petitioner. Petitioner testified that so long as she was engaging in sexual activities with Mr. Beers, she received the benefit of being assigned a company cell phone, but that when she refused to perform sexual favors for Mr. Beers that benefit was taken away. The better evidence shows that soon after they started dating in 1998, Mr. Beers loaned Petitioner a company cell phone, assigned to himself, which he let her use for approximately one week, because she had confided to him that the man that she was living with was abusive and she was afraid of him. Also, when Petitioner or anyone else handled the payroll, that person had the use of a company cell phone. Petitioner was unable to show that at any time during her employment from 1998 to 2001, there was any permanent, or even lengthy, assignment of a company cell phone to her, or that such an assignment was taken away from her. Petitioner testified that so long as she was engaging in sexual activities with Mr. Beers she received the benefit of being assigned a company car for personal use. Petitioner was able to establish only that, occasionally, during their first consensual relationship in 1998-1999, Mr. Beers loaned her the use of his company-issued car and also provided her with his company-issued credit card with which to pay for gassing-up that car for both of them to use. While this may constitute a misuse of the employer's car and card by Mr. Beers, the greater weight of the credible evidence is still contrary to Petitioner's unsupported testimony that a company vehicle was assigned to her and then removed from her custody due to her refusal of sexual favors to Mr. Beers. The testimony of several witnesses on this point was corroborated by a list of vehicles and the names of employees to whom those vehicles had been assigned. Petitioner's name does not appear on this list. The list further supports a finding that the majority of vehicles owned by Respondent employer were trucks and other types of heavy equipment which were assigned to male employees working in the field, as opposed to ordinary vehicles assigned to any office staff, either male or female. Like all Respondent's other employees, Petitioner had access to a company pool vehicle which any employee was allowed to use for company business or for personal use when his or her own vehicle was being repaired or was otherwise out of commission. This vehicle was never individually assigned to any employee. Petitioner claimed that during and after her sexual relationships with Mr. Beers, and continually until her 2001 termination, he directed other employees to purposefully harass her, withhold information or invoice sheets, or create other road blocks to her successfully performing her job duties or completing her assignments at work. Petitioner's testimony is particularly incredible on this point because she specifically contended that several of the instances when other employees harassed her or made her job more difficult took place during the time she admittedly was engaging in a consensual relationship with Mr. Beers in 1998-1999. Also, no other evidence or testimony corroborated Petitioner's analysis in this regard for any time period. No employees were affirmatively shown to have intentionally tried to prevent Petitioner from being able to perform her job duties at any time, including 2000-2001. Moreover, at no time did Petitioner report any harassment by co-workers to Ms. Goodnight or Mr. Schinderle. Petitioner was only occasionally reprimanded for not doing her job well, and she continued to be employed and to receive regular raises throughout her 1998-2001 employment Petitioner contended that Mr. Beers described in lurid detail their sexual activities to other male employees, who then accosted her with suggestive comments. There was no corroboration for this allegation. Although it is probable that rough-and-tumble male employees speculated about the relationship between their boss and Petitioner and it is further probable that they occasionally goaded Petitioner with their speculations, there is no corroboration, whatsoever, that Mr. Beers discussed Petitioner with co-workers or encouraged any bad behavior toward Petitioner by them. The comments, if they occurred, certainly were not shown to be pervasive behavior in the workplace. Petitioner also incredibly claimed that, in general, other employees were instructed not to talk to her both during and after the end of her sexual relationship with Mr. Beers. Other employees testified that they were not aware of any instructions at any time by Mr. Beers or anyone else that they should refuse to speak with Petitioner. Even Petitioner conceded that Ms. Goodnight was reasonably cordial to her at all times. Petitioner specifically claimed that one particular employee, Glen Busby, was instructed by Mr. Beers not to speak to her and was "punished" for speaking with her by having a company vehicle taken away entirely or replaced with an older, poorer quality car. She conjectured that Mr. Busby was also terminated by Respondent as a result of befriending her. Contrariwise, Mr. Busby testified credibly that he was never instructed by Mr. Beers or his supervisors not to speak to Petitioner. Mr. Busby stated that he had left Respondent's employment for approximately a year in order to care for his mother, who was dying. He also related that when he returned to work for Respondent, he was not assigned a vehicle such as he had previously been assigned, because he came back as a project manager, working primarily in the office, as opposed to returning as a construction site employee who needed a heavy duty vehicle on a jobsite. He acknowledged that while he had been in the field, several company vehicles had been assigned to him and that these were frequently replaced with newer, better- conditioned vehicles. Petitioner was unable to show that any professional training element of her employment was dependent on whether she did, or did not, provide sexual favors. The greater weight of the credible testimony, plus records and calendars, demonstrated that Petitioner received the same internal accounting training as other accounting department employees, mostly from Mr. Schinderle on a rotating basis. Mr. Schinderle testified, and Petitioner acknowledged, that she also was provided with specialized accounting programming training by an outside computer company representative. Petitioner described one instance, apparently in late 1998, possibly while the consensual relationship with Mr. Beers was still "on," when she took off from work for approximately two weeks. She passed the first week as a Mayo Clinic outpatient for kidney problems and passed the second week in her home or in hospital emergency rooms, due to postoperative problems. She claimed that during these two weeks, she was unable to have sexual relations with Mr. Beers and refused to have sex with him when he personally delivered her paycheck to her home after the first week. She claimed that he had promised her that she would get her check for the second week, too, but when she refused him, he refused to pay her for the second week that she was unable to work. Actually, Respondent's records show that Respondent had paid Petitioner regular wages for ten days, but she was required to reimburse the employer for the tenth day she was off work that was not covered by saved sick leave or another leave policy. Although Petitioner showed some abuses of company policy regarding breaks and smoking committed by individual employees, the greater weight of the credible evidence is that such company policies were equally applied and enforced among all employees, including Petitioner. Petitioner characterized a bonus she got in February 2000, the first month of the February 2000-July 2000 reconciliation, as a quid-pro-quo reward from Mr. Beers because she had agreed to resume her relationship with him. However, in fact, it was company policy to distribute annual bonuses to everyone in the company in February of each year. The amount paid out by the company depended on the amount authorized by auditors based on the prior year's business profit. Petitioner received an annual bonus each February she worked for Respondent, but the amount varied, according to the company's profit, for Petitioner and for all other employees. In February 2000, all employees received their annual bonuses. Petitioner and two other members of Respondent's office staff, who were not having an affair with the company president, received identical amounts of $2,500.00 annual bonus based on their function within the company. It is undisputed that on January 19, 2001, after their final break-up, Petitioner approached Mr. Beers in his office and indicated that she was having difficulty accepting the end of their relationship. She had apparently anticipated that they would eventually marry, and was struggling with the fact that Mr. Beers was romantically involved with the woman he had begun dating in August 2000. Petitioner asked Mr. Beers to pay her money so that she could go away and find other employment. Petitioner contends that this was a request for Mr. Beers to pay her the bonus that Respondent annually paid its employees each February. Mr. Beers interpreted Petitioner's January 19, 2001, request for money as a demand that he pay her to quit her job and get out of his life. He refused to accept her offered letter of resignation. Petitioner claims that on January 26, 2001, Respondent advertised as vacant her position as "account payable specialist" in the newspaper, but no date appears on the supporting exhibit; Petitioner was not terminated; and no replacement for Petitioner was hired. At all times material, Respondent had a sexual harassment policy in place which required a victim of sexual harassment to report such harassment to his/her supervisor or the company president. Petitioner received a copy of the policy when she was hired in 1998. Petitioner admittedly did not complain to her immediate superior, Ms. Goodnight, at any time. Although Petitioner claimed she reported harassment by Mr. Beers, the company president, to Mr. Schinderle in late 1998, just prior to her first break-up with Mr. Beers, Mr. Schinderle recalls no such report. Although Mr. Schinderle testified that if Petitioner had reported any alleged sexual harassment by the company president he would have brought the complaint to the attention of the company's then-majority stock-holder, Mr. Schinderle is less than credible on that single point. However, Petitioner's "resignation letter" of January 19, 2001, may be considered notification to Mr. Beers and Respondent employer of most of the allegations raised in this case. Sometime in February of 2001, Petitioner received her annual bonus, like any other employee. It was based on the earnings of the company in the year 2000. Every employee on the second floor of Respondent's office got the same amount. On February 23, 2001, Petitioner received a raise from $13.00 to $13.50 per hour for taking on the additional responsibility of adding a new phone system. The appropriate paperwork was filled out for this raise, and witnessed by Mr. Schinderle and Mr. Beers. Given the foregoing, plus Petitioner's admission that she voluntarily took on the additional phone duties in order to get the raise, Petitioner's characterization of the raise as her reward for giving Mr. Beers sexual favors is not credible. Sometime in March 2001, Petitioner showed up at Mr. Beers' home intoxicated. Mr. Beers' fiancée and his son were residing in the home. Petitioner asked to come in, and Mr. Beers asked her to go away and not make a scene because he did not want to have to call the police. One Sunday a few weeks later, Petitioner approached Mr. Beers' fiancée and his mother in WalMart. Petitioner's characterization of this conversation varies, but it is clear that what she said was intended to shock the fiancée and damage Mr. Beers' relationship with fiancée. Petitioner left a message on Mr. Beers' telephone before his mother and fiancée could return home from WalMart. Her message was to the effect, "I just caused you a bunch of problems." Petitioner came to Mr. Beers' office at Respondent's place of business on the following Monday morning and gloated. Mr. Beers angrily ordered her out of his office, but he did not terminate her. Petitioner testified that she believed that Mr. Beers ordered all of Respondent's employees to be tested for drugs on March 19, 2001, in an effort to "catch" her because she had confided to him back on November 25, 2000, that she had smoked "pot" (marijuana) in order to relieve her distress over their deteriorating relationship. At first, Petitioner claimed that she was too frightened to show up for the test. Later, she claimed to have been "escorted" to the drug testing center by two other employees. The greater weight of the credible evidence is that company policy was to do drug testing of every employee when that employee was hired and then drug test selected employees at random intervals, but that the policy had been only loosely followed. Of the employees who testified on the subject, only Mr. Schinderle recalled being drug-tested upon his date of hire in 1993. Ms. Goodnight and others had never been tested. It appears that Bill Padgett, Respondent's head of security, had previously done random drug testing in a very random manner, so all employees who had not previously been tested for drugs, including Ms. Goodnight, Petitioner, and the other female employee in the accounting department, were tested on March 19, 2001. Petitioner rode, as a matter of convenience, in the same car to the drug-testing site with the other two females employed in the accounting department. Petitioner was not singled out at that time. In fact, all employees, even Mr. Padgett and Mr. Beers, were tested. Petitioner passed the drug test and was not laid off in March 2001. Petitioner kept a log of personal notes and summarized them into a diary. This item, which may have been edited and copied over several times, reflects that Petitioner connected every life event, however small, to Mr. Beers. According to Petitioner's notes from March 20, 2001, Petitioner was "an emotional wreck," and she thought that Mr. Beers wanted to "get rid of" her and was "finished with me now." In her accounting post, she had seen a $5,000.00 check Mr. Beers had written on "Monday" and speculated whether or not it was for an engagement ring. Mr. Beers and his fiancée had become formally engaged in February 2001. (See Finding of Fact 17.) Although Petitioner testified that on March 21, 2001, Mr. Beers arranged for her to get additional company medical and/or dental benefits so as to make good a promise to her in return for her sexual favors, several of Respondent's employees testified more credibly that Petitioner was given the same health and other benefits as all other employees in her "Hourly B" class, throughout her employment with Respondent. Moreover, the greater weight of the credible evidence is that all of Respondent's employees were offered an opportunity to sign-up for additional health benefits and that Petitioner had the same opportunity for this benefit as every other employee did, and that she had, in fact, received the benefits for which she signed-up. At the beginning of the second quarter of the year 2001, in approximately April or May, Respondent made the decision that each department would have to cut staff and overhead expenses due to deteriorating business conditions and the cancellation of a lot of expected work. Mr. Beers gave each department head, including Mr. Schinderle, the sole discretion to make the decision as to who would be laid-off, based upon the position the department head believed would be most easily and efficiently eliminated. Mr. Schinderle was department head for the accounting department. He made the decision to lay-off Petitioner effective 6/1/2001. Mr. Schinderle did not receive any input or guidelines from Mr. Beers except to lay-off the one employee he could best do without. Mr. Beers had no discussions with Mr. Schinderle regarding the decision to lay-off Petitioner. Mr. Schinderle testified that he felt Petitioner's position could be the most easily eliminated because the Assistant Comptroller, Deborah Goodnight, was able to perform the functions of her own position and the functions of Petitioner's position. In fact, Ms. Goodnight was capable of doing the work of either Petitioner or the other female employee, but she was not consulted by Mr. Schinderle. On or about June 1, 2001, Petitioner and three other employees were laid-off from their positions with Respondent. Each of the other employees was from a different department and the decision to lay-off each of them had been made by different department heads than Mr. Schinderle. Mr. Schinderle listed Petitioner as eligible for re- hire. Petitioner never called back to Respondent in any attempt to be re-hired after her lay-off. After Petitioner was laid-off, there remained only three (not four) employees in Respondent's accounting department. The accounting department was able to effectively and efficiently function with the reduced three-person staff and did not acquire additional staff for approximately four years, until May 2005.
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 the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 22nd day of March, 2006, 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 22nd day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John Vernon Head, Esquire John Vernon Head, P.A. 138 East Central Avenue Howey-in-the-Hills, Florida 34737 Stephen W. Johnson, Esquire Stephanie G. McCullough, Esquire 1000 W. Main Street Leesburg, Florida 34748
Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
The Issue The issue is whether Petitioner should be granted an exemption from disqualification to work in a position of trust or responsibility in a direct care position pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact Petitioner is a single mother of five children, including two sets of twins. She is twenty-nine years old and has a tenth-grade high school education. On July 26, 1995, Petitioner drove a car into a Walmart parking lot in Leon County, Florida, and parked illegally directly in front of the store. Petitioner was operating the car while her driving privileges were suspended. After parking the car, Petitioner left her five children unsupervised in the car while she went into Walmart to exchange a shirt. At that time, the older twins were six years old, one child was four years old, and the younger twins were three years old. When Petitioner went into the store, she removed the key from the ignition and left the windows down. The temperature was 93 degrees. Petitioner was in the store for approximately ten minutes. Upon Petitioner's return to the car, a policeman arrested her for the second-degree misdemeanor offense of "negligent treatment of children" under Section 827.05, Florida Statutes (1993). 1/ The children were not harmed as a result of being left unattended in the car. They were never removed from Petitioner's custody. After her arrest, Petitioner and her children were picked up and taken home by a relative. In September 1995, Petitioner pled nolo contendere to the charge of "negligent treatment of children." The County Judge of Leon County accepted Petitioner's plea, withheld adjudication of guilt, and ordered that Petitioner be placed on probation for six months. One of the conditions of Petitioner's probation was that she attend parenting class. On February 28, 1996, Petitioner was charged with violating her probation related to the charge of "negligent treatment of children." Specifically, she had not provided proof that she had attended the parenting class. Additionally, she had not paid a $100 probation supervision fee or a $150 court fine. Petitioner violated her probation because she did not have funds to pay for the parenting class or the required fee and fine. At the violation of probation hearing on May 10, 1996, Petitioner presented proof that she had attended the parenting class. The County Judge of Leon County terminated Petitioner's probation in open court. On March 5, 1998, Petitioner was charged in Leon County, Florida, with the traffic offense of driving with suspended driving privileges. The County Judge of Leon County convicted and adjudicated Petitioner guilty of this offense on March 25, 1998. On September 7, 1998, Petitioner was charged in Leon County, Florida, with the traffic offense of driving with suspended driving privileges. The County Judge of Leon County withheld adjudication of guilt for this offense on October 7, 1998. Petitioner has worked as a dietary aide at Tallahassee Convalescent Home (TCH) for four years. In 1998, she applied for a position with TCH as a certified nurse assistant, a direct care position. The application included Petitioner's request for a Florida Abuse Hotline Information System Background Check. A member of Respondent's staff completed the background check on September 23, 1998, finding no confirmed report of abuse or neglect. On April 16, 1999, Petitioner signed a sworn Affidavit of Good Moral Character as part of the application process to secure a direct care position with Tallahassee Developmental Center. By signing the affidavit, Petitioner swore that she had not been found guilty or entered a plea of guilty or nolo contendere, regardless of the adjudication, to a number of offenses, including "negligent treatment of children." This affirmation was false. Petitioner's testimony that she forgot her plea of nolo contendere and subsequent conviction for "negligent treatment of children" or that she never knew the exact nature of her crime is not persuasive. In April 1999, Petitioner was charged with violating her probation related to one of her offenses for "driving while privileges suspended" in Leon County, Florida. Petitioner violated her probation because she did not have funds to pay her traffic fines. Petitioner subsequently entered the Florida Traffic Assistance Program. She completed a corrective driving class on August 14, 1999. The Department of Motor Vehicles issued Petitioner her first driver's license on August 31, 1999. Since October 1999, Petitioner has paid $50 per month on her outstanding traffic fines. She now owes $453 in traffic fines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether the Respondent is guilty of an unlawful employment practice against Petitioner on the basis of handicap.
Findings Of Fact On July 17, 2003, Petitioner filed with the Commission a Charge of Discrimination, in which she complained only that Respondent University of Florida (Respondent or UF) discriminated multiple times by not hiring her on the basis of handicap (dyslexia). The last date of this alleged failure to hire was stated in the Charge as June 8, 2003. The Charge had been typed and signed on July 17, 2003. The Charge contained no allegation that Respondent had terminated Petitioner due to discrimination. On October 27, 2003, the Commission entered its "Determination: No Cause." By its "Notice of Determination: No Cause" of the same date, the Commission notified Petitioner that she had 35 days in which to file her Petition for Relief. The thirty-fifth day after the Determination: No Cause fell on Monday, December 1, 2003. According to the Commission's date stamp, Petitioner filed her Petition with the Commission on December 3, 2003. Petitioner became employed by CCR-Head Start in September 2003. On her job application to CCR-Head Start, she did not list Respondent as a prior employer. The late Petition for Relief alleged, for the first time, that UF had jeopardized Petitioner's education and career opportunities in her job with CCR-Head Start, by character defamation against her and/or due to information that UF had not disclosed. Petitioner explained at hearing that this new allegation was intended to allege that UF had not provided course grades, CLAST results, and other general testing scores, and that UF had not provided a grade point average to Petitioner upon her request. (See Findings of Fact 21, and 23-25.) Again, the Petition contained no allegation that Respondent had terminated Petitioner due to handicap or for any other discriminatory reason. 1/ The late Petition for Relief further newly alleged that Petitioner's current employer, CCR-Head Start, had denied her a high-back chair, computer, desk, and business cards and was seeking ways to terminate her. This allegation against her current employer is totally extra-jurisdictional to these proceedings against Respondent UF. At hearing, Petitioner extended her allegations to include that UF has prevented her being hired for numerous advertised positions inside and outside UF, spread over three counties from 1999 to the date of hearing. At hearing, Petitioner also presented her view that in 1998-1999, while she was employed in UF's Horticultural Services Department, she was "persecuted" or "harassed" by her supervisor, Carolyn Reynolds, and other UF employees, due to cognitive comprehension problems, which she has self-diagnosed by unilateral computer research as "dyslexia." However, in addition to never having told anyone at UF that she is dyslexic, Petitioner testified that she also has never been professionally diagnosed as dyslexic.2/ Petitioner graduated from high school prior to her employment with Respondent and began taking some college courses at Santa Fe Community College. When Petitioner was first hired by Respondent in 1996, she scored 57 on a typing test, well above the passing score of 35. On May 2, 2003, Petitioner achieved an AA degree from Central Florida Community College. Petitioner achieved this degree after she ceased to be employed by Respondent in 1999. Petitioner was first employed with Respondent UF from 1997 to 1998 as a clerk in a medical area. In July 1997, she received a raise in salary. The single performance evaluation in evidence, which occurred during this period of time, shows improvement and rated her as satisfactory. In 1998-1999, Petitioner was employed by Respondent UF in the Horticultural Sciences Department. She held a secretarial position involving preparing, typing, and processing travel request and reimbursement forms, handling room and vehicle reservations, and typing correspondence for several professors. Ms. Reynolds was Petitioner's immediate supervisor. Despite graduating from high school and eventually junior college, Petitioner claims to have had "cognitive comprehension problems," especially with sequencing tasks and with mathematics, throughout her whole life. Petitioner also claims that while employed in UF’s Horticultural Services Department, these problems required her to repeatedly ask her supervisor to repeat all instructions and to write out some instructions so that she could refer to them. She also claims she had to ask co-employees to interpret or rewrite her supervisor's instructions and to interpret and/or rewrite the written material her professors gave her to type. (See also Finding of Fact 18.) Petitioner never told anyone associated with UF in 1998-1999 that she was dyslexic or that she had "cognitive comprehension problems," and she had no reason to believe that anyone else told UF personnel that she was dyslexic.3/ Petitioner perceived her requests for help in the Horticultural Services Department as alerting UF personnel to her "condition." She perceived their compliance with her requests as persecution and/or harassment. Yet, all the specific instances Petitioner described were of Ms. Reynolds and co-workers complying with her requests to repeat oral and written instructions. The co-workers who testified described Petitioner's requests as normal, or at least commonplace, because they understood that no one learns how to do everything at once and everyone sometimes needs help.4/ Petitioner demonstrated no disability in general life activities, such as walking, talking, or seeing. At most, she testified to having difficulty with mathematics and limited or categorical employment activities involving sequencing tasks. Petitioner assumed that her professors, supervisor, and co-workers in the Horticultural Services Department knew that she was dyslexic because the supervisor and co-workers had worked with her and accommodated her requests for help; because the professors let Ms. Reynolds evaluate her; and because of part of a conversation she overheard. (See Findings of Fact 14 and 17-18). Petitioner came upon Ms. Reynolds and a co-employee, Tami Spurling, talking. When Petitioner entered the room, Ms. Reynolds was saying to Ms. Spurling, "Do I have to write everything down for you? Are you ADHA too?" Then Ms. Reynolds and Ms. Spurling stopped talking. Petitioner never confronted either woman about what Ms. Reynolds had meant. Rather, she unilaterally inferred that the women stopped talking because they were talking about her. Petitioner also unilaterally inferred from Ms. Reynolds' comment about ADHA that both women knew or perceived Petitioner as dyslexic, or that Petitioner had some other type of learning disability, or that Petitioner had cognitive comprehension problems, whatever those might be. Petitioner's interpretation of this conversation is speculative and not a reasonable interpretation of the event.5/ Petitioner believes that her professors in the Horticultural Services Department in 1998-1999 discriminated against her on the basis of handicap because they did not give her typing assignments as they did other secretaries and because they allowed Ms. Reynolds to evaluate Petitioner’s job performance instead of evaluating her themselves. At hearing, Petitioner claimed for the first time that she was retaliated against because Ms. Reynolds forced her to resign in May 1999, (see Finding of Fact 19), because of her February 9, 1999, memo to Ms. Reynolds complaining that the professors were not giving her major typing assignments. Petitioner’s memo was admitted in evidence. However, Petitioner presented no evidence that any other secretary got more or better typing assignments than she did; that anyone else in her position was evaluated by the professors instead of by Ms. Reynolds; that the professors ever knew about her memo to Ms. Reynolds; or that Ms. Reynolds ever gave Petitioner a bad or unfair evaluation. Petitioner testified that sometime in 1999, she became depressed from a combination of the work place "harassment," as she perceived it; the loss of her stepfather; and the loss of her pastor. Apparently, she was absent from work for awhile after February 1999. She testified that when she returned to work, she presented Ms. Reynolds with a doctor's excuse for home rest for two weeks, and Ms. Reynolds then berated her for an hour and a half and gave her an ultimatum to quit or be fired. Petitioner stated first that she resigned because of this alleged "ultimatum" and then testified that she resigned because she was depressed and confused from the medicine she was taking. However, Petitioner's doctor's note was not offered in evidence, and her self-serving testimony was not corroborated. Petitioner's May 27, 1999, resignation letter to Ms. Reynolds states that Petitioner's last day would be June 8, 1999, and gives no reason for quitting. It does not bespeak of coercion. Petitioner further testified that Ms. Reynolds prepared a letter for the UF Personnel Office to get permission to rehire Petitioner in less than 100 days, contrary to a UF rule. Petitioner put in evidence a memo from a different supervisor, Lynn Jernigan, showing that UF employed Petitioner on OPS at UF's Department of Physical Therapy until August 5, 1999, and at that time, Petitioner refused Ms. Jernigan’s request to keep Petitioner’s name in the job hiring pool (P-13). Petitioner additionally put in evidence an exhibit that included a letter by Petitioner claiming to have been hired for a full-time job in UF's Physical Therapy Department.6/ Considering all of the foregoing, the undersigned is not persuaded that Petitioner was involuntarily terminated by Ms. Reynolds, effective either May 27, 1999, or June 8, 1999. At most, the evidence shows that after those dates, Petitioner was in an OPS position in a different department of UF, which position was not funded after August 5, 1999. Petitioner did not present credible evidence to show that Ms. Reynolds or any UF employees "blackballed" her from being rehired by UF or by any other employer in three Florida counties between June 8, 1999 (her last day in UF's Horticultural Services Department), and the date of hearing. She was also vague about what position, if any, with UF she was turned down for on the only date (June 8, 2003) listed in her Charge of Discrimination. (Cf.--Finding of Fact 21 and its Endnotes, discussing other dates and allegations.) Petitioner is credible that she was not hired in numerous positions from August 1999 (when she left Ms. Jernigan's department) until she was hired in September 2003, by CCR-Head Start. However, she did not affirmatively demonstrate that Ms. Reynolds of the UF Horticulture Services Department had hiring authority in any of the other UF departments Petitioner applied-to during this period of time. Petitioner conceded that Ms. Reynolds did not have hiring or firing authority in Ms. Jernigan's department, where Petitioner worked in August 1999. Petitioner did not know who made any of the hiring decisions rejecting her after she left Ms. Jernigan's department in 1999. Petitioner did not know who applied for any of the job openings within UF or with outside employers or who made the interview or hiring decisions for any of the jobs for which she applied. She did not present threshold evidence that she was minimally eligible for any of the jobs for which she applied or any evidence that the persons hired were less qualified than herself or were equally qualified but without a handicap. The possibility that a genuinely handicapped person was hired for each of these positions was not eliminated. The possibility that the jobs she applied for were not awarded to more qualified applicants was not eliminated. Finally, Petitioner did not demonstrate a nexus between any hiring decision of UF or any hiring decision of any other employer in the three-county area and her alleged handicap, and she showed no nexus between other potential UF supervisors or outside employers and her prior relationship with UF or Ms. Reynolds. Petitioner's mere speculations are not probative of discrimination. For purposes of the present case, Petitioner filed a Charge of Discrimination with the Commission on July 17, 2003, alleging that she was last not hired for a job on June 8, 2003. (See Findings of Facts 1-4 and 6, and n. 1.) However, about June 24-25, 2003, Petitioner also signed a "Workforce Innovation Complaint" form of the Commission, alleging against UF "constant surveillance"; on-the-job harassment; not being hired; and sabotage of her home computer line. This form represented that UF's discrimination against her was "June 1999" and the latest discrimination was "estimated at June 24, 2003." When or if her lawyers on that case ever actually filed the Workforce Innovation Complaint with the Commission is not clear.7/ However, the same lawyers seem to have helped Petitioner get her UF employment records. (See Finding of Fact 25.) From the chronology, it is clear that neither Petitioner's separation from UF in 1999 nor any failure to hire her on June 8, 2003, could possibly have been the result of retaliation for her filing either the June 24, 2003, Workforce Innovation Complaint or the July 17, 2003, Charge of Discrimination.8/ Neither is there any credible evidence that Petitioner was not hired at any time thereafter as a result of filing either the Complaint or the Charge. Petitioner testified, again without corroboration, that she had discussed her problems concerning Ms. Reynolds with someone in the UF Personnel Office in 1999, had been persuaded that further action was not necessary, and had elected not to pursue her allegations of discrimination at that time. Given all the evidence, this statement is less than credible, but assuming, arguendo, that the conversation occurred, it would be unreasonable and illogical to suppose UF would interfere with Petitioner’s subsequent attempts at employment for four years in retaliation for her not filing a charge of discrimination in 1999. With regard to Petitioner's late claim that UF withheld papers from her, there is no evidence in this record that Respondent withheld any employment records that impeded Petitioner being hired by anyone, including but not limited to CCR-Head Start. UF employees would have to have been clairvoyant to even guess that Petitioner was applying to CCR- Head Start. (See Finding of Fact 5.) Apparently, in 2002, Petitioner wanted some results of a CLAST test taken at her community college, but graded by UF. Exhibits in evidence show that UF permitted her to challenge these scores in April and August 2002, but the score was not changed. However, Petitioner put on no evidence that any portions of these standardized tests may legally be released to any test-taker. She did not demonstrate any reason that UF would have her college grades, test scores, or grade point average from other institutions. Petitioner testified that sometime in 2002, at the request of her lawyers for the Workforce Innovation Complaint, (see Finding of Fact 21), UF provided her with papers that purported to be her UF employment records but an UF employee removed some papers from the pile before handing the rest to her. Petitioner admitted that she did not know the UF employee and did not know what was in the pile of papers removed. Her only reason for believing UF misused her at that time was her unilateral belief that someone would not remove papers from a pile assembled for her lawyers unless they were hiding something from her. This is not a reasonable interpretation of the event described.
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 the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 15th day of June, 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 15th day of June, 2004.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on an alleged handicap.
Findings Of Fact Respondent is an employer as that term is defined in Section 760.10, Florida Statutes. Respondent employed Respondent in January 1990. Respondent reassigned Petitioner to the Division of Recreation and Parks in 1993. At the time of his dismissal in October 2003, Petitioner was working as a park ranger at the St. Marks GeoPark in Wakulla County, Florida. Petitioner is a history aficionado. He enjoys researching Florida and Civil War history. He has authored a 200-page book entitled The Civil War in and Around St. Marks, Florida. He has written an article entitled "Forts in St. Marks during the War Between the States." Petitioner enjoys participating in history interpretations for the public. Several times in the past decade, Respondent nominated him for an award for his activities in history interpretations. Petitioner has constructed colonial-era equipment and musical instruments. Although they are his personal property, Petitioner has used them in displays for the public at state parks. Petitioner researched the historical accuracy of his projects both at home and at work. Petitioner had surgery in 2000 for a cervical herniated disc. After the surgery, Respondent made accommodations for Petitioner in the form of lighter duty assignments during his recovery period in keeping with his doctor's request. In a letter dated August 28, 2000, Petitioner's doctor set forth the specific type of work that Petitioner could and could not perform. The doctor released Petitioner to perform desk work, telephone duties, and visitor services but no maintenance duties. At all times relevant here, Thomas Nobles was Petitioner's immediate supervisor. Mr. Nobles and Petitioner have known each other since high school. However, they did not have a good relationship at work. In 2001, Petitioner filed gender discrimination charges against Mr. Nobles. Respondent conducted an investigation and exonerated Mr. Nobles. Mr. Nobles wrote several counseling memoranda and one reprimand, which criticized Petitioner's work performance. Among other things, Mr. Nobles warned Petitioner not to visit a music store in Tallahassee during work hours. In a memorandum dated July 19, 2002, Mr. Nobles discussed his concern over Petitioner's work habits that allegedly caused damage to a state-owned vehicle and other property and Petitioner's inability to complete paperwork. Petitioner responded to each of Mr. Nobles' criticisms in a memorandum dated July 28, 2002. On September 20, 2002, Mr. Nobles wrote a memorandum to document an earlier conversation with Petitioner regarding Mr. Nobles' concern that Petitioner was not keeping the park neat. In the memorandum, Mr. Nobles instructed Petitioner not to bring "personal projects" to work, specifically referring to a mandolin that Petitioner had been sanding in the park office. In a memorandum dated October 22, 2002, Mr. Nobles criticized Petitioner for reading a book about musical instruments. Mr. Nobles warned Petitioner not to let personal projects take priority over the park's appearance and cleanliness. On February 25, 2003, Petitioner called his office to provide his employer with the date of his second neck surgery, which was scheduled for March 5, 2003. During the telephone call, Petitioner asserted that he required further surgery due to his work-related injury. However, Petitioner never filed a workers' compensation claim; he believed that he was not eligible for workers' compensation due to a preexisting condition. After Petitioner's March 2003 surgery, Respondent returned to work. In a letter dated April 10, 2003, Petitioner's doctor released him to work running a museum. On or about May 7, 2003, Petitioner's doctor released him to light- duty work assignments, including no more than one hour of lawn maintenance at a time. In a letter dated July 29, 2003, Mr. Nobles' doctor once again restricted Petitioner's work assignments. Petitioner was not supposed to use heavy machinery or operate mowers, edgers, or similar equipment for prolonged periods of time. The doctor recommended that Petitioner avoid repetitive gripping and lifting. There is no evidence that Respondent failed to provide Petitioner with these accommodations. In the meantime, on July 23, 2003, Mr. Nobles requested Respondent's Inspector General to investigate a posting on the eBay Internet site involving a replica of a 1800s guitar, advertised as being made of wood from the Gregory House, a part of Torreya State Park in Gadsden County, Florida. The Inspector General subsequently commenced an investigation. Petitioner posted the advertisement for the guitar under his eBay site name. Petitioner makes replica mandolins and guitars and occasionally sells them on eBay. Petitioner bragged to at least one co-worker in 2003 that he had made a lot of money selling musical instruments on eBay. One of Petitioner's friends made the "Gregory House" guitar out of discarded roof shingles. Petitioner merely posted the advertisement on his internet site because his friend did not know how to use a computer. During the Inspector General's investigation, Petitioner admitted that he had accessed eBay at work but denied he had used it for bidding. An inspection of the hard drive of the computer at Petitioner's office revealed that someone using Petitioner's eBay password had accessed eBay four times from April-July 2003. Around the general time and date of one of those occasions, someone placed an eBay bid on the "Gregory House" guitar. Additionally, the computer at Petitioner's office had been used to access numerous musical instrument and/or woodworking Internet sites other times from April-July 2003. Petitioner was at work on most, but not all, of the days. A park volunteer admitted that she sometimes used the office computer to access eBay. Respondent's policy prohibits an employee from accessing the Internet for personal use if that use adversely affects the employee's ability to perform his job. Personal use of the Internet should be "limited to the greatest extent possible." Petitioner was aware of Respondent's Internet policy. Nevertheless, he used the Internet for personal reasons at work to access eBay and sites related to his woodworking business after he had been counseled not to let personal projects interfere with his park duties. This caused him to not be available to do park business and, therefore, adversely affected his ability to do his job. Petitioner violated Respondent's Internet use policy. Respondent terminated Petitioner's employment on September 25, 2003, for alleged rule violations, conduct unbecoming a public employee, and perjury. Petitioner appealed to the Florida Public Employees Relations Commission (PERC), contending that Respondent lacked cause to discipline him. PERC appointed a Hearing Officer to conduct a hearing and issue a Recommended Order. The PERC Hearing Officer conducted a public hearing on October 28, 2003. The Hearing Officer issued the Recommended Order on November 10, 2003. In the instant case, the parties stipulated that they would not re-litigate issues previously litigated at the PERC hearing. The PERC Hearing Officer found as follows: (a) Respondent had cause to discipline Petitioner for violating the computer use policy; and (b) Respondent had discretion to discipline Petitioner by terminating his employment. On November 24, 2003, PERC entered a Final Order adopting the Hearing Officer's Recommended Order. The greater weight of the evidence indicates that Respondent did not allow employees, other than Petitioner, to read books unrelated to work during office hours. In fact, Respondent did not terminate Petitioner for any of the following reasons: (a) because he read history books at work; (b) because he might file a workers' compensation claim for a work-related injury; (c) because he filed a gender discrimination against Mr. Nobles; or (d) because Respondent intended to eliminate his position. Rather, Respondent dismissed Petitioner for using the office computer for personal reasons. Respondent has fired other employees for the same reason. At the time of his dismissal, Petitioner believed that he was physically incapable of performing the duties of his position. However, there is no evidence that Respondent failed to provide Petitioner with appropriate accommodations as requested by Petitioner's doctors.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of March, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 28th day of March, 2005. COPIES FURNISHED: Allen Gerrell, Jr. 10750 Kilcrease way Tallahassee, Florida 32305 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000
Findings Of Fact The Respondent is a Public Employer within the meaning of Florida Statutes Section 447.203(2). Lloyd A. Perry was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Dana E. Pratt was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Prior to February 17, 1976, Lloyd A. Perry was employed by the Citrus County Road Department for a period of over four years. Immediately prior to the time that his employment was terminated, Perry was a roller operator. Except for rare occasions when he performed work as a flagman, or other work in conjunction with his roller work, Perry operated a tandem road roller. For the several months prior to February, 1976, Perry had continuously operated the same roller machine. Prior to February, 1976, none of Perry's supervisors informed him that his work was unsatisfactory, reprimanded him for performing work in an unsatisfactory manner, or indicated to him in any way that his job was in jeopardy for unsatisfactory performance of his duties. Dana E. Pratt had been employed by the Citrus County Road Department for approximately five years prior to February, 1976. For four years prior to that date he had been a motor grader operator. Pratt had annually received formal evaluations and his evaluations had always been very good. Prior to February, 1976, Pratt had never been criticized for below average or unsatisfactory work. He had never received any written reprimand for unsatisfactory performance on the job. From approximately December, 1973 until February, 1976, Perry had operated the newest grader machine in use by the Citrus County Road Department. No one else had operated the machine since it was acquired by the Citrus County Road Department. During February, 1976, Thomas Hutchinson was the Citrus County Road Superintendent. William Hitt was thee Assistant Road Superintendent. Hutchinson and Hitt served under the direction of the Citrus County Board of County Commissioners. Perry, Pratt, and numerous other employees of the Citrus County Road Department had, prior to February, 1976, become dissatisfied with conditions in the Road Department, primarily the manner of direction given the department by Hutchinson and Hitt. On Sunday, February 8, 1976, Perry drafted a petition specifying numerous grievances against Hutchinson and Hitt. It was his intention to secure the signatures of employees of the Road Department on the petition, and to present it to the Board of County Commissioners. Perry sought the assistance of County Commissioner DeBusk in drafting the petition. DeBusk offered several suggestions and his daughter typed the petition for Perry. Perry secured six or seven signatures on that Sunday. He was the first person to sign the petition, and Dana Pratt was the third. On Monday, February 9, Pratt informed his office that he had business to attend to and would not be at work that day. He did not claim sick leave for the time he missed. Prior to work and during the lunch hour he called as many employees of the Road Department as he could. After working hours he waited at a business establishment called the "Country Store" which was located in close proximity to the place where Road Department employees checked out of work. Forty-six employees of the Road Department signed the petition. Dana Pratt assisted in soliciting people to sign the petition. There was no evidence offered at the hearing from which it could be determined that those persons signing the petition did so other than freely and voluntarily. On Tuesday, February 10, 1976, Perry called his supervisor, Mr. Hutchinson, and told him that he had business to attend to. Hutchinson asked him if he was going to solicit more signatures. Perry told him that he was not. The Board of County Commissioners was meeting on that date, and Perry presented the petition to the Board. Members of the Board discussed the petition at length during the meeting. One commissioner asked Perry if he was big enough to go back to work and forget about the matter. Perry said that he was. On February 11, 1976 Perry returned to work at the regular time. Rather than being assigned to his regular duty as a roller operator, he was assigned to flag traffic for a grader operator. He continued in that capacity until Tuesday, February 17. On that date, at approximately 11:00 or 11:30 A.M. Tom Morton, the grader foreman, informed Perry that his employment was terminated as of 1:00 P.M. on that date. Both Morton and William Hitt told Perry that they did not know why he was fired. Dana Pratt attended the County Commission meeting on February 10. He was asked about whether he threatened a Road Department employee named Langley with respect to signing the petition. Pratt told the County Commission that he did not threaten Langley, and no evidence was offered at the hearing to establish that he did. On February 12, 1976, Pratt used the new grader machine that he had been using for some time prior thereto. At the end of that day his supervisors informed him that he would be using the oldest machine in the Department thereafter. He began using it on February 13. It took some time to get it started on that date. It also took some time to get it started on Monday, February 16. This was an old machine, and had been difficult to start for some years prior to the time that it was assigned to Pratt. At 12:30 on February 17, 1976, Tom Morton informed Pratt that his employment was terminated as of 1:00 P.M. on that date. Pratt was never given any reasons for his termination. On February 17, 1976, the Citrus County Board of County Commissioners acted to terminate the employment of Perry and Pratt. These actions were taken upon the recommendation of Mr. Hutchinson. Ostensibly the reason for Pratt's termination was that he had marked out on sick leave on a day when he was not sick. Ostensibly the reason for Perry's termination was that he had been missing from the job for approximately an hour. The evidence would not support a finding that Perry and Pratt were fired for these reasons. These reasons offered by Hutchinson, and followed by the Board of County Commissioners, were used as a ruse. On February 18, 1976, the day after Pratt and Perry were fired, Hutchinson called a meeting of all employees of the Road Department. Hutchinson told the employees that he had nothing to do with the termination, but he also told them that he would tolerate no more petitions and that if anyone did not like working conditions at the Road Department they could leave. He said that he had four County Commissioners in his pocket, and he reminded the employees that unemployment in Citrus County was high. He told the employees that he would take care of any petitions they distributed. During the week the petition was distributed, Hutchinson told one employee of the Road Department, James Johnson, that Johnson could be put in jail for signing the petition. During that same week he told his assistant superintendent, William Hitt, that all of the men who signed the petition had to go. After Perry and Pratt were fired, Hutchinson told Hitt that he got two, and he would get the rest. The basis for Hutchinson's recommendation to the Board of County Commissioners that Perry and Pratt be terminated was the fact that they participated in the distribution of the petition, and presenting it to the Board of County Commissioners. There was no evidence offerred at the hearing to indicate that any members of the Board of County Commissioners knew Hutchinson was presenting false reasons for the terminations; however, they did act to adopt the recommendation. The Board of County Commissioners did know that Pratt and Perry were among the leaders in distributing the petition highly critical of Hutchinson's work, and was clearly on notice that Hutchinson may have ulterior motives in recommending their dismissal.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of race in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Facts Stipulated to By the Parties Embry-Riddle is an independent, nonsectarian, not-for- profit, co-educational university. Embry-Riddle serves culturally diverse students seeking careers in aviation, aerospace, engineering, and related fields, with residential campuses in Daytona Beach, Florida, and Prescott, Arizona, and an extended campus (a/k/a Worldwide Campuses) consisting of 156 teaching sites in the United States and Europe. Michael Perry began his employment with Embry-Riddle on November 30, 2001, as a part-time associate center director at Embry-Riddle's Tallahassee teaching site. His job responsibilities were to market Embry-Riddle's programs, enroll students and provide some student services, the timely completion of registration forms and matriculation applications, and basic administrative duties. Petitioner did not have authority to enter into a contract for cellular phone service on behalf of Embry-Riddle that Embry-Riddle would be obligated to pay. Embry-Riddle's Tallahassee teaching site is on the campus of Tallahassee Community College ("TCC"), along with the extended campuses of other higher-education institutions, including Flagler College-Tallahassee and Barry University. In February 2003, Petitioner began to work full-time with the same job title and responsibilities. In February 2004, Petitioner was promoted from assistant center director to associate center director. He received a pay increase, and was given the additional responsibility of supervising an assistant and a Veterans' Affairs ("VA") student employee. At all times, Petitioner's assistant was Katrina Alexander, an African-American female. At all times relevant to this claim, Petitioner's VA student employee was Kiesha Moodie, an African-American female. The Tallahassee teaching site was overseen by Center Director Albert Borovich from a remote site in the panhandle of Florida. On or about May 18, 2005, Ms. Alexander reported that Ms. Moodie advised her that she was uncomfortable about some interaction she had with Petitioner in his office. The precise nature of the interaction is in dispute. At some point after May 23, 2005, Mr. Borovich was given certain memoranda by Dr. Barbara Sloan, advising him of the complaints of sexual harassment by certain unnamed employees of TCC. On June 6, 2005, Mr. Borovich received a copy of a memorandum from Maura Freeberg Wilson to Joketra Hall advising of complaints by female employees of Flagler College-Tallahassee about Petitioner. On June 10, 2005, Debbie Wiggins, the Southeast Regional Director of Operations for Embry-Riddle, and the direct supervisor of Mr. Borovich, provided copies of the alleged victim's statements to Petitioner for response. Petitioner responded to the charge by a report, dated June 15, 2005, denying the claims of sexual harassment and inappropriate behavior. Respondent has a human resources department housed in its headquarters in Daytona Beach, Florida. The human resources department is responsible for investigating complaints of sexual harassment and inappropriate behavior by an employee. The human resources department had not started its investigation of the complaints against Petitioner at the time Ms. Wiggins gave the alleged victim's statements to Petitioner. Rick Snodgrass was appointed by Linda Mobley to investigate the claims of sexual harassment and inappropriate behavior on behalf of Respondent's human resources department. Ms. Mobley was a human resource professional in Respondent's human resource department in Daytona Beach, Florida. Mr. Snodgrass was a human resource professional in Respondent's human resources department in Daytona Beach, Florida. On June 20, 2005, a telephone call was received at the Tallahassee teaching site from Nextel Partners Recovery concerning a delinquent account ("the Nextel Account"). On June 20, 2005, Mr. Borovich called Respondent's payroll department and asked whether Petitioner's paycheck could be held, but was advised that it was too late. At this time, Petitioner had made two payments to Nextel Partners on the Nextel Account at issue. The funds used to make this payment came directly from Petitioner and were not Embry-Riddle funds. On June 21, 2005, Mr. Borovich called Petitioner about the Nextel Account. On June 21, 2005, Petitioner was placed on administrative leave without pay. Petitioner told Mr. Borovich that he had opened the account at issue, that it was in his name, and that he had been paying the bills. The Nextel Subscriber Agreement lists "Embry-Riddle" in the section labeled "Full Customer Name." The Nextel Subscriber Agreement lists the address of the Tallahassee teaching site of Embry-Riddle in the section labeled "Mailing Address." The Nextel Subscriber Agreement lists Petitioner's home address in the section labeled "Shipping Address." The Nextel Subscriber Agreement has Petitioner's signature in the section labeled "Customer Signature." The Nextel Subscriber Agreement has "Assist. Dir. Oper." in the section labeled "Title." The Nextel New Customer Checklist lists "Embry- Riddle/TCC" in the section labeled "Customer/Company Name." The Nextel New Customer Checklist lists "Michael" in the section labeled "Contact." The Nextel New Customer Checklist has Petitioner's signature in the section labeled "NEXTEL Customer Signature." Petitioner provided his driver's license to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided his Embry-Riddle identification card to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided his Embry-Riddle business card to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided the address of Embry-Riddle's main campus in Daytona Beach to Nextel Partners in conjunction with opening the Nextel Account. Petitioner provided the address of Embry-Riddle's Tallahassee teaching site for billing purposes in conjunction with opening the Nextel Account. Petitioner directed that the bills be sent to Respondent's Tallahassee teaching site, "Attn: Michael L. Perry," in conjunction with opening the Nextel Account. Petitioner provided Respondent's Consumer Certificate of Exemption (Embry-Riddle's certificate of tax exemption) to Nextel Partners in conjunction with opening the Nextel Account. On June 20, 2005, Nextel Partners asserted that $936.55 was past due and owing on the Nextel Account. The alleged past due balance was sent to collection by Nextel Partners. The debt collection firm of Lamon, Hanley & Assoc., Inc., sought payment of the alleged past due amount from Embry- Riddle. The debt collection firm of J.J. MacIntyre Co., Inc., sought payment of the alleged past due amount from Embry-Riddle. Mr. Snodgrass was charged with investigating the events surrounding the Nextel Account by Ms. Mobley. The investigations of the claims of sexual harassment and the Nextel Account occurred simultaneously. Mr. Snodgrass traveled to Tallahassee on June 23, 2005, during which he met with several individuals regarding the claims of sexual harassment. The complainants from TCC, Flagler College- Tallahassee, and Barry University declined to participate in the investigation on the advice of their legal counsel. Ms. Moodie indicated to Mr. Snodgrass that she had addressed her concerns directly with Petitioner, and she withdrew her complaint. Mr. Snodgrass interviewed Petitioner last, in the presence of Mr. Borovich. Mr. Borovich was not present during the interviews of the female witnesses. At that time, Mr. Borovich found that there was insufficient evidence to make a finding on the claims of sexual harassment, and he recommended no direct discipline of Perry on the claims of sexual harassment. Mr. Snodgrass also discussed the Nextel Account with Petitioner during the meeting of June 23, 2005. Petitioner again asserted that the Nextel Subscriber Agreement was an agreement personal to him, and not an agreement between Nextel Partners and Embry-Riddle. Petitioner was advised that his employment was being terminated because of the actions surrounding the Nextel Account, but he was offered the opportunity to resign instead. Petitioner chose to resign his employment with Embry- Riddle. Petitioner's termination was involuntary. Respondent employs African-Americans in its extended campuses across the United States, including faculty, center directors, and associate center directors. Additional Findings of Fact Not Stipulated to By the Parties Petitioner is a 49-year-old African-American male, who has always lived in the southern United States. Petitioner was qualified for his position and had not been the subject of discipline in connection with his employment until January 2005, when he received a letter of reprimand from his supervisor, Mr. Borovich. In addition to his employment at Embry-Riddle, Petitioner has served as a minister, and has had experience counseling others who have been the victims of racial discrimination. Petitioner testified to his belief that Respondent discriminated against him by automatically concluding that he was guilty of committing fraud by obtaining the Nextel cellular phone because he was an African-American male. Petitioner testified to his experience, and as a minister counseling other victims of discrimination, that African-American males are considered guilty regardless of proof, and may still be considered guilty if they stand up for their rights. Petitioner believes that society generally feels that African-American males cannot tell the truth. Petitioner also testified that he was hurt the most by being accused by Respondent of being a thief without the opportunity to provide documents to rebut Respondent's accusation. Petitioner testified to his experience and belief that African-Americans, who have been the victims of racism in the South, have often been put in the position of having no chance to present evidence disproving the charges levied against them. Petitioner testified that he received a telephone call from Mr. Borovich, on May 23, 2005, ordering him to immediately apologize to the three alleged victims of sexual harassment or inappropriate conduct. He believed he was not given an opportunity to dispel Mr. Borovich of any notion that he had acted inappropriately towards the three women, nor had any investigation been performed at that point. Petitioner complied with the order to apologize to the three alleged victims of the sexual harassment, and testified he felt humiliated as a result of the experience. He believes he was "taken back" to a time in our society when he would have been guilty just because a white man said he was guilty. Mr. Borovich testified at the hearing that he did not recall ever speaking with Petitioner on May 23, 2005, nor did he recall "ordering" Petitioner to apologize to the alleged victims. Petitioner testified that he complained about the fact that he was forced to apologize to the three alleged victims of sexual harassment, and that his complaints were ignored by his superiors. Respondent is an equal opportunity employer that regularly trains its employees in seminars about equal opportunity employment, sexual harassment, and disability. Respondent maintains extensive employment policies in a policy manual referred to as both a POM and an APPS. These policies are reviewed with Embry-Riddle personnel at orientation, and made available to all personnel electronically through an intranet site at any time from any computer. Respondent has policies prohibiting sexual harassment and racial discrimination. Respondent's policies and procedures provide that individuals reporting sexual harassment should contact human resources, which would then conduct an investigation. This investigation is then conducted according to Respondent's policies and procedures. At all times relevant to this matter, Respondent had three employees physically located in the administrative offices of the Tallahassee teaching site: Petitioner, Ms. Alexander, and Ms. Moodie. According to Mr. Borovich, Petitioner was a good marketer, but had some difficulty in meeting deadlines. Ms. Alexander determined that her interaction with Petitioner on May 18, 2005, fit within Respondent's definition of sexual harassment. Respondent's policy requires that a supervisor who is made aware of sexual harassment must report the incident. Ms. Alexander attempted to contact Mr. Borovich on May 18, 2005, but he was not in his office. She, thereafter, consulted the policy and procedures manual and determined she was to contact the faculty chair when the center director was unavailable, which she did. Once he received the complaint from Ms. Alexander, Mr. Borovich began gathering information from the people involved, and then he reported the alleged sexual harassment to Respondent's human resources department pursuant to Embry-Riddle policy. Ms. Moodie told Ms. Alexander that she did not believe she was sexually harassed, but that she felt uncomfortable standing on top of a table and writing on a white board while Petitioner and Mr. Deric Mordica, a student, watched her from behind. Petitioner believes that Ms. Moodie's complaint to Ms. Alexander "started this whole thing." Both Ms. Moodie and Ms. Alexander are African-American. Maura Freeberg Williams, during the relevant time period, was employed in a supervisor capacity by Flagler College, whose offices were located in the same building as Embry-Riddle's Tallahassee teaching site. Joketra Hall, during the relevant time period, was employed in a supervisor capacity by TCC on whose campus Respondent is located. Debbie Wiggins, during the relevant time period, was the Southeast Regional Director of Operations for Respondent, and Mr. Borovich's direct supervisor. Her office was not located on the Tallahassee teaching site. When Ms. Wiggins provided Petitioner with copies of the alleged victims' statements on June 10, 2005, she was told by Ms. Mobley that she had breached investigative protocol which dictated that the human resources department was to interview Petitioner prior to him seeing the statements. This is done in order to maintain the anonymity of the victim until human resources has had the opportunity to investigate. Ms. Mobley directed Ms. Wiggins to refrain from involving herself in the investigation, which was to be conducted by the human resources department. These discussions were memorialized in electronic mail between Ms. Mobley and Ms. Wiggins. Mr. Snodgrass testified that this breach in protocol nearly compromised the investigation, but it was caught in time to conduct a proper investigation. Mr. Snodgrass determined how the investigation would be handled, decided whom Respondent would interview, and decided which statements from individuals would be taken. Mr. Snodgrass also determined the outcome of the investigation. Mr. Snodgrass made a trip to Tallahassee on June 23, 2005, during which he met with and questioned several individuals regarding the claims of sexual harassment. Since Ms. Moodie refused to discuss the alleged incident because she had already discussed it with Petitioner and withdrawn her complaint, and since the employees of TCC, Flagler College-Tallahassee, and Barry University declined to speak with Mr. Snodgrass, he concluded the sexual harassment complaints could not be sustained. Mr. Snodgrass met with Petitioner during his June 23 trip to Tallahassee and requested that Mr. Borovich attend the meeting as a witness. Mr. Snodgrass performed the questioning without comment by Mr. Borovich. The first part of the meeting dealt with the sexual harassment claims. Following the questioning, Mr. Snodgrass determined that the evidence was insufficient to make a finding of sexual harassment. He put aside his folder concerning this claim. The second part of the meeting concerned the Nextel cellular phone contract. Mr. Snodgrass asked Petitioner how he came to have two phones in Embry-Riddle's name. Petitioner repeated the information he had given to Mr. Borovich. Mr. Snodgrass presented the documents concerning the Nextel Account to Petitioner. Mr. Snodgrass believed that the Nextel documents were more credible than Petitioner's answers to his questions concerning the Nextel Account. Petitioner testified that he contracted with Nextel to obtain personal cellular telephones for himself and his wife. Petitioner entered into the Nextel contract to receive a discount being offered to public employees and people working for universities which he learned about through a document that was faxed to the machine he shared with others at TCC. Petitioner met with the Nextel representative at his office to complete the paperwork. Petitioner agreed to have his monthly bills sent to his office where he also received other personal bills. Petitioner paid for his cellular telephone usage with his own funds. Petitioner received the benefit of using Respondent's tax exempt certificate on his contract with Nextel. Petitioner entered into a dispute with Nextel over the quality of his telephone service, which led to the matter being turned over by Nextel to its collection agents. Petitioner never resolved the matter of his dispute with Nextel over the quality of his telephone service. After Petitioner's termination from employment, Respondent paid the past due amount for Petitioner's phone to Nextel out of funds owed to Petitioner for unused leave time during his employment. Mr. Snodgrass advised Petitioner at the time of termination of his employment that he had violated school policy by entering into the cellular phone contract. Petitioner was informed that his "employment was being terminated due to the fact that he opened [the Nextel] account without proper permission." Petitioner did not have contracting authority to bind Respondent. Respondent provides cellular telephone allowances for some of its employees who travel a great deal. None of Respondent's employees have cellular telephones that are owned or contracted for by Respondent. The decision to terminate Petitioner was made by Ms. Mobley. Mr. Borovich was not involved in the decision to terminate Petitioner. Ms. Mobley was not aware of Petitioner's race until she reviewed the documents regarding the Nextel Account, which included a photocopy of Petitioner's identification card. Ms. Mobley testified that the investigative protocols used concerning Petitioner were the same she would use regardless of the employee's race or gender. Following Petitioner's resignation, Ms. Alexander performed Petitioner's prior duties, and was the only person designated to the Tallahassee teaching site for the next 18 months. At that time, the position formerly held by Petitioner was given to a white female. Petitioner sought unemployment benefits, giving as his reason for his termination a "permanent layoff" due to "reduction in force due to lack of student enrollment." Ms. Alexander testified that she worked closely with Petitioner and Mr. Borovich, and that she socialized outside of work with Mr. Borovich. Ms. Alexander never witnessed Mr. Borovich act in a racially discriminatory manner towards her or Petitioner. Petitioner was not aware of any African-American males employed at his level or higher in the organizational structure of Embry-Riddle. Embry-Riddle employs 190 African-Americans out of 1,500 total employees in its worldwide campuses, including faculty, center directors, and associate center directors. Ninety percent of those African-American individuals were in positions equal to or higher than that held by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 15th day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael O. Murray, Esquire Embry Riddle Aeronautical University 600 South Clyde Morris Boulevard Daytona Beach, Florida 32114 Bill Reeves, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32309 Thomas J. Leek, Esquire Cobb & Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her sex and by retaliating against her.
Findings Of Fact Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). As a Florida non-profit corporation, all of Respondent's activities are governed by its bylaws. Petitioner, a white female, has worked for Respondent off and on during the last five years. Most recently, Petitioner began working for Respondent on January 18, 2008, as a part-time food preparation (prep) worker and a part-time waitress in Respondent's restaurant. Petitioner accepted the job because she had recently left a full-time position with another employer due to the distance of that job from her house. As a prep worker, Petitioner earned a set hourly wage. Petitioner's responsibilities included assisting the chef in preparing meals and cleaning up the kitchen. The chef, Tony Mongone, directed Petitioner's kitchen work but he was not her supervisor. As a waitress, Petitioner earned $3.35 per hour plus tips. On Tuesdays and Fridays, Petitioner earned an average of $100 in tips per shift. Petitioner worked between five and six hours on Tuesday evenings and between five and eight hours on Friday evenings when Respondent served sit-down dinners to its members. On these occasions, Respondent's kitchen served an average of 200 dinners in a two-hour period of time. Petitioner also worked when Respondent catered for banquets and other special occasions. Petitioner worked a total of 41.66 hours in January 2008; 81.5 hours in February 2008; 45.13 hours in March 2008; and 71.17 hours in April 2008. She worked 10.32 hours for the first week in May 2008. Over the course of her 15.4 week term of employment, Petitioner averaged 16.23 hours per week. Although it varied according to the event, there were five to eight other servers or waitresses (all females) working along with Petitioner on any given night. There always were eight-to-10 workers in and around the kitchen, including the servers, the chef, one pizza maker, and the kitchen prep person. At all times relevant here, Linda Ferguson was the club manager and Petitioner's direct supervisor. Ms. Ferguson was responsible for day-to-day management of all club activities with the authority to enforce all club policies. Ms. Ferguson also was in charge of all aspects of hiring and terminating employees and managing volunteer personnel. Ms. Ferguson was in the restaurant on most Friday evenings. When Ms. Ferguson was not scheduled to work, the assistant manager, Carolyn Weeks, was on duty. On Petitioner’s first night as the kitchen prep worker, Chef Mongone was drinking from a pitcher of beer. Early in the evening, Chef Mongone made comments about her breasts, telling her they were nice and asking whether they were real. Later that evening, when the staff was cleaning the kitchen, Chef Mongone walked up behind Petitioner and touched her backside. Petitioner immediately turned on Chef Mongone, telling him assertively, "Don't ever do that again! How would you like it if someone did that to your wife?" Chef Mongone just stood there as Petitioner turned and walked away. Petitioner immediately informed Ms. Ferguson about the incident. Ms. Ferguson inquired whether Petitioner wanted her "to take care of it." Petitioner responded that she felt she "had already done so." Ms. Ferguson spoke to Chef Mongone about his drinking on the job and his inappropriate conduct. Chef Mongone responded in an insubordinate way, denying all allegations of improper conduct. Ms. Ferguson also spoke to Mike Mercante, Respondent's President at that time. Ms. Ferguson complained to Mr. Mercante about Chef Mongone's drinking and offensive conduct. In the following weeks, Chef Mongone sometimes raised his voice at Petitioner and she back at him. On days that Petitioner worked as a waitress, Chef Mongone held up Petitioner's food orders, causing delays in service that resulted in reduced tips for Petitioner. The delays in releasing Petitioner's food orders usually occurred after Petitioner and Chef Mongone exchanged angry words. On or about February 11, 2008, Petitioner was working as a waitress. When she placed her first food order, Chef Mongone began yelling at her for not putting her name and table number on the ticket. When Petitioner reached to retrieve the ticket, Chef Mongone told her not to touch it. At that point, Petitioner started yelling at Chef Mongone. Petitioner admits her response was not nice and describes herself as having "lost it." When Petitioner returned to the kitchen to get her next order, she overheard Chef Mongone telling the kitchen staff that she was stupid because she could not remember to put her name on a ticket. Once again Petitioner's temper got the best of her. Petitioner called Chef Mongone a drunk, triggering another argument with Chef Mongone. Despite the hard feelings between Chef Mongone and Petitioner, Chef Mongone made additional inappropriate remarks to Petitioner. On one occasion, Chef Mongone observed Petitioner wiping her hand on the seat of her pants. Chef Mongone then stated that he "would like to do that, too." On or about February 15, 2008, Petitioner was scheduled to work first as a prep worker and later as a waitress. While she was in the kitchen, she shared a bag of Valentine candy with the staff. When only one piece of candy was left, Petitioner asked Chef Mongone if he wanted it. Chef Mongone replied that he did not want the candy. However, when Petitioner put the candy in her mouth, Chef Mongone made some comment about the way Petitioner sucked the candy. Chef Mongone immediately stated that he did not mean for his comment to come out like it did. Nevertheless, Petitioner was offended and responded in a negative way. Sometime after February 15, 2008, Petitioner wrote a letter to the members of Respondent's Executive Board. The letter details Petitioner conflict with Chef Mongone. Petitioner gave the letter to Ms. Ferguson, who gave it to Mr. Mercante. February 15, 2008, was Petitioner's last day as a kitchen prep worker. From that time forward, Ms. Ferguson scheduled Petitioner to work only as a waitress in order to reduce the time Petitioner would have to spend in the kitchen. On February 20, 2008, Respondent's Executive Board had a meeting. At the meeting, the board members discussed Petitioner's letter. Chef Mongone attended the meeting and denied all allegations. At the conclusion of the meeting, the Executive Board directed one of its members to draft a letter of reprimand for Chef Mongone. In an internal memorandum dated February 22, 2008, Respondent's Executive Board advised Chef Mongone that he had been warned about his rule infractions and general behavior for the past recent months. According to the memorandum, Chef Mongone would receive no further warnings and any future infractions of club rules or Florida law would result in disciplinary action up to and including immediate termination of employment. Respondent does not have a written policy prohibiting sexual harassment. It does have a rule against drinking on duty. On or about May 6, 2008, Petitioner once again became upset at work because the kitchen was crowded and Chef Mongone yelled at her. Petitioner called her husband to complain that Chef Mongone had cursed at her, saying, "Bitch, get the f--- out of the kitchen.” Petitioner also alleged that Chef Mongone was holding up her food orders. When Petitioner's husband arrived at the restaurant, he met Petitioner, Chef Mongone, Ms. Weeks (Assistant Manager), and Lou Barletta (Respondent's Vice President) in the restaurant's parking lot. Petitioner's husband told Chef Mongone that Petitioner would show him respect if Chef Mongone demonstrated respect for Petitioner. The discussion in the parking lot was civil and ended with Chef Mongone and Petitioner's husband shaking hands. After the meeting, Chef Mongone made it clear that he could no longer work with Petitioner and that one of them had to go. Petitioner did not want to go back into the kitchen after the meeting. Ms. Weeks suggested that Petitioner go home until everything cooled down. Petitioner agreed and left the premises. Petitioner was scheduled to work the following Saturday. Before Petitioner reported to work, Ms. Ferguson talked to Mr. Mercante. After that conversation, Ms. Ferguson told Petitioner that she should not come back to work until Ms. Ferguson could replace Chef Mongone. Ms. Ferguson was actively looking for a new chef. After locating a replacement for Chef Mongone, Mr. Mercante would not approve the termination of Chef Mongone's employment. At the end of June 2008, Respondent did not renew Ms. Ferguson's contract. Ms. Weeks replaced Ms. Ferguson as Respondent's General Manager. Due to financial difficulties, Respondent did not hire an assistant manager when Ms. Weeks became the General Manager. Respondent also eliminated all table-busing positions, using volunteers to clear the tables. Respondent has not called anyone back to work after laying them off. Like Ms. Ferguson, Ms. Weeks had problems with Chef Mongone. She eventually hired a new chef and fired Chef Mongone due to his alcohol consumption at work. Petitioner initially drew unemployment compensation from Respondent's place of business. Except for a couple of days of work, Petitioner has been unemployed since May 6, 2008. She is still drawing unemployment compensation from her most recent employer. Petitioner acknowledges that the economy is the reason she has been unable to obtain a job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 25th day of June, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2009. COPIES FURNISHED: David Glasser, Esquire Glasser & Handel 116 Orange Avenue Daytona Beach, Florida 32114 Mary Nelson Morgan, Esquire Cole, Stone, Stoudemire, and Morgan P.A. 201 North Hogan Street Suite 200 Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent Conoco meets the statutory definition of an "employer" within the meaning of Section 760.02, Florida Statutes. Petitioner, Marlan D. Williams, who is black, is a member of a class protected by this statute. Petitioner began work at Conoco on January 4, 1990, as a sales associate and was discharged from his employment on May 27, 1992. When Mr. Williams was hired on January 4, 1990, he was required to sign a new employee agreement. Section 3 of that agreement explains to new employees the importance of good customer relations. After reading the employment contract, Mr. Williams signed the agreement. Mr. Williams testified that he understood the importance of good customer relations. Mr. Williams also testified that he understood that he could be terminated for multiple customer complaints and was aware of a white employee who had been terminated for customer complaints. Conoco's personnel policies and procedures regarding termination state in relevant part that, "involuntary terminations occur for a reason, such as when an employee's performance does not meet acceptable standards, if the employee violates Company policy, or when there is no work available for the individual." The details of Conoco's policy were left up to each sales district's manager. In this case, the district manager was Tammy Hunter. Her policy was that three complaints involving customers would result in termination. Ms. Hunter was not concerned with the truth behind these complaints, but only with the fact of multiple complaints. In the past, Conoco, through Ms. Hunter, has consistently applied its termination policy to employees receiving complaints involving customers in a nondiscriminatory manner. In fact, there was no evidence presented at the hearing that the policy was not applied in a nondiscriminatory or had unintended discriminatory impact. 1/ Over the term of his employment Mr. Williams received at least three complaints. Two of the complaints were made by customers directly to Ms. Hunter. One complaint was reported by management to Ms. Hunter and involved a very heated and nasty argument between Mr. Williams and a manager trainee in front of customers. Numerous other incidences of nonspecific poor customer relations involving employees and poor attitude were noted by the store manager, Julia Meuse. Mr. Williams received informal verbal and written counseling regarding his poor behavior towards customers, from his store manager and two assistant store managers. Conoco accordingly discharged Mr. Williams for violation of the Company policy regarding acceptable performance standards in customer relations and customer complaints. The evidence did not demonstrate these reasons were pretextual. Petitioner failed to present any evidence that he was replaced by a person not from a protected class. Therefore Petitioner has not established a prima facie case of discrimination. Finally, the decision to discharge Mr. Williams was made in good faith, for legitimate nondiscriminatory business reasons, and was based upon the objective application of Conoco's policies. Since Petitioner has failed to prove by a preponderance of the evidence that the reasons given by the Respondent for discharging him were a mere pretext to cover up discrimination on the basis of race, Petitioner has failed to establish he was discriminated against and therefore 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 he was discriminated against because of his race in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 2nd day of June, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1994.
