The Issue The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner by discriminating against her based on sex and race and by retaliating against her.
Findings Of Fact Ms. Jones is an African-American female. From May 29, 2007, to December 5, 2007, Ms. Jones was employed by Spherion. Spherion provides temporary employees to businesses. Spherion had a contract with American Automobile Association (AAA) to provide temporary employees for an AAA call center in Lake Mary, Florida. AAA does not pay the Spherion employees, Spherion does. AAA can request that Spherion terminate a Spherion employee from an assignment at AAA. Ms. Jones was employed as a customer service representative (CSR) at the AAA site in Lake Mary, Florida. Her duties included taking calls from AAA customers who were in need of roadside assistance. At the time Ms. Jones was working at the AAA site, approximately 150 to 200 Spherion employees were assigned to the AAA call center. Approximately 60 to 70% of the Spherion employees were female, and approximately 60 to 70 of the female employees were members of racially protected classes. Ms. Jones received the CSR Performance Participant Guide, which is provided to all CSRs working on-site at AAA. On May 21, 2007, Ms. Jones executed an acknowledgement of having received the Spherion Workplace Harassment policy, the Spherion Attendance and Punctuality policy, and Spherion’s Policies and Procedures – Application Supplement. She also executed an acknowledgement of having received Spherion’s Equal Opportunity Statement. On June 7, 2007, Ms. Jones executed an acknowledgement of having received Spherion’s Customer Service Quality Commitment policy. During her employment with Spherion, Ms. Jones was paid $10.00 per hour. Ms. Jones received approximately two weeks of training. She began taking live calls on her own on June 10, 2007. Spherion allowed Ms. Jones two months to learn her job before Spherion began to evaluate her calls for quality assurance purposes. Spherion has a progressive discipline policy. A verbal warning is first given followed by a written warning, and then a final warning. On July 30, 2007, Ms. Jones received a verbal warning for attendance. On August 23, 2007, she received a final warning for call avoidance because she had failed to follow Spherion’s policies and procedures related to receipt of incoming calls. On September 18, 2007, Ms. Jones received a verbal warning regarding safety because she did not use a safety statement in one or more of her calls. According to the policies of Spherion and AAA, the goal for each skill set for a CSR is 90%. On September 11, 2007, Ms. Jones’ performance for quality assurance (QA) for the month of August was rated as 79%. She was given a verbal warning for performance on September 7, 2007, for her poor performance in August. Ms. Jones was advised that immediate action was required to correct her performance, and that failure to meet the quality standards could lead to further discipline, including termination. Ms. Jones’ QA average for September was 69%. As a result of her QA average for September, Ms. Jones was given a Written Warning for Performance on October 11, 2007.1 Again, she was warned that she needed to take immediate action to improve her performance and that failure to do so could result in further disciplinary action, including termination. Ms. Jones received a QA average of 77% for the month of October. As a result of her October average, she received a Final Warning for Performance on November 2, 2007. Once again, Ms. Jones was reminded that she needed to take immediate action to improve her performance and that failure to do so could lead to further discipline, including termination. For the month of November 2007, Ms. Jones received a QA average of 78.2%. On December 2, 2007, Spherion received an e-mail from Matthew Cooper, an AAA supervisor, directing Spherion to terminate Ms. Jones assignment at AAA for failure to achieve QA from August through November, 2007.2 As a result of her poor performance, Ms. Jones’ assignment with AAA was terminated on December 7, 2007. At the time her assignment was terminated, Ms. Jones was being paid $11 per hour and was working 40 hours per week. AAA has requested that other Spherion employees assigned to the AAA call center have their assignments terminated for low performance for four months, and Spherion complied with those requests. Such employees included a white male, an African-American/Hispanic female, and an Asian/American male. The termination of an assignment to the AAA site did not mean that Ms. Jones was terminated from employment with Spherion. If Ms. Jones desired to seek an assignment with another Spherion client, she could have contacted the Spherion branch office. Ms. Jones did not contact Spherion for another assignment. Ms. Jones filed for unemployment compensation and received one check for $182.00.3 During the second week of January 2008, Ms. Jones began to work for Kelly Services. She worked approximately 25 hours per week until she left Kelly Services during the first week of June 2008. Her hourly rate of pay was $10.75 per hour. From June 23, 2008, to September 22, 2008, Ms. Jones was employed by Careers USA. She worked approximately 40 hours per week, and her hourly rate of pay was $10.75. After leaving Careers USA, Ms. Jones went to work for Comcast, where she is currently employed. She works 40 hours per week, and her hourly rate of pay is $10.75. Spherion has a workplace harassment policy which was provided to Ms. Jones at the time of her hiring. The policy provides in pertinent part: Spherion Corporation, including all of its divisions, business groups and subsidiaries [“Spherion”], is committed to providing a work environment free of unlawful harassment. Harassment based on an individual’s race, religion, color, national origin, citizenship, marital status, sex, age, sexual orientation, veteran status, disability or any other legally protected status is strictly prohibited and will not be tolerated at Spherion. Employees have a right to be free from harassment from managers, co-workers, and non-employees with whom Spherion employees have a business, service, or professional relationship, including, but not limited to, vendors, clients and client employees. Every Spherion manager and supervisor is responsible for ensuring that the spirit, intent, and goals of this anti-harassment policy are achieved. * * * All employees must report incidents of harassment. Any employee who believes that he or she is being harassed by a co-worker, supervisor, manager, or other individual at the workplace — whether employed by Spherion or not — or believes that his or her employment is being adversely affected by such conduct, should immediately report such concerns to his or her supervisor, next-level manager, or other manager or the HR department. A human resources representative may be contacted at – Human Resources, c/o Spherion Corporation, 2050 Spectrum Boulevard, Fort Lauderdale, FL 33309, 800- 839-1965, or employeerelations@spherion.com. If a Spherion employee has a complaint about an AAA employee, the Spherion employee is to contact Spherion, not AAA. Spherion has the responsibility to look into the matter. When Ms. Jones first became employed with Spherion, she made a complaint that one of the AAA security guards was rude to her concerning the use of a restroom. April Jaques, who was a Spherion client service supervisor and responsible for staffing and human resources at the AAA call centers, followed up on Ms. Jones’ complaint and learned that Ms. Jones had been using a restroom that was off limits to employees after the building was closed for the night. The security guard had correctly advised Ms. Jones about the use of the restrooms. Ms. Jaques explained to Ms. Jones which restrooms could be used by overnight employees. Ms. Jones claimed that John Sherwood, who was not her supervisor, had discriminated against her based on her gender because he was disrespectful and rude and had accused her of destroying a computer. Her basis for claiming discrimination was that she “didn’t see him talking to men that way.” She also claimed that Mr. Sherwood had retaliated against her because she had complained to management about his being rude and disrespectful. Her testimony was not clear how he retaliated against her. Mr. Sherwood had no control over Ms. Jones’ pay, benefits, or terms and conditions of employment. While Ms. Jones was assigned to AAA, Anthony Hinton was an AAA supervisor. Because Mr. Hinton was employed by AAA, Spherion could not discipline Mr. Hinton. Mr. Hinton has been described as a “by-the-book kind of guy,” who sometimes “rubs people the wrong way.” He expected all employees to follow policy regardless of the employee’s race or gender. There were some complaints about his abrasive management style. Some complaints were made by employees who are not members of a protected class. The evidence does not support Ms. Jones’ assertions that Mr. Hinton was hostile only to African-American women or women of color. In November 2007, AAA required him to attend some anger management sessions with a therapist. He completed the therapy sessions. On September 6, 2007, Ms. Jones sent an e-mail to Mike Fratus, an employee of AAA, complaining about Mr. Hinton. She stated that Mr. Hinton had been rude and hostile to her on her first day of work on the call center floor. She complained that Mr. Hinton had put her on notice because of her footwear,4 but had not said anything to an employee who was sitting nearby and wearing similar footwear. She further added, “[t]he word going around is he is hostile and demeaning to Black women only.” Ms. Jones did not specifically name any other Black women to whom Mr. Hinton was rumored to be hostile and demeaning. Mr. Fratus forwarded the e-mail to April Jaques on September 11, 2007. Ms. Jaques scheduled a time to speak with Ms. Jones regarding her concerns. It was Ms. Jaques’ understanding that AAA would follow-up regarding the complaint against Mr. Hinton because Mr. Hinton was an AAA employee. Mr. Hinton credibly testified that he spoke to Ms. Jones about her inappropriate footwear, but that he did not see any other employee at the time with similar footwear. Mr. Hinton has spoken to non-African-American men and women about their attire. On September 19, 2007, Ms. Jones sent an e-mail to April Jaques. Ms. Jones complained that Mr. Hinton had talked to her about logging in early.5 She denied that she had logged in early and asked that “[n]o action be taken.” She further stated: Again after speaking with you and being counseled on compliance regarding my time I immediately wanted to correct the issue. This is just very disturbing to me especially after sharing with you and Mike how he [Hinton] discriminates with his treatment toward women of color. Ms. Jaques discussed the e-mail with Ms. Jones. Ms. Jones did not give Ms. Jaques any names of women that were being discriminated against by Mr. Hinton. Because Mr. Hinton was an employee of AAA, Ms. Jaques sent a copy of the e-mail to AAA. In October 2007, Jamie Jordan, a dispatcher who was employed by Spherion, complained to Mike Fratus about an incident concerning Ms. Jones that happened on the call center floor. Mr. Jordan had approached Ms. Jones about some information that was missing from a call that had been received requesting a tow truck. Mr. Jordan felt that Ms. Jones was rude and disrespectful to him when he approached her. Mr. Fratus sent an e-mail to Ms. Jaques, outlining Mr. Jordan’s complaint. On October 5, 2007, Ms. Jaques spoke to Ms. Jones about the incident between Ms. Jones and Mr. Jordan. Ms. Jones claimed that Mr. Jordan was rude and harsh to her. During the conversation, Ms. Jones became angry and accused Ms. Jaques of discrimination and harassment. Ms. Jaques attempted to calm Ms. Jones and told Ms. Jones that she would investigate the incident. Ms. Jones gave Ms. Jaques the names of some employees who had witnessed the incident with Mr. Jordan. Ms. Jaques investigated the issue, including talking with other employees who had heard the altercation. Ms. Jaques concluded that both Mr. Jordan and Ms. Jones were to blame for the incident. Based on Ms. Jones’ testimony, as of November 1, 2007, she had filed an employment discrimination complaint against Spherion with the Florida Human Rights Association. The complaint was forwarded to the Equal Employment Opportunity Commission. Ms. Jones filed an amended complaint on December 17, 2007. On November 11, 2007, Ms. Jones sent an e-mail to Simon DeYoung, an employee of AAA, complaining of sexual harassment, verbal abuse, and retaliation. Specifically, she was claiming that there were supervisors and a team leader who were listening to her calls and referring them to the quality assurance section; thus, her calls were not being monitored on a random basis. She also claimed that she had made a recommendation that the Dispatch section make return calls to members for updated information rather than having a CSR get the correct information and that Dispatch was upset with her for making the recommendation. Simon DeYoung forwarded the e-mail to Spherion management. Stacy Futch was Spherion’s on-site client service representative at the AAA site in St. Mary. She met with Ms. Jones on November 11, 2007, concerning Ms. Jones’ e-mail to Mr. DeYoung. Ms. Futch asked Ms. Jones about her claim of sexual harassment, and Ms. Jones said that it had happened months ago and that she had not brought the matter up before because she did not think that the issue would be addressed. Ms. Jones did not go into detail with Ms. Futch about the alleged sexual harassment actions. Ms. Jones felt that Mr. Jordan was sexually harassing her based on some comments that he had made to her. Mr. Jordan was not Ms. Jones’ supervisor. During the first week of Ms. Jones’ employment with Spherion, Mr. Jordan asked her if she would like to go fishing. Mr. Jordan admitted that he had told Ms. Jones that he thought she was beautiful, but that he had never seriously asked her to marry him. Ms. Jones went to Mr. Jordan and asked him to stop making comments to her. Three days later he told her that she looked nice. Ms. Jones testified that in October 2007, Mr. Jordan told her that he was drinking milk and that he was growing. Ms. Jones said she took the comment to mean that his penis was getting larger. Mr. Jordan denied he made any comments about drinking milk. Given Ms. Jones’s conversation to Ms. Futch in which she told Ms. Futch on November 11, 2007, that she had not experienced any sexual harassment for several months, and Ms. Jones’s testimony that after the October 5, 2007, altercation with Mr. Jordan that there had been no further incidents involving him, I find that Ms. Jones’ testimony about the milk to lack credibility. Ms. Jones did not make a complaint to Ms. Jaques about Mr. Jordan’s comments. Ms. Jones claims that her low performance scores were a result of her scores being manipulated by either AAA or Spherion as retaliation for making a complaint of discrimination and harassment. The evidence does not support Ms. Jones’ claim that her scores were manipulated. Ms. Jones had heard that some supervisors were dismissed for manipulating scores, and she concluded that if other scores could be manipulated then her scores must have been manipulated. The rumors that Ms. Jones had heard about supervisors had nothing to do with the manipulation of QA scores and Ms. Jones’ claim of manipulation is based on pure speculation. Ms. Jones claims that two other employees Jessica Robart and Marci Palumbo, who were white females, had low QA scores and were not dismissed for poor performance. Ms. Jones’s claim is unfounded. Ms. Robart had low performance scores for the last two weeks in June 2007 and for the last two weeks in July 2007. Marci Palumbo, referred to as Ricky or Marsha by Ms. Jones, had a low performance score for August 2007. Neither Ms. Robart nor Ms. Palumbo had four consecutive months with low performance scores. At least one non-minority male employee’s employment has been terminated for poor performance relating to QA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Ms. Jones’ Petition for Relief and denying Spherion’s request for attorney’s fees and costs. DONE AND ENTERED this 2nd day of April, 2009 in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 2nd day of April 2009.
The Issue Whether a non-rule policy adopted by the Agency for Health Care Administration that retroactively applies a statute that became effective in May of 2001 constitutes an unpromulgated rule.
Findings Of Fact The Respondent, Agency for Health Care Administration, is the state agency charged with the responsibility of regulating skilled nursing facilities within the State of Florida pursuant to Chapter 400, Florida Statutes. The Petitioner, HHCI Limited Partnership, operates or controls three licensed skilled nursing facilities identified in this record: Harborside Healthcare-Pinebrook, Harborside Healthcare-Sarasota, and Harborside Healthcare- Naples. All of these facilities are subject to the provisions of Chapter 400, Florida Statutes. During the 2001 session the Florida Legislature amended Section 400.121(3), Florida Statutes. Such amendment became effective on May 15, 2001. The amendment provides, in pertinent part: The agency shall revoke or deny a nursing home license if the licensee or controlling interest operates a facility in this state that: Has had two moratoria imposed by final order for substandard quality of care as defined by Title 42, C.F.R., part 483, within any 30-month period; Is conditionally licensed for 180 or more continuous days; Is cited for two class I deficiencies arising from unrelated circumstances during the same survey or investigation; or Is cited for two class I deficiencies arising from separate surveys or investigations within a 30-month period. Since May 15, 2001, the Respondent has not promulgated or enacted any formal rule or written policy statement regarding its interpretation of or the implementation of Section 400.121(3)(d), Florida Statutes (2001). To support its position in this cause, the Respondent relies on the plain and unambiguous language of the statute and maintains it is mandated to comply with the law. Moreover, it maintains the statute does not direct rule-making. On October 2, 2001, the Respondent filed Administrative Complaints against the Petitioner. Each of the facilities identified above was served. As to each complaint the Respondent alleged that Section 400.121(3)(d), Florida Statutes (2001), authorized the proposed action (the revocation of the license to operate). More important, as to each complaint, the Respondent acknowledges that the actions complained of, i.e. the acts constituting the underlying offenses, occurred prior to May 15, 2001. None of the cited facilities has been served with a notice of a class I deficiency that would have occurred subsequent to May 15, 2001. The three license revocation cases were forwarded to the Division of Administrative Hearings for formal proceedings and were assigned DOAH Case Nos. 01-4124, 01-4125, and 01-4126. The allegations in DOAH Case No. 01-4124 against Harborside Healthcare-Pinebrook aver that the facility was cited for class I deficiencies in July and September of 2000. Notwithstanding the foregoing, in February of 2001, the Respondent issued a standard license to that facility. In DOAH Case Nos. 01-4125 and 01-4126, the facilities face administrative action because they are controlled by HHCI Limited Partnership. In framing the allegations against Harborside Healthcare-Sarasota and Harborside Healthcare-Naples, the Respondent relies on the class I deficiencies cited against Harborside Healthcare- Pinebrook set forth above. Following the entry of the Administrative Complaints, the Respondent notified residents of the facilities that actions were pending to revoke the licenses of the facilities. Such notice further advised the residents that the facilities would be closed in approximately 60 days. The Petitioner's attempt to obtain injunctive relief against the Respondent failed.
The Issue Whether the proposed decision of the Department of Health (Department) to award a contract to the Intervenor, Chauncey Group International and Experior Assessments, LLC (Chauncey Group), is contrary to governing statutes, rules, or policies of the Board of Health (Board), or the specifications of RFP-DOH00- 015 (RFP).
Findings Of Fact The Board of Nursing is a state board which regulates the practice of nursing in the state. The Department of Health is the state Department which, among other things, is charged with the provision of general health services to the citizens of the state. ASI is a corporation with headquarters in Bala Cynwyd, Pennsylvania. The Chauncey Group is located in Princeton, New Jersey. Both ASI and the Chauncey Group have experience in administering tests to determine whether applicants may be designated certified nursing assistants. The Board determined that it required the development and administration of its nursing assistant certification program competency examination in accordance with applicable federal and state guidelines for the development of valid, reliable, and legally defensible examinations. It further determined that this could best be accomplished by contracting with a private vendor. The Board designated Dr. Ruth Stiehl as its representative for the preparation of the RFP. The Board employed the services of the Department in the preparation and evaluation of the RFP. Jim Brewer, a purchasing analyst for the Department, was designated administrative lead in the preparation of the RFP. Eunice E. Filar, an employee of the Department, was the person who was in charge of assembling the RFP. Dr. David Paulson, the Department's Manager for Testing Services, was her supervisor. The RFP required written questions to be submitted before March 28, 2001, and set the mandatory pre-proposal conference for April 11, 2001. It provided that additional questions identified at the pre-proposal conference would be answered by email or fax until April 18, 2001. Proposals were due at 2:00 p.m. on May 9, 2001, according to Subsection 2.10 of the RFP, or 2:00 p.m. on May 10, 2001, according to Subsection 2.4 of the RFP, and Jim Brewer. The addendum of April 7, 2001, stated that they were due on May 10, 2001, at 2:00 p.m. That time and date, being the last, is the time and date which is operative. Proposals were to be evaluated beginning May 15, 2001. Evaluation training was on May 23, 2001, and was conducted by Juan Trujillo, a psychometrician with the Department. Evaluation training had originally been scheduled for May 16, 2001, but had to be cancelled because Mr. Trujillo was ill. The proposals were submitted in boxes which were opened by Jim Brewer on May 10, 2001. This was reflected by a document signed by Mr. Brewer and Diane Harper. The proposed services portion was reviewed first. The cost proposal was not opened until on or about May 24, 2001. Section 5 of the RFP provided instructions to prospective offerors. It included such information as to the composition of the title page, required a brief narrative indicating the responder's understanding of the project, addressed mandatory requirements, and addressed other matters. Subsection 5.4, specifically addressed mandatory requirements. The section listed 11 mandatory requirements and recited that the failure to comply with each and every mandatory requirement would render a bid non-responsive and that non- responsive bids would not be evaluated. The requirements included such things as the number of copies of the proposal required to be submitted, whether or not the submission was in the required format, and whether the submission included sample scheduling and administration manuals as provided elsewhere in the RFP. Subsection 5.4.3 was a mandatory requirement which read as follows: "Was the bid accompanied by a surety bond or certified check as specified in 2.12." Subsection 2.12, recited, in part, as follows: "All proposals shall be accompanied by a surety bond or certified check in the amount of ten percent (10%) of the submitted bid price's annual total and conditioned upon successful offeror submitting the specified performance bond within ten (10) calendar days following notice of award, in the form and manner required by the offeror. Failure by an offeror to provide the required bid guarantee in the manner stated, shall cause the proposal to be considered non-responsible [sic] to this solicitation." Department personnel certified mandatory criteria compliance on May 18, 2001. The signatures of Ms. Filar and Dr. Paulson on the form entitled "Part 1: Proposal Mandatory Criteria (amended)" indicated that both responders had met the mandatory requirements. When the proposals were submitted, the business relationship between Chauncey Group International and Experior Assessments, LLC., was in the nature of joint adventurers. Each provided the Department with a cover sheet reflecting that they were separate business entities and each entity signed the mandatory forms required by the RFP but, in fact, they had joined together to provide the service sought. There was no prohibition in the RFP against responses from partners or joint adventurers. In a letter dated May 30, 2001, the Chauncey Group informed Jim Brewer that the ownership structure had changed and that Chauncey Group International had purchased 100 percent of Experior Assessments, LLC. Mr. Brewer testified that he did not view this to be of any consequence and he did not consider this to be a supplemental response to the RFP. The letter did not give the Chauncey Group an advantage over ASI. The check which was provided to the Department for the joint venture was provided only by Experior Assessments, LLC. This was done despite ambiguous and inappropriate email advice from Jim Brewer that, "Yes, vendors responding as partners to our RFP should each submit a bond. The bond could represent each vendor's responsibility or share as long as this is clearly defined in the proposal." The advice from Mr. Brewer was contrary to the requirements of RFP Subsection 2.12. It was also contrary to the RFP because the time for asking questions of the Department, and receiving answers, had expired. However, this did not give the Chauncey Group any advantage and, in fact, the Chauncey Group failed to make the submission as suggested by Mr. Brewer. The check, submitted by Chauncey Group International was in the proper amount, and included funds from both Chauncey Group International and Experior Assessments, LLC. This submission complied with RFP Subsection 2.12 because there was only one proposal from the two entities, despite the submission of two cover sheets. Consequently, the certification by Ms. Filar and Dr. Paulson, that both responders met the mandatory requirements, was correct. Once it was determined that mandatory requirements had been met, then the four other major areas addressed in the RFP could be evaluated. This is provided by Subsection 6.3. These other areas were proposed services, which had a weight of 45.1 percent; reference checks, which had a weight of 9.9 percent; minority vendor participation, which had a weight of 5.1 percent; and cost, which had a weight of 39.9 percent. The proposed services portion of the RFPs was evaluated by Rosemarie Erwin, Cheryl O'Donoghue, Betty Hurley, Raquel Bassett, and Carrie Harris. The evaluators used a form entitled, "Revised RFP Evaluation Criteria-for CAN Services." They were not permitted to see the cost proposals. The proposed services portion of the evaluation could have generated up to 615 points for each proposer. All of the forms used by the proposed service evaluators were dated May 23, 2001. The last proposed service evaluation was turned in on May 31, 2001. The evaluators' background experience and knowledge of the areas and requirements of the RFP were sufficient; the evaluators were qualified, fair, and experienced. The evaluators arrived at varying conclusions, as would be expected. None of the evaluators' scores were arbitrary, capricious, or contrary to the requirements of the RFP. The reference checks were accomplished by Lee Skinner, a psychometrician who was an employee of the Department. The reference checks could have generated as many as 135 points for each proposer. The reference checks resulted in ASI attaining 125.6 points and the Chauncey Group receiving 118.3 points. The minority vendor participation was evaluated by Dr. Paulson, Mr. Brewer, and Ms. Filar on May 25, 2001. Neither the Chauncey Group nor ASI properly completed the minority vendor participation form. No points for minority vendor participation were awarded to either proposer. The minority vendor portion could have generated up to 70 points for each proposer. The cost proposals were evaluated by Dr. Paulson and Ms. Filar on May 25, 2001. The cost proposals could have generated up to 545 points for each proposer. The ASI cost proposal was zero for the line which stated: "5. Per applicant cost for written examination in Spanish (excluding audio tape)." Located by the zero in the space provided were two asterisks which were repeated below the authorized signature line. The sentence following the two asterisks stated as follows: "Please note: Spanish examinations are provided in oralformat [sic] only and include a test booklet." Subsection 3.9.5 of the RFP states, "Administer both a written portion and a skills-demonstration portion of the examination to eligible candidates." Subsection 3.9.5b of the RFP, at the tenth bullet, or "k" if the alphabet is continued after "b," states that the responder must, "Provide a Spanish language examination to a candidate requesting the translated exam. (Currently a Spanish written, oral and skills demonstration examination are provided at no additional cost)." ASI's response in the proposed services portion, at Subsection 4.5.K, which corresponds to Subsection 3.9.5b (tenth bullet) of the RFP, stated as follows: "ASI will continue to provide a written, oral and skills demonstration examination in Spanish when requested in advance by the candidate. A candidate who wants to take examination in Spanish must indicate such on their application and submit the appropriate fee. Under our current contract, ASI answered the State's additional needs by providing bilingual Nurse Aide Evaluators (over 15% of all Florida NAEs speak Spanish), allowing candidates to take the written and skills examinations in Spanish." ASI's response to item 5 in the cost proposal was not responsive because it provided only for oral examinations, and quoted no cost figure. Clearly, what was being solicited was the cost for written examinations. This resulted in the Chauncey Group's receiving ten more points in the cost category than ASI. The cost proposal figures, and the results of all of the other evaluations were put into a computer program by Ms. Filar and Dr. Paulson. The computer program generated the final results. Ms. Filar and Dr. Paulson were not, as previously noted, on the team which evaluated the proposed services. Ms. Filar and Dr. Paulson did not refer to the proposed services portion of ASI's response when addressing the cost proposals and they were not required to do so. Though it is clear what Richard Soule, vice-president of business development for ASI, meant to say in the cost proposal, the response must be evaluated only on what it actually says. On June 4, 2001, Dr. Paulson, by memorandum, forwarded the result of the evaluations to the Board. The memorandum had an attachment entitled "Evaluation of Proposals for RFP #DOH00- 051." The attachment elucidated the evaluation methodology used and provided details as to how the results were obtained. At a public meeting of the Board on June 13, 2001, the memorandum with the attachment was discussed. Ms. Filar was there to answer questions. Questions by board members were posed to Ms. Filar and she responded to them. A motion was made to award the contract as recommended by Dr. Paulson's memorandum with attachment and the motion was passed unanimously. The Board issued a Notice of Intent to award the contract to the Chauncey Group, five days later on June 19, 2001. The attachment considered by the Board reported that the Chauncey Group received a total of 1101.5 points and that ASI received 1060.9 points and asserted that the Chauncey Group was the winner. The point total was incorrect because in arriving at that figure, the attachment reported that the Chauncey Group received 125.6 on the reference checks and that ASI received 118.3. As noted above, it should have reflected that ASI received 125.6 and that the Chauncey Group received 118.3. Correcting this error, by adding 7.3 points to ASI's total, and deducting 7.3 points from the Chauncey Group score, results in final scores of 1094.2 for the Chauncey Group, and 1068.2 for ASI. This error alone would not affect the outcome of the recommendation to award the contract to the Chauncey Group or the Board's decision. However, the span between the scores, 26, is less than the 70 points which might have been awarded for minority vendor participation. As noted above, Dr. Paulson, Mr. Brewer, and Ms. Filar decided not to award points to either responder in the case of minority vendor participation. The standard for obtaining minority vendor participation points was set forth in the RFP as Part IV as the "Minority Vendor Participation Form." This form required the following: "(1) the name of the offeror company; (2) a statement as to whether or not the offeror qualified as a minority vendor; (3) a statement as to whether or not the offeror planned to use a minority business as a subcontractor; (4) the name and address of the subcontractor; and (5) how the minority subcontractor was to be used. In the case of ASI, Part IV, the "Minority Vendor Participation Form," was properly completed except for the question, "How do you plan to use the minority vendor." This question was not answered at all in the Part IV form. Even though Part IV was the only place in the RFP in which minority vendor participation was noted, the form itself is presented as an evaluation tool. There was no requirement that responders complete the form so long as the information was provided. Accordingly, it was of no consequence where the information was reported. ASI responded to the question as to how they would utilize minority vendors in Subsection 4.5.C of their technical response. This response was buried deep in ASI's proposed services response, and its location caused the Department to miss it entirely. Nevertheless, it is responsive and should have been considered for what it was worth. In the case of the Chauncey Group, Part IV, the "Minority Vendor Participation Form," was not provided at all. Instead, a document entitled Minority Business Enterprises was included. It provided the name of the offeror company, the Chauncey Group. The submission failed to note whether the Chauncey Group was or was not a qualifying minority vendor, although the overall context of the submission made it clear that the Chauncey Group was not a qualifying minority vendor. The submission stated that the Chauncey Group, was, "negotiating in good faith with the Minority Business Enterprise vendors listed below, and will select one to use on this contract." This responded to the requirement that the offeror plan to use a minority business as a subcontractor. The names and addresses of the proposed subcontractors were provided. The Chauncey Group met the final requirement by explaining that the minority vendor selected would provide printing and mailing services. As noted above, 70 points were available for minority vendor participation. There were no standards provided in the RFP for awarding points in this category. The efforts of both proposers were so minimal in the area of minority vendor participation that it was not arbitrary for the Department to assign no points in this category. Subsequently, the Department properly informed the Board that neither proposer received any points for minority vendor participation. The error which changed the point totals, involving the reference checks, doe not change the fact that the Chauncey Group received the most points. The Board was correct when it decided to issue a Notice of Intent to award the contract to the Chauncey Group.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the contract be awarded to the Chauncey Group. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 September, 2001. COPIES FURNISHED: Paul R. Ezatoff, Esquire Jeffrey L. Frehn, Esquire Katz, Kutter, Haigler, Alderman, Bryant & Yon, P.A. 106 East College Avenue, 12th Floor Post Office Box 1877 Tallahassee, Florida 32302-1877 Douglas A. Mang, Esquire Wendy R. Wiener, Esquire Mang Law Firm, P.A. 660 East Jefferson Street Tallahassee, Florida 32302 Ruth R. Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Amy Jones, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether Respondent, Gulf Coast Enterprise (GCE), discriminated against Petitioner, Terry R. Douglas, based on his race--African-American--or his disability-- hearing impairment.
Findings Of Fact Petitioner, Terry R. Douglas (Douglas) is an African- American male. He is hard of hearing and uses hearing aids (when he can afford the batteries) and relies upon interpretive sign language when it is available.1/ At all times relevant hereto, Douglas worked as a food line server under the employ of GCE, which is a division of Lakeview Center, Inc., an affiliate of Baptist Health Care. The stated purpose of GCE is "to operate a successful business which will provide meaningful employment to persons with disabilities in accordance with the requirements of the AbilityOne Program." AbilityOne is a program that creates jobs and training opportunities for people who are blind or who have other severe disabilities, empowering them to lead more productive and independent lives. GCE is an equal opportunity employer and does not discriminate on the basis of race, color, national origin, religion, gender, age, marital status, disability, or any other category protected by law. Douglas had been previously employed by GCE in 2010 as a custodian but voluntarily resigned to pursue employment elsewhere. He briefly took a job in the Orlando area, then went to Memphis for about one year. When he returned to Pensacola he took a position with GCE commencing May 9, 2013, in the food service division. He was hired to work the night shift, from 7:00 p.m., until approximately 1:30 a.m. As part of being hired anew by GCE, Douglas filled out an "Employee Self-Identification Form" in order to advise GCE of his status within a protected class. Douglas identified himself as an individual with a disability but stated that there were no accommodations which GCE needed to provide in order to improve his ability to perform his job. When Douglas recommenced employment with GCE in May 2013, he went through employee orientation. He received copies of the Employee Handbook and various written policies addressing issues such as discrimination, harassment, drug-free workplace, etc. He was also provided training on the GCE Code of Conduct and Respect in the Workplace policies. Douglas' job entailed preparing and/or serving food at the cafeteria in Building 3900 at the Pensacola Naval Air Station (NAS). He was by all accounts a good employee, a hard worker, and gained the respect of his supervisor, Prospero Pastoral (called "Mr. Pete" by most employees). In fact, when Mr. Pete was going to take an extended vacation to visit his home in the Philippines, Douglas was selected as one of the individuals to take over some of Mr. Pete's duties in his absence. Douglas got along well with his fellow employees and co-workers. Douglas' supervisors were Mr. Pete and Paul Markham, the assistant building manager of Building 3900. Douglas had a good relationship with Markham when he first started working in food service, but (according to Douglas) they did not get along so well later on. There did not appear to be any overt animosity between the two men during the final hearing. In November 2013, Markham was advised by the kitchen manager that some food items (including several hams) were missing from the kitchen inventory. It was suspected that some night shift employees may have been stealing the food items. Markham was asked to investigate and see if there was any suspicious behavior by any employees. On the evening of November 22, 2013, Markham changed from his work uniform into civilian clothes just prior to midnight. He then drove to a parking lot just behind Building 3900 and sat inside his darkened vehicle. He had driven his wife's car to work that day so that his pickup truck (which employees would recognize) would not alert others to his presence. At around midnight, he saw two employees (Gerry Riddleberger and Andy Bartlett) sitting outside Building 3900 talking. He could see Douglas in the building through the window. A few minutes later, Douglas exited the building carrying a large black garbage bag. Markham got out of his car and walked toward Douglas. As he approached, Markham began to "chat" with Douglas about trivial things. He asked how he was doing; he asked where Ira (another employee) was; he made small talk.2/ Finally, Markham asked Douglas what was in the bag. Douglas responded that "these are tough times" and that "I have to take care of my family." He then opened the bag and showed Markham the contents therein. The bag contained numerous bags of potato chips and snacks, some bananas, packets of coffee creamer, and other small items. Markham asked Douglas to hand over the bag and he did so. He then asked Douglas for his badge and access key. When Douglas handed those over, Markham told him to leave the NAS and he would be hearing from the GCE human resources/employee relations department (HR). Douglas left the base and Markham waited around a while to see if any other employees were carrying suspicious items. Not observing any other suspect behavior, Markham concluded his investigation for that evening. The next day, Markham handed over the bag and Douglas' badges to HR. It was determined by HR that Douglas' attempted theft of the property constituted just cause for termination of his employment with GCE. The HR office notified Douglas of the decision to terminate his employment. Douglas thereafter visited the HR office to ask that the decision be reconsidered. Douglas was told that the process for reconsideration was to submit, in writing, his statement of the reasons and whether there were mitigating factors to be considered. Douglas submitted a four-page request for reconsideration to Kahiapo, director of employee relations, dated December 2, 2013. In the letter, Douglas admitted to the theft but rationalized that other employees were stealing food as well. He said he had seen Markham taking boxes out of storage and putting them in his truck, but did not know what the boxes contained. He said a blonde worker on the food line ate food from the serving line, but had no details about the allegation. He complained that other workers had been caught stealing but had not been terminated from employment. He alleged that a worker (Jeanette) stole a bag of bacon and only got suspended. Markham had no support or independent verification of the allegations. GCE had one of its employee relations specialists, Alan Harbin, review Douglas' reconsideration letter and investigate the allegations found therein. All of the allegations were deemed to be unfounded. There was a worker named Jeanette who had been suspended for eating an egg off the serving line, but this did not comport with Douglas' allegation. When Harbin's findings were reported to HR, Kahiapo notified Douglas via letter dated December 18, 2013, that his request for reconsideration was being denied. The termination of employment letter was not rescinded. The decision by HR was in large part due to the zero tolerance policy against theft adhered to by GCE. The GCE Employee Handbook contains the following: In accordance with the general "at will" nature of employment with GCE, generally, employees may be discharged at any time, and for any reason. * * * An employee may be discharged on a first offense and without prior disciplinary action if the violation so warrants. * * * Conduct that may result in immediate termination of employment includes, but is not limited to: * * * [12] Theft, pilfering, fraud or other forms of dishonesty. It is clear--and Douglas admits--that Douglas was guilty of theft. He attempted to steal a bag of food items from the building in which he worked. During his term of employment, Douglas never made any claim concerning discrimination against him or anyone else due to his race, African-American. He was never mistreated or treated differently than any other employee by his supervisors. Douglas did not have any problem doing his job. His disability, being hard of hearing, did not adversely affect his employment. He never asked for any accommodation to do his job or suggested to anyone that his disability interfered with his ability to perform his duties. There are simply no facts in this case upon which a claim of discrimination could reasonably be based.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, upholding its determination that no cause exists for a finding of discrimination against Petitioner, Terry R. Douglas, by Respondent, Gulf Coast Enterprise. DONE AND ENTERED this 27th day of August, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 27th day of August, 2014.
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2011), by discriminating against Petitioner on the basis of race or sex, and if so, what remedy should be ordered.
Findings Of Fact Apalachee Center is a not-for-profit health center providing mental health and substance abuse services in the Big Bend region of North Florida, which employs over 15 people. One of its facilities is a 16-bed mental health residential facility in Tallahassee, Florida, primarily housing men who suffer from severe mental illness. Ms. Sandra Johnson, an African–American woman and Petitioner in this case, has been a Licensed Practical Nurse (LPN) since 1984. She began working for Respondent in 2009 as the only LPN on duty on “B Shift Days” from 7:00 a.m. to 7:00 p.m. at the Forensic Residential Program. Another LPN, Ana Degg, was a white woman who worked on the “A” shift, and was the lead forensic nurse and Petitioner’s acting supervisor, though she was not actually present during the shift Petitioner worked. Most of the residents in the facility in which Petitioner worked have been found incompetent by the criminal justice system and have been sent to the program by court order. Petitioner maintained their medications, monitored their health, and helped to ensure that they did not leave the facility. At the time she was hired, Petitioner was made aware of Apalachee Center’s policies prohibiting discrimination and had been advised to immediately report any suspected discrimination to the Human Resources Department. Ms. Candy Landry, the Human Resources Officer at Apalachee Center, is proud of Apalachee’s diversity record. Apalachee employs more African-Americans than whites. Ms. Degg had some conflicts with Petitioner immediately after they began working together, but later came to the conclusion that it was just a reflection of Petitioner’s personality. Ms. Degg said that she still continued to receive some staff complaints, mostly about Petitioner’s demeanor. She testified that Petitioner “came off as gruff.” Ms. Degg was very credible. Ms. Degg consulted Ms. Jane Magnan, Registered Nurse (RN) who was the Director of Nursing, and Ms. Jeanne Pope, the Director of Residential Services, as to the best way to handle the situation. Ms. Magnan and Ms. Pope each testified that they advised Ms. Degg to start with basic lines of communication and mentoring on a one-to-one level to see if the problem could be handled before anything went to the written stage. Ms. Degg provided some handouts on interpersonal relations and “soft skills” to Petitioner and her unit and tried to coach Petitioner on how to be a bit more professional in her interactions. Ms. Degg told Petitioner that staff was saying that Petitioner was rude and she asked her to talk to people a little differently. She said Petitioner responded by saying that that was “just the way she was.” Petitioner’s conduct did not change and complaints continued. Ms. Magnan, who had hired Petitioner, believed that Ms. Degg found it difficult to discipline Petitioner. Ms. Magnan also believed there was some resistance from Petitioner in acknowledging Ms. Degg, a fellow LPN, as Petitioner’s supervisor. Petitioner had no “write–ups” from the time of her employment at Apalachee in August or September of 2009 until January of 2011. On January 21, 2011, Petitioner was presented a memorandum dated January 7, 2011, to document a Written Supervisory Session on two incidents. First, the memorandum stated that Petitioner had been counseled for failure to give a report to the oncoming nurse who had arrived late for her shift. Second, it stated that Petitioner had been counseled for being rude and unprofessional in a telephone conversation with the Dietary Supervisor. The memorandum was signed by Petitioner and by Ms. Degg. Ms. Degg testified that in response Petitioner had denied that she had failed to give a report to the oncoming nurse, but that the other staff people had corroborated what the oncoming shift nurse had told her, so she believed it had happened. At hearing, Petitioner continued to deny that she had failed to give a report to the oncoming nurse and denied that she had been rude or unprofessional in her conversation with the Dietary Supervisor. In the months following the January “write-up,” Ms. Degg did not notice any change in Petitioner’s demeanor and continued to receive complaints. She noted that she did not personally consider Petitioner’s behavior to be rude, but others did, and she could understand why. On May 18, 2011, Petitioner was presented a memorandum dated May 10, 2011, to document another Written Supervisory Session. The memorandum indicated that Petitioner had been unprofessional in communications to a Mental Health Assistant (MHA) whom Petitioner supervised. It stated that Petitioner had used phrases such as “shut up” and “get out of my face” to the MHA and that Petitioner had previously been counseled regarding this issue. The Memorandum was signed by Petitioner and by Ms. Magnan and Ms. Pope. Ms. Magnan and Ms. Pope offered Petitioner training and assistance. On the memorandum, Petitioner wrote that she did not agree with the statement and that she was willing to learn. On May 27, 2011, Petitioner’s Employee Performance Evaluation for the period April 23, 2010, through May 15, 2011, was presented to Petitioner. It indicated “Below Performance Expectations” or “Needs Improvement” in several areas, including supervision of MHAs, training of staff, unit management, acceptance of responsibility, and attitude. Hand-written notes by Ms. Magnan and Ms. Dianne VanZorge, the RN supervising the forensic unit, commented on difficulties in communicating with staff, compromised staff morale, and lack of leadership. The report noted that various employees had brought Petitioner’s attitude to the attention of the Program Director and Director of Nursing. The evaluation was signed by Petitioner, Ms. Magnan, and Melany Kearley, the Chief Operations Officer. In conjunction with this unfavorable Employee Performance Evaluation, and in accordance with Apalachee policy, Petitioner was placed on a Corrective Action Plan, a 60-day period of Conditional Probationary Status. The memorandum advising Petitioner of this action explained that Petitioner should immediately take action to maintain a friendly and productive work atmosphere, demonstrate respect and courtesy towards clients and co-workers, and demonstrate initiatives to improve Petitioner’s job and the program. The memorandum advised that any further non-compliance could result in disciplinary action or termination of employment. Petitioner’s supervisor was changed to Ms. VanZorge. Petitioner knew Ms. VanZorge because they had worked together many years earlier. Petitioner was advised in the Corrective Action Plan that Ms. VanZorge would meet with her on a weekly basis to provide any needed assistance. At the time Petitioner was placed on probation, Ms. Magnan testified that Petitioner became angry. Petitioner asked if they wanted her to quit. Ms. Magnan encouraged Petitioner not to quit, telling her that that “we are going to work this out.” Ms. Magnan and Ms. VanZorge testified that they made sure that Petitioner acknowledged that resources and coaching were available to help her. Petitioner testified that leadership, nursing management, and supervisory resources were not subsequently provided to her as promised. On June 29, 2011, Mr. Alphonzo Robinson, an African-American MHA who worked under Petitioner’s supervision, submitted complaints about Petitioner to Ms. VanZorge and Ms. Pope. Ms. VanZorge and Ms. Pope then met with Petitioner regarding these complaints. A memorandum documenting the meeting with Petitioner, prepared the same day, states that an MHA reported that Petitioner had eaten a resident’s lunch. The MHA alleged that the resident had gone out on a morning community pass, asking staff to save his lunch for him until he returned. The memorandum states that when the resident returned, the MHA went to get his lunch for him, only to find Petitioner eating the last of the resident’s food in the staff kitchen. The MHA indicated that Petitioner denied eating the resident’s lunch, saying that it had been thrown away, and directed the MHA to give the resident another patient’s meal instead. Only an empty tray without food was found in the garbage. The MHA noted that another patient’s lunch could not be substituted because the first resident was diabetic and had special dietary needs. The memorandum also indicates that several other complaints were made against Petitioner by the MHA and discussed with her at the meeting. It was alleged that the Petitioner was continually rude to staff, asked residents to run errands for her, left the commode dirty with urine and feces, and used her hands to get ice from the ice machine. The memorandum noted that at the meeting, after an initial denial, Petitioner finally had admitted that she had eaten the resident’s lunch. It also noted that Petitioner had admitted that “a while back” she had asked residents to get Cokes for her, but that now she drank water. The memorandum concluded by noting that the expectations on Petitioner’s Corrective Action Plan had been reviewed, and that it was further discussed that Petitioner was not to eat any resident meals or ask them to perform errands. Petitioner had been instructed to buy a meal ticket or bring her own, clean up after herself, and adhere to infection control policy and universal precautions. At hearing, Ms. VanZorge testified that during the meeting Petitioner admitted having eaten the resident’s lunch, but stated she had not done that for a long while prior to that. Ms. VanZorge stated that Petitioner also admitted she had gotten ice with her hands once. Ms. Pope testified that Petitioner had initially denied eating the resident’s food, but then later during the course of the meeting had admitted that she had eaten it, and also admitted that she had sent residents to run errands for her. MHA Kim Jenkins, a white woman and the second MHA under Petitioner’s supervision, testified that she knew nothing about the allegations that Petitioner ate a resident’s lunch. She testified that the bathroom was a unisex bathroom and that Petitioner did leave it in an unsanitary condition almost every time she used it, although she had been too embarrassed for Petitioner to ever discuss that with Petitioner. Ms. Jenkins said she did try to discuss all of the other recurring issues with Petitioner. She testified that Petitioner was rude on a daily basis. She testified that she had seen Petitioner going through other staff members’ mail and opening it. She testified that Petitioner did get ice with her bare hands on several occasions. On cross-examination, Ms. Jenkins stated that she did not document any of these incidents and could not remember dates on which they occurred. Pressed to provide dates, Ms. Jenkins testified that the only approximate date she could remember was the time that Petitioner sent a client with a staff member to get two hot dogs for Petitioner and the client had ended up paying for the hot dogs. Ms. Jenkins said that she knew this occurred in October because Ms. Jenkins had been assigned to the unit for only about two weeks when it happened. Ms. Jenkins testified that she clearly remembered when this occurred because Ms. Jenkins had been “written up” by Petitioner shortly afterwards for stopping at a McDonald’s drive–through on the way back from a client’s doctor’s appointment to allow the client to buy some ice cream. Ms. Jenkins testimony was very credible. Petitioner testified at hearing that the allegations in the June 29, 2011, letter of Alphonzo Robinson were not true. She testified that she did not eat a patient’s food, never asked patients to buy sodas or candy for her, never left urine and feces on the toilet seat, and that he never caught her sleeping on the job. She testified that it was a public bathroom, and noted that anyone could have left it in that condition. She also stated that someone should wonder, “[W]hy was Alphonzo Robinson in ladies’ bathroom watching toilet seats? Apparently he needs to be monitoring the patient and not the lady bathroom.” Petitioner noted that in all of the allegations against her, “[I]t is their word against mine.” In a memo dated July 1, 2011, to Ms. Kearley, Ms. Pope recommended the termination of Petitioner’s employment with Apalachee Center. Ms. Magnan, Ms. VanZorge, and Ms. Pope were unanimous in this recommendation. On or about July 6, 2011, Ms. Pope accompanied Petitioner to the office of Ms. Candy Landry, the Human Resources Officer, where Petitioner was informed that her employment was terminated. Ms. Landry testified that Petitioner had violated policies of Apalachee and that the disciplinary process and termination of employment with respect to Petitioner had followed standard procedures. Ms. Landry testified that Petitioner’s replacement was also African-American. Petitioner filed a complaint with the Florida Human Relations Commission (Commission), alleging that Apalachee Center had discriminated against her based upon her race and sex on August 15, 2011. Her complaint alleged that non-African- American employees had never been disciplined without reason, as she had been. Her complaint stated an employee had made unwelcome comments that she was “fine,” “sexy” and “beautiful.” On December 20, 2011, Petitioner filed a Petition for Relief, which was referred to the Division of Administrative Hearings. At hearing, Petitioner presented no evidence regarding similarly situated white employees. Petitioner presented no evidence that anyone ever made comments that she was “fine,” “sexy” or “beautiful.” She did testify that she made a note on June 20, 2011, regarding Alphonzo Robinson. Her testimony was as follows: Okay. Ready for Alphonso Robinson. This is what he states, “I’m looking for a wife. Bring your friend down here so I can look at her.” I informed Robinson to sit in day room with client. Let Kim Jenkins come from back there with the men. He states, “I don’t want to deal with the men. When I worked at Florida Hospital, we punish inmate.” I told him we don’t do that here. Social Service case managers do that. Group coordinator recommend –- group coordinators recommend treatment, member, nurse, case manager, and Ms. Pope. Robinson state, “I used to be a man that – that – I used to be a man that a husband was having problem with sex, I took care of his wife.” I stopped talking to him and just restrict everything to work only with Mr. Alphonzo Robinson. I gave this note to Ana Degg. I asked her please to address it with Ms. Pope. I never heard anything else about that. I did my job as I was told. I went by the instructions what the facility asked me to do. Petitioner testified that she prepared the note with this information on June 20, 2011, and gave it to Ms. Degg. This would have been a bit more than one week prior to Mr. Robinson’s complaints about her performance. Under cross-examination, Mr. Robinson denied that he had been sleeping on the job or had made inappropriate sexual remarks. He denied that he made the allegations against Petitioner because he was fearful he would be terminated and was attempting to get Petitioner fired first: Q You said – you made sexual statements, you told me that you had a new lady, that her husband had problems with sex, and you took care of the lady. After that I learned that, to stay out from around you, because I am a married lady. I have been married for 37 years. I don’t endure stuff like that. So after that, then later on you was in the room and you made a sexual comment. You – I said that is inappropriate, that’s not the kind of behavior – we do not come to work for that kind of behavior. * * * Q So Alphonzo – A Yes. Q -- after you made that comment, and then you said those statements, and then after that I approached you and told you that you cannot be sleeping at the desk, and then you decided to make these statements, to go to Dianne, Kim’s friend and all that, so they can get me fired before you get terminated, is that not true? A No, that’s not. Q You had never been sleeping at the desk? A No, I haven’t. There is no evidence that Petitioner mentioned the note or showed it to anyone at the Florida Commission on Human Relations in connection with her complaint of discrimination. She did not provide a copy of the note to the Division of Administrative Hearings or to Respondent prior to hearing. Petitioner testified that she found the note in her papers when she went through them. Ms. Degg was no longer Petitioner’s supervisor on June 20, 2011. Ms. Degg testified that she could not recall Petitioner ever complaining about anyone in the workplace sexually harassing her. Ms. Degg testified that she had received a written complaint about MHA Jenkins, but that she had never received any written complaint about MHA Robinson. Ms. Degg’s testimony that she did not receive the note was credible, and is accepted as true. Ms. VanZorge testified that Petitioner never complained to her about any type of sexual harassment by Mr. Robinson. Ms. Pope testified that Petitioner never complained to her about any sexual harassment. Ms. Candy Landry, the Human Resources Officer, testified that Petitioner never complained to her that she had been subjected to sexual harassment. She further testified that she was never aware of any allegations of sexual harassment of Petitioner from any source. The facts do not support the conclusion that Respondent discriminated against Petitioner on the basis of race or sex.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 10th day of April, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 10th day of April, 2012. COPIES FURNISHED: Sandra Johnson 284 Centerline Road Crawfordville, Florida 32327 Thomas A. Groendyke, Esquire Douberley and Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 tgroendyke@dc-atty.com Chris John Rush, Esquire Rush and Associates 1880 North Congress Avenue, Suite 205 Boynton Beach, Florida 33426 cjrushesq@comcast.net Lawrence F. Kranert, Jr., Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 kranerl@fchr.state.fl.us Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com
The Issue Whether the respective bid protests should be upheld.
Findings Of Fact Section 7(b) of the Wagner-Peyser Act (the Act), 29 U.S.C. Section 49f.(b), is a federal grant source which provides certain funds for the funding of job placement services at the discretion of the Governors of the respective states. Included among such services are job placement services for groups determined by the Governor of Florida, in his discretion, to have special needs within the parameters set forth in the Act. These funds are commonly referred to as "the Governor's Discretionary Funds" or "the 10 percent program". In 1982, Congress passed the Job Training Partnership Act (JTPA), 29 U.S.C. Sections 1501 et seq., which amended the Wagner-Peyser Act so as to provide the 10 percent program referred to above and which also provided for separate JTPA programs. The provisions of 29 U.S.C. Section 1517, require that the "primary consideration" to be given in the procurement of services under JTPA grant programs is to "... be the effectiveness of the agency or organization in delivering comparable or related services based on demonstrated performance " The procurement of services under Wagner-Peyser grants are not governed by the provisions of 29 U.S.C. Section 1517, but are, instead, governed by what is referred to as "the common rule." Circular A-102, informally known as "the common rule", is codified at 29 CFR 97.36(d)(3)(iv), and provides that a state, in the procurement of services under the 10 percent program is to use the same policies and procedures it uses for procurement from non-federal funds. Respondent issued a Request For Proposals (RFP) on January 26, 1990, seeking proposals for projects to be funded through the 10 percent program. Before the deadline for the submission of responses of March 21, 1990, Respondent conducted three RFP workshops and distributed answers to questions raised at the workshops. Adults Mankind Organization submitted two proposals in response to the RFP. The Center for Independent Living in Central Florida, Inc. (CIL) and Goodwill Industries of Central Florida, Inc. (Goodwill Industries) each submitted one proposal in response to the RFP. Key personnel for both CIL and for Goodwill Industries were experienced in responding to the type RFP issued by Respondent. Both CIL and Goodwill Industries had, in prior years, been successful proposers and had successfully managed contracts with Respondent that were funded by the Act. Respondent selected a three person team to review all applications that were filed in response to the RFP. The rating system employed by the team was devised by the State Job Training Coordinating Council and was essentially the same system that had been used to rate applications in the previous program year. The process contemplated that the rankings and recommendations of the three person team was to be submitted to the Job Training Committee, a committee of the State Job Training Coordinating Council. The Job Training Committee would review the work of the three person team during a public meeting and thereafter make its recommendations to the State Job Training Coordinating Council. The State Job Training Coordinating Council would thereafter review the recommendations that had been made to it by the Job Training Committee and make its recommendations to the Governor. All proposals were evaluated and ranked, by the evaluation committee in the order of their respective cumulative scores. The more points a proposal received, the higher its ranking. The top ranked proposal achieved the highest number of points and was ranked number one. Following the first ranking of the applications, the top 31 ranked proposals were recommended for funding. There was insufficient funding for projects ranked lower than 31 and, consequently, no project ranked lower than 31 was recommended for funding. Following the first ranking, none of the proposals submitted by the Petitioners were ranked high enough to merit a recommendation for funding. CIL's project ranked 39. Goodwill Industries' project ranked 47. Adults Mankind's two projects ranked 51 and 53, respectively. The initial ranking of the applicants by the evaluation team was published on April 24, 1990, before the recommendations were submitted to the Job Training Committee. The maximum score an applicant could score for all categories was 100 points. One of the rating categories, worth a total of 10 points, related to the demonstrated capabilities of the proposing organization. In the first rating, each of the proposals submitted by the Petitioners received the maximum score of 10 in this category. However, any newly formed organization, regardless of the qualifications of the key employees of that organization, received no points in this category in the first rating of the proposals. Two days after the publication of the initial evaluation a member of the Florida House of Representatives, asked Director Johnston to visit with him about the RFP process. Ernest Urassa was present at this meeting. Mr. Urassa is a former employee of Respondent who has experience in providing the type services required by the Act. Mr. Urassa formed a new organization and, on behalf of that new organization, submitted proposals in response to the RFP. In the first rating of the proposals, Mr. Urassa's proposals received zero points in the organizational capability category. Mr. Urassa had complained to this Representative and to several of Respondent's employees about the rating of the organizational capability category. During this meeting, this Representative asked Director Johnston to explain the rationale behind the rating of the organizational capability category, but there was no evidence that this Representative was attempting to improperly influence the procurement process. Mr. Johnston thereafter determined that the organizational capability category had not been fairly rated by the evaluation team. He thereafter ordered the evaluation team to rerate that one category and make its recommendations based on the revised rankings. The evaluation committee was told to consider the experience of key individuals in rating the organization's capabilities, but there was no attempt to give one proposer an unfair advantage over another. The evaluation committee rerated all of the proposals and gave all proposers a rating of 10 in the organizational capability category. Following the second rating, the proposals submitted by these Petitioners were again below the cutoff for those projects that would be recommended for funding. CIL's proposal was ranked 44, Goodwill Industries' proposal was ranked 51, and Adults Mankind's proposals were ranked 57 and 58, respectively. No project ranked lower than 36 received a recommendation for funding. The evaluation committee thereafter submitted its rankings and its recommendations to the State Job Training Committee, a committee of the State Job Training Council. The fact that the proposals had been rerated in this one category and the reasons for the rerating were discussed in public meetings before both the State Job Training Committee and the State Job Training Council. The State Job Training Council decided to cut the funding of all projects that were recommended for funding by 25% so that none of the projects that would have been funded following the first rating would be totally excluded from funding after the second rating. This 25% funding cut did not effect any of the Petitioners since their projects were not selected for funding. Petitioners failed to establish that there was any illegality, fraud, oppression or misconduct involved in the preparation of the RFP, in the selection of the evaluation committee, in the instructions given the evaluation committee, or in the work done by the evaluation committee. Mr. Johnston acted within his discretion in reviewing the method by which this category was being evaluated, in determining that the committee was not fairly evaluating the category, and in ordering the committee to rerate the proposers in the way he thought the category should be rated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the bid protests filed by the respective Petitioners in Cases 90-3543BID, 90-3544BID, 90-3545BID and 90-3546BID be dismissed. DONE AND ENTERED this 16th day of August, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASES 9O-3543BID, 9O-3544BID, 90-3545BID and 90-3546BID The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted July 27, 1990 (the proposed recommended order does not specify by whom it was submitted, but it is apparent that it was submitted by one or more of the petitioners): The proposed findings of fact in paragraphs 1-8, 13, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 9-12, 14, 16, 19, 20, and 22-25 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 17 are rejected as being unsubstantiated by the evidence. The proposed finding misconstrues Mr. Johnston's testimony. The proposed findings of fact in paragraph 18 are rejected as being unsubstantiated by the evidence and as being argument. The proposed findings of fact in Paragraphs 21 and 26 are rejected as being unnecessary to the conclusions reached and as being argument. The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted by Respondent: The proposed findings of fact in Paragraphs 1, 3-6, and 10-12 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order, and are rejected in part as being the recitation of testimony. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. COPIES FURNISHED: David J. Bush, Senior Attorney Florida Department of Labor and Employment Security The Montgomery Building Suite 131 2562 Executive Center Circle East Tallahassee, Florida 32399-0657 Sara Bravo Executive Director Adults Mankind Organization, Inc. 1850 S. W. 8th Street, Suite 411 Miami, Florida 33135 Shelton Kemp Chief, Bureau of Job Training Florida Department of Labor and Employment Security Division of Labor Employment and Training The Atkins Building, Suite 300 1320 Executive Center Drive Tallahassee, Florida 32399-0667 Nan Griggs Executive Director Treasure Coast Private Industry Council, Inc. 3405 Northwest Federal Highway Suite 101 Jensen Beach, Florida 34957 Lee Ann Pendergrass Director Center for Independent Living in Central Florida, Inc. 720 North Denning Drive Winter Park, Florida 32789 Cherie Johnson Director of Rehabilitation Development Goodwill Industries of Central Florida, Inc. 6400 S. Orange Avenue Orlando, Florida 32859-0557 Hugo Menendez, Secretary Berkely Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron General Counsel 307 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0658
Findings Of Fact Petitioner, E. J. Strickland Construction, Inc. (Petitioner), submitted to Respondent, Department of Transportation (Department), a bid on State Project No. 75030- 3518. Petitioner's was the lowest bid received by the Department. Petitioner's bid failed to meet the D.B.E. goals on State Project No. 75030-3518. The D.B.E. goal was 12 percent; under Petitioner's bid, only .04 percent of the contract would be performed by economically disadvantaged business enterprises. The only effort Petitioner made to secure bids of certified D.B.E. contractors to incorporate in its bid to the Department was to run a legal advertisement in the Orlando Sentinel on January 18, 19 and 20, 1986. The Department was scheduled to open all bids on January 22, 1986. Petitioner documented only the advertisements and the fact that it incorporated the only response to the advertisements in its bid in an effort to demonstrate good faith effort to meet the D.B.E. goals. 2/ There is no evidence that Petitioner acted with specific discriminatory intent in preparing its bid on State Project No. 75030-3518. Petitioner proved that it acted in this case precisely as it acted in the only other Department job on which it bid. In that case, Petitioner ordered from the Department plans and specifications and was sent plans, specifications and a bid package and was placed on the Department's list of prospective bidders. In accordance with the custom in the industry, the Florida Transportation Builders Association (FTBA) obtained from the Department the list of prospective bidders as of ten days before the bid letting date and distributed the list to its members. In accordance with the custom in the industry, several DBE and WBE contractors contacted Petitioner, verified that Petitioner was bidding on the project and submitted proposals for inclusion in Petitioner's bid. In that way, Petitioner received enough response from certified DBE and WBE contractors to meet the DBE and WBE goals on the job. In this case, in accordance with the Department's normal practice, the Department only sent Petitioner plans and specifications in response to Petitioner's December 30, 1985 request for plans and specifications. Also, since Petitioner did not specifically request a bid package, the Department did not include Petitioner on its list of prospective bidders. For that reason, no FTBA members, including the certified DBE contractor who bid on Petitioner's previous job with the Department, received notice that Petitioner was a prospective bidder on State Project No. 75030-3518. Had Petitioner been included on the FTBA list, Petitioner probably would have received enough response from certified DBE contractors to meet the DBE goals on this job, too. All four of the other bidders on State Project No. 75030-3518 met the DBE goals. One of them relied entirely on the FTBA list to notify prospective certified DBE contractors. One of them -- including the next lowest bidder, Cone Constructors, Inc. -- also sent a written request for a proposal to Pary, Inc., the same certified DBE contractor who previously had contracted with Petitioner on a Department job that was still ongoing. Another of the bidders on State Project No. 75030-3518 telephoned Pary, Inc., and asked for a proposal. Petitioner is not a member of the FTBA and did not inquire whether it was listed as a prospective bidder on the FTBA list. Petitioner did not make any effort to use the Department's DBE directory to directly contact certified DBE contractors concerning the job. Petitioner did not even contact Pary, Inc., to request a bid although Pary, Inc., was working for Petitioner at the time and had not responded to Petitioner concerning State Project No. 75030-3518. Petitioner's small effort to meet the DBE goals on State Project No. 75030-3518 did not rise to the level of good faith efforts. The evidence that Petitioner acted in this case precisely as it acted in the only other Department job on which it bid does not prove that Petitioner made a good faith effort in this case. To the contrary, it proved only that Petitioner was lucky to meet the DBE goals on the prior contract.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Transportation, dismiss the bid protest of Petitioner, E. J. Strickland Construction, Inc., and award the contract in State Project No. 75030-3518 to the lowest responsive bidder, Cone Constructors, Inc. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). However, since the pallets were not an agricultural product produced by Petitioner and were not considered in the price of the bahia sod but were exchanged back and forth between Petitioner and his customer, including Respondent American, they are not considered to be an agricultural product in this case and are excluded from any consideration for payment under Section 604.15-604.30, Florida Statutes. The amount charged Respondent American for these pallets was $1,188.00. At all times pertinent to this proceeding, Respondent American was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 3774 by the Department, and bonded by Respondent Peerless Insurance Company (Peerless) in the sum of $15,000 - Bond No. SK-2 87 38. At all times pertinent to this proceeding, Respondent Peerless was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). During the month of January, 1985 Respondent American purchased numerous pallets of bahia grass sod from Petitioner paying $16.00 per pallet but has refused to pay for 240 pallets at $16.00 per flat for a total amount of $3,840.00 picked up by Respondent American's employees and billed by Petitioner between January 16, 1985 and January 26, 1985. Respondent American did not contest having received 204 pallets of bahia grass sod represented by invoice number. 6774- for 18 pallets on 1/16/85; 6783, 6785, and 6788 for 18 pallets each on 1/17/85; 6791, 6793, 6794, 6795, and 6800 for 16 pallets each on 1/18/85 and 6799 for 18 pallets on 1/18/85, 6831 for 18 pallets on 1/28/85; and 6834 for 16 pallets on 1/30/85 but contested invoice numbers 6835 and 6836 for 18 pallets each on 1/26/85. Gary L. Curtis stipulated at the hearing that Respondent American had received the 36 pallets of bahia grass sod represented by invoice numbers 6835 and 6836 which left only the matter of Respondent American's contention that it was owed credit for 20 pallets of bahia sod received in December, 1984 that was of poor quality and fell apart and had to be replaced because it could not be used. The evidence was insufficient to prove that any of the sod purchased by Respondent American from Petitioner fell apart or was of poor quality and as a result could not he utilized by Respondent American.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein it is RECOMMENDED that Respondent American be ordered to pay to the Petitioner the sum of $3,840.00. It is further RECOMMENDED that if Respondent American fails to timely pay the Petitioner as ordered then Respondent Peerless be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 10th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of March, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Gary L. Curtis, President American Sod Company, Inc. Post Office Box 1370 Longwood, Florida 32750 Mid Florida Sod Company 4141 Canoe Creek Road St. Cloud, Florida 32769 Peerless Insurance Company 611 Aymore Road/Suite 202 Winter Park, Florida 32789 Raymond E. Cramer Esquire Post Office Box 607 St. Cloud, Florida 32769
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. Petitioner, Joyce C. Hallowell, was employed by Respondent as a part- time commission sales associate in the electronics department of Brand Central during the relevant period of time including June 1993. Petitioner worked for Respondent on-and-off for a period of 20 years in various sales positions and both in a full and part-time capacity. Petitioner is an American woman, born: October 14, 1948, who was 44 years of age during the relevant time and a member of a protected class. William Henley became the Store General Manager of the Melbourne, Florida Sears store in May 1993. Accordingly, Henley was, during the relevant time period, the Store General Manager of the Melbourne, Florida Sears store. As Store General Manager, William Henley has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions. Herman Payne became the Brand Central Manager of the Melbourne, Florida Sears store in 1993. Accordingly, Payne was, during the relevant time period, the Brand Central Manager of the Melbourne, Florida Sears store. As Brand Central Manager, Payne supervised all four departments in Brand Central. He has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions for personnel in his department. Payne was 41 years old during the relevant time period. Frances Pagan Cusick is the Human Resources Manager for the Sears Melbourne, Florida store. As Human Resources Manager Cusick has responsibility for, inter alia, administering the hiring, equal-employment, and compensation policies of Sears. Cusick was 43 years old during the relevant time period. Brand Central consists of four departments: computers, electronics, small appliances and home appliances. Sales associates work in each of the four Branch Central Departments. Both full-time and part-time sales associates work in Brand Central. Each of the sales associates in Brand Central are paid on the basis of commissions earned from sales. As a consequence, each sales associate's earnings are dependent on the number of sales made. At the time of Henley's and Payne's arrival at the Melbourne, Florida Sears store in May, 1993 and June, 1993, respectively, the store, including Brand Central, was in need of numerous changes and improvements, including improvements in appearance and presentation. In June, 1993, Henley and Payne initiated a cleanup "campaign" throughout the store, including Brand Central, in an effort to make the store more presentable to the public. As part of the clean-up "campaign" in Brand Central, Payne recruited the assistance of all Brand Central employees. Petitioner was uncooperative and refused or was reluctant to assist in various efforts to improve the appearance of Brand Central. She also complained to management about others in her department and their lack of diligence in the clean-up campaign. Hallowell's attitude problems were a serious concern to the management of the Melbourne, Florida Sears store. The management of the Melbourne, Florida Sears store counselled her and documented Petitioner's attitude problems. In June, 1993, a need arose for additional part-time help within the appliance department of Brand Central. A transfer from one section of Brand Central to another is not considered a promotion; rather, it is simply a transfer from one department to another. Henley and Payne ultimately decided who would be transferred to the appliance department of Brand Central. The criteria utilized by Respondent in determining who would be transferred to the appliance department included: (i) satisfactory job performance; (ii) satisfactory customer service; and (iii) a positive attitude. Given the nature of Respondent's business, it is important for Respondent's employees to maintain satisfactory job performance, customer service, and to exhibit a positive attitude. The criteria utilized by Respondent in determining who would be transferred to the appliance department were essential to building a highly motivated team of sales associates. Seniority was not a factor utilized by Respondent in determining who would be transferred to the appliance department. Age was not a factor utilized by Respondent in determining who would be transferred to the appliance department. In June 1993, Petitioner expressed to Herman Payne a desire to transfer from the electronics department to the appliance department of Brand Central. Three individuals were considered for the available, part-time position in the appliance department of Brand Central, to wit: Barbara Gehrlein, Terry Giordano and Petitioner. The transfer which Petitioner sought to the appliance department of Brand Central was not a promotion. However, Petitioner felt that she could earn a higher commission in that department over time. Barbara Gehrlein, who was over fifty at the time, elected not to be considered for the transfer to the appliance department of Brand Central because she was not interested in a part-time position. Gehrlein's preference was to remain in a full-time position. Terry Giordana, who was under forty years of age at the time, was selected for the transfer to the appliance department of Brand Central. Henley and Payne decided that she exhibited a positive attitude and satisfied the other qualification criteria utilized by Respondent. Petitioner was not chosen for the part-time position in the appliance department of Brand Central because of the poor attitude she exhibited during the clean-up campaign. After the selection of Terry Giordano for the part-time position in the appliance department of Brand Central, Petitioner continued to exhibit a poor attitude. Prior to the selection by Respondent of the individual to be transferred to the appliance department of Brand Central, Petitioner admitted to her supervisor, that she had been uncooperative and that she had a "chip on her shoulder." Respondent maintains an Affirmative Action Policy. Sears' Affirmative Action Policy provides, inter alia, that: Sears is proud to reaffirm its commitment of the principles of equal employment opportunity and affirmative action. It is our policy to provide equal employment opportunity in all areas of our employment practices and to assure that there will be no discrimination against any associate or applicant on the grounds of race, color, religion, sex, age, national origin, ancestry/ethnicity, citizenship, sexual orien- tation, disability, veteran status, marital status, or any other reason prohibited by law. This policy extends to all of the Sears employment practices including recruitment and hiring, job assignments, education and development, promotions, compensation and benefits, use of company facilities, and all other privileges, terms, conditions of employment. It is further the goal of Sears to provide an atmosphere where all our associates can grow and optimize their performance in an environment free of intimidation and harassment of any form. No direct evidence exists supporting Petitioner's contention that she was denied a "promotion" because of her age. Respondent did not fail to "promote" Petitioner. Respondent did not fail to "promote" Petitioner because of her age and Respondent did not discriminate against Petitioner on the basis of her age. With respect to targeted earnings, studies showed that an employee in the appliance department would earn less than an employee in the electronics department, given certain assumptions. Assuming a total store sales volume of $3 million, it is expected that an employee in the appliance department would earn $10.38 per hour, while an employee in the electronics department would receive $10.43 per hour. With respect to targeted earnings, studies showed that an employee in the appliance department would earn slightly more than an employee in the electronics department, given certain other assumptions. Assuming a total store sales volume of $3-6 million, it is expected that an employee in the electronic's department would earn $11.50 per hour, while an employee in the appliance department would receive $11.67 per hour. During the relevant time period, of the 13 individuals who worked in the appliance department of Brand Central, eight of them (or 61.5 percent) were at least 40 years old. During the relevant time period, of the 23 individuals who worked in all of Brand Central, 13 of them (or 56.5 percent) were at least 40 years old. During the relevant time period, of the 20 sales associates who were promoted at the Melbourne, Florida Sears store, five of them (or 25 percent) were at least 40 years old. During the relevant time period, of the 213 sales associates who were working at the Melbourne, Florida Sears store, 85 of them (or 39.9 percent) were at least 40 years old.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 22nd day of November, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3 (in part), 4, 5, 6 (in part), 7, 8, 9 (in part), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, and 53. Rejected as irrelevant, immaterial or subsumed: paragraphs 3 (in part), 6 (in part), 9 (in part), 31, 32, and 41. COPIES FURNISHED: Joyce C. Hallowell 1498 Beche Street, S.E. Palm Bay, Florida 32909 Carlos J. Burruezo, Esquire 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent is guilty of unlawful employment practices; to wit: disparate treatment due to Petitioner's race (Hispanic) and/or retaliation.
Findings Of Fact Petitioner is an Hispanic female. At all times material, Petitioner was employed as a Registered Nurse, Nursing Supervisor, by Respondent. Respondent is a rehabilitative nursing facility in Gainesville, Florida, which qualifies as an "employer" under Chapter 760, Florida Statutes. Since the situations complained-of by Petitioner occurred, Petitioner has continued to be employed by Respondent with no breaks in service, no decreases in pay, no change in benefits, and no demotions in rank. At all times material, Respondent has employed Caucasians, Hispanics, African-Americans, and persons of Indian sub-continent descent. Petitioner signed on March 23, 2007, and on April 5, 2007, filed a Charge of Discrimination with FCHR. The Charge alleged that the Employer Respondent had perpetrated an unlawful employment practice upon Petitioner due to her race (Hispanic) and in retaliation. On July 25, 2007, FCHR entered and served a Determination: No Cause. On August 27, 2007, Petitioner timely filed a Petition for Relief. However, her Petition for Relief only alleged discrimination on the basis of retaliation. The retaliation named was that "my evaluation would be done in a group because of a meeting with Mr. Hamilton and Mr. Hawkins." There are no references whatsoever to race or national origin within the Petition for Relief. The Petition does not specifically allege pattern, or on-going discrimination. It does not specifically allege harassment or hostile work place. It suggests only that Petitioner feels that she does not get respect and is "attacked without evidence." Via her Petition, Petitioner seeks the remedy of ". . . that they [the employer] pay for all my therapies and medication and pay for the meetings I attended.” Early on September 5, 2006, Petitioner was standing in line to punch-in on her timecard at Respondent’s facility. Barbara Washington, an African-American CNA, was standing directly behind her. Petitioner shielded her social security number from Ms. Washington’s gaze. Later the same day, Petitioner was rolling a medicine cart down the hallway in Unit Two of Respondent's facility. Ms. Washington was taking a dinner break, seated in a position near the nursing station, which permitted her to view the patients assigned to her. Unfortunately, Ms. Washington's position did not permit Petitioner and the medicine cart to pass. Petitioner requested that Ms. Washington move, so as to let Petitioner and the medicine cart pass. Ms. Washington spoke sharply to Petitioner, either because Petitioner asked her to get out of the way of the medicine cart or for reasons of Ms. Washington's own related to the morning punch-in. During a later investigation by Director of Nursing (DON) Lisa Woods Streer, several versions of what Ms. Washington actually said were elicited. However, the best and most credible evidence on this particular point is Petitioner’s testimony that Ms. Washington loudly used profanity (“the F word”) directly to Petitioner. There is, however, no evidence that, whatever the exchange entailed, any patient was disturbed, upset, or even aware of the exchange, and there is no evidence that the statements from Ms. Washington had anything to do with Petitioner’s Hispanic origin or any type of employer “retaliation.” At least three hours later on September 5, 2006, after Ms. Washington had gone off-shift and was standing outside the facility waiting for a ride home, Petitioner handed Ms. Washington a disciplinary form, known as “a counseling slip.” At that point, Ms. Washington refused to sign the counseling slip and, screaming loudly, denunciated Petitioner with additional profanity similar to her earlier verbal abuse. This language was overheard by Yadira Chavala, who was inside the building making out reports. Ms. Chavala stood up and looked out the window so as to determine who was yelling the profanity. Ms. Chavala considered the volume and content of Ms. Washington's comments to be unprofessional and unacceptable, but she did not take it upon herself to report the incident to the DON, who was not present in the facility at that time of the evening. Again, there is no evidence that Ms. Washington was attacking Petitioner’s ethnicity or acting on behalf of the employer in her screams at Petitioner. Petitioner, however, reported to the DON both incidents of loud profanity and insubordination from Ms. Washington towards Petitioner, via a copy of the counseling slip she had given to Ms. Washington and a note slipped under the DON’s door. DON Lisa Woods Streer, found these items when she came on duty the next morning, September 6, 2006. Pursuant to Respondent’s protocol, Ms. Streer asked Unit Director Karen Derrico to take written statements from staff, concerning the med-cart incident which had occasioned the counseling slip from Petitioner. The general tone of the feedback that Ms. Derrico got was that everyone in the facility had heard about the medicine cart incident, but there were no clear and reliable eye witnesses. Ms. Washington did not immediately own-up to her conduct and told DON Streer that Petitioner had made Ms. Washington feel like a thief by covering Petitioner’s social security number when they punched-in together the morning of September 5, 2006. The DON viewed this comment by Ms. Washington as a counter-accusation of some kind (possibly a complaint of discrimination) against Petitioner, and so the investigation continued. At some point, Ms. Chavala came forward to describe what she had heard from inside the building when Ms. Washington was cursing in the patio/parking area. Petitioner did not like the taking of statements and considered the process to be an attack on herself. She also did not like the fact that she was called in for a meeting on September 13, 2006, but was informed after she had arrived that the meeting had been put off to the next day. By September 13, 2006, the decision to discipline Ms. Washington had been made, because by that time Ms. Chavala had come forward concerning the second incident, but because the DON felt that Petitioner “had backed Ms. Washington into a corner” Petitioner required some counseling. Upset that a meeting was to take place the next day, Petitioner telephoned Mr. McKalvane of Respondent’s Human Resources Department in Pensacola, to complain about how the September 5, 2006, situation was being handled. Petitioner testified, without corroboration, that Mr. McKalvane told her that he could not talk to her before the next day’s meeting, but would attend the meeting by speaker phone. On Thursday, September 14, 2006, a two-hour meeting was held at the facility. DON Streer; Administrator George C. Hamilton; Unit Director Derrico; Ruthie Moore, the facility’s Staff Development Coordinator; and Petitioner were present. Streer, Hamilton, and Derrico are Caucasians. Moore is African- American. Mr. McKalvane's race/national origin is not of record, but he did not appear at the meeting, even by telephone. Petitioner felt betrayed because Mr. McKalvane did not attend the September 14, 2006, meeting by telephone. At the September 14, 2006, meeting, Ms. Moore suggested that if Petitioner had known that Ms. Washington was upset, it might have been wise for Petitioner to wait until the next day to hand Ms. Washington her counseling slip. Petitioner was offended by this comment because she believed her delay of three hours after the medicine cart incident before issuing the counseling slip had been sufficient. At the September 14, 2006, meeting, DON Streer suggested that Petitioner might want to get with Ms. Moore for some in-service instruction on how to be a better supervisor. Petitioner was offended by this suggestion, because Petitioner perceived no fault in her handling of Ms. Washington. At no time has Petitioner ever been required by the employer to take supervisory in-service training as a result of the September 5-14, 2006, events. In fact, Petitioner has not taken such training or any similar one-on-one training or in- servicing with the employer, and she has not been penalized for not doing so. As a result of Petitioner’s counseling slip concerning the September 5, 2006, incidents with Ms. Washington, Ms. Washington was suspended from work for one day without pay, but Petitioner was not disciplined in any way concerning Ms. Washington’s accusations. Petitioner suffered no discipline or loss in pay, position, or benefits as a result of the September 5, 2006, or September 14, 2006, events. Petitioner submitted that the employer’s punishment of Ms. Washington was somehow discriminatory against Petitioner because it took management nine days to come to the one-day suspension of the person that Petitioner wanted to be disciplined. However, the only comparator that Petitioner was able to offer was a situation which occurred a year later, in 2007. On that occasion, an oral confrontation occurred between an African-American female worker and a Caucasian female supervisor. There is no specific evidence concerning how similar the 2007 incident was to any of the September 5, 2007, incidents involving Ms. Washington and Petitioner. However, in the 2007 incident, the African-American female immediately admitted wrong-doing, and the very next day, the employer suspended her for one day without pay, just as the employer had suspended Ms. Washington for one day without pay in 2006, in response to Petitioner's counseling slip. Ms. Streer testified credibly that in 2007, the investigation and counseling period was shortened by the subordinate’s immediate admission of wrong-doing and lack of accusations against her reporting supervisor. Approximately September 20, 2006, Petitioner sent a 19- page, typewritten letter of complaint to Respondent’s corporate headquarters. The scope of this letter is not clear because it is not in evidence. Petitioner was supposed to be evaluated annually each September, but she did not receive her evaluation in September 2006. She reminded the DON in November 2006, that she had not yet been evaluated. Shortly thereafter, Petitioner received her annual evaluation which bears a date of October 5, 2006, signed on October 22, 2006, by Weekend Nursing Supervisor Sneha Rema, R.N. Supervisor, and signed-off on by DON Sterer on October 31, 2006.1/ Ms. Rema received no input for her 2006 evaluation from the DON or Administrator. By observation, Ms. Rema appears to be a member of one of the ethnic groups originating on the Indian sub-continent. She rated Petitioner as "exceptional" in categories "work quality," "work quantity/productivity," and "compliance & adherence to policies," and as "meets expectations" in categories "core values" and "leadership skills." Under the 2006, evaluation's heading, "Areas of Improvement, Developmental and/or Upcoming Objectives," Ms. Rema put this comment about Petitioner: May improve her leadership skills by attending seminars on interpersonal relationship and how to influence others to accomplish goals in constructive way and team building from a constructive point-of- view. Ms. Rema approaches evaluations with the belief that each employee has different levels of education and skills, should be encouraged to constantly improve, and can best improve if supervisors point out to the employee performance areas susceptible of improvement by the employee. This viewpoint was Ms. Rema’s sole motivation in making the foregoing comment. Ms. Rema views these types of comments as a way of pointing out goals, not failures. Contrariwise, Petitioner holds the personal belief that unless every single nurse received identical language on the foregoing part of his or her respective annual evaluation, regardless of that employee’s individual circumstances and regardless of who wrote the evaluation, then Petitioner has suffered a personal attack and discriminatory treatment by the employer. There is no evidence that the 2006, evaluation caused Petitioner any loss of pay, position, benefits, or hours. In fact, she received a raise. If the raise was delayed by one month, that information does not appear in the record. At some point between September 20, 2006, which was the date of Petitioner’s letter, and the end of November 2006, (the exact date is not of record), Mr. Ken Hawkins, a consultant of Respondent’s corporate personnel office in Tampa, journeyed to the facility and met with Petitioner to try to resolve her concerns. Mr. Hawkins race/national origin is not of record. The meeting was more acrimonious than harmonious and ended with Mr. Hawkins advising Petitioner that her concerns “were history” and he was not going to go over everything that had already been addressed. Petitioner was offended by Mr. Hawkins’ description of the events that concerned her as “history”; because she felt he yelled at her; and because she felt he had made her come to the facility for a live meeting when he could have just told her “no” over the phone. The two-hour September 14, 2006, counseling meeting and the brief meeting sometime after September 20, 2006, during which Mr. Hawkins told Petitioner he was not going to go over her concerns again are the meetings for which Petitioner feels Respondent employer should pay her. Sometime after her meeting with Mr. Hawkins, Petitioner filed a discrimination complaint with the City of Gainesville Office of Equal Opportunity. The date of this complaint is uncertain. However, it had to precede March 9, 2007, because on that date, in response to the city action, and in accord with Respondent’s Human Resources Office’s instructions, Administrator Hamilton wrote Petitioner and provided her with the Respondent’s 1-800 telephone number to report discrimination. Respondent has an anti-discrimination policy and also posts the 1-800 number in its facilities. Petitioner also filed an EEOC discrimination complaint, and the underlying discrimination complaint herein was filed with FCHR on April 5, 2007. Because her FCHR complaint was signed on March 23, 2007, the undersigned takes it that the EEOC complaint was filed at approximately that time. Petitioner has complained that, as a result of her September 20, 2006, letter to corporate headquarters, she was told, either by Ms. Streer or by Mr. Hawkins that she must be evaluated “in a group.” Her testimony on this issue as to who told her this vacillated, and the group rating was not confirmed by any other witness nor by the signatures on the 2006 and 2007 evaluations in evidence. Although Ms. Streer signs-off as the next level of management on evaluations, that action hardly constitutes "group rating." The evidence as a whole provides the overall sense that Petitioner has been, in the vernacular, “prickly” about what she perceives as situations of disparate treatment, none of which were supported by credible evidence in the instant case, and that as a result of Petitioner’s heightened sensitivity, none of Petitioner's on-site superiors want to expose themselves to old or new accusations by her, but the greater weight of the credible evidence is that in 2007, Theresa Volk, Unit Manager of Station One, supervised Petitioner for only two days per week, so Ms. Volk believed that Petitioner's supervisor for the remainder of the week should have input to Petitioner's 2007 evaluation. Ms. Volk’s name and that of Ms. Rema appear on the first page of Petitioner’s 2007 evaluation, but only Ms. Volk signed as her “evaluator” on October 9, 2007. In that 2007, evaluation, Ms. Volk rated Petitioner “exceptional” in “work quality” and “work quantity/productivity,” and “meets expectations" in “customer service,” “compliance & adherence to policies,” “core values,” and “leadership skills.” Under “areas for improvement,” she made a comment about wound care documentation intended for Petitioner’s improvement. After receiving her September 2007, evaluation, which had been signed by Ms. Volk on October 9, 2007, Petitioner suffered no loss in pay, position, or benefits, and, once again, received her annual raise. Petitioner testified that she got her 2007 raise “late” but did not quantify how late. Petitioner wrote Ms. Volk a letter treating Ms. Volk’s evaluation comment for improvement as a criticism related to a particular past incident, and was offended when Ms. Volk refused to stop the work she was doing to read Petitioner’s letter. Respondent has a policy which requires employees to request personal paid time-off 30 days in advance. Petitioner testified that under this system, she properly requested time off for October 20, 2007, and November 3, 2007, but that shortly before those dates, Ms. Streer told her she could have only one date or the other, but if Petitioner wanted to take off both days, Petitioner had to get a replacement for one day. While this much of Petitioner’s testimony is unrefuted, Petitioner was not persuasive that she ever got written approval of the dates, and she did not establish any connection between the denial of two days' leave and either her Hispanic heritage or as retaliation for her prior letter to corporate headquarters or as retaliation for any of her discrimination complaints in March or April 2007. Petitioner presented no evidence that she lost pay, position, promotion or benefits at any time, on the basis of retaliation or her Hispanic heritage. Petitioner testified that she had to go into therapy and pay for medications as a result of the stress that the foregoing incidents have caused her. She presented no corroborative medical testimony or evidence of any professional diagnosis and further presented no medical or pharmaceutical bills to establish any damages therefor.
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 Complaint of Discrimination and the Petition for Relief. DONE AND ENTERED this 30th day of May, 2008, 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 30th day of May, 2007.
