The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was not re-employed as a "mechanic-carpenter" by the Respondent school board based upon the Petitioner's age.
Findings Of Fact James W. Jones was employed from 1983 to 1993, as a mechanic-carpenter by the school board. In early 1993 he traveled to the Bicentennial Youth Park (BYP) to deliver supplies from his shop to Mr. Evans, the teacher assigned to the BYP. At that time Mr. Evans informed Jones of an upcoming opening at the BYP for a carpenters position and asked him if he would be interested in filling the position. The Petitioner replied that he would be interested. The position in question was posted and advertised as two part-time carpenter positions. Mr. Jones did not wish a part-time position and eventually the administration of BYP gained authorization and funding for a temporary, full-time position at the BYP. Mr. Jones, had been trying to leave the facilities maintenance department because of personality conflicts with his supervisor, Buel Lee. He consequently accepted the temporary, full-time position at the BYP on April 23, 1993. Prior to accepting the temporary position at BYP, the Petitioner was informed by Mr. Al Evans, Billy Wiesneski, and Terry Ellis that the position was temporary and would only last as long as funding for the position was available. In fact, Mr. Jones signed a letter, dated May 3, 1993, confirming his understanding that the position at BYP was temporary and that its duration was dependent upon the duration of funding allocated by the school board. He signed that letter in the presence of Mr. Ellis and Mr. Lee on May 4, 1993.1 Additionally, Mr. Jones admits that he signed a Notice of Personnel Action form on April 23, 1993, describing the job as temporary from April 23, 1993, to June 30, 1993, and stating that "annual re-appointment will be based on availability of project funds. . .". Mr. Jones also told a co-worker, John Driggers, that he knew the position could end in a year but that he was going to take the position anyway because by that time he would have the 10 years of service required to be vested in the pension plan. Mr. Driggers was also aware that Mr. Jones wished to transfer out of the facilities maintenance department at that time. In summary, although Mr. Jones denies that he knew the position was temporary, that is not the case, as shown by the preponderant evidence discussed in the Respondent's Proposed Findings of Fact on this subject matter. In any event, the only issue properly before the Division and the undersigned Judge, is whether Jones was not hired into a mechanic-carpenter position in the facilities maintenance department at a later date because of his age. His knowledge regarding the temporary nature of the position at the BYP is wholly irrelevant to a decision in this case because of the issues pled and noticed to the opposing party in the Petition. In any event, after voluntarily accepting that position he knew to be temporary, the funding finally ran out on March 31, 1994.2 Because funding no longer existed to support the carpenter position at BYP, the Petitioner was not re-appointed to that position and therefore his employment with the Volusia County School Board ended on March 31, 1994. Subsequently, on May 20, 1994, a mechanic-carpenter position became available in a the facilities maintenance department under the supervision of Buel Lee, for whom Jones had worked prior to taking the position at BYP. The Petitioner applied for that position. He was interviewed by Mr. Lee and considered for employment as a new applicant who had never before worked for the Respondent, as opposed to a laid-off employee under the applicable collective bargaining agreement arrangement concerning re-hire of laid-off personnel. The Petitioner was not entitled to preference in hiring normally given to laid-off employees because he had not been "laid-off." The lay-off provision in the collective bargaining agreement defines "lay-off" as "the separation of employee for lack of work or funds without any fault or delinquency on the employee's part." The lay-off provision applies only to employees who have been given an appointment for a definite duration and the funding for the position is cut by the government before the appointment naturally expires by its own terms. Since Jones was simply not re-appointed upon the natural expiration of his appointment, the lay-off provisions would not be applicable to his situation. Jones was not entitled to nor was he given preference over other applicants for the 1994 mechanic-carpenter position based on seniority because he was not the most senior applicant for the position. In fact, under the terms of the collective bargaining agreement, he lost all seniority when he terminated from employment or was not re-appointed on March 31, 1994. Therefore, when he applied for the mechanic-carpenter position 1994, he as not entitled to any more consideration than is given to a new applicant. When he applied for that position in 1994, Mr. Lee, the hiring supervisor, interviewed all applicants and made the ultimate decision to hire Walter "Ed" Hayman for the position, instead of the Petitioner. Mr. Lee interviewed every applicant for that position. He treated Jones as a new applicant rather than a laid-off or senior employee, consistent with the provisions of the collective bargaining agreement. On the other hand, Mr. Lee was required by the collective bargaining agreement to give Hayman preference over Jones since Hayman had worked for the Respondent on an uninterrupted basis since 1991. Lee had received a letter of reference from a Mr. Frye, an independent contractor and Hayman's previous employer, indicating that Hayman had worked as a journeyman for 5 years. Mr. Lee thus believed that Hayman met the qualifications for the job. Lee felt that both Hayman and Jones were skilled in carpentry and did not make his decision based upon his judgment of their respective skills in their profession. Rather, Mr. Lee made a determination that Hayman was the best qualified for the position based on his knowledge of how each of them got along with others in the work place. Mr. Lee knew, and Jones admits, that during the time that he previously worked for Lee, Gary Gallencamp requested that he not have to work beside Jones any longer. Jones admits that in fact he had a lot to do with the reasons Gallencamp did not want to work with him anymore. Lee also knew, and Jones admits, that during the time that he previously worked for Lee, another employee, Ed Owensby, requested that he not have to work with Jones any longer. In fact, he stated that he would be forced to quit if he were required to continue working with Jones. Finally, Mr. Lee called Mr. Evans, Mr. Jones' most recent supervisor, to ask him for a reference regarding Jones' performance at the BYP. Mr. Evans told Mr. Lee that Jones had trouble getting along with the maintenance man, Earl Green, when working at the BYP. Even Jones admits that he had problems with Mr. Green's work. Contrarily, Mr. Lee had observed Hayman getting along well with the co-workers during the time he performed work in conjunction with the facilities maintenance department when he was working for the Respondent as a "grounds man." Therefore, based upon personal experience and the information he received from others, Mr. Lee made the decision to hire Mr. Hayman instead of Mr. Jones. Lee never even considered the ages of Hayman or Jones when making that hiring decision. In fact, Lee himself was approximately 48 or 50 years old when he hired Hayman. Lee does not have a history of hiring younger workers. In fact, the very person Lee hired to replace Jones, when Jones transferred to the BYP, was Mr. Fred Jacobs, who was then aged 57. The only three applicants hired by Lee after Jones transferred to the BYP and before Hayman was hired, were approximately 40 years old. During that time frame, Lee hired Eric Hoffman, who was 43 or 44 years old. Jeff Straker was in his late thirties or forties, and Fred Jacobs was 57. Thus, in their totality, Mr. Lee's hiring practices do not reflect any-age related bias. In addition, neither the Respondent's pay plan, nor its pension plan, set forth in the collective bargaining agreement, are related to age. The Respondent's pay ranges are based upon job classification (i.e., mechanic-carpenter) and years of service. Upon being separated from his employment, Jones was being paid at a level commensurate with 11 years of service. Had he begun his employment with the school board immediately upon completion of his vocational training, he would have been 34 or 35 years old and earned the same salary he was making in March 1994, when he was separated from employment. Likewise the pension plan provides that every employee, regardless of age, vests after having provided 10 years of service.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That for all of the foregoing reasons, the Petitioner has not established that the school board discriminated against him because of his age in making the subject re-hiring decision. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR"), and if so, what relief should Petitioner be granted.
Findings Of Fact Respondent is a hospital located in Fort Lauderdale, Florida. Petitioner was employed by Respondent as a registered dietician in the Nutrition Services Department from February 1991 until her termination on October 24, 2011. Petitioner was 50 years old when she was hired by Respondent. In January 1999, Mindy McClure (age 61 as of the date of the hearing) was hired by Respondent as the assistant director of Nutritional Services. From January 1999 until October 24, 2011, Ms. McClure supervised Petitioner. As a registered dietician, Petitioner's job duties required her to: (1) evaluate and assess hospital patients' nutritional needs; (2) formulate nutrition care plans according to nutritional assessments and standards of care; (3) assess the effects of nutrition intervention; (4) educate and counsel patients requiring nutrition intervention; (5) evaluate services and care provided to identify opportunities for improvement; and (6) communicate pertinent information to appropriate individuals. Petitioner's job performance was satisfactory during much of her employment with Respondent. However, in early 2011, Petitioner's job performance significantly deteriorated. Each patient's nutritional assessment is communicated to Respondent's health care team, which includes other dieticians, via the patient's chart. Providing complete and accurate information in a patient's chart and following a doctor's order is critical to the duties of a dietician and to formulating a proper nutritional care plan for the patient. On June 30, 2011, Petitioner received a Notice of Disciplinary Action in the form of an oral warning for failing to meet her job standards. This warning was given to Petitioner because she failed to provide complete information in a patient chart, and she failed to order any recommended tube feedings pursuant to a doctor's order. Petitioner was directed to complete assessments and make recommendations according to established protocols and procedures so that any dietician can easily discern a patient's needs. Petitioner was also warned that failure to do so will result in continued disciplinary action. On July 17, 2011, Petitioner received her annual performance evaluation. She received an overall rating of "Partially Meets Standards." Accordingly, Petitioner was placed on a three-month work improvement plan from July 25, 2011, to October 24, 2011. The improvement plan required Petitioner to improve her: (1) organizational skills; (2) timeliness when starting her shift; (3) promptness in clocking in and out of her shift; (4) tracking and communication with patients and patient information; and (5) computer skills. Petitioner was also required to keep a notebook where she maintained patient information. Petitioner and Ms. McClure met on a weekly or bi- weekly basis to monitor Petitioner's progress and ensure she was documenting patient information correctly. On August 2, 2011, Petitioner received a written warning because she lost patient information, specifically a tube feeding card and calorie count sheet. On August 24, 2011, Petitioner received a final written warning because she failed to monitor her e-mail messages and had continued inaccuracies in her patient charting. Because Petitioner's job performance did not significantly improve after she was given the work improvement plan, her employment with Respondent was terminated on October 24, 2011. Ms. McClure made the decision to terminate Petitioner. Dawn Outcalt, Respondent's executive director of Nutritional Services, and Rachel Thompson, Respondent's associate relations coordinator, also participated in the decision. Respondent has policies and procedures in place regarding complaints of discrimination. At no time prior to her termination did Petitioner complain to Respondent that she was discriminated against because of her age. Following Petitioner's termination, Respondent did not replace Petitioner.1/ The parties stipulated that: "Petitioner is not presently capable of recalling the events surrounding her termination from employment with Respondent nor providing testimony in this proceeding." The persuasive and credible evidence adduced at hearing demonstrates that Petitioner was terminated for legitimate, non- discriminatory reasons having nothing to do with her age. Petitioner's charge of age discrimination is based on speculation and conjecture, and Petitioner failed to prove that she was terminated because of her age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 29th day of June, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 29th day of June, 2015.
The Issue Whether Petitioner was demoted from his position as a security officer, and later terminated from his position with the Respondent as a groundskeeper on or about May 22, 1995, on the basis of his race (Black) or sex (male), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner is an African-American male, and is licensed as a Class D security officer by the State of Florida. Respondent, Life Care Retirement Communities, Inc., is a not-for-profit corporation, based in Iowa, which owns Village on the Green, a community with 241 independent living units and 60 skilled health center beds in Longwood, Florida. Petitioner was hired by Respondent, on April 27, 1998, as a security guard at Village on the Green in Longwood, Florida. He worked in that capacity until May 12, 1995. In accordance with the company's standard procedure, all employees who have keys or access to resident's private property are required to have a criminal background check completed. Petitioner's position as a security guard required such a check. Petitioner signed a consent form and the background check was completed. The background check revealed that, in 1993, Petitioner was arrested for the felony of grand theft auto. The charge was later reduced from the misdemeanor charge of Trespass to a Conveyance. On May 17, 1994, Petitioner pled nolo contendere to the charge. Adjudication was withheld by the Court and Petitioner was placed on six months probation. Petitioner successfully completed probation. It is the policy of Respondent that an employee with a prior criminal record which involves theft may not be placed in a safety-sensitive position which permits employee access to a resident's living quarters or personal property. A security officer has such access. Petitioner was then informed that he would be removed from his position as a security guard. Petitioner was then offered a position in groundskeeping and Petitioner accepted. He was transferred to groundskeeping, at the same salary, and was employed from May 15, 1995, until May 22, 1995, at which time he was terminated. Between May 15 and May 22, 1995, Petitioner performed his job satisfactorily. On May 15, 1995, a severe electrical storm knocked out electricity to Petitioner's residence. As a result, Petitioner overslept and did not report to work at 7:00 a.m., the scheduled beginning of his shift. At approximately 8:00 a.m., Petitioner called the security guard on duty and advised her of the reason he was late and that he would not be in that day because the storm had caused damage to his automobile. The fact that Petitioner reported in on May 15th was not conveyed by the unidentified security guard to Petitioner's supervisor. Respondent's policy, as stated in the Employee Handbook, called "No show/no call," requires an employee to notify his supervisor if he is going to absent, or if he is unable to contact the supervisor, then he is to report his absence or tardiness to the switchboard operator. The Employee Manual, at page 45, states in pertinent part: ". . . Failure to report for duty without notification, failure to call in prior to shift change and tardiness will result in disciplinary action." After an internal investigation, which included an interview with Petitioner, Respondent was unable to determine that Petitioner had called in on May 15, 1995. Petitioner was terminated. Petitioner has failed to demonstrate that Respondent's reason for termination was pretextural, or that the employer engaged in unlawful hiring, firing, pay or promotion practices.
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 3rd day of June, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John V. Griffin DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1998. Director of Human Resources Life Care Retirement Communities, Inc. d/b/a Village on the Green 200 East Grand, Suite 390 Des Moines, Iowa 50309 Terrance Davenport 861 Carver Street Winter Park, Florida 32789 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Respondent engaged in an unlawfully discriminatory employment practice against Petitioner on the basis of race and religion, and retaliated against him, in violation of the Florida Civil Rights Act of 1992 ("FCRA").
Findings Of Fact The Parties Petitioner, Lawrence N. Brown, III, is an African- American male and is of the Christian faith. Petitioner has been employed with Respondent since April 14, 2014, at its store located at 3800 Oakwood Boulevard, Hollywood, Florida (hereafter, the "Store"). As of the final hearing, Petitioner continued to be employed by Respondent at the Store. Respondent is a corporation doing business in Florida. Respondent owns and operates the Store at which Respondent was employed at the time of the alleged discriminatory and retaliatory actions. Employment Charge of Discrimination and Petition for Relief Petitioner filed an Employment Charge of Discrimination ("Discrimination Charge") with FCHR on or about March 10, 2016.4/ The pages attached to the Discrimination Charge form (which apparently was filled out in typewritten form by FCHR staff) were prepared by Petitioner. On or about July 18, 2016, Respondent issued a Determination: No Reasonable Cause, determining that Petitioner had not shown reasonable cause to believe that Respondent had committed unlawful employment practices against him. On or about August 16, 2016, Petitioner timely filed a Petition for Relief requesting a hearing to determine whether Respondent committed unlawful employment practices against him. The Petition for Relief alleges that Respondent engaged in unlawful discrimination against him on the basis of both his race and religion, and also alleges that Respondent engaged in unlawful retaliation. These charges, as specifically set forth in the Petition for Relief, are the subject of this de novo proceeding.5/ In the Petition for Relief, Petitioner claims that Respondent discriminated against him on the basis of race by failing to promote him into supervisory or managerial positions for which he claims he was qualified; by giving him lower scores on his employment evaluations than were given to a white employee working in the same position (part-time hardlines merchandiser); by not paying him as much as they paid that same white employee; and by retaining that same white employee as a part-time hardlines merchandiser in the Toy Department, while moving Petitioner to another position as cashier. Petitioner also claims that Respondent discriminated against him on the basis of his religion by scheduling him to work on Christmas Day 2015, while giving other employees that day off. Additionally, Petitioner claims that Respondent retaliated against him for complaining to Respondent's corporate legal department about having to work on Christmas Day 2015, by removing him as a hardline merchandiser in the Toy Department and reassigning him to a cashier position, then subsequently effectively "terminating" (in his words) his employment. Petitioner seeks an award of $5,000,000 in damages in this proceeding. Background Events As noted above, Petitioner was hired by Respondent on or about April 14, 2014. Petitioner initially was hired in a part-time position as a part-time overnight hardlines replenishment associate. In this position, Petitioner's work scheduling availability was between 10:30 p.m. and 6:00 a.m. When Petitioner was hired, Alberto Rodriquez was the Store manager. In his position as a part-time employee with Respondent, Petitioner was not guaranteed any specific number of weeks or hours of employment in any given calendar year, nor was he guaranteed that he would attain full-time employee status. The number of work hours Petitioner was assigned was dependent on the company's business needs and on Petitioner's ability to meet the applicable job performance standards. Petitioner acknowledged these and the other conditions of his employment as evidenced by his signature on the Pre-training Acknowledgment Summary dated April 14, 2014. As a result of the elimination of the overnight replenishment associate position, on or about October 26, 2014, Petitioner was transferred to another position as a part-time daytime hardlines merchandiser. In this position, his work scheduling availability was between 6:00 a.m. and 1:00 p.m. As a hardlines merchandiser, Petitioner was responsible for stocking store shelves with merchandise, straightening merchandise on store shelves, putting returned merchandise on shelves, and generally keeping the hardlines departments neat and the shelves fully stocked. The Toy Department at the Store was one of several departments that were categorized as "hardlines" departments. In his duties as a hardlines merchandiser, Petitioner was not assigned to any specific hardlines department, and his responsibilities entailed working in any hardlines department as needed. However, as a practical matter, due to the work demand, Petitioner worked mostly, if not exclusively, in the Toy Department until he was reassigned to the cashier position after Christmas 2015. David Leach became the Store manager in April 2015. At some point before Christmas Day 2015, the work schedule for the week of December 20 through 26, 2015, was posted. Petitioner was scheduled to work on Christmas Day, December 25, 2015. Petitioner did not volunteer, and had not otherwise requested, to work on Christmas Day 2015. The Store was closed on Christmas Day 2015, which was a paid holiday for Respondent's employees. On or about December 23, 2015, Petitioner contacted Respondent's corporate legal department, requesting to be removed from the work schedule for Christmas Day 2015. Pursuant to a directive from Respondent's corporate office, Petitioner was removed from the work schedule for that day. Petitioner was not required to work on Christmas Day 2015, and he did not work that day. Petitioner was paid for the Christmas Day holiday. Although the Store was closed on Christmas Day 2015, some Store employees were scheduled to work, and did work, that day on a volunteer basis, for which they were paid. On December 28, 2015, Leach presented Petitioner with a Request for Religious Accommodation form to sign. Petitioner signed the form. The form was marked as showing that Respondent "granted" the religious accommodation. Also on December 28, 2015, Leach informed Petitioner that he had eliminated the part-time daytime hardlines merchandiser position. He offered Petitioner other part-time positions, either as a cashier or in making pizza at the Little Caesar's pizza station in the Store. Leach did not offer any other positions to Petitioner at that time. Petitioner was reassigned to the cashier position, but informed Leach that he was unable to stand in a single place for long periods of time due to injuries he previously had sustained while working on the overnight shift. Petitioner was reassigned to the cashier position, effective January 3, 2016.6/ Petitioner's hourly wage did not change when his position changed to cashier. He continued to make the same hourly wage that he had made as a daytime hardlines merchandiser. At some point on or after December 28, 2015, Petitioner signed a Personnel Interview Record form that reflected his revised work hours associated with his position change to cashier. The form stated his availability to work between 8:00 a.m. and 5:00 p.m., Monday through Saturday. The evidence is unclear as to whether Petitioner did (or did not) call in to inform the appropriate Store personnel that he would not be working on Tuesday, December 29, or on Thursday, December 31, 2015. Regardless, the persuasive evidence shows that Petitioner worked on Monday, December 28, 2015; did not work on Tuesday, December 29, or Thursday, December 31, 2015; and worked on Saturday, January 2, 2016. The work schedule for the week of January 3 through 10, 2016, was computer-generated some time during the week of December 27, 2015, through January 3, 2016. If an employee does not report to work when scheduled and does not call in to be excused from work on those days, this situation is termed a "no call-no show," and the employee will not be scheduled to work the following week. This is to ensure that there are cashiers available as needed to work on upcoming dates. Regardless of whether Petitioner did or did not call in to inform Respondent he would not be working on Tuesday, December 29, or Thursday, December 31, 2015, the posted work schedule for the week of January 3 through 10, 2016, showed Petitioner as not being scheduled to work that week. However, the evidence shows that Petitioner did, in fact, work a total of 15.90 hours the week of January 3 through 10, 2016. The work schedule posted as of Saturday, January 9, 2016, also showed Petitioner as not being scheduled to work the week of January 10 through 16, 2016. However, the evidence shows that Petitioner worked a total of 15.41 hours the week of January 10 through 16, 2016. At some point between January 13 and January 26, 2016, Petitioner was moved from the cashier position to the Store's date code specialist position. The date code specialist position also is a part-time position, for which Petitioner is paid the same hourly wage as he was paid as a daytime hardlines merchandiser. As of the final hearing, Petitioner continued to be employed by Respondent, working as the Store's date code specialist. Race Discrimination Claims As previously noted, Petitioner began working for Respondent at the Store on April 14, 2014. His initial employment position was as a part-time overnight replenishment associate. In October 2014, he moved to a part-time daytime hardlines merchandiser position. In both positions, he was responsible for stocking and restocking merchandise in all hardlines departments, so was not assigned exclusively to the Store's Toy Department. However, as noted above, due to work demand in the Toy Department, Petitioner did most, if not all, of his work in that department until he was moved to the cashier position in late December 2015.7/ Petitioner contends that starting in mid-2014,8/ he periodically requested to be promoted to "Toy Lead" or to another supervisory or managerial position. He testified that he had undertaken many activities and implemented various systems to improve the efficiency and productivity of the Toy Department and other departments at the store, and had documented these activities and transmitted that information to the Respondent for inclusion in his personnel file. He testified that rather than promoting him to a supervisory position in the Toy Department, Respondent instead hired a non-African-American person to fill that position.9/ Petitioner additionally testified that he periodically would request to be transferred or promoted to other supervisory positions, but that Respondent did not grant these requests. He contends that since he was qualified for these positions, the only basis for Respondent's decision to fill those positions with other employees was discrimination against him on the basis of his race. In response, Leach testified that there was no formal "Toy Lead" position at the Store; rather, the person supervising the Toy Department is an assistant store manager, a position that entails supervising other hardlines departments besides the Toy Department. Further, Leach testified that in his view, Petitioner was not qualified to occupy certain supervisory positions because of his lack of experience in those areas and his relatively short period of employment with Respondent. Leach also testified that Petitioner had not ever formally applied for a promotion through Respondent's online application process. Petitioner further asserts that Respondent discriminated against him on the basis of race because he was not paid the same amount as Corey Harper, a white male hardlines merchandiser who also often worked part-time in the Toy Department on the afternoon or evening shift, even though he worked harder and received higher evaluation scores than did Harper.10/ However, Leach credibly testified that Respondent does not currently base its pay rate for part-time employees on job performance evaluation scores, but instead pays them a set hourly pay rate. According to Leach, Respondent has not given an hourly pay rate raise to part-time employees since 2009, so that any pay differential depended on whether employees were hired before or after 2009. Leach credibly testified that Harper has been employed by Respondent since 2004, so had received hourly pay rate raises between 2004 to November 2008; this would result in his hourly pay rate being higher than Petitioner's, even though both are part-time employees. Petitioner testified that when he was moved from the daytime hardlines merchandiser position to the cashier position after Christmas 2015, he made it clear that he wanted to remain in the Toy Department; however, Respondent transferred him out of that department while allowing Harper to remain in a hardlines merchandiser position, which entailed work in the Toy Department. Petitioner also made clear that he wished to return to the hardlines merchandiser position in the Toy Department when such a position became available; however, at some point, Leach reassigned Carol Yaw, who was white, from her previous office manager job to a hardlines merchandiser position. Petitioner asserts that Respondent's actions in allowing Harper to remain as a part-time hardline merchandiser and reassigning Yaw to a hardlines merchandiser position constituted discrimination against him on the basis of his race. However, Leach credibly testified that the part-time daytime hardlines merchandiser position that Petitioner had occupied was eliminated because of the lack of work in that position, primarily due to declining Toy Department sales after the holiday season. Additionally, immediately after Christmas 2015, Leach consolidated the overnight merchandise unloading and daytime shelf stocking positions and moved the overnight unloading employees to the day shift, where their duties consist of unloading merchandise from trucks and stocking shelves.11/ Leach credibly testified that Harper was not moved from his position because Leach had specifically decided not to move others unaffected by this reorganization out of their existing positions, and that Harper was an afternoon/evening hardlines merchandiser. Leach also credibly testified that he had moved Yaw to a full-time hardlines merchandiser position after her office manager position was eliminated because she was a 25-year employee of Respondent, and he felt that she deserved that position out of loyalty for being a long-term employee of Respondent. Petitioner also contends that Respondent's evaluation of his job performance was unfair because it was conducted by an assistant store manager, Marjorie McCue, who was not his direct supervisor. Specifically, he contends that McCue was unfamiliar with his job performance, so did not appropriately consider, in his evaluation, improved Toy Department sales performance and efficiency that were due to measures that he had implemented. Petitioner also contends that McCue initially deliberately gave him an inaccurately low job performance evaluation in an effort to create a record to support terminating his employment, but that when he complained, those lower scores were changed to higher scores. The only performance evaluation regarding Petitioner's job performance that was admitted into evidence is a document titled "Employee Review" that was dated January 31, 2015; Petitioner received a 3.10 overall performance score on this performance evaluation.12/ The Employee Review for Harper dated January 31, 2015, also was admitted into evidence; Harper's overall performance score was 3.00. Upon careful consideration of the competent substantial evidence in the record, it is determined that Petitioner failed to carry his burden13/ to establish a prima facie case of employment discrimination by Respondent on the basis of his race. To do so, Petitioner must show that: (1) he is a member of a protected class; (2) he was subject to adverse employment action; (3) he was qualified to do the job; and (4) his employer treated similarly-situated employees outside of his protected class more favorably than he was treated.14/ It is undisputed that Petitioner, as an African- American, is a member of a protected class. However, the evidence does not support a finding that Petitioner was subject to adverse employment action. With respect to his assertion that Respondent failed to promote him on the basis of his race, Petitioner needed to show that, in addition to being a member of a protected class, he applied for and was qualified for a promotion; that he was rejected despite his qualifications; and that other equally or less-qualified employees outside of his class were promoted.15/ While Petitioner frequently sent email correspondence to Respondent's corporate legal office requesting to be promoted, the evidence does not show that he followed Respondent's formal online application process for applying for promotions.16/ Further, although the evidence indicates that Petitioner is very hard-working, energetic, bright, and detail-oriented, he did not demonstrate that those characteristics necessarily qualified him for the supervisory positions about which he inquired. He also did not demonstrate that Respondent filled the positions about which he had inquired with less-qualified non-African-American employees. In fact, Petitioner acknowledged, in testimony at the final hearing and in email correspondence with Respondent's corporate legal office, that in his view, some of the individuals who had been promoted were qualified for the positions to which they had been promoted. For these reasons, it is determined that Petitioner did not demonstrate adverse employment action by Respondent by failing to promote him on the basis of his race. Petitioner also did not show that he received a lower pay rate and lower evaluation scores than did other similarly- situated employees who were not members of his protected class. The only comparator to which Petitioner referred was Harper, the other part-time hardlines merchandiser that sometimes worked in the Toy Department. However, as discussed above, the evidence showed that Harper actually scored lower than did Petitioner on the January 31, 2015, evaluation.17/ Further, Harper was not similarly situated to Petitioner with respect to pay rate because Harper is a longer-term employee who had received hourly pay rate raises in 2005 through 2008, before Respondent ceased giving raises of hourly pay rates in 2009, but Petitioner was hired in 2014, after Respondent ceased giving hourly pay raises. Petitioner also did not show, by the greater weight of the evidence, that Leach discriminated against him on the basis of his race by electing to reassign him, rather than Harper, to a cashier position after Christmas 2015, and by later reassigning Yaw to fill a full-time hardlines merchandiser position that included responsibilities of working in the Toy Department. As discussed above, when Leach decided to eliminate the part-time daytime hardlines merchandiser position, he chose not to reassign other employees who were not directly affected by the elimination of that position. The evidence shows that Leach did not reassign Harper to a cashier position because Harper's position was not directly affected by the elimination of the daytime hardlines merchandiser position——not because Leach favored Harper over Petitioner due to race. Also as discussed above, Leach reassigned Yaw to a full-time hardlines merchandiser position after her office manager position——also a full-time position——was eliminated. Because Yaw was a full-time employee, she did not fill a position for which Petitioner was eligible as a part-time employee; furthermore, under any circumstances, she was not similarly situated to Petitioner because of her longer term of employment with Respondent. For these reasons, neither Harper nor Yaw are similarly situated to Petitioner for purposes of being comparators. For these reasons, it is found that Petitioner did not establish a prima facie case of employment discrimination against him by Respondent on the basis of his race. Further, even if Petitioner had established a prima facie case of employment discrimination on the basis of race, Respondent articulated legitimate, non-discriminatory reasons for its actions with respect to Petitioner. As discussed above, Respondent did not promote Petitioner because he did not go through Respondent's formal application process for seeking promotions, and also because Leach determined, on the basis of Petitioner's lack of experience and employment longevity, that Petitioner was not qualified for supervisory positions at that time. Additionally, Leach's decisions regarding reassigning Petitioner to a cashier position while retaining Harper and reassigning Yaw to hardlines merchandiser positions were management decisions based on business needs and requirements, rather than on the basis of race. Petitioner did not present evidence showing that these reasons were a pretext for discrimination against him on the basis of his race. Based on the foregoing, it is determined that Respondent did not discriminate against Petitioner on the basis of his race, in violation of section 760.10(1)(a). Religious Discrimination Claim As previously discussed, shortly before Christmas Day 2015, the employee work schedule for the week of December 20 through 26, 2015, was posted in the Store. This schedule showed Petitioner as being scheduled to work from 6:00 a.m. to 3:00 p.m. on Christmas Day, which fell on a Friday in 2015. The Store was closed on Christmas Day 2015, which was a paid employee holiday; however, employees could work that day on a voluntary basis and they would be paid time-and-a-half for doing so. As noted above, Petitioner did not volunteer or otherwise indicate that he was willing to work that day. Upon seeing that he was scheduled to work on Christmas Day, Petitioner contacted Respondent's corporate legal department, which then contacted Leach. Leach had Petitioner removed from the work schedule for December 25, 2015. Petitioner was not required to work that day, did not work that day, and was paid for the Christmas Day 2015 holiday. Petitioner claims that by scheduling him to work on Christmas Day, Respondent discriminated against him on the basis of his religion. Petitioner asserts, as evidence of Respondent's discriminatory intent, that there are others who worked in the Toy Department who were not of the Christian faith, so that if someone was needed to work on Christmas Day, one of those individuals could instead have been scheduled. As previously noted, on December 28, 2015, Leach presented Petitioner with a Request for Religious Accommodation form to sign. Leach credibly testified that the purpose of having Petitioner sign the form was to have a written record of Petitioner's religion so that Petitioner would not again be assigned to work on a Christian religious holiday. Petitioner signed the form, but protested being required to do so, because, in his view, Respondent already was on notice that he is of the Christian faith because he always had Sundays off of work. Petitioner testified that when he was hired in April 2014 (notably, before Leach became Store manager) he had verbally requested Sundays off, effectively placing Respondent on notice that he is of the Christian faith. On this basis, Petitioner asserts that Leach and other managers and supervisors at the Store knew that he is Christian and that they nonetheless intentionally scheduled him to work on Christmas Day. Petitioner acknowledged that he never heard Leach make any comments with respect to his (Petitioner's) religion. Leach credibly testified that before he was contacted by Respondent's corporate office regarding Petitioner's concerns about being scheduled to work on Christmas Day 2015, he did not know that Petitioner was Christian, and he had not inferred that from the fact that Petitioner did not work on Sundays.18/ Leach testified, credibly and persuasively, that Petitioner was scheduled to work on Christmas Day 2015 by mistake. He explained that the work schedule for the week of December 20 through 26, 2015, was generated using a pre-populated "template" method. This method, which is a method by which the Store sets its weekly work schedules, entails week-to-week copying of the regular——i.e., "template"——work schedule for all Store employees, then modifies that schedule as needed to address changes to individual employee work schedules. Leach explained that in using this method to establish the work schedule for the week of December 20 through 26, 2015, Respondent had inadvertently scheduled employees who had not volunteered to work on Christmas Day. He surmised that this was a possible explanation for why Petitioner mistakenly was scheduled to work that day. As noted above, Petitioner was not the only Store employee scheduled to work on Christmas Day 2015. Upon consideration of the competent substantial evidence in the record, it is determined that Petitioner failed to carry his burden to establish a prima facie case of employment discrimination by Respondent on the basis of his religion. To do so, Petitioner must show that he: (1) was a member of a protected class; (2) informed Respondent of this belief; and (3) suffered adverse employment action as a result of failing to comply with the employment requirement that conflicted with his belief. It is undisputed that Petitioner falls within a protected class for purposes of a discrimination claim on the basis of religion. However, Petitioner did not prove the existence of the other two elements necessary to establish a prima facie case of employment discrimination on the basis of religion. Specifically, Petitioner did not prove that Respondent knew that he was Christian or that his Christian faith prohibited him from working on Christmas Day. As noted above, Petitioner was hired at the Store before Leach became Store manager. Further, because Petitioner had not been required to complete a written religious accommodation form when he was hired in April 2014, Respondent did not have any written notice in its possession that would have informed Leach that Petitioner was Christian or that Petitioner needed certain Christian holidays, such as Christmas Day, off of work. As noted above, Leach credibly testified that he did not know that Petitioner was Christian until Respondent's corporate legal office contacted him regarding Petitioner's religion-based complaint about being scheduled to work on Christmas Day 2015. The evidence also shows that Petitioner did not suffer any adverse employment action. As soon as Respondent was informed of Petitioner's complaint, Petitioner was removed from the work schedule for Christmas Day 2015, did not work that day, and was paid for that holiday. For these reasons, it is determined that Petitioner did not establish, by the greater weight of the evidence, a prima facie case of discrimination by Respondent against him on the basis of his religion. However, even if Petitioner had established a prima facie case of discrimination on the basis of religion, Respondent produced credible, persuasive evidence showing a legitimate, non- discriminatory basis for its action——that is, that through the Store's use of the template work scheduling system, Petitioner was mistakenly scheduled to work on Christmas Day 2015. As noted above, as soon as Petitioner complained to Respondent, Respondent immediately accommodated his request by removing him from the Christmas Day 2015 work schedule. Petitioner did not present any evidence showing that Respondent's proffered reason for scheduling him to work on Christmas Day 2015 was a pretext for discrimination on the basis of his religion. For these reasons, it is determined that Petitioner did not show, by a preponderance of the evidence, that Respondent discriminated against him on the basis of his religion, in violation of section 760.10(1)(a). Retaliation Claim Petitioner claims that Respondent retaliated against him for complaining to Respondent's corporate legal office about being scheduled to work on Christmas Day 2015 by reassigning him from his position as a daytime hardlines merchandiser——a position that he clearly liked and at which he believed he excelled——to a cashier position——a position that he clearly considered demeaning and that also was physically difficult for him to perform due to a previous injury. Petitioner was informed that he was being reassigned to a cashier position only five days (and the first workday) after he complained to Respondent's corporate legal office about being scheduled to work on Christmas Day.19/ Petitioner testified that Leach told him that the part- time daytime merchandiser position had been eliminated due to the lack of work demand, particularly in the Toy Department, after the Christmas season was over. Petitioner testified that when he asked Leach about available positions in to which he could transfer, Leach told him that only cashier or pizza-making positions were available. Petitioner provided evidence that a softlines customer service job, which he claims he would have preferred, was open at the time he was reassigned and that Leach did not inform him of that opening or offer him that position. Petitioner also disputes that the part-time daytime merchandiser job that he had occupied had been eliminated. As evidence, he contends that Harper continued to occupy that position, and also that Leach subsequently reassigned Yaw to a full-time hardlines merchandiser rather than transferring him back into a hardlines merchandiser position, as he had requested. The part-time cashier position to which Petitioner was transferred was the same level of employment position in Respondent's employment hierarchy as was the part-time daytime merchandiser position that he previously held. Additionally, as discussed above, as a part-time cashier, Petitioner continued to receive the same hourly pay rate and work scheduling availability as he had received when he was employed as a part-time daytime hardlines merchandiser. As discussed above, on or before January 26, 2016, Petitioner was reassigned to the Store's date code specialist position. According to Leach, that position came open after Petitioner was reassigned to the cashier position, and Leach believed that the date code specialist position would play well to Petitioner's strengths of being methodical and detail- oriented. Petitioner bears the burden, by the greater weight of the evidence, to establish a prima facie case of retaliation by Respondent. To establish a prima facie case of retaliation, Petitioner must show that: (1) he engaged in a protected activity; (2) he suffered a materially adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action.20/ For the following reasons, it is found that Petitioner did not satisfy his burden to establish a prima facie case of retaliation. It is determined that Petitioner engaged in a "protected activity" when he complained to Respondent's corporate legal office, by email dated December 23, 2015, that he had been scheduled to work on Christmas Day 2015. The email stated: Attn: Legal My schedule states that I am scheduled for Christmas day. I am a Christian I exercise religious right no work on a high religious day. Christmas is the day I celebrate the birth of Christ thus the name Christmas day. A Jewish person was assigned to my department (toys) and was allowed to have off all the Jewish holidays. I was told that is his right and approved, I said fine, I don't know who was arguing this but this was fine with me, because I have many Jewish friends, so I understand. Easter which falls on a Sunday and Christmas are my holidays. I am requesting off. I am requesting Christmas day off with holiday pay as my religious day, just like I requested Sundays off. Only I can change my religious day and work on Sunday, which I might have to when promoted. If management tells me I cannot be promoted because I exercise my religious right not to work on the seventh day, then I will have to do as Jewish people have done for centuries, they are released from the commandment that they may only eat Kosher. If captured by the enemy they may eat to survive. So if I can only be manager if I give up my religious right not to work on Sunday, then I will do what management says is a requirement. Thank you. Lawrence Brown Kmart-Hollywood, Fl Oakwood Plaza To be a "protected activity," the activity giving rise to the alleged retaliatory action must, at the very least, communicate to the employer that the complainant believes the employer is engaging in discrimination against him. Petitioner's email can be read broadly to inform Respondent that he believed he was being discriminated against on the basis of his religion by being scheduled to work on Christmas Day 2015. To that point, Petitioner specifically compared his circumstances to those of a Jewish employee who had requested and been allowed to have all Jewish holidays off of work. While not specifically using the word "discrimination," Petitioner's email can be reasonably read to place Respondent on notice that Petitioner believed he was being treated differently than a similarly-situated employee who was not a member of Petitioner's protected class and who had been excused from work on the holidays observed by his religion. Additionally, Leach was aware that Petitioner had complained to Respondent's corporate legal department about being scheduled to work on a Christian holiday. Accordingly, it is determined that Petitioner has established the "protected activity" element of his retaliation claim. However, Petitioner did not show that he suffered a materially adverse employment action as a result of having engaged in protected activity. His reassignment to the part-time cashier position effectively was a lateral transfer that did not affect his hourly pay rate or hours of work scheduling availability. Although Petitioner subjectively considered the cashier position to be demeaning and below his skill level21/ and although his job responsibilities changed, the evidence shows that Petitioner was not reassigned to an objectively less prestigious or otherwise inferior employment position. Furthermore, in any event, approximately three weeks after Petitioner was reassigned to the cashier position, Respondent reassigned him to a position as the Store's date code specialist——a position that he has officially held since January 26, 2016, and from which he has not requested to be transferred. In this position, Petitioner earns the same hourly wage and has the same number of hours of work availability as he did in the hardlines merchandiser and cashier positions. He is solely responsible in the Store for ensuring that date-coded merchandise on the shelves has not exceeded its expiration date—— a position that entails significant responsibility and, as Leach put it, is "very important." The evidence also does not support Petitioner's assertion that his removal from the work schedule in early January meant that he was effectively terminated. Although the evidence does not clearly show what days Petitioner did not work during the week after Christmas in 2015, or whether he did (or did not) call in to notify Respondent that he would be absent, the evidence does clearly establish that Petitioner was not scheduled to work the first week of January 2016, and it is also clear that management personnel at the Store did not believe that he had called in to notify them of his absence. Leach explained that if an employee does not report to work when scheduled and does not call in to notify the Store of his or her absence, the employee will not be scheduled to work the following week; this is to ensure that there are enough cashiers available as needed to work in the upcoming week. In any event, when Petitioner noticed that he had not been scheduled to work, he contacted the Store's human relations manager, who told him to come back to work. In fact, Petitioner worked the first and second weeks of January 2016, and thereafter, and he continues to be employed at the Store. Further, Petitioner was never told or otherwise notified, formally or informally, that his employment with Respondent had been terminated. For these reasons, it is determined that Petitioner did not suffer a materially adverse employment action by being reassigned for a short period of time from a part-time daytime hardlines merchandiser to a part-time cashier position. Petitioner also did not demonstrate the existence of a "causal link" between a protected activity and adverse employment action. As discussed above, Petitioner's sending an email to Respondent's corporate legal office about being scheduled to work on Christmas Day 2015 constituted a "protected activity." However, as discussed above, it is determined that Respondent did not engage in an adverse employment action; thus, Petitioner's engagement in protected activity did not "cause" Respondent to take any material adverse employment action against him. Furthermore, in any event, Respondent articulated a legitimate, non-discriminatory reason for reassigning Petitioner to a cashier position shortly after Christmas Day 2015—— specifically, that the part-time daytime merchandiser position that Petitioner had held was eliminated due to seasonal workload decline and other business management decisions reallocating hardlines merchandise-related tasks between the overnight and daytime shifts. For these reasons, it is determined that Petitioner did not prove, by the greater weight of the evidence, that Respondent retaliated against him for engaging in a protected activity, in violation of section 760.10(7). Damages Petitioner has requested an award of damages in the amount of $5,000,000. However, section 760.11(6), which governs the award of remedies in administrative proceedings brought under the FCRA, does not authorize DOAH to award damages. Further, the evidence establishes that Respondent did not engage in any unlawful employment practices with respect to Petitioner, and, in any event, Petitioner did not present any evidence to support his entitlement to an award of damages in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of June, 2017, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2017.
The Issue Whether Petitioner has established, by a preponderance of the evidence, that Respondent is guilty of unlawful employment practices as alleged in the Petition for Relief. AUTHORITY Chapters 120 and 760, Florida Statutes, and Rule 60Q, Florida Administrative Code.
Findings Of Fact Petitioner, D. Paul Sondel, was born August 13, 1928, and was, at the time of final hearing, 65 years of age. On April 11, 1993, Petitioner saw a newspaper advertisement for the position of Analyst I with the Florida Board of Bar Examiners (FBOBE). On April 12, 1993, Petitioner went to the office of the employment agency which the FBOBE was using to locate and screen applicants. Petitioner was told that he would not be allowed to apply or take the pre- employment test for the position because he had a graduate degree and only persons who have a Bachelor's degree but no graduate degree(s) were allowed to apply. On June 1, 1993, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations, in which he alleged that the FBOBE requirement that no one would be considered for the position of Analyst I who had a higher level degree than the minimum required Bachelor's degree, served the "intended purpose" of eliminating older applicants, especially those over Petitioner further alleged that the existence and implementation of such FBOBE policy was in violation of the federal Age Discrimination in Employment Act (ADEA). Respondent hired two persons to fill the April 1993 advertised position of Analyst I. One of the persons hired was 24 and the other was 23 years of age. The FBOBE is an administrative agency of the Supreme Court of Florida and charged by the court with the responsibility of evaluating the character, fitness and competence of each applicant for admission to the Florida Bar. Petitioner has established that he is a person in a protected group; that adverse employment action was taken against him; that the persons hired for the position in question were outside the protected group; and that, but for his graduate degree, he was qualified for the position in question. The FBOBE has a current staff of 29 full time employees. As of March 30, 1994, of those employees, three were 40 years or older at the time of employment. Nine of these employees are currently 40 or older. The employment application used by the FBOBE does not request any information regarding an applicant's age. The FBOBE have hired individuals in the past who were 40 years of age or older. The FBOBE uses the American Employment Agency, Inc. to advertise vacancies and to conduct preliminary screening. Kathryn E. Ressel has been employed by the Respondent for over 22 years and is currently the Deputy Executive Director of the FBOBE. Ms. Ressel is responsible for the instructions given to the employment agency concerning the qualifications for the position of Analyst I. Ms. Ressel testified that the reason for the FBOBE policy of excluding applicants with post graduate college or university degrees is not intended to restrict employment opportunities to younger persons and is not related to the age of any applicant. Ms. Ressel's testimony is that past experience in hiring persons with graduate degrees has indicated that such persons tend to stay in the Analyst positions for short periods of time and leave when an employment opportunity presents itself in the field for which the person is educated. Ms. Ressel testified that the Analyst I position is an entry level position and that the Analyst receives extensive on-the-job training to enable the newly hired employee to perform assigned duties and meet job related responsibilities in an effective and efficient manner. Therefore, according to Ms. Ressel, when Analyst I's leave the employment of the FBOBE after a short time on the job, the Respondent is unable to recoup the time, energy and expense involved in training such individuals. Ms. Ressel's testimony articulates a reasonable nondiscriminatory basis for the employment practice at issue. Ms. Ressel's testimony indicates that the employment policy at issue is age neutral in that it is applied to all individuals who apply for the position of Analyst I, regardless of age. Ms. Ressel's testimony in this regard is unrefuted. Official notice is taken that a given individual is generally older at the time such person receives a graduate degree than when the same individual receives a Bachelor's degree. It does not follow, however, and Petitioner has failed to prove (statistically or otherwise), that in any specific job applicant pool available to the Respondent to fill Analyst I positions, potential applicants with graduate degrees are older than potential applicants who possess only Bachelor's degrees. Petitioner has failed to prove by a preponderance of the evidence (statistical or otherwise) that the employment policy at issue has a disparate impact on persons 40 years of age or older. Petitioner has failed to prove, by a preponderance of the evidence, that the legitimate, nondiscriminatory reason articulated by the FBOBE as the basis for rejecting Petitioner's application is in fact a pretext and/or that a discriminatory reason more likely motivated the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petition for relief filed in this case be denied. DONE and ORDERED this 19th day of May, 1994, in Tallahassee, Florida. JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of May, 1994.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred. Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record. In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects. After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination. On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination. Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law. Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination. At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job. Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett. There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 18th day of August, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1788 Petitioner: Petitioner filed an "order" with nine unnumbered paragraphs containing a mixture of proposed findings of facts and conclusions of law. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 5 and 8. 6-8. Rejected as being a conclusion of law. 9. Rejected as being contrary to the evidence or a conclusion of law. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: P. Daniel Williams, Esquire P. O. Box 1007 Daytona Beach, Florida 32115 Winston K. Borkowski, Esquire P. O. Box 1725 Ormond Beach, Florida 32175 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (“FCHR”) on or about September 9, 2014, and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence presented at hearing, the undersigned makes the following findings of material and probative facts: TESTIMONY OF PETITIONER, CARYL ZOOK Petitioner, a 61-year-old female born in 1954, worked as a private chef for Mr. Friedkin, owner of Respondent. She began in 2007 and was an “at will” employee, there being no written employment contract. Her duties included providing dinners and other meals at Mr. Friedkin’s residence, catering or assisting him with some events, and overseeing some of the other staff members at his residence. Petitioner was in an auto accident in 2011 and suffered neck injuries. Petitioner required physical therapy, acupuncture, steroid injections, and several x-rays. After Petitioner was terminated from Respondent in September 2013, she underwent surgery to remove several bad vertebrae from her neck area. Due to her neck injury and pain, Petitioner testified that she needed to park close to Mr. Friedkin’s house to carry groceries as a reasonable accommodation. Other than the inference drawn from this scant evidence, there was little, if any, direct or circumstantial evidence presented to prove that Respondent had knowledge of a qualifying disability by Petitioner.1/ Petitioner characterized Mr. Friedkin’s behavior over the years as insulting and abusive, and she endured it for many years. There was an arrangement between Petitioner and Friedkin for him to purchase a home for her to live in. She would repair or remodel the home, and at some point, he would transfer the mortgage and home to her.2/ For the Yom Kippur holiday, Mr. Friedkin contacted Petitioner and instructed her to prepare a dinner for his family and to have it ready at 3:00 p.m. that day. Typically, meals were prepared by Petitioner at Mr. Friedkin’s home. However, this one was prepared at Petitioner’s home because, as she testified, it “needed to be brined” in her refrigerator in advance. Petitioner was admittedly running late and did not have the meal prepared by 3:00 p.m. Mr. Friedkin called her while she was driving to his house but she did not answer the phone. When she arrived at his house, Mr. Friedkin was in his vehicle blocking the driveway. After she parked on the street, Mr. Friedkin got out of his vehicle and began ranting and raving at her, accusing her of being late. He was very upset. He continued yelling and told her that, “Next week you better start looking for a new job.” Petitioner went into the house and left the food in the refrigerator. It was undisputed that the food (a turkey breast) was not given to Mr. Friedkin outside the home because it was not carved or ready for consumption. TESTIMONY OF SHEREE FREIDKIN Mr. Friedkin’s wife testified that Mr. Friedkin had made it clear to Petitioner that he wanted her to prepare a turkey meal and that they would pick it up at 3:00 p.m. at the residence. When she and her husband arrived at their home at 3:00 p.m., Petitioner was not there. They went inside, looked in the refrigerator, and saw that the food was not there. They called Petitioner on her cell phone but she did not answer. They waited for some period of time for her, all the while getting very frustrated and agitated.3/ After waiting more than 30 minutes for Petitioner to arrive, they decided to go to Whole Foods to buy a turkey meal at around 3:40 p.m. On their way, Petitioner phoned them. She said she would be at the house soon, and so, they decided to drive back and meet her. After they arrived back at their residence they had to continue to wait for her to arrive. She finally arrived, sometime after 3:40 p.m., and got out of her vehicle eventually. (Apparently, Petitioner waited in her car for some period of time.) When she got out, Petitioner was in shorts, a sloppy shirt, and her hair was in curlers. Mr. and Mrs. Friedkin found this inappropriate, particularly since Petitioner usually wore an apron and dressed more appropriately in their presence. Mr. Friedkin was very upset and demanded that she give him the food because they were running late to their family function. Petitioner refused, claiming the turkey needed to be sliced. Mr. Friedkin was very angry and used several unnecessary expletives during the course of his conversation with Petitioner. Mr. Friedkin told her something like, “you’re fired” and “don’t show up Monday for work.” Mrs. Friedkin overheard no age, disability, or retaliation-related comments during this heated exchange. TESTIMONY OF MONTE FRIEDKIN He confirmed that Petitioner was his chef and also did some assorted chores and supervision around his house. He directed Petitioner to make a meal and have it ready for them to pick up at his residence by 3:00 p.m. on the day in question. He testified that Petitioner always cooked any food for his family at his residence. When they arrived around 3:00 p.m. at the house, Petitioner was not there, and there was no food. He tried to call her and had to leave a message. They decided to go to Whole Foods to buy the meal. They departed for Whole Foods around 3:40 p.m. His description of the event was consistent with his wife’s testimony. In addition to the delay caused by Petitioner, Mr. Friedkin testified that it was important to him that she was presentable at all times around him and his family. During the confrontation in the driveway, he terminated her employment. He testified that he had experienced some other performance issues with her over the months preceding this event and that she had begun to respond to questions and directives from him in increasingly insubordinate ways. As far as her termination was concerned, he unequivocally denied that her age, a disability, or retaliation was ever considered or motivated his decision. He admitted that Petitioner told him that she had a car accident in one of their vehicles sometime in 2011. However, she continued to work for him for approximately two years after the accident without incident. She did complain to him, at some point, of some neck pain. He denied that Petitioner ever gave him any medical documents verifying or stating that she was disabled. On cross-examination by Petitioner, Mr. Friedkin elaborated that, during the months preceding the food incident, she had become more and more insubordinate, and there was a growing problem with her not following instructions he gave her. In his words, the incident at his residence involving the turkey dinner was the proverbial “straw that broke the camel’s back.” On redirect, Mr. Friedkin denied ever considering any disability and said he did not even know she was “disabled.”4/ TESTIMONY OF ROSARIO DIAZ Another witness, Mrs. Diaz, testified that Mr. and Mrs. Friedkin arrived at the residence at around 3:00 p.m. and came into her office. They wanted to know whether or not Petitioner was there with the food, and whether or not she had called. Diaz told him that she was not there and did not call. Mr. and Mrs. Friedkin then departed. Approximately 30 minutes later, Petitioner came into her office upset and said that she could not believe what had just happened and that Mr. Friedkin had just fired her. Ms. Diaz commented to her that maybe they were upset because she was late. Mrs. Diaz had worked for Mr. Friedkin for nearly 30 years. She interacted with Petitioner at the residence frequently. She testified that Petitioner never complained to her about age, disability, or other discriminatory remarks or comments by Mr. Friedkin. She also testified that she never overheard any comments by Mr. Friedkin about Petitioner’s age or disability, or how either may have affected Petitioner’s work performance. At Petitioner’s request, recorded portions of an unemployment compensation hearing, conducted by an appeals referee from the Florida Department of Economic Opportunity (DEO), were played. Petitioner represented that the purpose was to show that Mr. Friedkin had made several statements during that hearing that were inconsistent with his present testimony. The DEO hearing was to determine whether or not Petitioner was entitled to unemployment compensation benefits. DEO ruled in Petitioner’s favor and found that she was not disqualified from receiving benefits and that no “misconduct” occurred on the job as a result of the Yom Kippur meal incident.5/ The undersigned finds that Mr. Friedkin did not make any materially inconsistent statements during the DEO hearing bearing upon his credibility as a witnesses in this case. There was insufficient proof offered by Petitioner to show that Respondent’s proffered explanation for her termination (poor work performance) was not true, or was only a pretext for discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief and find in Respondent’s favor. DONE AND ENTERED this 27th day of January, 2016, in Tallahassee, Leon County, Florida. S Robert L. Kilbride 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 January, 2016.
The Issue The issue is whether Grand Boulevard Health and Rehabilitation, d/b/a FL HUD Destin, LLC (“Grand Boulevard”), committed an unlawful employment practice by discriminating against Angela D. Jones based on her race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: Ms. Jones is a 49-year-old African American female. She has a high school degree and earned certifications or licenses enabling her to work as a certified nursing assistant (“CNA”), a home-health aide, a cosmetologist, and a security guard. However, healthcare has been her primary field of work. 2 Ms. Jones stated during the final hearing that she had transmitted to DOAH an audio recording made by Mr. Manning and that she had intended to move that audio recording into evidence. The audio recording was not received by DOAH. Nonetheless, the undersigned has determined that no prejudice resulted to Ms. Jones because there was no dispute regarding the event described by Mr. Manning’s affidavit. In May of 2019, Ms. Jones was working in a nursing home and heard from a coworker about the substantial benefits and signing bonus that Grand Boulevard was offering new hires. Grand Boulevard’s employment application contained a question asking each applicant to respond “yes” or “no” as to whether he or she had “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre- trial intervention program as a result of being charged with a crime.” Ms. Jones left that portion of her application blank.3 Ms. Jones responded “no” in response to a question asking if she had “ever been convicted of any criminal violation of law, or [if she was] now under pending investigation or charges of violation of criminal law.”4 The employment application contained a provision requiring Ms. Jones to certify that: the information provided in this employment application (and accompanying resume, if any) is true and complete. I understand that any false, incomplete, or misleading information given by me on this form, regardless of when it is discovered, may disqualify me from further consideration for employment, and may be justification for my 3 Ms. Jones testified that she told Shakara Mayberry, Grand Boulevard’s Director of Staff Development at the time, that she had a criminal background and that she left that portion of the application blank because she could not remember specific details about the charges. Ms. Jones also testified that she offered to supplement her application with precise information after she had an opportunity to consult documentation in her possession. According to Ms. Jones, Ms. Mayberry accepted her application and told her to not worry about disclosing her criminal background. Ms. Mayberry also testified during the final hearing and denied telling Ms. Jones that she could leave that portion of her application blank. During the final hearing, Grand Boulevard provided no satisfactory explanation as to why Ms. Jones was hired without completing that portion of her application. 4 Respondent’s Exhibit 3 was Ms. Jones’s responses to interrogatories from Grand Boulevard. Via her responses, Ms. Jones provided documentation regarding her criminal history. However, Grand Boulevard did not request that Respondent’s Exhibit 3 be accepted into evidence. When being questioned about Respondent’s Exhibit 3, Ms. Jones acknowledged that she has: (1) pled no contest to a battery charge; (2) been charged or arrested for resisting an officer; (3) been arrested for criminal mischief; and (4) entered a plea on a different criminal mischief charge. dismissal from employment, if discovered at a later date. After conducting a background check through the Agency for Health Care Administration (“AHCA”) indicating Ms. Jones had no disqualifying offenses, Grand Boulevard hired Ms. Jones.5 Ms. Jones began working for Grand Boulevard on May 15, 2019, as a CNA helping nursing home residents with activities of daily living such as dental hygiene, grooming, and eating. On June 16, 2019, a resident in Ms. Jones’s care suffered injuries after he rolled out of his bed while Ms. Jones was cleaning him. Pursuant to its policy, Grand Boulevard suspended Ms. Jones while the Walton County Police Department investigated the incident. Ms. Jones returned to work at Grand Boulevard three days later but was suspended again on June 20, 2019, because she had allowed her CNA certificate to expire. Ms. Jones paid her delinquency fee, and her certificate was reinstated. During the course of the investigation of the June 16, 2019, incident, an investigator from the Walton County Sheriff’s Office asked Heather Hanna, Grand Boulevard’s Director of Nursing at the time, why Grand Boulevard would hire someone such as Ms. Jones with a criminal history. Ms. Hanna then had Ms. Jones’s application pulled and noticed that Ms. Jones did not 5 Section 400.9065, Florida Statutes, mandates that AHCA “shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.” Section 408.809(1)(e), Florida Statutes, requires level 2 background screening of any person who is expected to provide personal care services directly to nursing home residents. Section 435.04(2), Florida Statutes, lists many specific offenses that disqualify someone from working in a nursing home. Accordingly, the background screening conducted through AHCA is narrower in scope than Grand Boulevard’s employment application, which asks applicants if they have “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” For example, while Ms. Jones acknowledged that she has pled no contest to a battery charge, that charge would not necessarily have been a disqualifying offense because section 435.04(2) only encompasses felony battery, battery on a minor, sexual battery, and battery on a vulnerable adult. Likewise, resisting an officer and criminal mischief are not disqualifying offenses. respond to the question asking if she had ever been charged with a crime. Ms. Hanna sent the following report to Connie Zuraff on June 28, 2019: I received a visit from Investigator Donna Armstrong with Walton County PD and Julianne Dalton APS investigator. The investigator questioned why we would have an employee who had a recent arrest record, she stated that she knew Angela Jones from the community and that she was concerned that she was employed here. We reviewed her application and found that she had not checked the boxes related to history of arrests.[6] I called Ms. Jones with Tuwanna RN Risk Manager and [Shakara] Mayberry LPN SDC present in the room. I placed Ms. Jones on speaker phone and asked if she had been arrested for any recent criminal activity and she confirmed that she was arrested for battery, petty theft and fighting. I notified the employee that failure to disclose this information could lead to termination and suspended her at that time. The DCS did pull her background through the AHCA clearing house and we confirmed that she still showed eligible for employment. Grand Boulevard then suspended Ms. Jones and ultimately terminated her on June 27, 2019, on the basis that she “knowingly falsified [her] employment application.” There was no persuasive evidence of Grand Boulevard giving more favorable treatment to nonminority employees who neglected to fully disclose whether they had “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” Any testimony from Ms. Jones on that point was 6 The pertinent question on the application does not require applicants to disclose arrests. The question asks applicants if they have “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” either unpersuasive, unsubstantiated, or insufficiently specific. Accordingly, the greater weight of the evidence does not demonstrate that Grand Boulevard committed an unlawful employment practice.
Conclusions For Petitioner: Angela D. Jones, pro se 115 Christie Lane Panama City, Florida 32404 For Respondent: David Sydney Harvey, Esquire Lewis Brisbois Bisgaard and Smith 401 East Jackson Street, Suite 3400 Tampa, Florida 33602
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Ms. Jones’s Petition for Relief. DONE AND ENTERED this 26th day of August, 2021, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Angela D. Jones 115 Christie Lane Panama City, Florida 32404 David Sydney Harvey, Esquire Lewis Brisbois Bisgaard and Smith 401 East Jackson Street, Suite 3400 Tampa, Florida 33602 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue Whether Respondent, AAR Airlift Group, Inc. (Respondent), committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Gabriel C. Gaudio (Petitioner), be granted.
Findings Of Fact Petitioner is a male over 50 years of age. On or about May 9, 2009, a company located in North Carolina hired Petitioner to work as a Technical Publications Clerk. Petitioner was over 40 years of age at the time of his employment. Prior to March 2012, Petitioner relocated to Florida to continue employment with the company that then became known as AAR Airlift Group, Inc. Respondent does business in Melbourne, Brevard County, Florida, and has over 15 employees, one of whom was Petitioner. At all times material to this matter, Respondent employed Steve Lane (Lane) and Melvin Zahn (Zahn) as supervisors with the company. At all times material to the allegations of this case, Respondent had policies that prohibit discrimination on the basis of age, disability, and any other reason prohibited by law. Any employee who believed discrimination had occurred was directed to report to the local Human Resources Department or to the Corporate Vice President of Human Resources. Respondent’s employees are considered “at will.” Respondent reserves the right to involuntarily terminate any employee for any reason or for no reason unless to do so would violate law. Petitioner maintains he was terminated in retaliation for a complaint he submitted because of his age, or because of his disability. All of the actions complained of occurred between March 2012 and June 2012 (when Petitioner was terminated). It is undisputed that Petitioner’s age would establish he is a member of a protected class. It is undisputed that Petitioner was terminated after he submitted a complaint against his co-workers. Although Petitioner asserted he is disabled, Petitioner presented no evidence to establish the nature of his disability or that Respondent required him to perform tasks contrary to his physical or mental limitations. There is no evidence that Respondent failed to accommodate any claimed limitation Petitioner might have had. In April 2012, Respondent issued a Performance Improvement Plan (PIP) to Petitioner to outline areas of his job performance that needed improvement. It was anticipated that Petitioner would address the areas of concern and make improvement within 90 days. Upon receipt of the PIP Petitioner filed a claim of hostile work environment with the company’s human resources office. More specifically, Petitioner claimed two employees, Zahn , technical publications manager, and Rachel Grygier (Grygier), a technical publications librarian, had disparaged him regarding his age and disability. To address Petitioner’s complaint, Respondent initiated an internal investigation of the claim. As part of the investigation process, Respondent directed Petitioner not to disclose or discuss the accusations of his claim with anyone. Respondent sought to resolve the matter without having the allegations discussed among employees before individual statements could be taken. Contrary to the directive, Petitioner discussed his complaint against Zahn and Grygier with at least one other employee. That employee (Barnett) e-mailed support for Petitioner to JoAnne Paul (Paul), Respondent’s human resources compliance manager. When Paul confronted Petitioner as to whether he had discussed his complaint with Barnett, Petitioner falsely denied knowing Barnett. Paul took Petitioner’s failure to maintain confidentiality regarding his complaint to Lane, Respondent’s director of quality assurance and internal evaluations. Together, Paul and Lane decided to terminate Petitioner. The basis for the termination was two-fold: the failure to follow a directive not to discuss the complaint; and the lack of truthfulness when asked about knowing Barnett. Petitioner maintains that his termination was in retaliation for his complaint against Zahn and Grygier and that the company wanted him out. Petitioner presented no evidence that after his termination he was replaced with a younger employee. Even though Petitioner did not establish the nature of his disability, Petitioner presented no evidence that he was replaced by a non-disabled person or that his handicap caused Respondent to terminate him. Further, Petitioner did not establish that any area of concern noted in his PIP related to his disability. Neither Zahn or Grygier had anything to do with Petitioner’s termination. Finally, Petitioner failed to present credible evidence that filing a complaint against Zahn and Grygier was the genesis for his termination. Petitioner was a long-time employee with the company. He had started in North Carolina and moved to Melbourne with the company. Had Respondent wanted to terminate him for any reason it could have done so prior to the move or after the move. Petitioner’s claim that his complaint against Zahn and Grygier caused the termination is not supported by the weight of persuasive evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 31st day of May, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Gabriel Gaudio 259 Abernathy Circle, Southeast Palm Bay, Florida 32909 Chelsie J. Flynn, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent, Glenn Dorsey, Inc., d/b/a My Home Spot, is liable to Petitioner, Tamela Alisha Landrum, for employment discrimination in violation of the Florida Civil Rights Act of 1992 (“the Act”).
Findings Of Fact Respondent is a Florida corporation engaged in real estate property management which provides management services to homeowners’ associations (“HOA”), including managing the sale, lease, and maintenance of association property; organizing and staffing association board meetings; and enforcing association covenants and restrictions. Mr. Glenn Dorsey is Respondent’s owner. Petitioner is an African-American female and is a licensed Community Association Manager (“CAM”). Petitioner became employed by Respondent on May 23, 2016, as an Assistant HOA Manager.2/ Mr. Dorsey described Petitioner’s position as “the person responsible for how our communities appear.” She was handling contracted services such as pool maintenance, gate access, and landscaping “from writing the RFP, soliciting bids, comparing quotes to managing the vendor performance.” As her employer described, “A major portion of her job is managing the CCR [community covenants and restrictions] inspection schedule, performing the inspections and maintaining our database for CCR enforcement.” The description concludes that “Alisha is a licensed CAM and will soon be managing her own community association portfolio as the HOA Assistant Managers and Accounting Department are returned to full strength.” (emphasis added). According to Petitioner, she did not want to handle HOA board meetings, which occur in the evening and require the employee to stay for the duration of the meeting, which can be lengthy. In early September 2016, Petitioner was asked to cover an evening HOA meeting because Mr. Dorsey was double-booked for two different association meetings that evening. Petitioner was subsequently asked to cover additional evening HOA meetings. Between September 7, 2016, and August 22, 2017, Petitioner handled no less than 64 HOA regular and annual meetings for several different HOAs. On or about January 18, 2017, Mr. Dorsey transferred the responsibility for CCR inspections and enforcement to another employee. Petitioner complained that she was not compensated for working overtime to handle the HOA meetings. Petitioner repeatedly testified the company had no protocol for overtime. After-hour meetings created a personal hardship for Petitioner because they required her to incur additional childcare expenses. Apparently, a member of Petitioner’s family was initially providing childcare, but the arrangement broke down due to the inability to predict the length of HOA board and annual meetings. Petitioner testified that she verbally complained to both her direct supervisor and Mr. Dorsey about the hardship of after-hour duties and requested to be compensated with a salary increase and other benefits. Petitioner complained that her role and hours were changed significantly without any change in compensation. Mr. Dorsey scheduled a mandatory staff meeting for July 6, 2017, and included an agenda in the calendar invitation to staff. One of the agenda items is “meeting makeup time (next am come in late).” On August 16, 2017, Petitioner met with Mr. Dorsey and his assistant, Rachel Ward. At that meeting, they discussed renewal of her employment contract, and she addressed her concerns regarding her hours and compensation. Petitioner complained to Mr. Dorsey that she was not afforded a phone stipend, which was afforded to white managers, to compensate her for use of her personal cell phone for after-hour business. On August 18, 2017, Mr. Dorsey sent a letter to Petitioner “confirming” the August 16 meeting. In the letter, Mr. Dorsey acknowledged that Petitioner’s employment duties were “significantly different” than the duties she was hired for in May 2016. However, in the letter Mr. Dorsey justified the change in duties because of Petitioner’s poor performance of the original assigned duties, including estoppels, maintenance, and other administrative tasks, which he characterized “quickly became disorganized, delinquent, or incomplete.” Mr. Dorsey explained the change in duties as an attempt to “modify your role as to find a position in which you could succeed.” The letter concluded that Mr. Dorsey declined to change Petitioner’s compensation and benefits, or even enter into a new employment contract. Instead, Mr. Dorsey informed Petitioner that her employment would continue on a month-to-month basis, and that either party could terminate the agreement with 30 days’ notice. On August 21, 2017, Mr. Dorsey sent Petitioner the following electronic mail message: Alisha, Per your advisement today regarding your inability or decision not to attend HOA after-hour meetings, myHomeSpot.com will begin to cover those shifts without your participation effective immediately. Every other assistant is attending their portfolio meetings as this is a requirement of the position. We do not have a position at your rate of pay to provide you any extended exception. This is our advanced notice to you to terminate our employment arrangement on Oct. 14, 2017 as you are unable to meet the requirements of the current position. I provide you this date at the current pay rate to allow a smooth transition with someone who can perform the required duties, but, we can end with a 30-day notice to accommodate any changes if you notify us of this within 14 days from 8/22/17. On August 22, 2017, Petitioner sent Mr. Dorsey a letter which notified him she would no longer be available to work “beyond the published business hours” and requested she be returned to an 8:00 a.m. to 6:00 p.m. work schedule. However, the letter ended with notice of her immediate resignation. Petitioner’s Allegations In her Petition, Petitioner alleges that her change in job duties and hours, without appropriate compensation, was based upon her sex and race. She complains that she was not given a phone stipend afforded to white managers for use of their personal cell phones after business hours, and was forced to work after hours without overtime pay based on her race. Further, Petitioner alleges that Respondent unlawfully retaliated against her by responding to her complaints “with a write-up and termination notice.” Disparate Treatment Petitioner testified generally that she was paid less than, or denied benefits afforded to, white managers. Petitioner introduced no evidence on which to base a finding of the race of any employee, other than herself, in order to compare salary and benefit information. The record contains no documentation of which employees, if any, received a phone stipend. Absent this information, the undersigned cannot make a factual determination that Petitioner was denied the stipend which was afforded to male employees. Between the dates of May 23, 2016, and June 30, 2017 (slightly less than one month before her termination), Petitioner received the second highest amount of total wages of all Respondent’s employees during that timeframe. Petitioner received a total of $37,377.55 based on 2,051.25 total hours worked and 84.61 “absence hours.” An employee identified as AJ Ward was the only employee with higher total wages at $49,032.66. During that period, Petitioner worked fewer hours than employee Ward and incurred more “absence pay” than employee Ward. Petitioner further alleged that Mr. Dorsey manipulated her time entries in the company time management system, thereby artificially reducing her hours worked. The screenshots of time entries introduced by Petitioner are not sufficient evidence to support that allegation. Retaliation Only two days elapsed between Petitioner’s meeting with Mr. Dorsey, at which she voiced her concerns about uncompensated overtime and use of her personal cell phone after hours, and Mr. Dorsey’s letter giving Petitioner “advance notice” of her termination. Number of Employees The number of Respondent’s employees is a material issue in dispute. Respondent introduced its Department of Revenue Employer Quarterly Report (Form RT-6) for three separate quarters. For the quarter ending June 30, 2016, Respondent reported 15 employees in April and May 2016, and 14 employees in June 2016. For the quarter ending December 31, 2016, Respondent reported 13 employees in October, November, and December 2016. For the quarter ending March 31, 2017, the report identifies 15 employees in January, 14 in February, and 13 in March 2017. Respondent introduced a payroll details report for the pay periods between January 1 and August 31, 2017. The details report identifies only five employees. Petitioner did not challenge the reliability of the documents. Instead Petitioner argued that Respondent employed more than 15 employees when it was fully staffed. The evidence does not support a finding that Respondent employed 15 or more employees for each working day in each of 20 or more calendar weeks during either 2016 or 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 14th day of February, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2019.
