The Issue The issue in these cases is: a) whether the Department of Education is liable for attorneys' fees and costs incurred in the prosecution of the Rushton case (DOAH Case No. 89-1551) and b) if so, whether such fees and costs should include those incurred in the prosecution of a rule challenge styled, Florida Education Association/United and Florida Teaching Profession/National Education Association v. Department of Education, DOAH Case No. 88-0847R.
Findings Of Fact Petitioner Lewis Rushton is a person within the meaning of Section 760.02(5), Florida Statutes. Mr. Rushton is an individual within the meaning of Section 760.10(1). The Department of Education ("DOE") is a personwithin the meaning of Section 760.02(5). The School Board of Seminole County, Florida ("School Board"), which is also a person within the meaning of the same statute, was at all material times Mr. Rushton's "employer" within the meaning of Section 760.02(6). At all material times, Mr. Rushton was employed as a bus driver by the School Board, which removed him from this position on April 19, 1988. The reason for the School Board's action was that the continued service of Rushton, who was over 70 years of age, was contrary to Rule 6A-3.0141(a), Florida Administrative Code, which required mandatory retirement of bus drivers at age 70 years ("Rule"). The other Petitioners were similarly situated to Mr. Rushton. The only difference is that they were employed by different district school boards. The School Board gave Rushton the option to continue in employment as a bus monitor, which was a lower-paying job than bus driver. Rushton accepted this reassignment and experienced the resulting reduction in pay beginning the 1988-89 school year. At all material times, DOE, which promulgated the Rule, maintained standards affecting the ability of Rushton to engage in his occupation or trade within the meaning of Section 760.10(5). The Rule was part of these standards. On January 29, 1987, Rushton filed a Complaint of Discrimination, FCHR Case No. 88-5616, against the School Board. The Florida Commission on Human Relations dismissed this complaint on November 11, 1988. On May 3, 1988, Rushton timely filed and prosecuted a Complaint of Discrimination, FCHR Case No. 88-5703, against DOE. On September 7, 1988, the Florida Commission on Human Relations issued a Notice of Determination--Cause. The Notice of Determination names as the sole respondent the School Board, which had employed Mr. Rushton prior to requiring him to retire at age 70. After DOE filed a Request for Reconsideration on September 16, the Florida Commission on Human Relations issued on January 12, 1989, a Notice of Redetermination--Cause. The Notice of Redetermination names DOE as the sole respondent. The Notice of Redetermination states that DOE's "assertion that [the Rule] is an established 'bona fide occupational qualification' for employment has not been upheld." The quoted statement in the Notice of Redetermination is to a final order issued December 14, 1988. The final order found the Rule to be an invalid exercise of delegated legislative authority. The final order was the culmination of a Section 120.56 challenge to the Rule that had been prosecuted against DOE by two unions representing the Petitioners. This rule challenge was styled, Florida Education Association/United v. Department of Education, DOAH Case No. 88-0847R ("Rule Challenge"). The Florida Teaching Profession/National Education Association was an intervenor on the side of the petitioner in the Rule Challenge. Lorene C. Powell represented the petitioner in theRule Challenge, and Vernon T. Grizzard, of Chamblee, Miles and Grizzard, and the law firm of Egan, Lev & Siwica, represented the intervenor. As the final hearing in the Rule Challenge approached, DOE requested abatements of the pending cases in which individual bus drivers had sought relief under Section 760.10. At that time, the cases of all Petitioners except Mr. Rushton were pending in the Division of Administrative Hearings. The grounds for the abatements were that the decision in the Rule Challenge "would substantially affect the outcome" of the pending individual cases. Each case was abated. The parties in the Rule Challenge stipulated that various counties, due to the Rule, had not rehired bus drivers who would have been rehired but for the fact that they had attained the age of 70 years. The parties also agreed that Sections 760.10 and 112.0444 [sic], together with cited federal law, "do not permit an age limitation on employment with the exception of where such an age limitation is based on Bona Fide Occupational Qualification." The stipulated issues for determination in the Rule Challenge included "whether the 70-year old age barrier . . . is a [bona fide occupational qualification] and thus a valid exception to the state and federal ban on age discrimination based solely on chronological age." By memorandum dated January 11, 1989, DOE informed school board superintendents of the final order invalidating the Rule. By letter dated February 9, 1989, the School Boardnotified Mr. Rushton that DOE was no longer requiring enforcement of the mandatory retirement rule and he could return to work as a bus driver if he could meet certain lawful requirements. Each Petitioner was so notified by his respective school board. By Petition for Relief filed March 21, 1989, Mr. Rushton sought relief against the School Board and DOE, including a finding that mandating his retirement due to age was an unlawful employment practice, an award of back pay and associated benefits, and an award of attorneys' fees in the prosecution of the subject proceeding and such other proceedings as were necessary or appropriate to obtain the relief and apportioning the fees between the School Board and DOE. With the filing of the Petition for Relief on March 21, 1989, John Chamblee of the law firm of Chamblee, Miles and Grizzard entered his appearance for Mr. Rushton. Mr. Chamblee had been retained for Mr. Rushton by his union, the Florida Teaching Profession/National Education Association. On or shortly after May 1, 1989, the School Board settled with Mr. Rushton by agreeing to compensate him for back pay, interest, and other benefits constituting relief otherwise available under Section 760.10. Similar settlements between the other Petitioners and their respective school boards resulted in the dismissal of all claims against the various school boards.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitions for Relief in the above-styled cases. ENTERED this 2nd day of May, 1990, in Tallahassee, Florida. COPIES FURNISHED: John J. Chamblee, Jr. Chamblee, Miles and Grizzard 202 Cardy Street Tampa, FL 33606 Vernon T. Grizzard Chamblee, Miles & Grizzard 116 South Monroe Street Tallahassee, FL 32301 Sydney H. McKenzie III General Counsel Carl J. Zahner Assistant General Counsel Department of Education Knott Building Tallahassee, FL 32399 Lorene C. Powell, Assistant General Counsel FEA/United 208 W. Pensacola Street Tallahassee, FL 32301 Ned N. Julian, Jr. Sun Bank Building, Suite 22 Post Office Box 1330 Sanford, FL 32772 Tobe Lev Egan, Lev & Siwica P.O. Box 2231 Orlando, FL 32802 Norman Smith Brinson, Smith & Smith 1201 W. Emmett St. Kissimmee, FL 32741 ROBERT E. MEALE 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 2nd day of May, 1990. William H. Vogel, Assistant Superintendent Personnel and Administrative Services P.O. Box 1948 Kissimmee, FL 32742-1948 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
Findings Of Fact The Petitioner, John W. Cohen, Jr., began employment with the Respondent, Department of Health and Rehabilitative Services ("HRS") Duval Detention Center, on June 26, 1976. His position was that of Detention Care Worker I. He continued in that position as a permanent employee until his final dismissal of July 25, 1989, which is the subject of this proceeding. In the course of his employment with the Respondent, the Petitioner has complained of instances of unfair treatment on numerous occasions with both informal complaints and grievances and formal complaints. The current case arises from the Petitioner's claim that his dismissal of July 25, 1989 was discrimination in the form of retaliation, that is, the employer's alleged retaliation as the result of the previously- raised complaints and grievances. The Petitioner maintains that he first became aware that his repeated use of grievance procedures involving his employer was noticed and resented by the circulation of a cartoon in his work place, which depicted his supervisor threatening to shoot the Petitioner with a large firearm in retaliation for using grievance procedures. The Petitioner and his supervisor were named in the cartoon. The Petitioner filed a formal complaint with the Jacksonville Equal Employment Opportunity Commission on March 3, 1985 as a result of this belief. The Petitioner again felt that he had suffered disparate treatment by his supervisor, Ms. Thelma Menendez, while he worked under her supervision for the Respondent agency. Ms. Menendez found the Petitioner to be a good employee and gave him favorable performance appraisals but stated that she had a problem with the Petitioner because of his tardiness and excessive absence. The Petitioner was ultimately terminated for tardiness and excessive absence and filed a retaliation and harassment complaint with the Jacksonville Equal Employment Opportunity Commission in response to that action by the agency. It developed, apparently in the course of investigation and proceeding with regard to that complaint, that the agency's records revealed that other employees, similarly situated to the Petitioner, some of whom apparently worked on his shift, had exhibited tardiness to the same or to a greater degree than the Petitioner, and that some of them had suffered less severe discipline, as imposed by their supervisor, Ms. Menendez. The Respondent acknowledged this problem and took action by reprimanding Ms. Menendez for her failure to document and respond appropriately to abuses of leave procedures and excessive tardiness by all employees. Because the Petitioner was aware that other employees on his shift had been frequently tardy without experiencing disciplinary actions of the same severity, he filed the retaliation and harassment complaint mentioned above. This complaint ultimately culminated in a negotiated settlement agreement between the Union representatives and attorney, who represented the Petitioner, and the Respondent. This settlement reversed the termination and reduced it to an agreed-upon 30-day suspension. Apparently, the Petitioner initially refused to sign the settlement agreement because he felt that the 30-day suspension, itself, was also harassment. On two occasions, allegations of child abuse against the Petitioner were made, pursuant to Chapter 415, Florida Statutes, apparently in connection with the supervisory duties over children in custody at the Respondent's facility where the Petitioner was employed. It is standard practice with the Respondent that any employee who has such allegations made against him must be removed from supervisory duties over children whenever the allegations are pending and until they are resolved. During the investigatory and resolution process concerning such child abuse allegations, employees are customarily and routinely reassigned to another job with the agency, which does not involve direct supervision of clients or children. Such events frequently occur at the Juvenile Detention Center. On the two occasions involving the Petitioner, the Petitioner was reassigned to maintenance duties at the Respondent's facility. The Petitioner consistently protested this reassignment to maintenance duties because other employees in similar situations had not been reassigned to maintenance duties but, rather, to other employment duties, not involving maintenance. Although he protested the reassignment for this reason, he performed in the maintenance or janitorial capacity for over 13 months. The Petitioner remained in the maintenance position, pursuant to his reassignment, because of the allegations pending against him until an Order of the Division of Administrative Hearings was issued and, presumably, an agency Final Order, which removed the disqualification involving the child abuse allegations, effective July 22, 1987. Upon his second such reassignment to maintenance duties, on August 16, 1988, the Petitioner refused to climb up on the roof of the building to perform roof repair work when asked to do so by his supervisor. Instead, he filed a complaint with one of his supervisors, Sub-district Administrator Lucy Farley. In any event, because both allegations of child abuse were disproved, the Petitioner was reassigned to his normal duties as a Detention Care Worker I. The only reason for reassignment to the maintenance duties was because such removal from child supervision duties is mandatory under Department rules and policies. Although the Petitioner maintains that he was subjected to harassment of some sort because he was the only known employee who was given maintenance duties in the face of such allegations, it was established that he was reassigned to maintenance or janitorial duties because those were the only positions available in order for him to continue employment with the agency at the facility until the charges were resolved. His salary and benefits were not affected by this action. It was not demonstrated that he was singled out for reassignment to maintenance duties for any reasons of harassment, disparagement or disparate treatment of any kind. Likewise, it was not proven that the cartoon allegedly circulated in the Petitioner's work place was published by, authored by, or otherwise done at the instance of or within the knowledge of the Respondent. Thus, it cannot be probative of any intent or motive on the part of the employer to harass the Petitioner on the basis of previously- filed grievances or complaints against the employer or for any other reason. It cannot serve as evidence that the ultimate dismissal, which is the subject of this proceeding, constituted a retaliatory dismissal by the employer. On July 14, 1989, the Petitioner reported to work on the 7:00 a.m. to 3:00 p.m. shift, at the Duval Regional Juvenile Detention Center. He was performing his regular duties as a Detention Care Worker I. The client population was high in the facility at that time, and employees were generally unable to take regularly-scheduled breaks from their duties. On that morning, the Petitioner worked without a break from 7:00 a.m. to approximately 11:50 a.m. He then maintained that he felt ill and notified Mr. Arnett Morrell and Mr. Carlton Smith, his coworkers and/or supervisor, that he intended going to the staff lounge to eat. Prior to leaving his work area ("Module A"), the Petitioner advised Mr. Bernard Brock, who was the "Floor Coordinator" between "A" and "B" Modules, that he needed to go eat. He secured Mr. Brock's agreement to cover his module or duties while he took a break. The Petitioner then proceeded to "master control", the control center for the facility. At the master control station, Detention Care Worker Supervisor, Reginald Chambliss, asked the Petitioner why he had not followed proper procedures by calling the master control center before he left his module to come to master control or to leave his module for any reason. The Petitioner responded by explaining that he had secured coverage of his duties and his module from Mr. Brock and two other workers. He also stated to Mr. Chambliss that he had not had a break since 7:00 a.m. that morning and was feeling sick. After some discussion, the Petitioner advised Mr. Chambliss again that he was sick and needed to eat or that he would have to take leave time. Mr. Chambliss then gave the Petitioner his keys so that he could unlock his personal effects. The Petitioner then returned to his module to get his personal effects. The Petitioner later returned to master control to "clock out" because he had apparently decided to leave the work place. Mr. Chambliss approached the Petitioner in the vicinity of the time clock and informed him that he would not be able to authorize him taking leave time that day if the Petitioner left the building. The Petitioner moved toward the time clock in order to carry out his intention to "clock out" of the building while Mr. Chambliss was standing between him and the time clock. Mr. Chambliss repeated his instructions to the Petitioner that if he clocked out, he would not approve his taking leave. The Petitioner ordered Mr. Chambliss to get out of his way, which Mr. Chambliss did not do. Then the Petitioner apparently swore at Mr. Chambliss and said something to the effect of "I am tired of this shit" and then struck Mr. Chambliss one or more times, inflicting a cut in the vicinity of his eye. The Petitioner then apparently left the immediate vicinity of Mr. Chambliss at the master control station. Mr. Chambliss called Supervisor II, Andrea Cash, on the intercom and she came to the area of the master control station where the incident occurred. He informed Ms. Cash of the details of the incident. When Ms. Cash arrived, the altercation was over and the Petitioner appeared relatively calm, although Mr. Chambliss was still upset. Ms. Cash then contacted District Administrator, Lucy Farley, who contacted her immediate supervisor, in turn, by telephone. On instructions from her superiors, Ms. Cash ordered the Petitioner to leave the facility and not to come back. She notified all shifts verbally and by memorandum that if the Petitioner should return to the facility, the Sheriff's Office should be summoned. Mr. Chambliss was advised by superiors to press charges and did so. Ultimately, however, he and the Petitioner entered into an agreement to drop the charges; and the State's Attorney did not prosecute the assault charge. On July 27, 1989, the Petitioner was notified by Administrator, Lucy Farley, that his dismissal would be effective at 5:00 p.m. on July 25, 1989. The Petitioner met with Ms. Farley in the company of an AFSME Union Representative on July 24, 1989 apparently to discuss some sort of resolution to the conflict; however, Ms. Farley terminated the Petitioner. The Department has a policy that any assault or striking of an employee or supervisor is adequate grounds for termination. Mr. Chambliss and other supervisory personnel consider an employee assault to be an unusual and severe incident. The Petitioner was terminated for assaulting another staff member and using abusive language toward that staff member. Because the Petitioner struck his supervisor three times, causing injury to him, in an unprovoked manner, it was determined by the employer to be reasonable grounds for termination. The Department's rules and policies allow for termination for such an offense, and whether or not mitigating circumstances are considered is discretionary with the employer. The Petitioner made no showing of any disparate treatment in this regard. He made no showing that other employees had assaulted a co-employee or supervisor and had not been terminated but, rather, had been subjected to either no discipline or some lesser degree of discipline. In fact, the Petitioner did not demonstrate that any other such assault incident had occurred. The Petitioner simply showed no instances where other employees similarly situated, involved in a similar incident had been subjected to less severe discipline. Consequently, the Petitioner made no showing of a prima facie case of disparate discriminatory treatment in connection with his termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Petition of John W. Cohen, Jr. be dismissed in its entirety. DONE AND ENTERED this 30th of January, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 31st day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7300 Petitioner's Proposed Findings of Fact 1-4. Accepted, but not necessarily as probative of material issues presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 7-10. Accepted, but not as probative of material issues presented, standing alone. 11. Accepted, but not in itself probative of the material dispositive issues presented. 12-14. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. 15. Accepted, but not itself dispositive of material issues presented. 16-23. Accepted, but not in themselves dispositive of the material issues presented. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself dispositive of material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-28. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant evidence of record. Rejected, as immaterial. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as being immaterial. Accepted as to the first clause, but as to the second, rejected as not being entirely in accordance with the preponderant evidence of record. Rejected, as irrelevant. It was not demonstrated that other employees for whom mitigating circumstances may have been considered were similarly situated to the Petitioner in the instant case situation. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 D. Ola David Qualified Representative 600 Victory Gardens Drive Tallahassee, FL 32301 Scott Leemis, Esq. HRS District 4 Legal Office P.O. Box 2417 Jacksonville, FL 32231-0083
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was unlawfully discriminated against due to her age, with regard to her termination from employment on June 19, 1996, and, collaterally, whether her claim is barred by the doctrine collateral estoppel because of Findings of Fact and Conclusions of Law entered by a hearing officer in an unemployment compensation appeals proceeding also related to her termination from employment.
Findings Of Fact Roberta McCabe, the Petitioner, was employed by the Respondent, Woodland Towers, Inc., as a dining room manager from October 22, 1991, through June 19, 1996. During her employment with Woodland Towers that entity employed more than fifteen employees. Ms. McCabe's initial date of employment was August 19, 1991, but she began her capacity as dining room manager on October 22, 1991. She served in that capacity until her termination date of June 19, 1996. She was terminated on that date against her will. Ms. McCabe was born on June 3, 1935, and at the time of her termination she was sixty-one years of age. After her termination, on June 21, 1996, the Petitioner filed a claim against Woodland Towers with the Florida Department of Labor and Employment Security, Division of Unemployment Compensation. In that claim she first raised the issue that she had been discharged due to her age. That claim was filed, of course, before a different state agency, with a different jurisdiction, although the parties were the same. The legal issues were not established to be the same, however, with the exception that in that case, as in this one, the Petitioner raised the question of discharge due to age discrimination. The statutory standards for liability for unemployment compensation, however, were not shown to be co-extensive and identical to those statutory standards and statutory-based legal issues which prevail in the instant case before a different state agency. While the issue of age discrimination may have been the reason offered by the Petitioner in the employment compensation case for her separation from employment, as opposed to what was ultimately found (discharge for misconduct) that legal concept was not shown to have the same definition under the Unemployment Compensation statutes involved in that proceeding, nor was it shown that those statutes support the same or similar actions and remedies as does Chapter 760, Florida Statutes, under which the instant proceeding arises. Therefore it cannot be determined that the legal issues or, for that matter the factual issues in the instant proceeding, are substantially identical to those extant in the unemployment compensation proceeding. In any event, Ms. McCabe timely filed a charge involving age discrimination with the Florida Commission on Human Relations, on or about August 26, 1996. The matter ultimately came on for hearing before the undersigned judge. Ms. McCabe testified at hearing that the only act of discrimination she contends occurred with regard to her termination from employment, on June 19, 1996, occurred on that date and involved discrimination on account of her age. She did not, however, establish that anyone at Woodland Towers ever actually made any discriminatory comments or remarks regarding her age. Ms. McCabe essentially inferred from her status as an older employee, and the fact that she was terminated, the conclusion that Woodland Towers had terminated her on account of her age. She offered no testimony other than her own to support her claim of age discrimination. Conversely, Eleanor Gustavsson and Sidney Roberts both testified that age had nothing to do with their decision to terminate her. Their testimony was unrebutted by the Petitioner. The testimony supporting Petitioner's position that age discrimination or animus resulted in her termination is based solely on the Petitioner's own testimony, chiefly involving her conjectural position, without corroborating evidence, that Woodland Towers intended to terminate her because of her years of seniority which resulted in higher pay and benefits and that therefore, resultingly, her age, with attendant higher pay and benefits, in her position, caused her to be terminated in a discriminatory way, predicated upon her age. Moreover, the Petitioner failed to describe any other co-employee who committed a similar infraction but who was treated more favorably than the Petitioner and did not show that there was any other employee of a younger age who was treated more favorably after committing a similar infraction. The Petitioner did produce the testimony of two fellow employees and offered to produce others to testify that another employee was rude and hostile to the Petitioner. This is insufficient, however, to establish that she was discriminated against because of her age. It was not shown that that employee was in a supervisory position over the Petitioner and merely being rude and hostile to a fellow employee does not rise to the level of Ms. McCabe's infraction. It is therefore unpersuasive to show that Ms. McCabe was the subject of disparate treatment because of her age. Uncontradicted evidence was presented at hearing which establishes that the Petitioner was allowing employees under her supervision, in her capacity as dining room manager, to report for duty before normal working hours and begin work without compensation for the extra time. It was established that she was aware of and indeed responsible for these employees "working off the clock" or before "punching-in." The evidence establishes that she was aware that this was contrary to federal law and Woodland Towers' policy. She was also aware that she was responsible for supervising those offending employees and enforcing the law and policy concerning hours of employment. The Petitioner took full responsibility for the law and employment policy violation in this regard and admitted during the hearing that her actions violated Woodland Towers' employment hours policy. Additionally, Woodland Towers presented credible evidence that Ms. McCabe was terminated solely for reasons of violation of that federal law and policy concerning hours of employment. Woodland Towers' evidence establishes that her age was not the reason for her termination, but rather that her violation of federal law and employment policy concerning the working hours of her employees was that reason. That showing was not rebutted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and argument of the parties, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by the Petitioner herein. DONE AND ENTERED this 5th day of April, 1999, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1999. COPIES FURNISHED: Robert W. Lloyd, Esquire Cobb, Cole and Bell Post Office Box 2491 Daytona Beach, Florida 32115 Roberta McCabe 701 North Ocean Street Jacksonville, Florida 32201 Sharon Moultry, Clerk Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue to be resolved in this proceeding concerns whether the above-named Respondent discriminated against the Petitioner based upon her race, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Barbara Means, is an employee of the Department, occupying the position of "Accountant III." She has been employed with the Department since 1994. She applied for a promotion to a position of "Accountant IV" in October 2003. She competed for that position with other employees. The Petitioner was one of three finalists for the Accountant IV position. The other two finalists for the position were employees who had been hired by the Department in 1995 and 1997. One factor considered in the evaluation process for the promotion position was the various employees' most recent performance evaluations. The Petitioner had received lower overall performance evaluation scores than had the other two finalists. The three finalists, including the Petitioner, were interviewed by a panel of four supervisors, one of whom was Omar Arocho, the Petitioner's own supervisor. Mr. Arocho supervised both Petitioner Means and Ms Wells, one of the other finalists for the accountant position. The four interviewers asked each employee applicant the same ten skills questions and then recorded their responses, for comparison with standard acceptable answers to the questions. The employee performance during this skill interview was considered to be crucial to a determination of who was to be promoted to the subject position. The testimony of Mr. Arocho persuasively established that the Petitioner was excelled in these interviews by the two competing co-workers. This is shown in his testimony, in the recorded responses to the questions in evidence, and their comparison to the standard acceptable answers provided. The conclusion of the evaluation panel of four supervisors, according to Mr. Arocho's testimony which is accepted, was that the Petitioner and the other two applicants were qualified, but that the other two applicants were more qualified than the Petitioner. The Petitioner was not promoted to the position of Accountant IV and remains in the position of Accountant III with the Department. There was no substantial, persuasive evidence to show that the employment decision made by the panel of four supervisors, including supervisor Arocho, was based in whole or in part on any intentional discrimination or animus based upon the Petitioner's race.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 1st day of November, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2004. COPIES FURNISHED: Barbara Means Post Office Box 1345 Newberry, Florida 32669 Mark Simpson, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Cracker Barrel Old Country Store (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, Reza Mahallaty (Petitioner), be granted.
Findings Of Fact Petitioner did not testify in this case. Based upon the undisputed testimony of the witnesses, Petitioner was employed by Respondent and served as a senior assistant manager (SAM). At all times material to the allegations of the case, Respondent employed Petitioner. As a nationally recognized purveyor of food and goods to the public, Respondent presumably employs more than 15 employees. At all times material to this matter, Respondent used a management structure at its stores that included managers in training, assistant managers, senior assistant managers, and general managers. Persons seeking to become general managers typically work their way through the ranks and serve as a SAM before promotion to general manager of a store. On or before August 2010, Petitioner sought a position with Respondent as a general manager. He did not get the promotion. Thereafter, he filed the underlying complaint with FCHR. The complaint stated: I have been employed by Cracker Barrel Old Country Store since June 26, 2006. My most recent position is Senior Associate Manager. I hereby allege that I have been discriminated against due to my race and national origin in violation of Title VII of the Civil Rights Acts of 1964. The foregoing allegations were made under penalty of perjury and for purposes of this case have been accepted as to the facts alleged, but not as to the legal conclusion of discrimination. Petitioner presented no evidence as to his race or national origin. Petitioner’s Petition for Relief reiterated his conclusion that he had been discriminated against based upon his claim of being Iranian and of Persian origin. In addition to not having received promotions, Petitioner included complaints about retaliation that were not addressed by the FCHR. As previously indicated, retaliation issues are not part of the determination that was presented for administrative review. With regard to Petitioner’s attempt(s) to be promoted prior to August 2010, Petitioner did not present evidence that he was more qualified than the applicant Respondent chose. Respondent uses an interview process that rates the candidates for general manager by a selection team. The selection team looks at the candidates’ credentials, history with the company, and responses to the interview questions to rate each applicant for the position sought. Petitioner did not present evidence that he had achieved a higher score in the rating process than the applicant chosen. Petitioner did not present evidence that Respondent knew or should have known Petitioner was the best qualified candidate for the position of general manager. Petitioner did not present evidence that Respondent selected a candidate for general manager that had fewer years of employment with the company than Petitioner. Petitioner did not present evidence that any general manager Respondent selected in preference to Petitioner was of a race or national origin that received special deference over Petitioner. Other than Petitioner’s assertion that he must have been denied promotional opportunities due to his race and national origin, Petitioner failed to establish bias on Respondent’s part. To the contrary, Respondent asserted that Petitioner was not qualified to be a general manager because he was unwilling to master and fully support the company’s core operating systems, the company’s philosophies, and the company’s initiatives. Petitioner presented no credible evidence to refute Respondent’s assertion.
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 10th day of April, 2012, 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 10th day of April, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Shane T. Munoz, Esquire Ford and Harrison, LLP 101 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602 Reza Mahallaty 656 English Lake Drive Winter Garden, Florida 34787 Larry Kranert, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based upon her race.
Findings Of Fact Respondent is an "employer" within the meaning of section 760.02(7), Florida Statutes. Petitioner, an African-American female, submitted an application for employment directly with the store manager, Jerry Wienhoff. Mr. Wienhoff personally interviewed Petitioner and hired her within 48 hours of her application for the afternoon clerk position. She began working for Respondent on July 21, 2009. Petitioner received a notice of a disciplinary issue on March 9, 2010. Respondent cited Petitioner for failure to complete her work in a timely manner. Petitioner was warned that if her work did not improve, her employment would be terminated. Not long after issuance of this disciplinary notice, Mr. Wienhoff, the store manager and Pensacola Regional Manager for 17 years, began receiving complaints about Petitioner's behavior. One complaint came from a long-time customer, while another came from a co-employee. The complaints were that Petitioner treated them rudely. During her employment, Petitioner complained that her work duties were heavier than those of the morning clerk. Mr. Wienhoff relieved Petitioner of certain duties related to tagging each garment dropped off during the afternoon shift. None of the other stores out of the four area stores had similar requests to remove this duty. Petitioner testified that the morning clerk, a white female, Amanda Sidner, was given a lighter workload. Petitioner further testified that Ms. Sidner was given additional hours during Petitioner's vacation, yet Petitioner was not given additional hours during Ms. Sidner's vacation. Mr. Wienhoff testified and Petitioner admitted that she took vacation days during the same week that Ms. Sidner took vacation days. Further, Petitioner was given additional hours during the days Ms. Sidner was on vacation, and the balance of those hours that Petitioner was not interested in working went to Petitioner's daughter, Anastarsia Martinez, also an African- American female. On December 14, 2010, Petitioner was issued her second and final corrective action report by Mr. Wienhoff. At that time, Mr. Wienhoff terminated Petitioner due to the ongoing complaints about her behavior in the workplace. Respondent also established the racial composition of every employee under Mr. Wienhoff's supervision. The company profile in Pensacola shows a racially diverse mix of employees. Petitioner candidly testified that she never heard Mr. Wienhoff make racially insensitive comments to her or any other employee. Her claim of discrimination is based upon favoritism. She believes that other employees were treated better than she, but did not tie this perceived favorable treatment to their race.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that no act of discrimination was committed by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of January, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas A. Groendyke, Esquire Douberley & Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 Mary Cottrell 776 Backwoods Road Century, Florida 32535 Christopher J. Rush, Esquire Christopher J. Rush & Associates, P.A. 1880 North Congress Avenue, Suite 206 Boynton Beach, Florida 33426 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Parties. The Petitioner, Andrea Bateman, is a female. At all times relevant to this proceeding, Ms. Bateman was 41 or 42 years of age. Ms. Bateman is an attorney. Ms. Bateman failed to prove that she was a member of The Florida Bar during the period of time at issue in this proceeding. The Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. Ms. Bateman's Employment by the Department. In October of 1990, the Department employed Ms. Bateman as an attorney in the Department's Office of Child Support Enforcement. Ms. Bateman was required to be a member of The Florida Bar. Ms. Bateman's position with the Department was classified as a "Select Exempt Service" position. Pursuant to Chapter 22SE-1.002(5), Florida Administrative Code, and Part V, Chapter 110, Florida Statutes, persons employed in select exempt service positions may be terminated from employment without cause. Ms. Bateman's immediate supervisor was Chriss Walker. Mr. Walker is a Senior Attorney with the Department and, at the time Ms. Bateman was hired, also served as the Assistant Secretary for Child Support Enforcement. As of December 4, 1991, the Assistant Secretary for Child Support Enforcement, and Mr. Walker's immediate supervisor was Anne F. Donovan. At all times relevant to this proceeding, William H. Bentley was an Assistant Deputy Secretary of the Department with supervisory authority over the Department's Assistant Secretary's, including Mr. Walker and Ms. Donovan. "Productivity Enhancement" at the Department. During 1991, the Department was required to evaluate all employment positions at the Department and to reduce those positions in an effort to improve the productivity of the Department. Generally, all positions at the Department and the work performed by the persons filling those positions were considered and decisions were made as to which positions could be eliminated. The Department referred to the elimination of positions as "red-lining". The Department also made efforts to insure that any person affected by the elimination of their position would be placed in another position. Ms. Bateman's attorney position with Child Support Enforcement was identified for elimination. Another attorney position in Child Support Enforcement and Mr. Walker's Senior Attorney position were not identified for elimination. The decision to eliminate one of the attorney positions was based upon conclusion that the administrative duties of the two attorney positions could be handled by a paralegal position and the legal duties could then be handled by one attorney. Efforts to assist Ms. Bateman to find another position were not successful. Ultimately, the Department decided to find a position in which to continue to employ Ms. Bateman rather than to terminate her position and release her. The Department reclassified another vacant position so that Ms. Bateman could continue to be employed as an attorney for Child Support Enforcement. Mr. Walker was directed to create an attorney position for Ms. Bateman by the Assistant Secretary for Human Services. This decision was made during the early Fall of 1991. The Department's decision to continue to employ Ms. Bateman was based in part on the Department's concern about terminating an employee of the Department. The evidence failed to prove that the Department acted unreasonably with regard to the red-lining of Ms. Bateman's position. Ms. Bateman's Performance. During the year after Ms. Bateman began her employment with the Department, Mr. Walker, Ms. Bateman's supervisor, began to develop concerns about the adequacy of her work product. Ms. Bateman also began to evidence behavior which was not acceptable for an attorney of the Department. As a result of Ms. Bateman's odd behavior, Mr. Walker became concerned about Ms. Bateman's mental well-being. Mr. Walker memorialized his concerns about Ms. Bateman in a memorandum to Mr. Bentley dated December 2, 1991. The memorandum was revised December 19, 1991 to eliminate references to a counselor that Ms. Bateman had informed Mr. Walker she was seeing. Ms. Bateman's work deteriorated to an extent which necessitated other employees carrying out some of her duties. Among the difficulties experienced with Ms. Bateman which formed a reasonable basis for terminating her employment were the following: Ms. Bateman had difficulty communicating with other employees and her supervisor. As an attorney, Ms. Bateman was required to communicate orally and in writing. She was unable to do so in an adequate manner. Ms. Bateman failed to demonstrate good judgment and trustworthiness and, therefore, her supervisors were unable to rely upon her judgment as an attorney of the Department. Ms. Bateman's appearance was unacceptable for an employee of the Department who was required to meet and communicate with the public. Ms. Bateman's hair was unkempt and dirty, her clothes were often soiled and wrinkled, she failed to brush her teeth and she appeared not to be bathing based upon her appearance and her strong body odor. Although required to do so by Department policy, Ms. Bateman refused to give her supervisor a permanent home address or phone number. On one occasion Ms. Bateman was found asleep in the offices of the Department at night and on one occasion she was found asleep during working hours. Based upon the inadequacy of Ms. Bateman's performance, the Department had a reasonable basis for terminating Ms. Bateman's employment. Mr. Walker's Evaluation of Ms. Bateman. On December 18, 1991, Mr. Walker presented Ms. Bateman with a Professional Employee Performance Appraisal form he had completed on her performance. The Appraisal was reviewed by Ms. Bateman and signed by her on December 18, 1991. Mr. Walker gave Ms. Bateman's performance a rating of "effective" on the Appraisal. Of the factors evaluated on the Appraisal, Mr. Walker judged Ms. Bateman's performance as "excellent" on one factor, "effective" on eleven factors and "needs improvement" on nine factors. Mr. Walker gave Ms. Bateman's performance an "effective" rating despite his conclusion that her work product was not acceptable and despite his concerns about her inappropriate behavior. He did so because he had recently been directed to create a position to keep Ms. Bateman as an employee of the Department and in an effort to avoid litigation over Ms. Bateman's termination. Mr. Walker did not believe that his supervisors wanted to avoid any difficulties concerning Ms. Bateman employment. Mr. Walker failed to follow Department procedure in presenting the Appraisal to Ms. Bateman. The Appraisal was required to be reviewed and approved by Mr. Walker's immediate supervisor, Ms. Donovan, before it was given to Ms. Bateman. Mr. Walker, contrary to Department policy, presented the Appraisal to Ms. Bateman before Ms. Donovan had seen and approved it. Ms. Donovan was aware of the problems with Ms. Bateman's performance and would not have approved an "effective" rating. Upon receiving the Appraisal, Ms. Donovan discussed the Appraisal with Mr. Walker and rejected it, as it was her right to do. Ms. Donovan, consistent with Department policy, specified that Ms. Bateman would be evaluated again in sixty days. The Department's Request that Ms. Bateman Undergo a Psychological Evaluation. Although the Department had a reasonable basis for terminating Ms. Bateman's employment by the end of 1991 and in early 1992, the Department decided to attempt to discover the cause of Ms. Bateman's decline in performance and the onset of her odd behavior rather than terminate her employment. The Department made this decision in an effort to determine what assistance Ms. Bateman might need. Ultimately, the Department was attempting to determine what work, if any, Ms. Bateman was capable of performing. The Department's decision was based upon a number of incidents involving Ms. Bateman. Those incidents are included in Mr. Walker's Chronology of December 2, 1991 and his Revised Chronology of December 19, 1991 and are hereby incorporated herein. Although not all the incidents described in the chronologies were proved during the final hearing to have occurred, the Department's consideration of the incidents reported by Mr. Walker was reasonable. Due to the Department's concerns about Ms. Bateman, the Department requested that Ms. Bateman voluntarily participate in the Department's employee assistance program. Ms. Bateman refused. In order to determine what could be done to help Ms. Bateman, and to determine what duties and responsibilities she was capable of performing, the Department requested that Ms. Bateman undergo a psychological, or other, evaluation. Ms. Bateman refused. After discussing the matter with Ms. Bateman and legal counsel she had retained, the Department notified Ms. Bateman that her continued employment was conditioned upon her undergoing a psychological evaluation or some other evaluation which would allow the Department to determine what work she was capable of performing. In a letter of February 12, 1992, Ms. Bateman, through her representative, was informed of the following: As you also know, we are attempting to help Andrea address a problem which we believe exists and has been well documented over the past 16 months. In return, we need Andrea's help and cooperation. If Andrea chooses to agree to our request that she undergo a psychiatric evaluation and authorize the release to us of the psychiatrist's prognosis, diagnosis and recommendation for treatment, we will be glad to schedule an appointment for her with a psychiatrist, and will pay for such an evaluation. We will use the evaluation to determine an appropriate course of action. Ms. Bateman's Termination from Employment. Ms. Bateman continued to refuse to undergo any evaluation or to suggest any alternative course of action. Consequently, based upon Ms. Bateman's inadequate and unacceptable work performance, the Department terminated Ms. Bateman's employment with the Department on or about February 13, 1992. Ms. Bateman's termination from employment was effective February 28, 1992. Ms. Bateman was terminated from employment due to the fact that she was not adequately performing her job and she refused to cooperate with the Department to find out what could be done to help her become an effective employee. Ms. Bateman failed to prove that the Department's reason for terminating her employment was a pretext. Ms. Bateman's Charge of Discrimination. On or about September 15, 1992, Ms. Bateman filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Ms. Bateman alleged that she had been discriminated against on the basis of sex and a perceived handicap. On February 10, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Bateman filed a Request for Redetermination on March 4, 1992. On April 12, 1993, the Commission issued a "Redetermination: No Cause" affirming its decision. On May 12, 1993, Ms. Bateman filed a Petition for Relief seeking a formal administrative hearing. In the petition Ms. Bateman alleged that the Department had discriminated against her on the basis of sex, a perceived handicap and, for the first time, age. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Bateman. Alleged Sex Discrimination. Ms. Bateman failed to prove that any action of the Department was based upon Ms. Bateman's sex: she was not held to any standard or requirement based upon her sex, she was not terminated because of her sex and the Department's efforts to determine the cause of Ms. Bateman's problems was not based upon her sex. Ms. Bateman failed to prove that any Department policy or standard had a disparate impact on female employees. Ms. Bateman failed to prove that she was replaced by a male attorney. Ms. Bateman's grooming habits were discussed with her. Some of those discussions concerned the wearing of panty hose and her makeup. It must be inferred that such discussions were not carried on with male employees. The evidence, however, failed to prove that Ms. Bateman's termination was based upon these matters. Although grooming played a part in the decision to terminate Ms. Bateman's employment, it was grooming related to basic cleanliness and neat appearance required of all employees and not just female employees. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her sex, female. Alleged Age Discrimination. At the time that Ms. Bateman was hired she was 41 years of age, and at the time she was terminated she was 42 years of age. Ms. Bateman failed to prove that age played any part in her treatment by the Department. This finding is supported, in part, by the fact that the difference between Ms. Bateman's age when she was hired and when she was terminated was only one year. Ms. Bateman failed to prove that she was replaced by a younger person. Ms. Bateman failed to prove that the persons who made the decision to terminate her employment were aware of her age. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her age. Alleged Perceived Handicap. The Department did believe that Ms. Bateman was suffering from some mental problem. This belief was based upon Ms. Bateman's odd behavior and a concern that Ms. Bateman was "homeless". It was for this reason that the Department requested that Ms. Bateman undergo a psychological evaluation. Ms. Bateman failed to prove, however, that the Department treated her differently from the manner other employees of the Department were treated under similar circumstances. Ms. Bateman also failed to prove that the Department's request that she undergo a psychological or other evaluation to determine how to assist her to meet the requirements of her employment was made for a discriminatory reason. Under the circumstances, the Department's request of Ms. Bateman was reasonable. Ms. Bateman also failed to prove that she was terminated from employment because of any perceived handicap. The evidence proved that she was in fact terminated from employment due to her inability to satisfactorily carry out her job responsibilities. Ms. Bateman also failed to allege or prove that she has a handicap based upon her mental condition. Ms. Bateman also failed to prove that the Department discriminated against her on the basis of a handicap or a perceived handicap.
The Issue Whether Respondent violated Section 760.10(1), Florida Statutes (2002), by forcing the termination of Petitioner's employment with Respondent because of his gender (male), and/or national origin (Venezuela), and/or his age (37); and because Petitioner alleged that younger, female lifeguards were given better work assignments.
Findings Of Fact Petitioner was employed by Respondent from November 26, 2002, until April 17 2003, in the position of deep water lifeguard at Respondent's facility at the Grand Floridian Hotel (Grand Floridian) located in Lake Buena Vista, Florida. He worked in that position until his resignation on April 17, 2003. Petitioner is a Hispanic male, aged 37, and a member of a protected class. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 (FCRA). Petitioner was hired for a full-time position to work 40 hours per week. He normally worked a ten-hour shift, four days a week. Petitioner never applied for any other position or promotions during his employment. All full-time lifeguards at the Grand Floridian are covered by a collective bargaining agreement (CBA) between Respondent and the Services Trades Council Union. A lifeguard working at the Grand Floridian does not have to be a member or pay dues to the union in order to be covered by the terms of the CBA. Petitioner is not a member of the union. At the time of his hire, Petitioner was provided with a packet of materials containing Respondent's employment policies. Respondent had a policy regarding harassment that covered all of its employees and prohibited all types of harassment in the workplace, including any such behavior based on age, national origin, and/or gender. Respondent also has an "equal opportunity" policy that applies to all of its employees. This policy provides that all employees should be treated equally in terms of hours, work location, and scheduling based on seniority. Operations at the Grand Floridian Of the class of lifeguards hired at the same time, Petitioner was the only one assigned to the Grand Floridian. At the time of being assigned to the Grand Floridian, there were approximately 25 lifeguards employed there. The lifeguards at the Grand Floridian are full-time, part-time casual, or part- time regular employees. There are also "college program" lifeguards who perform all of the same duties as the full-time and part-time employees. The starting times for employees are staggered, based on the needs of the area and the time of the year. The main duties of a lifeguard at the Grand Floridian are to ensure safety and guard the pools, clean the pool and beach areas, work the cash register, and operate the marina. The head supervisor of the Grand Floridian lifeguards during Petitioner's employment was Jerry Davis. Davis has been employed with Respondent for nine years. He has served in his current position as the recreation operations manager for six years. His duties in this position include supervising the outside recreation areas, including the pools, boats, and lifeguards at the Grand Floridian. Davis plays no role in hiring the employees that report to him, but rather Respondent's Employee Relations Department is responsible for hiring these employees. Davis has the authority to terminate lifeguards that report to him. Prior to terminating an employee, however, Davis seeks the input of the Employee Relations Department. The evidence is credible that Davis is accessible to his direct reports and makes sure that his office is always open to them. If a lifeguard wants to speak with Davis, he will make himself available to him or her. As a manager, Davis has undergone training from Respondent regarding its equal employment policies and anti- harassment policies. He has also been trained that employees may raise complaints about working conditions with either their manager or the Employee Relations Department. All employees are made aware of these policies and complaint procedures as a part of their orientation program. Under Davis, the next supervisor was Darin Bernhard. Bernhard has been employed with Respondent for eight years and is currently employed as a recreation guest service manager. Until October 2003, Bernhard was employed at the Grand Floridian. In that capacity, Bernhard directly supervised lifeguards, marina employees, and activities' employees. Bernhard had continuous interaction with lifeguards throughout the day while at the Grand Floridian. Bernhard had an open-door policy to all employees and made himself accessible to them. Under Davis and Bernhard, there were three coordinators who served as the immediate supervisors of the lifeguards. The weekly work schedule for lifeguards was posted on the wall every week. Bernhard, along with Respondent's Labor Office, was responsible for preparing this weekly schedule. The factors used in preparing this schedule were a scheduling bid submitted by each employee, scheduled vacations, and operational needs. As for operational needs, Bernhard would try to give a combination throughout the week based on full-time, part-time, and college program employees and avoid having all college program employees on duty at one time, thereby providing more experience on each shift. The CBA contains a provision stating as follows: "The principles of seniority shall be observed in establishing days off and work schedules by department, location, or scheduling pool." As a result, the schedule bids of all employees were considered based on the seniority of the employees. At the time of his hire, Petitioner spoke with Bernhard about special scheduling requests. Specifically, Petitioner asked to receive early shifts and weekends off. He wanted the weekends off due to child-care issues with his son. Bernhard informed Petitioner that he would attempt to work with Petitioner on this, but that he was limited in what he could do based on the seniority requirements set forth in the CBA, as well as the fact that most of the lifeguards preferred to have weekends off. At that point in time, Petitioner had the least amount of seniority of all the full-time lifeguards, since he was the most recently hired employee. Despite the CBA restrictions, Bernhard made every effort to provide Petitioner with at least one day each weekend off and tried to provide him with two, whenever possible. On a regular basis, Petitioner was scheduled to have Saturdays off. In addition, on numerous occasions, he was given Friday, Saturday, and Sunday off from work, in accordance with his special request. At no time during his employment did Petitioner ever complain to Bernhard about not getting enough days off on the weekend. Employees would occasionally complain to Bernhard about the weekly schedule. When he received such complaints, Bernhard would listen to their complaints and not take any adverse action against any employee for complaining to him about scheduling issues. On occasion, lifeguards would be sent home early due to slow business or inclement weather. This decision would be made either by the immediate supervisor on duty or one of the coordinators. The lifeguards would be allowed to volunteer to go home on a "first-come, first serve" basis. No lifeguard, however, was forced to go home early. Similarly, Bernhard did not receive complaints from any lifeguard about being forced to go home early. The coordinators at the Grand Floridian were responsible for making the daily rotation schedules. There were five primary positions that the lifeguards could be assigned to on a daily basis, consisting of two lifeguard positions at the pool, the slide, the marina, and cashier. The coordinators made these assignment decisions based on the people they had available that day. The primary focus was to make sure that all of the areas were properly covered. Such daily rotation assignments were also based on certain needs during particular periods of the day. In addition, certain assignments were given to certain employees if they are more capable of performing the task. It is also not uncommon for the daily rotation to be changed during the day based on unexpected factors, such as absent employees. In terms of shift assignments, an effort is made to make sure that regular employees and college program employees are working together so that the regular employees can provide guidance when needed. During a workday, most of the employees rotate positions every 30 minutes to an hour. The rotation of duties for the lifeguards changed on a daily basis. Petitioner enjoyed working as a lifeguard because he considered himself a stronger lifeguard than others in his department. He also described himself as the "leader of the lifeguards." All lifeguards are trained in the cashier duties, but very few individuals are chosen to actually work as a cashier. These cashiers undergo special training prior to performing these duties. The primary attributes for a cashier are good guest interaction and good phone skills because a cashier is required to interact with guests, both on the telephone and in person. This assignment also differs from the other assignments in that the employee assigned to this position normally does not rotate throughout the day to other assignments. It is not uncommon for the same employee to serve as a cashier for an entire day. Petitioner was sometimes assigned to work at the marina, but not as a cashier. Petitioner never spoke with any of his supervisors or coordinators about working more at the marina or as a cashier. Each lifeguard at the Grand Floridian was required to complete four hours of in-service training each month, either at his home resort or at another resort. Attendance at these training sessions were tracked on a daily sign-in sheet. If a lifeguard failed to complete his or her in-service training for the month, he would be reprimanded. Davis prepared a reprimand for Petitioner on April 1, 2003. This reprimand was the result of Petitioner's failing to complete his in-service training hours for the month of March 2003. As a result of failing to complete this training, Petitioner received a two-point reprimand for poor job performance. Petitioner did not know when Davis prepared the Poor Job Performance Memorandum dated April 1, 2003. Davis and Petitioner did not see each other between Petitioner's accident on March 30, 2003, and the date Petitioner signed the Poor Job Performance Memorandum on April 9, 2003. At the time that Davis prepared this memorandum, Petitioner had not made any complaints of discrimination or harassment to Davis. The attendance of the lifeguards on a daily basis was tracked by the use of an electronic swipe card. The daily schedule and attendance of the lifeguards was also tracked on a daily sheet completed by the coordinators. This sheet was kept in the managers' office and was forwarded to the Respondent's Labor Office when it was completed. Bernhard usually reviewed these sheets on a daily basis as well. The lifeguards did not have access to these sheets on a daily basis. Under the attendance policy in the CBA, three absences in a 30-day period warranted a one-point written reprimand. An employee had to receive three written reprimands within a 24- month period before he could be terminated for attendance issues. The reasons for an absence did not make a difference for purposes of accruing points under the policy. On March 24, 2003, Petitioner called in sick and did not appear for work. On his way home from work on March 31, 2003, Petitioner was in a car accident in a parking lot on Respondent's property. As a result of that accident, Petitioner's car had to be towed because it was not drivable. Petitioner did not, however, seek medical treatment as a result of the accident. Shortly after the accident occurred, Petitioner contacted Bernhard. He informed Bernhard of the accident and told him that he would not be available for work the next day because his car had been destroyed. He did not inform Bernhard that he had been injured in any way. Petitioner was absent from work on April 1, 2003, because he had no transportation. Petitioner called in his personal absence on April 1, 6, 7, 8, 13, 14, 15, and 16, 2003, and was a "no show" on April 2, 2003. As a result of these numerous absences, Davis made a decision to contact Petitioner by telephone and inquire about the reasons for these multiple absences. Petitioner informed Davis that he still did not have transportation. Petitioner expressed concern to Davis that he was afraid he was going to accrue too many points and get himself terminated. Davis responded to Petitioner that if he did not return to work, he would accrue points under the attendance policy. Petitioner asked Davis if it would be better if he terminated himself or if he was terminated by Respondent. Davis also informed Petitioner that if he terminated himself, at some point he might be able to return to his job at Respondent, though he did not guarantee him that he could simply return. Davis made it very clear to Petitioner that this was a decision he had to make. At the time of Davis' phone call to Petitioner, he had accrued sufficient points under the applicable "attendance policy" set forth under the CBA to warrant giving him a one- point written reprimand. Davis had not been able to give the reprimand to Petitioner, however, because he had not returned to work. At no time had Davis ever informed Petitioner that such a reprimand was waiting for him. In addition, such absences would not have provided a basis for terminating Petitioner at that point in time. Petitioner contacted Davis the following day and informed Davis that he was going to voluntarily resign his employment. Upon learning of this decision, Davis informed Petitioner that he needed to return his uniform and all other of Respondent's property prior to receiving his last paycheck. All employees are required to return their uniform and Respondent's property at the time of resignation. Davis never informed Petitioner that he was being terminated or that he had an intention of terminating him. Similarly, Davis never told Petitioner that he had no option but to resign. Davis had no problem with Petitioner returning to work, provided he could obtain proper transportation. After Petitioner's resignation, Davis completed the required paperwork and indicated that Petitioner should be classified as a "restricted rehire." Davis chose this restriction due to Petitioner's tardiness and attendance issues, as well as his failure to take responsibility to make it to work. This decision to categorize him as a "restricted rehire" was not based on Petitioner's age, national origin or his gender. Petitioner visited Respondent's casting center (human resource department) on June 17, 2003, approximately two months after his resignation, with the intent to reapply for his prior position. Petitioner wanted to return to his same position at the Grand Floridian, working for Davis and Bernhard, as well as working under the same coordinators. On June 17, 2003, Petitioner met with Fernanda Smith, who has served as a recruiter for Respondent for five years. Smith was born in Buenos Aires, Argentina, and is Hispanic. As a recruiter, Smith is responsible for interviewing, selecting, and hiring the strongest candidates for positions at Respondent. She is responsible for hiring employees for all hourly, entry- level positions. The hiring process used by Respondent is the same for both new applicants and former employees of Respondent. That process is set forth in the "Rehire Review" policy given to each recruiter. Once Smith is randomly assigned an applicant, she brings them to her office and reviews their personal data in the computer. She then reviews the application for accuracy and completeness. She also confirms that they are qualified to work in the United States and their criminal background. Smith reviews the conditions of employment with the applicant, including compensation, appearance, ability to attend work and transportation. If the applicant was previously employed by Respondent, Smith also reviews the application for the reasons the employee previously left employment and the applicant's rehire status. The different rehire statuses are "yes rehire," "restricted rehire," and "no rehire." If a former employee has been categorized as a "restricted rehire," Smith then must confirm that the person is currently employed and that he or she has been at that employment for a period of at least six months at the time of re-application. Assuming they can satisfy these requirements, the applicant is required to provide an employment verification letter from their current employer within one week of the interview. At that point, the information is forwarded to a rehire committee for consideration. On June 17, 2003, Smith interviewed Petitioner for potential rehire with Respondent. She recalls that when she met him in the lobby, he was very professionally dressed. Upon entering her office, Smith reviewed the information on Petitioner's application with him. At that point, she noticed that he had a recent date of termination from Respondent and asked him the reasons for his termination. Petitioner responded that he had left his employment because of transportation problems and that he had missed a number of days from work. In reviewing Petitioner's application, she realized that he did not meet the requirements for consideration as a "restricted rehire." First of all, Petitioner did not offer any evidence of current employment at the time of the interview. Secondly, Petitioner had only been gone from Respondent for a period of approximately two months, and thus, did not have the six months of continuous employment to be considered for rehire. Smith shared with Petitioner that he did not meet the minimum requirements for a "restricted rehire." Petitioner had no idea what that designation meant. At that point, Petitioner responded by getting very upset, yelling and screaming at Smith, standing up and pointing his finger at her. He then informed Smith that he was going to sue Respondent for discrimination and left her office. Petitioner did not allow Smith to make any other comments to him. Immediately after Petitioner had left the building, Smith prepared the standard evaluation that she prepares for all applicants she interviews, including the incident that occurred in the interview with Petitioner. If Petitioner had allowed Smith to explain the process and eventually provided the appropriate documentation, he might have been considered for rehire. Based on his behavior in the interview, however, Smith recommended that he not be considered for rehire, particularly for the position of lifeguard where he would be dealing with guests on a regular basis. Allegations of Discrimination Petitioner alleges that one of the coordinators referred to his national origin in a derogatory manner on one occasion. Other than this isolated alleged comment, he stated he never heard anyone else at Respondent make any derogatory comments about his being Hispanic or Venezuelan. Petitioner did not complain about this comment to anyone at Respondent and specifically did not complain to Davis, Bernhard, or employee relations about it. Other than this one comment by an unnamed coordinator, Petitioner offered no evidence that any actions or decisions were taken against him based on his national origin. In support of his age discrimination claim, Petitioner alleges that some of his co-workers referred to him once or twice as "old." Petitioner did not offer any evidence that any of his supervisors or coordinators ever used any of these terms in reference to him. Petitioner does not know whether or not he ever discussed his age with other workers. At the time of Petitioner's resignation, he was not the oldest lifeguard working at the Grand Floridian. Penny Ivey and Sherry Morris were both older than Petitioner, and Davis was born on February 5, 1951. At the time of Petitioner's resignation, Davis was 52 years old. Other than these alleged isolated comments, Petitioner offered no other evidence that any actions or decisions were taken against him based on his age. Petitioner claims that one example of gender discrimination was that the rotation schedule was not equal. In particular, he alleges that the "young and beautiful girls" were preferred in the rotation schedules because they were allowed to work in the marina and at the cash register more than males. Petitioner alleges that Jaimy Tully, a 23-year-old female lifeguard, was always late. For example, Petitioner alleges that Tully was late on March 2, 2003, based on the fact that she was supposed to be there at 10:00 a.m. The daily schedule indicates that she arrived for work at 9:30 a.m. In reviewing the document, however, it indicates "S/C" which means that a schedule change was made, and Tully showed up for work half an hour early, not late, and she still worked her scheduled day of ten hours. A schedule change would occur for several reasons, including the need to have certain employees come in early for an in-service session or the personal request of an employee. It sometimes required employees to come in for work early and other times required them to work later. Petitioner similarly alleges that Tully was late on March 22, 2003, and should have been fired for that. In reviewing the daily schedule for that date, however, it is evident that a schedule change was made, and Tully was scheduled to work from 9:30 a.m. to 8:30 p.m., a regular 10-hour day, and that she actually worked those hours. Petitioner admitted at the hearing that she was actually early to work and not late. Petitioner alleges that Tully was late again for work on April 7 and April 16, 2003. A review of those daily schedules, however, reveals that Tully had a schedule change on each of those days and that she worked the hours that she was assigned. Of all these allegations of Tully being late to work, Petitioner never complained to anyone about it. Petitioner then alleges that Tully arrived for work early on February 15, 2003, and that she was allowed to work extra hours and earn overtime. On that particular occasion, however, Tully was called in early because she needed to attend an in-service training session that was occurring that day. Petitioner conceded that Tully was not late on that day. Petitioner admitted that both males and females were called in to work additional hours as lifeguards. For instance, Michael Whitt, a male employee, was allowed to start work earlier based on a schedule change on March 4, 2003. Similarly, a schedule change was made involving Whitt on February 25, 2003, and he was required to report to work at 11:40 a.m., not 10:00 a.m., and as a result, was not given any breaks that day. Petitioner never received any discipline as a result of being late to work or for leaving work early. Petitioner claims that he suffered discrimination on January 12, 2003, because Tully was allowed to start work later than he and then was allowed to work as a cashier for the majority of the day. He claims that she should have been on a rotation like him and that she was given more hours than he was. Tully was trained as both a lifeguard and a cashier, but she had more cashier experience than the majority of the other lifeguards. She also had good guest-interaction and cash- handling skills, and thus, she was placed as a cashier more than most of the other lifeguards. The cashier assignment also differed from the other assignments in that the employee assigned to this position normally did not rotate throughout the day, and it was not uncommon for the same employee to serve as a cahier for an entire day. Petitioner never spoke with any of his supervisors or coordinators about serving as a cashier, nor did he ever complain to Bernhard about any of his daily assignments. He alleges that the woman and the "young girls" were always placed at the marina. When asked to identify "these girls," he stated he was referring to Mindy and Matt, a male employee. In particular, Petitioner testified that on December 25, 2002, Matt served in the marina for three consecutive rotations on that particular day. He also points out that Matt had a longer break than he did on that particular day. There was no pay differential between employees who were assigned to work at the marina and those who worked at the pool. Similarly, there was no pay differential between employees working as a cashier and those at the pool. Petitioner never made any complaints to Davis about his weekly schedule or his daily rotation assignments. Similarly, Petitioner never complained to Davis about any disparate treatment or harassment based on his age, national origin, or gender. Petitioner never raised any complaints about discrimination or any other working conditions with Bernhard. Bernhard never made any derogatory comments to him or about him. Bernhard does not give any preference to any employees based on age, national origin, or gender. Petitioner was aware that there was an Employee Relations Department located at the casting center, but never complained to them about his working conditions or alleged discrimination.
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 Petitioner's Petition for Relief and dismisses his complaint. DONE AND ENTERED this 14th day of April, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2004. COPIES FURNISHED: Fernando J. Conde 4732 Olive Branch Road Apartment No. 1205 Orlando, Florida 32811-7118 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner, a member of a protected class, was terminated from his employment with the Respondent in the Hospitality Department at the Grand Floridian Hotel on or about March 18, 1993 on the basis of his national origin (Hispanic-Dominican Republic), in violation of Section 760.10(1)(a), Florida Statutes (Supp. 1992).
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. The Petitioner was employed by the Respondent at its Grand Floridian Hotel as a valet/greeter/bellman in the Hospitality Department during the relevant period of time, including March of 1993. The Petitioner is of Hispanic origin from the Dominican Republic and is a member of a protected class. In approximately October of 1988, the Petitioner began his employment with the Respondent at the Contemporary Hotel as a valet/greeter. In April of 1989, the Petitioner received a written reprimand for not logging in a piece of luggage. The Petitioner did not grieve the April 1988 written reprimand. In May of 1989, the Petitioner transferred to the Respondent's Grand Floridian Hotel, where he was a valet/greeter/bellman. In February of 1990, the Petitioner received an oral reprimand for three separate incidents of improperly logging luggage. 9. The Petitioner could not recall if he grieved the February, 1990 oral reprimand. In August of 1990, the Petitioner again received an oral reprimand, this time for mixing up luggage while loading it into vehicles. The luggage had to be mailed to each rightful owner at the Respondent's expense and caused an inconvenience to the guests. The Petitioner could not recall if he grieved the August 1990 oral reprimand. In December of 1991, the Petitioner mishandled luggage by failing to tag all of a guest's bags. In May of 1992, the Respondent's management discussed with the Petitioner his failure to tag a piece of luggage. In July of 1992, the Petitioner received a verbal reprimand for failing to log in a guest's luggage. The Petitioner's verbal reprimand in July of 1992 was the result of a direct complaint by a guest, who was required to search for a piece of his own luggage in the Hotel's storage room. The Petitioner could not recall if he grieved the July 1992 verbal reprimand. In September of 1992, the Petitioner received a verbal reprimand for approaching a guest to discuss splitting a tip with a bellman, an impermissible practice. The Petitioner was not suspended for this incident. In December of 1992, the Petitioner received a written reprimand for failing to follow proper procedures regarding a guest's luggage on two separate occasions. The Petitioner did not grieve the December 1992 written reprimand. The Respondent decided not to consider the two incidents in December of the Petitioner's luggage-mishandling as separate incidents for progressive discipline purposes, even though such action was permissible under the collective bargaining agreement. The Respondent's decision not to consider the two December 1992 incidents separately for progressive discipline purposes was based upon the Petitioner's length of service and his good performance in other areas. The Petitioner had a good attitude, had good people skills, and had received good guest comments during the course of his employment. In December of 1992, the Petitioner understood that he was in the progressive discipline process. In January of 1993, the Respondent met with the Petitioner and offered to remove him from the responsibility of handling luggage by putting him in a non-tipped, dispatcher position. Also, in January of 1993, the Respondent and the Petitioner's union representative were working together to preserve the Petitioner's job. The Petitioner was reminded by his union representative about his previous reprimands and that one more incident would cause his termination. The Petitioner was told by his union representative that the purpose of moving him to a dispatcher position was to get him away from the luggage-handling area. The Petitioner was told that if he remained free of similar reprimands for one year, he could return to the tipped position of valet/greeter with no loss of seniority. After initially refusing the dispatcher position, the Petitioner accepted. The Petitioner was given the shift that he requested when he was transferred to the dispatcher position. In February of 1993 while on duty as a dispatcher, the Petitioner received a three-day suspension, without pay, for using poor judgment. He interrupted a valet while the valet was servicing a guest. The Petitioner did not grieve the February 1993 suspension. The Petitioner's action as a dispatcher of interrupting a valet was grounds for the valet to grieve such actions to the union. The suspension in February of 1993 for the Petitioner's poor judgment as a dispatcher was not the basis for his termination. The Petitioner requested a reclassification back to valet/greeter/bellman position. The Petitioner understood that one more incident of any kind would result in his immediate termination. The Petitioner requested the change from dispatcher back to valet/greeter/bellman for personal financial reasons; and his union representative also advised him that if one more incident of any kind occurred, he would be terminated. On March 16, 1993, the Petitioner mishandled luggage. The Petitioner did not properly log in a guest's luggage (a garment bag). 35. The Petitioner was terminated on March 18, 1993 for poor job performance. The progressive discipline which the Petitioner received was consistent with the union contract. The contract provides that an employee can be terminated for the next offense following a single written reprimand. The Petitioner had the opportunity to grieve all of the reprimands he received, and his union representative was aware of the actions taken in connection with the Petitioner's employment. The Petitioner grieved his termination, and that grievance was denied. The Petitioner failed to provide evidence of any similarly-situated employee who was not terminated for mishandling luggage on as many occasions as he had. The Petitioner failed to provide evidence regarding any discrimination against other Hispanic employees, other than his own belief, speculation or conjecture. The Petitioner understood that the Respondent's management was closely checking into everyone's performance. Management asked all of the employees at the Grand Floridian Hotel to help the Hotel earn a five-star rating. The Petitioner was never part of the Respondent's management and did not attend manager meetings. During the course of his employment, the Petitioner was chosen to train other employees because he knew the proper procedures for his valet/bellman/greeter position. The Petitioner knew the proper procedures for handling luggage received from guests. The Petitioner knew the proper procedures for logging in and handling bags. The Petitioner received copies of the Respondent's policies and procedures for a valet/bellman, including luggage handling. The Petitioner did not report many of the alleged discriminatory actions of his co-workers to management. The Petitioner conceded that on those occasions when he did make reports to management, these alleged actions stopped. The Petitioner received the overtime and schedules which he requested because of his seniority. The number of minorities employed at the Respondent's Orlando, Florida, work site has increased from 1993 to 1996. The number of minorities employed at the Respondent's Grand Floridian Hotel has either remained the same or increased from 1992 to 1995. In January of 1993, the number of minorities in the Grand Floridian Hotel's Hospitality Department was 14, of which 11 were Hispanic; and there were four Hispanics in the valet/greeter classification. In February of 1996, the number of minorities in the Grand Floridian Hotel's Hospitality Department (including valets, bellmen, greeters and dispatchers) was 16, of which 12 were Hispanic; and there were four Hispanics in the valet/greeter classification. The Petitioner failed to produce any evidence of an overall plan by the Respondent's management to eliminate minorities, including Hispanics, from employment at the company. The Respondent allows employees to review their employment records at any time upon request. The Petitioner presented only his own beliefs, speculation or conjecture as a basis for his claims of national origin discrimination.
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 19th day of April, 1996, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3990 The following constitute my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. The Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by the Respondent: Accepted in substance: paragraphs 1-20, 22-31, 33-39, 41-61. Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 21, 32, 40. COPIES FURNISHED: Mr. Jorge V. Jimenez 2716 FDC Grove Road Davenport, Florida 33837 Myrna L. Galligano, Esquire Garwood, McKenna & McKenna, P.A. 731 North Garland Avenue Orlando, Florida 32801 Dana C. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent, National General Management Corporation (National General), discriminated against Petitioner, Charles Hinchey, on the basis of his handicap and age in violation of section 760.10, Florida Statutes (2018).1/
Findings Of Fact The final hearing was convened at 9:30 a.m., on October 30, 2019.5/ Respondent's representatives appeared at the hearing. Petitioner did not appear. Petitioner did not otherwise file any correspondence or evidence for consideration at the final hearing. The Respondent's representatives, who had flown in from out of state, confirmed that they received the Notice of Hearing and were aware of the date, time, and location of the final hearing on October 30, 2019.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Petitioner, Charles Hinchey, did not prove Respondent, National General Management Corporation, committed an unlawful employment practice under the FCRA based on his age or handicap, and dismissing the Petition in its entirety. DONE AND ENTERED this 6th day of November, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 6th day of November, 2019
