Findings Of Fact Petitioner, Omerea E. Herring, is a registered nurse with a degree in nursing from LaGrange College in Georgia which she attended between 1976 and 1978. No limitation was placed on her degree nor on her license as a registered nurse because of her handicap. Petitioner is handicapped visually. She was born with toxoplasmosis, a condition which leaves her nearsighted. This congenital condition has stayed the same over the years and will not likely change in the future. During Petitioner's education, she used regular textbooks, not Braille. She continued college for a year after receiving her nursing degree taking courses in liberal arts, and then was hired as an R.N. in September, 1979 by West Georgia Medical Center. Petitioner worked as a floating nurse, filling in and doing routine care and other general duties until she voluntarily left employment to move with her husband to another area in Georgia where she again secured employment as a registered nurse. Her duties entailed primarily sterilizing instruments and she remained in that job for approximately four months until her husband completed his education and they moved to Gainesville, Florida. When Petitioner applied for her nursing jobs, she informed her prospective employers of her condition and because of her handicap, there were some limits placed on her duties. For example, she requested not to be assigned to a heavy medication area and in each case, the hospital accommodated her. She asked for these limitation so as to not run the risk of inadvertently placing patients in danger. When Petitioner came to Gainesville, she was interviewed at Shands and at the time of her application, advised the interviewer she was physically handicapped and noted it on her application for employment. She was, nonetheless, selected for a further interview with the head nurse of the newborn nursery, Mrs. Wyman. Subsequently, as a result of this second interview, she was hired as an RN I in the newborn nursery starting in July, 1980. Petitioner worked on several shifts, primarily the seven am to three pm shift, but for three weeks during October, 1980, she worked the three to eleven pm shift. While on duty, her primary duties were to admit and assess patients, describe vital signs and discharges, and bathe and feed babies. She was also required to instruct new mothers on how to care for their children and did substantial charting. During her time in the nursery she did not give injections or administer medications because of her vision problems. She was unable to read the small print on the medicine bottles. Her supervisor knew this and agreed to the limitation and made alternate arrangements for the administration of medications. There was ample staff to do this consisting of between six and eight people on the shift of whom four or five were RN's and the others LPN's, Clerks and Aides. In November, 1980, she went on maternity leave. When she was originally hired, she was five months pregnant and it was obvious she would have to take maternity leave within a short time. Before leaving, she orally got permission from her supervisor. Her leave was to be for three to six months and when she left work, she was given no indication she would not be allowed to come back. It was only after the birth of her child, when she went to the hospital to fill out certain insurance forms for the hospital group insurance policy, that she was told by Mr. Bruce Malsbury, an official in the hospital personnel department, that there had been some difficulties with her work in the nursery and she would not be re-placed at Shands Hospital when she was ready to return off maternity leave. When she asked Mr. Malsbury about the availability of alternate employment with the hospital, since it was apparent to her that the decision not to bring her back was related to her visual handicap, he said there was no alternative placement available. To the day of the hearing, she has not received any official notice in writing of her termination. However, in January, 1981, she submitted a letter of resignation to Mr. Malsbury based on her need to be at home with her new child. Petitioner claims however, that this letter was suggested to her by Mr. Malsbury, after he advised her that she would not be rehired, on the basis that if she could show that she resigned, it would be easier for her to secure employment elsewhere. No evidence to contradict this was presented by Respondent. Mr. Malsbury did not testify and the custodian of the records was unfamiliar with the background relating to the letter in question. When it became obvious that Petitioner would not be rehired at Shands, she applied at the Alachua General Hospital in early 1981 for employment as an RN. Though she interviewed, she was turned down on the basis, she was told, of a poor recommendation from Shands. Respondent contends that Petitioner was terminated from employment as a part-time temporary employee on November 12, 1980, involuntarily, because of derogatory comments contained in her personnel record. On the termination report, signed by Mrs. Wyman on January 12, 1981, there was a recommendation that Petitioner not be rehired in any job. The termination was based on two incidents reflected in incident reports both dated October 27, 1980, thirty minutes apart. In each case, the shift supervisor, Ms. Hitchcock, wrote the Petitioner up because of minor injuries to infants which, it was claimed, were resulting from the improper handling of the infants by Petitioner. Petitioner did not take any action to contest the decision of the Respondent at the time. When Mr. Malsbury discussed the situation with Petitioner at the time she came in to file the insurance forms, he merely indicated there had been a complaint filed by Ms. Hitchcock, but gave no specifics. This was the only notice she was given of any complaints about her work and it related only to the one shift in October, 1980. Her license as a registered nurse is currently in effect, but during the period June, 1981 through June, 1984, her license was suspended for a period of time. The complaints submitted by Ms. Hitchcock to the Board of Nursing were identical to those described above including allegations that she was too rough with the babies, bumped into things with them, and was improper in her bottle feeding. Though she has applied for employment at other hospitals besides Shands and Alachua General in the general area where she lives, she has not been hired. She is now employed in industry as an industrial nurse doing primary care for employees. In addition to the part time job in industry, Petitioner also worked for the Sunland system as a cottage nurse during the period August to December, 1981. She left there because of a second pregnancy and decided to stay home and raise her children. Her three children are now ages 5, 3 and 8 months. She has never been fired from any employment other than with Shands. Petitioner contends there are many RN positions available at Shands where her handicap would not interfere with her duties and she is convinced she could satisfactorily fill any of them. Lists of vacant positions at Shands in the nursing career field for the period February 17, 1984 through September 10, 1984, reveal numerous staff nurse positions available in various departments throughout the hospital. However, Petitioner has failed to show that she is capable of performing duties safely in any of the numerous Staff Nurse I positions. Her unsupported allegations that she can perform many nursing positions which do not require good eyesight is insufficient to establish that she is qualified for any of the listed positions. Notwithstanding, her license is currently in good standing and current and she has completed all educational and other requirements necessary to keep her license current. In 1984, Petitioner again applied for employment with Respondent but was not given an interview. She was advised in writing that her application would be kept on file but that there was no job available for her at that time. A phone call to Mr. Malsbury revealed she was not hired because of her termination in 1980. It is because of this 1984 failure of Shands to hire her that Petitioner filed the complaint with the CHR. Shand's Policy C, as outlined in Memorandum PM-218, dated January 5, 1984 states that former employees terminated because of unsatisfactory performance, job abandonment, or misconduct, will not be considered for rehire. Since Petitioner had been terminated in 1980 because of unsatisfactory performance, consistent with that policy she was not eligible for rehire in 1984. Notwithstanding the fact that Ms. Hitchcock and Mrs. Wyman, along with several of the other nurses with whom Petitioner worked considered her performance to be unsatisfactory, others, all of whom are either RN's or LPN's who worked with her at various times when she was a Staff Nurse I in the newborn nursery, and who had the opportunity to observe her on a repeated basis, felt certain that she did her job in a satisfactory fashion. Petitioner made it known what duties she could not do and in all cases, when confronted with a situation where she felt it was improper for her to attempt to render patient care, she got assistance from someone else to do that particular job. None of them ever observed any deficiencies in Petitioner's nursing performance or her educational background which resulted in poor patient care. No one ever saw her injure any child under her care either intentionally or negligently. Most of these witnesses, who have been active in nursery nursing for a period of time, have concluded that babies do, in fact, scratch themselves due to long fingernails and there is no evidence that Petitioner was directly responsible for the injury to any patient under her care. It is also the opinion of one of her associates who complained about Petitioner, that she tended to over-react. Within the nursing community at Shands in the nursery, there was some difference of opinion as to the appropriateness of Petitioner's discharge in the first place. While it is obvious that Petitioner may not have been responsible for substandard care (though her license was suspended for a period) and her discharge may have been more the result of internal ward factionalism rather than ineptitude, there is no evidence that it was the result of unlawful discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Omerea Herring's Petition for Relief from Unlawful Employment Practice be denied. RECOMMENDED in Tallahassee, Florida this 29th day of April, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1986. COPIES FURNISHED: Phil S. Whiteka, Esquire 537-3 N.E. 1st Street Gainesville, Florida 32601 Thomas M. Gonzales, Esquire P. O. Box 639 Tampa, Florida 33601 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
The Issue The issue presented is whether Respondent City of Gainesville committed an unlawful employment practice when it terminated Petitioner's employment.
Findings Of Fact Petitioner is a white male. Petitioner's employment as a police officer was terminated by Respondent City of Gainesville on September 17, 2008. On the evening of June 26, 2008, Petitioner was voluntarily working an extra duty assignment at the Super Wal- Mart store on Northeast 12th Avenue in Gainesville. Wal-Mart had been experiencing problems with juveniles entering the store in large groups and causing disturbances and property damage. At approximately 11:15 p.m., Ms. Felicia Stallworth, a black female, pulled into a handicapped-parking space and hung her handicapped-parking decal from her rear-view mirror. She was accompanied by two children: her twelve-year-old son and her seven-year-old niece. At the time, Petitioner, who was in uniform and wearing his badge, was engaged in conversation with the occupants of a vehicle parked in another handicapped-parking space. Stallworth and the children exited her vehicle and began walking to the store's entrance. Because Stallworth was talking on her cell phone while she was walking, she heard Petitioner say something but did not know what he said. She stopped walking and asked him what he wanted. Petitioner rudely and loudly demanded to see her documentation to prove she was entitled to park in a handicapped-parking space. Stallworth complied by walking back to her vehicle, sitting in the driver's seat with the driver's door open, and retrieving her handicapped-parking registration from her glove compartment. While she was doing so, Petitioner, who was standing just outside the car door, was shining a flashlight into her car so that it was shining in her face. She told him several times to move the flashlight because she could not see, but he ignored her and continued to shine it in the same manner. Concerned for the safety of the children who were standing at the back of the car on the passenger side, she instructed the children to get back in the car so as to be out of the path of passing vehicles. Petitioner rudely and loudly told them to stand in front of the car instead. The children complied. Stallworth retrieved the registration and handed it to Petitioner. She also handed him her placard. She then attempted to get out of the car so she could put her purse on the hood of the car so she could find her driver's license. As she stood up, Petitioner crossed his arms in front of his chest in a blocking motion and, using them, shoved her forcefully against her car and then down into the driver's seat. Her glasses were knocked askew, and the side of her face and earlobe began to burn, likely from being scraped against the doorframe. After she was shoved back into her car, Stallworth was able to find her driver's license in her purse, and she handed it to Petitioner. When Petitioner finished examining her placard, her placard registration, and her driver's license, he handed the documents back to Stallworth and told her to have a nice day. Petitioner walked to the door of the store, turned and looked at Stallworth, and stood there, apparently laughing at her. Some of the numerous witnesses to this encounter between Petitioner and Stallworth came up to her, inquired as to how she was, and walked into the store with her. Petitioner followed Stallworth while she was in the store. When Stallworth left the store, she saw Petitioner walk behind her car, write down her license tag, and then get into his vehicle. Stallworth thought he was "running her tag" and became afraid of what he might do to her next. She called a relative who worked for the Alachua County Sheriff's Office and asked that person to come to Wal- Mart and watch her leave. After calling, she went back into the Wal-Mart to wait. When she came out again, she and Petitioner did not interact. Before Petitioner shoved her against and then into her vehicle, Stallworth had made no threatening remark or gesture that would cause Petitioner to have any concern for his safety. After Stallworth returned to her home, her back started hurting, and her face and earlobe still burned. She telephoned the City of Gainesville Police Department and complained about Petitioner's unacceptable treatment of her. The complaint was forwarded to Sergeant Lance Yarbrough, the Sergeant on the midnight shift. At 1:45 a.m., when he had "cleared" the matter he was working on, he called Stallworth. She described what had happened, including Petitioner's demeanor and her injuries. She told Yarbrough she had obtained the names and telephone numbers of some of the witnesses who had seen the entire encounter. After attending to some additional duties, Yarbrough arrived at the Wal-Mart at 3:00 a.m. to talk to Petitioner about his use of force on a disabled person. Petitioner's version of what had happened essentially matched Stallworth's, including admitting he had "pinned" her to her vehicle. By the end of their conversation, Petitioner had become confrontational about defending what he had done and demanded of Yarbrough, "Do you have a problem with that?" Yarbrough answered Petitioner in the affirmative. Yarbrough tried to obtain a copy of Wal-Mart's video surveillance tape, but a copy of the tape could not be made by Wal-Mart employees at that hour. After he left Petitioner, Yarbrough, a white male, completed an Administrative Investigation Referral Form regarding Petitioner's treatment of Stallworth, which he considered a violation of the City's Policies and Procedures Number 19, Rule 19. That Form is, essentially, a referral to the police department's internal affairs office. He filed that form on June 27, 2008, in his name and in Stallworth's name. Stallworth filed her own form on that same date. Wal-Mart has a policy of releasing copies of its video surveillance tapes only to law enforcement officers conducting official business. Internal Affairs investigator Sergeant Jorge Campos, a white male, contacted Wal-Mart and arranged to obtain a copy of the video of Wal-Mart's parking lot showing Petitioner's encounter with Stallworth. When he later called Wal-Mart to make sure the copy was ready, he was told that another police officer had come to pick it up, and the copy had been given to him. Campos requested an additional copy and when he went there to pick up that copy, the Wal-Mart loss prevention employees showed Campos the video and also a video of Petitioner picking up the copy of the video that had been made for Campos. Since Petitioner had come there in a police car and in uniform, they had assumed that Petitioner was obtaining the copy of the video for official purposes. In fact, Petitioner never reported to the police department that he was conducting an investigation and that he had obtained evidence of his encounter with Stallworth. Further, he never turned over to the police department his copy of the video so it could be preserved as evidence in the evidence room, as required by department policy. Petitioner did not obtain the video for law enforcement purposes, therefore, but rather for personal purposes. Campos watched the copy of the surveillance video he had obtained from Wal-Mart in conjunction with his investigation. He also interviewed and obtained sworn statements from Yarbrough, from Stallworth, and from all of the identified witnesses who were willing to speak with him about what they saw. During the course of the internal affairs investigation, it was discovered that Petitioner had also repeatedly contacted Stallworth's personal physician, allegedly in his capacity as a police officer, to ascertain what Stallworth's disability was that would have made her eligible for a handicapped placard. Eventually, Petitioner did speak with a doctor in that office who disclosed Stallworth's disability. Campos attempted to interview Petitioner, but Petitioner called in sick and did not appear for the scheduled appointment. Campos' further attempts to interview Petitioner were unsuccessful. At the conclusion of his investigation, Campos prepared his report and consulted with the Chief of Police as to an appropriate disposition of the matter. It was concluded that Petitioner had violated Rule 19 regarding his encounter with Stallworth by his (1) excessive use of force, (2) obtaining a video recording under the color of a law enforcement officer for personal use, and (3) obtaining medical information under the color of a law enforcement officer without proper legal service. It was determined that Petitioner's employment should be terminated. Policy 19, Rule 19 prohibits "[i]mmoral, unlawful, or improper conduct or indecency, whether on or off the job[,] which would tend to affect the employee's relationship to his/her job, fellow workers' reputations or goodwill in the community." The range of penalties for the first offense is from instruction plus 5 days' suspension up through dismissal, and for the second offense is dismissal. Petitioner exercised his right to file a grievance regarding his termination and participated in a multi-level grievance process within the City. His grievance was unsuccessful, and he was terminated from his employment as a police officer. At no time during Petitioner's conversation with Sergeant Yarbrough, during the internal affairs investigation, or during the City's grievance process did Petitioner raise any allegation of disparate or discriminatory treatment of him by the City due to his race or his sex. Sergeants Yarbrough and Campos are, like Petitioner, white males.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to meet his burden of proof and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 16th day of July, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 16th day of July, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Daniel M. Nee, Esquire City of Gainesville 200 East University Avenue, Suite 425 Gainesville, Florida 32601-5456 Jarrod Rappaport 402 Northwest 48th Boulevard Gainesville, Florida 32607 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues for determination in this case are whether Respondent's license should be renewed and whether Petitioner properly imposed a moratorium on Respondent prior to the expiration of Respondent's license.
Findings Of Fact Petitioner is the governmental agency responsible for inspecting assisted living facilities ("ALFs") and enforcing licensure requirements for ALFs in accordance with Chapter 400, Florida Statutes, 1/ and Florida Administrative Code Rule 58A-5. 2/ Respondent is licensed to operate an ALF for six residents. Respondent operates its ALF at 2809 Round About Lane, Orlando, Florida 32818 (the "facility"). Petitioner inspected Respondent's operation of the facility five times. Petitioner surveyed the facility on December 19, 1994, and on March 28 and June 14, 1995. Petitioner conducted a desk review on April 21, 1995. Petitioner conducted a follow-up visit and a complaint investigation at the facility on November 27, 1995. The surveys conducted on December 19, 1994, and on March 28 and June 14, 1995, cited 19 uncorrected deficiencies. The follow-up visit conducted on November 27, 1995, cites four new deficiencies not cited in the previous surveys. The complaint investigation conducted on November 27, 1995, cites two new deficiencies. Petitioner has complied with the alternative requirements of Section 400.419(1)(a). Petitioner has provided Respondent with timely and adequate notice of all deficiencies determined during each inspection. Petitioner provided Respondent with an adequate explanation of the nature of the deficiencies and the corrective action needed. The administrator was present when all of the surveys were conducted. Petitioner discussed the deficiencies with the administrator and explained the corrective action required for each deficiency. A pharmacy consultant was required to assist the administrator with deficiencies in Respondent's medication program Petitioner advised the administrator of the need for Respondent to submit a plan of correction on the deficiency statement with a proposed completion date for correcting each deficiency. Respondent failed to correct the deficiencies. Petitioner filed an administrative complaint against Respondent on November 1, 1995. The administrative complaint charged Respondent with the uncorrected deficiencies cited in all of the surveys except the follow-up visit and the complaint investigation conducted on November 27, 1995. Respondent timely requested a formal hearing. On February 7, 1996, a formal hearing was conducted in Division of Administrative Hearings ("DOAH") Case Number 95-5679. A final order was entered on March 28, 1996. The final order required Respondent to pay a fine of $7,250 pursuant to Sections 400.419(1)(b) and (c), 400.419(2), and 400.414(1). Respondent did not appeal the final order. Respondent failed to pay the administrative fine ordered in DOAH Case Number 95-5679. Petitioner correctly denied the renewal of Respondent's license, in part, because Respondent failed to pay an administrative fine within the meaning of Section 400.417(1). Petitioner correctly imposed a moratorium pursuant to Section 400.415 on the basis of repeated and continuing deficiencies permitted by Respondent. For the same reasons, Petitioner correctly denied the renewal of Respondent's license pursuant to Sections 400.401(3) and 400.414(2)(b), (d), and (g). The deficiencies addressed in Case Number 95-5679 were adjudicated in that case and are not reconsidered in this Recommended Order. Reconsideration of those issues is precluded by the doctrine of collateral estoppel. There are only two matters at issue in this proceeding. They are Respondent's failure to pay the fine ordered in Case Number 95-5679 and the deficiencies determined as a result of the follow-up visit and complaint investigation conducted on November 27, 1995. The deficiencies determined as a result of the follow- up visit conducted on November 27, 1995, are Class III deficiencies within the meaning of Section 400.419(3)(c). The deficiencies cited as a result of the complaint investigation conducted on November 27, 1995, are Class II deficiencies within the meaning of Section 400.419(3)(b). Respondent does not maintain complete personnel files on each member of the staff in violation of Rules 58A-5.024(1)(f) and 58A-5.0191(2)(a). Personnel files maintained by Respondent fail to document staff competency and training in first aid. Respondent does not execute contracts for each resident on or before their admission in violation of Section 400.424 and Rules 58A-5.024(2)(a) and 58A-5.0181(5)(b). Respondent admitted four new residents after June 14, 1995. Respondent does not complete health assessments for those residents admitted after June 14, 1995, in violation of Rule 58A-5.0181(4)(a). The method of management for resident medications is not identified on all health assessments. The administrator incorrectly supervises the residents' self- administration of medication. Respondent does not designate a properly trained person to have access to medications in violation of Rules 58A- 5.0182(6)(b) and 58A-024(1)(c). Respondent does not identify a method of management for resident medications in violation of Rule 58A-5.0182(6). Respondent does not accurately maintain the medication log, including timely and accurate entries of dosages taken by residents. Respondent's staff does not consistently and accurately observe self-administration of medication by residents. Discrepancies exist between the medication and dosages prescribed for residents, those actually taken by residents, and entries by the staff in the medication log. Respondent does not provide required reports by a consulting pharmacist in violation of Rule 58A-5.033(5)(a). The report required on or about April 11, 1995, was not filed until May 31, 1995. None of the subsequent reports required to update the initial report have been filed. Respondent does not note changes in each resident's condition in violation of Rule 58A-5.0182(2)(e). Respondent does not document procedures for the receipt, resolution, and documentation of resident complaints in violation of Rule 58A- 5.0182(7)(d). Menus are undated in violation of Rules 58A- 5.020(1)(h)1 and 58A- 5.024(3)(b)2. Substitutions are not recorded. Menus with recorded substitutions are not kept on file for six months. The noon meal on November 27, 1995, consisted of a cheese sandwich, chicken noodle soup, a banana, and apple juice. The meal was not on any menu. There are no menus or meal plans to meet the nutritional needs of residents requiring therapeutic diets in violation of Rule 58A-5.020(1)(c). The health plan for a resident admitted on July 13, 1995, prescribed a low fat and low cholesterol diet. Respondent maintains no meal plan or menus for this diet and has never served the therapeutic diet prescribed for this resident. Menus are not reviewed annually by a dietitian or dietetic technician in violation of Rule 58A-5.020(1)(e). No menus in the facility have been reviewed for 17 months. The door nearest the garage is a primary fire exit for residents in the south end of the facility. It can not be opened from the inside except by a person with the key to a lock installed by Respondent in violation of Rule 58A- 5.023(1). Respondent does not provide a safe, secure environment to at least one developmentally disabled resident in violation of Sections 400.428(1)(a) and Rule 58A-5.0182. The resident returned home about 4:00 a.m. one day. Respondent forced the resident to remain outside for over two hours until sunrise. The resident slept in a chair on the porch of the facility. Respondent receives state funds to provide the resident with a safe, secure environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of the allegations at issue in this proceeding, sustaining the moratorium, and denying the renewal of Respondent's license as an ALF. RECOMMENDED this 21st day of August, 1996, in Tallahassee, Florida. DANIEL MANRY, 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 21st day of August, 1996.
Findings Of Fact Petitioner was employed by Respondent as a cabinet maker from September 20, 1982 until May 11, 1984. He has had epilepsy for twenty years, and disclosed this on his application for employment. There is no dispute that Respondent was aware of Petitioner's epilepsy while he was their employee. Respondent is a corporation engaged in the manufacture of mobile homes. In early 1984 Petitioner began having problems with his medication, and several adjustments in dosage and types of medication were made by his physician. As a result of these adjustments, Petitioner had reactions which included dizziness, drowsiness and extreme irritability. He experienced great difficulty getting up in the morning and began being tardy for work. He had not had a tardiness problem previously, and had been a good worker. On March 16, 1984 Petitioner received a written reprimand for tardiness which indicates he was tardy seven times in ten weeks. Shortly thereafter, Petitioner brought his supervisor a note from his doctor which confirms that he was having trouble adjusting to his medication. It is Respondent's policy to counsel and reprimand, if necessary, employees who are repeatedly tardy. Respondent agreed to allow Petitioner to take extra breaks and have time to relax when needed while his medication problems were being resolved. In fact, from March 16, 1984 until May 8, 1984 Petitioner took extra breaks and rest periods during which he used the telephone and drank soft drinks. As a result, other employees had to help him get his daily work done on time. His tardiness also continued after March 16, 1984. On May 8, 1984 Petitioner was called into his supervisor's office and presented with another written reprimand, which he refused to sign. The reprimand was for not working up to his ability, slowing down in productivity, moving slowly on the job and not "working smart." By "working smart" his supervisor meant organizing his work and his work area to allow him to work on more than one cabinet at a time. It was the normal procedure for cabinet makers to assemble up to five cabinets at one time, but Petitioner was not able to do this routinely and, as a result, his productivity was lower than expected. Respondent had no intention of suspending or terminating Petitioner. Petitioner became agitated in the May 8, 1984 meeting with his supervisor, refused to sign the reprimand, and walked out saying, "Well, terminate me." He then got his hand tools from his work area, punched out, and left the plant. About two hours later, Petitioner called Respondent's general manager and asked to be allowed to come back to work. Petitioner was told that the situation would be looked into, and when Petitioner called back on May 11, 1984 he was informed by Respondent's general manager that he would not be allowed to return to work since his investigation had shown that Petitioner had punched out without informing his supervisor or seeking his permission, and further because of the agitated manner in which he had dealt with his supervisor on May 8. There is no evidence that Respondent has allowed other employees, who left the plant without permission after becoming agitated with their supervisor, to return to work. The evidence establishes that Petitioner was given special considerations due to his medical condition and the Respondent attempted to work with Petitioner for almost two months by making special allowances for extra breaks, phone calls and rest periods. Petitioner's work production was less than could reasonably be expected, and others had to help him get his work done on time. Petitioner was not allowed to return to work due solely to his actions on May 8, 1984, and not because of his epilepsy or medical problems related thereto.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 5th day of December 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-3011 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1. 3-4 Rejected as irrelevant and unnecessary. 5-7 Adopted in Finding of Fact 1. 8-13 Adopted in part in Finding of Fact 2, but otherwise rejected as unnecessary and cumulative. 14 Adopted in Finding of Fact 3. 15-17 Adopted in part in Finding of Fact 4, but otherwise rejected as irrelevant and unnecessary. 18-19 Adopted in Finding of Fact 5. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 22-23 Adopted in Finding of Fact 6. Adopted in Finding of Fact 2. Adopted in Finding of Fact 7. Adopted and rejected in part in Finding of Fact 7. Adopted in Finding of Fact 7. Rejected in Finding of Fact 8. Rulings on Respondent's Proposed Findings of Fact: 1-4 Adopted in Finding of Fact 1. 5-7 Rejected as irrelevant and unnecessary. 8-9 Adopted in Finding of Fact 1. 10-12 Rejected as irrelevant and unnecessary. 13-14 Adopted in Finding of Fact 2. 15-17 Adopted in Finding of Fact 3. 18-19 Adopted in Finding of Fact 3,4,9. Adopted in Finding of Fact 4. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 4,5,9. Rejected as unnecessary and cumculative. Adopted in Finding of Fact 5. 26-27 Adopted in Finding of Fact 4,9. 28-29 Rejected as irrelevant and unnecessary. 30-31 Adopted in Finding of Fact 5. 32 Rejected as irrelevant and unnecessary. 33-35 Adopted in Finding of Fact 6. 36-41 Adopted in part in Finding of Fact 7, but otherwise rejected as unnecessary and cumculative. 42-51 Adopted in part in Finding of Fact 8, but otherwise rejected as unnecessary and cumculative. 52-54 Adopted in Finding of Fact 7,9,10. 55-57 Adopted in Finding of Fact 8. 58 Adopted in Finding of Fact 10. COPIES FURNISHED: Howard L. Dimming, II, Esquire 1849 North Crystal Lake Drive Lakeland, FL 33801 Mark E. Edwards, Esquire 600 Peachtree at the Circle Building 1275 Peachtree Street, NE Atlanta, Ga 30309 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Betsy Howard, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Deborah Revell-Nicholson ""Nicholson"), was discriminated against by termination from her employment on the basis of her sex (female/pregnancy), in violation of the Human Rights Act of 1977, as amended, specifically Section 760.10, Florida Statutes (1989).
Findings Of Fact The Petitioner, at times pertinent hereto, was employed as an emergency medical technician (EMT) with the Franklin County Emergency Medical Service. The Respondent, now known as Emerald Coast Hospital ("Hospital") operated the Franklin County Emergency Medical Service, including its ambulances ("EMS"). The Petitioner was hired in September of 1989 by Mr. George Potter, then the director of the Franklin County EMS. The Petitioner was terminated by Mr. Shiver, the Assistant Administrator of the Hospital in November of 1989. When the Petitioner was hired by Mr. Potter, she was pregnant and informed Mr. Potter of that fact. She had a report or statement from her physician attesting to the fact that her pregnancy should not interfere with her duties as an emergency medical technician ("EMT"). Mr. Potter discussed the matter with her and told her that he would approve her hiring in her pregnant condition so long as she agreed not to hold the EMS liable for any injury which might occur to her baby through the performance of her duties with the EMS, and she agreed to this arrangement; and Mr. Potter thereupon hired her. Mr. Potter left the employ of the EMS and the Hospital at some point during the Petitioner's tenure with EMS. Mr. Robbie Poe took his place as the Petitioner's supervisor. Both the Petitioner and the Petitioner's witness, Kurt Valle, indicated in their testimony that Mr. Poe had made a comment to Mr. Valle on some occasion that the Petitioner's pregnancy might be a "possible liability". The testimony of record does not reflect in what context Mr. Poe might have made such a statement. It cannot, thus, be determined whether he merely meant that her pregnant condition might prevent her from effectively performing her duties or whether he meant that he might consider it a reason to terminate her. In any event, there were a number of instances during the brief tenure of her employment when the Petitioner engaged in unprofessional conduct by expressing her attitudes and opinions concerning EMS policies and practices loudly and angrily to co-workers or to her supervisor within the hearing of patients and their families, which was contrary to hospital and EMS policy. This is because the Hospital and the EMS of the Hospital wishes to insure that the public has confidence in its EMS because of the sensitivity of the duties performed by the EMS employees in terms of their responsibility for patients who are often in life-threatening situations and because of the sensitivity they should show for the feelings of the families of those patients, as well as the patients themselves. Mr. Shiver, the Assistant Administrator of the Hospital and the ultimate supervisor of the EMS of the Hospital, which employed the Petitioner, became aware of a number of these instances where the Petitioner had public, verbal altercations with Mr. Poe or her co-workers. The Petitioner, for instance, had "had words" with Mr. Poe about her being required to drive an advanced-life-support-equipped vehicle on a true emergency, when she maintained that she had never done it before. This upset her, and she complained to Mr. Poe, although he never reprimanded her concerning that verbal altercation or her performance in that situation. These incidents led Mr. Poe and Mr. Shiver to have a concern about the Petitioner's capabilities as a member of the EMS in terms of her temperament or emotional stability under stressful situations involving patient emergencies. The problem culminated in an episode where the Petitioner's ambulance and witness, Kurt Valle's ambulance, which itself was equipped with advanced life support equipment, answered a call concerning a patient with a cardiac emergency. The Petitioner's vehicle arrived on the scene of the emergency, where the stricken patient was located, where immediately thereafter or at about the same time, Mr. Valle's vehicle arrived. The patient was apparently loaded into the Petitioner's vehicle, which she had been driving or at least in which she arrived, on duty, at the scene. Because of this and the need for advanced life support equipment for this patient, the equipment on Mr. Valle's vehicle was transferred to the Petitioner's vehicle. Mr. Valle was assigned to drive the Petitioner's vehicle to the Hospital with the patient, who was undergoing advanced-life-support assistance. The Petitioner was then ordered to drive Mr. Valle's vehicle to the Hospital. Upon arriving at the Hospital, where the patient was delivered to the emergency room in very critical condition, the Petitioner was observed to be in a very agitated state, leaving her vehicle and neglecting to turn off the lights and siren. She immediately thereafter engaged in a verbal altercation with Mr. Poe, her supervisor, concerning his decision that she should not drive the vehicle containing the patient and the advanced- life-support equipment and his relegation of her to drive the unused vehicle back to the Hospital. She initiated a hostile, heated argument with Mr. Poe inside the emergency room concerning this grievance; and at Mr. Poe's direction, they continued their discussion outside the emergency room. Much of this argument was conducted in front of the patient's family, contemporaneously with the patient's death, all of which understandably could be quite upsetting to the patient's family and constituted unprofessional conduct for an EMT. This last incident was duly reported to Mr. Shiver, the Assistant Administrator of the Hospital and the ultimate supervisor of the EMS, with the result that he decided to terminate the Petitioner. Mr. Poe played no part in the decision to terminate the Petitioner. He merely informed the Petitioner of the termination decision, which was made by Mr. Shiver. When Mr. Shiver made the decision to terminate the Petitioner, he did not know that the Petitioner was pregnant and had never actually had any contact with the Petitioner before her termination. He did, however, offer to discuss and review the termination decision with the Petitioner when she later called him about it. Mr. Poe, when he informed her of her discharge, indicated to the Petitioner that she had been a good worker and that she was being terminated because of budget problems and a necessary layoff of certain personnel. He made a statement to the effect that she was being laid off first because she had been the last hired. In fact, Mr. Poe played no part in that decision and that was not the reason for the decision. Thus, whether, as the Petitioner maintains, she was not actually the last hired, but that a Mr. Scott Simmons and one or two other personnel had been hired after her, is immaterial to the relevant facts and ultimate conclusion in this case because the Petitioner was actually terminated for her unprofessional conduct and attitude and not because of budgetary constraints. In fact, a budgetary cutback and the necessity for layoffs had been announced by the County Commission, which could have resulted in layoffs in the EMS, including the Petitioner's position. However, on the same day that decision had been announced, the County government officials responsible countermanded it because it would have left insufficient emergency medical personnel on duty on both sides of the barrier of the Apalachicola River, which divides Franklin County. It was deemed to be an unwise decision and, therefore, rescinded. Budgetary constraints and resulting layoffs being putatively necessitated thereby actually played no part in the decision to terminate the Petitioner. Rather, her less-than-professional conduct was the cause of the decision to terminate her by Mr. Shiver, in which decision Mr. Poe had no role. Consequently, the Petitioner's testimony that she had known Mr. Poe ever since they had been in fire fighting school together, that he had tried to date her, which she refused; and her testimony that he had therefore made hostile comments concerning her being a liability because of her pregnancy, (even if Mr. Poe made the statements, which he denied), are immaterial in the context of the evidence and law pertaining to this proceeding, because Mr. Poe played no part in the termination decision. It was Mr. Shiver's decision, and he merely directed Mr. Poe to convey the decision to the Petitioner. Moreover, the Petitioner was employed by the Hospital and by its Assistant Administrator, Mr. Shiver. The Hospital, in fact, has approximately 75% female employees. Many have been pregnant before and after employment. The Hospital has never had a policy or a practice of terminating female employees on account of pregnancy. The EMS is part of, and a department of the Hospital, under the direction and supervision of Mr. Shiver. Moreover, the male EMT, Mr. Simmons, whom the Petitioner maintains was hired immediately after her termination to replace her was not actually hired to replace her because he was hired only on a "PRN" or "as-needed" basis approximately a month after the decision was made to terminate the Petitioner. Further, a female employee, Alisa Alexander, was hired after the termination of the Petitioner, and Mr. Shiver currently had, at the time of hearing, two female employees in-the EMS who are currently driving ambulances. In summary, because of the concerns about the above- mentioned incidents of unprofessional conduct, including the Petitioner's angry outbursts culminating in the incident in which the Petitioner berated her supervisor in the presence of the deceased patient's family concerning his decision not to let her drive the emergency vehicle and because of concerns expressed by her supervisor about her driving skills generally, Mr. Shiver elected to terminate the Petitioner. He did not do so because of the Petitioner's sex nor her pregnancy and, in fact, was not even aware of her pregnancy at the time he discharged her. Further, at the time of her termination and at the time of the incidents in question, the Petitioner was in a 90-day probationary status. All employees undergo such a probation immediately after hiring, during which an employee can be terminated without cause, provided in the employee's handbook of employment and job performance practices and policies. Mr. Shiver established that the Petitioner had signed a statement to the effect that she had read the handbook, including the terms concerning the three-month probationary period, upon being employed.
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 Deborah RevellNicholson be dismissed in its entirety. DONE AND ENTERED this 2nd day of March, 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 3rd day of March, 1992. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Deborah Revell-Nicholson Route 3, Box 5626-2 Crawfordville, FL 32327 Henry D. Shiver Assistant Administrator Provident Medical Corporation of Apalachicola Washington Square Apalachicola, FL 32320
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on April 22, 2009.
Findings Of Fact Petitioner is an African-American male who was employed by Respondent from August 2008 until his termination on or about January 9, 2009. Respondent, Arena Sports Café (Arena), is an employer within the meaning of the Florida Civil Rights Act. Arena is a restaurant/night club which offers the viewing of televised sporting events, and is generally known as a sports bar. Arena is adjacent to The Coliseum, another establishment with the same owners, Trisha Lawrence and Randy Berner. The owners are Caucasian. The Coliseum is an entertainment venue with live and recorded music, dancing, and stage acts. The Coliseum does not serve food, and does not have a kitchen. When hired in August 2008, Petitioner worked as a prep cook as part of the kitchen staff. He performed various duties including preparation of meals in the kitchen as well as preparing food for Respondent’s large salad bar. Petitioner holds a Food Handling Certificate and a Safe Serve Certificate, which he attained through a local college. Petitioner was paid $12.00 per hour, and generally worked a 40-hour work week. At the time Petitioner was hired, the Arena was brand new and very popular. When the Arena opened in August 2008, it featured lunch and dinner seven days per week. Weekends were particularly busy because college and pro football games were televised in the fall. However, the Arena saw a drop in demand for weekday lunches. During the fall of 2008, Anthony Cyr, a Caucasian, was employed by Arena as its general manager. Petitioner was already employed by Respondent when Mr. Cyr began employment there. According to Petitioner, Mr. Cyr used the word “nigger” (the "N" word) in the context of telling a joke on three occasions in October and November 2008. Mr. Cyr used this word in the presence of the kitchen staff, including Petitioner. Petitioner informed Mr. Cyr that this was offensive and objected. Mr. Cyr did not use the "N" word other than these three occasions, and did not use it again after Petitioner objected. Petitioner did not report this incident to anyone, including the owners of Arena. As one of the owners of Arena, Ms. Lawrence would sometimes eat meals at Arena. At some point in January 2009, she voiced her displeasure to Mr. Cyr as to meals which she believed to have been prepared by Petitioner. She was never made aware of Petitioner’s allegations regarding the use of racial slurs by Mr. Cyr. According to Ms. Lawrence, she instructed Mr. Cyr to terminate Petitioner from employment because of his cooking abilities. Mr. Cyr informed Petitioner that his employment was terminated, and informed him that it was due to his job performance. Mr. Cyr also informed Petitioner that the decision to terminate Petitioner was Ms. Lawrence’s, not his. Mr. Cyr’s testimony regarding using the “N” word contradicts Petitioner’s testimony, and is somewhat inconsistent with Ms. Lawrence’s testimony regarding the reason Petitioner was fired. That is, Mr. Cyr denies using the “N” word in front of Petitioner. As for the reason he fired Petitioner, Mr. Cyr testified that it was due to a reduction in business following football season. There is no dispute, however, that Ms. Lawrence was the decisionmaker regarding the decision to fire Petitioner. Regarding the conflicting testimony as to whether Mr. Cyr used the “N” word, the undersigned finds Petitioner’s testimony in this regard to be credible and more persuasive. That is, the undersigned finds that Mr. Cyr did use the “N” word in front of Petitioner in the workplace. As for the reason Petitioner was fired, Ms. Lawrence did acknowledge that business slowed down at Arena around the time she instructed Mr. Cyr to fire Petitioner, and that the salad bar was phased out the month after Petitioner was terminated. However, she insists that she instructed Mr. Cyr to fire Petitioner because of the quality of his cooking. In any event, there does not appear to be a dispute that Mr. Cyr told Petitioner that he was being fired due to job performance issues. At some time after Petitioner was terminated, Mr. Cyr was terminated from Arena because, in Ms. Lawrence’s words, he “was not that great.” When Petitioner was terminated, two Caucasian cooks remained employed at Arena. While Petitioner was not actually replaced, his duties were assumed by the remaining Caucasian staff. Since his termination, Petitioner has worked for approximately three weeks at another eating establishment. Otherwise, he has been unsuccessful finding employment despite his efforts. Respondent employs minorities and non-minorities in positions with both Arena and The Coliseum. The undersigned has reviewed the evidence of record, oral and written, as to the number of minority and non-minority employees and as to whether Respondent hired primarily non-minority persons in the better paying positions. The evidence of record is insufficient to support a finding that Respondent engaged in racially motivated hiring practices. There is no evidence that Petitioner complained to Ms. Lawrence or the other owner of Arena that he was being discriminated against on the basis of race. When he complained to Mr. Cyr, the offending remarks stopped. There was no competent evidence presented that Ms. Lawrence knew of the racial slur used by Mr. Cyr in the workplace in Petitioner’s presence. There is no evidence that Ms. Lawrence’s decision to terminate Petitioner from employment was related in any way to any racial remark used by Mr. Cyr.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of March, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2010. COPIES FURNISHED: David Glasser, Esquire Glasser & Handel 116 Orange Avenue Daytona Beach, Florida 32114 Steven deLaroche, Esquire 1005 South Ridgewood Avenue Daytona Beach, Florida 32114 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was discriminated against by the Respondent based on race, and/or retaliated against due to the filing of a charge of discrimination with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Ronald Wilson, is an African-American male. Petitioner was employed with TMH on June 21, 1999, as an environmental services technician. On January 19, 2001, Petitioner received a disciplinary corrective action for discourtesy to a hospital visitor who had complained about Petitioner’s rude and overbearing behavior towards her in a visitor’s waiting area. After admitting the essential facts, Petitioner was suspended for two days for this infraction. On June 27, 2001, Petitioner filed a charge of discrimination with the FCHR, alleging he was wrongfully suspended because of his race. On September 5, 2001, Petitioner was told that his loan application with TMH Federal Credit Union had been denied. Petitioner told a credit union employee, Grace Chambers, that “God doesn’t appreciate people being treated this way” and “Someone is going to have some bad luck,” or words to that effect, when she advised him that his application had been denied. Although Petitioner was speaking metaphysically and did not intend to threaten Ms. Chambers, Ms. Chambers was upset by Petitioner’s comment, perceived Petitioner's comment as a threat and reported it to her supervisor, Marion McCaskey, President of the TMH Credit Union. McCaskey and Chambers, in turn reported Petitioner's threat to Charles Garner, Director of Security at TMH. Ms. McCaskey also reported that Petitioner was known for being unduly persistent in obtaining approval for a loan to the point she had become uncomfortable, albeit not physically threatened, in dealing with Petitioner. Mr. Garner reported Petitioner's conduct to his supervisor, Ron Dorsey. On September 6, 2001, Mr. Dorsey filled out a disciplinary action form recommending Petitioner's discharge because of his comment to Ms. Chambers. Because of Petitioner’s disciplinary history of insubordination and discourtesy, the recommendation was approved by TMH Human Resources, and Petitioner was given notice of his discharge on December 11, 2001. TMH's policy prohibits discourtesy to visitors and other employees, and threats to co-workers. Both of these violations are grounds for discharge. Petitioner produced no evidence that any other non- minority employee was charged with breaking these rules and was treated better. Without such evidence, Petitioner failed to establish any direct evidence that his suspension and discharge were racially motivated. Likewise, Petitioner failed to establish any circumstantial evidence of racial discrimination, since Petitioner’s statements to Ms. Chambers could arguably be considered a threat directed towards her, and there was no evidence that Ms. Chambers’ reaction was not genuine. Petitioner produced no evidence that Dorsey, Garner, Chambers, or McCaskey had notice or knowledge of his charge of discrimination when he was discharged. Therefore, Petitioner has failed to establish that he was discharged on September 11, 2001, in retaliation for filing the charge of discrimination on June 27, 2001. Petitioner produced no evidence that he suffered any past or future wage loss as a result of his discharge from TMH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of March, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 12th day of March, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Ronald Wilson 816 Cochran Drive Tallahassee, Florida 32304 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against by being terminated, allegedly on account of her race, and in retaliation for filing a claim concerning discrimination.
Findings Of Fact Tammy King, the Petitioner, became employed by the Respondent in June of 2000. She was employed as an operations manager, supervising the cleaning service work for various customer accounts as well as the people employed to perform the cleaning service work for those accounts. She was employed by the Respondent for approximately one year. The owners of the Respondent company are Linda and Daniel Coley. On October 18, 2000, Ms. King was evaluated by her evaluator and supervisor Christopher Stettner and received an excellent evaluation, which was apparently co-extensive with the end of her probationary period. Gene Janushanis also was in a supervisory capacity over the Petitioner. Mr. Janushanis, in his supervisory role, is the primary focus of the Peititoner's complaint of discriminatory conduct concerning his conduct and attitude toward her. The Petitioner contends, in essence, that Mr. Janushanis refused to allow the Petitioner to discipline black employees and treated her more harshly, with harassment, including cursing at her, and otherwise interfered with her performance of her job. She stated that he treated black employees, including black supervisors in similar positions to the Petitioner, more favorably, as to disciplinary or job performance issues, than he treated the Petitioner. The Petitioner maintains that she had no problems, disciplinary or otherwise, in the performance of her job before Mr. Janushanis was hired as her supervisor and that their numerous altercations commenced shortly thereafter. However, she also developed a difficult relationship with Christopher Stettner, the supervisor who gave her the excellent evaluation at the end of her probationary period. Apparently, their relationship deteriorated soon thereafter and became quite hostile. In fact, Mr. Stettner filed an internal complaint or grievance against the Petitioner concerning alleged harassment of him by the Petitioner. This resulted in the Respondent's scheduling additional "anti-harassment training" for the Petitioner and other employees thereafter. Thus, a hostile relationship with abrasive arguments ensued between the Petitioner and Mr. Stettner, as well as between the Petitioner and Mr. Janushanis, starting in the late part of 2000 and through the first half of the year 2001. Cassey Clark, the Human Relations Director for Respondent, witnessed a number of "very harsh arguments" between Tammy King and office employees or supervisors Dwayne Coley, Chris Stettner, and Gene Janushanis. Both owners and employees witnessed very hostile, violent arguments between Mr. Janushanis and the Petitioner on a number of occasions, sometimes in the presence of customers of the company and generally in the presence of other employees or owners. These altercations included instances where the Petitioner refused to perform directions of her supervisor. Additionally, a substantial number of employees had verbal altercations with the Petitioner concerning receiving credit for, and payment for, the hours they had worked. On a repetitive basis the Petitioner failed to submit correct hours for the payroll and in one case got into a verbal altercation with an employee, Sonya Ross, chased the employee out in the parking lot, and refused to give her her last paycheck, telling her that she would mail the check to her, which was against company policy. The Petitioner exhibited a hostile, threatening attitude and conduct toward employees concerning hours worked and other aspects of her opinion of the way they were performing their jobs, as well as concerning payroll issues. Such instances occurred with at least nine employees. This hostile, threatening attitude and failure to comply with the payroll policies of the Respondent, as well as the several instances of the Petitioner failing to perform as directed by her supervisors, constituted misconduct under the regular policies of the Respondent. These instances of misconduct occurred on a frequent basis through the first half of 2001, including an instance where an employee called to state that she had to be out for two days because her baby was sick with a high fever. The employee followed company policy and provided documentation from the physician involved concerning her need to be off from work. She then called Tammy King to say that she had to go back to the hospital with her child, and Ms. King told her that she would be terminated. The employee then called the owner, Linda Coley, to inform her of the problem because she was afraid of losing her job. Ms. Coley then spoke with Ms. King and reminded her that it was against company policy to terminate an employee if he or she brought proper documentation from the physician or hospital, which was the case. This also was a clear violation of company policy concerning employees and supervisors. These instances of misconduct and the very hostile verbal altercations between the Petitioner and Mr. Janushanis, her branch manager, continued until June of 2001. The Respondent counseled with both the Petitioner and Mr. Janushanis about their conduct and attitude between themselves and toward other employees. Ultimately the decision was made in mid-June 2001 to terminate the Petitioner and Mr. Janushanis as well. On June 22, 2001, the Petitioner was terminated, as was Mr. Janushanis, on the same date. On June 20, 2001, the Petitioner had filed a complaint with the EEOC, by letter, and informed the Respondent of that fact. The decision to terminate the Petitioner, however, had been made prior to the filing of the complaint with the EEOC. The Petitioner has failed to establish that any actions taken by the Respondent toward her were related to her race. The supervisor complained of by the Petitioner was of the same race, white, and there is no persuasive evidence that shows any intent by the owners or management of the company to treat similarly-situated members of another race more favorably. In fact, there was preponderant and substantial evidence of misconduct on behalf of the Petitioner which established a legitimate, nondiscriminatory reason for her termination. Although her initial performance was rated as excellent in the initial months of her employment, the Petitioner failed to continue that level of performance. In fact, her misconduct on the job, including the instances enumerated in the above findings of fact shows that the Petitioner's conduct and performance had deteriorated so that she was not properly performing the various requirements of her employment position, when viewed in the context of regularly- adopted company policy. Upon the Respondent's becoming aware of these conduct shortcomings, and failure to properly perform in her position, as well as the improper conduct by her supervisor, the Respondent did not condone the Petitioner's level of conduct nor that of her supervisor, Mr. Janushanias. Rather, the Respondent sought to assist them in improving their conduct and performance. When these efforts were not successful, the Respondent ultimately terminated both of them.
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 3rd day of December, 2003, 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 3rd day of December, 2003. COPIES FURNISHED: K. Jeffrey Reynolds, Esquire 924 N. Palafox Street Pensacola, Florida 32501 Banks T. Smith, Esquire Hall, Smith & Jones Post Office Box 1748 Dothan, Alabama 36302 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Suite 100 Tallahassee, Florida 32301
