Findings Of Fact Petitioner was hired by Respondent in January, 1986, as a dishwasher at $4.00 per hour. Because of his good work and dependability, Petitioner received periodic increases in his rate of pay, and in May, 1987, he became head dishwasher at $6.00 per hour. Respondent's owners also own certain apartments located next to their restaurant, and since Petitioner had been a dependable employee, he was given the additional responsibility of showing these apartments when anyone wanted to rent one that was vacant. He also performed repair and maintenance work on the apartments Petitioner was allowed to take time off from his job as head dishwasher to show vacant apartments, and was periodically assigned work to do on the apartments when he was not working at the restaurant. Petitioner agreed to, and was readily willing to perform these additional duties for which he was allowed to live in one of these apartments for $15.00 per week, rather than the normal rate of $65.00 per week. Beginning in October, 1987, Petitioner began to call in sick to his job at Respondent on a regular basis. Between the week of October 18, 1987, and his termination on January 12, 1988, he did not work a full forty hour week. This was during Respondent's busy time when business was especially heavy, and was a great inconvenience to other staff and the owners of Respondent. Frequently, Petitioner gave virtually no notice of his absence. Due to his repeated absences, and his lack of dependability, Respondent terminated Petitioner on January 12, 1988. Thereafter, Petitioner timely filed a complaint of discrimination with the City of Clearwater, Office of Community Relations. Petitioner introduced no evidence in support of his allegation of discrimination based upon race. He alleges that a white woman was hired to replace him, but he did not identify her, or in any way corroborate his charge. Respondent disputed this allegation, and denied that Petitioner's discharge was due to anything but his repeated absences and increasing lack of responsibility. There is absolutely no evidence that Petitioner was terminated based upon racial considerations.
Recommendation Based upon the foregoing, it is recommended that the City of Clearwater, Office of Community Relations, enter a Final Order dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of September, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1988. COPIES FURNISHED: Amyer Jones 1343 San Remo Street Clearwater, Florida 34616 Richard R. Logsdon, Esquire 1423 South Ft. Harrison Street Clearwater, Florida 34616 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618 Ronald McElrath, Director Office Of Community Relations Post Office Box 4748 Clearwater, Florida 34618
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent discriminated against Petitioner as stated in the Petition for Relief in violation of Chapter 760, Florida Statutes (2007).
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Respondent, Atria Windsor Woods, provides retirement and assisted living facilities and employs more than 15 persons. Petitioner, Judith Monteiro, was hired as a housekeeper in 2002 at the age of 57. On or about November 29, 2006, Petitioner was discharged from her employment with Respondent. She was advised that she was discharged for violating company policy regarding entering an apartment while the occupant was absent due to hospitalization. Petitioner testified that she entered an apartment of an absent occupant when she smelled spoiled food, disposed of the spoiled food, and reported the matter to her supervisor. On the following day, a theft of approximately $150.00 was reported from the apartment. Petitioner appears to be the victim of disgruntled relatives of the apartment's occupant who, apparently, complained about the purported theft to Respondent and confusing rules about when to enter an unoccupied apartment and who was authorized to enter an unoccupied apartment. Petitioner presented no direct or circumstantial evidence that her discharge was based on age, sex, or any other right actionable under Chapter 760, Florida Statutes, the Florida Civil Rights Act.
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 finding that Respondent, Atria Windsor Woods, did not discriminate against Petitioner, Judith Monteiro, and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of March, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 18th day of March, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas J. Birchfield, Esquire Fisher and Phillips, LLP 220 West Main Street, Suite 2000 Louisville, Kentucky 40202 Judith Monteiro 13738 Lavender Avenue Hudson, Florida 34667
Findings Of Fact Petitioner was employed by VOTRAN from June 6, 1977, until his discharge on January 19, 1982. He started as Serviceman; was promoted to Mechanic B on October 31, 1977; to Night Leadman on August 7, 1978; to Mechanic A on January 13, 1980; and to permanent Night Leadman on November 30, 1981. He was the senior mechanic in the maintenance department and, prior to December, 1981, was Leadman on the day shift. Effective November 30, 1981, the position as Leadman on the day shift was abolished and these duties were absorbed by the Maintenance Superintendent, Owen Davis. Pursuant to the Union contract in effect at VOTRAN, available jobs are bid by seniority and go to the most senior qualified man seeking the position. When the Day Leadman position was abolished, Petitioner bid on the Night Leadman position and, as senior mechanic, was awarded the job. Working days (or nights) for the Night Leadman are Tuesdays through Saturdays, with Sundays and Mondays off. This was known to Petitioner at the time he submitted his bid and was awarded this position. After a short time as Night Leadman, Petitioner requested leave on Saturday to attend an uncle's funeral in Georgia. Davis told Petitioner this would leave them shorthanded. Petitioner then told Davis that he did not like working on Saturday and wouldn't come in. Davis reported this incident to the General Manager, Kenneth Fischer. Late in December Petitioner met with Fischer, at which time Petitioner told Fischer he was unable to handle the job of Night Leadman. Fischer offered Petitioner the option of swapping jobs with a Mechanic A on the day shift but that job paid less and Petitioner turned it down. On another occasion, Fischer learned Petitioner had called in and said he could not come to work on Saturday because he had to move furniture. That resulted in a memo of January 12, 1982 (Exhibit 3) memorializing the December 29, 1981, meeting between Petitioner and Fischer in which Fischer repeated his warning to Petitioner against calling in sick on Saturdays unless his illness could be documented. This memo was delayed getting into Petitioner's box and was not received by him until the following Friday. Fischer was off Saturday, Petitioner was off Sunday and Monday, and on Tuesday, January 19, 1982, Petitioner met with Fischer. After Fischer had entered his car in the parking lot around 6:00 p.m. preparing to go home, Petitioner approached the car and told Fischer he would like to speak to him. Fischer got out of his car, they walked back into the building, Fischer unlocked his office, and they entered. Petitioner tossed the memo of January 12, 1982, on the desk complaining that he thought he was being discriminated against and that if the rules respecting sick leave of less than three days were being changed they should apply to all employees and not just to Petitioner. The meeting quickly escalated into a confrontation with Petitioner telling the younger Fischer that Petitioner was a 40-year-old man with a family, and that Fischer was not man enough to fire him. Whereupon Fischer told Petitioner to "hit the door." Petitioner then told Fischer that he would get VOTRAN's "shit" together and for Fischer to get Petitioner's "shit" together, and Petitioner left. Petitioner's voice immediately prior to his departure was sufficiently loud to be heard by two employees from 200 feet down the hall from Fischer's office. Petitioner's testimony conflicted with the above finding of what went on at the fateful meeting of January 19. Petitioner testified that he remained calm during the meeting, that he never told Fischer that the latter was not man enough to fire him, that he told Fischer they should discuss the matter like grown men, that he used the word "shit" to indicate personal property, and that Fischer is the one who got angry and told Petitioner to "sit down" before he told Petitioner to "hit the door." Petitioner also testified that during the little ever a month he was Leadman on the night shift he missed one or two Saturdays, that the memo of January 12 made him feel he was being treated differently from others, and that he and Fischer had at least three conferences before January 19, 1982, when he was fired. VOTRAN is a publicly owned transportation company subsidized by Volusia County and originally financed by the Federal Government. While funded by the Federal Government VOTRAN was subject to and in compliance with all federal laws proscribing discrimination. Of the 83 employees of VOTRAN, 20 are black. In Volusia County blacks constitute approximately 13 percent of the population. While employed at VOTRAN, Petitioner attended three schools to improve his training and VOTRAN paid the tuition. Although there was a discrepancy between Petitioner's testimony that he was the only black mechanic employed by VOTRAN, and VOTRAN's testimony that there were two blacks employed as mechanics, the evidence was unrebutted that following Petitioner's discharge another black mechanic was hired by VOTRAN. To further support his claim that he was fired because of his race, Petitioner testified that as a Leadman he was never issued a white shirt, that white shirts and blue pants were provided supervisors (including leadmen) by VOTRAN, and that blue shirts were issued to other workmen except in the bodyshop where the workers were issued white pants and shirts. Petitioner mentioned this difference to one of the shop's stewards who told Petitioner that if he felt wronged he should file a grievance. Petitioner never filed a grievance and neither the Superintendent nor the Director of Maintenance was asked by Petitioner to provide him with a white shirt. Other witnesses testified that some leadmen wore white shirts, others wore blue shirts, and it was generally left to the choice of the leadman which color shirt he wore. One witness called by Petitioner testified that he once overheard a Fischer and Davis conversation at which the phrase "dumb niggers" was used. Both categorically denied ever making such a racial slur. No other witness testified to any incident which could lead to a conclusion that Fischer was in any manner prejudiced or racially discriminatory. His reputation among the bus drivers is that he "goes by the book." As another ground to support his charge of racial discrimination, Petitioner testified that while he was Night Leadman he was not provided a key to the Superintendent's desk which other night leadmen had been provided; and that when it was necessary to get into the desk for special tools kept there, it was necessary to call the Superintendent, who would come down and unlock the desk. The Superintendent, Davis, confirmed that Petitioner had not been issued a key because a short time before Petitioner started the night shift too many keys had been issued, all of these keys had been called in, and, when he found his presence was frequently required at night to open the desk, he reissued a key to the Night Leadman. By this time Petitioner had been terminated. The contract between VOTRAN and the Teamsters Union provided for arbitration of grievances. This document also provides that neither employer nor Union will discriminate against any individual with respect to recruitment, hiring, training, promotion, or other employment practice for reasons of race, etc. (Exhibit 1, Article 9). When Petitioner told the shop's steward (also black) that he had been fired, he did not indicate he was fired by reason of race. Petitioner was advised by the shop's steward that he could file a grievance with the Union and his firing could go to arbitration if not settled prior to that step. Petitioner was not a dues-paying member of the Union, and, although covered by the contract, did not feel he would get a sympathetic ear from the Union. The General Manager, William Barrett, who preceded Fischer, was called as a witness by Petitioner. Barrett was General Manager when Petitioner was hired, approved the various training programs taken by Petitioner at VOTRAN's expense, and found Petitioner to be a good and reliable employee. Barrett further testified that it was necessary to maintain discipline in order to operate effectively and that if an employee challenged his authority he would have no choice but to fire the employee immediately.
The Issue The issue for determination in this case is whether Respondent violated Chapter 760, Florida Statutes, as alleged, by its refusal to allow Petitioner to rescind a resignation.
Findings Of Fact Ardie Collins, a Black female, lives in Rockledge, Florida, and is currently self-employed as a beauty salon owner. She began working for the State of Florida in 1973, as a salon inspector with the Cosmetology Board. She maintained her title of investigator and continued employment after reorganization with the Department of Occupational and Professional Regulation and the Department of Professional Regulation (DPR), as the agency is now known. During the relevant period Ms. Collins worked out of the DPR Regional Office in Orlando. In August 1982, Ms. Collins was terminated by DPR. The case went to arbitration, and by order of the arbitrator dated December 17, 1982, she was reinstated with full back pay. She reported back to work on February 10, 1983. In January 1983, before she reported back to work Ms. Collins went to see the AFSME union representative, Eric Tait, in Cocoa. The union had represented her in the 1982 proceeding and Tait had assisted the union. In that January meeting, two letters were drafted, later typed by a clerk and signed by Ms. Collins. These letters were characterized by both Ms. Collins and Eric Tait as "intent to resign" and a letter of resignation. The "intent to resign" is dated, in error, January 12, 1982, and is addressed to Howard Kirkland, Personnel Officer. It provides, This is to inform you that it is my intention to submit my resignation from State Employment, effective June 6, 1983. This resignation is now held by Eric D. Tait, AFSME President, Local 3040. (Petitioner's Exhibit #2) The second letter is dated June 6, 1983, is also addressed to Howard Kirkland, and provides: Kindly accept this as my resignation as Investigator with the Department of Professional Regulation effective June 6, 1983. The Department of Professional Regulation has informed me that as of June 6, 1983 I will have completed 10 years creditable service in the Florida Retirement System. (Petitioner's Exhibit #11) The first letter was mailed to DPR in Tallahassee and the second was held by Eric Tait. The January 12th letter was stamped received in the DPR Personnel office on January 24, 1983. Howard Kirkland took this letter to be a resignation. He discussed it with the Division Director and with the Assistant Secretary and was authorized to accept the resignation. He then sent a letter to Ardie Collins, dated January 25, 1983, stating: Please be advised that we have accepted your resignation from employment with this agency effective June 6, 1983. (Petitioner's Exhibit # 3) Later, on January 31, 1983, in response to a contact from Eric Tait, James Kirkland sent a letter to Ms. Collins explaining that, if necessary, her date of resignation would be extended to insure that she had the necessary ten years of creditable service. DPR commenced advertisement and recruitment to fill the anticipated vacancy. Sometime in early May 1983, Eric Tait mailed the second letter dated June 6, 1983. The letter was stamped received in the DPR Office of Personnel on May 5, 1983. On May 6, 1983, Ms. Collins wrote to Howard Kirkland informing him: Notice is hereby given that proposed or intended resignation is cancelled until further notice. (Petitioner's Exhibit #7) Between January and May, DPR received no word from Ms. Collins or her representative about her resignation. Kirkland again discussed the matter with his supervisor and responded by letter to Ms. Collins dated May 25, 1983, that her voluntary resignation had already been accepted in good faith. (Petitioner's Exhibit #8) There is no written policy or rule at DPR regarding the rescinding of resignations. The agency follows the general personnel management principle that until the resignation is accepted, withdrawal is negotiable; after acceptance, withdrawal is solely within management prerogative. Generally it is considered bad personnel management to permit an employee to rescind a resignation once it is accepted, and in particular, once the position is advertised. Ms. Collins claims that DPR has allowed other employees, white males and females, and black males, to rescind resignations. In his personal knowledge, and after reviewing DPR personnel files, James Kirkland found one individual who was allowed to rescind a resignation - a clerk, who had given probably only an oral notice and shortly later asked to withdraw it. In that case, nothing had been done to act on the resignation. The individuals named by Ms. Collins: Robert Fleming, Edward Bludworth, and Will Merrill, were not allowed to rescind resignations. Rather, they each reapplied after leaving DPR. Each was hired again on probationary status. Ms. Collins claims that she reapplied by mail to DPR sometime in late June 1983. However, neither the Tallahassee office nor the Orlando regional office have a record of her application. If she had reapplied for a vacant position, she would have been considered with the rest of the applicants. DPR has received resignations from employees in a variety of forms and in various ways. Sometimes resignations are submitted directly to an immediate supervisor; other times they are directed to the personnel officer. It is not uncommon to have a resignation expressed as an "intent to resign". DPR acted in good faith and consistent with established personnel practices when it accepted Ms. Collins' letter dated January 12th as a resignation and when it refused to allow her to rescind that resignation when requested some four months later. DPR determined that Ms. Collins had obtained her ten years of service as of June 6, 1983. This was the only condition regarding her date of resignation of which it was on notice. The agency received both the "intent to resign" and the "resignation" letter prior to receiving Ms. Collins' "cancellation". The agency simply ratified its acceptance in its response to Ms. Collins.
The Issue Whether or not an unlawful employment practice pursuant to the Human Rights Act of 1977, Section 760.10 F.S. (1989) has occurred.
Findings Of Fact On the Thursday and Friday preceding formal hearing the undersigned attempted to contact Petitioner to determine if he was prepared for formal hearing on March 4, 1991. His phone was in working order, but no one answered at any of several times the call was placed. At the date and time of formal hearing, Petitioner did not appear, although the hearing was convened after waiting five minutes. A recess was taken for 15 minutes to permit Petitioner additional time to arrive at the place of formal hearing in the event that he had been unavoidably delayed. After waiting those 15 minutes, the undersigned searched the waiting area outside the hearing room for any black male, and none was found. The undersigned also called her DOAH office to determine if Petitioner had attempted to telephone there with any excuse for his nonappearance; the secretary to the undersigned reported that he had not telephoned. At 25 minutes after the appointed hour for commencement of the hearing, Respondent moved for default and/or judgment on the pleadings, and the undersigned indicated that the Recommended Order would reflect, to the same effect, that Petitioner's nonappearance would be deemed withdrawal of his petition.
Recommendation Accordingly, upon 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 herein. DONE and ENTERED this 13th day of March, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 13th day of March, 1991. COPIES FURNISHED: J. Robert Duggan, Esquire Howell, Taylor & Duggan, P.A. Post Office Box 490208 Leesburg, FL 34749-0208 Willie Ray Wright 2311 Griffin Road, Apt. A-4 Leesburg, FL 32748 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Tallahassee, FL 32399-1570
The Issue The central issue in this case is whether the Respondent terminated the Petitioner from his employment in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner is a black male who was employed by the Respondent, City Gas Company of Florida, from June, 1966 until October 31, 1988. At all times material to this case, the Respondent had an after hours policy which prohibited its employees from working for other gas companies, contractors, self employment, or any gas related field without prior permission from the Respondent's executive office. Failure to abide by that policy would subject an employee to immediate termination. The Respondent's policy for services performed while on duty required the employee to work only on behalf of the company. Monies for services rendered by Respondent's employees while on company time were to be remitted to the Respondent's office with the appropriate paperwork within a timely manner. Normal business practice would be for a repairman to remit monies and paperwork either the afternoon of the job or the next business day if a same day return to the office would be impractical. In April, 1988, the Petitioner was given a work assignment at the home of a customer named Mrs. Rhodes. Petitioner was to turn on Mrs. Rhodes' furnace. After inspecting the unit, Petitioner advised Mrs. Rhodes that the furnace should be cleaned. Subsequently, she authorized that work and the Petitioner dismantled and cleaned the furnace while on company time. Upon completing the task, Petitioner asked for and received from Mrs. Rhodes two checks: one payable to Respondent to cover the turn on and deposit; one made payable to Petitioner personally for the cleaning of the unit. The Petitioner cashed the second check, in the amount of $25.00, and remitted the other check to the company. Sometime later, the Respondent received a complaint from Mrs. Rhodes concerning the furnace. Mr. Hixon, vice president and general manager for the company, confronted the Petitioner regarding the matter. During that conference Mr. Hixon asked Petitioner for an explanation regarding the second check which Mrs. Rhodes had reportedly paid to him. Petitioner did not admit that he had performed additional work on company time (beyond the routine turn on). Also, Petitioner did not admit that he had received monies payable to himself, and that he had cashed that second check. Bill Joynt is a white male employed by Respondent. In September, 1988, Mr. Joynt was assigned to make a service call for a customer named Mr. Cox. After installing a valve on Mr. Cox's furnace, Mr. Joynt received $80.00 cash from the customer. Later Mr. Cox contacted the Respondent to complain that the furnace was still not operating correctly. Mr. Cox advised the company that he had paid $80.00 for the repair but that he was unsatisfied with the work. Mr. Hixon contacted Mr. Joynt and confronted him as to why the $80.00 had not been remitted to the company. Mr. Joynt immediately acknowledged that he had forgotten to turn in the payment. Subsequently, Mr. Joynt turned in the $80.00 to the company. Because he readily admitted his error, the Respondent suspended Mr. Joynt for three days without pay and allowed him to return to work. Because he did not admit his error (in fact, Petitioner continued to deny it until the day of the hearing in this cause), the Respondent terminated Petitioner from his employment. Petitioner's lack of forthrightness, not his race, was his own undoing. The vacancy created by Petitioner's termination was filled under the terms of the Company's bargaining agreement with the union. A white male was entitled to and did fill the vacant position. Since leaving Respondent's employment, Petitioner has become employed by the Brevard County School Board but earns less than his prior employment afforded him.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE and ENTERED this 13th day of May, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1991. APPENDIX TO CASE NO. 90-5856 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None timely submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is accepted. The first sentence of paragraph 2 is accepted. With regard to the remainder of the paragraph, it is accepted that Petitioner knew all on duty work was to be done for the company; off duty work was performed by employees, including this Petitioner, with Respondent's approval and assistance. Paragraphs 3 through 6 are accepted. With the deletion of the word "repeated" paragraph 7 is accepted. With the clarification that Mr. Joynt agreed to turn the money in when he was confronted (perhaps found out), paragraph 8 is accepted. Paragraphs 9 and 10 are accepted. Paragraph 11 is rejected as irrelevant or hearsay. The first sentence of paragraph 12 is accepted. The remainder of the paragraph is rejected as contrary to the weight of the evidence. The company loaned Petitioner tools and sold him appliances to install during his off duty time. His failure to the company resulted from his on duty activities in his own cause and his failure to readily admit his error when confronted. Paragraphs 13 through 16 are accepted. COPIES FURNISHED: Susan K. Erlenbach 503 South Palm Avenue Titusville, Florida 32796 C. Graham Carothers Post Office Box 391 Tallahassee, Florida 32302 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
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 The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is David L. Lucas. He was employed by Respondent, Marc Downs, Inc., a clothing store chain, from August of 1989 until January 28, 1990. Approximately two months before the conclusion of his employment with Respondent, Petitioner and other employees employed in the Marc Downs Store located in the Wal-Mart Shopping Center on East Apalachee Parkway in Tallahassee, Florida, began working under the supervision of a new store manager. The new store manager was Desiree DeVelder, a white female. In addition to DeVelder, there was one other white female employee on the store's sales staff. The remainder of the ten person sales force in the clothing store was black. Petitioner was the only black male member of that sales force. Petitioner and other employees became increasing aware of DeVelder's discomfort at working with a predominantly black sales force. She kept to herself when at all possible. She confided to Petitioner that she did not like the way that the black people acted and on one occasion she stated that there were too many blacks working in the store. On January 28, 1991, DeVelder called a meeting of the store employees after the store had closed for the day. She presented each of the black employees, but not the solitary white employee, with a form entitled "Employee Disciplinary Notice". The form had been filled out for each black employee recipient and documented that the employee was the subject of disciplinary action for "poor attitude and not following Marc Down's Employee Policy Manual". The form further documented that the corrective action was to be a 30 day probationary period for the employee and that unemployment compensation would not be paid if the employee quit or was dismissed from employment during the probationary period. Each form for each employee was signed by DeVelder. DeVelder asked each of the black employees to sign their individual forms. Petitioner asked for an explanation of the form. DeVelder refused to provide an answer and Petitioner said he would think about it and provide DeVelder with a decision the next day. As he turned to leave, DeVelder struck him in the back and began screaming at him that he was fired.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the Petition for Relief and directing the payment to Petitioner by Respondent of back pay at the rate of $400 per month from January 28, 1990. DONE AND ENTERED this 13th day of May, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 13th day of May, 1992.
