The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her disability and by retaliating against her, and if so, what, if any, relief is Petitioner entitled to receive.
Findings Of Fact Petitioner is Respondent's former employee who began working for Respondent in 1993. Petitioner was most recently assigned to the warehouse in eastern Jacksonville, Florida, where she worked from October 2000 until September 2007. When she first transferred to the warehouse, Petitioner worked as the Return-to-Vendor (“RTV”) Clerk. As the RTV Clerk, Petitioner was responsible for shipping out returned merchandise to vendors and shipping salvaged items to the salvage companies. In 2004, Petitioner transferred to the Receiving Clerk position. Petitioner remained in the Receiving Clerk position until September 19, 2007, when she began a medical leave of absence. Jason Zook became the manager of the warehouse in May 2005. As the Warehouse Manager, Mr. Zook is responsible for overseeing the entire warehouse, including the Receiving Department. Mr. Zook is familiar with the requirements of the Receiving Clerk position because he previously worked in that position at another warehouse. Michael Sinanian is one of the Assistant Warehouse Managers. Mr. Sinanian transferred to the warehouse as an Assistant Warehouse Manager in 2002. Prior to becoming an Assistant Warehouse Manager, Mr. Sinanian worked in the Receiving Department at other warehouses for a little over two and a half years. During that time, Mr. Sinanian worked as a Receiving Manager, a Receiving Supervisor, an RTV Clerk, and a Receiving Clerk. The Receiving Department is located at the back of the warehouse. The warehouse is approximately the length of a football field from front to back. At all times material here, the Receiving Department at the warehouse had four positions: Receiving Manager, Receiving Clerk, Receiving Secretary, and Forklift Driver. In 2007, Deborah Lenox was the Receiving Manager, an employee named Sonya was the Receiving Secretary, Petitioner was the Receiving Clerk, and an employee named Valdean was the Forklift Driver. The Receiving Secretary and the Receiving Clerk have different job responsibilities. The Receiving Secretary is responsible for answering the phone, making vendor appointments, logging the appointments, dealing with paperwork, creating and printing out receiving tags, and logging shipment information into Respondent's computer system. The Receiving Clerk is responsible for counting and checking merchandise against freight bills, opening boxes and cartons with a box knife to verify and count the product, stacking bed-loaded merchandise or merchandise from damaged or unacceptable pallets onto approved pallets, separating mixed items from pallets for checking, wrapping pallets with plastic wrap in preparation for movement onto the warehouse floor, loading merchandise and emptying pallets onto trucks using a manual pallet jack or hand cart, and cleaning and clearing the receiving dock of any debris and trip hazards. Each of these essential job functions requires standing, which is consistent with the job analysis for this position. Respondent has written job analyses, which identify the essential functions of each job and are used to assist the Company, the employee, and the employee’s doctor in determining if the employee can perform the essential functions of his/her job with or without reasonable accommodations. Respondent does not remove or eliminate essential job functions, but will sometimes modify the manner in which the function is to be completed. Respondent will not displace another employee from his position in order to accommodate a disabled employee. A pallet of merchandise can be as much as 60 inches high. A typical pallet coming in the warehouse is a 60-inch cube. An electric pallet jack is a double pallet jack and is approximately 18 feet long. In order to operate an electric pallet jack, an employee has to stand and lean in the direction that she wants the machine to go and turn the handle. There is no seat on an electric pallet jack. Petitioner’s original foot condition was due to osteomyelitis, an infection of the bone. Between 1998 and 1999, Petitioner had four surgeries to address her foot condition. A surgeon placed an artificial plastic bone in Petitioner's foot in July 1999. In September 1999, Petitioner returned to work with medical restrictions that prevented her from standing for long periods of time and from lifting more than 25 or 35 pounds. At some point thereafter, while Petitioner was working at one of Respondent’s warehouses in Memphis, Tennessee, her podiatrist changed her restrictions to add limitations against cashiering, stocking, and inventory. Petitioner understood that the reason for these additional restrictions was that she was not able to do these tasks to the extent they required her to stand for a prolonged period of time. Petitioner’s medical notes stated that she was able to use her discretion as to her limitations, which Petitioner understood to mean that she could sit and rest her foot as needed. Each of these restrictions was permanent. Mr. Zook, Ms. Lenox, and Mr. Sinanian were all aware that Petitioner had medical restrictions relating to her foot condition that prevented her from standing for prolonged periods of time. They were aware that Respondent had agreed to allow Petitioner to sit down when she felt it was necessary, without first having to ask for permission. Despite her restrictions, Petitioner is able to ride her bike, go the grocery store, and work out at the gym. During the relevant time period, Petitioner worked out at the gym approximately four days a week. Her work-out routine included warming up on an elliptical machine for approximately 15-to-20 minutes or walking approximately one mile on the treadmill and using a leg press machine. Respondent performs inventory twice a year. It takes an inventory at all warehouses in February and August. The inventory process begins on Friday night and continues until the following Wednesday. The back-stock is counted on Friday night after closing and the stock on the sales floor is counted on Saturday night after closing. The post- audit process begins on Sunday morning before the warehouse opens to its members and continues on Monday morning. The Saturday night inventory count is more labor- intensive and is considered “all hands on deck.” The Saturday night inventory requires the staff to count approximately $9 million worth of inventory during roughly a five-hour period. On Saturday, Respondent assigns two employees to count the items in each aisle at the same time. The employees double- check each other’s counts. If there is a discrepancy between the employees’ counts, both will recount the items until their counts agree. If there are discrepancies after the Saturday counts between the physical counts and the computer records, the items are recounted during the Sunday post-audit. If variances still remain after the three counts, then the variances are researched during the Monday post-audit. For the Monday post-audit, Respondent only focuses on the larger-quantity, higher-dollar discrepancies. When researching the discrepancies from the variance reports, employees have to perform the following tasks: (a) count items on the floor or up in the steel racks; (b) verify bin tags; (c) research billing, shipment, and return-to-vendor records on Respondent’s computer system; and (d) check the receiving paperwork in an effort to locate and correct the source of the discrepancy. Some items will have been sold between the Saturday night count and the Monday post-audit process. Therefore, the Monday post-audit team also may have to research the sales history on a computer and back out the Sunday sales from the total count. The variance reports reflect the aisle where the item is located, the item count from the inventory count, the computer system count, and the amount of the variance. Employees are typically assigned to work in one department of the warehouse, which may require them to walk from aisle to aisle within that department. In order to assist the Monday post-audit team, the team is permitted to use computers throughout the warehouse. Employees can sit down at the computers when they are researching the variances in item counts. It can take anywhere from 15-to-30 minutes to research one item. The duties involved in the inventory post-audit process are similar to the job duties of the Receiving Clerk position. However, the post-audit does not require as much standing and is less physically demanding because the focus during post-audit is on researching the sources of the variances, rather than simply receiving, counting, and checking- in shipments. In selecting employees to work on the Monday post- audit team, Respondent prefers to schedule people who are familiar with Respondent’s return-to-vendor and receiving processes. Respondent also selects employees who are knowledgeable about Respondent’s AS-400 computer system. In February 2007, Petitioner worked the Saturday night inventory. During that time, she counted the bread then worked at the control desk. Petitioner's job at the control desk was to key-in inventory count sheets into Respondent’s computer system. Petitioner did not view this assignment as inconsistent with her restrictions against working inventory because she was seated for most of the time. In August 2007, Mr. Sinanian was responsible for the post-audit processes, including the scheduling of employees to work post-audit. Due to the requirements of post-audit, Mr. Sinanian selected people who, like Petitioner, were familiar with Respondent’s AS-400 computer system. Approximately 20 employees worked during the Monday post-audit. Mr. Sinanian and Ms. Lenox knew that Petitioner could use her discretion to sit down whenever she felt it was necessary. They had no reason to believe that the post-audit process was inconsistent with Petitioner’s medical restrictions. Therefore, she was selected to work the Monday post-audit. On Saturday, August 25, 2007, Petitioner was again assigned to count bread and then assist with keying inventory count sheets into the system. Petitioner was able to sit down while she was working at the control desk keying the inventory count sheets. Petitioner did not consider her Saturday assignments inconsistent with her restrictions. Petitioner did not work or perform any inventory or post-audit, inventory-related duties on Sunday, August 26, 2007. On Monday, August 27, 2007, the post-audit process lasted from approximately 5:00 a.m. until 10:00 a.m. Petitioner’s shift began at 5:00 a.m. After Petitioner clocked in, she reported to the control desk, where Mr. Sinanian assigned her to check variances for approximately 6 items in Department 14, the sundries department. The sundries department runs along the back right side of the building near the Receiving Department. The sundries department includes items like paper towels, cleaning chemicals, laundry detergent, water, juice, and soda. Petitioner was assigned to research variances between the physical counts and the computer system’s counts for Swiffers, dog bones, dog beds, water, soda, and paper towels. During the August 2007 post-audit process there were at least 18 computers for the employees to use. The computers were located in the Receiving Department, the front office, at the membership desk, and at the podium on the front-end. Employees were free to use any available computer and were able to sit down at most of the computers while researching items. Petitioner never had to wait to use a computer. Petitioner went to whichever computer was closest to her at the time to verify items. After she finished researching all of the items on her variance sheet, Petitioner, like all of the other employees who worked post-audit, met with Mr. Sinanian at the control desk at the front of the store to explain her findings. There was a chair at the control desk for Petitioner to sit in while meeting with Sinanian. The process of meeting with Mr. Sinanian took anywhere from 10-to-30 minutes. Other than discussing her assignment for the day and the post-audit research results, Mr. Sinanian did not have any other discussions with Petitioner on August 27, 2007. Petitioner was able to use her discretion to sit down during post-audit. She was never told that she could not sit down nor was she reprimanded for sitting down. Petitioner admits that she used her discretion to sit down at least twice during post-audit and to kneel down a couple of times. Petitioner also took a 15-minute break during the post-audit process, during which she sat down. After Petitioner finished working post-audit at approximately 10:00 a.m. on August 27, 2007, she returned to the Receiving Department, but left shortly thereafter to take her lunch break. Petitioner’s lunch break lasted for approximately a half-hour. Petitioner walked from the back of the warehouse, where the Receiving Department is located, to the front of the warehouse, where the break room is located, to take her lunch and walked all the way back after the end of her break to return to work. After returning from lunch, Petitioner began working on the UPS shipment. It was a busy day in the Receiving Department, as the UPS shipment had arrived with approximately 72 packages stacked on one pallet that was taller than Petitioner. Because Petitioner felt unable to stand, she could not check in the entire UPS shipment. As a result, Petitioner took it upon herself to take the UPS invoices and input the invoices into Respondent’s computer system, which is one of the Receiving Secretary’s job responsibilities. At some point thereafter, Ms. Lenox asked Petitioner why she was logging in items into Respondent’s computer system, rather than receiving the UPS shipment. Petitioner told Ms. Lenox that her foot was hurting and that she could not stand. Ms. Lenox told Petitioner to take her break and, when she returned from break, they would see how Petitioner’s foot was feeling. Petitioner walked to the front of the warehouse, where she took her second 15-minute break in the break room. Petitioner was able to sit with her foot up during her break. After returning from her break, Petitioner reported to the Receiving Department and told Ms. Lenox that she did not feel she could not stand any longer that day. Petitioner asked if there was something she could do other than her receiving duties. Ms. Lenox told Petitioner that if she could not stand, then Ms. Lenox did not have any more work for her and told her that she should go home. Accordingly, Petitioner went home approximately one hour before her shift ended. Petitioner reported to work the following day, Tuesday, August 28, 2007, at 5:00 a.m. and worked her entire shift. At some point after her shift started that day, Petitioner told Mr. Sinanian that Ms. Lenox would not allow her to take a break during post-audit. Petitioner also told Mr. Sinanian that her foot was swollen and hurting. She took off her shoe to show him her foot. Mr. Sinanian did not see anything unusual about Petitioner’s foot. He did not see any swelling, graying, or a red bump. From the conversation with Petitioner, Mr. Sinanian did not understand that her foot was hurting due to a new injury. Therefore, Mr. Sinanian did not fill out an incident report. Petitioner’s and Mr. Sinanian’s conversation lasted approximately two minutes. At some point after speaking with Petitioner, Mr. Sinanian asked Ms. Lenox if, at any point during post-audit, she told Petitioner that Petitioner could not take a break. Ms. Lenox denied Petitioner’s allegation. Mr. Sinanian had no reason to doubt Ms. Lenox. Petitioner continued to work her job as Receiving Clerk after August 28, 2007. She continued to use her discretion to rest her foot on an as-needed basis. When possible she would sit in a chair to work. She used the electric pallet, letting her foot hang off the platform. Petitioner waited three weeks to seek medical treatment from her podiatrist in West Palm Beach, Florida. She finally saw her doctor on Monday, September 17, 2007. At her appointment, Petitioner’s podiatrist gave her a note that stated, “DUE TO ARTHRITIC CONDITION, CYNTHIA IS UNABLE TO STAND FOR LONG PERIODS OF TIME AND IT IS MEDICALLY NECESSARY FOR HER TO BE OFF HER FOOT FOR 3 WEEKS. DUE TO THE FLARE UP.” Petitioner understood that her podiatrist wanted her to stay off her foot for a few weeks and to be in a sedentary position during that time. Petitioner also understood that these temporary restrictions were more limiting than her prior permanent restrictions. Petitioner reported to work on September 18, 2007, and told Ms. Lenox that her doctor did not want her standing. Ms. Lenox told Petitioner that they would need to speak with Mr. Zook about her restrictions when he arrived at work that day. In the meantime, Ms. Lenox permitted Petitioner to sit down and work on summary sheets. After returning from lunch, Petitioner met with Mr. Zook about her new temporary restrictions. The meeting lasted about an hour or more. Based on Mr. Zook’s prior experience working as a Receiving Clerk, his understanding of the essential job functions of that position, and Petitioner’s podiatrist’s statement that she needed to be off her foot for three weeks, he did not believe that Petitioner could perform the essential functions of that position without violating her doctor’s restrictions. Mr. Zook, nevertheless, asked Petitioner how she thought she could do her job from a seated position. Petitioner did not have any suggestions. There were no available sedentary positions in the warehouse at that time that could have accommodated Petitioner’s no-standing restrictions. As a result, Mr. Zook explained to Petitioner that based on her doctor’s restrictions, which required her to be in a sedentary position, he did not have any work for her at that time. Mr. Zook did not believe that Petitioner’s temporary no-standing restrictions prevented her from working in any capacity. Mr. Zook explained to Petitioner that she could take a leave of absence and return to work after her temporary restrictions expired. Because Petitioner’s restrictions were temporary, Mr. Zook did not contact Respondent’s Human Resources Department to schedule a job accommodation meeting. Despite Mr. Zook’s statement, Petitioner returned to work the following day and performed some work for a period of time. After Mr. Zook arrived at the warehouse, he went back to the Receiving Department and asked Petitioner why she was at work. Mr. Zook reminded Petitioner that he did not have any work for her to do at that time and that he could not allow her to work in violation of her doctor’s restrictions. After speaking with Mr. Zook, Petitioner clocked out, signed some paperwork, and left the building. Petitioner did not return to work after September 19, 2007. On October 15, 2007, Petitioner saw her podiatrist again. Petitioner’s podiatrist extended her temporary no- standing restriction for another six weeks. Petitioner understood, however, that her no-standing restrictions remained temporary at that time. Petitioner applied for and received short-term disability (“STD”) benefits beginning around the end of September 2007. Petitioner used paid time off until the STD period benefits began.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order dismissing the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 24th day of November, 2009. COPIES FURNISHED: Hnin N. Khaing, Esquire Henrichsen Siegel, PLLC 1648 Osceola Street Jacksonville, Florida 32204 Kathleen Mones, Esquire Seyfarth Shaw LLP 1545 Peachtree Street Northeast, Suite 700 Atlanta, Georgia 30309 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 The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on her color and/or her age.
Findings Of Fact The Town is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Town in November 2004 as an administrative assistant to Mayor Anthony Grant. Petitioner is a dark-skinned African-American woman who was 51 years of age at the time of the hearing. Petitioner was interviewed and hired by a committee appointed by Mayor Grant. The committee included town clerk Cathlene Williams, public works director Roger Dixon, and then- chief administrative officer Dr. Ruth Barnes. Mayor Grant did not meet Petitioner until the day she started work as his administrative assistant. The mayor's administrative assistant handles correspondence, filing, appointments, and anything else the mayor requires in the day-to-day operations of his office. For more than two years, Petitioner went about her duties without incident. She never received a formal evaluation, but no testimony or documentary evidence was entered to suggest that her job performance was ever less than acceptable during this period. In about August 2007, Petitioner began to notice a difference in Mayor Grant's attitude towards her. The mayor began screaming at her at the top of his lungs, cursing at her. He was relentlessly critical of her job performance, accusing her of not completing assigned tasks. Petitioner conceded that she would "challenge" Mayor Grant when he was out of line or requested her to do something beyond her job description. She denied being disrespectful or confrontational, but agreed that she was not always as deferential as Mayor Grant preferred. During the same time period, roughly July and August 2007, Petitioner also noticed that resumes were being faxed to the Town Hall that appeared to be for her job. She asked Ms. Williams about the resumes, but Ms. Williams stated she knew nothing and told Petitioner to ask the mayor. When Petitioner questioned the mayor about the resumes, he took her into his office and asked her to do him a favor. He asked if she would work across the street in the post office for a couple of weeks, to fill in for a post office employee who was being transferred to the finance department; as a team player, Petitioner agreed to the move. While she was working as a clerk at the post office, Petitioner learned that the mayor was interviewing people for her administrative assistant position. She filed a formal complaint with the Town. For a time after that, she was forced to work half-time at the post office and half-time in the mayor's office. On or about October 22, 2007, Petitioner was formally transferred from her position as administrative assistant to the mayor to the position of postal clerk in the post office. Her salary and benefits remained the same. At the hearing, Mayor Grant testified that he moved Petitioner to the post office to lessen the stress of her job. Based on his conversations with Petitioner, he understood that Petitioner was having personal or family problems. He was not privy to the details of these problems, but had noticed for some time that Petitioner seemed to be under great stress. The post office was a much less hectic environment than the mayor's office, and would be more amenable to her condition. Ms. Williams, the town clerk, testified that the mayor told her that Petitioner was stressed and needed more lax duties than those she performed in the mayor's office. Mr. Dixon, the public works director, testified that Petitioner had indicated to him that she was under pressure, but she did not disclose the cause of that pressure. He recalled that, toward the end of her employment with the Town, Petitioner mentioned that she felt she was being discriminated against because of her skin color. Petitioner denied ever telling Mayor Grant that she was feeling stressed. She denied telling him anything about her family. Petitioner stated that the only stress she felt was caused by the disrespect and humiliation heaped upon her by Mayor Grant. Petitioner's best friend, Gina King Brooks, a business owner in the Town, testified that Petitioner would come to her store in tears over her treatment by the mayor. Petitioner told Ms. Brooks that she was being transferred to the post office against her will, was being forced to train her own replacement in the mayor's office,3 and believed that it was all because of her age and complexion. Mayor Grant testified that he called Petitioner into his office and informed her of the transfer to the post office. He did not tell her that the move was temporary. He did not view the transfer from administrative assistant to postal clerk as a demotion or involving any loss of status. Mayor Grant testified that an additional reason for the change was that he wanted a more qualified person as his administrative assistant. He acknowledged that Petitioner was actually more experienced than her eventual replacement, Jacqueline Cockerham.4 However, Petitioner's personal issues were affecting her ability to meet the sensitive deadlines placed upon her in the mayor's office. The mayor needed more reliable support in his office, and Petitioner needed a less stressful work environment. Therefore, Mayor Grant believed the move would benefit everyone involved. Mayor Grant denied that Petitioner's skin color or age had anything to do with her transfer to the post office. Petitioner was replaced in her administrative assistant position by Ms. Cockerham, a light-skinned African- American woman born on October 17, 1961. She was 46 years of age at the time of the hearing. Documents introduced by the Town at the hearing indicate the decision to hire Ms. Cockerham was made on March 26, 2008. Ms. Williams testified that she conducted the interview of Ms. Cockerham, along with a special assistant to the mayor, Kevin Bodley, who no longer works for the Town. Both Ms. Williams and Mayor Grant testified that the mayor did not meet Ms. Cockerham until the day she began work in his office. Petitioner testified that she knew the mayor had met Ms. Cockerham before she was hired by the Town, because Mayor Grant had instructed Petitioner to set up a meeting with Ms. Cockerham while Petitioner was still working in the mayor's office. Mayor Grant flatly denied having any knowledge of Ms. Cockerham prior to the time of her hiring. On this point, Mayor Grant's testimony, as supported by that of Ms. Williams, is credited. To support her allegation that Mayor Grant preferred employees with light skin, Petitioner cited his preferential treatment of an employee named Cherone Fort. Petitioner claimed that Mayor Grant required her to make a wake-up call to Ms. Fort every morning, because Ms. Fort had problems getting to work on time. Ms. Fort was a light-skinned African-American woman. Under cross-examination, Petitioner conceded that Mayor Grant and Ms. Fort were friends, and that his favoritism toward her may have had nothing to do with her skin color. Petitioner claimed that there were other examples of the mayor's "color struck" favoritism toward lighter-skinned employees, but she declined to provide specifics.5 She admitted that several dark-skinned persons worked for the Town, but countered that those persons do not work in close proximity to the mayor. As to her age discrimination claim, Petitioner testified that a persistent theme of her conversations with Mayor Grant was his general desire for a younger staff, because younger people were fresher and more creative. The mayor's expressed preference was always a concern to Petitioner. Petitioner testified that she felt degraded, demeaned and humiliated by the transfer to the post office. She has worked as an executive assistant for her entire professional career, including positions for the city manager of Gainesville and the head of pediatric genetics at the University of Florida. She believed herself unsuited to a clerical position in the post office, and viewed her transfer as punitive. In April 2008, Petitioner was transferred from the post office to a position as assistant to the town planner. Within days of this second transfer, Petitioner resigned her position as an employee of the Town. At the time of her resignation, Petitioner was being paid $15.23 per hour. Petitioner is now working for Rollins College in a position she feels is more suitable to her skills. She makes about $14.00 per hour. The greater weight of the evidence establishes that there was a personality conflict between Petitioner and Mayor Grant. Neither Petitioner nor Mayor Grant was especially forthcoming regarding the details of their working relationship, especially the cause of the friction that developed in August 2007. Neither witness was entirely credible in describing the other's actions or motivations. No other witness corroborated Petitioner's claims that Mayor Grant ranted, yelled, and was "very, very nasty" in his dealings with Petitioner.6 No other witness corroborated Mayor Grant's claim that Petitioner was under stress due to some unnamed family situation. The working relationship between Mayor Grant and Petitioner was certainly volatile, but the evidence is insufficient to permit more than speculation as to the cause of that volatility. The greater weight of the evidence establishes that, due to this personality conflict, Mayor Grant wanted Petitioner transferred out of his office. He may even have used the subterfuge of a "temporary" transfer to exact Petitioner's compliance with the move. However, the purpose of this proceeding is not to pass judgment on Mayor Grant's honesty or skills as an administrator. Aside from Petitioner's suspicions, there is no solid evidence that Mayor Grant was motivated by anything other than a desire to have his office run more smoothly and efficiently. Petitioner's assertion that the mayor's preference for lighter-skinned employees was common knowledge cannot be credited without evidentiary support. Petitioner's age discrimination claim is supported only by Petitioner's recollection of conversations with Mayor Grant in which he expressed a general desire for a younger, fresher, more creative staff. Given that both Petitioner and Ms. Cockerham were experienced, middle-aged professionals, and given that Mayor Grant had nothing to do with the hiring of either employee, the five-year age difference between them does not constitute evidence of discrimination on the part of the mayor or the Town. Petitioner was not discharged from employment. Though Petitioner perceived it as a demotion, the transfer to the post office was a lateral transfer within the Town's employment hierarchy. Petitioner was paid the same salary and received the same benefits she received as an administrative assistant to the mayor. A reasonably objective observer would not consider working as a clerk in a post office to be demeaning or degrading.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Town of Eatonville did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 17th day of February, 2009.
The Issue The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, against Petitioner due to his age.
Findings Of Fact Petitioner was employed by Respondent as an Employee Relations Specialist from July 30, 2007, to March 7, 2008. Petitioner’s position as an Employee Relations Specialist was a full-time salaried exempt position. Throughout Petitioner’s employment, Mary Campbell was the Director of Human Resources for Respondent, and William Davis was the Human Resources Manager for Respondent. Campbell was Petitioner and Davis’s direct supervisor. On March 6, 2008, Petitioner submitted a letter of resignation to Campbell, effective Friday, March 7, 2008. Pursuant to Respondent’s termination policy, salaried exempt employees are expected to provide a minimum of four weeks’ notice of their resignation, and failure to do so could block their eligibility for rehire and payment of accrued paid time off (PTO). Petitioner failed to provide the required four weeks’ notice when he resigned his employment with Respondent. Petitioner understood that resigning with less than four weeks’ notice would block his eligibility for rehire, but, despite that understanding, he chose to resign on such short notice because he was starting a new job the next Monday. Petitioner expressed that understanding in his resignation letter, stating: “I understand the ramification of my early resignation but my future employer will not hold a position for thirty days.” (Resignation letter, Respondent’s Ex. 1). On March 7, 2008, Campbell signed a Personnel Action Notice relating to Petitioner’s resignation of employment, stating that “Dwayne Clark resigned his position for another opportunity without proper notice, accepting the consequences of losing PTO and rehire eligibility.” Campbell, without the involvement of Davis, classified Petitioner as ineligible for rehire on March 7, 2008. At hearing, Petitioner acknowledged this action was not discriminatory. The Monday after his resignation, Petitioner began working for Citizens Property Insurance as a Human Resources Generalist, and was involuntarily terminated after six weeks of employment with Citizens. In July 2009, Davis was promoted to Director of Human Resources after Campbell resigned from her employment with Respondent. On April 15, 2011, Richard Rivera was hired by Respondent as the Human Resources Manager. Prior to that, Rivera was employed by University of Florida Shands Medical Center’s (UF Shands) Human Resources Department, which shares the same building with Respondent’s Human Resources Department. Rivera knew Petitioner as a human resources employee of Respondent in 2007/2008. However, they had never spoken prior to mediation of this matter in 2017. Since becoming Director of Human Resources, Davis has received several requests for an exception to the termination policy from former employees classified as ineligible for rehire. Though he has the authority to do so, Davis has never made an exception to the termination policy or rehired anyone who had been classified as ineligible for rehire. In July 2010 and early 2012, Petitioner asked Davis to make an exception to the termination policy and reclassify him as eligible for rehire. However, Davis did not reclassify Petitioner as eligible for rehire because “[w]hen you make an exception, you have problems enforcing the policy going forward, so that’s why I do not make exceptions.” Petitioner claims that while he was employed with Respondent, Campbell made two exceptions to the termination policy and allowed the rehire of two former employees who had been classified as ineligible for rehire. However, other than their gender and race, Petitioner could not name or otherwise identify the two former employees in a way that would allow Respondent to attempt to verify his claim. Petitioner asserted that a physician assistant (PA) had been rehired by Respondent after providing less than four weeks’ notice of her resignation. Respondent was able to identify that individual as Allison McFauls. Ms. McFauls has worked as a Senior PA since 1998 and has never been an employee of Respondent or subject to Respondent’s termination policy. Ms. McFauls has always been employed by UF Shands, which is a separate entity from UF Jacksonville Physicians, Inc., with a separate human resources department and separate personnel policies. Neither Davis nor Rivera is aware of any employee of Respondent receiving an exception to the termination policy. Davis classified Hubert Collins, an Employee Relations Manager, who is nearly 20 years younger than Petitioner, and Christy Wright, who is even younger than Collins, as ineligible for rehire due to their failures to comply with the required resignation notice period in the termination policy. During their conversation in July 2010, Petitioner asked Davis if Respondent would be interested in contracting with Petitioner’s consulting company to assist with the Office of Federal Contract Compliance Programs (OFCCP) compliance review. Respondent did not contract with Petitioner because Respondent performed compliance review work and completed its Affirmative Action Plan in-house. Davis did not ask Petitioner questions regarding his age and does not recall having a conversation with Petitioner about retirement since Petitioner’s employment with Respondent. Even if such topics of conversation occurred, Petitioner agreed he may have been the one to raise them. On September 12, 2016, Petitioner applied online for a vacant Employee Relations Specialist position with Respondent. However, due to Petitioner’s failure to comply with Respondent’s four-week notice requirement, Petitioner was ineligible for rehire with Respondent in September 2016. On September 14, 2016, Rivera reviewed the applications and selected which applicants would be interviewed and considered for the open Employee Relations Specialist position. Because Petitioner was ineligible for rehire, Rivera removed Petitioner from further consideration. Rivera did not base his decision on Petitioner’s age, and there was no persuasive evidence of record that Rivera was biased against Petitioner because of his age. On September 14, 2016, Rivera rejected Petitioner’s application in the online application system and entered “ineligible for rehire” as the reason for rejecting Petitioner’s application. The same day, Petitioner was sent a form email notifying him that his application had been removed from consideration for the Employee Relations Specialist position. No one but Rivera was involved in the decision to remove Petitioner from consideration for the position. Rivera did not inform Davis or anyone else that Petitioner had applied for the Employee Relations Specialist position. Likewise, Davis never directed Rivera or anyone else to reject applications from Petitioner. Petitioner did not communicate with Davis, Rivera, or any other employee about his September 12, 2016, application. Nor did Petitioner request an exception to the termination policy from Davis or anyone else in 2016. Davis did not know that Petitioner had applied for the Employee Relations Specialist position until November 2016, when Respondent was notified by the Commission that Petitioner had filed a charge of discrimination. After receiving Petitioner’s charge of discrimination in November 2016, Davis reviewed Petitioner’s September 2016 application, and noticed that Petitioner stated that he had resigned from his employment with Citizens Property Insurance, which Davis knew to be false. If Petitioner had been hired for the Employee Relations Specialist position, Davis would have terminated Petitioner’s employment for falsifying his application.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 30th day of November, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Margaret P. Zabijaka, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Jesse D. Bannon, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Dwayne E. Clark, Sr. 11334 Bridges Road Jacksonville, Florida 32218 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
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 20th day of October, 1993, 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 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues for consideration in this hearing are whether the Respondent discriminated against the Petitioner in employment because of his national origin, and whether Respondent unlawfully retaliated against Petitioner by discharging him from employment.
Findings Of Fact At all times pertinent to the issues herein, Respondent, CCCS, was a nonprofit charitable corporation engaged in providing personal financial and credit counseling in Tampa, affiliated with the United Way. It is an employer within the meaning of the Human Rights Act of 1977 and Title 7 of the Civil Rights Act of 1964, as amended. CCCS has adopted, and had in effect at all times pertinent herein, a written policy of equal employment opportunity and affirmative action. This policy is outlined in a personnel policy manual prepared by CCCS which is provided to all employees and which was provided to Petitioner. In August, 1991, CCCS management decided to hire an individual to fill the vacant accounts manager position. Initial screening of applicants was conducted by Gloria Jackson who interviewed several candidates, including Petitioner, and recommended three of these to the President, Diane Trithart. Petitioner, Emmanuel Ebeh, was one of the three recommended and was the successful candidate selected by Ms. Trithart. At the time, Petitioner, who is black and a native of Nigeria, was residing, with his family, at Metropolitan Ministries because he was unable to provide housing and sustenance for his family without employment. He had no experience in either personal financial management or employee supervision. Up until that time, he had worked as a cook, a kitchen helper, a mail room clerk, and a pipe-fitter's helper. However, even with his lack of supervisory experience and an absence of supervisory training, Ms. Trithart felt he should be afforded this opportunity. Petitioner's immediate supervisor was Ms. Jackson. She assisted Petitioner and his family in their move into government assisted housing, even to the extent of having her husband rent a truck to help move Petitioner's personal belongings and the furniture donated by Metropolitan Ministries to their new home. Once installed in the job, Petitioner was provided with a six weeks training program, including a syllabus, to assist him in making the transition into his new position. Nonetheless, it appears that during his training period, Petitioner had difficulties accomplishing his job tasks. Within six weeks, Ms. Jackson met with him to discuss errors made in client deposit entries and at that time, provided him with written procedures to follow. She gave him a two week warning confirmed in a written memorandum dated September 17, 1991, the date of the counseling. On September 26, 1991, Ms. Jackson followed up the two week warning period with another memorandum which noted the continuation of existing problems in Petitioner's department and which extended the warning period to October 4, 1991. Mr. Ebeh continued to experience job difficulties. At first, one of his employees, Ms. Warhul, tried to cover for him, but was unable to continue to do both her own job and his. As a result, she contacted Ms. Jackson and described the situation as she saw it. Ms. Jackson then tried to discuss the matter with Mr. Ebeh. However, whenever she did, he would insist on speaking with Ms. Trithart about the issues, claiming he felt it necessary to resist Ms. Jackson's directions. Ms. Trithart promptly and explicitly explained to Mr. Ebeh that his unjustified resistance of Ms. Jackson's direction constituted insubordination and would not be tolerated. Nonetheless, he continued to resist any guidance from Ms. Jackson, whether in the form of direction or constructive correction, becoming defensive and contending that his intentions were good and he was being misunderstood. He claims that Ms. Jackson was always on his back. Petitioner's performance problems were not isolated however, nor were they restricted to incidents with Ms. Warhul. He frequently had problems with misplaced files, posting entries to wrong accounts and other errors of a similar nature which were observed by other CCCS employees. On one occasions, Ms. Jackson asked Petitioner to prepare a letter to creditors who had worked with CCCS in the past but who were not currently participating in their program. She specifically requested that Petitioner let her review a draft of the letter before it was dispatched. Notwithstanding that direction, Petitioner prepared a letter, dated March 4, 1992, which contained a number of grammatical errors and misstatements of procedure and policy, and dispatched it to approximately 2,500 creditors without allowing Ms. Jackson or anyone else in authority to review or approve it. He thereafter left a note on the desk of Mary Jennus, CCCS' education coordinator, advising her that Ms. Jackson and Ms. Trithart wanted her to make changes in the letter and enclosures. This was not so. On March 19, 1992, Ms. Trithart called a meeting with Petitioner, Ms. Jackson and Ms. Jennus to discuss this letter, and at which she orally reprimanded Petitioner both for sending it out without authority and for the inappropriate use of her name in giving false instructions to Ms. Jennus. This meeting was subsequently memorialized by memorandum. Though management contended Petitioner's letter adversely impacted on the agency's image, he asserts it had good results in that some income was realized. On March 30, 1992, Ms. Jackson prepared a written evaluation covering Petitioner's performance for the prior six months. This report indicated Petitioner had continuing problems in the performance of his duties and in his supervision skills. It also called for a further review in 90 days to assess his progress in meeting the requirements of his job. Petitioner refused to sign this evaluation and requested a meeting with Ms. Trithart. Though a note by Ms. Jackson on the evaluation indicates she would arrange that meeting, it cannot be determined if, in fact, such a meeting took place. However, on April 13, 1992, Petitioner prepared a memorandum to operations personnel in which he alludes to "miserable and harsh treatment from management and especially our boss." He also noted the possibility his employees might not be satisfied with his treatment of them and solicited their comments and complaints to him or to the assistant director. This memo discomfited at least one of his employees, Ms. Warhul, who took exception to it in writing. Ms. Mosley also disagreed with his conclusions regarding a harsh working environment and thought it inappropriate for him to send out such a memo without consulting the other employees in the department. He was the department head, however, and his memo, though it might be considered ill advised and somewhat inflammatory, was from him to the people in his department. He did not claim his conclusions were theirs nor did his comments accuse them of misconduct. A meeting of all operations personnel was called by Ms. Trithart for April 13, 1992, the date of that memo. All employees were given the opportunity to express their concerns and it became apparent that not all operations personnel agreed with Petitioner in his characterization of their work environment. The memorandum of that meeting indicates his subordinates see Petitioner as an individual who broods over situations and lets things build up to a point where he writes a memo rather than discussing the problem. An example of this is Petitioner's note on a memo dated April 13, 1992 encouraging all employees to take their lunch break and reminding them that only time before and after normal duty hours may be considered for compensatory time off. Petitioner describes this memo as "inconsiderate treatment" and concludes it was directed at him because he was not taking lunch breaks because he "was sad and depressed because of how [he] was constantly humiliated." After the meeting on April 13, 1992, Ms. Trithart again reviewed Petitioner's file and determined that in light of his most recent infractions, including the unauthorized creditors letter and the false instructions to Ms. Jennus, and his continuing performance mistakes, it would be best to terminate his employment. Her rationale was that he could not be an effective supervisor if he felt, as he clearly did, that he did not have the support of either his employees or his supervisors, and this was compounded by his insubordination which, she believed, undermined the morale in his department and Ms. Jackson's authority as his supervisor. He was, therefore, discharged on April 13, 1992. None of the employees who testified indicated, nor was there any other independent evidence to establish, that Petitioner had been treated any differently while employed by CCCS than any other employee. By the same token, save the personal impressions testified to by Petitioner, there was no indication that either race or national origin played any part in the decision to terminate his employment and it is found they did not. To the contrary, the evidence is clear that the decision to terminate Petitioner's employment with CCCS was based on his failure to meet required standards in the performance of his duties and nothing more. The same is true regarding his claim that his discharge was in retaliation to his complaint in his April 13, 1992 memo regarding what he perceived as the harsh working environment both he and his subordinates had to endure. In that regard, it is found that the memo in question is, in itself, insubordination and evidence of the improper work climate created by the Petitioner rather than his employers. Had he truly felt the treatment given him was harsh, miserable and unfair, the grievance procedures outlined in the personnel manual he had been given would have provided an appropriate avenue for adjustment as opposed to the inflammatory and insubordinate action he took. Petitioner claims his supervisors did not uniformly apply company standards. He asserts he has been treated differently from white employees who were treated with kindness and politeness and when found to have committed errors in their performance, were given time to improve. For example, he cites the case of a Ms. Sweeny who refused to sign an acknowledgment of error and who was merely demoted instead of discharged. In his case, he notes, he met with hostility. He claims no concern was given to the legal issues involved in his situation and he was discharged right away. This is, however, not the case. The evidence is quite clear that Petitioner was counselled on several occasions and evaluated formally during his period of employment with no discipline taken against him. Only when he published the insubordinate memo of April 13, 1993 was action taken. On the basis of that memo and the record of his substandard prior performance, Ms. Trithart decided to discharge him. Petitioner also claims that Ms. Warhul and others who testified against him were engaged in a conspiracy to hide the unhealthy atmosphere which existed. He asserts he was told by Ms. Warhul she would not support him when he wrote his memo because she was afraid of losing her job. It is his contention that she and he were previously close. In actuality, though she was under his supervision, she gave him much of the training he received. He believes that she and many other employees do not like Ms. Jackson but are afraid to say so. Petitioner offered no independent proof of this contention, however, and it is found to be unsupported. Petitioner also takes exception to the claim by CCCS's management that his English was hard to understand. He claims that during the entire 8 months he worked there, his English was never criticized until such time as the decision was made to discharge him. At that time, he contends, he was told that he did not project the proper image the company desired. Mr. Ebeh also notes that he was constantly confronted with a situation where his immediate supervisor would approve something he did and then deny it. Ms. Jackson would approve in advance something his department proposed and then, when it was not well received, deny approving it. Petitioner claims that because of the actions of CCCS's management, he has undergone great stress. When he applied for the position with the firm he and his family were homeless and he admits he was helped considerably by the job and the company personnel. However, he claims he did not get all the help for free and asserts he has paid back for what he received during those first few weeks. He also claims that he has been maligned by company personnel who reported to his job service counsellor that he was soliciting money from coworkers and that he had a bad body odor. These comments humiliated him and he notes that they did not come about until after he complained to Ms. Trithart. Petitioner has no job now and no income and claims to be suffering from health problems. As of April, 1993, a Department of Health and Rehabilitative Services physician noted that he is suffering from raised cholesterol which interferes with his employment "for the present." His total monthly income for himself, his wife and his four sons is $600.00, out of which he must pay approximately $300.00 in rent and $113.00 for utilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that a Final Order be entered dismissing Emmanuel Ebeh's Petition for Relief from the alleged unlawful employment practices of discrimination based on race or national origin, and of retaliation filed against the Respondent CCCS. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 25th day of June, 1993. COPIES FURNISHED: Emmanuel B. Ebeh 4002 East Pocahontas, #110 Tampa, Florida 33610 James R. Freeman, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 E. Kennedy Blvd., Suite 1000 Tampa, Florida 33602 Sharon Moultry, Clerk Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
Findings Of Fact At the final hearing in this case on June 11, 1987, counsel for the Petitioner, Mary Ann Hunter, made a special appearance but did not present any evidence in support of her contention that the Respondent, Bank of South Palm Beaches, unlawfully terminated her employment for racial reasons, in violation of the Human Rights Act of 1977, as amended. Counsel for the Respondent was present with witnesses, and was prepared to proceed as the Respondent's interests might require. Without any evidence in support of the Petition for Relief, the allegations therein have not been substantiated. Accordingly, the Petition for Relief must be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Mary Ann Hunter be dismissed. This Recommended Order entered on this 15th day of June, 1987, in Tallahassee, Florida. WILLIAM B. THOMAS 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 15th day of June, 1987. COPIES FURNISHED: Margaret L. Cooper, Esquire Post Office Drawer E West Palm Beach, Florida 33402 Arlyne G. Warshall, Esquire 415 - Fifth Street West Palm Beach, Florida 33401 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Regina McGriff, Clerk Human Relations Commission 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether the Petitioner was discriminated against on the basis of his race, color, or national origin in violation of Section 760.10, Florida Statutes (2000).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Bamawo is a black male from Nigeria. Mr. Bamawo began working for the Department at the Dade Correctional Institution ("DCI") as a correctional officer in March 1993. At the times material to this proceeding, Mr. Bamawo was a career service employee whose duties included the care, custody, and control of inmates of the institution. Mr. Bamawo normally worked the third shift, from 2:00 p.m. to 10:00 p.m. During most of the time Mr. Bamawo was employed at DCI, Captain Scott Pardue, as the third shift supervisor, directly supervised Mr. Bamawo. According to Mr. Bamawo, he and Captain Pardue did not "see eye-to-eye" even though Mr. Bamawo tried to get along with Captain Pardue. The first incident that Mr. Bamawo considers discriminatory occurred in 1995, when Captain Pardue formally disciplined Mr. Bamawo for writing graffiti.3 Mr. Bamawo denies that he wrote the graffiti, and he made a verbal complaint to a superior officer identified as "Colonel Thompson." Mr. Bamawo also asserts that, in 1995, an Anglo corrections officer was promoted to sergeant, and Mr. Bamawo was required to follow his orders. Mr. Bamawo asserted that he made many complaints to Captain Pardue about this sergeant but that Captain Pardue did nothing. Also in 1995, Captain Pardue made two remarks to Mr. Bamawo that Mr. Bamawo considered offensive: On one occasion, Captain Pardue apparently was looking at a picture of an African woman in a National Geographic magazine when he asked Mr. Bamawo if "you people live in houses or sleep in trees"; Mr. Bamawo believed Captain Pardue was making a derogatory comment about Mr. Bamawo's being a native of Africa. Another occasion was at Thanksgiving, when Mr. Bamawo brought a can of corn to a covered-dish lunch; Mr. Bamawo opened the can of corn and set it on the table with the other food, and Captain Pardue asked if this was the way people in Africa ate corn. These remarks caused Mr. Bamawo to be humiliated and embarrassed in front of his co-workers. Mr. Bamawo asserts that Captain Pardue refused to approve his requests for time off the job but would approve time off for Anglo officers. When Captain Pardue refused Mr. Bamawo's requests for time off, Mr. Bamawo asked other captains for approval, and, when they refused to approve his requests for time off, Mr. Bamawo called in sick. Mr. Bamawo recalls that, on one occasion, he was forced to miss an appointment because Captain Pardue ordered him to work overtime. According to Mr. Bamawo, Captain Pardue accused Mr. Bamawo of being a minute late on one occasion and penalized him, although Mr. Bamawo recalls that Captain Pardue did not penalize others for being late. It was Mr. Bamawo's perception while he worked at DCI that, countless times, Captain Pardue changed the work assignments of Anglo officers when they requested a change, but that Captain Pardue never changed Mr. Bamawo's work assignment when he requested a change. Mr. Bamawo believed that he was given the assignments that no one else wanted. On March 21, 2000, Mr. Bamawo was involved in an altercation with Sergeant Frankie Tindall. Mr. Bamawo called Sergeant Tindall "bitch" and threatened to "blow away" Sergeant Tindall when Sergeant Tindall questioned Mr. Bamawo about trash that littered his post.4 On April 23, 2000, Captain Pardue designated Correctional Officer Orol as third-shift supervisor in DCI's north annex "Yard One"; Mr. Bamawo was one of three other correctional officers assigned to Yard One at the time. As designated supervisor, Mr. Orol had the authority to assign tasks to the three other officers. Mr. Bamawo protested Captain Pardue's choice of Mr. Orol because Mr. Orol had been out of the academy only six months; Mr. Bamawo felt that he should have been designated supervisor because he was the senior officer on the shift. Captain Pardue told Mr. Bamawo that he felt more confident with Mr. Orol in the position of supervisor. Mr. Bamawo told Captain Pardue that he was going to file a grievance. At some point during the daylight hours of the third shift on April 23, 2000, Mr. Orol told Mr. Bamawo to complete a check of the perimeter fence, which Mr. Bamawo considered a difficult job to do in the daylight because it was very hot work. Mr. Bamawo refused the order and told Mr. Orol that he would do the fence check when the sun went down. After a time, Mr. Orol called Mr. Bamawo on the radio and told him again to check the perimeter fence; Mr. Bamawo again refused, using a radio shorthand phrase meaning, "Do it yourself." Captain Pardue was monitoring the radio transmission and heard the exchange between Mr. Bamawo and Mr. Orol. Captain Pardue thought that Mr. Bamawo had responded to Mr. Orol in a "nasty" tone of voice, and, fearing that Mr. Bamawo and Mr. Orol might get into a confrontation, Captain Pardue radioed Mr. Bamawo and told him to come to the control room. Captain Pardue took Mr. Bamawo into a copy room and confronted him about his attitude toward Mr. Orol. Mr. Bamawo again complained about Captain Pardue's choice of Mr. Orol as supervisor rather than Mr. Bamawo. During the discussion, Mr. Bamawo became agitated, turned, and walked away from Captain Pardue. Captain Pardue called to him and told him to come back; Mr. Bamawo turned back and approached Captain Pardue with his fists clenched, called Captain Pardue "bitch," and said he would "bust" Captain Pardue.5 At this point, Captain Pardue, fearing for his safety, called Jeffrey Wainwright, who was the acting warden of DCI. After talking with Captain Pardue and Mr. Bamawo, Mr. Wainwright reassigned Mr. Bamawo to the women's facility across the street from DCI. Mr. Bamawo threatened to file a discrimination complaint if Mr. Wainwright did anything to him as a result of the incident with Captain Pardue. Mr. Bamawo was terminated from his employment with the Department on May 4, 2000. Mr. Bamawo appealed his termination to PERC, which found that the Department had just cause to terminate him based on the incidents of March 21 and April 23, 2000. Mr. Bamawo testified that, through the years, Captain Pardue made "countless" derogatory remarks about Mr. Bamawo's race and national origin. At first, according to Mr. Bamawo, he thought that Captain Pardue was joking, but that, eventually, he saw hate behind Captain Pardue's remarks.6 Mr. Bamawo also claims that Captain Pardue gave him bad work assignments; refused to give him days off; and used rookie officers like Mr. Orol to "agitate" him. Mr. Bamawo believes that he was terminated in retaliation for having threatened to file a grievance against Captain Pardue for unprofessional conduct because Captain Pardue designated Mr. Orol as the supervisor on April 23, 2000, and allowed him to give orders to more senior correctional officers. Other than his complaint to "Colonel Thompson" about the graffiti incident in 1995, Mr. Bamawo did not complain during the years he worked at DCI, either verbally or in writing, that Captain Pardue made racist remarks or derogatory remarks about his national origin or that Captain Pardue discriminated against him in any respect. Mr. Bamawo stayed in his job as a correctional officer at DCI because he liked the job, thought everyone was friendly, and liked working with the inmates. He had no problem with anyone on the job except Captain Pardue and Sergeant Tindall.7 Summary The evidence presented by Mr. Bamawo is not sufficient to support a finding that his termination by the Department was motivated by discriminatory intent or retaliatory. Mr. Bamawo failed to present any evidence to support a finding that the Department has ever imposed a lesser penalty on anyone not a black or a person of African origin for having threatened a Department sergeant or captain with violence. Mr. Bamawo has failed to present sufficient evidence to support a finding that his termination was retaliatory because he had not, at the time he was terminated, filed an employment discrimination complaint; rather, Mr. Bamawo had merely threatened Mr. Wainwright that he would file such a complaint if disciplinary action were taken against him for the April 23, 2000, incident involving Captain Pardue. The evidence presented by Mr. Bamawo is not sufficient to support a finding that he was subjected to continual harassment based on his race or national origin such that his ability to function as a correctional officer was impeded. Although Mr. Bamawo, as a black man of African origin, is a member of two protected classes, he did not present evidence sufficient to establish that he was treated differently from other correctional officers with respect to pay, assignments, time off, or any other aspect of his employment with the Department, and he did not present sufficient evidence to support a finding that he was forced to endure an abusive and hostile work environment at DCI. The evidence submitted by Mr. Bamawo is sufficient to establish that, in 1995, Captain Pardue made a remark about Africans sleeping in trees and a remark about the manner in which Africans served canned corn, but, even though Mr. Bamawo was humiliated and embarrassed by these boorish remarks, these two isolated instances of derogatory comments based on race and national origin are not indicative of a pervasively hostile or abusive work environment.
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 of Oghenerhoro Bamawo. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 18th day of September, 2003.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2007),2 by discriminating against Petitioner based on her national origin.
Findings Of Fact The Omni, advertised as "Omni Orlando Resort at ChampionsGate," is a golf resort located in the Orlando tourist corridor near Walt Disney World. The Omni is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner, Suhra Merdanovic, is a Bosnian female, and her first language is Bosnian. She speaks and understands English, but is more fluent and comfortable using her native language. Ms. Merdanovic was employed by the Omni from approximately August 22, 2006, to October 9, 2006. Ms. Merdanovic worked in the kitchen of the Broadway Deli, a sandwich shop located in the resort. The Broadway Deli was one of several restaurants in the Omni complex. During the brief period of Ms. Merdanovic's employment, the Broadway Deli did not have a full-time manager. Ms. Merdanovic reported to Silvio Rosalen, the sous chef at Teri's Restaurant, near the Broadway Deli in the Omni complex. Mr. Rosalen reported to Robert Fohr, the assistant food and beverage manager for the Omni. The Omni has established a policy that prohibits harassment in the workplace. The policy defines harassment as: ny unwelcome verbal, non-verbal, physical or other conduct or behavior relating to an individual's race, religion, color, sex, national origin, age, disability or any other categories protected by state, federal or local law, that is made a term or condition of employment, is used as the basis for employment or advancement decisions, or has the purpose or effect of unreasonably interfering with work or creating an intimidating, hostile or offensive work environment. The policy "strictly prohibit[s]" employees, supervisors, and members of management from harassing other employees, supervisors, or members of management. The policy directs an employee who has a complaint of harassment to report that complaint to any manager or supervisor, the human resources director, the general manager, or the regional vice president of operations. The complaint triggers a formal investigation, usually conducted by the human resources director. The Omni's harassment and equal employment opportunity policies are set forth in the Omni's Associate Handbook, which is provided to all employees. The handbook is reviewed during an orientation session that all newly hired Omni employees must attend. Ms. Merdanovic attended an orientation session on August 26, 2006, and testified that she was familiar with the harassment policy. The Omni calls the first 90 days of employment an "introductory period." The Associate Handbook describes the introductory period as follows: During this time you will have a chance to see whether you like your job and Omni Hotels will have an opportunity to evaluate your performance and suitability for your position. If Omni Hotels concludes that your job performance and/or suitability have been unsatisfactory, you may be dismissed at any time during the introductory period at Omni Hotels' complete discretion. You may also be dismissed at any time after the introductory period at the sole discretion of Omni Hotels. Both during and after the introductory period, all associates are associates at will. If an employee's manager determines within the first 90 days of employment that an employee's job performance and/or "suitability" is unsatisfactory, the manager will meet with the employee to review the manager's concerns. After this meeting, the employee's job status is "suspended pending investigation" while the manager confers with the human resources department to review the issues. If the manager and the human resources department agree that the employee should be terminated, then human resources will advise the employee of the decision. Ms. Merdanovic testified that two Hispanic co-workers, Erica Torres and Charlotte Ruiz, harassed her because of her nationality. Ms. Torres asked her what she was doing in America and refused to go into the kitchen with her. Both women made jokes and laughed about Ms. Merdanovic being from Bosnia. Ms. Merdanovic testified that her co-workers also disliked her, because she refused to give them free food from the Broadway Deli's kitchen. Ms. Merdanovic did not complain to a manager, supervisor, or any other Omni employee about the harassment she claimed to have experienced. Mr. Rosalen testified that he received numerous complaints about Ms. Merdanovic's job performance from her co- workers. The co-workers told him that Ms. Merdanovic failed to follow instructions, argued with guests and co-workers, interrupted co-workers who were trying to explain how to complete job tasks, gave guests the wrong order at least twice, and failed to comply with the posted work schedule. Mr. Rosalen personally observed Ms. Merdanovic's performance deficiencies on several occasions. The guest complaints were most significant to Mr. Rosalen. On one occasion, the guest had ordered a turkey sandwich, but was served a pastrami sandwich by Ms. Merdanovic. Rather than correcting the order immediately, Ms. Merdanovic attempted to convince the guest to keep the pastrami sandwich by telling him it was good and he would like it. On a second occasion, a guest ordered a milkshake and was served iced coffee.3 At the hearing, Ms. Merdanovic testified that she was unaware of any complaints about sandwiches. She stated that she has worked in kitchens for years and understands how to make sandwiches in a deli. She did complain that she was never trained to operate the "front of the store" equipment such as the milkshake machine or coffee machine, yet was expected to somehow be able to operate them. Mr. Rosalen orally counseled Ms. Merdanovic on multiple occasions regarding her performance deficiencies, but he never observed any improvement. Pursuant to the process for terminating employees during their introductory period, Mr. Rosalen and Mr. Fohr decided to meet with Ms. Merdanovic to discuss her performance deficiencies and to advise her not to return to work until she heard from human resources. After this meeting, Mr. Rosalen and Mr. Fohr would meet with the human resources director to discuss whether to terminate Ms. Merdanovic's employment. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution Notice" form, dated October 2, 2006, that set out the performance deficiencies and possible corrective actions for Ms. Merdanovic. This notice was intended to be the outline for discussion during the meeting with Ms. Merdanovic. Under the heading "Specific Nature of Problem" were various categories, including absenteeism, tardiness, violation of company policies, and unsafe actions. Ms. Merdanovic's problem was categorized as "Performance Below Standards." The specific performance problems were set out as follows: There have been numerous complaints about Suhra Merdanovic's job performance from several of her co-workers. These complaints include: Does not follow training of food preparation techniques and quantities. Does not follow food, coffee and drink recipes. Does not know what all the ingredients are to be able to make recipe. Looses [sic] tickets for orders. Has become argumentative with employees and guests when told that the product is wrong. Has tried to convince guests that mistakenly prepared food is good and tried to get them to take it. Does not understand the schedule after repeatedly having it explained. Interrupts employees and does not let people finish talking when trying to explain how a task needs to be completed. Is not a team player. The notice set forth the following under the heading, "Expected performance or conduct/corrective action required": Suhra must adhere to the following guidelines: Must be receptive to and accept training in all facets of Broadway Deli culinary operations with a positive attitude. Must follow all standard recipes without deviation to achieve a consistent product. Must produce orders in timely fashion in accordance to [sic] the guest's specifications. Must never become argumentative with a guest and try to force a guest to take a product they do not want. Must get along with and assist teammates with all guest needs. The notice concluded that the "disciplinary action taken" would be "Suspension/Termination." On October 2, 2006, Mr. Rosalen and Mr. Fohr met with Ms. Merdanovic in Mr. Fohr's office to review the contents of the Problem/Solution Notice. When her supervisors began reviewing her performance deficiencies, Ms. Merdanovic interrupted to argue with them. Mr. Fohr pointed out that this was the same sort of conduct that led to this counseling session in the first place. Before Mr. Rosalen and Mr. Fohr could present her with the notice and commence the formal suspension/termination process, Ms. Merdanovic began to cry in a way that Mr. Rosalen described as "almost hysterical" for several minutes. Ms. Merdanovic then walked to the kitchen of the Broadway Deli. Mr. Rosalen followed her, both to make sure she was all right and to escort her off the Omni property. Ms. Merdanovic again began crying and saying that she could not breathe. She described her condition as "couldn't breathe, couldn't think, couldn't stay." Mr. Rosalen called in the Omni's security team, which also acts as the resort's first responder in medical emergencies. The entry of the security guards threw Ms. Merdanovic into a greater panic. Eventually, at Ms. Merdanovic's request, the Omni called an ambulance service, which transported her to Florida Hospital in Orlando. Ms. Merdanovic was diagnosed with high blood pressure and discharged after an overnight stay in the hospital.4 After the incident leading to Ms. Merdanovic's hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde- Christie, the Omni's human resources manager, to discuss their meeting with Ms. Merdanovic, the complaints about her from guests and co-workers, and Mr. Rosalen's observations of her performance deficiencies and his previous attempts to correct them. Ms. Borde-Christie agreed that Ms. Merdanovic was not meeting the Omni's performance expectations for her position. In light of Ms. Merdanovic's failure to improve her performance despite Mr. Rosalen's several attempts at verbal counseling, Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was unlikely that Ms. Merdanovic's performance would improve in the future. They decided to terminate her employment. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen met with Ms. Merdanovic to tell her that her employment was terminated and to review the performance deficiencies that caused her termination. When Ms. Borde-Christie attempted to review the performance issues, Ms. Merdanovic became argumentative, stating that these issues were all lies and that her co-workers did not like her. Ms. Borde-Christie testified that Ms. Merdanovic said nothing about her national origin being an issue in the workplace. Ms. Merdanovic produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. The Omni's management did not become aware of her allegations of harassment due to her national origin by her co-workers until Ms. Merdanovic filed her Employment Complaint of Discrimination, more than two months after her dismissal. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination all related to her job performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Omni Hotel Resort did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 26th day of March, 2008.
The Issue Whether Respondent, Department of Transportation, discriminated against Petitioner, Charles Bean, on the basis of his age and retaliated against him, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a public agency of the State of Florida. It has offices throughout Florida commensurate with its responsibilities. Petitioner is a Caucasian male. He is a long-time employee of Respondent. By letter of July 1, 2003, Petitioner was dismissed from his position as a technician for insubordination and conduct unbecoming a public employee. Petitioner did not offer any evidence of his actual age or that, other than his stated opinion, his age was the reason he was discharged. He did indicate that his age and experience were mentioned referable to his capacity to teach inexperienced employees and to perform his job. Petitioner did not offer any evidence regarding a replacement for the position from which he was discharged or of any employee who was treated differently than he. Petitioner did not offer any evidence of retaliation. He made a vague statement that he was the victim of retaliation, but did not offer any basis for his opinion. Petitioner refused to complete work assignments in a timely manner. These assignments were appropriate for his job responsibilities. When questioned by his supervisor regarding his failure to complete a particular job responsibility, Petitioner became defiant refusing to provide a written explanation; his angry response to the request included expletives. He then threatened a fellow employee who overheard the exchange between Petitioner and his supervisor. Petitioner's immediate supervisor does not believe age had any bearing on Petitioner's discharge. In addition, he supervises two other employees, aged 53 and 63. Petitioner's conduct violated the published Disciplinary Standards for State of Florida Employees.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief and finding that Petitioner failed to present a prima facie case and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons. DONE AND ENTERED this 9th day of August, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles Bean 431 Buffalo Street West Melbourne, Florida 32904 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
