The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against by being terminated, allegedly on account of her race, and in retaliation for filing a claim concerning discrimination.
Findings Of Fact Tammy King, the Petitioner, became employed by the Respondent in June of 2000. She was employed as an operations manager, supervising the cleaning service work for various customer accounts as well as the people employed to perform the cleaning service work for those accounts. She was employed by the Respondent for approximately one year. The owners of the Respondent company are Linda and Daniel Coley. On October 18, 2000, Ms. King was evaluated by her evaluator and supervisor Christopher Stettner and received an excellent evaluation, which was apparently co-extensive with the end of her probationary period. Gene Janushanis also was in a supervisory capacity over the Petitioner. Mr. Janushanis, in his supervisory role, is the primary focus of the Peititoner's complaint of discriminatory conduct concerning his conduct and attitude toward her. The Petitioner contends, in essence, that Mr. Janushanis refused to allow the Petitioner to discipline black employees and treated her more harshly, with harassment, including cursing at her, and otherwise interfered with her performance of her job. She stated that he treated black employees, including black supervisors in similar positions to the Petitioner, more favorably, as to disciplinary or job performance issues, than he treated the Petitioner. The Petitioner maintains that she had no problems, disciplinary or otherwise, in the performance of her job before Mr. Janushanis was hired as her supervisor and that their numerous altercations commenced shortly thereafter. However, she also developed a difficult relationship with Christopher Stettner, the supervisor who gave her the excellent evaluation at the end of her probationary period. Apparently, their relationship deteriorated soon thereafter and became quite hostile. In fact, Mr. Stettner filed an internal complaint or grievance against the Petitioner concerning alleged harassment of him by the Petitioner. This resulted in the Respondent's scheduling additional "anti-harassment training" for the Petitioner and other employees thereafter. Thus, a hostile relationship with abrasive arguments ensued between the Petitioner and Mr. Stettner, as well as between the Petitioner and Mr. Janushanis, starting in the late part of 2000 and through the first half of the year 2001. Cassey Clark, the Human Relations Director for Respondent, witnessed a number of "very harsh arguments" between Tammy King and office employees or supervisors Dwayne Coley, Chris Stettner, and Gene Janushanis. Both owners and employees witnessed very hostile, violent arguments between Mr. Janushanis and the Petitioner on a number of occasions, sometimes in the presence of customers of the company and generally in the presence of other employees or owners. These altercations included instances where the Petitioner refused to perform directions of her supervisor. Additionally, a substantial number of employees had verbal altercations with the Petitioner concerning receiving credit for, and payment for, the hours they had worked. On a repetitive basis the Petitioner failed to submit correct hours for the payroll and in one case got into a verbal altercation with an employee, Sonya Ross, chased the employee out in the parking lot, and refused to give her her last paycheck, telling her that she would mail the check to her, which was against company policy. The Petitioner exhibited a hostile, threatening attitude and conduct toward employees concerning hours worked and other aspects of her opinion of the way they were performing their jobs, as well as concerning payroll issues. Such instances occurred with at least nine employees. This hostile, threatening attitude and failure to comply with the payroll policies of the Respondent, as well as the several instances of the Petitioner failing to perform as directed by her supervisors, constituted misconduct under the regular policies of the Respondent. These instances of misconduct occurred on a frequent basis through the first half of 2001, including an instance where an employee called to state that she had to be out for two days because her baby was sick with a high fever. The employee followed company policy and provided documentation from the physician involved concerning her need to be off from work. She then called Tammy King to say that she had to go back to the hospital with her child, and Ms. King told her that she would be terminated. The employee then called the owner, Linda Coley, to inform her of the problem because she was afraid of losing her job. Ms. Coley then spoke with Ms. King and reminded her that it was against company policy to terminate an employee if he or she brought proper documentation from the physician or hospital, which was the case. This also was a clear violation of company policy concerning employees and supervisors. These instances of misconduct and the very hostile verbal altercations between the Petitioner and Mr. Janushanis, her branch manager, continued until June of 2001. The Respondent counseled with both the Petitioner and Mr. Janushanis about their conduct and attitude between themselves and toward other employees. Ultimately the decision was made in mid-June 2001 to terminate the Petitioner and Mr. Janushanis as well. On June 22, 2001, the Petitioner was terminated, as was Mr. Janushanis, on the same date. On June 20, 2001, the Petitioner had filed a complaint with the EEOC, by letter, and informed the Respondent of that fact. The decision to terminate the Petitioner, however, had been made prior to the filing of the complaint with the EEOC. The Petitioner has failed to establish that any actions taken by the Respondent toward her were related to her race. The supervisor complained of by the Petitioner was of the same race, white, and there is no persuasive evidence that shows any intent by the owners or management of the company to treat similarly-situated members of another race more favorably. In fact, there was preponderant and substantial evidence of misconduct on behalf of the Petitioner which established a legitimate, nondiscriminatory reason for her termination. Although her initial performance was rated as excellent in the initial months of her employment, the Petitioner failed to continue that level of performance. In fact, her misconduct on the job, including the instances enumerated in the above findings of fact shows that the Petitioner's conduct and performance had deteriorated so that she was not properly performing the various requirements of her employment position, when viewed in the context of regularly- adopted company policy. Upon the Respondent's becoming aware of these conduct shortcomings, and failure to properly perform in her position, as well as the improper conduct by her supervisor, the Respondent did not condone the Petitioner's level of conduct nor that of her supervisor, Mr. Janushanias. Rather, the Respondent sought to assist them in improving their conduct and performance. When these efforts were not successful, the Respondent ultimately terminated both of them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 3rd day of December, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2003. COPIES FURNISHED: K. Jeffrey Reynolds, Esquire 924 N. Palafox Street Pensacola, Florida 32501 Banks T. Smith, Esquire Hall, Smith & Jones Post Office Box 1748 Dothan, Alabama 36302 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner on the basis of his age as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2010).
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Respondent is a mental health facility and employs more than 15 persons. Petitioner was hired as an Assessment Specialist II on February 18, 2008. At the time he was discharged, he was 51 years old. An Assessment Specialist II performs mental health assessments of individuals brought to Respondent's facility by law enforcement, hospital transfers, or walk-ins. As part of his job duties, Petitioner also provided crisis intervention, diagnostic impression, and referral information as part of an initial assessment to clients who sought services at Respondent's facility. Completion of the assessments are important, because the doctors review them to assist them in determining the direction to take for treatment. Respondent observed that Petitioner’s monthly average productivity, measured in assessments performed per shift, was well below that of the other assessment specialists who worked the same shift as Petitioner and that his assessments were of poor quality. In response, Petitioner’s supervisors counseled him, provided Petitioner with written warnings, and, eventually, placed Petitioner on a 30-day Performance Improvement Plan. Petitioner was informed that he had to increase his productivity to a goal of an average of three assessments per shift. Other assessment specialists were also disciplined and/or terminated for low productivity and poor quality of assessments. These employees were also told to average three assessments per shift during their performance evaluations, and while they sometimes did not achieve that goal, their performance showed significant improvement, as compared with Petitioner. At the conclusion of the 30 days provided under the Performance Improvement Plan, Petitioner’s productivity had only slightly improved and not to the goal of three assessments per shift. As a result, Respondent terminated Petitioner’s employment on February 17, 2009. The consensus among the witnesses was that the quality of Petitioner's mental health assessments was poor and his productivity was unacceptably low. This consensus is accepted as credible and was the basis for Petitioner's discharge. Petitioner was disciplined for selling personal items while at work and claims disparate treatment. The basis for his discharge is poor performance, not selling personal items while at work. Evidence was presented by both parties regarding the fact that Petitioner was not promoted within Respondent's organization; the Petition for Relief is silent regarding this issue. The evidence on this subject indicated that Petitioner submitted his application three days after the period for applications closed.
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, Lakeside Behavioral Health Care, did not discriminate against Petitioner, Kenneth D. Craven, and dismissing the Petition for Relief. DONE AND ENTERED this 15th day of December, 2010, 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 15th day of December, 2010. COPIES FURNISHED: 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 Deborah L. La Fleur, Esquire Matthew A. Klein, Esquire GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802-3068 Kenneth D. Cravey 1201 Lavanham Court Apopka, Florida 32712
The Issue Whether the Petitioners were subject to an unlawful employment practice by Respondent, the Florida Division of Emergency Management (DEM), on account of their sex or marital status in violation of section 760.10, Florida Statutes.
Findings Of Fact At all times relevant to this proceeding, Ms. Boland was separated from her husband, though they were not yet divorced. Mr. Younger was married until he was asked by his wife to leave the marital home on February 6, 2010. Mr. Younger considered himself to be separated as of that date. Mr. Younger was first employed by the DEM in 2001. On April 6, 2009, he was promoted to a Planning Manager position in the Technological Hazards Section. In that position, he oversaw employees in the Radiological Emergency Preparedness (REP) Program and the Risk Management Planning Program. The Planning Manager position was in Select Exempt Service, which is a classification of supervisory and managerial positions that serve at the pleasure of an agency?s senior management. In his position as Planning Manager, Younger was supervised by Shanti Smith, Administrator of the Technological Hazards Section. Ms. Smith was supervised by Gwen Keenan, Bureau Chief for the Bureau of Compliance and Planning.1/ Shortly after Younger began as Planning Manager, the DEM determined that there was a need to hire a Planner II in the REP Program. A three-member interview panel, which included Younger, was established to make a recommendation for the position. The panel interviewed 5 or 6 applicants, including Boland, and recommended the hiring of Terry Chasteen to the position. After Ms. Chasteen was hired, the DEM determined that there was a need for a second Planner II in the REP Program, and authorized the position to be selected from the existing pool of interviewed applicants. Younger recommended Boland for the position, and she was thereupon hired as a Planner II under Younger?s direct supervision, effective June 19, 2009. At the time he recommended that she be hired as a Planner II, Younger was well-acquainted with Boland. Beginning in 2008, while employed in the DEM Mitigation Planning Unit, Boland began communicating with Younger via Twitter. In the fall of 2008, Boland attended a seminar at which Younger was a presenter. On December 12, 2008, Boland was hired to a position in the Technological Hazards Section, and was assigned a desk about ten feet from Younger?s office. They interacted in April 2009, regarding flooding in Hamilton County, Florida. There is no evidence that, at the time of Younger?s hiring recommendation of Boland, their familiarity with one another was anything but work related. The Planner II position to which Boland was hired was classified as a career service position. As such, Boland was subject to a one-year probationary period during which the employee may be separated without the right to appeal through the career service process. In late June 2009, shortly after Boland was hired, she and Younger attended a social dinner together. The dinner was held in conjunction with an Incident Management Team meeting in Crystal River. By September 2009, Boland was having personal discussions with Younger about details of her private life, including that she was separated from her husband and was thinking about starting to date other men. Ms. Boland testified that her separation was, by that time, common knowledge around the DEM. By early November, 2009, Younger and Boland had begun walking together during their lunch breaks. During those walks, Younger and Boland discussed, among other things, private conversations Younger had been having with his wife. In November 2009, Younger and Boland traveled to the Crystal River area for business related to the Crystal River nuclear power plant and a proposed Levy County nuclear power plant. They drove down together the day before scheduled activities, and stayed the night at a hotel in the area. They dined together that evening. Ms. Chasteen, who was also scheduled to attend the meetings, chose to drive separately the following morning. At some point in November 2009, Mrs. Younger picked Younger up from work, and proceeded to drive through the DEM parking lot. Younger testified, unconvincingly, that Mrs. Younger?s drive through the parking lot was merely to give his son a better look at some emergency vehicles parked nearby. In any event, Boland expressed concern over her action, perceiving it as threatening, and discussed “tactical actions” with Younger in the event Mrs. Younger showed up at their workplace. On November 30, 2009, Younger and Boland drove to Orlando, Florida to attend a series of training programs, task force meetings, and a FEMA Region IV Conference. The activities spanned a period of two weeks, from November 30, 2009 to December 11, 2009. Ms. Chasteen, who was involved in parts of the scheduled activities, stayed in Tallahassee for the first part of the trip. Younger and Boland elected to stay in Orlando over the intervening weekend. During the intervening weekend, Mrs. Younger discovered a series of Twitter messages from Younger directed to Boland. Some of the messages included the abbreviated term “IAU,” which Mrs. Younger took to mean “I adore you,” but which Younger testified meant “in another universe.” The tweets are not in evidence, and their context cannot be ascertained. Regardless, Mrs. Younger proceeded to send a series of three tweets to Boland from Younger?s Twitter account. Boland took the first two tweets as harassment, and the third as a threat. Later that evening, Mrs. Younger called Younger and demanded that he return to Tallahassee. He did not. The next morning, Sunday, December 6, 2009, Younger and Boland were driving from a meeting back to their hotel. Mrs. Younger was waiting for them in the parking lot with the couple?s children. Having parked away from Mrs. Younger so as to avoid a confrontation between her and Boland, Younger went to speak with his wife. She expressed concerns over the messages exchanged between Younger and Boland, and “felt compelled” to say that she was attempting to save their marriage. She shouted at Boland from across the parking lot, but made no other attempts to engage her. Mrs. Younger stayed at the hotel that evening. She again indicated to Younger that she was trying to save their marriage. Mrs. Younger returned to Tallahassee the next day. Younger and Boland remained in Orlando for the conclusion of the events. Mrs. Younger returned to Orlando at the scheduled conclusion of the training and picked up Younger. Younger testified that he did not ask Mrs. Younger to pick him up, and stated his belief that it was a waste of fuel for her to drive to Orlando and back. He further testified that Mrs. Younger did not say why she returned to Orlando to pick him up, and he apparently did not ask. Although Boland felt threatened by Mrs. Younger?s actions, neither Younger nor Boland reported the threatening communications or actions to anyone at DEM. The reasons given were that there was no reason to believe Boland?s fears at the time were “substantiated,” that Younger?s supervisor, Shanti Smith, was a “gossip,” and that based on Younger?s previous training and experience as a law enforcement officer, he perceived there to be no imminent threat arising from any of the events. In mid-December, 2009, Younger advised his wife that he was attending an office party at the home of Ms. Keenan. Younger did not attend the party. He instead had dinner with Boland, during which they discussed matters pertaining to his personal life. On or about January 6, 2010, Younger travelled with a co-worker, Lou Ritter, to a task force, training, and response team meeting in West Palm Beach. They returned on the evening of January 8, arriving in Tallahassee after dark. Younger asked Mr. Ritter to drop him off at Boland?s residence, rather than at his own house. His professed -- but unconvincing -- reason for being dropped off at Boland?s after a three-day out-of-town trip was that he needed to return a book to her. During the month of January, 2010, Younger spent “a couple of nights” at Boland?s residence. One of those overnight visits occurred while Mrs. Younger was hospitalized for suicidal thoughts. Mrs. Younger?s mother was taking care of Younger?s children that evening, though Younger did not know where they were staying. There was no explanation as to why Mrs. Younger?s hospitalization was a reason for Younger to sleep over at Boland?s house. The reason for the second January sleepover was not revealed. On January 19, 2010, Younger asked to meet with Mr. Helms, the DEM Personnel Officer. The purpose of the meeting was to determine how one might accommodate a hypothetical situation where a supervisor is interested in dating a subordinate employee. Younger indicated that it was an “exploratory meeting” designed merely to inquire about possibilities “down the road.” Younger testified that when he arranged the meeting, he had not considered whether he wanted to engage in a relationship with Boland. However, he knew that it would be improper for a supervisor to have a relationship with a subordinate in the chain of command. Younger and Boland discussed the meeting and its purpose beforehand, and discussed the substance of the meeting at length after it occurred, though neither claimed to have specific recollection of their discussions. Boland understood that there would have to be a restructuring of the DEM organizational chart to accommodate a relationship with Younger. During the meeting with Mr. Helms, Younger asked, as a “hypothetical question,” what options were available to a supervisor who wanted to date a subordinate employee. He testified that he did not reveal that his inquiry was directed towards a relationship with Boland, because at the time it was not something he was pursuing. Given the circumstances and events leading up to the January 19 meeting, and the fact that he and Boland had prior discussions about the meeting and its purpose, Younger?s testimony that the meeting was entirely hypothetical seems contrived. Mr. Helms identified the problems associated with a supervisor having a relationship with a subordinate. Those problems included ethical issues, issues of judgment, implications as to the fairness of evaluations and assignments, the perceptions of other employees regarding preferential treatment, and the possibility that the agency could be exposed to liability for sexual harassment if the relationship soured. Mr. Helms indicated in no uncertain terms that if a relationship with a subordinate was a possibility, Younger should “get out in front of the situation.” By that, Mr. Helms meant that Younger should disclose the relationship before it started, and seek accommodation within the DEM organizational structure. Mr. Helms stressed that waiting until the relationship commenced would entail serious consequences. Mr. Helms memorialized the meeting on his calendar, but had no intention to reveal the meeting unless it subsequently came to light that Younger was engaged in a relationship that was not disclosed. On January 22, 2010, Younger testified that Shanti Smith approached him in the breezeway between their office buildings and asked him if he knew about Boland?s “freaky sex life.” The context in which the statement was made was not described. Younger testified that the comment made him uncomfortable, and that he did not respond. Younger did not disclose the comment to anyone at the DEM until March 23, 2010, when he was faced with dismissal. He testified that he feared retaliation if he complained, but identified no instance of that having occurred previously. On January 24, 2010, Younger and Ms. Smith travelled to Miami for work related to the Haiti earthquake relief. At no time during the drive to Miami or back to Tallahassee did Younger make any exploratory inquiries as to how Ms. Smith, his direct supervisor, might respond to a potential desire by a member of her staff to date a subordinate because, according to Younger, “that was not on the radar at that time.” However, Younger did reveal that he and his wife were having marital difficulties. At some point prior to February 6, 2010, Mrs. Younger directly confronted Younger with her suspicion that he was carrying on an intimate relationship with Boland. On Saturday, February 6, 2010, Mrs. Younger asked Younger to leave the marital home, which he did. Younger testified that he was not financially capable of staying at a hotel. Although Younger had lived in Tallahassee his entire life, he apparently had no friends or family that he could turn to for temporary lodging. Thus, despite Mrs. Younger?s belief that Boland was a cause of the marital collapse, and despite the fact that Boland was his direct subordinate, Younger determined that the only viable place for him to stay was at Boland?s house. He arrived at her house on the evening of February 6. She immediately took him in, and he ended up staying full-time. Upon returning to work on February 8, 2010, Younger told no one at DEM of his new living arrangement, his reason being that he did not “believe there was a policy that required [him] to do that.” Younger also testified that because of his busy travel schedule, it was difficult to get everyone involved in the same place to relate the information regarding his moving to Boland?s house. He did not want to discuss the matter over the telephone, as the telephone is “sometimes less than reliable.” Younger, as Boland?s direct supervisor, was charged with completing her performance evaluation. Boland?s evaluation covered her period of employment from her June 19, 2009, hire date to February 28, 2010. The evaluations were due 60 days from February 28, 2010. Younger testified that, at some time prior to March 15, 2010, he decided that he would not evaluate Boland?s performance because of fears that his objectivity could be compromised. He did not relate that decision to anyone at the DEM until questions about his relationship with Boland began to surface. On or about March 15, 2010, it came to the attention of Ms. Smith and Ms. Keenan that Petitioners were regularly driving to work together. Ms. Keenan instructed Ms. Smith to discuss whether Younger could find someone else to car-pool with, as regularly car-pooling with a subordinate created an appearance to other employees of impropriety and potential favoritism. Ms. Smith asked Younger about the car-pooling arrangement with Boland. On direct inquiry from Ms. Smith, Younger denied that he and Boland were “living together.” He testified that he believed his answer to be accurate since he maintained that his living arrangement with Boland was as friends and, in his mind, “living together” connoted co-habitation. Approximately one hour later, and having had second thoughts about his answer, Younger came to Ms. Smith?s office and admitted that he was living at Boland?s house. Ms. Smith indicated that the arrangement was unacceptable, and that Younger should move to another location. It was at or about that time that Younger revealed his intent to decline to evaluate Boland?s job performance. When Ms. Smith reported back to Ms. Keenan, it was with the information that Petitioners were living under the same roof. Ms. Keenan determined that, even if the relationship were strictly platonic, it served to cloud the supervisor/subordinate relationship. Therefore, she asked Ms. Smith to discuss the matter with Petitioners to ask that they make alternate accommodations. On March 17, 2010, Younger made a travel request to Ms. Keenan for Boland to attend REP training on nuclear regulation from March 22-26, 2010. The travel request was made by telephone. The travel request did not go through Ms. Smith, which would have been the normal protocol. Younger testified that Ms. Smith was out of the office that day, that he did not know where she was, and that he did not know if he could make the travel request to her by telephone. No explanation was provided as to why it was acceptable to make a telephonic travel request to Ms. Keenan, but not to Ms. Smith. The DEM was under travel restrictions, which led Ms. Keenan to ask Ms. Smith if the travel request was legitimate. Ms. Smith determined that Ms. Chasteen was originally scheduled to attend the training course on her own. When Ms. Chasteen had to cancel her attendance for medical reasons, Younger contacted Ms. Keenan to amend the travel request to authorize Boland to attend. In addition, though he did not intend to go when Ms. Chasteen was scheduled to take the training, Younger decided to accompany Boland to the training in order to “audit” the course. The course was the same as that attended by Petitioners during their November 30 - December 11, 2009, Orlando trip, and attended again by Younger in January 2010. However, Younger testified that the December course was a “pilot” version of the training, and that it was sufficiently different from that being offered in March to justify their attendance again. Why Younger believed his attendance was not warranted when Ms. Chasteen was scheduled to take the training, but was warranted when Boland was substituted for Ms. Chasteen, was not explained. When advised of the circumstances surrounding Petitioners? travel, Ms. Keenan began to sort the “data points” that increasingly pointed to Petitioners being involved in a personal relationship. At that time, the points included the car-pool issue, the house-sharing issue, and now the travel issue. She thereupon requested the DEM Chief of Staff to cancel Petitioners? travel request, and to advise Mr. Helms of the situation. On or about March 19, 2010, Ms. Smith met with Mr. Helms to discuss Petitioners? situation. Ms. Smith advised Mr. Helms of the car-pooling, the living arrangements, and the fact that Younger had initially denied that he was living at Boland?s house. During their conversation, Mr. Helms disclosed the details of his January 19, 2010 meeting with Younger. Ms. Smith related the information regarding the January 19, 2010, meeting to Ms. Keenan. Upon being advised of the January 19, 2010 meeting, which she considered to be an additional “data point,” Ms. Keenan met with Ms. Smith and Mr. Helms. She determined that Petitioners would have the opportunity to meet with management and describe the circumstances of their relationship. If Petitioners denied the existence of a personal relationship, Ms. Keenan would take that information and consider a solution. If Petitioners admitted to a relationship, Ms. Keenan determined that there were three possibilities: dismissal, demotion, or resignation. Although Ms. Keenan ultimately consulted with other persons in the DEM, including the acting Chief of Staff, Angela Peterson, and the interim Director, David Halstead, the evidence demonstrates that the selection of which option would be implemented was to be Ms. Keenan?s alone. Ms. Keenan developed a script that she intended to read from at the March 22, 2010, meeting so as not to leave anything out. Late in the afternoon of March 22, 2010, Petitioners met with Ms. Keenan, Ms. Smith, and Mr. Helms. Ms. Keenan, reading from her script, asked Petitioners if they were engaged in a personal relationship. Boland answered immediately that they were. Younger initially remained silent, but subsequently admitted that he and Boland were in a personal relationship.2/ Both stated that they meant to come to Ms. Keenan earlier, but that their busy schedules prevented everyone from getting together. Ms. Keenan was unimpressed with that explanation, since she had a well-understood open-door policy; since she made it clear that if any manager had an issue, they would be accommodated; and since all managers, including Younger, had a state-issued Blackberry and Ms. Keenan?s cell phone number. Ms. Keenan stripped Younger of his supervisory duties, presented Petitioners with the options of resignation or dismissal, and gave them until noon on March 23, 2010, to decide. After the March 22, 2010, meeting, Boland decided that she would submit her resignation. She asked to speak with Ms. Keenan and Mr. Helms on the morning of March 23, 2010, and advised them of her decision. Boland testified that it was her choice to resign. She admitted that she and Younger were in a serious relationship, but that the relationship developed after she was hired in the Planner II position. She told Ms. Keenan that she was sorry to have placed her in a bad situation as a result of her relationship with Younger, and regretted that they had not handled the situation better. She stated that she hoped the DEM would keep Younger because he was important to the program. She reiterated that it had not been her intent to deceive anyone at DEM about her relationship with Younger. Ms. Keenan did not direct Boland to resign, but suggested that if resignation was her decision, she speak with Mr. Helms for assistance in drafting a letter. Ms. Keenan then left the meeting. Mr. Helms and Ms. Smith determined the process for Boland to turn in her state-issued equipment. By 9:00 p.m. on March 23, 2010, Boland submitted her letter of resignation to Ms. Keenan. Although March 23, 2010, was her last day in the office, her final day was set as April 2, 2010. By allowing that to be her last day, Boland was able to use some accumulated leave that she would not have been paid for due to her probationary status, and would receive an additional full month of health insurance coverage. That severance date was, under the circumstances, a reasonable and generous accommodation on the part of the DEM. Also during the morning of March 23, 2010, and after Boland?s meeting, Younger met with Ms. Keenan and Mr. Helms. He advised them that he did not intend to resign. He reiterated that he had not intended to deceive anyone, but explained that he was a perfectionist and had not yet found the perfect time to reveal the relationship. At the March 23, 2010, meeting, Younger disclosed, for the first time, Ms. Smith?s “freaky sex life” comment allegedly made on January 22, 2010. Given the lack of materiality of the statement to any issue in this proceeding, and the hearsay nature of the testimony, no finding is made as to whether Ms. Smith actually made that comment or not. On March 25, 2010, Younger again advised Ms. Keenan that he was not going to resign, but would let the decision- making process run its course. Younger reiterated that he had not meant to deceive Ms. Keenan about the relationship. Ms. Keenan determined that the totality of the circumstances -- especially the fact that Younger had discussed the issue of a superior/subordinate relationship with Mr. Helms in January, 2010, but ignored Mr. Helms? advice and instruction - - created significant doubt as to Younger?s judgment and managerial integrity. The REP Program is one of the most sensitive in the agency. Having lost all confidence in Younger?s ability to effectively serve in the program, Ms. Keenan decided to dismiss Younger from his position. She asked Mr. Helms to relate her decision to Younger. Mr. Helms told Younger of Ms. Keenan?s decision, and advised him that he still had the option to resign by noon on March 26, 2010. On the morning of March 26, 2010, Younger submitted his letter of resignation to Ms. Keenan. His final day was set as April 16, 2010, so that he could use some accumulated leave for which he would not otherwise have been paid. That severance date was, under the circumstances, a reasonable and generous accommodation on the part of the DEM. Ms. Keenan, as the decision-maker for the DEM in this matter, testified that her decision to accept the resignations of Petitioners or, had they not done so, to dismiss Petitioners, was based solely on what she considered to be an improper personal relationship between a supervisor and a subordinate. She testified that she did not initiate or take any action based on the marital status of either Petitioner. She further testified that she did not initiate or take any action based on Boland?s female gender or Younger?s male gender. Her decision would have been unaffected regardless of whether Petitioners were single, married, or divorced, and regardless of whether the gender roles had been reversed. Ms. Keenan?s testimony was credible, clear, and convincing, and is accepted by the undersigned. Comparators The only evidence of other DEM personnel who were in “comparable” circumstances, but who were treated differently than Petitioners, involved Denise Imbler, a DEM Community Program Manager, and Donald Kunish, a DEM Planning Manager and Ms. Imbler?s direct subordinate. They were in their supervisor/subordinate organizational positions from September 2001 until September 30, 2003. At some point in their professional relationship, Ms. Imbler and Mr. Kunish developed an attraction for one another. Before acting on their mutual attraction, Ms. Imbler and Mr. Kunish went to their Bureau Chief, Eve Rainey, to try and work out an arrangement that would allow them to date one another without running afoul of supervisor/subordinate ethical considerations. At the time of the request, Craig Fugate was the Director. Since Ms. Imbler and Mr. Kunish disclosed their intent before acting on it, the DEM was willing to try and accommodate their request. A number of options were considered to sever the supervisor/subordinate relationship, including transfers to different positions, and up to the resignation of one of them. After some consideration, the decision was made that an organizational change could be made that called for Mr. Kunish to report directly to Ms. Rainey. Thus, Ms. Imbler would no longer be Mr. Kunish?s supervisor, eliminating the DEM?s concerns of ethics and managerial integrity. The organizational change was implemented on October 1, 2003. After the organizational change was made, Ms. Imbler and Mr. Kunish began to see one another on a personal level. Since their personal issues had been revealed and resolved well beforehand, there were no adverse employment actions resulting from their relationship. Both Ms. Imbler and Mr. Kunish were single, as opposed to being married but separated, thus leading Petitioners surmise that they were treated differently than persons outside of their protected class due to their marital status. In addition, Ms. Imbler, the supervisor, was female while Mr. Kunish, the subordinate, was male, as opposed to the other way around, thus suggesting to Petitioners that they were treated differently due to their sex. Ms. Imbler and Mr. Kunish did not report to the same supervisors as did Petitioners. Ms. Imbler and Mr. Kunish did not engage in conduct similar to the Petitioners. Ms. Imbler and Mr. Kunish were open, direct, and forthcoming with the DEM, and took action before commencing their relationship to prevent adverse inferences as to their ethics and integrity. In short, the situation involving Ms. Imbler and Mr. Kunish was materially dissimilar from that of Boland and Younger. Their conduct, and the DEM?s reaction to it, is distinguishable and therefore inapplicable as a comparator. Ultimate Findings of Fact In this case, Ms. Keenan?s decision to take disciplinary action against Petitioners was based entirely on the realistic and good faith belief that Younger, a supervisor, and Boland, a subordinate employee, were carrying on a personal relationship without advising the DEM. Whether the suspicion was accurate or not is not the issue. Ms. Keenan thought it was accurate. Even if mistaken in her belief, a personal relationship between a supervisor and a subordinate raises issues of judgment and managerial integrity, as well as ethical issues of preferential treatment, assignments, and performance evaluations that reflect on both Younger and Boland. Those issues were sufficient to warrant Ms. Keenan?s, and thereby the DEM?s, decision to seek and accept Petitioners? resignations. There was no competent, substantial evidence adduced at the hearing that any persons who were not members of the Petitioners? protected classes, i.e., having the marital status of being separated, and having their respective genders, were treated differently from Petitioners, or under similar circumstances were not subject to similar adverse employment actions. There was not a scintilla of evidence introduced at the hearing that Petitioners? marital status or sex had anything to do with their being discharged by the DEM, and it is expressly found that those factors formed no basis for the discharge of either Petitioner.
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 Respondent, Division of Emergency Management, did not commit any unlawful employment practice as to Petitioner, Anne Boland, and dismissing the Petition for Administrative Hearing filed in FCHR No. 2011-1065, DOAH Case No. 11-5198; and that the Florida Commission on Human Relations issue a final order finding that Respondent, Division of Emergency Management, did not commit any unlawful employment practice as to Petitioner, Michael Younger, and dismissing the Petition for Administrative Hearing filed in FCHR No. 2011-1066, DOAH Case No. 11-5199. DONE AND ENTERED this 26th day of January, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 26th day of January, 2012. 1/ Due to a reorganization of the DEM, the Bureau of Compliance and Planning was renamed as the Bureau of Preparedness, effective July 1, 2010. However, when the organizational bill passed the legislature earlier in 2010, the DEM immediately began to internally refer to the bureau as the Bureau of Preparedness. Thus, exhibits and testimony that refer to the Bureau of Preparedness are deemed to apply equally to the Bureau of Compliance and Planning. 2/ During their testimony, Petitioners disputed that they admitted to a “personal” relationship at the March 22, 2010, meeting, and testified that Ms. Keenan actually asked if they were involved in an “inappropriate” relationship. Petitioners testified that they admitted to an “inappropriate” relationship, but believed it related only to their car-pooling. Given the events that had transpired since November 30, 2009, culminating with the fact that Petitioners had been living under the same roof for more than 6 weeks, even if Ms. Keenan used the word “inappropriate” instead of “personal,” Petitioners? testimony that they did not understand Ms. Keenan?s questions to be related to whether they were engaged in a relationship of a more intimate nature than a car-pool is not credible, and is not accepted. The most persuasive evidence is that Ms. Keenan asked Petitioners directly whether they were engaged in a personal relationship, to which Boland, and eventually Younger, admitted they were. 3/ At the conclusion of the March 22, 2010, meeting, Boland and Younger were faced with an order to resign or be fired. Having little or no choice in the matter, Petitioners chose to salvage what dignity they could, and submitted letters of resignation that did not burn bridges on the way out. The undersigned accepts the argument that, given the circumstances, the decisions were not voluntary, but were constructive discharges. As stated by the First District Court of Appeal: Under federal case law appellant?s resignation would be considered a constructive discharge, meaning that a person may be deemed discharged if the words and actions of the employer would logically lead a prudent person to believe his tenure had been terminated. NLRB v. Trumbull Asphalt Company, 327 F.2d 841 (8th Cir. 1964); Jack Thompson Oldsmobile v. NLRB, 684 F.2d 458 (7th Cir. 1982); Young v. Southwestern S&L Association, 509 F.2d 140 (5th Cir. 1975). LeDew v. Unemplmt. App. Comm?n, 456 So. 2d 1219, 1223-1224 (Fla. 1st DCA 1984). Accepting the resignations as constructive discharges supports a conclusion that Petitioners were subject to adverse employment decisions as a result of their relationship. Such a finding does not mean, however, that the adverse employment decisions were the result of unlawful discrimination. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Anne Boland Post Office Box 10253 Tallahassee, Florida 32302 Michael S. Younger Post Office Box 503 Tallahassee, Florida 32302 Gretchen Kelley Brantley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was demoted from his position as a security officer, and later terminated from his position with the Respondent as a groundskeeper on or about May 22, 1995, on the basis of his race (Black) or sex (male), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner is an African-American male, and is licensed as a Class D security officer by the State of Florida. Respondent, Life Care Retirement Communities, Inc., is a not-for-profit corporation, based in Iowa, which owns Village on the Green, a community with 241 independent living units and 60 skilled health center beds in Longwood, Florida. Petitioner was hired by Respondent, on April 27, 1998, as a security guard at Village on the Green in Longwood, Florida. He worked in that capacity until May 12, 1995. In accordance with the company's standard procedure, all employees who have keys or access to resident's private property are required to have a criminal background check completed. Petitioner's position as a security guard required such a check. Petitioner signed a consent form and the background check was completed. The background check revealed that, in 1993, Petitioner was arrested for the felony of grand theft auto. The charge was later reduced from the misdemeanor charge of Trespass to a Conveyance. On May 17, 1994, Petitioner pled nolo contendere to the charge. Adjudication was withheld by the Court and Petitioner was placed on six months probation. Petitioner successfully completed probation. It is the policy of Respondent that an employee with a prior criminal record which involves theft may not be placed in a safety-sensitive position which permits employee access to a resident's living quarters or personal property. A security officer has such access. Petitioner was then informed that he would be removed from his position as a security guard. Petitioner was then offered a position in groundskeeping and Petitioner accepted. He was transferred to groundskeeping, at the same salary, and was employed from May 15, 1995, until May 22, 1995, at which time he was terminated. Between May 15 and May 22, 1995, Petitioner performed his job satisfactorily. On May 15, 1995, a severe electrical storm knocked out electricity to Petitioner's residence. As a result, Petitioner overslept and did not report to work at 7:00 a.m., the scheduled beginning of his shift. At approximately 8:00 a.m., Petitioner called the security guard on duty and advised her of the reason he was late and that he would not be in that day because the storm had caused damage to his automobile. The fact that Petitioner reported in on May 15th was not conveyed by the unidentified security guard to Petitioner's supervisor. Respondent's policy, as stated in the Employee Handbook, called "No show/no call," requires an employee to notify his supervisor if he is going to absent, or if he is unable to contact the supervisor, then he is to report his absence or tardiness to the switchboard operator. The Employee Manual, at page 45, states in pertinent part: ". . . Failure to report for duty without notification, failure to call in prior to shift change and tardiness will result in disciplinary action." After an internal investigation, which included an interview with Petitioner, Respondent was unable to determine that Petitioner had called in on May 15, 1995. Petitioner was terminated. Petitioner has failed to demonstrate that Respondent's reason for termination was pretextural, or that the employer engaged in unlawful hiring, firing, pay or promotion practices.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 3rd day of June, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John V. Griffin DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1998. Director of Human Resources Life Care Retirement Communities, Inc. d/b/a Village on the Green 200 East Grand, Suite 390 Des Moines, Iowa 50309 Terrance Davenport 861 Carver Street Winter Park, Florida 32789 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.
Findings Of Fact The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent. The Respondent is an employer as defined by Chapter 760, Florida Statutes. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages. DONE and ENTERED this 20th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 June, 1995. APPENDIX The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 and 2. Paragraph 3-5 Subsumed in Paragraphs 3-5. Paragraph 6-8 Subsumed in Paragraphs 6-9. Paragraph 9 Subsumed in 3 and 11. Respondent's Recommended Order Findings Paragraphs 1-3 Paragraphs 1-3 Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5. Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11. COPIES FURNISHED: James P. Tarquin, Esquire Michael B. Staley, Esquire P.O. Box 906190 Ocala, FL 34478 John Daley, Esquire 201 E. Pine Street 15th Floor Orlando, FL 32801 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent Conoco meets the statutory definition of an "employer" within the meaning of Section 760.02, Florida Statutes. Petitioner, Marlan D. Williams, who is black, is a member of a class protected by this statute. Petitioner began work at Conoco on January 4, 1990, as a sales associate and was discharged from his employment on May 27, 1992. When Mr. Williams was hired on January 4, 1990, he was required to sign a new employee agreement. Section 3 of that agreement explains to new employees the importance of good customer relations. After reading the employment contract, Mr. Williams signed the agreement. Mr. Williams testified that he understood the importance of good customer relations. Mr. Williams also testified that he understood that he could be terminated for multiple customer complaints and was aware of a white employee who had been terminated for customer complaints. Conoco's personnel policies and procedures regarding termination state in relevant part that, "involuntary terminations occur for a reason, such as when an employee's performance does not meet acceptable standards, if the employee violates Company policy, or when there is no work available for the individual." The details of Conoco's policy were left up to each sales district's manager. In this case, the district manager was Tammy Hunter. Her policy was that three complaints involving customers would result in termination. Ms. Hunter was not concerned with the truth behind these complaints, but only with the fact of multiple complaints. In the past, Conoco, through Ms. Hunter, has consistently applied its termination policy to employees receiving complaints involving customers in a nondiscriminatory manner. In fact, there was no evidence presented at the hearing that the policy was not applied in a nondiscriminatory or had unintended discriminatory impact. 1/ Over the term of his employment Mr. Williams received at least three complaints. Two of the complaints were made by customers directly to Ms. Hunter. One complaint was reported by management to Ms. Hunter and involved a very heated and nasty argument between Mr. Williams and a manager trainee in front of customers. Numerous other incidences of nonspecific poor customer relations involving employees and poor attitude were noted by the store manager, Julia Meuse. Mr. Williams received informal verbal and written counseling regarding his poor behavior towards customers, from his store manager and two assistant store managers. Conoco accordingly discharged Mr. Williams for violation of the Company policy regarding acceptable performance standards in customer relations and customer complaints. The evidence did not demonstrate these reasons were pretextual. Petitioner failed to present any evidence that he was replaced by a person not from a protected class. Therefore Petitioner has not established a prima facie case of discrimination. Finally, the decision to discharge Mr. Williams was made in good faith, for legitimate nondiscriminatory business reasons, and was based upon the objective application of Conoco's policies. Since Petitioner has failed to prove by a preponderance of the evidence that the reasons given by the Respondent for discharging him were a mere pretext to cover up discrimination on the basis of race, Petitioner has failed to establish he was discriminated against and therefore the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his race in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 2nd day of June, 1994, 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 2nd day of June, 1994.
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
Findings Of Fact The Petitioner, Myra McKinney, is a black female. The Respondent is an insurance company which conducts operations in Florida, as pertinent hereto, consisting of the receipt of insurance policy applications with attendant premium payments, the recording of such policy applications, and other administrative procedures and operations necessary to act on the applications and receipt of premium monies by underwriting the risks involved by insurance policies issued by the company. The Respondent is an employer in the State of Florida for the purposes of Chapter 760, Florida Statutes. The Petitioner was employed by Respondent at times pertinent hereto and from 1981 through June 2, 1992. When she was terminated she held the position of "processing manager." This position involved presiding over the department as supervisor, with the responsibility and function of receiving insurance policy applications and related binder and/or premium monies and properly accounting for them in the process leading up to the Respondent company issuing insurance policy contracts. The Petitioner was the supervisor of personnel charged with the receipt of and proper accounting for such applications and premium monies. On or about June 11, 1992, after being terminated by the Respondent on June 2, 1992, the Petitioner filed a charge of racial discrimination related to her termination with the Florida Commission on Human Relations (Commission). An investigation was conducted by the Commission which ultimately resulted in the determination of "no cause." The Petitioner had been placed on work probation on May 11, 1992, because of poor work performance. The terms of her probation status specified that her work performance would have to be reviewed in 30 days and that if objectives were not met she would be terminated. The Petitioner had been asked by her manager or supervisor to provide him with reports on missing work (lost or misplaced applications), as well as a plan to correct the processing deficiencies leading to this problem and to eliminate the backlog of unprocessed applications. The Petitioner failed to provide the requested response and report until the supervisor had to make a second request of her. Witness John Burkhalter, the Petitioner's most recent supervisor, as well as witnesses Maria Diaz and Connie Bonner, established that a corporate audit revealed severe deficiencies and discrepancies in the processing department's function, which the Petitioner supervised. Under the Petitioner's management the processing department had fallen into severe disarray with a serious backlog of unprocessed work, a loss of control by Ms. McKinney over the processing of the work, particularly the problem of lost or misplaced insurance policy applications and related premium or binder checks. There were organizational and work-flow management problems, and very poor morale throughout the processing department. Ms. Diaz established that the poor morale was directly attributable to the Petitioner's performance because she had poor organizational skills. Numerous meetings were held with no apparent purpose for the meetings and little was accomplished. Meeting agendas between the Petitioner and her subordinates were lacking or rudimentary. The Petitioner had the habit of intimidating employees, being critical of them, and causing the employees to feel reluctant to express ideas and opinions clearly, particularly criticisms of the manner in which the office was operated. Once the Petitioner left employment, the backlog of unprocessed work and the problem of missing or misplaced applications was immediately alleviated, with the office functioning in much better fashion ever since. Additional missing applications and a box of "backlogged", unprocesed applications were found concealed in the office on the day of the Petitioner's termination, June 2, 1992, during the course of her work probationary period. Mr. Burkhalter established, as the immediate supervisor of the Petitioner and the regional operations officer of the Respondent company, that the Respondent had a progressive discipline policy and termination policy. The corporate policy was followed with regard to the termination of the Petitioner. The Respondent employed progressive discipline when it learned of the severity of the problems in the processing department, imposing a probationary period first, and giving the Petitioner an opportunity to correct the problems, followed by termination for work performance deficiencies when the opportunity to correct those deficiencies was not taken advantage of by the Petitioner. Ms. McKinney's actual performance in May of 1992 was not consistent with her previous performance evaluations. Her former manager, Mr. McFall, had inflated her performance ratings and given her satisfactory ratings when actually her performance did not justify such. Mr. McFall himself was terminated near the same time as the Petitioner and testified on behalf as concerning purported satisfactory performance but, given the totality of the circumstances surrounding his termination and testimony in support of the Petitioner, is deemed a biased witness against the Respondent. His testimony was colored by his own dispute and history of litigation with the Respondent concerning his employment and termination. Mr. Burkhalter reviewed the Petitioner's entire personnel file, the deficiencies in her work performance and her lack of any improvement during the work probationary period when the Respondent gave her an opportunity to improve and make corrections. He determined termination was, therefore, the only option. He reviewed such considerations as transferring the Petitioner or demoting her to another position. However, because of the exceedingly poor morale generated in the department largely by the Petitioner's management and supervisory practices, Mr. Burkhalter determined that neither option was in the best interest of the Respondent or Ms. McKinney. He, therefore, terminated Ms. McKinney in compliance with the provisions of the work probation policy of the Respondent. He did not terminate her or otherwise discipline her for any reasons motivated by consideration of her race. In establishing this as fact, his testimony is corroborated by that of Ms. Lynn Jones, a black female employee, who testified that she had never been personally discriminated against by Mr. Burkhalter or Colonial nor had she observed any other black person employed by the Respondent treated in what appeared to her to be a disparate fashion, including the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the evidence of Record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the subject petition of Myra McKinney in its entirety. DONE AND ENTERED this 11th day of January, 1994 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 11th day of January, 1994. APPENDIX Petitioner's Proposed Findings of Fact: Accepted but not in itself materially dispositive of the relevant issues. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial. Rejected as not in accordance with the totality of the preponderant, credible evidence. 8-9. Accepted, but not dispositive of the material issues presented. Rejected as not in accordance with the preponderant, credible evidence of record. Rejected as not clearly established by the preponderant evidence of record. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. Rejected as immaterial and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not entirely in accord with the preponderant weight of the evidence. Rejected as contrary to the preponderant weight of the credible evidence. Rejected as contrary to the preponderant weight of the credible evidence. Accepted. Rejected as immaterial. Rejected as immaterial. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial. Rejected as immaterial given the issues in this proceeding. Rejected as immaterial and not in accord with the preponderant weight of the evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of the credible evidence. Rejected as immaterial. Rejected as not in accord with the preponderant weight of the credible evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial under the circumstances presented by the issues in this case. Rejected as immaterial under the circumstances presented by the issues in this case. Rejected as immaterial under the circumstances presented by the issues in this case. Respondent's Proposed Findings of Fact: 1-14. All accepted, but subordinate to the Hearing Officer's Findings of Fact on the same subject matter to the extent that they differ. COPIES FURNISHED: Ms. Myra McKinney 1823 Mayfair Road Tallahassee, Florida 32303 Lucinda A. Reynolds, Esquire McCutchan, Druen, Maynard, Rath & Dietrich One Nationwide Plaza Columbus, Ohio 43216 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues are whether the Respondents committed unlawful employment practices against Petitioner, and if so, to what relief is she entitled.
Findings Of Fact In the spring of 1994, Respondent CSD began operating a residential detention program for juvenile offenders pursuant to a contract with the Department of Juvenile Justice. The purpose of the program, commonly known as Hamilton House, was to provide redirection to the lives of its youthful residents/clients. Hamilton House had 48 beds divided between two dormitories. Respondent CSD assigned each resident to the appropriate dormitory, level six or level eight, depending on the type of security and rehabilitative services required. The program included an educational program as well as facilities for vocational and recreational activities. Respondent CSD employed Petitioner, a 51 year-old white female, as a resident advisor at Hamilton House from March 24, 1994 through June 30, 1996. Petitioner initially worked the 11:00 p.m. to 7:00 a.m. shift in the level six dormitory. At times she served as the acting shift supervisor though she was not paid a supervisor's wages. When Petitioner began working for Respondent CSD, she lived with her elderly mother, Lotus Musgrove, whose colon cancer was in remission. At that time, Mrs. Musgrove was able to live independently and did not need a caretaker. On April 24, 1994, some of the clients managed to gain access to a bottle containing an alcoholic beverage. Petitioner and other employees received a verbal warning for failing to adequately monitor the behavior and movement of the clients. A training letter was placed in each employee's personnel file. In May of 1995, Respondent CSD hired Bobby Williams, Sr., as a resident advisor in the level eight dormitory. Mr. Williams is a black male. He eventually assumed the position of shift supervisor for the entire facility. There is no evidence that Petitioner sought this full-time position or a similar supervisory position at any time during her employment with Respondent CSD. In October of 1995, some of the clients accused Petitioner and another staff member of inappropriate conduct including, but not limited to, furnishing them with prohibited magazines and movies. As a result of the allegations, Respondent CSD suspended Petitioner and her co-worker without pay on October 18, 1995. By letter dated October 20, 1995, Respondent CSD advised Petitioner in writing that there was insufficient evidence of misconduct to warrant termination of her employment. However, the letter stated that Petitioner had violated company policy and procedure by allowing a youth to leave his room for extended periods after curfew. Respondent CSD paid Petitioner and her co- worker for the time they were suspended during the internal investigation. Respondent CSD subsequently reassigned Petitioner and her co-worker to work in a different dormitory and on a different shift. The change in time and location of their work shift was necessary to ensure there was no contact between them and the clients who had accused them of improper conduct. Petitioner was assigned to work the 3:00 p.m. - 11:00 p.m. shift in the level eight dormitory. In a written statement dated October 23, 1995, Petitioner objected to the change in her shift. She preferred to continue working the 11:00 p.m. - 7:00 a.m. shift. She asserted that, during the day, she took care of her 78 year-old mother who had cancer. Respondent CSD did not immediately honor Petitioner's request. On or about November 24, 1995, Petitioner voluntarily purchased some supplies in the amount of $20.98 from a retail store. The supplies included the following: hand sprayers, cotton swabs, hydrogen peroxide, rubbing alcohol, highlighters, marker, Sharpies, and other miscellaneous items. Petitioner requested reimbursement from Respondent CSD because she intended to use the supplies at work. Respondent CSD declined to reimburse Petitioner for the supplies. There is no evidence that Respondent CSD ever authorized the purchase of the supplies. On December 11, 1995, a resident in the level eight dormitory attempted to discard a container of contraband tobacco. Petitioner detected his effort and responded appropriately. She received a letter of commendation for exemplary action which was placed in her personnel file. On January 23, 1996, the Office of the Inspector General of the Department of Juvenile Justice made a formal and final determination that "[i]t is inconclusive that staff members Julie Toughton and Alice Musgrove engaged in improper conduct with clients." On or about February 1, 1996, Petitioner took a box of pens and pencils from a client's desk. The client became upset and exhibited inappropriate behavior toward Petitioner. As a result of the client's tantrum, Petitioner took token-economy points from the client. Petitioner filed a written complaint dated February 4, 1996, with Respondent CSD after learning that one of her supervisors, Mike Myers, changed the client's point sheet. Petitioner's February 4, 1996, statement also asserted that Supervisor Myers was mishandling clients' mail. She complained that he was logging clients' mail and making the clients read their personnel mail to him. According to Petitioner, handling client mail was the responsibility of "line staff." On one occasion in February 1996, Petitioner was 30 minutes late reporting to her assigned duty station in the dormitory. She spent that time in the administration building because she refused to work with one of her co-workers. Supervisor Myers was responsible for changing Petitioner's time sheet to reflect a 30-minute deduction in regular time. On another occasion in February 1996, Petitioner and other employees worked two hours of overtime due to a crisis situation with one of the clients. Petitioner elected to "bank" the overtime rather than receive time-and-one-half of overtime pay. The other employees chose to receive overtime pay. Petitioner was off from work on February 22-23, 1996. When Petitioner arrived at work on February 24, 1996, her time sheet was not with the time sheets of other employees. Petitioner's time sheet was locked in a supervisor's office until February 26, 1996, because the supervisor was not at work. There is no indication in the record whether Petitioner's time sheet was locked up inadvertently or due to a dispute over Petitioner's wages. On March 1, 1996, Petitioner filed a written grievance with Respondent CSD regarding her pay. She claimed that Supervisor Myers was harassing her and discriminating against her by changing her time sheet without her knowledge. Specifically, Petitioner complained that Mr. Myers cheated her out of 30 minutes of regular time on one occasion and two hours of overtime on another occasion. She complained that her time sheet was locked in a supervisor's office for four days. On March 4, 1996, the Program Director, Dale Edwards, agreed that Petitioner should not be penalized for one-half hour of regular pay because she was in the administration building during the disputed time. Additionally, Mr. Edwards directed Supervisor Myers not to change an employee's time sheet without prior approval. He also requested that Petitioner furnish documentation that the company owed her for the two hours of overtime. Mr. Edwards was under the mistaken impression that the dispute over Petitioner's time sheet had been resolved. In March of 1996, Petitioner was working the midnight shift in dormitory eight consistent with her written request dated October 23, 1995. On March 18, 1996 and March 27, 1996, Petitioner made written requests for a change to the 7:00 a.m. - 3:00 p.m. shift. Petitioner specifically wanted to replace a Ms. Aikens on the morning shift. Respondent CSD did not honor Petitioner's request. However, there is no evidence showing that Ms. Aiken's position was ever filled, and if so, whether Respondent CSD selected a person of a different race or a younger to file the position. Petitioner was absent from work between April 8, 1996, and April 16, 1996, on April 22, 1996, and on April 29, 1996, due to illness and/or medical appointments. While she was absent, her inner-office mail box became so full that the mail had to be removed. The administrative manager gave Petitioner's mail to her supervisor. On April 23, 1996, Supervisor Myers completed Petitioner's annual performance appraisal for the period March 14, 1995 through March 14, 1996. Petitioner disagreed with the determination that she had difficulty communicating with others. Petitioner's mental health counselor, Christine Clark, sent Mr. Edwards an unsolicited letter dated April 23, 1996. According to the letter, Ms. Clark was treating Petitioner for family/employment related stress reduction. The letter states as follows in pertinent part: Due to the demands of her home environment, caretaking of her elderly mother who is dying from colon cancer, I am recommending that Ms. Musgrove be reassigned new working hours, namely a day schedule of approximately 8:00 AM until 5:00 PM in order to effectively and efficiently facilitate the evening and night care of her mother. In addition, Ms. Musgrove appears to have unresolved issues regarding her personnel file and salary still due to her for 30 minutes or .5 hour pay as well as two hours uncompensated work from several weeks ago. I personally read your approval for this compensation but apparently this has still not yet been indicated on her pay check. There also remain the allegations of her misconduct charges that appears not to be fully resolved. As an employee she does have the legal right to have these fully addressed and challenged. From my understanding that although the misconduct charges have been dropped, there are still areas that compromise Ms. Musgrove's reputation as a resident advisor. Mr. Edwards did not disclose the contents of Ms. Clark's letter to any employee of Respondent CSD other than his superiors, who advised him to get a release from Petitioner before responding to the letter. After receiving Ms. Clark's letter, Mr. Edwards had a telephone conversation with Petitioner's mother because Petitioner was not at work or at home. During the conversation, Mr. Edwards inquired about the mother's health. Mr. Edwards learned that Mrs. Musgrove's cancer had been in remission since 1993 and that she no longer required assistance with daily living activities. Mr. Edwards did not disclose any information regarding Petitioner's employment status, medical condition, or personal business to Mrs. Musgrove. Petitioner's sister placed an unsolicited telephone call to Mr. Edwards several days after he talked to Mrs. Musgrove. The purpose of the call was to thank Mr. Edwards for his concern over Mrs. Musgrove's health. During the telephone call, Mr. Edwards and Petitioner's sister did not exchange any information relating to Petitioner's employment, medical condition, or personal business. On April 29, 1996, all staff at Hamilton House received a memorandum advising them as follows, in pertinent part: As a result of the recent competitive bid conducted by District 3, Department of Juvenile Justice, Gator Human Services has been awarded the contract to operate the Hamilton County Youth Treatment Complex starting July 1, 1996. The memorandum also included information regarding the transfer of operations to the new service provider. Respondent CSD advised employees that, if requested, it would supply Gator Human Services the name, position title, hire date, and current salary of each employee of record. Respondent CSD stated that no other information would be given to the new organization without the consent of the employee. On May 1, 1996, Mr. Edwards wrote two memoranda regarding Petitioner's pay. First, Mr. Edwards directed the administrative manager to pay Petitioner for .5 hours of regular wages out of the company's petty cash fund and to get a receipt for the payment. Second, he directed the resident life manager to allow Petitioner to leave work two hours early (with pay) at a time of her choosing within the next work week. Petitioner could not "bank" the time indefinitely because Respondent CSD's contract was scheduled to expire on June 30, 1996. Mr. Edwards phoned Petitioner at home on May 2, 1996, to request a written release so that he could respond to Ms. Clark's letter. Petitioner wrote that release on May 3, 1996. The release gave Mr. Edwards permission to disclose confidential information to Ms. Clark. On May 3, 1996, Petitioner signed a written acknowledgment that receipt of $4.06 in payment for .5 regular hours would end the issue of the .5 regular hours owed to her. On May 10, 1996, Respondent Gator informed the staff at Hamilton House of the procedure for handling applications for employment with Respondent Gator's new program, Tiger Success Center. Applications were due on or before May 28, 1996. Interviews were to be scheduled between May 28, 1996, and June 7, 1996. Applicants would be advised of the final selections and employment offers by June 14, 1996. Respondent Gator requested that each applicant take a copy of their most recent performance appraisal to their employment interview. By letter dated May 13, 1996, Mr. Edwards responded to Ms. Clark's inquiry. First, he explained that questions regarding Petitioner's compensation had been resolved. Second, he stated that letters from the Department of Juvenile Justice and from the Office of the Inspector General had been added to Petitioner's personnel file, clearing her of all misconduct allegations. Third, he explained that the day shift would be the least desirable shift in terms of stress reduction because the activity level of the residents is highest during the day. Mr. Edwards also revealed that Petitioner's mother was treated successfully for cancer in 1993 and that her current health failed to support the need for a change in Petitioner's shift. Finally, Mr. Edwards noted that he had to consider the needs of the residents and other staff. A copy of Ms. Clark's inquiry and Mr. Edwards' response were placed in Petitioner's personnel file. Neither of the documents were disclosed to unauthorized persons. On May 22, 1996, the employees at Hamilton House received another memorandum advising them that after June 30, 1996, Respondent CSD would no longer operate the facility. The employees were encouraged to apply for employment with the new organization. Petitioner was scheduled for an employment interview on May 30, 1996. However, the interview was rescheduled because she was unable to keep the appointment. Petitioner's application for employment with Respondent Gator is dated May 31, 1996. She also furnished Respondent Gator with copies of three performance appraisals. Petitioner's signature on the application authorized Respondent Gator to make inquiries of references and former employers regarding her general character and past performance. There is no evidence that Respondent Gator ever made any such inquiries about Petitioner. A panel of three people representing Respondent Gator interviewed Petitioner. The panel asked her the same questions that they asked other applicants. Petitioner was very negative and critical of the existing program and Respondent CSD during her interview. After the interview, each member of the interview panel tallied their score sheets independently. All three agreed that Petitioner should not be given further consideration for employment with Respondent Gator because of her negative attitude and low interview scores. On June 13, 1996, Petitioner received a memorandum from Respondent Gator stating that the company was unable to offer her a position of employment. That same day, Respondent Gator offered employment to every other Hamilton House staff applicant except one black male, Mr. Humphrey. Respondent Gator hired a black female, Latasha Bristol, who worked in the level eight dormitory with Petitioner. Ms. Bristol is younger than Petitioner. However, she was not hired to replace Petitioner. Respondent Gator hired Ms. Bristol to work in the level six dormitory. Respondent Gator offered an employment position to a white female, Lucy Oxendine. Ms. Oxendine was over 60 years old at the time. She declined to accept a job with Respondent Gator for personal reasons. Mr. Edwards was hired by Respondent Gator to continue as program director after July 1, 1996. However, neither he nor any other employee of Respondent CSD shared any information about Petitioner with Respondent Gator or had any input into Respondent Gator's decision not to hire Petitioner. Respondent Gator based its decision not to employ Petitioner solely on the results of her interview which was very negative. On June 14, 1996, the staff at Hamilton House received a memorandum stating that anyone interested in accepting employment with Respondent Gator must sign up on June 19, 1996. On June 14, 1996, Petitioner's doctor faxed a medical excuse to Respondent CSD stating that Petitioner could not return to work for an undetermined period of time. The document indicates that Petitioner's diagnosis involved anxiety, depression, and work-related stress. The doctor commented that Petitioner was the primary caretaker of her mother who was terminally ill with cancer. The doctor's June 14, 1996, fax was received by Respondent CSD in the administrative manager's office. It was on her desk for a brief period of time before it was delivered to Mr. Edwards. There is no credible evidence that any employee of Respondent CSD disclosed the contents of the fax to unauthorized persons. Petitioner's doctor did not give her permission to return to work until after July 1, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Charges of Discrimination against both Respondent CSD and Respondent Gator. DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998. COPIES FURNISHED: H. B. Stivers, Esquire Levine and Stivers 245 East Virginia Street Tallahassee, Florida 32301 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on August 27, 2012.
Findings Of Fact Petitioner is a female who has identified her race as Asian and her national origin as Indian. Petitioner’s age was not established in evidence. However, based upon the attachments to Petitioner’s Petition for Relief, Petitioner was identified as 43 years old, presumably at the time she filed the Complaint of Employment Discrimination. There is nothing in the record to indicate otherwise and, based upon observations of her while testifying at hearing, 43 is a reasonable approximation of her age. Respondent, Leon County School Board (LCSB), is an employer within the meaning of the Florida Civil Rights Act. Petitioner has applied for numerous job openings with the School Board over a number of years. However, based upon the applicable statute of limitations as explained more fully in the Conclusions of Law, there are five LCSB job postings that are at issue in this proceeding, one of which was never filled. The job positions applied for are as follows: --Job posting 1071-2012, Custodian position at Nims Middle School. --Job Posting 0170-2012, Instructional paraprofessional position at Sealy Elementary School. --Job Posting 011-2012, custodian position at Rickards High School. --Job posting 0201-2012, Assistant Manager for Extended Day Program at J. Michael Conley Elementary School. --Job posting 0215-2012, Receptionist at Leon County High School. This position was not filled. Petitioner is the mother of two children who are or have been students in the Leon County schools. Petitioner has extensive volunteering experience in LCSB schools. In 2008, she received the Volunteer of the Year award for her volunteer work at Sealy Elementary School. She was invited to and attended the Volunteers of the Year Luncheon in 2008. Petitioner also volunteered at Conley Elementary School in 2011. While Petitioner has considerable volunteer experience in Leon County Schools, she has no job/employment experience since coming to the United States in 1998. Petitioner holds a college degree from Utkal University in India. The unofficial transcript states that it is a “Honours Diploma for Bachelor of Arts (Three Year Degree Course).” Respondent uses the PATS (Paperless Applicant Tracking System) system to accept applications for all job openings within the Leon County School District. Based on information inputted into PATS by applicants, a list of qualified individuals is generated for each position. The PATS system does not ask for or identify an applicant’s age, race, national origin, or sex. Vitalis Dennis is the Director of Human Resources for the LCSB. She has general supervision over the PATS system. According to Ms. Dennis, LCSB does not count volunteer work in evaluating work experience. This is a generally applied policy, applied to all applicants, including Petitioner. Hiring decisions are made by each school’s principal. The school principals send recommendations for hiring to the District Human Resources office. Job Posting 1071-2012 Petitioner applied for job posting 1071-2012, a custodial position at Nims Middle School. At that time, Charles Finley was assistant principal at Nims. He was in charge of interviewing and hiring vacant custodial positions. The executive secretary at Nims printed a list of applicants from PATS. He then accessed PATS to check applicants’ educational and work history to identify applicants with previous custodial work experience. Generally, he would interview eight to 12 applicants. The successful candidate for this position was Eloise Hatten. Ms. Hatten was 52 years of age, is African-American, and is female.2/ Ms. Hatten’s application reflects approximately nine years’ of cleaning commercial/institutional experience. Mr. Finnley interviewed Ms. Hatten and testified that the interview went well. He describes Ms. Hatten, who is still employed at Nims, as tied for the best hire he ever made. Job Posting 0170-2012 Petitioner applied for Job Posting 0170-2012, Instructional Paraprofessional at Sealy Elementary. Demetria Clemons is the principal of Sealy Elementary School. Ms. Clemons receives and reviews the PATS list of applicants. She then makes a list of applicants for her secretary to call to set up interviews. When reviewing the list, she looks to see if any applicant is a veteran. Then she looks to see if anyone on the list had previous work experience with her or was recommended by a colleague. The successful applicant was Alisha Saint Cloud. Ms. Saint Cloud was 24 years of age, is African-American, and is female. Ms. Clemons interviewed Ms. Saint Cloud and offered her the job. Ms. Saint Cloud was selected for this position primarily because she held the position as an annual contract employee the previous school year. Annual contract employees often are given notice letters at the end of a school year, as principals do not know at that time whether they will be able to rehire them for the following school year. If staffing allocations allow, the job is then posted. Ms. Saint Cloud was in that situation when Ms. Clemons hired her for this permanent position. Ms. Clemons knew of Petitioner’s volunteer work at Sealy, but the volunteer work was done in individual classrooms, not directly for Ms. Clemons. Job Posting 011-2012 Petitioner applied for Job Posting 011-2012, custodian position at Rickards High School. Clebern Russell Edwards is the assistant principal at Rickards High School. He made the hiring decision for this custodial position for which Petitioner applied. A list of applicants generated from PATS was printed by the principal’s secretary. He looked to see if any applicants were veterans, then whether any were recommended by colleagues. The successful applicant for that position was Jaterrius Robinson. Mr. Robinson was 23 years of age, and is an African-American male. Mr. Robinson had institutional/ Commercial-cleaning experience and was a graduate of Rickards High School. Mr. Edwards believes that it is important to have someone with experience cleaning in an environment similar to a school in such a position. Mr. Edwards took into consideration Mr. Robinson’s work experience, being an alumnus of Rickards, and his outstanding interview when making the decision to hire Mr. Robinson for the job. Job Posting 0201-2012 Petitioner applied for job posting 0201-2012, assistant manager for the Extended Day Program at J. Michael Conley Elementary School. Danielle Dielbeck is the Extended Day Manager at Conley Elementary School. She is responsible for hiring the Extended Day personnel and supervising those employees. Jeremy Rollins was the successful applicant for this position. Mr. Rollins was 23 years of age, and is an African- American male. Ms. Dielbeck reviewed the PATS list of applicants to determine who would be a good fit for the job. She also takes into consideration any recommendations that may come from other schools. Mr. Robinson has work experience as an after-school teacher. Ms. Dielback selected Mr. Robinson because of his experience as an after-school teacher in another program with a large number of students, and because he also had experience as a cashier for a grocery company. Ms. Dielbeck believed his cashier experience demonstrated that he had experience handling money. She determined that this was a benefit because the Extended Day Program is responsible for its own budget. Petitioner’s assertions Petitioner strongly believes that LCSB has systematically discriminated against her by not hiring her. She believes that LCSB is harassing her personally, including an unnamed person parking her car outside the Rath’s home and taking photographs.3/ However, there is no competent evidence to support her subjective belief that the person in the car has anything to do with LCSB. There is no competent evidence in the record that supports any coordinated efforts or conspiracy by LCSB personnel to deny her employment. Each person with the responsibility to make hiring decisions did so independently.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that the Leon County School Board is not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's Complaint of Employment Discrimination. DONE AND ENTERED this 29th day of October, 2013, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2013.
