The Issue Whether respondent discharged petitioner on account of his national origin? Whether respondent refused to rehire petitioner on account of his national origin and/or because he filed a complaint alleging discrimination?
Findings Of Fact Born in Uvalde, Texas, petitioner Nicasio Guadalupe Ramos, 42 years old at the time of the hearing, is an American citizen of Hispanic or Mexican race, ancestry, heritage and national origin, who, since 1971, has lived in Defuniak Springs, county seat of Walton County, Florida. Walton County's written personnel policies refer to a "PERSONNEL MANAGEMENT DEPARTMENT" and to a "personnel department . . . under the direction . . . of the personnel director," Petitioner's Exhibit No. 1, but other County employees or county commissioners themselves effectively decide before the Commission officially hires and fires. Responsibility is diffuse. E.g., T.284, 309. Hard Worker Mr. Ramos started work at the Walton County landfill on February 2, 1988, at $3.35 an hour. At first he spent most of his time picking up stray paper, opening the gate for garbage trucks, and "tripping" trailers to unload the garbage. Like other landfill employees, Mr. Ramos worked more or less steadily while the landfill supervisor, Clinton Earl "Frog" Ward was at the landfill. After three or four months, Mr. Ward, Clarence Johnson and John "Big John" Curry began teaching petitioner to use heavy equipment including the excavator or "pan," the "chipper" and the "dozer" ("how to work the blade, how to spread the dirt.") T.237. According to a co-worker, Mr. Ramos performed "different jobs like all the rest of us." T.31. When the sign maker quit, Mr. Ramos was assigned that job. If "somebody was missing on the dump truck or the garbage boxes," (T.240) he filled in there. He never turned down requests to work as a night guard, requests that sometimes came only near the end of a full day's work. He once operated the excavator every day for two successive work weeks. On September 16, 1988, he was promoted to "Landfill Equipment Operator." Petitioner's Exhibit No. 11. He became a "permanent" instead of a "temporary" employee, and his wages increased to $5.15. T.240. A cost of living increase in the fall of 1988 raised his wages to $5.35 an hour. T.258. Unfriendly Overseer With one exception, Mr. Ramos got along well with his fellow workers, none of whom was Hispanic. "Nick was one of the boys." T.44. The exception was James Ellis, the assistant landfill supervisor who had moved to Walton County from Lake Placid, Florida. Mr. Ellis once expressed the opinion that "the only thing [Mexicans are] good for is to knock their heads [off]." T.255, 280. He referred to Mr. Ramos as a "gook," a "dago" (T.85) and "that Mexican." T.96. A "long time before" (T.42) it happened, Billy Franklin Reynolds heard Mr. Ellis "say that he was going to get rid of Nick Ramos as soon as he got in a position to do that." T.42. Another co-worker, Harold Ross Daughtery, heard Mr. Ellis say that "whenever he got to be in charge . . . the first one he would fire would be Mr. Ramos." T.44. Harold Eugene Floyd heard Mr. Ellis say "if he ever got to be boss, he would run [Mr. Ramos] off." T.68, 74. Mr. Curry, who heard Mr. Ellis make such remarks (T.77-8) four or five times (T.82), "didn't figure he was joking." T.83. Unlike Mr. Curry (or Mr. Floyd who was uncertain), Messrs. Reynolds and Daughtery testified that they did not take seriously Mr. Ellis' threat to get Mr. Ramos fired. But, in this regard, events proved Mr. Ellis' sincerity. 1/ Mr. Ellis' used racial or ethnic epithets repeatedly to refer to petitioner. Perhaps that is what led Mr. Ramos to ask him one day why he did not like him. When, in the course of the same conversation, Mr. Ramos asked Mr. Ellis whether he had "ever met any Mexicans that [he] like[d]," (T.256) Mr. Ellis answered abusively, in the negative. If Mr. Ward left Mr. Ellis in charge of the landfill, many of the men loafed inside a shed while Mr. Ramos continued working, doing "the dirty stuff" (T.256) that Mr. Ellis assigned him. On such occasions, Mr. Ramos was often "the only one picking up papers or being in the pit, pulling tires out" (T.255) of garbage. T.86. At hearing, nobody except Mr. Ellis had anything unfavorable to say about Mr. Ramos' job performance. In fact, Mr. Ramos did a good job despite the unfair treatment he received at Mr. Ellis' hands. Petitioner was never disciplined, counseled or warned about his work performance even by Mr. Ellis. T. 251. Highly reliable, he "worked in the tire pit" (T.252) the day after the doctor drained his knee. On another occasion, to avoid infection, he wanted to follow his doctor's advice to take "a couple of days" (T.252) off after he had some "lumps" surgically excised. But, even though he arranged to swap shifts with Dewey Collinsworth, Mr. Ellis refused to allow the exchange, and Mr. Ramos reported for work. Reduction In Force In the summer of 1989, the Walton County Commission decided to reduce expenses by discharging County employees. T.11. It fell to Charles R. "Ronnie" Hudson who, as Walton County's public works director for the last three and a half years, reports directly to the Walton County Commission, and is responsible for (among other things) the County's landfill, to lay off landfill workers. Mr. Hudson asked Mr. Ward, the landfill supervisor, to list four employees he could do without (T.151) and to "make an evaluation on the men . . . [explaining] that there was going to probably be a layoff." T.91. The "next day probably," (T.216) Mr. Ward gave Mr. Hudson a written list and evaluation, Petitioner's Exhibit No. 2, and "told him [he] could get by with three men laid off, but . . . couldn't get by with any more than that." T.220. They talked about the three men Mr. Ward had selected. When Mr. Ward handed Mr. Hudson the list and evaluation, he understood Mr. Hudson to agree that "there needed to be three men laid off" (T.220) instead of four. On one page and a fraction of another (T.153) from a legal pad, Mr. Ward had written: Clarence Hobbs Harold Daughtry Earl Robinson NO COMPLAINT Earl Griggs ON THESE MEN John Mann KEEP THESE MEN Dewey Collinsworth Nick Ramos E.B. Phillips Billy Reynolds Clarence Hobbs truck driver Harold Daughtry operator Earl Robinson operator Earl Griggs clerk and signs maker Dewey Collinsworth clerk and sign maker John Mann operator Nick Ramos operator John Curry truck driver or Lee S. Campbell I need to keep 8 of these men until something changes need men [fo]r now Johnny Peters E.B. Phillips night guards Billy Reynolds I need to keep these men for now if I use another man to replace one of the Night Guards it will short me to[o] bad. We can let 3 men go but any more than that will short me to[o] much when something change[s] I can get by with less men Harold Floyd - operator Not dependable calls in sick a lot and has been siding around on roads and don't give notice until the day he is going to be off and won't do any thing unless we tell him to do something and don't look after the equipment at all John Curry - operator a good worker but keeps confusion between the other men and that causes lot of trouble he has already got one complaint form turned in on him Lawton Mathews - garbage truck he is a good worker and reports to work but he is old enough to retire he is failing fast he works with Clarence Hobbs on Garbage truck Petitioner's Exhibit No. 2. On what may have been the other part of the second or evaluation sheet of Petitioner's Exhibit No. 2, see Appendix A, 2/ Mr. Ward wrote: Lee S. Campbell Garbage truck he has been parked at his house on truck when he was on job it takes him to[o] long to go from box to the other and don't see after his truck to[o] good but he shows up to work good Johnny Peters - Night Guard he has had one complaint form turned in on him becuase there was about 48 or 50 gallons of Fuel went missing out of the DU cat ? on the night he was there Respondent's Exhibit No. 2. Whatever Respondent's Exhibit No. 2's origin, Mr. Ward did not give it to Mr. Hudson. Mr. Ward did not and would not have recommended Mr. Ramos' layoff, even if convinced that four men had to be laid off. If Mr. Hudson had asked him to suggest a fourth candidate for a layoff, Mr. Ward would have suggested John Scott Mann, (T.214) or so he testified at hearing. 3/ Later on, when Mr. Ramos asked, Mr. Ward told him not to worry about being laid off. Having "heard there was a layoff coming" (T.244), Mr. Ramos also spoke to Walton County Commissioner Wilson Holley, and asked him if there were vacancies on the road crew he supervises. Commissioner Holley, who had known Mr. Ramos for several years and had employed him on a road crew for about a week once, when over 16 inches of rain fell and "they needed some help," (T.242), told petitioner "that he had been checking up on [him], that [he] was doing good out there and not to worry about it." T.244. Meanwhile, without discussing the matter with Mr. Ward, Mr. Ellis also prepared and furnished Mr. Hudson a list of names and evaluations. Three of the evaluations had a familiar ring but the fourth was all Mr. Ellis' work: Harold Floyd: Not dependable. Days out of work, and when he is out, he does so without notice. In my opinion when he is at work, he don't give 100%. His work ability if fair. John Curry: He keeps confusion among the men and also between the foreman and the asst. foreman. He has also been written up once concerning the matter. His work ability is good. Nick Ramos: Was hired on as a laborer, then transferred to chipping machine, then to sign machine. He's been on the sign machine four weeks now, and he's not catching on to it very fast. I have tried him on the equipment, and he didn't catch on to it either. His work ability is fair. Lawton Mathews: He is eligible for retirement. He has talked about retiring. His work ability is fair. We may talk to him about cutting back and he may go ahead and retire. Petitioner's Exhibit No. 3. Mr. Hudson recommended that the Walton County Commission let all four men go. Mr. Ramos did not stop to pay for his coffee on his way out of the restaurant to see Ronnie Bell the morning the news broke. Like other men who were fired, Mr. Ramos first learned about the decision when he read about it in the newspaper on July 12, 1991. Not Rehired Mr. Bell, Walton County's administrative supervisor, had nothing to do with the decision to discharge Mr. Ramos, and told him as much. Mr. Ramos then left Mr. Bell's office in the courthouse annex for the landfill where Mr. Ward assured him he had not recommended his layoff. When he tried to talk to Mr. Ellis about it, "he walked off and he mumbled something." T.247. Mr. Ramos and the three other landfill employees laid off at the same time received official notification in letters dated July 13, 1989, that their employment would end on July 31, 1989. Mr. Mathews decided to retire. The letter to Mr. Ramos stated: Please be advised that if any openings become available in the future for which you are qualified, you will be one of the first considered to fill that opening. Petitioner's Exhibit No. 5. Mr. Ramos again sought out Commissioner Holley to ask for work, and also approached Commissioner W. F. "Rabbit" Miles, asking him if work was available. Some weeks after the layoff, Commissioner Holley telephoned with news of an opening for a night guard at the landfill. The next day, petitioner spoke first to Mr. Bell then to Mr. Hudson, to whom Mr. Bell referred him, about the position. Mr. Hudson said he knew nothing about an opening, but suggested Mr. Ramos check back. Mr. Ramos returned that afternoon, the next morning and every morning thereafter "for about a week." T.161, 247. Each time Mr. Hudson professed ignorance of the job vacancy, until the last time, when he told Mr. Ramos that "they had done hired Harold." T.249. Not only was Mr. Hudson in fact aware of the opening, he was actively recruiting to fill it. He offered the job to John Curry (T.184), who turned it down because he had found other, better-paying work. "Why don't you call Nick?" Mr. Curry asked Mr. Hudson at the time. "I wouldn't hire him back," was Mr. Hudson's answer. T.87. Harold Floyd got the job. T.163. Complaint Filed Mr. Ramos retained a lawyer who wrote the Walton County Commission on August 4, 1989, requesting petitioner's reinstatement, or in the alternative, a grievance hearing. Petitioner's Exhibit No. 9. (The request was never honored, although a like request by a non-Hispanic employee was.) Harold Burkett began work as a night guard on September 13, 1989. Petitioner's Exhibit No. 14. On November 8, 1989, Mr. Ramos filed a complaint with the Florida Commission on Human Relations. The number of "personnel at the landfill now [not counting prisoners assigned to work there after County employees were laid off (T.270)] is roughly fifty per cent of what it was at the time of Nick and them's layoff." T.175 But Walton County has "replaced, . . . transferred . . . [and] hired," id., employees at the landfill since then, rehiring Harold Floyd temporarily and adding Harold Burkett, Danny Burgess, Timmy Ray Jones and Russell Floyd, all "white Americans" given jobs for which petitioner is qualified, or would have been (T.257) but for his wrongful termination. Messrs. Burgess, Jones and Russell Floyd began work after County officials learned that Mr. Ramos had complained to the Florida Commission on Human Relations. Asked why petitioner was not offered the job given to Mr. Burgess, who was hired as an equipment operator, Mr. Hudson testified that there was no reason "that I know of, you know, other than - - well, no one ever said anything about Nick, you know, being interested . . . ." T.172. In fact, Mr. Hudson was well aware that petitioner wanted a job with Walton County government, as were Mr. Ellis, who succeeded Mr. Ward as landfill supervisor, Mr. Bell and more than one county commissioner. Asked why petitioner was not offered the job Mr. Russell Floyd was given, Mr. Hudson said he knew of no reason. T.173. Commissioner Miles told Mr. Ramos 4/ that Commissioner Sam Pridgen "wouldn't hire [him] back . . . since [he] had filed a complaint against the County." T.284-5. Commissioner Holley testified, "Nick has a record of suing people that he's worked for and that weighs heavy on people's mind, I would imagine." T.310. (No Walton County Commissioner ever said anything to petitioner about his race. T.285.) Lost Wages County employees got a four percent raise on October 1, 1989, another four percent raise on October 1, 1990, and a three percent raise on October 1, 1991. The County made unspecified contributions to the Florida Retirement System at all pertinent times. For single employees, the County paid monthly insurance premiums of $120.10 in 1989, $123.66 in 1990 and $132.12 ($126.62 + $5.50) in 1991. Petitioner's Exhibit No. 3. Assuming no promotions and only cost of living raises, if petitioner had continued working for the County in the same position through the date of the final hearing, he would have received pay and insurance benefits totalling $33,015.60. Instead, after Mr. Ramos lost his job, he mowed grass, cut trees down, painted houses, washed cars and did other odd jobs to make what money he could. T.251, 282. He earned about $2,000 from such jobs in the last five months of 1989. His 1990 income was more than $2,800 but less than $2,900; and his 1991 income was "three thousand." T.282. He has been unable to find regular employment, but has "never been on food stamps or any kind of assistance." T.251. Before the final hearing began, one of petitioner's two attorneys, Mary Koch Polson, had reasonably expended 14.95 hours, Petitioner's Exhibit No. 16, pursuing this claim, and costs aggregating $234.49 had reasonably been incurred. Petitioner's Exhibit No. 17. Ms. Polson bills her time at $125 an hour, and the reasonableness of this rate was not called into question. (Mr. Ramos paid his first attorney $1500, but the reasonableness of this fee was not stipulated and has not been established by evidence.) Aside from the first attorney's fees, prehearing costs and fees aggregate $1868.75.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR enter a final order (a) directing respondent to rehire petitioner as soon as an opening arises that he is qualified to fill that pays at least $5.95 an hour plus benefits; (b) awarding back wages (net of offsets) in the amount of twenty-five thousand, two hundred fifteen dollars and fifty- nine cents ($25,215.59) plus interest; (c) awarding costs and fees in the amount of eighteen hundred sixty-eight dollars and seventy-five cents ($18,868.75); and (d) awarding such additional amounts as are necessary to compensate him for lost wages including interest until he returns to work with the County or spurns a suitable offer, plus attorney's fees and costs reasonably incurred since the final hearing began. DONE and ENTERED this 24th day of April, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 24th day of April, 1992.
The Issue Whether Petitioner, Willie Foster, Jr., was discriminated against because of his race, age, and sex by Respondent, Pepsi-Cola Bottling Company, when Respondent failed to hire him, in violation of Subsection 760.10(1)(a), Florida Statutes (2004).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Responding to an advertisement, Petitioner and Jennifer Daniels traveled together to Respondent's Orlando location and applied for employment as merchandisers on August 1, 2003. Petitioner is a black male, who was 45 years old at the time of his application. Daniels is a white female, who was 25 years old during that same time. After Petitioner and Daniels completed their application forms and filled out other pre-hire paperwork, Petitioner and Daniels left Respondent's premises. Respondent later contacted each of them and asked them to appear to take a written employment test. Petitioner and Daniels took the same test on August 7, 2003. In August 2003, Respondent utilized a pre-employment written test devised by an independent company, Saville and Holdsworth, Ltd. This independent company was solely responsible for scoring the tests and compiling the test results. Respondent played no role in either of these tasks. Respondent's Human Resources Department merely administered the test, but did not possess the answer key to the test. Merchandiser applicants, such as Petitioner, take a two-part written test. The first portion of the test entitled, "Working with Words," was a timed reading comprehension test. The second portion was entitled, "Work Styles Questionnaire," and was a tool designed to determine whether the applicant was suitable to the position. Respondent uses a standard procedure in its hiring process, including the administration of the pre-employment test. First, only those applicants who satisfy established criteria, such as a stable work history, are offered the opportunity to take the written test. Second, only those applicants who pass the written test are allowed to progress to the next step of the hiring process, which is participating in an interview. No applicant who has failed the written test has ever been allowed to progress to the interview phase, nor has been hired by Respondent despite failing the test. However, applicants who fail the test are allowed to reapply and take the test again after six months. Respondent has hired individuals who, after failing the initial written test, reapplied after six months and then passed the test. Petitioner failed the written test he took on August 7, 2003. On that same date, Respondent notified Petitioner by letter that he failed the selection test, but could reapply and take the test again after six months. Petitioner never reapplied for employment at Respondent. The test administration, scoring, and notification process used by Respondent with respect to Petitioner's application was consistent with its standard procedures. Petitioner's answer sheets were faxed to Saville and Holdsworth, Ltd., on the day he took the test, August 7, 2003. Respondent received the test results from the independent company by fax on that same day. Also, on that same date Respondent forwarded a form letter to Petitioner notifying him that he failed the test. This sequence of events is not unusual in that Seville and Holdsworth, Ltd., sometimes scored the tests and provided the results to Respondent as quickly as five minutes after receiving the faxed answer sheets from Respondent. Daniels passed the written test. On the same day she took the test, Respondent notified Daniels by telephone that she had passed and scheduled her for an interview. The fact that Respondent's Human Resources coordinator apprised Daniels of her test results by telephone on the very day she took the test is not unusual. Respondent's testing procedures were audited by the Office of Federal Contract Compliance Programs, which found no discrimination with respect to the company's merchandiser group. At least 50 percent of Respondent's merchandisers are minorities. Of those applicants who applied for merchandiser positions in August 2003, the individuals whom Respondent screened-out initially and who were not allowed to take the written test included three blacks, three whites, one Hispanic, and one applicant whose minority status was unknown. The individuals hired as merchandisers from August 2003 to January 2005 included 20 whites, 11 blacks, and 13 Hispanics or other minority classifications. From June 1, 2003, through November 30, 2003, Respondent hired six whites, four blacks, four Hispanics, and one other employee. It is rare for a female to apply for a merchandiser position with Respondent. Similarly, merchandiser applicants typically are younger, rather than older individuals. From August 2003 to January 2005, Respondent hired one female and five age-protected (over the age of 40) individuals. Every merchandiser hired by Respondent during the relevant time period passed the written test; no applicant who failed the test has been hired. In addition, on his application form, Petitioner indicated the reason he left the employment of the Orange County Library was a "labor dispute." He also indicated his reason for leaving Universal Studios' employment was that his "contract ended." It was later determined that, in fact, both the Orange County Library and Universal Studios terminated Petitioner for insubordination. The employment application Petitioner signed included the language, "I understand that the information I provide in this application must be complete and accurate to the best of my knowledge. I realize that falsification and/or incomplete information may result in my employment being terminated now or at any time in the future." At the time of the hearing, Respondent considered Petitioner's statements of why he left his previous jobs as falsifications of the application. Respondent did not discover Petitioner's falsifications during the hiring process. Consistent with its policy, had Respondent discovered that Petitioner falsified his employment application during the hiring process, the application would not have been considered further. Similarly, if Respondent had hired Petitioner and discovered the falsification later, Respondent would have terminated Petitioner. Petitioner failed to prove that Respondent engaged in discriminatory hiring practices when Respondent failed to hire him in August 2003.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which denies the Petition for Relief. DONE AND ENTERED this 7th day of October, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Willie Foster, Jr. 5542 South Rio Grande Avenue Orlando, Florida 32839 Susan K. McKenna, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Florida Commission on Human Relations (FCHR) should issue an order of dismissal in the instant case on the ground that Petitioner failed to timely file his charge of discrimination against Respondent.
Findings Of Fact Based on the evidence adduced at the May 5, 2005, evidentiary hearing, and the record as a whole, the following findings of fact are made: Petitioner is an optometrist. He was employed by Respondent as its director of clinical services from July 1996, until April 23, 2003. Respondent's termination of Petitioner's employment on April 23, 2003, is the alleged unlawful employment practice that Petitioner is seeking the Commission to remedy in the instant case. Petitioner takes the position that Respondent terminated his employment in retaliation for his having given testimony on behalf of a fellow employee pursuing a sexual harassment grievance. He has held this belief that his termination was discriminatorily motivated from the time he was terminated on April 23, 2003. Following his termination, Petitioner consulted with more than one attorney to discuss the options available to him to challenge his termination as having been discriminatorily motivated. He was told that he had a 365-day time limit from the date of his termination to file a charge of discrimination against Respondent challenging his termination as being in violation of state law. By April 12, 2004, Petitioner had not taken any action to file such a charge. Realizing that he had only 11 days left to accomplish such filing, Petitioner, on that date (April 12, 2004), telephoned the Palm Beach County Office of Equal Opportunity (OEO), a unit of Palm Beach County government, to inquire as to what he needed to do to file a charge of discrimination with the OEO. The person with whom Petitioner spoke told him that there was paperwork that he needed to fill out and submit, which she offered to mail to Petitioner. Petitioner declined the offer, indicating that he preferred to come down to the OEO office in West Palm Beach to take care of the paperwork "personally." Petitioner went to the OEO office (by himself) at around 1:30 or 2:00 p.m. on April 14, 2003, nine days before the expiration of the 365-day charge-filing time limit about which he had been told. At the office, he was helped by a "black, younger female" who worked in the office (OEO Worker).1 He spoke to no one else during the time he was in the office that day. Upon his arrival at the office, he told the OEO worker that he wanted to file a discriminatory retaliation claim and asked for the forms he needed to fill out to pursue such a claim. In response to Petitioner's request, the OEO Worker gave Respondent a blank OEO Employment Discrimination Charge Questionnaire (Questionnaire) and advised him to fill it out and mail the completed Questionnaire back to the OEO. Petitioner asked if it would be possible for him to complete the Questionnaire before leaving the office "because of the time constraints" he was under. She said that she "wouldn't mind." Petitioner spent the next hour or so filling out the form in the office. The first page of the Questionnaire (at the top) contained the following introductory pre-printed language: Palm Beach County Office of Equal Opportunity 215 North Olive Avenue, Suite 130 West Palm Beach, FL 33401 Telephone: (561)355-4863 / FAX (561) 355- 4932 / TDD (561) 355-1517 IMPORTANT NOTICE TO POTENTIAL CHARGINGPARTY: Completion of this form is necessary in order for the Office of Equal Opportunity to determine if you have sufficient legal grounds to initiate the filing of a charge of employment discrimination. Completion and submission of this Questionnaire does not constitute the filing of a charge of discrimination. Upon receipt of this completed Questionnaire, we will determine if you have stated sufficient factual allegations to proceed further. If the facts are not sufficient, we will either contact you for further information or notify you of our determination that the facts are not sufficient. If the facts are sufficient, a complaint will be prepared for you to sign, notarize and return to OEO for filing and investigation. You must return the signed, notarized complaint form so that it is received by OEO within 180 days of the date of the most recent act of alleged discrimination. If your form is received after 180 days, but within 300 days, OEO will forward your forms to the U.S. Equal Employment Opportunity Commission (EEOC) for processing and investigation. The Questionnaire then asked for certain information about the "potential charging party" and his or her "discrimination claim." In filling out this portion of the Questionnaire, Petitioner indicated that the "most recent act of discrimination took place on April 23, 2003," and he "briefly described the action that was taken against [him]" as follows: I was terminated as an employee at the university as a result of providing testimony regarding sexual harassment grievances. The female employee filing the grievance was stripped of job duties and ultimately quit her position. My immediate supervisor was asked to step down from his position as a result of coming forth to protect myself and the female employee. In addition, he gave the following statement as to "[w]hy [he] believe[d] that the action taken against [him] was discriminatory": The action was in direct retaliation for testimony provided against the senior department chairman- stemming from sexual harassment, verbal abuse and battery complaints. The last page of the Questionnaire contained the following pre-printed certification that Petitioner signed and dated (April 14, 2004), after he had filled out the preceding portions of the Questionnaire: I have been advised by a representative of the Palm Beach County Office of Equal Opportunity (OEO) that completion of this Questionnaire is necessary in order for the Office of Equal Opportunity to determine if I have sufficient legal grounds to initiate the filing of a charge of employment discrimination. I understand that completion and submission of this Questionnaire does not constitute the filing of a charge of discrimination and that upon receipt and review of this completed Questionnaire, OEO will determine if I have stated sufficient factual allegations to proceed with the actual filing of a charge of discrimination. I understand that to be timely filed, a charge of discrimination must be signed, notarized, and received by OEO 180 days of the date of the most recent act of alleged discrimination. If I file a complaint after 180 days, but within 300 days, OEO will not investigate claims but will forward my complaint to the U.S. Equal Employment Opportunity Commission (EEOC) for processing and investigation. I have been given assurances by an agent of the Palm Beach County Office of Equal Opportunity that pursuant to Palm Beach County's Equal Employment Ordinance (Ordinance 95-31), and applicable Florida Statutes, this Questionnaire will be considered confidential and will not be disclosed (except to the parties to this proceeding, including the employer and its legal representative) as long as this case remains open unless it becomes necessary for OEO to produce the Questionnaire in a formal proceeding. Upon the closing of this case, the Questionnaire may be subject to further disclosure in accordance with Ordinance 95- 31 and Florida's Public Record Act. Under penalty of perjury, I declare that I have read the entire contents of this Questionnaire and that my answers and statement contained herein are true and correct. Signed: Printed Name: Date Signed: Petitioner handed the completed Questionnaire to the OEO Worker and asked her to date stamp it, which she did.2 In making his date stamp request, Petitioner again "brought up the issue of the time constraints" he was under and his desire to comply with the time requirements for filing a charge of discrimination against Respondent. The OEO Worker did not say anything in response thereto suggesting that, in her view, there would be a problem in Petitioner's meeting these requirements. Before leaving the office, Petitioner inquired as to whether there was anything further that he needed to do "at that point in time," to which the OEO Worker responded in the negative. Petitioner then left the office. At no time during his visit to the OEO office on April 14, 2004, did the OEO worker tell Petitioner that he could take no further action regarding his allegation against Respondent until the OEO had completed its review of his filled- out Questionnaire. The only form that Petitioner was given while he was at the OEO office on April 14, 2004, was the Questionnaire that he completed and submitted before leaving. Petitioner knew, as a result of reading the pre- printed language of the Questionnaire, that what he filled out and handed to the OEO Worker during his April 14, 2004, visit to the OEO office did not constitute a charge of discrimination. Furthermore, Petitioner was aware that he needed to file a charge of discrimination within 365 days of the date of his termination (that is, on or before April 23, 2004) in order to be able to challenge the termination as discriminatorily motivated in violation of Florida law. From the time he left the OEO office through April 23, 2004, Petitioner did not contact the office to check on the status of his completed Questionnaire; nor did he take any other measures to ensure that a charge of discrimination challenging his termination was filed. On or about April 30, 2004, Petitioner received the following letter, dated April 26, 2004, from Harry Lamb, Jr., the OEO's director: The Palm Beach County Office of Equal Opportunity acknowledges receipt of your completed Intake Questionnaire regarding the filing of a potential claim of employment discrimination. Your documents were received by this office on April 14, 2004. A review of your documentation reveals that the alleged discriminatory act took place April 23, 2003. Under the Palm Beach County Ordinance, a complaint has to be filed within 180 days from the most recent date of harm. It has to be filed with the EEOC within 300 days from the most recent date of harm. It appears that the time limit for these agencies has expired. Therefore, this agency lacks jurisdiction to investigate and further process this claim. However, the Florida Commission on Human Relations (FCHR) has a time limit of 365 days from the most recent date of discrimination. Therefore, your case is being referred to FCHR for possible assistance and investigation. Copies of all documents and information in this file have been forwarded to the FCHR. The FCHR's address and telephone number are as follows: Florida Commission on Human Relations 2009 Apalachee parkway Suite 100 Tallahassee, Florida 32301 Phone: 850/488-7082 You should direct future correspondence and inquiries to the above agency in view of this referral. On April 30, 2004, Petitioner received a telephone call from Emily Davis, an intake investigator with the FCHR. Ms. Davis discussed with Petitioner the allegations contained in the Questionnaire he had completed at the OEO office on April 14, 2004. On or sometime shortly before May 4, 2004, Petitioner received a follow-up letter from Ms. Davis, dated April 30, 2004, which read as follows: This letter is being sent to you in response to our phone interview on April 30, 2004. An Employment or Public Accommodation complaint must be filed within 365 days from the date of alleged violation in order for the complaint to be considered timely filed with this Commission (Chapter 760, F.S.). An Employment complaint must be filed within 300 days in order for this Commission to also dual-file with the Equal Employment Opportunity Commission (EEOC). Please sign, date and return the enclosed charge of discrimination form by May 13, 2004 or this matter will be closed. Note: Do not write on the charge except to sign and date it. If you have additional information please contact me at (850) 488- 7082 extension 1077. The enclosed, unsigned and undated charge of discrimination alleged that Petitioner had been a victim of "discrimination based on retaliation" and that April 23, 2003, was the "most recent" date of discrimination. It gave the following "particulars" of the alleged discrimination: I believe I have been discriminated against pursuant to Chapter 760 of the Florida Civil Rights Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination Act, and/or the Americans with Disabilities Act as applicable. While employed with the Respondent I was retaliated against by being terminated on April 23, 2003 because of testimony that I provided in regards to sexual harassment grievances filed against the Department Chairman. I had provided testimony about inappropriate comments, and looks targeted at a specific female employee by the Department Chairman. The testimony was provided on several informal and formal inquires [sic]. As a result of retaliation I was wrongfully terminated on April 23, 2003. Petitioner, on May 4, 2004, signed and dated the charge of discrimination Ms. Davis had provided him. On May 10, 2004, the signed and dated charge was received by the FCHR and date stamped.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order dismissing Petitioner's charge of discrimination because it was not timely filed. DONE AND ENTERED this 12th day of May, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2005.
The Issue Whether the Petitioner is entitled to recover attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code.
Findings Of Fact Petitioner, Hitchcock and Driver Enterprises, Inc., is a court reporting firm in Pensacola, Florida, employing less than 25 people and earning less than one million dollars. At the time relevant to this proceeding, the company is owned by Patricia Hitchcock and Denise Driver. Respondent, Department of Labor and Employment Security, pursuant to Chapter 443, Florida Statutes, is the agency responsible for collecting unemployment compensation taxes from employers and administering the payment of those taxes to unemployed persons qualified to receive unemployment compensation. Additionally, the Department is responsible for establishing a system for determining tax liability of employers. The program established by the Department for payment of claims must meet federal requirements which mandates that claims be paid to eligible claimants as fast as administratively feasible. Compliance with the federal standard has been established to require that, over a twelve month period, an average of 87 percent of all claims be paid within fourteen days after the claim is filed and 93 percent within 35 days after the claim is filed. In light of the fast payment requirements established by the federal government, Respondent has established a system which simultaneously determines the payment of an employment claim and an employer's tax liability on written responses to a claimant's claim form, the database of employer reports maintained by Respondent, the Request for Reconsideration of Monetary determination, the Employee's Independent Contractor Questionnaire, the Employer's Independent Contractor Questionnaire and various other forms not relevant to this proceeding. Of necessity, these forms are generic in order to cover as many employment positions and businesses as possible. The underlying proceedings in this case began on September 5, 1991, when Sarah Dukes, a former court reporter performing court reporter services for Petitioner, filed a claim for unemployment compensation benefits on form UCS-310 with the Pensacola office of Respondent. In order to determine if Ms. Dukes was entitled to unemployment compensation, the Department reviewed its database to determine Ms. Dukes' employment history. The history is a compilation of employment reports filed by employers, as well as the taxes paid by each employer on behalf of each employee. The history is a factor in determining the amount of compensation to which Ms. Dukes' would be entitled. The review revealed a discrepancy in the work history reported by Ms. Dukes' former employers and that claimed by Ms. Dukes. In general, Ms. Dukes' employer reports on the Department's database did not reflect her alleged employment by Petitioner. In light of the discrepancy, Respondent requested Ms. Dukes to complete form UCB-13, which is a Request for Reconsideration of Monetary Determination, and form UCS-61, which is the Employee Independent Contractor Questionnaire. In response to Dukes' claim, the Pensacola claims office of the Respondent began to investigate Dukes' claim and sent the UCB-13, Request for Reconsideration, via computer to its central office in Tallahassee. The central office designated Ms. Jessica Bruner, a field auditor in its Pensacola office, to investigate the employer and collect information which would enable the Respondent to determine whether Dukes was an employee or an independent contractor. Sometime between September 12th through 15th of, 1991, Auditor Bruner mailed form UCS-60, Employer Independent Contractor Questionnaire, to the Petitioner at its office. At some point, Auditor Bruner visited Petitioner's office but was told by an employee of the Petitioner that Petitioner's owners did not have time to meet and complete the form because the owners were pressed by various court deadlines for transcripts. Petitioner's owners were unaware of the auditor's visit. Mailing the employer questionnaire to Petitioner was not the preferred procedure for handling presenting the employer questionnaire to an employer. The preferred procedure which is not mandated by rule is to hand deliver the questionnaire to the employer. However, given the auditor's later visit, this departure from a preferred procedure is not material in this case. The instructions on the UCS-60, Employer Independent Contractor Questionnaire, state in part: [This form should be completed for ONE individual who is representative of the class of workers whose status is in question]. When a written determination is desired for more than one class of workers, a separate Form UCS-60 should be completed for one worker from each class whose status is typical of that class. A written determination for any worker will be applicable to other workers of the same class, provided the facts are not materially different from those of the worker whose status was ruled upon. You will need to answer these items that do not have a 'Y' (Yes) or 'N' (No) to circle in comments with paragraphs numbered to correspond with the related items. [If any item does not apply to the services performed, enter the letters 'N/A' for 'not applicable' in the margin beside the item]. Responses should contain sufficient detail to explain the circumstances under which the worker performs services. [emphasis supplied]. After receiving the UCS-60, Employer Independent Contractor Questionnaire, Patricia Hitchcock completed the questionnaire on behalf of Petitioner. Neither she nor Ms. Driver attempted to contact any representative of the Respondent for any additional information or clarification of the questions posed by the Respondent on the questionnaire. Similarly, neither of Petitioner's owners consulted with the company's accountant before filling out the employer questionnaire. Around September 17, 1991, the completed employer questionnaire was signed and returned to the Respondent with an employment agreement attached to the UCS-60. The employment agreement was entered into between Sarah Dukes and the Petitioner on July 22, 1991, approximately 45 days prior to Sarah Dukes' claim for unemployment benefits. Throughout the employment agreement Sarah Dukes is referred to as an employee. The agreement uses the term "employee" fourteen times. The agreement does not use the term "independent contractor." Petitioner's employment agreement was drafted by another employee of Petitioner from computer forms without the assistance of either an attorney or accountant. The computer program allegedly designated the form as one for hiring an independent contractor. However, the Respondent was unaware of the origins of the employment agreement utilized by Petitioner at the initiation of the underlying proceeding. Just above Patricia Hitchcock's signature appears the following attestation: I have examined this questionnaire including accompanying documents, and to the best of my knowledge and belief, the facts presented are true, correct, and complete. I fully understand that the purpose of this question- naire is to secure the facts to render a determination on whether a worker is an employee or independent contractor. Even though the form indicates otherwise, Petitioner's owners did not realize that the questionnaire would be the only opportunity to present Petitioner's side of the case before Respondent made a determination of Ms. Dukes' right to benefits and Petitioner's tax liability. Petitioner's owners assumed that there would be further contact from the Department. The UCS-60 and the attached employment agreement were transmitted to the Respondent, Employer Status Section, Block Claims Unit, in Tallahassee for determination of Dukes' status as an employee or independent contractor, claim for benefits and tax liability of Petitioner. In Tallahassee, Unemployment Compensation Examiner, Millie C. Gresham, reviewed the information from Ms. Dukes and Petitioner and on October 8, 1991, determined that Dukes was an employee of Petitioner. Petitioner was notified by mail of Respondent's determination. As indicated earlier, the UCS-60 questionnaire is generic and some of the questions are more applicable to Petitioner's business than other questions. While most of Petitioner's answers to questions posed by the UCS-60 allowed the examiner to make inferences of equal weight, i.e. that Dukes was an employee or an independent contractor, questions from section II, numbers 1.(h), 1.(h)(3), 2.(e), 2.(f) and 2.(l), of the questionnaire carry more weight than other questions. Petitioner's answers to these more critical questions indicate that Sarah Dukes was an employee and not an independent contractor. Moreover, the employment agreement indicates that Sarah Dukes was an employee of Petitioner. Paragraph 5 of the employment agreement states that Sarah Dukes could not directly or indirectly or in any capacity be employed by or work on behalf of any firm in competition with Petitioner. A reasonable interpretation of the language of paragraph 5 is that Sarah Dukes contractually agreed to give up her right to be an independent contractor. On the other hand, Ms. Dukes' claim for unemployment compensation benefits and her answers to questions posed by the form UCS-61, Workers Independent Contractor Questionnaire, consistently indicate that she was an employee of the Petitioner and not an independent contractor. There was some discrepancy between the answers given by Ms. Dukes on her questionnaire and Petitioner on its questionnaire. However, under the Department's system of administration this discrepancy was to be resolved by the Hearing examiner in her review of the evidence, its relative weight and the credibility given the claiming and responding parties. There was no evidence which demonstrated this system did not comply with Chapter 443, Florida Statutes, and or federal law governing resolution of claims and tax liability. Based upon the UCS-60, UCS-61 and the employment agreement, Examiner Gresham's determination had a reasonable basis in fact and in law. Examiner Gresham followed the procedures established by the Department under its authority pursuant to Chapter 443, Florida Statutes, in rendering her determination and weighing the evidence before her. The determination, to the extent it determined Respondent's tax liability, initiated the tax liability/protest portion of this case. On this part of the case, as opposed to the claims determination portions of the case, the Department is not a nominal party since it has determined that Petitioner owes the State unemployment taxes and begins to assess those taxes. It is peculiarity of unemployment taxation that the tax is due per employee once the employer is required by statute to pay such taxes. On or about October 25, 1991, Petitioner submitted a letter dated October 22, 1991 protesting its liability for unemployment compensation taxes as determined by Respondent. Petitioner's letter amended its answers to the previously submitted UCS-60 and states: It is our understanding that your determination was based on the information contained on Form UCS-60 which we completed and mailed to your office at the request of local officials. Since submitting the UCS-60, we have had more time to consider the accuracy of our initial responses to some of the questions contained on the form. We ask that you consider the following responses to the specific questions indicated, as our official response. We believe them to be more accurate and thus more indicative of the real relationship between us and our independent contractors. Preceding the signatures of Patricia D. Hitchcock and Denise B. Driver, Petitioner also expresses apologies: We wish to express our apologies for our initial hasty response, especially in view of the fact that it has caused your determination to be made on the basis of incorrect data. Most importantly the letter attempts to change or more fully explain Petitioner's answers to the critical questions under section II, number 1.(h), 2.(e), and 2.(l). Respondent assigned Special Deputy Rose O'Leary to resolve Petitioner's Protest of Liability. On February 12, 1993, Special Deputy O'Leary held a hearing on the Petitioner's protest of its unemployment compensation tax liability. Ms. Dukes did not appear at the hearing and has not been heard from since her initial claim. The Department appeared at the hearing through its representative. Petitioner appeared through its owners, Ms. Hitchcock and Ms. Driver. Ms. Hitchcock and Ms. Driver testified about the Petitioner's questionnaire and amending letter. Additionally, testimony was offered about court reporting employment practices in general, as well as testimony from Petitioner's accountant. The accountant's testimony appeared to be beneficial to the case. Because Ms. Dukes was not present at the hearing no evidence was offered on her side of the case other than the documents she originally filed. The Department attempted to support its determination of liability. On May 6, 1993, Special Deputy O'Leary reversed Examiner Gresham's determination and in doing so found: Consideration was given to an apparent inconsistency between the Petitioner's initial answers to a questionnaire and testimony presented at the hearing. [The demeanor of the witnesses at the hearing was such that the Special Deputy accepts the Petitioner's position that it was confused and did not understand the questions or the significance of their answers at the time of completion of the questionnaire]. The testimony of the Petitioner's witnesses is accepted as an accurate depiction of the working relationship between the Petitioner and the workers. [emphasis supplied]. On August 18, 1993, Respondent issued its Final Order adopting the findings of fact and conclusions of law of the Special Deputy. Upon the decision becoming final, Petitioner became the prevailing party in the underlying action. After the entry of the Final Order, Petitioner hired Lawrence Kaden, Esquire, as its attorney to represent it on a pro bono basis contingent upon its winning the derivative Section 57.111, Florida Statutes, fee case to collect Petitioner's costs in litigating Ms. Dukes' claim and Petitioner's tax liability. Attached to the Petition in this case was an affidavit from Petitioner outlining various time and expenses incurred by Petitioner in litigating the underlying action. That affidavit reflects an expenditure for the accountant who testified at the underlying hearing in this matter. The fee charged by the accountant in the amount of $846.53 was for the accountant's preparation and testimony at what was a five hour hearing. The amount was not shown to be unreasonable and the testimony was useful to the Special Deputy. Therefore, the expense is a compensable cost of this proceeding should Petitioner be entitled to reimbursement for such costs. The other items on Petitioner's affidavit were for costs associated with travel, hours (at $40.00 per hour) spent by Petitioner's owners in preparing for the initial determination and the eventual hearing in this matter. However, these items are not normally items for which costs or fees may be assessed and, in this case, the equities on either side do not warrant a special award of these items. The Petitioner also seeks reimbursement for costs of $309.57 for the appellate filing fee and travel costs associated with this appeal. The appellate court did not award costs of the appeal in its earlier decision in this case. Moreover, the travel costs claimed by Petitioner are not normally awarded and the equities in this case doe not militate in favor of such an award. Neither of these costs should be awarded in this case. The Petitioner did not contain an affidavit of attorney's fees from Mr. Kaden which itemized the number of hours or services rendered by him once he was retained by Petitioner. The affidavit was produced for the first time at the final hearing in this matter. The Petition did contain two affidavits from local attorneys attesting to the fact that an attorney's fee of $150.00 an hour was a reasonable fee in this case. At the hearing, Petitioner's expert testified that $150.00 per hour was a reasonable fee in this matter. The evidence supported a reasonable fee of $150.00 an hour. The evidence did not support an award of a multiplier under the Lodestar factors. However, the lack of an itemized affidavit from Mr. Kaden causes the Petition to not meet the requirements of Section 57.111, Florida Statutes, for an award of attorney's fees. More importantly, however, Petitioner is not entitled to an award of attorney's fees and costs because Respondent's actions and determinations were substantially justified in this case. The Department established a procedure pursuant to Section 443.141(2)(b), Florida Statutes, which provided for a process of determining employer liability and for appealing such determinations. That process was substantially followed and the Respondent's examiner reviewed and weighed the evidence which was before her resolving any issues of credibility. Indeed, much of the basis of the Department's initial determination was a direct result of Petitioner's inaccurate responses to the Employer's Independent Contractor Questionnaire. Given these facts, Petitioner is not entitled to an award of attorney's fees or costs under Section 57.111, Florida Statutes.
The Issue Whether Respondent failed or refused to provide the legal representation to which Petitioner was entitled because of Petitioner’s race or in retaliation for Petitioner’s prior charges against Respondent.
Findings Of Fact At all times relevant to this proceeding, Petitioner, a black male, was employed by Miami-Dade County as a correctional officer. At all times relevant to this proceeding, Respondent was a public employees bargaining unit established pursuant Chapter 447, Florida Statutes (2004).1 At all times relevant to this proceeding, Petitioner was a dues-paying member of Respondent and was entitled to all rights and benefits of such membership. Prior to March 1, 2002, Petitioner filed a complaint with the EEOC alleging that Respondent had discriminated against him in an unrelated matter. That complaint was resolved in Respondent’s favor. Petitioner was notified by his employer on March 1, 2002, that his employment was being terminated for reasons that are irrelevant to this proceeding. Petitioner immediately requested legal representation from Respondent. On March 4, 2002, Respondent, through Tyrone W. Williams (Respondent’s then general counsel), advised Petitioner as follows: We have completed our review of your request for legal assistance of March 4, 2002. Based upon the information provided, it has been determined that a conflict in representation has arisen. Accordingly, this matter has been assigned to the Law Offices of Slesnick & Casey. . . . . We have provided the Law Office of Slesnick & Casey with a copy of your file for their immediate reference. Please contact the Law Office of Slesnick & Casey upon receipt of this correspondence. At the times relevant to this proceeding, the Law Offices of Slesnick & Casey was a private law firm that had contracted with Respondent to provide conflict representation to its members. Thereafter, the Law Office of Slesnick & Casey undertook Petitioner’s representation at Respondent’s expense. The procedures followed by Respondent in determining that a conflict existed and in assigning the Law Office of Slesnick & Casey to this representation were consistent with Respondent’s bylaws and written policies. Petitioner was not satisfied with the representation of Slesnick & Casey and asked Respondent for other counsel. On June 24, 2002, Blanca Greenwood (Respondent’s then general counsel) notified Petitioner that if he did not want the assigned representation, Respondent would give him $500.00 towards his legal fees and he could retain any lawyer he wished. Petitioner was also told he would have to absolve Respondent of any liability regarding his representation by private counsel, which Petitioner refused to do. Petitioner thereafter filed the complaint with EEOC and, following its dismissal, the Petition for Relief that underpins this proceeding. The evidence presented by Petitioner failed to establish that Respondent discriminated against him by assigning the Law Office of Slesnick & Casey to represent him or by offering to pay $500.00 towards his legal fees for a private lawyer. There was no evidence that Mr. Williams (who is a black male) or any other representative of Respondent discriminated against Petitioner on the basis of his race. There was no evidence that Mr. Williams or any other representative of Respondent discriminated against Petitioner because he had filed an unrelated EEOC against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of February, 2005.
The Issue Whether Petitioner was terminated from his position with Respondent as a warehouse supervisor on or about August 9, 2002, on the basis of his race (African-American), in violation of Subsection 760.10(1)(a), Florida Statutes (2003).
Findings Of Fact Based upon all of the evidence, the following Findings of Fact are determined: Respondent, Heritage Paper Company, Inc. (Respondent), is an employer as that term is defined under the Florida Civil Rights Act of 1992 (FCRA). Respondent is a wholesale distributor of paper and plastic products. Petitioner, Alonzo C. Brown, is an African-American male and is a member of a protected class. Petitioner was employed in the warehouse at Respondent's Orlando facility from 1998 until he was terminated on or about August 9, 2002. Dan Patterson ("Patterson"), who was the general manager at the Orlando facility during the relevant time period, supervised Petitioner throughout his employment with Respondent. Patterson made the decision to hire Petitioner, made the decision to promote Petitioner to warehouse supervisor, and made the decision to terminate Petitioner's employment. In November 1999, Petitioner was officially promoted from warehouseman to warehouse supervisor. Petitioner's job duties as warehouse supervisor included supervising the drivers, receiving inventory, putting away inventory, pulling orders, and ensuring that the trucks were loaded. Petitioner was responsible for assigning work to his assistants, ensuring that the runs were pulled, and ensuring that the merchandise ordered by customers was actually on the trucks for delivery. He was also responsible for the overall condition of the warehouse. Petitioner's performance deteriorated during approximately the last five months of his employment. When Petitioner got behind in the warehouse, Patterson assisted him and even hired an assistant to help Petitioner in the warehouse with inventory control and other assistance, where necessary. At the final hearing, Petitioner testified that he was discriminated against based on his race in retaliation for filing a workers' compensation claim and for disagreeing with his supervisor's instruction to put matches on a truck during a fire inspection. Petitioner was responsible for ensuring that the trucks left on time in the morning and for pulling the runs the previous afternoon. Even though an assistant was hired to help Petitioner in the warehouse at times, Petitioner refused to assign tasks to his assistant. Patterson wrote a note to Petitioner on May 1, 2002, telling Petitioner that he could not send items to the customer, NSC Northport, without matching up purchase order numbers. NCS Northport had very strict delivery requirements and would refuse delivery if Respondent did not comply with their delivery procedures. The evidence demonstrates that Patterson notified Petitioner on May 1, 2002, that Respondent's procedure with regard to NSC Northport was not followed. Although Petitioner introduced testimony that he did not write the information on the NSC Northport invoice, Patterson reasonably believed that it was Petitioner's handwriting and testified that Petitioner never informed him that he did not write the information on that invoice. Further, Marissa Moore, Petitioner's own witness, identified the handwriting as Petitioner's. When problems in the warehouse first arose, Patterson spoke with Petitioner regarding Respondent's policies and procedures for the warehouse. Patterson wrote another note to Petitioner on May 13, 2002, regarding excessive overtime and the importance of having runs pulled the previous afternoon to prevent overtime. Patterson wrote a third note to Petitioner and his assistant, Keynon Turner, on June 27, 2002, reiterating the importance of having the runs pulled in the afternoon and reminding them that the runs must be pulled by 4:00 p.m. Petitioner's explanation for the overall condition of the warehouse from May through August 2002 is not credible. Bob Purser, Sr., Respondent's chairman, CEO, and founder testified that in a conversation with Patterson, he told him that if Petitioner was unable to keep the warehouse organized, minimize the overtime, and get the trucks out on time, then they would have to get someone in the warehouse who would be able to do so. When Purser found out that incorrect merchandise was delivered to customers, he told Patterson to personally review the orders before the trucks were loaded. Purser visited the warehouse where Petitioner was employed prior to his termination and found that the warehouse was in disarray. He observed the aisles were blocked with merchandise and that the forklifts were unable to move up and down the aisles. Denis Nieves, the current warehouse supervisor for Respondent's Orlando facility, was hired on August 12, 2002, three days after Petitioner's employment was terminated. When he was hired, the warehouse was disorganized and cluttered, inventory blocked some of the aisles, the bay doors, and the exits and that it was sometimes difficult to locate inventory. It took him approximately six to eight weeks to reorganize the warehouse, unblock the aisles, put the inventory on racks, and unblock the bay doors and the exits. Respondent's Equal Employment Opportunity policy states that Respondent will provide equal employment opportunity to all qualified employees and applicants for employment regardless of race, color, sex, age, religion, national origin, handicap, marital status, and status as a disabled veteran or veterans of the Vietnam era. This policy was in effect when Petitioner was hired, and he received a copy of Respondent's employee handbook at the time of his hire, which contained the Equal Employment Opportunity policy prohibiting all types of unlawful discrimination. Petitioner knew of Respondent's Equal Employment Opportunity policy. He was aware of the procedures for mailing a complaint about racial discrimination and/or harassment. Respondent also maintained an open-door policy where employees could speak with Purser regarding any perceived problems. Petitioner was aware of this open-door policy. Other employees took advantage of Respondent's open-door policy to address their concerns with Patterson and/or Purser. Petitioner never complained to Purser about Patterson's alleged discriminatory treatment. Purser confirmed that Petitioner never addressed any concerns about race discrimination or any retaliatory actions by Patterson with him. Petitioner testified that he did not feel that he was ever discriminated against at any time during his employment with Respondent, except when Patterson terminated his employment. Although Petitioner raised various instances of perceived unfairness throughout his employment with Respondent, such as being paged to the front office and having his uniform "stripped" from him, he testified that the only point he believed he was discriminated against because of his race was when Patterson terminated his employment. Petitioner's witnesses, Ralph McDaniel and Ricky Vaughn, admitted that they never noticed any discriminatory acts or racial inequalities against anyone while they were employed with Respondent. Moore testified that she never heard any discriminatory comments about Petitioner. Andrew Mitchell testified that he never noticed any discriminatory acts during his employment with Respondent. Petitioner's only other witness, Kenyon Turner, testified that the only perceived discriminatory actions he experienced while employed at Respondent was Patterson's "getting mad and cursing [him] out every once in a while." When asked if Patterson cursed at others as well, Turner answered affirmatively stating, "[o]f course he cursed out the other people that was there," meaning all employees, regardless of race. This does not constitute evidence of racial discrimination. Purser testified that his company does not discriminate against its employees on the basis of race and Patterson testified that he did not consider Petitioner's race in making the decision to terminate his employment. Through Mitchell's testimony, Petitioner attempted to establish that he was a "good employee" and that he was a "capable and knowledgeable" warehouse supervisor, but offered no additional evidence demonstrating that he was doing a good job. The greater weight of evidence supports the fact that Patterson made the decision to terminate Petitioner's employment based on the continuing problems in the warehouse and a load factor decline of approximately 22 percent. The load factor is a percentage used to determine how many customer orders are being accurately filled. At the time of Petitioner's termination, he was earning $11.72 per hour. Petitioner testified that he did not begin looking for work until the first part of 2003. Petitioner worked sporadically for Florida Courier and that he earned approximately $11,000.00 in 2003. Petitioner did not work many hours and did not seek alternative employment during the summer months. Petitioner is also a full-time pastor, and his church pays his mortgage payment, which is approximately $1,000.00 per month. Petitioner testified that he has submitted "a couple of applications" to prospective employers, but has not really been interested in working for someone else.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief. DONE AND ENTERED this 19th day of January, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alonzo C. Brown 7230 Plantain Drive Orlando, Florida 32818 Robert T. Devine, Esquire Alva L. Cross, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether the Petition for Relief should be dismissed as untimely because it was received by the Florida Commission on Human Relations more than 35 days after the date of the Commission's "no cause" determination.
Findings Of Fact Based upon the pleadings (as supplemented by Petitioner's response to the August 2, 2002, Order to Show Cause and his representations at the August 23, 2002, telephonic hearing), the following findings are made: On August 16, 2001, Petitioner filed a charge of discrimination against Respondent with the Commission. The charge of discrimination alleged that Respondent committed an unlawful employment practice in September 2000 when it fired Petitioner based upon his race.1 The address for the Commission listed on the charge of discrimination form was 325 John Knox Road, Suite 240, Building F, Tallahassee, Florida 32399. The charge of discrimination was investigated by the Commission staff, and based upon the results of the investigation, the Executive Director of the Commission determined that "there is no reasonable cause to believe that an unlawful employment practice has occurred." The date of the determination was May 8, 2002. On that same date, notice of the determination (Notice) was provided to Petitioner by U.S. Mail. The Notice stated: NOTICE OF DETERMINATION: NO CAUSE PLEASE TAKE NOTICE that a Determination has been made in the above-referenced complaint that there is no reasonable cause to believe that an unlawful employment practice has occurred. A copy of the Determination is attached. [Petitioner] may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. * * * If [Petitioner] fails to request an administrative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). (Emphasis supplied). Petitioner received the Notice four or five days after it was mailed, which would have been May 13, 2002, at the latest. The address for the Commission listed on the Notice was 2009 Apalachee Parkway, Suite 100, Tallahassee, Florida 32301. Included with the Notice was a blank petition for relief form. Petitioner filled out the form and mailed it to the Commission. Consistent with the charge of discrimination, the Petition alleges that Petitioner was fired by Respondent based upon his race and that the reasons asserted by Respondent for his firing were pretextual. The Petition was post-marked in Orlando on June 13, 2002 (36 days after the Notice, and at least 31 days after Petitioner's receipt of the Notice). Petitioner's delay in completing and mailing the Petition was due to his "inability to obtain counsel." Despite the Commission's new address being printed at the top of the Notice, Petitioner mailed the Petition to the Commission at its old address on John Knox Road. The Petition was not received by the Commission until July 9, 20022 (62 days after the Notice, and at least 57 days after Petitioner's receipt of the Notice). The envelope in which the Petition was received by the Commission includes a forwarding sticker affixed by the postal service. Thus, it appears that the 26 days that it took for the postal service to deliver the Petition from Orlando to Tallahassee is attributable to the postal service's mail forwarding process.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief as untimely. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2002.
Findings Of Fact Respondent, PPC Products Corporation (PPC), manufactures power transistors, recitifers, diodes, and semiconductors. Approximately 80 percent of its business deals with government contracts. Petitioner is Sandra Boatwright, a black female, who worked for PPC for sixteen years. During her career with PPC she received good evaluations. In September 1989, Ms. Boatwright was working in the marking section of the production department. Her duties included putting product units in an oven and removing the units at the end of the baking period. She was a line leader with two to three employees reporting to her. Ms. Boatwright's immediate supervisor was Blynn Gause, the manager of the production department. Stringent government requirements called for the brands on the products to be permanent. During the summer of 1989, a problem had developed concerning the permanency of the marking or branding of the units. Some of the brandings were coming off prematurely. Mr. Gause asked Dolf Storz an employee in the engineering section to find a solution. In order to eliminate possible causes of the problem, Mr. Storz instituted the use of a logbook in the marking section to record the time the units went in and came out of the oven. Logbooks were a common requirement by the engineering section as a means of gathering data. In September 1989, Mr. Storz took the logbook to the marking section and requested the employees, including Ms. Boatwright, to use it. Ms. Boatwright admitted that, contrary to her initial charge, Mr. Storz was never her supervisor. In the latter part of September 1989, after Mr. Gause had returned from a vacation, Ms. Boatwright complained to him that Mr. Storz had been "acting like a king" while Mr. Gause had been away and requested a meeting to discuss the matter. On October 3 Ms. Boatwright, Mr. Gause, and Mr. Storz met in Mr. Gause's office. The discussion centered around the logbook, which the marking section had not been using. Ms. Boatwright did not feel that it was necessary to use the logbook because the marking section was already using an informal logbook to track the units in production. Mr. Storz's position was that the logbook was required by the production specifications and the informal logbook did not record the times the units went in and came out of the oven. Mr. Gause resolved the issue by requiring Ms. Boatwright and the other employees in the marking section to use the engineering log book. Ms. Boatwright thereafter used the engineering log book. On October 3, 1989, the process specification for the marking process, Device Branding Process Specification No. 200-140 was changed to require that the oven data be recorded in a logbook. This change was called Revision J. Ms. Boatwright signed off on this change. Race had nothing to do with the requirement that a marking logbook be maintained. Mr. Gause never advised Ms. Boatwright that he treated whites better than blacks. There was no disparate treatment of Ms. Boatwright in the terms and conditions of Ms. Boatwright's employment with PPC. In mid September 1989, a vacant position in the Lorlin automatic test area of the quality control department was posted. Ms. Boatwright had previously worked in the quality control department. Some time during late September or early October 1989, Ms. Boatwright approached Marleen Williams Coker (Ms. Williams), the quality manager, and asked to be transferred to that position. Ms. Boatwright knew the position was not a supervisory position. Ms. Williams told her she would agree to the transfer but Ms. Boatwright would have to talk to Mr. Gause about the transfer. Ms. Boatwright told Mr. Gause that she wanted to transfer to the quality control department. Mr. Gause, Ms. Williams, and Mindy Hill, the general manager of PPC, discussed the transfer. Although such a transfer was not common in the company due to the necessity for retraining the transferring employee, they agreed to approve the transfer due to Ms. Boatwright's long-term employment with the company. Although the position in quality control was a lower position than her position in production, Ms. Boatwright's pay was not cut. The transfer was approved in early October with an effective date of October 24, 1989. After the approval was given, applications were discontinued for the posted position, a decision was made to combine two other sections with the marking section, a new position with different tasks and responsibilities was created to oversee the merged sections, and the engineering section was contacted to move an engineering employee to the new position. Sometime between the approval and the effective date of the transfer, Ms. Boatwright changed her mind about wanting to transfer. Mr. Gause, Ms. Williams and Mindy Hill met to discuss Ms. Boatwright's change-of-mind. Ms. Hill decided not to reverse the transfer because of the changes that were being made to accommodate the transfer. Race played no part in the decision to allow the transfer or in the decision not to reverse the transfer. Ms. Boatwright's transfer from production to quality was not involuntary. Ms. Boatwright began working in the testing area of the quality control section on October 24, 1989. There were two other employees in that section, Steve Matthey and Mary Lou Rouse, who was the line leader for that section. Ms. Boatwright and Mr. Matthey reported to Ms. Rouse, and Ms. Rouse reported to Ms. Williams. In January 1990, Ms. Boatwright received a good performance evaluation from Ms. Williams. On February 10, 1990, Ms. Boatwright received a pay increase. On March 14, 1990, Ms. Boatwright filed an employment discrimination charge against PPC, alleging that she had been discriminated against based on race in the terms and conditions of her employment. Specifically, she alleged that in the middle of 1989, that all the white line leaders were promoted to supervisory positions and that she, a black, was not promoted. At the hearing Ms. Boatwright stated this allegation was incorrect and should be for the years 1984 through 1990. She alleged that she received increased scrutiny on her work, and her non-black coworkers did not. She charged that Mr. Gause had told her that he treated whites better than blacks. Her complaint stated that she had inquired about a transfer and later informed Mr. Gause she was not interested in the transfer, but was transferred anyway, resulting in a loss of job responsibilities and supervisory promotional opportunities. Each PPC employee is issued an employee handbook, which contains information on various employment related topics, including promotional opportunities. If an employee was interested in an opening, the employee was to contact his supervisor to make sure he was considered and if an employee was interested in advancing to another position, the employee was to discuss it with his supervisor to determine what additional skills or education might be needed to qualify for the position. Ms. Boatwright never discussed supervisory promotional opportunities with Mr. Gause or Ms. Williams, and never inquired of them what education or skills she might need to qualify for a supervisor position. No evidence was presented to show that Ms. Boatwright ever applied for a promotional opening. The employee handbook states that the final decision to promote would be based on the employee's demonstrated skills and capabilities, the employee's experience, education and service with PPC. One of the biggest factors to be considered is the employee's past work performance. In order to qualify for a supervisor position an employee would have to have knowledge of the area that the employee would be supervising, including the equipment and process specifications, to be able to supervise personnel, including disciplining personnel, and to be able to generate reports. Based on Mr. Gause's observations of Ms. Boatwright's past performance in dealing with personnel, she would not be qualified to handle disciplinary matters. As a line leader, Ms. Boatwright brought all personnel problems to Mr. Gause for him to resolve. In 1989 and 1990 there were no promotions from line leader to supervisor at PPC. No evidence was presented to show whether there were promotions from line leader to supervisor during the years 1984 through 1988. Race played no part in Petitioner's lack of promotion in marking and production. PPC maintains an affirmative action plan and annually files an Equal Employment Opportunity Employer Information Report EEO-1. The affirmative action plan, which is updated annually, sets forth PPC's policy with respect to equal opportunity for all employees in hiring, employment practices, recruiting, training, terms and conditions of employment, and compensation. Ms. Boatwright was in Production I job classification for purposes of PPC's Equal Employment Opportunity reports. From 1987 through 1992, the statistics collected by PPC indicate that PPC utilized more minorities and females in Ms. Boatwright's job classification than were available in the general work force in Palm Beach County. The employee handbook states that leaving early is the same as being absent. Before leaving early, an employee must have prior approval from his supervisor, preferably a day in advance. On April 2, 1990, Ms. Williams fired Audrey Shanahan, a white female, for leaving work without informing her supervisor or department manager. The employee handbook states that if work is not available in the employee's area the employee may be assigned another task. The handbook provides for immediate discharge for insubordination. Each employee is expected to follow the work instructions of his immediate supervisor or any other person having the authority of supervisor. If the employee does not think that the instructions are legitimate, the handbook tells the employee to do the work instructed and then take up his complaint with the appropriate person in authority. Bobby Mills was a quality manager at PPC in 1990. He and Ms. Williams were of equal rank, but supervised different sections. Both reported to Mindy Hill, the general manager. When Ms. Williams was absent from work, Mr. Mills would supervise her section as well as his own. When Ms. Williams was present on the job, Ms. Rouse, as line leader, would relay employee requests for permission to go home early to Ms. Williams for a final decision. Ms. Rouse would then relay Ms. Williams' decision to the employees requesting to leave early. On May 2, 1990, Ms. Williams was absent from work, and Mr. Mills filled in for her. Work in the Lorlin testing area was slow on that day, although work was expected to come later in the day. Ms. Boatwright had asked her line leader, Ms. Rouse, for permission to go home at lunch because of the lack of work. Ms. Rouse, believing that she had the authority to grant the permission in Ms. Williams absence, told Ms. Boatwright that she could go home early. Mr. Mills, observing that Ms. Boatwright, Mr. Matthey, and Ms. Rouse were not working, inquired of them why they were not working. Ms. Boatwright told Mr. Mills that she was going to go home at lunch. Mr. Mills informed the group that they could work in another area or go home then. Ms. Rouse told him she could not afford to go home early and she went to another area to work. Mr. Mills left and came back a few minutes later and told both Mr. Matthey and Ms. Boatwright to go to the back to work. Both indicated that they were going to go home early, which they did. To Mr. Mills, their leaving constituted a refusal to follow orders and was therefore insubordination. Although Mr. Mills had the authority to fire employees under his supervision without consulting the general manager, he did discuss the incident with Mindy Hill because Ms. Boatwright and Mr. Matthey were in Ms. Williams' section. He recommended dismissal; however, he was unaware at that time that Ms. Boatwright had filed a discrimination complaint. His recommendation for dismissal of Ms. Boatwright was not racially motivated. Mindy Hill made the final decision to dismiss Mr. Matthey and Ms. Boatwright for insubordination for leaving the workplace when requested to work. No evidence was presented to show that either race or retaliation played a part in her decision to terminate Ms. Boatwright and Mr. Matthey. Mr. Matthey learned of his termination when he spoke to Mr. Mills by telephone on the same day. Ms. Boatwright was verbally advised of her termination when she returned to work the next day. On February 26, 1991, Ms. Boatwright amended her discrimination charge to include her termination from employment with PPC. She alleged that she was discharged in retaliation for having filed a charge of unlawful discrimination under Title VII of the Civil Rights Act of 1964, as amended. The statistics collected by PPC for its affirmative action plans show that for the year October 1, 1989 through September 1990, thirty-four Caucasians and eighteen blacks were terminated. For the previous year, thirty-two Caucasians and twenty-four blacks were terminated. On October 8, 1992, the Equal Employment Opportunity Commission (EEOC) issued a Determination of No Cause relating to Ms. Boatwright's charges. The Florida Commission on Human Relations conducted a substantial weight review and issued a Redetermination: No Cause on April 8, 1993, adopting the October 8, 1992 determination of the EEOC. Ms. Boatwright filed a Petition for Relief on May 6, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner has failed to prove that Respondent committed an unlawful employment practice against Petitioner. DONE AND ENTERED this 27th day of December, 1993, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 27th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2647 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1 - Accepted in substance. Paragraphs 2 and 3 - Rejected as not supported by the weight of the evidence. Paragraph 4 - First, third, and fifth sentences accepted in substance. Second and fourth sentences rejected as not supported by the evidence. Paragraphs 5 and 6 - Accepted. Paragraph 7 - First and second sentences accepted in substance. Third sentence rejected as not supported by the evidence to the extent that there was no evidence to show that Ms. Rouse on prior occasions had given employees permission to leave early without getting approval from her superiors. Paragraph 8 - First, third and fourth sentences are accepted in substance. The second sentence is accepted to the extent that Petitioner did leave early but rejected to the extent that she left immediately after the conversation with Mr. Mills at which Ms. Rouse was present. Paragraph 9 - Accepted. Paragraph 10 - Rejected as subordinate to the facts actually found in this recommended order. Paragraphs 11 and 12 - Rejected as not supported by the evidence. Respondent's Proposed Findings of Fact. Paragraph 1 - Accepted. Paragraph 2 - Accepted except as to the date of hire. The evidence shows Ms. Boatwright began her employment on 2-8-74. Paragraphs 3 and 4 - Accepted in substance. Paragraph 5 - Rejected as unnecessary detail. Paragraph 6 - Accepted. Paragraphs 7 and 8 - Rejected as unnecessary detail. Paragraph 9 - Accepted. Paragraph 10 - Rejected as unnecessary detail. Paragraphs 11, 12, and 13 - Accepted in substance. Paragraph 14 - Accepted in substance. Paragraph 15 - Accepted in substance. Paragraph 16 - Accepted in substance. Paragraph 17 -Accepted. Paragraphs 18-22 - Accepted in substance. Paragraph 23 - The first sentence is accepted in substance. The second sentence is rejected as not supported by the evidence. Paragraph 24 - Accepted. Paragraph 25 - Accepted in substance. Paragraph 26 - The last sentence is rejected as unnecessary detail. The remainder is accepted in substance. Paragraphs 27, and 28 - Accepted in substance. Paragraph 29 - To the extent that the first sentence infers that Revision J was in operation prior to 10-3-89, it is rejected as not supported by the evidence. Storz testified Revision J instituted the logbook requirement and was not signed off until 10-3-89. The remainder of the paragraph is accepted in substance. Paragraph 30 - Accepted in substance. Paragraph 31 - Rejected as unnecessary detail. Paragraphs 32, 33, 34, 35 - Accepted in substance. Paragraph 36 - Rejected as unnecessary detail. Paragraphs 37, 38, 39 and 40 - Accepted in substance. Paragraph 41 - The first sentence is rejected to the extent that it infers that Revision J was in effect prior to 10-3-89. The remainder of the sentence is accepted in substance. Paragraph 42 - Accepted in substance. Paragraph 43 - Accepted. Paragraphs 44, 45, 46 and 47 - Accepted in substance. Paragraph 48 - The third sentence is rejected as subordinate and unnecessary detail. The remainder is accepted in substance. Paragraphs 49, 50, 51. and 52 - Accepted in substance. Paragraph 53 - Accepted Paragraph 54 - Accepted in substance. Paragraphs 55, 56, and 57 - Rejected as subordinate. Paragraph 58 - Accepted in substance. Paragraph 59 - The last sentence is rejected as not supported by the evidence to the extent that the term "personnel" included. Ms. Rouse, Ms. Boatwright, and Mr. Matthey. The greater weight of the evidence shows that those three persons did not understand that Mr. Mills was their supervisor. The remainder of the paragraph is accepted in substance. Paragraph 60 - Accepted. Paragraphs 61, 62, 63, 64, and 65 - Accepted in substance. Paragraph 66 - The last sentence is rejected to the extent that Mr. Mills instructed Ms. Rouse to go to the back upon his return. Ms. Rouse left before Mr. Mills returned. The remainder is accepted in substance. Paragraph 67 - Accepted in substance to the extent that Ms. Rouse complied with his instructions prior to Mr. Mills leaving the testing area to inquire if there was work in another area. Paragraphs 68 and 69 - Accepted in substance. Paragraph 70 - The first and fourth sentences are accepted in substance. The remainder of the paragraph is rejected as unnecessary detail. Paragraphs 71 and 72 - Accepted in substance. Paragraph 73 - The last sentence is rejected as not supported by the evidence to the extent that Mr. Mills clearly revoked Ms. Rouse's permission. It is obvious that it was not clear to Ms. Boatwright, Ms. Rouse, and Mr. Matthey. The remainder of the paragraph is accepted in substance. Paragraph 74 - Accepted in substance. Paragraph 75 - Rejected as subordinate and unnecessary detail. Paragraph 76 - Accepted in substance. Paragraphs 77 and 78 - Rejected as unnecessary detail. Paragraph 79 - The first sentence is accepted in substance and the remainder of the paragraph is rejected as unnecessary detail. Paragraph 80 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 81 - Accepted. Paragraph 82 - Rejected as unnecessary detail. Paragraph 83 - Accepted. Paragraphs 84 and 85 - Rejected as unnecessary detail. Paragraphs 86 and 87 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 88 - Accepted in substance. Paragraph 89 - Accepted. Paragraph 90 - Accepted in substance. Paragraph 91 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 92 - Accepted in substance. Paragraphs 93 and 94 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 95 - Accepted. Paragraph 96 - Accepted in substance. Paragraph 97 - Accepted. Paragraph 98 - Rejected as constituting a conclusion of law rather than a finding of fact COPIES FURNISHED: Ms. Sandra Boatwright 390 West 33rd Street Riviera Beach, Florida 33404-33036 Terry E. Lewis, Esquire Robert P. Diffenderfer, Esquire Suite 900 2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
Findings Of Fact The Respondent YWCA is a nonprofit corporation that sponsors educational, social, and recreational programs. The YWCA's purpose states that it is a "movement rooted in the Christian faith"; however, expressed belief in Christianity is not required for membership in the YWCA or for employment by the YWCA. Its membership is comprised of adult women seventeen years of age and older. The personnel policy of the YWCA expressly states that: "Equal employment opportunity and affirmative action will be applied in recruitment, hiring, compensation, fringe benefits, staff development, and training, promotion, and any other condition of employment regardless of race, color, religion, sex, handicap, age, national origin, or any other nonperformance factors." (Emphasis added.) Regarding termination, the personnel policy of the YWCA expressly states that: "Reasons for staff termination must be carefully documented. They should be based upon objective performance appraisals, which in turn are based upon job descriptions, work plans, and performance standards. Except in cases of reorganization/retrenchment or termination for cause, a probationary period for work improvement must be provided, followed by another performance appraisal." The YWCA of West Palm Beach operates three facilities: Central and Residence, the Mamie Adair Branch, and the Recreation Center. The Mamie Adair Branch primarily serves the black community in West Palm Beach and includes a day-care facility. The Petitioner, Davis, was hired as the Branch Executive of the Mamie Adair Branch of the YWCA, effective July 21, 1980, at a starting salary of $12,000.00. The Petitioner was given copies of the YWCA's personnel policy, affirmative action plan, and job description. She was not given notice of particular standards of behavior to which she was required to conform away from the job. As branch Executive she was supervised by the Executive Director, Jo Prout. The Petitioner successfully completed her initial 90-day probationary period, and her annual salary was increased by five percent to $12,600.00. In October 1981, however, the Petitioner received her annual evaluation and was again placed on three months probations due primarily to an unsatisfactory working relationship with the Branch Committee. The Petitioner had a bad attitude and was antagonistic. The Petitioner became pregnant but did not immediately disclose the fact of her pregnancy. In approximately December, 1981, the Petitioner confided to a coworker that she was pregnant and the coworker, in turn, told the YWCA's Executive Director, Jo Prout, that the Petitioner was pregnant. The YWCA's Executive Director was concerned that the Petitioner's relationship with the Branch Committee would be severely adversely affected if the Committee found out the Petitioner was pregnant and unmarried. Because of this concern, the Executive Director removed the Petitioner from her position as Branch Executive, effective December 31, 1981. The Petitioner would not have been removed from her position on December 31, 1981, but for the fact that she was pregnant and unmarried. Prior to removing the Petitioner from her position as Branch Executive, the Executive Director did not attempt less drastic alternatives such as asking the Petitioner not to discuss or disclose her marital status or asking the Petitioner to take a leave of absence. Prior to her removal, the Petitioner had not discussed the fact that she was pregnant and unmarried with members of the Branch Committee or with the YWCA membership in general. At no time had the Petitioner advocated unwed motherhood as an alternative life- style or otherwise advocated or espoused principles contrary to her understanding of Christianity. In the past, certain employees of the YWCA whose on-the-job behavior was contrary to Christian principles received job discipline but were not removed from their positions. A desk clerk at the YWCA's residence, for example, who was found to have stolen property from residence guests was not discharged. The removal of the Petitioner from her position by the YWCA because she was pregnant and unmarried was not justified by the business necessity rule because: A requirement to conduct one's life, including one's off-the-job activities, according to Christian principles, was not disclosed to the Petitioner or to other employees; The YWCA did not discipline or discharge other employees for conduct which conflicted with the YWCA's alleged requirement to conduct one's life by Christian principles; and The YWCA did not show that a requirement of all employees to conduct their lives by Christian principles has a manifest relationship to the employment in question. Then the Petitioner was removed from the Branch Executive position, she was transferred to the position of center consultant for gymnastics. The position of the center consultant for gymnastics to which the Petitioner was transferred was a demotion in that the Petitioner went from an administrative to a non-administrative position. The transfer also changed the Petitioner's employment status from full-time employee to part-time employee with a 25 percent decrease in earned income and a lunch "hour" reduced to 30 minutes. The petitioner's new position as center consultant was a temporary one designated to last no longer than five months. Petitioner was removed from probationary status as a result of the transfer. The position of center consultant to which the Petitioner was transferred was not a legitimate position. The position did not exist prior to December 31, 1981, the date the Petitioner was transferred. No job description was ever written for this position, despite the fact that the YWCA personnel policy required job descriptions. The Petitioner was verbally assigned job tasks inconsistent with her title of center consultant, including cleaning toilets at the gymnastics center. The position was eliminated on February 16, 1982, approximately six weeks after it was created, allegedly due to financial streamlining. The YWCA committed an unlawful employment act against the Petitioner, discriminating against her on the basis of sex and marital status by removing her from her position as Branch Executive because she was pregnant and unmarried. Moreover, this transfer was not justified by business necessity. Because the YWCA committed an unlawful employment act against the Petitioner, the Petitioner could be entitled to be reinstated to her former position or to a comparable position and could also be entitled to recover lost wages and fringe benefits, plus interest thereon, from the date of the wrongful act, December 31, 1981, to November 31, 1982, the date she was hired by the Lutheran Ministries, set off by any interim earnings and reduced by the Petitioner's unemployment compensation benefits plus her reasonable attorney's fees and costs. Regarding reinstatement, the Petitioner has been and is now willing and able to be reinstated to her former position as Branch Executive or to a comparable administrative position. The employer's argument that the Petitioner is not entitled to reinstatement because she was an unsatisfactory employee is rejected for the following reasons: The employer's allegations that the Petitioner will not satisfactorily perform her job if reinstated are too speculative and any doubts about the Petitioner's entitlement to reinstatement should be resolved in favor of the victim of discrimination; and In the event that the Petitioner's job performance upon reinstatement is not satisfactory, the employer may avail itself of the procedures set forth in its personnel policy to improve the Petitioner's performance or discharge her for unsatisfactory job performance. However, reinstatement may not be feasible in this case due to the fact that another employee has been placed in the Petitioner's former position. If the Petitioner is not reinstated to a comparable administrative position, then she should be compensated by the award of six months front pay in lieu of reinstatement. The Petitioner is entitled to damages in the amount of $13,551, which represents a back pay award of $11,000 plus 10 percent interest, six months front pay in the amount of $6,000, minus $1,575 for salary paid from January 1, 1982 - February 16, 1982, including two weeks severance pay and $2,974 in unemployment compensation benefits. The Petitioner is also entitled to costs of $232.65 and attorneys fees totaling $5,000.
The Issue Whether Respondent unlawfully terminated the employment of Petitioner on July 31, 2000, because of his race and/or age in violation of the Florida Civil Rights Act of 1992, Subsection 760.10(1), Florida Statutes (2001).
Findings Of Fact Respondent, Argenbright Security, Inc., now known as Cognisa Security, Inc., is an Atlanta, Georgia-based corporation that provides commercial security services to customers on a nationwide basis. Respondent employs security officers who are placed on assignments at customers' premises. Relevant to this action, Respondent maintains an office in Orlando, Florida, to support its commercial security services in Central Florida. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 (FCRA). Petitioner was employed with Respondent from May 1998 to July 31, 2000. Petitioner is an African-American male who was 50 years of age upon hiring and 52 years of age upon his discharge from Respondent's employ. During his employment with Respondent, Petitioner was provided with Respondent's employment policies, including the equal employment opportunity policy which prohibits all types of unlawful discrimination in the workplace. Throughout his employment with Respondent, Petitioner worked as a district manager and was supervised by Buckwalter, who was Respondent's vice president and general manager of the Southeast region. Buckwalter made the decision to hire Petitioner and made the decision to discharge him. Based on a decline in business and a lack of work, Buckwalter himself was discharged by Respondent in January 2002. Petitioner's job duties as a district manager included supervising Respondent's account managers who managed security officer accounts and ensured overall customer satisfaction. Petitioner was responsible for supervising the management of approximately 60 customer accounts in Orlando, Jacksonville, Tampa, and St. Petersburg. Petitioner supervised a staff of approximately 33 employees, excluding Respondent's security officers. The list of Respondent's customers in Petitioner's region included, but was not limited to, the following entities: the City of Orlando, U.S. Airways, Delta Airlines, Northwest Airlines, Orange County, C&L Bank, Citrus Center (also known as Tricony Management), Florida Power Corporation, Solivita (also known as Avitar), and Ocwen. Respondent alleges that Petitioner's performance deteriorated during the last six months of his employment, and as a result, Petitioner was discharged on July 31, 2000. Buckwalter testified that he made the decision to terminate Petitioner's employment based on his receipt of numerous customer complaints regarding Petitioner's management of accounts and failure to resolve problems, numerous complaints from Petitioner's subordinates regarding Petitioner's management style and lack of guidance, and Petitioner's failure to properly perform his administrative duties. Buckwalter received eight to ten complaints from Respondent's customers about Petitioner's management of their accounts. Several of Respondent's customers repeatedly complained about Petitioner's management skills. Buckwalter received complaints from Respondent's customers regarding Petitioner's lack of attentiveness towards their accounts, failure to conduct client meetings, and inability and unwillingness to resolve client problems. When Buckwalter discussed the customer complaints with Petitioner, Petitioner sometimes acknowledged the seriousness of the concerns and sometimes became defensive and dismissed the complaints as unreasonable client demands. Two of Respondent's customers, Tricony Management and C&L Bank, specifically demanded that Petitioner be removed from the management of their accounts based on his lack of service and "cavalier" attitude toward their requests. Linda Mansfield, who was the client contact at Tricony Management, sent an e-mail complaint to Respondent's business development manager, Warren Bovich, in regard to Petitioner and Robert Stevenson on February 8, 2000. Tricony Management did not cancel its account with Respondent. However, they insisted that Robert Stevenson and Petitioner be removed from the account. Petitioner admitted that the following customers complained regarding his servicing of or management of their accounts: Ocwen, Citrus Center/Tricony Management, City of Orlando, Avitar/Solivita, C&L Bank, and Florida Power Corporation. Petitioner disagreed with the substance of those complaints. Petitioner also admitted that he had a personality conflict with a Citrus Center employee. Regarding the City of Orlando account under Petitioner's supervision, Petitioner admitted that employee turnover was a problem, that the account was not meeting the budgeted goals, and that Respondent's employees routinely missed their scheduled work shifts. Petitioner further admitted that Avitar/Solivita was upset with him about his unauthorized recruiting efforts. In addition to the customer complaints, Buckwalter received approximately 30 to 35 complaints from Petitioner's subordinates regarding Petitioner's management style. Petitioner's subordinates complained that Petitioner was not concerned with their career development, failed to provide them with timely performance evaluations, failed to conduct staff meetings on a routine basis, failed to attend staff meetings which he had scheduled, did not provide proper support and mentoring for customer accounts, and was generally unavailable to them based on his lack of time in the office. Petitioner admitted that a subordinate complained to Buckwalter regarding Petitioner's failure to provide him with a performance evaluation in a timely manner. Petitioner also acknowledged that Buckwalter received a complaint from Respondent's employee regarding his failure to properly process administrative paperwork. Petitioner admitted that he does not know whether Buckwalter received additional complaints from his subordinates regarding his management. Accordingly, Buckwalter's testimony that he received 30 to 35 complaints from Petitioner's subordinates regarding Petitioner's management is credible. Buckwalter's decision to discharge Petitioner was also based, in part, on Petitioner's failure to properly process administrative paperwork. Buckwalter informed Petitioner, in writing, that his neglect of his administrative duties was unacceptable. Buckwalter also determined that on several occasions, Petitioner provided misleading information about his whereabouts by falsely reporting that he was out of the office conducting client appointments. In addition to Petitioner, Buckwalter supervised several other of Respondent's district managers, including Blake Beach (Beach) and Scott Poe (Poe)--both of whom were formerly employed as district managers in South Florida. While serving as Beach's supervisor, Buckwalter received a single complaint from Respondent's customer, United Airlines (United), regarding Beach's sending of an inappropriate e-mail. United's compliant did not concern Beach's servicing or management of United's account. Other than United's single compliant, none of Respondent's other customers submitted complaints regarding Beach. Based on United's complaint regarding Beach's inappropriate e-mail, Respondent transferred Beach from South Florida to the Baltimore/Washington, D.C., area. While serving as Poe's supervisor, Buckwalter received complaints from two of Respondent's customers (in the South Florida region) regarding Poe's management of their accounts. Because Poe had been successful with other accounts, Buckwalter believed that the two complaints might have been based on a personality conflict. Buckwalter decided to transfer Poe from the district manager position in South Florida to the district manager position in Central Florida. Buckwalter never received complaints from Poe's subordinates regarding Poe's management or supervision. After Poe became the district manager in Central Florida, Respondent received additional complaints from several customers regarding Poe's handling of their accounts. Based on these complaints, Buckwalter made the decision to terminate Poe's employment with Respondent. Buckwalter made the decision to discharge Poe and Petitioner based on a similar number of complaints received from customers in their respective regions; but unlike Poe, Petitioner was discharged for additional reasons: the numerous complaints from his subordinates and the neglect of his administrative duties. Robert Matecki, who was 55 years old when he was hired, replaced Petitioner as Respondent's district manager in Orlando. Petitioner does not allege that Respondent discriminated against him at any time prior to Petitioner's termination on July 31, 2000. Petitioner does not contend that Buckwalter (the decision-maker in this case) ever made any discriminatory comments to him. Petitioner admits that he does not know what factors Respondent considered in making the decision to terminate his employment. Buckwalter testified that he did not consider Petitioner's age and race in making the decision to discharge Petitioner. Instead, he based the decision on customer and subordinate complaints about Petitioner's management style and Petitioner's failure to perform his administrative duties. Because Petitioner admits that he does not know upon what factors Buckwalter based his decision, Buckwalter's testimony is undisputed. Petitioner bases his allegations on his own personal beliefs about his performance and his disagreement with the substance of the complaints made by Respondent's customers and his subordinates.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Florida Commission on Human Relations enter a final order which denies Petitioner's Petition for Relief and dismisses his complaint with prejudice. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Wayne Johnson, Esquire DeCiccio, Johnson, Herzfeld & Rubin 652 West Morse Boulevard Winter Park, Florida 32789 John S. Snelling, Esquire James P. Ferguson, Jr., Esquire Duane Morris, LLP 1180 West Peachtree Street, Suite 700 Atlanta, Georgia 30309 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
