The Issue Whether Respondent violated subsection 760.10(1), Florida Statutes by denying Petitioner a promotion on account of his race and color.
Findings Of Fact Henry E. Tate is a forty-nine year old black male who has worked at the Kennedy Space Center (KSC) since April 12, 1965. (tr-10, 11) From 1965 until the present, a series of civilian contractors have had agreements with the National Aeronautics and Space Administration (NASA) to perform logistical and housekeeping duties at KSC. These included Transworld Airline, the Boeing Company and Expedient Services, Inc. (tr-34) In January 1983, EG & G Florida, Inc., (EG&G) assumed the master base contract for logistics and housekeeping, but it was not until July 1983 that it took over operational control of the roads and grounds department. EG & G employs in excess of fifteen persons. (tr-101, 102, Exhibit number 11) Except for three or four months in the early 1970's when he worked in the mechanic shop, Mr. Tate was employed in the roads and grounds department steadily from 1965. As each successor contractor took over he applied for, and was hired for the same job. This included EG & G in July 1983. (tr-11, 13, 34) His current title is lead labor operator- pest control and he makes $10.16, plus $.75 lead pay, per hour. (tr-11) Mr. Tate's duties in the roads and grounds department have included pesticide and herbicide spraying of the grounds and buildings, and all aspects of weed, insect and pest control, both indoors and out. At different times he has driven dump trucks and operated forklifts, locals and trailer trucks. (tr-ll, 12, Exhibit number 15) In 1971, Mr. Tate was made "lead" over pest control, herbiciding and sanitation. In that capacity he worked directly under a supervisor who gave him instructions as to the work to be performed. He would then take his people and get the work done. Afterwards he would report back on the results. (tr-51, 56, 57, Exhibit 115) He has remained a lead worker since that time; even though the formal title was abolished in 1984, the pay differential remains. (tr-152) The rationale for the higher pay is that leads assign work to crews which vary commonly from two to eight people. Leads order material and perform some, administrative tasks in conjunction with the functions of their job classification. (tr-153) At varying times Mr. Tate has served as lead over one to ten persons. He is currently lead over a crew of six. (tr-13, 14, 36, 49, 266, 267) During the period of the TWA contract, Mr. Tate filled in as acting supervisor when his supervisor was on vacation. (tr-47) In November 1983, EG & G posted a job listing for the position of Supervisor, Roads and Grounds Department. The job posting number 1125 required a high school diploma, five years supervisory experience in the assigned area of responsibility and a State of Florida restricted pesticide license. (Exhibit number 1) Mr. Tate applied for the job. He has a high school education and felt that his long experience in the field and his lead experience qualified him. His supervisor vacating the job also thought Mr. Tate was qualified and would be hired. (tr-60) Mr. Tate was not interviewed for job posting number 1125; nor were the two other internal applicants who were also black. (tr-18, 275, 276) Instead a white male was hired. That individual, Ted Bender, had an associate degree in business administration, some supervisory experience and the required pesticide license. (Exhibit number 13) Mr. Tate was informed of the posting result by a form dated November 8, 1983. The basis for his non-selection was checked, "meeting minimum qualifications", with an asterick and the hand-written notation, "Must have a restricted pesticide license in the State of Florida". No other basis was checked or noted. (exhibit number 2) At the time that he applied for job posting number 1125, Henry Tate had applied for his pesticide license but did not receive it until December 1983. He studied on his own, reading anything he could find on pest control, and took vacation time off to go to Gainesville to take the license exam. His current license expires October 31, 1987. (tr-15, 64, Joint Prehearing Stipulation) Ted Bender resigned in May 1938, and the vacancy was again posted. Job posting number 1331 stated a posting date of May 24, 1984 and a closing date of May 28, 1984. It differed from posting number 1125 in the requirement that the successful applicant get a restricted pesticide license within sixty days of position acceptance. The five years supervisory experience in assigned area of responsibility and high school diploma requirements remained the same. (Exhibit number 5) Henry Tate applied again and was interviewed on May 31, 1984, by Raymond Tuttle, who at that time was Manager of Roads and Grounds. At the end of the interview Mr. Tuttle filled out the company Interviewer's Report form with the following appraisal: Job qualifications are met if lead time is classified as supervisory experience. He has worked with pesticides for approximately 15 years on KSC. He has a working knowledge of pesticide application although he has no formal horticulture training. He has attended several extension service sponsored seminars over the past 15 years that covered pest control problems in our local area. He currently holds a valid state of Florida pesticide license. Mr. Tate seems willing to accept the responsibilities involved but would require some management skills training to aid in the performance of this position. (Exhibit number 15) He rated Mr. Tate "good" on a scale which ranged from "top" to "unsuitable"; he checked "Hold-Further Review" for the recommended action. (tr. 157, 164, Exhibit 15) During the interview he did not tell Mr. Tate there was a problem with his supervisory experience. (tr-23, 183) Raymond Tuttle also interviewed another internal candidate, William Deffendall. He noted on the Interviewer's Report that this candidate did not meet minimum qualifications. (Exhibit 14) After the interviews, Raymond Tuttle went to see Nancy King, who at that time was Supervisor of Employment at EG & G. He asked her whether lead time could be considered as supervisory experience and she did not have an answer. They both looked at the files and could not find anyone who had supervisory background or a restricted pesticide license. At that point they discussed advertising for external candidates and drafted the advertisement. (tr-185, 186, 205, 207, 208) Sometime later, after the first week in June, Nancy Ring asked Mr. Erikson in employment relations whether lead time could be used to meet the supervision requirement. He also had to check; and when he got back to Ms. King a few days later the answer was that EG & G had not used lead time in lieu of supervisory experience. (tr-232, 233, 234) Meanwhile, on June 4, 1984, Mr. Tate was given his posting result form: "You were not selected for this position due to:" *Other ". The handwritten explanation of "other" was "Other candidates are being considered." (Exhibit number 16) At that time there were no other candidates available to be considered as Messers. Tate and Deffendall were the only internal applicants; no candidates with applications on file met the minimum qualifications, and the advertisement for external candidates didn't run until June 12, 1984. (tr-191, 211) The advertisement that ran from June 12-June 17, 1984, differed materially from both job posting number 1331 and the position description for Supervisor, Roads and Grounds that was in effect at that time. The newspaper notice required not a high school degree, but a "B.S. in Agriculture", and 3-5 years experience in horticulture, entomology and supervision. The formal education requirement was therefore increased and the experience requirement was reduced from 5 years to "3-5 years". (Exhibit number 22) Ms. King admitted that the advertisement was not a formal upgrading of the job. (tr-237) More significantly, Raymond Tuttle admitted that they were not looking for someone with a Bachelor's degree but rather increased the requirements to keep out a flood of candidates. (tr-190) According to Ms. King, the company has a policy of substituting experience for educational requirements and the B.S. degree would not have excluded Mr. Tate. However, he was not told of this and there was no way that an individual reading the advertisement could surmise that. (tr-214, 238, 239) Four candidates responded to the advertisement and were interviewed; all were white. (tr-203) The first choice among those candidates was Richard Van Epp, rated "high" by Raymond Tuttle. Mr. Van Epp's application reveals solid experience in landscape work, including supervision, but nothing specific in entomology, a deficiency also noted on Raymond Tuttle's Interviewer's Report. (Exhibit number 17) Richard Van Epp was offered the job but turned it down. (tr-172) The second-choice candidate, Larry Gast, was hired effective July 24, 1984, with a salary offer of $13.50 per hour in a salary range of $9.94 (minimum), $12.64 (mid) and $15.34 (maximum). (Exhibit number 5) Mr. Gast was rated "high" by Raymond Tuttle with a notation on the Interviewer's Report that he met all requirements of this position. Mr. Gast's application reveals a B.S. degree from the University of Florida in 1980, with his major field in entomology. Prior to college he was in high school. The only job experiences listed on his resume and application are lab technician with the U.S. Department of Agriculture in Gainesville, from 11/79 to 3/81; and from 4/81- 6/84, production supervisor/entomologist with the U.S. Sugar Corporation in Clewiston, Florida. (Exhibit number 18) At the time that he was hired by EG & G Larry Gast had approximately three years and two months experience supervising others in a related field. This falls within the minimum required by the newspaper advertisement but falls short of the five years required by the job posting and position description. (Exhibit number 5) On July 23, 1584, Henry Tate was sent another posting result form, this time checked "Another candidate was selected." (Exhibit number 20) He was called into Mr. Tuttle's office and was told that a new supervisor was hired. He was told that pesticides were no problem, herbicides were no problem, but that Mr. Tuttle was "not comfortable" with his background in horticulture. Mr. Tuttle also told him that something might come along later. Mr. Tate replied that he had been in roads and grounds for almost 20 years and how much later was he supposed to wait. (tr-274) Henry Tate was never told that there was any problem with his lack of supervisory experience until the fact finding conference held before an investigator from the Florida Commission on Human Relations. (tr-32, 253, 273) Sometime after the fact finding conference, Earle Patrick, who was then EG&G's Equal Employment Opportunity, Supervisor, called Mr. Tate and asked why he had not applied for another Supervisor job posting. This posting also required supervisory experience and Mr. Tate quickly informed him that he had no more experience than when he applied for the first job. (tr-272) Earle Patrick's convoluted testimony explaining why the phone call was made ended with this exchange: Q. [by Mr. Betancourt] Well, did you think he was qualified for this position and had a shot at it? A. No, I didn't. Q. So you were calling him about a job he couldn't possibly get? A. That's right. (tr-261) When Larry Gast was initially hired he was Supervisor of Roads and Grounds in charge of grounds maintenance and pest control. He supervised approximately 29 individuals and had three leads. There was another Supervisor of Roads and Grounds in charge of road maintenance and sanitation services. The Roads and Grounds Department was reorganized in early 1985 to create three supervisors. Larry Gast became responsible for the bridgetenders and pest control and his staff was reduced to fifteen individuals, including one lead, Henry Tate. Nine of the staff are bridgetenders who never leave the bridge and do not require a lead. The remaining workers can be anywhere in an area 28 miles long and 14 miles wide. As lead, in the words of Larry Gast, Henry Tate is the "eyes in the field" for those workers. This organizational structure still exists. (tr-121, 123, 266, 267, 269, Exhibit number 11) The reorganization brought Larry Gast's position closer into line with the industry standard described by EG & G's Manager of Personnel Management, Stephen Mansfield. That standard says that supervisors should be able to handle six to eight people; anything more tends to stretch the supervisor thin; anything less would suggest that you may not need a supervisor. (tr-151,152) With 29 persons, Larry Gast concedes he was stretched very thin. (tr-270) Henry Tate was highly qualified for the position of Supervisor of Roads and Grounds, job posting number 1331. While EG & G had never counted lead time for supervisory experience in the past, the evidence strongly suggests that the issue simply never arose in the past. Various individuals in the employment office couldn't immediately answer when asked if lead time could be considered. Most supervisor positions do not require previous supervisory experience. (tr-136) At one point during another reorganization, approximately 16 leads were reclassified as supervisors. (tr-153, 156) The substantial weight of evidence supports a finding that EG &G did not consider Henry Tate unqualified: For job posting number 1125, he was told only that he lacked the restrictive pesticide license and he was not interviewed. He then got the required license. He was interviewed for job posting number 1331 and was not informed that there was a problem with his failure to meet minimum qualifications until well after the position was filled and the discrimination issue was raised. Neither job posting result forms so informed him, despite the fact that the form includes a line to be checked with regard to meeting minimum qualifications. Raymond Tuttle rated Tate a "good" candidate and put his application "on hold", both of which are inconsistent with a belief that the individual is unqualified. Earle Patrick's intent in calling Henry Tate about the new supervisory position could hardly be so perverse as he has contrived in his testimony. EG & G cannot legitimately claim that Mr. Tate's lack of supervisory experience was the basis for their rejection of his request for promotion. They commenced the solicitation of outside candidates well before the answer on lead time came back. (tr-210, 211, 233)`' While Henry Tate may have benefitted from some training to acquire polish as a supervisor, training is provided routinely by EG & G for all new, as well as old supervisors. (tr-244) The company espouses a policy of promoting from within.
The Issue Whether the Respondent committed the offenses set forth in the administrative complaint filed in this case and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Michael Rada was a certified general contractor, the qualifying agent for A-Team Remodeling and Design, Inc. and held license number CG C026705 of the Florida Construction Industry Licensing Board. On or around December 10, 1987, Mrs. Katherine Hill contracted with A- Team Plumbing, Inc. to renovate a bathroom in her home. A-Team Plumbing, Inc. is an entity separate and distinct from A-Team Remodeling and Design, Inc. and Mr. Rada was not associated with A-Team Plumbing, Inc. Following A-Team Plumbing, Inc.'s failure to complete the job, Mr. Rada, on behalf of A-Team Remodeling and Design, Inc. agreed with Mrs. Hill to re-do the job. Mr. Rada, as qualifying agent for A-Team Remodeling and Design, Inc., applied to the City of Plantation for the building permit on January 11, 1988, and it was issued on February 13, 1988. At the instruction of the City of Plantation, the job was gutted, and Mr. Rada began his work sometime in March, 1988. The job should have been completed in two to three weeks, but was not completed until May 6, 1988. During construction, Mr. Rada's work was erratic and at times dilatory. On several occasions, he made appointments to work on the job, necessitating Mrs. Hill's absence from her employment, and, then, he would not keep the appointments or even contact Mrs. Hill about his failure to report. In addition to having failed to complete the job in a timely manner, the proof demonstrated that when completed the work failed to conform to that standard existent in the community for similar work. Even after the final inspection, a hole remained in an adjoining closet wall, the base boards were not flush with the walls and "gop" hung down in one corner of the room. Mrs. Hill refused to pay for the job because of her dissatisfaction. As general contractor, Mr. Rada assumed responsibility for the completion of the job at the time of his initial visit to Mrs. Hill and his application for the building permit. By failing to complete the job in a workmanlike and timely manner, Mr. Rada's performance was incompetent and exemplified misconduct in the practice of contracting.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on Respondent an administrative fine of $750. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of July 1989. JANE C. HAYMAN 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 28th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-187 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Subordinate to the result reached. Addressed in paragraph 2. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached 2. Subordinate to the result reached. In part, subordinate to the result reached; in part, addressed in paragraph 3. Addressed in paragraph 3. Subordinate to the result reached. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraphs 3 and 4. In part, addressed in paragraphs 4 and 5; in part, subordinate to the result; in part, not supported by competent and substantial evidence. In part, subordinate to the result reached; in part, addressed in paragraphs 4 and 5. In part, subordinate to the result reached; in part addressed in paragraph 2. Subordinate to the result reached. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Michael Rada, pro se 4576 Northwest 16th Terrace Tamarac Lakes, Florida 33304 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Petitioner has been employed with the Florida Department of Transportation since 1971. He is a graduate of the University of West Florida, with a degree in business management. Petitioner is 38 years old, with a physical disability which limits his use of his left hand and arm, and his left leg is shorter than his right. In 1979, Petitioner was employed by Respondent in its right-of-way section, as a Right-of-Way Agent III. In that position, he was responsible for the coordination of the Acquisition, Relocation and Property Management sections of Respondent's District III. One of Petitioner's subordinates was H. E. Walls, who was in charge of the Acquisition section. Petitioner's immediate supervisor was J. F. Culpepper, Assistant Right-of-Way Administrator. In April, 1980, a new Right-of-Way Administrator, J. A. Alfes, was assigned to District III. In 1980, and again in 1981, Petitioner filed charges of discrimination against Respondent with the Florida Commission on Human Relations premised upon Petitioner's aforementioned disability. The 1980 charge was resolved through the entry of a settlement agreement. The charge filed in 1981 was premised upon the same disability, but that charge was ultimately dismissed by the Florida Commission on Human Relations. In January, 1981, a hearing was held in Tallahassee, Florida, on one of the charges of discrimination filed by Petitioner. On the day following that hearing, Petitioner was called into Mr. Alfes' office in Chipley, Florida, and was told that the hearing held in Tallahassee had been several hours of "horse shit." On May 18, 1981, Mr. Alfes advised Petitioner of an impending reorganization of the section in which Petitioner was employed. Subsequently, on June 17, 1981, Mr. Alfes told Petitioner that there would be "consequences" as a result of Petitioner's having filed complaints with the Florida Commission on Human Relations. In 1981 a reorganization of functions occurred in all six districts statewide of DOT. This reorganization eliminated one classification of position, Right-of-Way Agent III, which Petitioner had held in District III, and elevated the positions at the head of Acquisition and Relocation sections to the administrator level. At the time this reorganization occurred, Petitioner, as previously mentioned, was a Right-of-Way Agent III, and Herbert Walls headed the Acquisition section. Mr. Alfes, Petitioner's immediate superior, recommended that Petitioner be placed in charge of Relocation, and that Mr. Walls, who had been working in Acquisition, be placed in charge of the Acquisition section in light of his experience in that area since 1978. J. F. Culpepper, who occupied the position on DOT's organization chart to whom the Acquisition section, Relocation section, and Property Management section would report, recommended that the Petitioner be placed in charge of the Acquisition section, based upon his belief that Petitioner was better qualified by reason of his real estate training and college degree. Mr. Walls had only a high school diploma. During the period of his employment with DOT, Petitioner had not handled any complete right-of-way acquisition matters, and had never negotiated for DOT in the acquisition of any right-of-way parcels. Petitioner had, however, attended two relocation seminars while employed by DOT. Mr. Walls had been continually engaged in acquisition work for DOT since at least 1978. DOT's District Engineer, Alan Potter, was the DOT employee ultimately responsible for selecting the heads of the Acquisition and Relocation sections. Mr. Potter concurred with the recommendation that Petitioner be placed in charge of the Relocation section, based upon his belief that it was the most important job involved in right-of-way acquisition, and that it required a very thorough and cautious person. Based upon Mr. Potter's evaluation of Petitioner as possessed of high ability, and being very mature and compassionate, Petitioner was placed in charge of the Relocation section. At the time Petitioner was named as head of Relocation and Mr. Walls was placed as head of Acquisition, the two positions were both classified as Right-of-Way Specialist II's, pay grade 22. Later both were reclassified as Right-of-Way Administrator I's, at pay grade 23. The record in this cause establishes that neither position was more prestigious" than the other, or that either position placed the individual holding it in a more favorable posture for promotion or advancement. Subsequently, in the summer of 1981, the reorganization of DOT was completed, with Mr. Walls having been appointed head of Acquisition, with approximately six subordinates. Petitioner became responsible for Relocation, and shared the supervision of a clerical employee with the head of Property Management. After reorganization, Mr. Alfes relocated Petitioner's office in another building 100 feet away from the main office. Petitioner's office was initially located in a passageway and, as a result, Petitioner was required several times a day to make trips to the main building to obtain files necessary to complete his work. In August of 1983, prior to final hearing in this cause, Mr. Alfes retired, and Petitioner's office was relocated in a more spacious office close to the Acquisition section.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the petition for relief, and denying the relief requested therein. DONE AND ENTERED this 23rd of May, 1984, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1984. COPIES FURNISHED: BEN R. PATTERSON, ESQUIRE POST OFFICE BOX 4289 TALLAHASSEE, FLORIDA 32315 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 JEAN OWEN, ESQUIRE ASSISTANT GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS WOODCREST OFFICE CENTER 325 JOHN KNOX ROAD SUITE 240, BUILDING F TALLAHASSEE, FLORIDA 32303 DONALD A. GRIFFIN, EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32303
The Issue Whether the Petitioner was discriminated against on the basis of his race, color, or national origin in violation of Section 760.10, Florida Statutes (2000).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Bamawo is a black male from Nigeria. Mr. Bamawo began working for the Department at the Dade Correctional Institution ("DCI") as a correctional officer in March 1993. At the times material to this proceeding, Mr. Bamawo was a career service employee whose duties included the care, custody, and control of inmates of the institution. Mr. Bamawo normally worked the third shift, from 2:00 p.m. to 10:00 p.m. During most of the time Mr. Bamawo was employed at DCI, Captain Scott Pardue, as the third shift supervisor, directly supervised Mr. Bamawo. According to Mr. Bamawo, he and Captain Pardue did not "see eye-to-eye" even though Mr. Bamawo tried to get along with Captain Pardue. The first incident that Mr. Bamawo considers discriminatory occurred in 1995, when Captain Pardue formally disciplined Mr. Bamawo for writing graffiti.3 Mr. Bamawo denies that he wrote the graffiti, and he made a verbal complaint to a superior officer identified as "Colonel Thompson." Mr. Bamawo also asserts that, in 1995, an Anglo corrections officer was promoted to sergeant, and Mr. Bamawo was required to follow his orders. Mr. Bamawo asserted that he made many complaints to Captain Pardue about this sergeant but that Captain Pardue did nothing. Also in 1995, Captain Pardue made two remarks to Mr. Bamawo that Mr. Bamawo considered offensive: On one occasion, Captain Pardue apparently was looking at a picture of an African woman in a National Geographic magazine when he asked Mr. Bamawo if "you people live in houses or sleep in trees"; Mr. Bamawo believed Captain Pardue was making a derogatory comment about Mr. Bamawo's being a native of Africa. Another occasion was at Thanksgiving, when Mr. Bamawo brought a can of corn to a covered-dish lunch; Mr. Bamawo opened the can of corn and set it on the table with the other food, and Captain Pardue asked if this was the way people in Africa ate corn. These remarks caused Mr. Bamawo to be humiliated and embarrassed in front of his co-workers. Mr. Bamawo asserts that Captain Pardue refused to approve his requests for time off the job but would approve time off for Anglo officers. When Captain Pardue refused Mr. Bamawo's requests for time off, Mr. Bamawo asked other captains for approval, and, when they refused to approve his requests for time off, Mr. Bamawo called in sick. Mr. Bamawo recalls that, on one occasion, he was forced to miss an appointment because Captain Pardue ordered him to work overtime. According to Mr. Bamawo, Captain Pardue accused Mr. Bamawo of being a minute late on one occasion and penalized him, although Mr. Bamawo recalls that Captain Pardue did not penalize others for being late. It was Mr. Bamawo's perception while he worked at DCI that, countless times, Captain Pardue changed the work assignments of Anglo officers when they requested a change, but that Captain Pardue never changed Mr. Bamawo's work assignment when he requested a change. Mr. Bamawo believed that he was given the assignments that no one else wanted. On March 21, 2000, Mr. Bamawo was involved in an altercation with Sergeant Frankie Tindall. Mr. Bamawo called Sergeant Tindall "bitch" and threatened to "blow away" Sergeant Tindall when Sergeant Tindall questioned Mr. Bamawo about trash that littered his post.4 On April 23, 2000, Captain Pardue designated Correctional Officer Orol as third-shift supervisor in DCI's north annex "Yard One"; Mr. Bamawo was one of three other correctional officers assigned to Yard One at the time. As designated supervisor, Mr. Orol had the authority to assign tasks to the three other officers. Mr. Bamawo protested Captain Pardue's choice of Mr. Orol because Mr. Orol had been out of the academy only six months; Mr. Bamawo felt that he should have been designated supervisor because he was the senior officer on the shift. Captain Pardue told Mr. Bamawo that he felt more confident with Mr. Orol in the position of supervisor. Mr. Bamawo told Captain Pardue that he was going to file a grievance. At some point during the daylight hours of the third shift on April 23, 2000, Mr. Orol told Mr. Bamawo to complete a check of the perimeter fence, which Mr. Bamawo considered a difficult job to do in the daylight because it was very hot work. Mr. Bamawo refused the order and told Mr. Orol that he would do the fence check when the sun went down. After a time, Mr. Orol called Mr. Bamawo on the radio and told him again to check the perimeter fence; Mr. Bamawo again refused, using a radio shorthand phrase meaning, "Do it yourself." Captain Pardue was monitoring the radio transmission and heard the exchange between Mr. Bamawo and Mr. Orol. Captain Pardue thought that Mr. Bamawo had responded to Mr. Orol in a "nasty" tone of voice, and, fearing that Mr. Bamawo and Mr. Orol might get into a confrontation, Captain Pardue radioed Mr. Bamawo and told him to come to the control room. Captain Pardue took Mr. Bamawo into a copy room and confronted him about his attitude toward Mr. Orol. Mr. Bamawo again complained about Captain Pardue's choice of Mr. Orol as supervisor rather than Mr. Bamawo. During the discussion, Mr. Bamawo became agitated, turned, and walked away from Captain Pardue. Captain Pardue called to him and told him to come back; Mr. Bamawo turned back and approached Captain Pardue with his fists clenched, called Captain Pardue "bitch," and said he would "bust" Captain Pardue.5 At this point, Captain Pardue, fearing for his safety, called Jeffrey Wainwright, who was the acting warden of DCI. After talking with Captain Pardue and Mr. Bamawo, Mr. Wainwright reassigned Mr. Bamawo to the women's facility across the street from DCI. Mr. Bamawo threatened to file a discrimination complaint if Mr. Wainwright did anything to him as a result of the incident with Captain Pardue. Mr. Bamawo was terminated from his employment with the Department on May 4, 2000. Mr. Bamawo appealed his termination to PERC, which found that the Department had just cause to terminate him based on the incidents of March 21 and April 23, 2000. Mr. Bamawo testified that, through the years, Captain Pardue made "countless" derogatory remarks about Mr. Bamawo's race and national origin. At first, according to Mr. Bamawo, he thought that Captain Pardue was joking, but that, eventually, he saw hate behind Captain Pardue's remarks.6 Mr. Bamawo also claims that Captain Pardue gave him bad work assignments; refused to give him days off; and used rookie officers like Mr. Orol to "agitate" him. Mr. Bamawo believes that he was terminated in retaliation for having threatened to file a grievance against Captain Pardue for unprofessional conduct because Captain Pardue designated Mr. Orol as the supervisor on April 23, 2000, and allowed him to give orders to more senior correctional officers. Other than his complaint to "Colonel Thompson" about the graffiti incident in 1995, Mr. Bamawo did not complain during the years he worked at DCI, either verbally or in writing, that Captain Pardue made racist remarks or derogatory remarks about his national origin or that Captain Pardue discriminated against him in any respect. Mr. Bamawo stayed in his job as a correctional officer at DCI because he liked the job, thought everyone was friendly, and liked working with the inmates. He had no problem with anyone on the job except Captain Pardue and Sergeant Tindall.7 Summary The evidence presented by Mr. Bamawo is not sufficient to support a finding that his termination by the Department was motivated by discriminatory intent or retaliatory. Mr. Bamawo failed to present any evidence to support a finding that the Department has ever imposed a lesser penalty on anyone not a black or a person of African origin for having threatened a Department sergeant or captain with violence. Mr. Bamawo has failed to present sufficient evidence to support a finding that his termination was retaliatory because he had not, at the time he was terminated, filed an employment discrimination complaint; rather, Mr. Bamawo had merely threatened Mr. Wainwright that he would file such a complaint if disciplinary action were taken against him for the April 23, 2000, incident involving Captain Pardue. The evidence presented by Mr. Bamawo is not sufficient to support a finding that he was subjected to continual harassment based on his race or national origin such that his ability to function as a correctional officer was impeded. Although Mr. Bamawo, as a black man of African origin, is a member of two protected classes, he did not present evidence sufficient to establish that he was treated differently from other correctional officers with respect to pay, assignments, time off, or any other aspect of his employment with the Department, and he did not present sufficient evidence to support a finding that he was forced to endure an abusive and hostile work environment at DCI. The evidence submitted by Mr. Bamawo is sufficient to establish that, in 1995, Captain Pardue made a remark about Africans sleeping in trees and a remark about the manner in which Africans served canned corn, but, even though Mr. Bamawo was humiliated and embarrassed by these boorish remarks, these two isolated instances of derogatory comments based on race and national origin are not indicative of a pervasively hostile or abusive work environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Oghenerhoro Bamawo. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2003.
The Issue Whether Respondent operated as a contractor under the name of Olen Homes, in violation of Section 489.129(1)(g), Florida Statutes by failing to qualify as a contractor under said name. Whether Respondent failed to pay a subcontractor for services performed in violation of Section 489.129(1)(m), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute administrative complaints pursuant to Chapter 489, 455, and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent Milton W. Olen was a certified residential contractor in the State of Florida, holding license number CR C024221. At all times material hereto, Respondent's licensure was registered with the Construction Industry Licensing Board, as an individual, and the Respondent did not qualify Olen Homes. On or about November 9, 1987, the Respondent's company, Olen Homes, contacted Donald L. Grider of "A Final Touch Cleaning Service" to provide the final cleanup on a home the Respondent was constructing at 1255 Kelso Boulevard, Orange County, Florida. A Final Touch Cleaning Service completed the cleanup on November 30, 1987, and an invoice was mailed to Olen Homes in the amount of $1,014.00, on December 9, 1987. Donald L. Grider mailed a second copy of the invoice to Olen Homes on January 22, 1988. On February 19, 1988, Respondent acknowledged the debt, but stated he was having financial problems. He promised to pay off his bills. Mr. Grider demanded full payment for the job by letter dated August 8, 1988. Mr. Grider received a document from the Respondent on or about August 15, 1988, which Respondent claimed relieved him of responsibility for payment of Mr. Grider's bill. On September 19, 1988, Mr. Grider forwarded documents to the Respondent which indicated the Respondent was responsible for payment. Mr. Grider has not been paid any sum by the Respondent as of April 17, 1990, the date of the formal hearing in this matter. Respondent previously received a letter of guidance from the Board on November 19, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent be found guilty of contracting or acting in the capacity of a contractor, under the name of Olen Homes when his license was registered with the Construction Industry Licensing Board as an individual. Section 489.129(1)(9), Florida Statutes. It is recommended that an administrative fine of $250 be imposed. Respondent be found guilty of misconduct by failing to pay a subcontractor for services rendered under a contract with Respondent. Section 489.129(1)(m), Florida Statutes. It is recommended that an administrative fine of $1500 be imposed. DONE AND RECOMMENDED this 14th day of May, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Adopted in full. Respondent did not file proposed findings. COPIES FURNISHED: G. W. Harrell, Esquire Kenneth D. Easley Department of Professional General Counsel Regulation Department of Professional Northwood Centre Regulation 1940 North Monroe Street Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Suite 60 Tallahassee, FL 32399-0792 Milton W. Olen, Jr. 250 International Parkway, NO. 160 Lake Mary, FL 32746 Steven Michael Labret, Esquire 501 North Magnolia Avenue Suite A Orlando, FL 32801 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202
Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
The Issue Whether the City of Milton failed to accept an employment application from Sydney McCray on the basis of race or national origin, thereby committing an unlawful employment practice.
Findings Of Fact The City is an employer under the Florida Civil Rights Act. Mr. McCray is a male African-American, and he is a member of a protected class. In his complaint, Mr. McCray claims that on April 4, 1994, the City discriminated against him by failing to hire him for the position of laborer (maintenance worker). Specifically, Mr. McCray alleged that in response to a newspaper advertisement for a laborer's position, he and his sister, Alice Larkins, contacted the City Manager's office for the purpose of submitting their employment applications. Both Mr. McCray and Ms. Larkins asserted that they arrived at the office of Mr. Whitson, the City Manager, at the appointed time, and that they waited over an hour to see Mr. Whitson. After waiting an hour, both Mr. McCray and Ms. Larkins left without ever meeting Mr. Whitson. Mr. McCray asserts that Mr. Whitson failed to meet with him or receive his employment application because of his race. The City disputes Mr. McCray's claims for several reasons. First, the City provided evidence to contradict Mr. McCray's position that he first learned of the laborer position through an advertisement. Several city employees testified that the City only advertises skilled positions and that the unskilled positions, such as maintenance positions, are handled through the Public Works Department without advertisement. With regard to the Public Works Department, testimony was also received that indicated the process for receiving applications for laborer positions. In particular, it was stated that applications for laborer positions are processed by the Public Works Department and that once the applicant has been interviewed, all qualified applicants are placed on a list for future vacancies. The record is clear that Mr. McCray never applied for a laborer position through the established procedure. Second, even if the position was advertised as stated by Mr. McCray, the City disputes that Mr. Whitson's office would have ever made an appointment for Mr. McCray. As indicated above, the prospective laborers are processed by the Public Works Department. Mr. Whitson testified that he plays no role in screening laborer applicants and that he is purposefully insulated from the hiring process. Therefore, it makes no sense that his office would have arranged an interview as asserted by Mr. McCray. Third, in addition to Mr. Whitson's lack of involvement in the employment process for prospective laborers, all the testimony received at the hearing supports a finding that Mr. McCray did not have an appointment with the City manager. Specifically, several City employees, including Mr. Whitson's personal secretary, testified that neither Mr. McCray nor his sister ever had an appointment with Mr. Whitson. They also testified that neither person appeared at Mr. Whitson's office on April 4, 1994. When pressed on the date and time of the alleged appointment with Mr. Whitson, Mr. McCray was unable to articulate consistently when the meeting was to take place. Mr. McCray appeared confused and his answers varied from his earlier deposition testimony and the testimony of his sister. Furthermore, based on the records maintained by the City of Milton, Mr. McCray never submitted an application for the position of "Laborer" with the Public Works Department of the City of Milton. Mr. McCray attempts to supplement his claim of discrimination by establishing that the City of Milton has systematically discriminated against him by failing on more than one occasion to hire him. Specifically, Mr. McCray stated that prior to April 4, 1994, he applied for other positions with the City of Milton, and he was denied such positions. In particular, Mr. McCray stated that he applied for the position of mechanic and technician. In both instances raised by Mr. McCray, however, it appears, based on the record, that he either failed to adequately complete his job application or he failed to possess the minimum qualifications for the positions sought. As further evidence supporting his claim, Mr. McCray offered the testimony of his sister, Alicia Larkin. Ms. Larkin testified that she, like her brother, was the subject of discrimination by the City. The undersigned dismissed her testimony as lacking relevancy and more importantly lacking credibility. First, Ms. Larkin has a claim pending against the City alleging similar discriminatory practices and she appears to have a bias against the City. Second, Ms. Larkin's testimony lacked consistency and lacked credibility. No evidence was presented to indicate that the City of Milton discriminated in its employment practices. Furthermore, the City presented testimony that it has and continues to develop fair employment practices relating to minorities. Specifically, the City of Milton, through Mr. Whitson, has met with the NAACP for the purpose of continuing to improve race relations between the City and the African-American community in Milton. In summary, the City has effectively rebutted the allegations raised by Mr. McCray. The City offered a series of witnesses that had personal knowledge of the employment policies and hiring practices of the City and each corroborated the other. Those witnesses collectively support a finding that the City did not discriminate against Mr. McCray.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this claim with prejudice. DONE and ENTERED this 22nd day of April, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997. COPIES FURNISHED: Bruce Committee, Esquire 8870 Thunderbird Drive Pensacola, Florida 32514-5661 Roy V. Andrews, Esquire Post Office Box 586 Milton, Florida 32572 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Petitioner demonstrated that she was terminated from employment by Respondent, Trend Offset Printing Company (Respondent or Trend), as the result of an unlawful employment practice based on her identification with a protected class, or as retaliation for Petitioner’s opposition to an unlawful employment practice.
Findings Of Fact Respondent is, purportedly, a printing company located in Jacksonville, Florida. Specific information as to the company is limited, since the company did not appear at the final hearing. Based on Petitioner’s testimony, it is inferred that Respondent meets the definition of an employer in section 760.02(7), Florida Statutes. On Saturday, September 28, 2019, the printing plant was open, though the office was closed for the weekend. Petitioner was at work that day. On September 28, 2019, Petitioner had some vegetables that she had placed in a personal refrigerator that she kept at work. She intended to take the vegetables to her aunt. Several of the bags in which the vegetables had been placed had broken open. Therefore, after she clocked out of work, Respondent took a box from a trash receptacle located on the plant floor in which to place the vegetables. Unbeknownst to Petitioner, there was a cell phone in the discarded box. She loaded the box, and took it to her aunt’s house. Upon arrival, Petitioner unloaded the box and, at that time, discovered the phone at the bottom. The screen of the phone was cracked and broken. There was no evidence as to how or when the phone was damaged, nor was there any evidence that Petitioner was responsible for the phone’s condition. Petitioner’s aunt recommended that Petitioner discard the damaged phone. Petitioner, wanting to ensure that the phone was returned to its rightful owner, 1 Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla. regardless of its condition, decided to return the phone on Monday, September 30, 2019, when the office would be open. Upon her return to work on Monday, September 30, 2019, Petitioner immediately turned in the phone to her supervisor, and accurately explained the circumstances of how it came into her possession. On October 2, 2019, Petitioner was presented with a letter of termination from Respondent’s Human Resources Manager, which provided that: After reviewing the pertinent evidence on the evening of Sept 28th, 2019, we have determined to terminate your employment with Trend Offset Printing immediately. Any remaining hours worked and any unused vacation hours will be paid out in full on our next payroll cycle, Oct 11th, 2019. Those worked hours and unused vacation hours will be paid as directed via direct deposit or physical check. I've tried to reach out to you several times but unable to leave a message.[2] Please make arrangements with me to pickup any personal belongings that you may [sic]. If we don't hear from you in a reasonable time your personal belongings will be discarded. The evidence in this case establishes that Petitioner did nothing to warrant her termination. It is unreasonable to think that Petitioner would steal a phone, and then return it at the earliest opportunity. She had no desire or use for a cell phone. She did not try to use it. She had no idea to whom it belonged. That the phone ended up in her possession was entirely accidental. Though there was no evidence as to how or why the phone ended up in the box in the trash, the condition of the phone suggests that it may have been discarded by its owner. In any event, the evidence was persuasive that Petitioner did not intentionally take the phone. 2 The difficulty in reaching Petitioner may have been due to the fact that she did not own a cell phone, did not want a cell phone, and, according to both Petitioner and her sister, did not know how to use a cell phone. The letter of termination was vague, unusually and unnecessarily harsh, and not based on fact. Petitioner testified, for good reason, that “they didn’t treat me fair, at all.” However, Petitioner did not testify or present evidence at the hearing that Respondent’s action was based on discrimination due to race, sex, or age, or was the result of retaliation. As will be discussed herein, the failure to prove discrimination or retaliation based on a protected class or opposition to an unlawful act constitutes a failure to meet the jurisdictional element of an unlawful employment practice complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is 3 Petitioner requested, as relief, that she be reinstated to her previous job with Respondent, because she loved working with her co-workers, who she described as family; and that her name be cleared of the unwarranted allegation of theft. Due to the outcome of this proceeding, the undersigned is unable to recommend Petitioner’s reinstatement. However, this Order is intended, and should be treated, as determining that Petitioner engaged in no theft, or any other conduct vis-á-vis the cell phone, that warranted her termination. RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner, Annette Johnson’s Petition for Relief, FCHR No. 202126948. DONE AND ENTERED this 8th day of July, 2021, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Annette Y. Johnson 635 Luna Court Jacksonville, Florida 32205 Trend Offset Printing Company 10301 Busch Drive North Jacksonville, Florida 32218 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue Whether Petitioner was wrongfully terminated from his position as a janitor with Respondent because of his handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Lee, was hired by Respondent in August 1994 as a custodial worker at the Tallahassee Mall in Tallahassee, Florida. As a janitor Petitioner's duties included bending, stooping, and lifting. He was assigned to zone 3 in the Mall. Up until 1996, when Petitioner was injured, Petitioner received good evaluations on his job performance. Indeed Petitioner was very proud of the quality of his work and took special care to do his job well. Sometime prior to May 20, 1996, Petitioner, while at work and in the scope of his employment, stepped on a set of stairs which were not properly attached to a stage in the Tallahassee Mall. The steps slipped causing Petitioner's feet to come out from under him. Petitioner fell flat on his back. As a consequence Petitioner suffered a permanent back injury for which he received workers' compensation. The injury impairs his ability to work and therefore is a handicap. Around May 20, 1996, Petitioner was released by his doctor and was given orders for light duty with no bending, stooping, or heavy lifting. Petitioner gave these orders to his supervisor, Mr. Navin, when he returned to work on May 20, 1996. Respondent had light duty work available which Petitioner was qualified to perform. However, Respondent did not assign Petitioner to light duty work, but changed his work area from zone 3 to zone 1. Zone 1 is located at the front entrance to the mall and requires more work to maintain. Petitioner attempted to perform his duties but could only work for 3 1/2 hours before being overcome by pain from his injury. Petitioner could not work the next four working days because of the aggravation of his injury. On May 28, 1996, after returning to work, Petitioner was again given full duty work. Petitioner attempted to perform his custodial duties for about 2 weeks. However, the pain from his injury was so severe he again requested light duty work. Petitioner's supervisor asked Petitioner to bring him another notice from his doctor. Petitioner's doctor faxed the supervisor a second notice and Petitioner was placed on light duty work. Once Petitioner was placed on light duty work, the mall manager, Mr. Renninger, followed Petitioner around the mall watching him all the time while he worked. On July 8, 1996, prior to the mall opening for business, Petitioner was helping one of the mall store owners with a problem. Such aid was part of Petitioner's job. The mall manager walked up to Petitioner and began to yell at him in a very rude and disrespectful manner. The manager would not listen to Petitioner's explanation of the event. The manager gave Petitioner a written disciplinary notice for his aid to the mall store owner. The manager continued to follow Petitioner around the mall while he worked. Sometime around August 15, 1996, the mall manager advised the mall's employees that they should take their respective vacations prior to October. Petitioner thought it would be a good time for him to take the 4-day vacation time he had accumulated during his employment with the mall. He could use the time to allow his back to heal more. On August 15, 1996, Petitioner requested vacation leave and vacation pay for the period beginning September 3, 1996 and ending September 9, 1996. Initially, the request was denied. Petitioner's supervisor felt he had missed too much work and been late too often. However, Petitioner had only been absent or late in relation to his back injury. Petitioner explained that fact to his supervisor. His supervisor agreed and approved Petitioner's vacation. Petitioner returned to work on August 10, 1996. An argument with the administrative assistant occurred when she refused to recognize that Petitioner was entitled to be paid for his vacation time. She was not going to turn in any time for him so that Petitioner could get paid while on vacation. Getting a paycheck was a serious matter to Petitioner, and Petitioner, understandably, became gruff with the administrative assistant. Petitioner only raised his voice at the administrative assistant. He was not abusive and did not curse at her. In fact, the administrative assistant yelled at Petitioner when he raised the subject of his pay "Now, before you start bitching." Petitioner called the headquarters of Respondent and confirmed he had vacation time and pay accrued. After this incident Petitioner was fired ostensibly for mistreating the administrative assistant. The administrative assistant, who was incorrect, was not terminated. The reason appears to be a pretext. Petitioner's pay was $5.35 per hour and he worked a 40-hour-work-week. After his termination, Petitioner actively sought employment but could not find any until September 1, 1997. At that time he began work for Tallahassee Community College as a custodial worker with light duties at a higher rate of pay. Petitioner's search for work was reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding Respondent guilty of an unlawful employment practice against Petitioner and awarding Petitioner backpay in the amount of $11,770.00. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2000.
The Issue Has Respondent committed an "unlawful employment practice" against Petitioner, pursuant to Chapter 760, Florida Statutes, based upon a Petition for Relief dated October 13, 1997, referred to the Division of Administrative Hearings by the Florida Commission on Human Relations?
Findings Of Fact Respondent stipulated to jurisdiction, and the evidence demonstrates that by number of employees, Respondent is an "employer" as defined in Chapter 760, Florida Statutes. Respondent is a freight company which ships and receives living nursery stock by truck through a depot/warehouse. Petitioner was employed there from 1993 until June 16, 1995. In the course of formal hearing, Petitioner waived his Charge of Discrimination on the basis of his national origin (United States citizen). (TR-116). There is no evidence the Respondent employs anyone other than United States citizens. The remainder of Petitioner's allegations were that Respondent failed to accommodate one or more handicaps and subjected Petitioner to disparate treatment from similarly situated black employees. Petitioner also related a series of remarks and one personnel action that he considered to be harassing and abusive due to his handicaps. The "handicaps" that Petitioner testified to were high blood pressure, an undefined heart condition requiring medication, "bad knees," and problems with his back. At formal hearing, no medical physician or health care professional corroborated the foregoing conditions. However, it is undisputed that on or about January 9, 1995, Petitioner presented a physician's excuse to Respondent's Warehouse Supervisor, Jeff Bradner. That physician's excuse stated that Petitioner could return to work on that date, working 10 hours per day, 5 days per week, doing medium lifting, that is, "lifting 30 pounds and frequently lifting and/or carrying objects weighing 25 pounds." The excuse further stated that Petitioner was to avoid squatting, kneeling, and climbing. Mr. Bradner informed Eddie Payne, Petitioner's immediate supervisor, that the foregoing January 9, 1995, medical restrictions were to be observed for Petitioner. Attached to both Petitioner's initial Charge of Discrimination and his later Petition for Review was another physician's letter dated January 29, 1993. It stated, in pertinent part: [Petitioner], patient of record, suffers from high blood pressure, anxiety, and arterial coronary disease. These conditions are aggravated by the stress caused by problems he has with his teenage son. Also attached was a March 3, 1994, doctor's letter stating that Petitioner had a spine and knee injury. It contains the same restrictions as the January 9, 1995, letter. Because the 1993 and 1994 letters are part of the record herein, (attached to the Charge of Discrimination and Petition for Relief), I have taken official recognition thereof and find that they supplement or explain Petitioner's oral testimony at formal hearing to the effect that Petitioner was suffering from high blood pressure, anxiety, and arterial coronary disease in 1993, and from a knee injury in 1994. However, these letters were not introduced in evidence at formal hearing, and Petitioner did not testify that he ever presented any such written medical confirmations of these conditions to any of Respondent Employer's supervisory personnel. Mr. Payne and Mr. Bradner denied that any oral or written requests for accommodation had been received from Petitioner other than the January 9, 1995, doctor's excuse listing specific restrictions. Contrary to Petitioner's testimony, Mr. Payne denied knowing of Petitioner's heart condition. There also is no corroboration of Petitioner's testimony that he orally requested any accommodation specifically because of his high blood pressure or heart condition at any material time. Furthermore, and most importantly, the 1993 letter places no restrictions on Petitioner in the workplace, and the 1994 letter imposes the same restrictions as the 1995 letter, which is in evidence. The only medical condition any of his co-workers ever heard Petitioner complain about was his "bad knees." Upon the record as a whole, it is inferred that Eddie Payne also knew Petitioner complained of "bad knees." At all times material, both before January 9, 1995, and afterwards, Petitioner worked for Respondent as a "checker." Checkers have the most physically non-taxing job in Respondent's operation. They make sure that "wheelers" or "loaders" place unloaded freight on pallets in the correct location in the warehouse and that "loaders" load the correct freight from the warehouse or warehouse dock into the correct truck. In this capacity, the bulk of Petitioner's work was carrying a clipboard, making notations thereon, and orally directing others where to put boxes. Petitioner testified that due to his blood pressure and back condition, he "needed" to sit down for 15 minutes' rest every 20 minutes after January 9, 1995. The evidence as a whole does not indicate that Petitioner clearly enunciated this "need" to any supervisor. Moreover, the credible evidence supports the inference that no one could work effectively as a checker while taking 15 minute breaks as frequently as every 20 minutes, because each truck needed to be loaded or unloaded as a component, so as to avoid shipping errors. Therefore, substituting other checkers every 20 minutes would have adversely affected Respondent's business and would constitute an unreasonable accommodation for Petitioner and undue hardship for the Employer. Either substituting another checker or waiting on Petitioner to rest every 20 minutes would have been unduly costly, burdensome, or substantially disruptive and would have altered the nature of Respondent's business. Prior to January 9, 1995, Petitioner worked at least a 40-50 hour week and was paid by the number of hours he worked. Due to the nature of Respondent's business and the hours when freight was received, Petitioner's usual hours before January 9, 1995, were from approximately 4:00-4:30 p.m. until 9:30 a.m. (17- 18 hours) three days a week, mostly Monday, Tuesday and Thursday. At all times material, both before and after January 9, 1995, only twenty-five percent as much freight came in on Wednesdays and Fridays as came in on the other three work days of each week. Therefore, all employees were not needed for a 17-18 hour day on those days, and employees had the option of working at whatever was available on those days to "make their hours" for pay purposes. At all times material, on Wednesdays and Fridays, all employees who wanted to work took turns digging weeds out of the cracks in the Respondent's paved parking lot with a claw on a broom handle or the edge of a shovel; picking the weeds up with a shovel; and throwing them away. Sometimes a blower was used. In accord with the January 9, 1995, physician's written restrictions, Eddie Payne accommodated Petitioner by assigning him to work from 10:00 p.m. until 8:00 a.m., so that Petitioner would only be working 10 hours per day. This assignment had Petitioner working the hours during which the employer needed the most men because those were the hours when the workload was the heaviest. Petitioner complained because Mr. Payne would not let him work his 10 hours from 4:30 p.m. to 2:30 a.m., a less busy time, but he complained only because those hours were more convenient for him. Petitioner related that after January 9, 1995, he was made to lift more than 30 pounds of parking lot weeds at a time, with the shovel, after getting on his hands and knees to dig the weeds out, and always in the hot sun, which aggravated his undisclosed heart condition. He also related that he never got to use the blower like other employees. His testimony on this issue is not credible in light of the contrary testimony of all the other witnesses. Even if credible, Petitioner was not forced to do this work. He was permitted to do this "make work" during slow days so that he would earn at least 40 hours per week. Witnesses confirmed that another "make work" project on a single occasion was digging muck out of a ditch. Petitioner testified that he was required to dig more than 30 pounds of muck in each shovelful that he lifted out of the ditch. His description was neither corroborated or refuted, but again, Petitioner was the one who controlled the content of each shovel, and he could have declined to work at that "make work" project. According to Petitioner's time cards, from which information Petitioner received his pay, Petitioner usually worked only 10 hours or less per day after January 9, 1995. Occasionally, he worked more than 10 hours, but less than 11 hours per day. Petitioner and Eddie Payne were fishing buddies outside of work, and on at least one occasion, Eddie Payne treated his subordinates, including Petitioner, to a night-clubbing expedition. Petitioner asserted that on the job, Eddie Payne had used derogatory and profane language to him, on account of his handicaps. Once, when Petitioner wanted to punch-out early, Mr. Payne supposedly said, "Go home if you need to, you crippled old pussy." Once, Mr. Payne allegedly called Petitioner "a crippled old Mother F-----." Mr. Payne denied ever using such language either socially or on the job. Mr. Bradner testified that he had instructed his subordinates against profanity on the job, and related that Mr. Payne had a reputation for not using profanity. No other witness corroborated Petitioner's testimony that any such language had ever been addressed to Petitioner. Petitioner called Matthew Hickox, a co-employee, as a witness. Mr. Hickox related that Petitioner would often "act goofy," by doing a "Quasimodo imitation," twisting his arm, making a face, and dragging one leg behind him. When Petitioner did this, other employees would "make cracks." Petitioner claimed that dragging his leg behind him was evidence of his handicap. Mr. Hickox's opinion was that "disabled don't give you the right to act like a nut and then people not make some comment." Petitioner testified that he had only become entirely disabled since leaving Respondent's employ June 16, 1995. Although Petitioner moved slowly and evidenced pain on rising and sitting, he was able to move around and approach the witness stand at formal hearing. The undersigned observed no twisted arm, facial contortions, or dragging leg. It is inferred from observing the candor and demeanor of all the witnesses, including Petitioner, and from the whole of the evidence, but particularly from Mr. Hickox's testimony, that on such occasions as Petitioner performed his imitation on the job, Mr. Payne or Mr. Bradner may have vehemently ordered Petitioner back to work and warned him to cut out the horseplay. Petitioner claimed to have received only a fifteen-cent per hour raise when other employees received more. According to Petitioner, the other employees, including Mr. Gonzalez, were raised by twenty-five cents per quarter hour for a $1.00 per hour raise. What anyone was being paid before this raise is not in evidence. Since no evidence indicates whether this raise occurred before or after January 9, 1995, when Respondent's management clearly knew of any of Petitioner's restrictions, there was no nexus between the lack of raise and handicap discrimination.2 Petitioner also developed no nexus between this raise and racial discrimination. According to Eddie Payne, Petitioner was a sub-average worker. According to Eddie Payne and Jeff Bradner, they frequently had to instruct Petitioner to resume work. Mr. Bradner related an incident when Petitioner was leaning on a shovel in the parking lot, so Mr. Bradner sarcastically commented, "You're not getting much work done leaning on that shovel," but this motivational comment was not directed at a handicap. No employee testified that any supervisor's instructions to Petitioner, which they observed or overheard, were offensive or otherwise inappropriate. On one occasion, Petitioner was told by Mr. Bradner to stop kicking a "basketball of tape" around; throw it away; and get back to work. No employee other than Petitioner found this instruction offensive. On another occasion, Petitioner was given a written reprimand when a truckload of freight was sent to the wrong location. Petitioner attributed the error to a black "loader" named James Oliver and perceived the reprimand as discriminatory because Mr. Oliver was not reprimanded. Petitioner's superiors reprimanded Petitioner as a formal personnel action instead of Mr. Oliver because they considered Petitioner responsible for the error and resultant costs since Petitioner was in the superior position of checker. Petitioner suffered no loss of pay, hours, or seniority as a result of the reprimand. Petitioner's assertions that he was required to climb tall ladders to change light bulbs in the warehouse, to squat to lift boxes, and to kneel to pull weeds were denied by management witnesses and uncorroborated by Petitioner's witnesses. On one occasion, Petitioner had just come on duty and was having a coke and a cigarette, when Mr. Bradner told him to get to work helping a black loader named "Willie T." unload a truck. On this single occasion, Petitioner may have been asked to lift boxes in excess of 30 pounds, but the boxes also may have weighed as little as 20 pounds. This incident may have occurred before Mr. Bradner knew of Petitioner's medical restrictions on January 9, 1995, but it was probably afterwards. If so, this single incident was contrary to Petitioner's doctor's instructions, but Petitioner admittedly never complained to Mr. Bradner about this one-time incident in terms of "lack of accommodation" for his physical limitations. On the same occasion, Willie T., who already had been loading the truck for three hours, took a coke and cigarette break a half an hour after Petitioner began to help him unload the truck. Willie T. asked Petitioner to join him on his break, which Petitioner did. Mr. Bradner spotted them and instructed Petitioner to return to loading the truck because he felt Petitioner was not entitled to a break after only a half an hour of work, but did feel that Willie T. was entitled to a break after three full hours of work. This was a bona fide business consideration of Respondent. Petitioner failed to establish a nexus of racially discriminatory intent on the basis of this incident. On June 16, 1995, Petitioner was sweeping the warehouse floor, leaving trails of residue behind. Petitioner intended to go back and sweep up the residue, but before he could do so, Mr. Bradner told him that he was leaving trails and that he should do a better job. Petitioner considered this instruction to be demeaning and discriminatory, but he did not reply to Mr. Bradner. Mr. Bradner noted that Petitioner began to do a better job of sweeping, and Mr. Bradner left the area. Petitioner perceived that his co-workers were laughing at the incident and became upset. Petitioner finished sweeping one section of the warehouse and asked Eddie Payne if he could clock-out. He assumed that Eddie Payne knew he was upset because of Mr. Bradner's comment but did not tell him so. Eddie Payne authorized Petitioner to clock-out. Petitioner clocked-out and never returned to work for Respondent
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Human Relations Commission enter a Final Order denying and dismissing the Petition for Relief on all issues. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
