The Issue The issue for determination is whether Respondent committed an unlawful employment practice against Petitioner on the basis of sexual harassment and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Benjamin Bullard's Petition for Relief. S DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2012. COPIES FURNISHED: Benjamin Bullard 12211 Park Drive Hollywood, Florida 33026 Spencer D. West, Esquire Stephen N. Montalto, Esquire Mitchell & West, LLC 3191 Coral Way, Suite 406 Miami, Florida 33145 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in these consolidated cases was issued on November 17, 2010, setting the hearing for January 24 and 25, 2011, in Tallahassee, Florida. The hearing was scheduled to commence at 9:30 a.m. on January 24, 2011. Also on November 17, 2010, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On January 19, 2011, Petitioner filed a letter at the Division of Administrative Hearings requesting that the hearing be delayed until after February 18, 2011, due to various appointments she had made that conflicted with the hearing dates. This letter indicated that Petitioner was aware of the scheduled hearing dates. By order dated January 20, 2011, the undersigned declined Petitioner's request for failure to state grounds sufficient to warrant a continuance over the objection of Respondent. Several attempts to reach Petitioner by telephone were unavailing. At 9:30 a.m. on January 24, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:45 a.m. Counsel for Respondent entered her appearance and requested the entry of a recommended order of dismissal. The hearing was then adjourned. As of the date of this recommended order, Petitioner has not contacted the Division of Administrative Hearings, in writing or by telephone, to explain her failure to appear at the hearing.
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 Petitions for Relief in these consolidated cases. DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2011. COPIES FURNISHED: Kimberly D. Dotson 825 Briandav Street Tallahassee, Florida 32305 Kim M. Fluharty-Denson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mary Kowalski Department of Financial Services Human Resource 200 East Gaines Street, Suite 112 Tallahassee, Florida 32399 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact On May 18, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Petitioner and his counsel at the addresses listed in the Petition for Relief and accompanying information. Petitoner's attorney appeared at the hearing. However, even though Petitioner received adequate notice of the hearing in this matter, the Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Respondent was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned or his attorney that he would not be able to appear at the formal hearing. Petitioner was allowed fifteen minutes to appear at the hearing. As a consequence of Petitoner's failure to appear, no evidence was presented to support Petitioner's case. Specifically, no evidence of discrimination based on handicap or race was forthcoming. Therefore, Petitioner's attorney was advised that the Petition for Relief would be dismissed and a Recommended Order entered recommending the Commission do likewise.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and RECOMMENDED this 14th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Robert Allen, Esquire 322 West Cervantes Street P.O. Box 12322 Pensacola, Florida 32581 Joseph L. Hammons, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Margaret A. Jones Agency Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The De Soto 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 September, 1992.
Findings Of Fact On or about September 25, 2010, Petitioner filed a Charge of Discrimination against Respondent with the FCHR. Pursuant to the FCHR's procedure, an investigation of the matter was completed, that resulted in a Notice of Determination: No Cause. Essentially, the FCHR found that based upon the allegations raised by Petitioner there was no reasonable cause to believe an unlawful employment practice occurred. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination, and to seek relief against Respondent for the alleged violation. The FCHR forwarded the matter to DOAH for formal proceedings. DOAH issued a Notice of Hearing on April 15, 2011, that was provided to all parties at their addresses of record. It is presumed, the parties received notice of the hearing date, time, and location. In fact, counsel for both parties did appear. Prior to the hearing, the parties engaged in discovery and Petitioner participated in a deposition on or about May 24, 2011. It is undisputed that Petitioner knew or should have known of the hearing date, time, and place.
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 Petitioner's claim of discrimination. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. John Gadd, Esquire The Law Offices of W. John Gadd 2727 Ulmerton Road, Suite 250 Clearwater, Florida 33762 Glenn Michael Rissman, Esquire Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterman, PA 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Olin Corporation has an explosives manufacturing plant at St. Marks, Florida, known as Olin St. Marks Operations, employing 425-500 employees and is an "employer" as that term is defined in Section 760.02(6), Florida Statutes. Production and maintenance employees are represented by the United Steelworkers of America, AFL-CIO-CLC Local 8018 (Union). At all times material to this case there was in effect a collective bargaining agreement (Agreement) between Respondent and the Union. The Agreement contains provisions which: - reserves to management the right "to make reasonable rules for the maintenance of discipline and protection of life and property and to suspend, discharge, or otherwise discipline employees for cause" (Article 4, Section 4.2, page 3); contain special procedures regarding discharge of employees (Sections 8.5 and 8.6, page 8); set forth hours of work and rates of pay, including overtime pay (Article 14, pp. 19-20; Article 15, pp. 20-22; Article 16, pp. 22-23); provides for a one-half hour unpaid lunch period (Article 14, Section 14.2, p. 19). a. The Petitioner, John W. Lockhart, Jr., a Warehouse Helper, was initially employed by Olin on April 8, 1976 and discharged by Respondent August 15, 1989. His hourly rate of pay at the time of his discharge was $8.94. During times material to this case, Petitioner was regularly assigned to work the day shift - 8:00 a.m. to 4:30 p.m. The warehouse normally operates on day shift only. A production supervisor is present on all shifts and is responsible for the warehouse on shifts other than the day shift. At all times material to this case, Lynn E. Black was Personnel Supervisor for Olin's St. Marks plant. She held the position for 10 to 12 years. Black conducted the hearing and investigation which resulted in Petitioner's discharge, and prepared the letter notifying him of his discharge. Bruce C. Longman was, at all times material to this case, Manager of Administration at Olin's St. Marks plant. He has 19 years' experience with Olin and 24 years' experience in total in the field of human resources and labor relations. Longman participated in Petitioner's pre-discharge hearing and prepared the answer to the grievance filed on Petitioner's behalf. a. At all times material to this matter, Respondent had in effect Plant Rules which are divided into three categories, with Category 1 being the most serious in that violations of Category 1 rules subject an employee to termination for a single offense. Sleeping is a Category 1 offense. The rules are widely publicized. The sleeping rule has been in effect since 1969. Company guidelines are utilized in administration of the sleeping rule. Factors considered, inter alia, include whether the employee is in his work area, if he made a bed, if he had a pillow, if he was difficult to awaken, if the area was lighted, whether the employee is sitting up or lying down, and his or her intent. Mitigating factors considered include proven illness and excessive recent overtime. On Wednesday July 26, 1989, Petitioner's supervisor advised him that certain work had to be completed prior to the beginning of the day shift on July 27,1989 and further advised that Petitioner could perform the work on overtime at his discretion. The work was expected to take two hours to complete. Petitioner returned to the plant at midnight and performed the work. Petitioner received pay at 1.5 times his base rate or $13.41 per hour for the hours in the plant after midnight. At approximately 3:30 a.m. on July 27, 1989 Petitioner proceeded to a secluded area of the warehouse and slept until about 5:40 a.m., when he was awakened by two supervisors and a Fire/Security Technician. Petitioner slept on a pile of flattened cardboard boxes, with a pillow made of foam rubber wrapped in rags. His feet were propped on two fiber packs. His shoes were off and his safety clothing removed from his upper body. His eyes were shut and he was snoring. Petitioner was suspended pending a hearing in accordance with the Agreement which was held on July 28, 1989. Petitioner was aware (a) of the rules against sleeping, Rule I-4; (b) that the maximum penalty for deliberate sleeping was termination, absent mitigating circumstances; and, (c) the company's enforcement of the rule as a result of his participation three months earlier in the investigation of two "sleeping cases" which culminated in the employees being discharged. Petitioner intentionally slept on the job and stated that he would do so again under the same circumstances. Petitioner believes that any employee should be allowed to sleep on the job when that employee's work is finished. Petitioner consulted a sleep disorder center in early June 1990, approximately ten months after his discharge, that issued a report on June 15, 1990 diagnosing his condition as "severe obstructive sleep apnea" that resulted in "profound excessive daytime sleepiness". However, there was no evidence of Petitioner having a problem with sleepiness at any time while on the job other than this occasion. When Petitioner became sleepy he did not seek any medical assistance, which was available to him at the time, or any other assistance, nor did he "clock-out" and go home. Instead, he "made a bed" and intentionally went to sleep and continued to draw pay at the overtime rate. There was insufficient evidence to show that there were any mitigating factors to lessen the penalty of termination in this case. Since there were no mitigating circumstance to lessen the penalty for violation of Rule I-4, sleeping on the job, in this case, Petitioner's employment with Olin was terminated on August 15, 1989 Although sleeping is allowed on break periods and during lunch, Olin does not condone sleeping on the job. There was insufficient evidence to show that employees were confused in regard to when and where sleeping was allowed. The rule against sleeping on the job has been uniformly applied in that employees who violate the rule are terminated unless there are mitigating circumstances such as in the Annie Norton case. There was insufficient evidence to show that employees were confused in regard to the application of the sleeping rule. Petitioner filed a previous charge of discrimination against Olin with the Commission (Charge No. 89-4102) which was resolved by settlement agreement and dismissed by the Commission. Petitioner alleged that he had filed one other previous charge of discrimination against Olin with the Commission but no evidence was adduced regarding this charge. There was insufficient evidence to show that Petitioner or any other employee of Olin suffered any retaliation for filing discrimination charges against Olin with the Commission. There was insufficient evidence to show that Petitioner's discharge was in retaliation for filing previous discrimination charges against Olin with the Commission or that there was any causal connection between the Petitioner's filing of previous charges of discrimination against Olin with the Commission and his discharge or for any of his union activities in investigating grievances or complaints. Petitioner received no discipline between the filing of the previous charge (Charge No. 89-4102) with the Commission and his discharge on August 15, 1989. Olin's no sleeping rule is reasonably related to the operation of its business, is common to all Olin plants, and is common throughout the industry.
Recommendation Based upon the foregoing Findings of Fact, the Conclusion of Law, the evidence of record, the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the Florida Commission on Human Relations enter a final order denying relief to the Petitioner, John Lockhart, and dismissing the Petition for Relief. DONE and ORDERED this 15th day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE 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 15th day of October, 1990. APPENDIX TO RECOMMEDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. - 3. Adopted in Finding of Fact 1, 3, and 4 respectively. 4. - 7. Restatement of testimony and not a finding of fact but see Findings of Fact 13, 14 and 20. Restatement of testimony and not a finding of fact, however, not material. Adopted in Findings of Fact 13 and 17. Restatement of testimony and not a finding of fact but see Finding of Fact 19. - 12. Rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 17. Restatement of testimony and not a finding of fact see Findings of Fact 22 and 23. Not material. Adopted in Finding of Fact 15. Not material. Adopted in Findings of Fact 8. Restatement of testimony and not a finding of fact but see Finding of Fact 7. Specific Rulings of Proposed Findings of Fact Submitted by Respondent 1. - 13. Adopted in Findings of Fact 1-13 respectively. 14. Adopted in Finding of Fact 13. 15. - 17. Adopted in Finding of Fact 14. 18. Restatement of testimony and not a finding of but see Finding of Fact 14. 19. Adopted in Finding of Fact 18. 20. Adopted in Findings of Fact 22 and 23. 21. - 22. Adopted in Findings of Fact 18 and 16. 23. Adopted in Findings of Fact 7 and 11. 24. Adopted in Findings of Fact 22 and 23. 25. Not material. 26. - 27. Covered in preliminary statement. 28. Adopted in Findings of Fact 22 and 23. 29. Not material. 30. Adopted in Findings of Fact 22 and 23. 31. - 39. Adopted in Findings of Fact 15, 20, 19, 19, 20, 13, 13 and 20, respectively. Not material. - 42. Adopted in Findings of Fact 24 and 25, respectively. COPIES FURNISHED: Curley R. Doltie, Esquire 118 North Gadsden Street Post Office Box 1325 Tallahassee, FL 32302 Dorothy J. Kelley, Esquire Labor and Employment law Olin Corporation 427 N. Shamrock East Alton, IL 62024 Dana Baird, Acting Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing and apparent intent to withdraw her request for an administrative hearing.
Findings Of Fact The Notice of Hearing in this case was issued on May 22, 2012, setting the hearing for July 17, 2012, at 9:30 a.m., by video teleconference at sites in Tallahassee and Fort Myers, Florida. Also, on May 22, 2012, an Order of Pre-hearing Instructions was entered. Respondent timely complied with the pre-hearing requirements by filing a witness list and exhibit list and tendering its proposed exhibits, all of which were served on Petitioner. Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits. Petitioner spoke by telephone with a secretary at DOAH on July 16, 2012, the day before the scheduled hearing, and indicated that she had sent a letter withdrawing her hearing request; however, to this day, no such letter has been received. Petitioner was advised to send another written statement confirming that she was withdrawing her hearing request, and she indicated she would do so by facsimile that day. However, no such facsimile was received by DOAH. After hours on July 16, 2012, a typed, but unsigned letter, was sent by facsimile to counsel for Respondent. The letter appears to have been sent by Petitioner and states that she wished to cancel the hearing scheduled for July 17, 2012. Petitioner did not make an appearance at the scheduled hearing at the start time or within 25 minutes after the scheduled start time. While it would have been better practice for Petitioner to file a written, signed statement with DOAH to withdraw her hearing request, it is found that Petitioner intended to withdraw her hearing request, and that is why Petitioner did not appear at the scheduled hearing. Petitioner should have made her intentions clear sufficiently in advance of the scheduled hearing to avoid the inconvenience and expense of convening a hearing by video teleconference and assembling all of those who were prepared to go forward.
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 in this case. DONE AND ENTERED this 3rd day of August, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Todd Evan Studley, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 Natalie Goldenberg Post Office Box 7388 Fort Myers, Florida 33911
The Issue The issue in the case is whether the Respondent unlawfully discriminated against the Petitioner on the basis of age.
Findings Of Fact The Respondent initially employed the Petitioner in the maintenance department in January 1996. There is no evidence that the Petitioner’s employment in the maintenance department was unsatisfactory. In May 1996, the Petitioner transferred into the production department. The Petitioner’s supervisor in the production department described his performance as somewhat unsatisfactory but made no written report of any problems. On September 17, 1996, the Petitioner transferred into the laboratory and began work as a lab technician. The transfer in the lab technician position was at the Petitioner’s request. On October 21, 1996, Richard Barnes, an employee of the Respondent, assumed supervisory responsibility for the laboratory operation. On November 8, 1996, Mr. Barnes met with the Petitioner to discuss the job. At the time of the November 8 discussion, the Petitioner had been working in the lab for almost eight weeks. The Respondent’s lab employees are responsible for assuring that the materials produced by the plant comply with the "release specifications" set by the buyers of the materials. During the discussion, the Petitioner was asked about specific tasks assigned to lab employees. His response was incorrect and indicated a lack of familiarity with lab procedures. The Petitioner was informed that his job performance was unsatisfactory. Over the next week, Mr. Barnes continued to monitor the situation, and subsequently decided to terminate the Petitioner’s employment for unsatisfactory performance. On November 18, 1996, the Respondent terminated the Petitioner’s employment on the grounds of unsatisfactory work performance. At the time of the termination, the Petitioner was 56 years old. During the time of the Petitioner’s transfer into, and termination from, the lab, the Respondent was in the process of expanding the number of lab employees from six to ten employees. Shortly before terminating the Petitioner’s employment, the Respondent transferred another employee, of similar age as the Petitioner, into the lab. Shortly after the Petitioner’s termination, Respondent transferred another employee, younger than the Respondent, to the lab. The transfer of the younger employee was being processed prior to the termination of the Petitioner’s employment. There is no evidence that a transfer of the younger employee was related to the termination of the Petitioner’s employment. The evidence fails to establish that termination of the Petitioner’s employment was based on his age. There is no evidence that the Respondent discriminated against the Petitioner on the basis of age. There is no evidence that the Petitioner suffered any economic injury based on the termination. He became employed shortly after the termination at a salary higher than the Respondent was paying him. Subsequent employment has included additional increases in compensation. The Petitioner asserts that had he remained employed by the Respondent, his compensation would have included promotions and increased compensation. The evidence fails to establish that the Petitioner would have received further promotions from the Respondent.
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 filed by Terry B. Hillman. DONE AND ENTERED this 28th day of November, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 28th day of November, 2001. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Terry B. Hillman 2048 Laurel Lane North Fort Myers, Florida 33917 Robert E. Tardif, Jr., Esquire Duncan & Tardif, P.A. 1601 Jackson Street, Suite 101 Post Office Box 249 Fort Myers, Florida 33902-0249 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact By Notice dated October 16, 2014, the final hearing was scheduled for December 15, 2014, at 9:30 a.m. Although the undersigned convened the final hearing on the date and time indicated in the Notice, neither Petitioner nor counsel for Respondent was present. As of 10:00 a.m., Petitioner had not appeared or contacted DOAH. At that point, the undersigned announced that, in light of Petitioner's nonappearance, the hearing would be adjourned and that a recommended order of dismissal would issue.
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. DONE AND ENTERED this 16th day of December, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2014. COPIES FURNISHED: Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) James Leroy Padgett, General Counsel Putnam County School Board 200 South 7th Street Palatka, Florida 32177 (eServed) David C. Wade 126 Raintree Woods Palatka, Florida 32177
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY 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 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
