Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. Petitioner, Joyce C. Hallowell, was employed by Respondent as a part- time commission sales associate in the electronics department of Brand Central during the relevant period of time including June 1993. Petitioner worked for Respondent on-and-off for a period of 20 years in various sales positions and both in a full and part-time capacity. Petitioner is an American woman, born: October 14, 1948, who was 44 years of age during the relevant time and a member of a protected class. William Henley became the Store General Manager of the Melbourne, Florida Sears store in May 1993. Accordingly, Henley was, during the relevant time period, the Store General Manager of the Melbourne, Florida Sears store. As Store General Manager, William Henley has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions. Herman Payne became the Brand Central Manager of the Melbourne, Florida Sears store in 1993. Accordingly, Payne was, during the relevant time period, the Brand Central Manager of the Melbourne, Florida Sears store. As Brand Central Manager, Payne supervised all four departments in Brand Central. He has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions for personnel in his department. Payne was 41 years old during the relevant time period. Frances Pagan Cusick is the Human Resources Manager for the Sears Melbourne, Florida store. As Human Resources Manager Cusick has responsibility for, inter alia, administering the hiring, equal-employment, and compensation policies of Sears. Cusick was 43 years old during the relevant time period. Brand Central consists of four departments: computers, electronics, small appliances and home appliances. Sales associates work in each of the four Branch Central Departments. Both full-time and part-time sales associates work in Brand Central. Each of the sales associates in Brand Central are paid on the basis of commissions earned from sales. As a consequence, each sales associate's earnings are dependent on the number of sales made. At the time of Henley's and Payne's arrival at the Melbourne, Florida Sears store in May, 1993 and June, 1993, respectively, the store, including Brand Central, was in need of numerous changes and improvements, including improvements in appearance and presentation. In June, 1993, Henley and Payne initiated a cleanup "campaign" throughout the store, including Brand Central, in an effort to make the store more presentable to the public. As part of the clean-up "campaign" in Brand Central, Payne recruited the assistance of all Brand Central employees. Petitioner was uncooperative and refused or was reluctant to assist in various efforts to improve the appearance of Brand Central. She also complained to management about others in her department and their lack of diligence in the clean-up campaign. Hallowell's attitude problems were a serious concern to the management of the Melbourne, Florida Sears store. The management of the Melbourne, Florida Sears store counselled her and documented Petitioner's attitude problems. In June, 1993, a need arose for additional part-time help within the appliance department of Brand Central. A transfer from one section of Brand Central to another is not considered a promotion; rather, it is simply a transfer from one department to another. Henley and Payne ultimately decided who would be transferred to the appliance department of Brand Central. The criteria utilized by Respondent in determining who would be transferred to the appliance department included: (i) satisfactory job performance; (ii) satisfactory customer service; and (iii) a positive attitude. Given the nature of Respondent's business, it is important for Respondent's employees to maintain satisfactory job performance, customer service, and to exhibit a positive attitude. The criteria utilized by Respondent in determining who would be transferred to the appliance department were essential to building a highly motivated team of sales associates. Seniority was not a factor utilized by Respondent in determining who would be transferred to the appliance department. Age was not a factor utilized by Respondent in determining who would be transferred to the appliance department. In June 1993, Petitioner expressed to Herman Payne a desire to transfer from the electronics department to the appliance department of Brand Central. Three individuals were considered for the available, part-time position in the appliance department of Brand Central, to wit: Barbara Gehrlein, Terry Giordano and Petitioner. The transfer which Petitioner sought to the appliance department of Brand Central was not a promotion. However, Petitioner felt that she could earn a higher commission in that department over time. Barbara Gehrlein, who was over fifty at the time, elected not to be considered for the transfer to the appliance department of Brand Central because she was not interested in a part-time position. Gehrlein's preference was to remain in a full-time position. Terry Giordana, who was under forty years of age at the time, was selected for the transfer to the appliance department of Brand Central. Henley and Payne decided that she exhibited a positive attitude and satisfied the other qualification criteria utilized by Respondent. Petitioner was not chosen for the part-time position in the appliance department of Brand Central because of the poor attitude she exhibited during the clean-up campaign. After the selection of Terry Giordano for the part-time position in the appliance department of Brand Central, Petitioner continued to exhibit a poor attitude. Prior to the selection by Respondent of the individual to be transferred to the appliance department of Brand Central, Petitioner admitted to her supervisor, that she had been uncooperative and that she had a "chip on her shoulder." Respondent maintains an Affirmative Action Policy. Sears' Affirmative Action Policy provides, inter alia, that: Sears is proud to reaffirm its commitment of the principles of equal employment opportunity and affirmative action. It is our policy to provide equal employment opportunity in all areas of our employment practices and to assure that there will be no discrimination against any associate or applicant on the grounds of race, color, religion, sex, age, national origin, ancestry/ethnicity, citizenship, sexual orien- tation, disability, veteran status, marital status, or any other reason prohibited by law. This policy extends to all of the Sears employment practices including recruitment and hiring, job assignments, education and development, promotions, compensation and benefits, use of company facilities, and all other privileges, terms, conditions of employment. It is further the goal of Sears to provide an atmosphere where all our associates can grow and optimize their performance in an environment free of intimidation and harassment of any form. No direct evidence exists supporting Petitioner's contention that she was denied a "promotion" because of her age. Respondent did not fail to "promote" Petitioner. Respondent did not fail to "promote" Petitioner because of her age and Respondent did not discriminate against Petitioner on the basis of her age. With respect to targeted earnings, studies showed that an employee in the appliance department would earn less than an employee in the electronics department, given certain assumptions. Assuming a total store sales volume of $3 million, it is expected that an employee in the appliance department would earn $10.38 per hour, while an employee in the electronics department would receive $10.43 per hour. With respect to targeted earnings, studies showed that an employee in the appliance department would earn slightly more than an employee in the electronics department, given certain other assumptions. Assuming a total store sales volume of $3-6 million, it is expected that an employee in the electronic's department would earn $11.50 per hour, while an employee in the appliance department would receive $11.67 per hour. During the relevant time period, of the 13 individuals who worked in the appliance department of Brand Central, eight of them (or 61.5 percent) were at least 40 years old. During the relevant time period, of the 23 individuals who worked in all of Brand Central, 13 of them (or 56.5 percent) were at least 40 years old. During the relevant time period, of the 20 sales associates who were promoted at the Melbourne, Florida Sears store, five of them (or 25 percent) were at least 40 years old. During the relevant time period, of the 213 sales associates who were working at the Melbourne, Florida Sears store, 85 of them (or 39.9 percent) were at least 40 years old.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 22nd day of November, 1995, 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 22nd day of November, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3 (in part), 4, 5, 6 (in part), 7, 8, 9 (in part), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, and 53. Rejected as irrelevant, immaterial or subsumed: paragraphs 3 (in part), 6 (in part), 9 (in part), 31, 32, and 41. COPIES FURNISHED: Joyce C. Hallowell 1498 Beche Street, S.E. Palm Bay, Florida 32909 Carlos J. Burruezo, Esquire 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Samuel J. Marshall, was born on November 19, 1936. In March 1986 he began employment as a truck driver hauling sand for Taylor Concrete and Supply, Inc. (Taylor) at its Palatka, Florida plant. When he began his employment with Taylor, Marshall advised his supervisor that because of his religious beliefs, he could not work on Saturdays. The name of the religion is not of record. Marshall says that after giving such notification to his employer, he was never required to work on Saturdays during his tenure with Taylor. This was not contradicted. In 1989, Taylor sold the plant to respondent, Tarmac Florida, Inc. (Tarmac). As an employer with more than fifteen full-time employees, Tarmac is subject to the regulatory jurisdiction of the Florida Commission on Human Relations (Commission). Shortly after the sale, petitioner was advised that his position as a sand truck driver was being eliminated but he could transfer to a position as a ready-mix driver in the ready-mix division at the same plant. Petitioner accepted this offer effective November 28, 1989. Because the new position required the driver to work every other Saturday, petitioner advised the new plant manager, Byron White, that he could not work on Saturdays because of his religious beliefs. After Marshall produced evidence to verify his claim, White excused Marshall from working on Saturdays. Tarmac employee timecards confirm that Marshall was never required to work on a Saturday. Petitioner was required to undergo a brief period of training by riding for several weeks with a senior driver, James Bolt. During petitioner's training period, Bolt was engaged in the illicit practice of selling any concrete left in his truck at the end of the day to third parties and then pocketing the money. This was obviously contrary to company policy. Petitioner was aware of this activity but said nothing. On occasion, Bolt would give petitioner some of the illicit proceeds, which he accepted. In the first week of February 1990, or after he had completed his training with Bolt, petitioner went to White and told him that there was "illicit" activity being conducted at the plant, but he refused to disclose the nature of the activity or the name of the individual engaged in that enterprise. He also failed to tell White that Bolt had given him money. White communicated this conversation to the regional manager, Jack Stegall, but because they had no specific information on which to proceed, they were unable to investigate the allegations. Tarmac has a number of plants within each division. It is not uncommon for drivers to be transferred from one location to another, based on the varying demands of the different plants. In June 1990 Stegall decided to transfer two drivers from the Palatka plant to the Green Cove Springs plant due to increased business at the latter facility. Petitioner and another driver, Dennis Folmer, then approximately thirty years of age, were selected for transfer since they had the least seniority in the Palatka ready-mix division. After learning of Stegall's decision, petitioner contacted Stegall and advised him that he believed the company policy required that transfer decisions be made based on seniority with the company, rather than seniority in a particular position. Stegall then checked with the human resources department and learned petitioner was correct. Petitioner's name was thereafter removed from the transfer list and James Bolt, who had less seniority than petitioner, was placed on the list. During his meeting with Stegall, petitioner informed him about the illegal concrete sales that had occurred during his training period. After petitioner was told to inform White about this matter, he took White to the locations where he was with Bolt when the concrete was illegally sold. He also turned over to White the $30 he had received from Bolt. Based on Marshall's revelation, on June 25, 1990, Bolt was terminated as an employee for the unauthorized sale of concrete. Because he had come forward and disclosed the illegal activity, petitioner was only given a one-week suspension without pay. Petitioner did not question nor challenge the suspension and admitted to White that he was involved in the sales. Also, on July 11, 1990, he was given a warning notice prepared by White and which read in part as follows: Sam confessed to selling unauthorized concrete on three separate occasions. Sam also reported others involved. For this reason only Sam was given one week off. If for any reason this happens again or attempt (sic) to, Sam will be terminated. Although petitioner was handed a copy of the notice, he refused to sign it, threw it back at White and walked away. At the same time petitioner notified Stegall of the illegal concrete sales, he also asked Stegall about the possibility of transferring to Tarmac's Deland facility, which was closer to his home. Stegall indicated he would try to assist petitioner with a transfer, if possible. The next day, petitioner drive to the Deland facility and spoke with the Deland plant manager who indicated there was a ready-mix driving position available. The plant manager also agreed to contact White on petitioner's behalf. Even so, because the Palatka facility was short two drivers due to the transfer of Bolt and Folmer to Green Cove Springs, White could not afford to allow petitioner to transfer to Deland. He did promise petitioner that he would arrange for a transfer as soon as an opportunity arose which would not adversely impact the Palatka facility. After petitioner's suspension for his participation in the illegal sale of concrete, Tarmac received complaints from other Tarmac employees regarding petitioner. Believing this conduct to be detrimental to the integrity of the company and a disruption of the harmony of the work unit, Minor Turrentine, then the Tarmac area production manager, advised petitioner that if he continued to talk about the illegal sale of concrete with other drivers and customers, he would be terminated for breaching company policy, that is, disclosing confidential information that was contrary to the company's best interests. He was also given a written warning on July 16, 1990, which read as follows: You were recently suspended for your admitted involvement in certain activities that are against company policy. It has been reported that you have openly discussed these matters with employees at various locations. Be advised that any further discussion concerning your suspension and the circum- stances surrounding it will be considered breach of confidentiality, which is a violation of company policy. Any further violation of company policy will subject you to severe disciplinary action, up to and including discharge. After White received further complaints regarding petitioner, Tarmac terminated petitioner's employment effective August 21, 1990, for breaching company policy. The separation notice, which was dated the same date, gave the following reason for his termination: Employee was formally warned on July 16 to discuss no further his recent suspension. Discharged for further discussion on or about 8/20/90. There is no evidence as to whether petitioner was replaced by another driver, and if so, the age of that driver. When terminating petitioner, Tarmac did not do so because of petitioner's age or religious beliefs. Indeed, Marshall conceded at hearing that he had no direct proof of discrimination but merely believed he was improperly terminated for those reasons. As evidence of age discrimination, petitioner speculated that Tarmac may have been attempting to lower its insurance rates by removing an older person from its payroll, a belief based solely on a conversation he had with an insurance agent a few weeks prior to hearing. However, at least three other ready mix drivers at the Palatka plant are older than Marshall. He also speculated that because he was not required to work on Saturdays, this caused ill-will among his co-workers, and Tarmac terminated him for his religious beliefs. Again, there was no proof, either circumstantial or direct, to support this assertion. Regarding the claim that Tarmac's decision to transfer petitioner to Green Cove Springs in June 1990 was in retaliation for him telling White that working Saturdays was against his religion, the evidence shows that petitioner was removed from the transfer list once his seniority was brought to the company's attention. Petitioner also suggests that he was denied a transfer to the Deland facility in June 1990 as retaliation for his religious beliefs. However, the evidence shows that it was not feasible for Tarmac to transfer him at that time due to a shortage of drivers but Tarmac promised that an effort would be made to comply with his request when it was feasible. Petitioner did not state whether he desires reinstatement to his former position. In his petition for relief, petitioner did request "70 percent of (his) average yearly base pay since August 20 on". However, petitioner's salary at the time of discharge is not of record. Further, there was no evidence presented to establish his salary nor the monetary losses, if any, petitioner has suffered by virtue of his termination. He is currently employed with another company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the petition for relief. DONE AND ORDERED this 29th day of April, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5927 Respondent: Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 2. 6. Partially accepted in finding of fact 4. 7-8. Partially accepted in finding of fact 5. 9. Partially accepted in finding of fact 6. 10-11. Partially accepted in finding of fact 7. 12-13. Partially accepted in finding of fact 8. 14-15. Partially accepted in finding of fact 9. 16-17. Partially accepted in finding of fact 10. 18. Partially accepted in finding of fact 11. 19. Partially accepted in finding of fact 2. 20-23. Partially accepted in finding of fact 11. 24. Rejected as being unnecessary. Note - Where a finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, a conclusion of law, or not supported by the evidence. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Samuel J. Marshall S. R. Box 1075 Georgetown, Florida 32139 Grant D. Petersen, Esquire Donna M. Griffin, Esquire 1408 North Westshore Boulevard Suite 1000 Tampa, Florida 33607
The Issue The issue in this case is whether the Florida Department of Transportation (Respondent) committed an act of unlawful employment discrimination against Stephen G. Leslie (Petitioner) in violation of the Florida Civil Rights Act (FCRA) of 1992.
Findings Of Fact In 1986, the Petitioner began his employment with the Respondent as a "Safety Specialist." Beginning in 2001, and at all times material to this case, the Petitioner was employed by the Respondent as an "Outdoor Advertising Regional Inspector." As an outdoor advertising regional inspector, the Petitioner's responsibilities included patrolling state roads in his assigned counties to ascertain the status of permitted outdoor advertising signs and to remove signs that were illegally placed on state right-of-way. The Respondent's duties required extensive driving, which he did in a state-supplied vehicle. The Petitioner was based at the Respondent's Tampa headquarters, but was supervised by employees located in Tallahassee. In 2007, the Petitioner began to experience neurological health issues, but he continued to work and was able to perform the responsibilities of his employment. From September 2008 to June 2011, the Petitioner was supervised by Robert Jessee. In 2009, the Petitioner's health issues got worse. He began to take more sick leave, which the Respondent approved upon request of the Petitioner. The Respondent also provided equipment to accommodate the Petitioner's health issues, including a laptop computer and larger mirrors on the Petitioner's state vehicle. The Respondent also assigned another employee to ride with the Petitioner and to remove signs illegally placed on state right-of-way so that the Petitioner did not have to exit the vehicle. In 2010, the Petitioner was involved in two automobile accidents while driving the state vehicle. In January, he ran into a vehicle that was stopped for a school bus. In February, while transporting a group of other employees on I-75, the Respondent struck rode debris and the vehicle was damaged. In April 2010, the Petitioner's presence in the Tampa headquarters building was restricted for reasons that were unclear. Although the restrictions caused embarrassment to the Petitioner, there was no evidence presented at the hearing to suggest that such measures were related in any way to the Petitioner's disability. Following an investigation of the traffic incidents by the Respondent's inspector general, the Petitioner received a written reprimand dated August 18, 2010, and was directed to take the Respondent's online driving course. Beginning in June 2011 and through the remainder of the Petitioner's employment by the Respondent, the Petitioner was supervised by Michael Green. The Respondent collects statistical data to measure the productivity of persons employed as outdoor advertising regional inspectors. The Petitioner's productivity statistics were significantly lower than those of other inspectors, and he was behind in his assignments. Accordingly, Mr. Green rode along with the Petitioner for three consecutive days in September 2011 to observe the Petitioner's work. At the hearing, Mr. Green testified that the Petitioner arrived late to pick him up at his hotel on all three days. On one of those days, the Petitioner accomplished an employment- related task prior to picking up the supervisor. Mr. Green testified that the Petitioner's driving made him feel unsafe during the observation. Mr. Green observed that the Petitioner accelerated and slowed the vehicle in an abrupt manner, and that he failed to use turn signals at appropriate times. Mr. Green also testified that the Petitioner was preoccupied as he drove by electronic devices, including a cell phone. Mr. Green testified that the Petitioner appeared to have difficulty entering and exiting the vehicle, and with hearing certain noises in the vehicle, including the click of the turn signal. Mr. Green testified that he felt so unsafe that he asked the Petitioner to alter his driving practices while Mr. Green was in the vehicle. Mr. Green testified that during the observation ride, the Petitioner discussed his physical condition and admitted that medical appointments during the week made it difficult to maintain the routine work schedule. The Petitioner also advised Mr. Green that he was considering filing for disability retirement. After returning to the Tallahassee headquarters, Mr. Green prepared a memorandum dated September 19, 2011, to memorialize his observations about the Petitioner's job performance. Mr. Green's memorandum was directed to Juanice Hughes (deputy director of the Respondent's right-of-way office) and to the Respondent's outdoor advertising manager. In the memo, Mr. Green recommended that the Petitioner be required to provide medical verification of his continued ability to perform the responsibilities of his position. In a letter to the Petitioner dated September 23, 2011, Ms. Hughes restated Mr. Green's observations and directed the Petitioner to obtain medical verification that the Petitioner was able to perform the responsibilities of his position safely. The letter specifically directed the Petitioner to provide medical information related to his ability to work his normal schedule, the existence of any work restrictions or required accommodations, and the impact of any medications prescribed for the Petitioner. The letter established a deadline of September 30, 2011, for the Petitioner's compliance with its requirements, and advised that he would not be permitted to resume his employment duties until the medical verification information was provided and any required accommodations were in place. The Petitioner apparently did not become aware of the letter until September 29, 2011. On that date, both Mr. Green and Ms. Hughes attempted to contact the Petitioner via his work cell phone and by email to advise him of the letter and to direct that he retrieve the letter from the district headquarters. Shortly after 4:00 p.m., contact was made with the Petitioner by calling his personal cell phone. At that time, the Petitioner was advised that he needed to return to the district headquarters to pick up the letter. He was further advised that he was being placed on leave until the requirements of the letter were met and that he needed to turn in his state vehicle when he arrived at the headquarters. The Petitioner advised Mr. Green and Ms. Hughes that he was attempting to obtain documentation required to file for disability retirement, and he asked for an extension of time during which to do so. His request for an extension was denied. The Petitioner, clearly unhappy with the circumstance, made a statement during the conversation that was considered by Mr. Green and Ms. Hughes to suggest that the Petitioner could cause damage to himself or to the state vehicle. The actual words spoken were disputed at the hearing, and the evidence fails to establish that the Petitioner would have actually damaged the vehicle or himself. Nonetheless, it was clear after the conversation that the Petitioner was resistant to the Department's instructions. The Respondent immediately directed James Moulton, the director of Transportation Operations for the Tampa district, to check on the Petitioner's condition and to retrieve the vehicle assigned to the Petitioner. Mr. Moulton did so, accompanied by local law enforcement personnel, at approximately 7:00 p.m. on September 29, 2011. In a letter to the Petitioner dated September 30, 2011, Ms. Hughes recounted the events of the day before and again directed the Petitioner to obtain medical verification that he was able to perform the responsibilities of his position safely. No deadline was set for the Petitioner's compliance, and he was advised that he could use leave for any absence related to obtaining the medical documentation. A few days later, the Petitioner advised the Respondent that he would be unable to obtain the requested medical verification and that he would be filing an application for medical disability retirement. In November 2011, the Petitioner filed the application accompanied by medical documentation establishing that the Petitioner had a "total and permanent disability," as defined by section 121.091(4)(b), Florida Statutes (2011).1/ His application was approved.
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 the Petitioner against the Respondent in this case. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of August, 2013.
The Issue The issue to be determined in this case is whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered.
Findings Of Fact Petitioners Diana Sexton and Freddie Sexton were carriage drivers for Gam-San, Inc., which was known by the fictitious name of St. Augustine Transfer Company. They conducted ghost tours and history tours in the historic district of St. Augustine. No evidence was presented regarding Mr. Sexton's race or either Petitioners' age. At the time of the incident giving rise to this proceeding, Diana Sexton had worked for Respondent for approximately one and a half years. Freddie Sexton has worked for the company in the same type of position for a shorter period of time. Petitioners are married to each other. Petitioners drove carriages pulled by horses, and gave tours to the public. They sometimes stayed overnight at the barn owned by Respondent in order to water the horses. They did not have permission to stay at the barn, but Ms. Sexton considered it to be a benefit in exchange for watering the horses at night. Diana Sexton acknowledged that Petitioners had been informed that they were expected to find another place to stay before the end of the "Nights of Lights" (although no explanation was provided regarding what time frame this entailed), but denied that Petitioners were ever told to leave or not to stay at the barn. Employees hired by St. Augustine Transfer were usually hired as carriage drivers, stall people, or barn managers. Both stall people and barn managers were paid minimum wage. Carriage drivers, like waitresses, receive tips from customers as part of their pay. Generally, with tips, drivers are the highest paid employees of the business. It would not be considered a promotion to go from a position as driver to either stall person or barn manager. Petitioners did not work on December 25, 2007. They apparently spent the night at the barn the night before and left the work premises in the morning. At some time in the evening, Petitioners returned to the business premises, ostensibly to retrieve some of their belongings that were in the barn. While they were present on the property, the police came, indicating that they had received a call complaining of a disturbance. Petitioners were believed to be the cause of the disturbance and were asked to leave. Petitioners refused to leave without speaking to Stuart Gamsey, and denied creating any type of disturbance. Eventually they left the premises at the insistence of the police. They claim they were not allowed to return to retrieve their belongings for several days, and were discharged from their jobs. The evidence is in conflict over what, if anything, was occurring on the premises of the business the evening of December 25, 2007. However, the more credible admissible evidence indicates that at least two calls were made to Stuart Gamsey, the then owner of St. Augustine Transfer Co. The calls involved complaints about Petitioners' drinking, yelling, and generally creating a disturbance on the property. One call was made by police officers on the scene. Mr. Gamsey had not given Petitioners, or any other employees, permission to stay on the premises when not working. He could not say whether there was actually a disturbance on the premises, but confirmed that in response to the calls he received, he asked the police to do "whatever it took" to get Petitioners to leave the property. His goal was simply to end whatever disturbance might be occurring. Petitioners' employment was terminated by St. Augustine Transfer. It is not entirely clear from the evidence presented whether the December 25, 2007, incident formed the basis for the termination or whether other factors were involved. It is clear, however, that Petitioners resisted leaving the premises at a time when they did not have permission to be there. Stuart Gamsey sold the business in the summer of 2008. He currently has no responsibility for the hiring practices of St. Augustine Transfer Co. or its successor. No competent, credible evidence was presented indicating that any other employee was allowed to stay on the premises outside of work hours. Petitioners also claim that Mr. Sexton was discriminated against based upon his marital status because someone, presumably another employee, left K-Y jelly in his carriage, and on one occasion, a patron tipped another employee to make sure she could ride in his carriage and engage in inappropriate behavior designed to seduce him. However, no competent, credible evidence was presented to show who placed the K-Y jelly in Mr. Sexton's carriage or for what purpose, if any, it was left. Likewise, no competent, credible evidence was presented to support the allegation that placing the patron in Mr. Sexton's carriage was for any discriminatory purpose. No evidence was presented regarding any other proceedings of any type involving Petitioners and Respondent.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioners' Petitions for Relief and denying Respondent's Motion for Attorney's Fees. DONE AND ENTERED this 20th day of January, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 20th day of January, 2009. COPIES FURNISHED: Freddie J. Sexton Diana J. Sexton Post Office Box 105 St. Augustine, Florida 32084 Regina Sargeant, Esquire 2820 US 1 South, Suite F St. Augustine, Florida 32086 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue This is a case in which the Petitioner alleges that the Respondent has engaged in an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by engaging in the following activities: (a) Discharging the Petitioner from her position of employment with Respondent because of Petitioner's race and (b) after discharging the Petitioner, continuing to seek applications for the position previously held by the Petitioner from similarly qualified or less qualified applicants. Subsequent to the filing of her petition for relief, the Petitioner filed a motion for default pursuant to Rule 22T- 9.008(5)(d), Florida Administrative Code, based upon the Respondent's failure to file an answer to the petition as required by the cited rule. By order dated September 21, 1987, the Respondent was given until October 5, 1987, within which to show cause as to why the relief requested in the motion for default should not be granted. The Respondent failed to respond to the order of September 21, 1987, and on October 7, 1987, an order was issued which included the following language: That pursuant to Rule 22T-9.008(5)(d), Florida Administrative Code, the Respondent is hereby deemed to have admitted all material facts alleged in the petition. That at the final hearing in this case the material facts alleged in the petition will be taken as established without further proof, but both parties will be afforded an opportunity at the final hearing to offer evidence regarding any additional relevant facts. On the day scheduled for the hearing, the Petitioner and her attorney appeared at the time and place set forth in the Notice of Hearing, but there was no appearance on behalf of the Respondent. Approximately 45 minutes after the scheduled commencement time, the Hearing Officer called the Respondent's offices in Jacksonville and was advised by an employee of Respondent that the Respondent did not intend to have anyone attend the hearing. Shortly thereafter the hearing was convened and the Hearing Officer received evidence offered by the Petitioner. At the conclusion of the presentation of evidence by the Petitioner, the Petitioner requested, and was granted, 15 days within which to file a proposed recommended order. Thereupon the record of the hearing was closed without any appearance having been made on behalf of the Respondent. On November 16, 1987, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. Specific rulings on all findings proposed by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order. Following the hearing, the Respondent was advised by letter of its right to file a proposed recommended order, but as of the date of this recommended order the Respondent has not filed any post-hearing document with the Hearing Officer.
Findings Of Fact On October 11, 1985, the Petitioner was referred by Job Finders of Florida, a private job placement service, to apply for a position with the Respondent, Handling Systems Engineering, Inc. The job the Petitioner applied for was Secretary/Dispatcher. The Petitioner met all of the qualifications for the job of Secretary/Dispatcher. The Petitioner was interviewed by Mr. Jim Hart, the manager of the Ocala office of the Respondent. After interviewing the Petitioner, Mr. Hart decided, on the basis of her experience and references, that the Petitioner was the best qualified of several applicants. In this regard, it is noted that the Petitioner's prior employment had required the performance of duties substantially similar to those of the Secretary/Dispatcher position with Respondent. Thereafter, in the afternoon or evening of October 11, 1985, Mr. Hart telephoned the Petitioner, offered her the job, and advised her that she was to report to work on October 14, 1985. On October 14, 1985, the Petitioner reported to work at the Ocala office of the Respondent and immediately began performing the duties of Secretary/Dispatcher. During the work day on October 14, 1985, the Petitioner received a telephone call from Mrs. Lou Mohrman, the managing director of the Respondent. Mrs. Lou Mohrman welcomed the Petitioner to her position of employment and stated that she was pleased with the Petitioner's placement with the company. On October 15, 1985, Mr. L. D. Mohrman, president of Respondent, accompanied by Mrs. Lou Mohrman, managing director, visited the Ocala offices of the Respondent. After engaging in a boisterous conversation with Mr. Hart and visually ascertaining the Petitioner's race, Mrs. Mohrman summarily dismissed Petitioner without articulating a legitimate business reason for the termination. Within the next few days the Respondent listed the Secretary/Dispatcher position as vacant and continued to seek to fill the position with individuals with qualifications similar to or less than the qualifications of the Petitioner. The Petitioner is a black female. She is a person within the meaning of Sections 760.02(5) and 760.10(1), Florida Statutes. The Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. The dismissal of the Petitioner from her position of employment with the Respondent was motivated by the president and the managing director ascertaining the Petitioner's race. The dismissal of the Petitioner was motivated solely by her race. The Petitioner's starting salary at the Respondent company was $4.50 per hour for a 40-hour work week. After her termination, the Petitioner sought employment elsewhere and obtained another job in January of 1986, where she worked until November of 1986. In November of 1986 the Petitioner voluntarily left her job in order to finish school. When she began work in January of 1986 the Petitioner was making $3.80 per hour. When she quit in November of 1986 she was making $4.00 per hour.
Recommendation Based on all of the foregoing, it is recommended that the Florida Commission on Human Relations issue a final order to the following effect: Concluding that the Respondent has engaged in an unlawful employment practice; Prohibiting the Respondent from terminating any employee on the basis of the employee's race; Requiring the Respondent to offer reinstatement to the Petitioner under the terms and conditions of employment to which she would be presently entitled if she had been continuously employed, including any raises to which she would have been entitled on the basis of longevity. Requiring the Respondent to pay back pay to the Petitioner from the date of termination until November of 1986 in an amount equal to the total amount the Petitioner would have earned as a Secretary/Dispatcher during that period, less any amounts actually earned during that period; and Requiring the Respondent to pay to the Petitioner her reasonable attorney's fees incurred in this case. DONE AND ENTERED this 4th day of December, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3048 The following are my specific rulings on the findings of fact proposed by the parties. Findings proposed by Petitioner: Paragraph 1: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraph 2: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraphs 3, 4, 5, 6,7, and 8: Accepted Paragraphs 9, 10, 11, and 12: Not included in findings of fact because they are subordinate procedural details. Paragraphs 13, 14, and 15: Covered in prior findings. Paragraph 16: Accepted Paragraph 17: Covered in prior findings. Findings proposed by Respondent: (None) COPIES FURNISHED: Harry L. Lamb, Jr., Esq. Perry & Lamb, P.A. 312 W. First Street Suite 605 Sanford, Florida 32771 Mr. L. D. Mohrman, President Handling Systems Engineering, Inc. 3000 West 45th Street Jacksonville, Florida 32209 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
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.
