The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes, by discriminating against Petitioner on the basis of handicap or disability, and if so, what is the appropriate remedy.
Findings Of Fact North Florida Sales Company (North Florida), the Respondent in this case, is a beer and ale wholesaler that does business in Florida and employs over 15 people. Window Mitchell, Petitioner in this case, began working at North Florida as a custodian in the maintenance department on June 22, 2009. His normal schedule at North Florida was Monday through Friday. Near the time he was hired, Petitioner received a copy of Respondent's "Employee Information Handbook." The handbook advised Petitioner of North Florida's "open door" policy that permitted employees to take any complaints or problems directly to the Human Resources Manager, the General Manager, or the President. It further advised employees that it was North Florida policy to treat all employees equally without regard to race, color, religion, sex, age, marital status, disability, or national origin. It stated that any violation of North Florida's equal opportunity policies must be reported immediately to the Human Resources Manager or General Manager without delay. The employee handbook also advised Petitioner of North Florida's policies on attendance. It required employees to give advance notice of any absence or lateness, and noted that employees who fail to maintain an acceptable attendance record would be subject to disciplinary action. On September 10, 2009, Petitioner received an Employee Warning Report noting that Petitioner had missed six days of work during his 90-day probationary period. The report stated that this amount of absenteeism was considered excessive and that immediate improvement was expected. It was signed by Petitioner and Petitioner's supervisor. On November 10, 2009, Petitioner received another Employee Warning Report. It stated that Petitioner's attendance continued to be a problem and that it was creating a burden on the maintenance department. It stated that further incidents of absenteeism, or arriving late or leaving early, would result in termination. It was signed by Petitioner, Petitioner's supervisor, and Margaret Lombardi, Human Resources Manager. There is no evidence that Petitioner ever received any further "Employee Warning Reports." On June 3, 2010, Petitioner received an Employee Performance Review. In his review, Petitioner was given a rating of "3" out of "10" on "dependability." The comment under that heading indicated that Petitioner was "out from work too many days." Petitioner received two other "3"s on his evaluation and received no evaluation above a "5" in any area. In the final section, entitled "Objectives for the Next Review Period," the first of two objectives listed was "keep all curbs in warehouse painted." The second was, "try to be at work all of the time." On July 17, 2010, Petitioner was returning from a barbecue with four friends. He testified that he had not been drinking. The car he was driving ran into a pole head-on. Petitioner's knee and leg hurt and became badly swollen. He had "little chunks of meat" missing from his left elbow and forearm. He was seen by an emergency doctor at Baptist Medical Center about 9:45 p.m., released, and given discharge instructions. On July 19 or 20, 2010, Ms. Lombardi received a paper entitled Adult Discharge Instructions on a Baptist Health form dated July 17, 2010. It indicated that Petitioner had been in the vehicle collision and had been treated for abrasions and a contusion on his right knee. In the instructions, Petitioner was told to take medications as instructed, follow up with the doctor in two days, and return to the emergency room for worsening symptoms. A box was checked indicating "no work for 2 days." Ms. Lombardi interpreted the note as excusing Petitioner from work on Sunday and Monday, and therefore expected Petitioner to return to work on Tuesday, July 20, 2010. When Petitioner did not return to work on Tuesday, Ms. Lombardi called him. Petitioner said he did not realize that the doctor's note had excused him for only two days. Ms. Lombardi told Petitioner that it did, and she told him he needed to come to work that day. Petitioner complained that his arm and leg were still hurting. Petitioner said he would return to work that afternoon, but did not. Petitioner did not come to work on Wednesday, July 21, 2010. Petitioner left a message for Ms. Lombardi and she called him about 10 a.m. Petitioner told Ms. Lombardi that he had gone to the doctor the day before and had another note excusing him from work. Ms. Lombardi asked Petitioner why he had not called her or the supervisor to let them know. Petitioner stated that he had called the supervisor, but had been unable to reach him and had been asked to call back. Petitioner said he did not call back because he did not get out of the doctor's office until after 5:00 pm. Ms. Lombardi directed him to have the note sent to her by facsimile transmission (fax). Ms. Lombardi received a form faxed from Baptist Health entitled "Discharge Instruction" about 4:38 p.m. that day, as indicated in her note prepared for Petitioner's file. It had a subtitle of "Work Release Form." The form stated that Petitioner had been seen again on July 21, 2010, and that he could return to work on July 25, 2010. The form had date and time blocks indicating "July 21, 2010" and "4:31 p.m." Ms. Lombardi testified that the form from Baptist Health indicated that Petitioner had been seen by a doctor that same day and that "I received it shortly after-–there was a discharge time on it." On the following day, July 22, 2010, Ms. Lombardi again called Petitioner. When asked about an excuse from the doctor whom Petitioner had seen on July 20, 2010, Petitioner replied, "Oh, that was a different doctor." Petitioner said that the excuse from the visit on July 21, 2010, was from the same doctor he saw on July 17, 2010. Ms. Lombardi's file note stated that this was "the second time that Mitchell has incurred absences with inconsistency in the facts surrounding that absence." Petitioner gave evasive and inconsistent testimony at hearing about whether there was ever a third doctor's excuse, in addition to the excuses of July 17, 2010 and July 21, 2010. Any of Petitioner's testimony suggesting that there was third excuse was not credible. There were only two doctor's excuses. On July 22, 2010, Ms. Lombardi filled out a "Status/Payroll Change Report" that discharged Petitioner from employment at North Florida. In the "Reason" portion of the form, Ms. Lombardi wrote, "Excessive absenteeism and multiple incidences of inconsistent facts surrounding his absences." Petitioner was immediately notified by telephone that his employment had been terminated. In that conversation, Petitioner asked Ms. Lombardi why he was being discharged. Ms. Lombardi told Petitioner that the basis for his discharge was his poor attendance. Petitioner was recovering from the injuries he received in the accident for about a week-and-a-half. After that he was fully recovered. Petitioner's substantial interests are affected by Respondent's decision to discharge him. It has been difficult to find work in the depressed economy and Petitioner has financial responsibilities. Petitioner has three children. Petitioner was employed by Wage Solutions, working the warehouse at Liberty Furniture, unloading furniture and bringing it to the showroom from March 2011 to August 2011. Petitioner lost that job because that business closed. At the time of hearing Petitioner was not employed. Petitioner went to the Florida Commission on Human Relations. He did not complain to them that he had been discriminated against on the basis of a handicap or disability. He just wanted an investigation into his discharge because he believed he had been terminated unfairly. He testified: Doing – I guess, telling my side of the story to file whatever they wanted me to file. I didn't even know it was doing – about the disability or not. I didn't know they signed me up under that. The only thing I thought, they were going to investigate to see why I got terminated. * * * And from there, I guess that – that's it. I knew I had to come to court from there, so I was just really based on that. I knew I had to show up to court for – I wasn't looking for all of this to come down to this. The only thing – I just wanted to know why I got fired, because I – about my attendance or being absent, but I had excuses for them. On October 12, 2011, Petitioner filed a Petition for Relief against Respondent claiming an unlawful employment practice, alleging that he was wrongfully fired because of a mishap, which was referred to the Division of Administrative Hearings the same day.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 4th day of May, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 4th day of May, 2012.
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 Whether Respondent violated the Florida Human Rights Act by maintaining racially segregated restroom facilities, as alleged by Petitioner; and, if so, the affirmative relief which should be granted.
Findings Of Fact At all times material hereto, the COMPANY operated a business establishment located at Pompano Beach, Florida. BOYKIN a black male, was employed by the COMPANY during a one-week period in 1978. During BOYKIN'S employment, the COMPANY maintained separate restroom facilities, segregated on the basis of race. (Testimony of Boykin.) The COMPANY'S two restroom facilities were racially segregated by the use of signs affixed to the outside door of each restroom--one sign labeled "Colored," and the other, "White." (Testimony of Boykin.) The COMPANY'S maintenance of racially segregated restrooms was offensive to BOYKIN, and the other black employees. (Testimony of Boykin.) As of September 26, 1980, the offending signs by which the COMPANY racially segregated its restrooms were no longer affixed to the restroom doors. (Viewing by hearing officer, accompanied by parties.) The COMPANY presented no evidence controverting BOYKIN'S allegation that it maintained racially segregated restrooms during the time in question. Neither did it assert a legitimate, nondiscriminatory purpose for maintaining segregated restroom facilities. BOYKIN presented no evidence to establish that the COMPANY employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1977 or 1978.
Conclusions Conclusions: Respondent company maintained racially segregated restrooms for Petitioner and its other employees. The signs, by which the restrooms were labeled, "Colored" and "White" were no longer affixed to the restrooms at the time of final hearing. However, Petitioner failed to prove an essential elements of his claim-- that Respondent is an "employer" within the meaning of the Human Rights Act. Recommendation: That the Petitioner for Relief be DISMISSED. Background: On November 27, 1978, Petitioner Michael C. Boykin ("BOYKIN") filed with the Florida Commission on Human Relations a complaint of unlawful discrimination against Respondent H. L. Westberry Paving and Trucking Company ("COMPANY"). The gravamen of BOYKIN'S complaint was that he was subjected to an unlawful condition of employment by virtue of the COMPANY'S maintenance of racially segregated restroom facilities. After investigation, the Commission on Human Relations issued its determination that there was reasonable cause to believe that the COMPANY had engaged in an unlawful employment practice, as alleged, in violation of the Human Rights Act, Sections 23.161, et seq., Florida Statutes. After an unsuccessful effort to effect voluntary conciliation of the dispute, the Commission issued a Notice of Failure of Conciliation on June 11, 1980. Within the requisite 30-day period thereafter, BOYKIN filed a Petition for Relief from the alleged unlawful employment practice. Notwithstanding the COMPANY'S failure to file any pleading responding to BOYKIN'S Petition for Relief, or request a hearing thereon, the Commission forwarded it to the Division of Administrative Hearings on July 10, 1980, for the assignment of a hearing officer. By Notice of Hearing, final hearing was thereafter set for September 26, 1980. At final hearing, counsel for the COMPANY represented that on September 25, 1980, he received a telephone call from an unidentified employee of the Commission purporting to cancel the hearing scheduled for September 26, 1980. As a result, he asserted his witness was not present at final hearing; he then proffered that, if present, his witness could testify that signs indicating "Colored" and "White" were not now affixed to the doors of the separate restrooms located on the COMPANY'S premises. In order to avoid continuing the hearing, the parties agreed that the undersigned hearing officer should determine whether or not the described signs were present by conducting a viewing of the COMPANY'S premises. In light of this viewing, the COMPANY declined to request a continuance, and indicted that it wished to present no further evidence. The COMPANY also moved to dismiss the Petition for Relief, claiming that the Commission lacked jurisdiction based on: (1) federal preemption of the area by Title VII of the Civil Rights Act of 1964, and (2) failure of the Commission to complete its proceeding within 120 days from the Federal Equal Employment Opportunity Commission's deferral of this matter to the Florida Commission on Human Relations. Respondent's Exhibit 1 was offered, and received in support of the motion, after which the motion was denied. The only witness who testified at final hearing was BOYKIN. No other exhibits were offered by either party. The Florida Commission on Human Relations was not represented at final hearing; BOYKIN represented himself, in proper person, and without assistance by the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended: That the Petition for Relief filed by Petitioner be DISMISSED. DONE AND ENTERED this 10th day of October 1980 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1980. COPIES FURNISHED: Michael C. Boykin 801 Powerline road, #161 Pompano Beach, Florida 33060 Thomas P. Quinn, Esquire 2455 East Sunrise Boulevard Suite 605, International Building Fort Lauderdale, Florida 33404
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 The issue in this case is whether Respondent, The Exchange Club Center for the Prevention of Child Abuse of the Treasure Coast, Inc. ("Respondent" or "Exchange Club"), is liable to Petitioner, Tiffany L. Rusinko ("Petitioner" or "Ms. Rusinko"), for employment discrimination and retaliation.
Findings Of Fact Respondent was a child abuse prevention agency that provided services to families in Martin, St. Lucie, Indian River, and Okeechobee Counties. Among other things, Respondent sought to prevent child abuse and neglect through education and parenting skills classes to parents of at-risk children. All of Respondent’s programs were funded by outside sources including grants and fundraising. Respondent ceased operations in September 2020. Petitioner was hired by Respondent on March 1, 2013, as a "Parent Educator" with Respondent’s Safe Families Program on a full-time basis. Petitioner understood that during her employment with Respondent, she was required to adhere to the Human Resources Personnel Policies & Procedures Manual ("Policies & Procedures"), as well as the Code of Ethics of the National Association of Social Workers ("Code of Ethics"). Upon hiring, Petitioner received copies of the Policies & Procedures and the Code of Ethics. Petitioner was required to sign and acknowledge receipt and review of both. On February 27, 2017, Petitioner was promoted to the position of "Program Supervisor" for the Safe Families Program. Her salary in that position was $40,000. This was also a full-time position and, as part of her responsibilities as a Program Supervisor, Petitioner supervised four parent educators. In June 2017, Petitioner agreed to take on the role of a Supervisor in Respondent’s PAT Program in addition to her role as a Program Supervisor for Respondent’s Safe Families Program. Petitioner remained a full-time employee of Respondent and her salary was increased to $44,000. Between July 27, 2017, and August 11, 2017, Petitioner was late or did not report to work as required due to various personal matters. On or about September 27, 2017, Respondent hired a "Program Manager" to manage Parent Educators in the Safe Families Program. The new Program Manager was paid a higher salary than Petitioner, which Petitioner believed was due to Respondent discriminating against her because of her race and gender. Thereafter, Petitioner sent a text message to Respondent’s Executive Director expressing her displeasure with her responsibilities and her rate of pay. Petitioner demanded a salary increase commensurate with what Petitioner believed she should be paid. Petitioner communicated with Andrea Medellin about her responsibilities and salary, which contravened Respondent’s Policies & Procedures. Andrea Medellin was the Executive Director of an agency that funded one of Respondent’s programs. On February 12, 2018, Petitioner submitted a grievance to Respondent claiming that she was the subject of discrimination based on race and gender. Specifically, she claimed that her salary and job responsibilities varied from those of a co-worker who was a Black male, but who had a similar title and experience. On February 13, 2018, Respondent issued a Corrective Action Notice to Petitioner, which resulted in Petitioner being placed on probation for ninety days. Based on her prior demand, Respondent gave Petitioner a cost-of- living increase that commenced in her February 16, 2018, paycheck and continued until her termination. In February and March 2018, Petitioner had several e-mail exchanges with her supervisor, Respondent’s Human Resources Director, and Respondent’s Executive Director, wherein she raised concerns about her salary and job responsibilities. On March 13, 2018, Petitioner submitted another grievance to Respondent reiterating her prior allegations of discrimination and claiming that she was the subject of a campaign of harassment and retaliation. Respondent subsequently became aware that Petitioner was making disparaging remarks about Respondent on social media, in violation of Respondent’s Policies & Procedures. Petitioner also allowed Respondent’s clients to be present in her home in violation of the Code of Ethics. Although several witnesses testified that Petitioner was a dedicated employee, Respondent ultimately determined that her termination was appropriate based on her violations of the Policies & Procedures and Code of Ethics. Respondent terminated Petitioner’s employment on March 26, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S BRITTANY O. FINKBEINER 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 26th day of May, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Gary Shendell, Esquire Shendell & Pollock, P.L. 2700 North Military Trail, Suite 150 Boca Raton, Florida 33431 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Tiffany Rusinko 615 Southeast Eighth Avenue Okeechobee, Florida 34974 Seth A. Kolton, Esquire Shendell & Pollock, P.L. 2700 North Military Trail, Suite 150 Boca Raton, Florida 33431
The Issue Whether Petitioner was the victim of an unlawful employment practice.
Findings Of Fact Petitioner is a black woman who was employed by Wal- Mart, Inc., at its Marianna, Florida store, as a cashier, from May 29, 1995, until her termination on April 19, 1999. The Marianna store is a "Super Wal-Mart." Respondent is a large retail establishment subject to the "Florida Civil Rights Act of 1992," as contemplated by Section 760.02(7), Florida Statutes. Prior to being employed by Respondent, Petitioner experienced mental depression and mood swings. She had anxiety attacks, including agoraphobia. Once she resided in her bedroom without exiting for nine months. Eventually, she became well enough to hold a job with Respondent. During the time she worked for Respondent she was also employed by a nearby service station. Ms. Jeannie Garrett, a black woman called as a witness by Petitioner, related an incident where she believed she was mistreated in a conflict involving whether a mop was or was not placed in a sink. She also was involved in a disturbance involving a customer in the restaurant portion of the store. She was admonished by the person in charge of the restaurant. Ms. Garrett was transferred to a cashier position and quit as a result. Ms. Garrett testified that, "It wasn't about race. It was because she didn't like me." Neither Ms. Garrett nor Petitioner presented any evidence that Respondent was prejudiced against anyone because of race. The evidence of record indicating that Petitioner was disabled consisted solely of her testimony that she had emotional problems, and a doctor's note dated August 26, 1998, entitled "For Margie Israel," which stated, "(undecipherable) needs one week off due to severe anxiety depression." Petitioner presented testimony regarding a number of incidences which she believed proved she was mistreated. In a question involving a determination of the correct amount of change, William Michael Gilmore (Mr. Gilmore), the store manager, talked harshly to her. Jan K. Peterson, in Petitioner's opinion, wanted to dominate Petitioner, resented Petitioner, talked harshly to Petitioner's husband, and "sassed" Petitioner's husband. Petitioner bought numerous items in the store and some of the cashiers did not want to check her out because she used coupons and determining the value of the coupons was too complicated for them. On one occasion Petitioner tried to use a coupon and a cashier named Rose instigated an argument about the matter. Petitioner believed Rose had a vendetta against her. The disagreement became loud and the Customer Service Manager (CSM) got involved. Francis Baker was the shift manager on duty and Petitioner tried to talk to him about the incident but he walked off. This hurt Petitioner's feelings. On one occasion a man attempted to utilize a discount card at another cashier's post and Petitioner intervened and informed the cashier that the man was separated from his wife, an employee of Respondent, and therefore was not eligible to use his discount card. The husband became angry and called her a "bitch." On another occasion the midnight cashier refused to check out Petitioner who had attempted to use a "comp ad." A "comp ad," is utilized in a situation where a customer produces an advertisement from a competitor which demonstrates that the competitor offers an identical product at a lower price. In such a situation, Respondent will sell the product at the competitor's price. Petitioner complained about this which attracted the attention of the night manager. This resulted in a disputatious event which disturbed the tranquility of the store. Petitioner wanted to be a backup CSM but was not installed as such. There is no actual position of "back-up CSM." It is simply a temporary working title. Petitioner never told Respondent's manager, Mr. Gilmore, or anyone else in authority, that she had a mental disability, although she once told Mr. Gilmore that she was suffering from depression. Petitioner never requested an accommodation. Mr. Gilmore was aware that Petitioner was afflicted with diabetes and made every accommodation for that condition, including giving her "breaks" and allowing her to have juice and water at her work station. This was accomplished even though Petitioner never provided Respondent with information from a physician indicating that she had diabetes. There was no record in her personnel file indicating that Petitioner was afflicted with diabetes or any other disorder. Petitioner agreed that during the time she worked for Respondent the drugs she was ingesting, designed to combat depression, controlled her problem. Petitioner affirmed that she was not limited in any major life activity as a result of her depression. Moreover, the record reveals that during the period prior to her termination she successfully worked at two different jobs. Jan K. Peterson is experienced in the retail trade. She was a supervisor of cashiers and CSM supervisor. She supervised Petitioner and observed that Petitioner was often late. Ms. Peterson tried to establish new hours for Petitioner for the convenience of Petitioner but Petitioner continued to be tardy nevertheless. She observed Petitioner clock in and thereafter visit with other associates rather than report to her work station. Ms. Peterson observed that Petitioner was disrespectful to the CSM's. On one occasion, Petitioner threatened to "get" her in the parking lot. Ms. Peterson concluded this communication was a threat of physical harm. Even though Ms. Peterson was often Petitioner's supervisor, Petitioner generally refused to speak to her. Petitioner indicated that she desired to be promoted to CSM. Ms. Peterson tried to train her so that her hopes could be realized. Ms. Peterson put Petitioner on the service desk to expand her vocational horizons. However, no openings for CSM occurred subsequent to Petitioner requesting the promotion and her eventual termination. Respondent demonstrated its caring attitude toward its personnel by providing a program called Resources for Living. This is a program for the benefit of employees although residual benefit is gleaned by Respondent. The program is designed to provide help to those who experience stress, or mental problems, alcoholism, or other maladies. The availability of this program was widely advertised in the store and Petitioner was aware of its availability. Petitioner never took advantage of this program. Brenda Garrett has worked at Wal-Mart for six and one half years and worked as a manager in another retail store before being employed by Wal-Mart. She is also a certified nursing assistant. Ms. Garrett observed Petitioner reporting to work late on numerous occasions. She was never informed by Petitioner that Petitioner believed she was mentally disabled. Ms. Garrett did, however, know that Petitioner was diabetic. During April 1997, Mr. Gilmore became manager of the Marianna Super Wal-Mart. Upon assuming his duties he reviewed employee work histories. Petitioner's record attracted his attention because it revealed entries involving insubordination, dress code violations, and tardiness. Mr. Gilmore attempted to counsel Petitioner in an effort to make her a better employee. Petitioner would not talk to him upon his initial attempt. Eventually she consented to talk to him and told him she wanted to be a CSM. Mr. Gilmore stated that if she improved her performance in her current position she could possibly be a CSM. Mr. Gilmore observed that Petitioner was capable of accomplishing her assigned duties. On one occasion Petitioner informed him that she was depressed. Mr. Gilmore asked her for documentation with regard to her depression but she never provided it. He did ensure that she was provided juice to ameliorate problems caused by her diabetes. Petitioner never asserted to Mr. Gilmore that she was disabled in any way and he observed no disability. Petitioner was the recipient of "coaching" forms. Some were entitled "Coaching for Improvement" forms. These forms are used to record a disciplinary breach and the corrective action taken. They cover the period May 7, 1997 through May 17, 1999. The coaching forms revealed that Petitioner was counseled for being short in her cash drawer, tardiness (twice), failing to make correct change, insubordination, shopping on duty, and causing a disturbance in the presence of customers on two occasions. Petitioner, during the time she worked at Respondent's store, was recorded as being late to work at least 38 times. Mr. Gilmore fired Petitioner because of her bad behavior, tardiness, absenteeism, and insubordination. He did not fire her because he did not believe she had a disability. He indicated a willingness to rehire her at some future date.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Petition. DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida. 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 21st day of June, 2002. COPIES FURNISHED: Margie R. Israel 2940 Carver Lane Marianna, Florida 32446 John A. Unzicker, Jr., Esquire Vernis & Bowling of Northwest Florida, P.A. 635 West Garden Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner Linda Mae Krueger, a white female, became a manager at One Stop Oil's Riverview, Florida, store on April 1, 1986. Petitioner's first immediate supervisor was Mr. Tom McBeth, area supervisor for six stores. Mr. McBeth was replaced by Mr. John Richardson on January 26, 1987. Upon becoming area supervisor, Mr. Richardson implemented certain changes in the manner in which all store managers under his supervision were to perform their duties. Petitioner disagreed with Mr. Richardson's changes and failed to follow some of Mr. Richardson's instructions regarding these changes. Petitioner developed a great deal of hostility towards Mr. Richardson and refused to accept the fact that the changes in operation were within Mr. Richardson's managerial capacity. The basis of Petitioner's claim of discrimination was Mr. Richardson's attempt to implement operational changes which Petitioner disagreed with and which were clearly not sexually discriminatory in nature. At the hearing, Ms. Krueger testified that she felt like she was treated unfairly by Mr. Richardson, but admitted that Mr. Richardson placed the same requirements on all other store managers. Petitioner, in June of 1988, told Mr. Richardson that she was considering leaving employment during the beginning of July. Petitioner marked on her store's calendar that she was leaving employment on July 2, 1988. Petitioner, on August 12, 1988, again gave verbal notice to One Stop Oil that she was separating employment with the company on August 27, 1988. At the time the Petitioner gave One Stop Oil this verbal notice of separation, Petitioner was planning to move with her family to North Carolina. On August 17, 1988, Petitioner quit her position as store manager at One Stop Oil's Riverview store. She quit because of a pay dispute over the amount of her bonus check. Petitioner and her husband expected a larger check. When Petitioner's husband saw the actual amount of the check he called the Jacksonville office of Respondent and told them he was closing the store and they had "better get somebody down there." Petitioner and her husband then left the store. Respondent sent Mr. Richardson to the store. He called in Cheryl Chipman and began accounting for the store receipts. He discovered that $1,700 in deposits was missing. Petitioner had given the deposit money to her husband on the day the check dispute arose. Petitioner's husband could not adequately account for the missing money. 1/ Respondent obtained Petitioner's store keys from her without any discussion. The keys were voluntarily turned over by Petitioner. Petitioner never reported for work afterwards. Petitioner's position was filled by Ms. Cheryl Chipman, a white female.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the petition against Respondent be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of January, 1989. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989.
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. 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 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
