The Issue Whether Respondent unlawfully terminated the employment of Petitioner, because of his age in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes. Whether Respondent retaliated against Petitioner by terminating him on October 3, 2005, after Petitioner filed a complaint with human resources alleging a hostile work environment.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Leviton Manufacturing Corporation manufactures electrical equipment and components. It is a New York corporation licensed to do business in the State of Florida. Inter allia, Respondent employs a sales force that covers the entire State of Florida. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 ("FCRA"). Respondent has implemented an employee handbook aimed at fostering a work environment that is free from harassment, discrimination and retaliation. Respondent's policies contain reporting and investigation procedures that encourage employees to report any and all incidents of perceived discrimination or harassment, and ensure that all reported incidents are investigated. Petitioner was employed with Respondent from June 1995 until November 2003, and from July 2004 through October 3, 2005. At the time of his termination, Petitioner was 49 years old. Petitioner first began working for Leviton in 1995 as a Service Representative. He received merit pay raises and promotions until November 2003, when Respondent laid-off 150 people in the retail division, including Petitioner. Petitioner was rehired in July 2004, as a Sales Representative. Upon rehire, Petitioner was supervised by District Manager Scott Robbins ("Robbins"). Petitioner presented the testimony of three of Respondent's managers, one retired, who supervised Petitioner for various periods of Petitioner's nine and one-half year career with Respondent. Each of them testified that Petitioner was dedicated and professional in which ever position he was assigned, including two assignments as a manager. Scott Robbins, Petitioner's supervisor immediately prior to Goodman, recommended Petitioner for re-hire as a Sales Representative following a lay-off, and was satisfied with his work in that position. Petitioner also presented the testimony of 12 customers of Respondent, in the territory that he covered between July 2004 and October 2005. Each of them expressed their opinion that Petitioner was an honest, diligent, and professional sales representative for his employer. Respondent presented the testimony of one customer who was not satisfied with Petitioner's performance as a sales representative. In January 2005, District Manager Warren Goodman ("Goodman") replaced Robbins and assumed his territories as well as his role as Petitioner's supervisor. At the time Petitioner was terminated, Goodman was 48 years old. Goodman supervised, and currently supervises, at least, 12 Sales Representatives, the majority of whom are over the age of 40, to wit: Name Age Name Age Roy Boykin 59 Mickey Ferrell 49 Don Yeager 59 Jose Monzon 40 Michael O'Reilly 56 Duane Bishop 38 Dave Lenoir 37 Kevin Bouton 34 Ken Davis 54 Paul Dube 41 Brad Taylor 10. When Goodman 52 took over as District Manager, it became readily apparent that Goodman's management style was distinctly different from Robbins. Goodman is demanding, blunt and aggressive, and closely manages his sales representatives. He expected prompt and accurate responses to his requests from his sales representatives. Petitioner was required to fulfill the same job expectations that were demanded of all other Sales Representatives. It included, but was not limited to, the timely submission of complete and accurate paperwork, client follow up, and travel to specific areas within his designated territory. Petitioner's area extended from Lakeland, Florida, to Thomasville, Georgia. Goodman expected Petitioner to visit customers in his territory at least every three weeks, staying at least two to three days on each trip at each location. Goodman's job as District Manager is to oversee his sales force and to enforce Leviton's guidelines, as he interprets them. Moreover, Goodman is charged with measuring his employees' compliance with Leviton's policies and procedures. Over the course of his tenure, Petitioner failed to abide by company rules and policies, as well as the terms of his employment, as understood by Goodman. On more than one occasion, Petitioner failed to provide expense reimbursements in an appropriate and timely manner. He also failed to travel with the frequency required by his sales position. Additionally, on numerous occasions, Petitioner failed to verify the accuracy of orders he placed for customers. On May 2, 2005, Goodman sent Petitioner an email addressing the importance of administrative responsibility and consistency. Goodman had just reviewed Petitioner's expense reports and noted that they covered a ten-week period, clearly in violation of the requirement that they be submitted within 30 days. Goodman also noted that the expense reports reflected no travel over a two-month period to the Thomasville/Tallahassee area, which composed a large portion of Petitioner's territory. Goodman requested that, thereafter, Petitioner forward his itinerary weekly, attaching as an example a copy of itineraries submitted by Petitioner's colleagues. Petitioner responded, apologizing for the late expenses. He attributed his tardiness in part to a change in his cellular telephone carrier. Petitioner set forth all his travel dates within the northern portion of his territory since his re-hire. The dates provided demonstrated that he was not in compliance with the travel requirements established for all Sales Representatives. Goodman responded and reminded Petitioner of the importance of adhering to guidelines for travel and paperwork submission. He encouraged Petitioner to improve his performance and to do what was necessary to satisfy Goodman's expectations of the proper skills necessary to do his job effectively. On May 9, 2005, Petitioner sent Goodman an email indicating his car was being repaired. The repair estimates attached to the email evidenced that Petitioner had been driving a 12-year-old vehicle, which was not within Respondent's car policy guidelines. Petitioner had reviewed and signed the car policy guidelines on January 12, 2005, and began receiving monthly payments (including retroactive payments), effective February 11, 2005. On May 18, 2005, Petitioner received and signed an Employee Warning. Significantly, Petitioner signed the Employee Warning indicating that he read and understood it. The Employee Warning cited violations for substandard job performance and violations of company policies or procedures, with specific reprimands for: (1) failure to timely submit expense reports; (2) failure to travel as specified and agreed to; (3) sloppy submission of paperwork; (4) lack of involvement with customer; and (5) failure to maintain a proper company vehicle in accordance with company policy. Shortly thereafter, Petitioner purchased a new truck for the purpose of meeting the company vehicle policy. On May 31, 2005, Goodman reviewed numerous quotes submitted by Petitioner for review and renewal. Goodman informed Petitioner that upon review, the quotes prepared by Petitioner were inaccurate and required various revisions and corrections. Some quotes were priced higher than stock; different prices were entered for the same item in a different color (when there should have been no price difference); there were items on quotes that were never purchased; and there was no increase in items ordered/quoted. In August 2005, Goodman advised Petitioner that his sales goals were not ambitious enough and that Petitioner needed to re-evaluate and re-consider his year-end goals. Petitioner indicated that he would do as instructed. In mid-August 2005, Petitioner once again submitted an incomplete quote to Goodman for approval. When brought to Petitioner's attention, he added the items missing from the quote, offering no explanation for this oversight. On August 30, 2005, Petitioner submitted order adjustments to Goodman's administrative assistant for completion. When the request was forwarded to Goodman, he immediately reminded Petitioner that all changes were required to be submitted to him, not his assistant. Moreover, the requested changes contained errors. Goodman requested that Petitioner review the complete order and re-submit it when it was accurate. Three days later, Petitioner still had not acknowledged or responded to Goodman's request. Goodman completed and submitted Petitioner's performance review on July 25, 2005. Due to the fact that no prior goals or skills development were accomplished by Petitioner, his review was deferred until the end of 2005. Based upon his seven-month assessment of Petitioner, Goodman felt that Petitioner only partially met expectations. Rather than precluding a merit increase in salary, Goodman gave Petitioner an opportunity to improve his performance by deferring his review for several months. Petitioner signed this July review, indicating that Goodman discussed the review and appraisal with him. On September 5, 2005, (Labor Day, a holiday) Goodman sent an email to all of his Sale Representatives, which required a response to specific inquiries no later than 5:00 p.m. Petitioner did not respond until September 7, 2005, at 4:15 p.m. This was clearly past the deadline. Goodman reprimanded Petitioner in his responsive email, specifically advising Petitioner that his continued employment was in jeopardy. He invited Petitioner to call Goodman the next day to discuss Petitioner's lack of diligence and timeliness. Only after a telephone call on the morning of September 9, 2005, did Petitioner, for the first time raise the issue of unfair treatment, but he did not raise age as a factor. Petitioner requested, via email, that Goodman assist Petitioner in filing a complaint against Goodman with Leviton's Human Resource Department for creating a hostile work environment. In this same email, Petitioner informed Goodman that Petitioner had involved clients in his grievance by requesting that the clients evaluate Petitioner's performance and provide their input to Respondent. Based upon the preceding client involvement, Goodman advised Petitioner on September 12, 2005, that he was suspended immediately, with pay, pending the outcome of Respondent's investigation regarding Petitioner's inappropriate conduct. Petitioner was therefore instructed to maintain contact with only the Human Resources Department (HR) until further notice. Thereafter, Petitioner corresponded, via email, with Shephard. On September 13, 2005, Petitioner forwarded his May 5, 2005, email exchange with Goodman to Kimberly Shephard, Respondent's Corporate Human Resource Manager. On that same day, Petitioner sent another email to Shephard containing a list of items that were still incomplete and required follow up. In forwarding this lengthy "to do" list, Petitioner demonstrated his inattention to detail and inability to complete administrative tasks. On September 16, 2005, Shephard drafted Petitioner's allegations in memorandum format, the accuracy of which Petitioner verified and signed on September 20, 2005. Goodman was given a copy of the allegations and provided a written response on September 19, 2005, refuting each of Petitioner's allegations. Meanwhile, HR conducted interviews with a random selection of Goodman's employees in the district and noted each employee's assessment of Goodman. Goodman was determined by each of the interviewed employees to provide equal treatment to all employees. The employees interviewed ranged in age from 35 to 58. On or about September 20, 2005, Shephard completed her investigation of Petitioner's complaint and determined that there was no basis that Goodman created an unlawful hostile work environment. Rather, it was determined that Goodman set the same standards for all of his employees; treated them all the same; and that accordingly, there was no basis to conclude Petitioner was singled out. Petitioner was ultimately terminated on October 3, 2005. The reasons cited by Respondent were based on Petitioner's unsatisfactory job performance. The specific reasons given for Petitioner's termination were: (1) his inability to perform the tasks associated with the Sales Representative position; (2) his failure to develop end-users sufficiently; (3) his administrative inadequacies; (4) his failure to meet deadlines and failure to follow instructions; and (5) his choosing to enlist customers in an internal company matter pertaining to Petitioner's poor job performance. Although Respondent determined that Petitioner's involvement of customer's in an internal dispute was grounds for immediate termination, Respondent determined it would investigate Petitioner's complaint prior to taking other action, since it occurred at the same time as the allegations of improper conduct by Goodman. At no time was Petitioner's age raised as a factor in any of the terms and conditions of his employment by Respondent. Nor was it a factor in any work related complaints regarding his deficiencies. Petitioner never informed any member of Respondent's management that he believed he was treated differently during his employment because of his age, or that he had been terminated due to his age. After Petitioner was terminated, Respondent did not hire anyone to replace him. Rather, Respondent re-assigned Petitioner's territory to existing salesmen. Paul Dube ("Dube"), aged 41, inherited the majority of Petitioner's territory. Goodman did not require that Dube travel to, or invest time in customers that only did a nominal amount of business with Respondent. Petitioner attempted to establish that he was unable to respond to several of Goodman's inquiries in a timely manner, or at all, because Petitioner's computer was being repaired by Respondent's IT department. Nevertheless, Petitioner had access to his work email via Respondent's webmail program during this period. Petitioner failed to prove by a preponderance of the evidence that he was terminated by Respondent because of his age. Respondent failed to prove by a preponderance of the evidence that he was subject to retaliation after he filed a hostile work environment complaint with Respondent's HR department.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Petitioner's Petition for Relief and dismissing his charge with prejudice. DONE AND ENTERED this 13th day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2007.
The Issue Whether Respondent discriminated against Petitioner on the basis of his age, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2003).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: On March 11, 2004, Petitioner, who was 73 years old, submitted an application for employment to Respondent. Respondent is in the business of transporting passengers to and from airports in Melbourne and Orlando, Florida. It has four regular employees and approximately 20 independent contractors. Petitioner maintains that in an interview with Sandra Tant, president of the Respondent corporation, he was advised that he was "too old" to be employed. This is the sole basis of his claim. Respondent specifically denies having made any statement, either directly or indirectly, to the effect that Petitioner was "too old" to be hired. Respondent testified that Petitioner's motor vehicle operator's license had a "hole" punched through the year portion of the date of birth. This occasioned inquiry into Petitioner's age, although he appears to be his stated age. Petitioner denied that there is a hole in his motor vehicle operator's license. In the copy of Petitioner's motor vehicle operator's license, which is part of Respondent's Exhibit 1, the year is obliterated. When asked to produce his motor vehicle operator's license at the hearing, Petitioner stated that he did not have it. Respondent indicated that Petitioner was disqualified from employment by insurance requirements. Respondent presented a list of Respondent's insurer's driver eligibility standards which indicate that "[T]wo years of driving experience with a like vehicle (limousine, van &/or bus) is preferred." Sandra Tant's testimony on relevant matters is more credible.
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 finding that Petitioner did not discriminate against Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 19th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 William Monzidelis 2460 Alicia Lane Melbourne, Florida 32835 Sandra Tant, President Melbourne Shuttle, Inc. 1 Air Terminal Parkway Melbourne, Florida 32901 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact Respondent is a residential facility for persons with various disabilities. It maintains several buildings to house its clients. On September 1, 2000, Petitioner, who is female, began her employment with Respondent. She was employed as a consumer adviser. In that position she was responsible for transporting clients to and from appointments, picking up various medications and some clerical duties as needed. Initially, she was assigned to work the 7:00 a.m. to 3:00 p.m. shift at one of the Respondent’s facilities. Sometime around August 26, 2000, Petitioner was reassigned to the night shift because, through a miscommunication, Respondent’s director believed Petitioner had cancer and was undergoing chemotherapy. The director thought the nightshift would be less stressful during this time period. However, the evidence showed that it was Petitioner’s father who had cancer and was undergoing chemotherapy. The manager’s belief that it was Petitioner who had cancer was genuine and the shift change was made in order to help Respondent. Indeed, at the time Respondent never complained that the change in shift was made to sexually harass her. Around September 10, 2002, Petitioner claimed she was sexually accosted by a co-worker, Tommy Moore. Mr. Moore worked the same shift as Petitioner and at the same building. Petitioner testified that while she was on the phone to her supervisor, Otelia Arnold, Mr. Moore entered the room and began making lewd gestures of a sexual nature to her. At one point he allegedly came up behind her and rubbed his penis against her. Petitioner reported the incident to Ms. Arnold while she was on the phone with her. Ms. Arnold did not testify at the hearing and there were no corroborating witnesses to the incident. Mr. Moore denied the acts alleged by Petitioner. Petitioner did not report the incident to the executive director and did not report the incident to the police. On the other hand, Petitioner grew very emotional during the hearing while testifying about the incident. However, the totality of the evidence was insufficient to establish that Petitioner was accosted by Mr. Moore during her phone call to her supervisor. Sometime after September 10, 2002, Petitioner began to arrive at work one to three hours ahead of her scheduled work time. Petitioner claimed at the hearing that she arrived early because she didn’t like to ride the bus at night. Co-workers complained about the disruption her early arrival caused in the care of the residents. Therefore, on October 16, 2002, the director gave Petitioner a memorandum instructing her not to arrive at work more than one-half hour before her shift. At the time of the memorandum, Petitioner did not explain her reasons for arriving early to the director. Nor did Petitioner complain to the director that she felt she was being sexually harassed. There was nothing in the record that demonstrated the director’s action was done in order to sexually harass Petitioner or to maintain a sexually hostile work environment. Indeed, the first complaint of sexual harassment of which the director was aware occurred when he received Petitioner’s Charge of Discrimination from the Alachua County EEOC office sometime after November 5, 2002. That charge alleged that Petitioner had been sexually harassed by Mr. Moore as described above. The director immediately investigated the allegation and did not find any evidence that the incident had occurred. Nevertheless, the director reassigned Mr. Moore to another facility and prohibited him from having any contact with Petitioner. The evidence did not show any adverse action was taken against the Petitioner in retaliation for filing her complaint. The evidence was unclear and disjointed regarding specific events following November 5, 2002. At some point, Petitioner telephonically contacted various employees at home while she was at work. Several of these contacts caused the employees and their families to complain to the director. Because of these complaints, Petitioner was instructed not to contact co-employees at home concerning work-related matters. On July 19, 2003, Petitioner observed a resident with scrapes and bruises on his arms. The scrapes and bruises were old self-inflicted injuries from which the resident had picked the scabs. She reported the resident’s condition to the abuse hotline maintained by the Department of Children and Family Services. Dexter Miller was the staff member responsible for the care of the resident during the prior shift. Without any authority to investigate further and in violation of the director’s earlier directive, Respondent tried to call Dexter Miller at home. She spoke with Mr. Miller’s wife and told her that the director planned to blame the abuse on Mr. Miller and that Mr. Miller was required to report to work immediately. Petitioner then contacted Mr. Miller at his other job and told him that the director was going to blame him for the abuse. None of this information was true. As a result of these phone calls and misinformation, Petitioner was terminated from employment with Respondent on July 23, 2003. The basis for Petitioner’s termination was legitimate and reasonable. Finally, there was nothing in the evidence that linked Petitioner’s termination or any directives she received from the director to any sexual abuse or sexual harassment by Respondent. Likewise, there was nothing in the evidence that Respondent permitted a sexually hostile environment to exist or persist. Therefore, due to the lack of evidence, the Petition for Relief should be dismissed.
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 dismissing the Petition for Relief. DONE AND ENTERED this 7th day of October, 2004, 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 7th day of October, 2004. COPIES FURNISHED: Latanya Grimes 3204 Southwest 26th Terrace, Apartment A Gainesville, Florida 32608 Herbert Webb, Esquire 4400 Northwest 23rd Avenue, Suite E Gainesville, Florida 32602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on May 4, 2001.
Findings Of Fact Petitioner is an African-American woman who was employed by Respondent from July 2000 until her termination on January 24, 2001. At the time she was hired, the staff at the store location where Petitioner was employed was comprised of mostly black females. Initially, Petitioner held the position of hotline operator. In December 2000, she became an assistant manager of the store and another African-American woman, Latasha Green became the store manager. According to Petitioner, problems began to arise after she and Ms. Green were promoted to managerial positions. While an assistant manager, Petitioner's duties included closing the store and taking deposits to the bank where she had a key to the store's safe deposit box. On January 5, 2001, Petitioner and Ms. Green attended a meeting with their supervisor, Jason Rudd, a white male. This meeting was upsetting to Petitioner because of comments made to her and to Ms. Green by Mr. Rudd. In particular, Mr. Rudd commented that there were too many "dark clouds" in the store, which Petitioner interpreted to be racist remarks. At the January 5, 2001, meeting, Petitioner learned that a white male, Jason Smith, was going to be brought in as the new store manager. With this change in personnel, Ms. Green was demoted from store manager to assistant manager and Petitioner was demoted from assistant manager to hotline operator. When Petitioner was demoted, she did not receive a cut in pay. Petitioner informed Mr. Rudd that it was her intention to leave her employment with Respondent because her sister was ill. She informed Mr. Rudd that January 25, 2001, would be her last day. However, she was terminated on January 24, 2001. Between January 4 and January 24, 2001, three white males were hired, and four black females, including Petitioner and Ms. Miller, were discharged. The reason for her termination on the Report of Employee's Termination form was "not working out." However, on the same form, her job performance, attendance, and cooperation were rated as "good." Additionally, the form had a blank following the question, "Would you rehire this employee?" The blank was filled in, "yes." Petitioner filed for unemployment compensation and initially received $512.00 in unemployment benefits. However, after a telephone hearing, the Division of Unemployment Compensation informed her that she must repay the $512.00. At the time of her discharge, Petitioner was earning approximately $250.00 per week. Petitioner seeks back pay, the $512.00 in unemployment compensation, and a verbal apology from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that Respondent engaged in unlawful discrimination and paying Petitioner $50.00 in back pay. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2003.
The Issue Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and, whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, Progress Energy Corporation, is a public utility which provides electrical power. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003). Petitioner is an African-American female. She began working for Respondent in October 1980. Petitioner was finally discharged from her employment on December 12, 2003. During her period of employment, she received various promotions and eventually became a service coordinator. She worked at the Jamestown Operations Center and was responsible for designing electrical power services and customer coordination. In 1992, Petitioner was terminated and re-hired at a lower position as discussed hereinafter. Steven McKinnie became Petitioner's supervisor in March 2002. While Petitioner's performance was adequate, Mr. McKinnie received complaints from both co-employees and customers about Petitioner's work performance. As a result, he engaged in private counseling sessions with Petitioner as he did with other employees. Concerned about Petitioner's performance, Mr. McKinnie consulted with Respondent's Department of Human Resources regarding the advisability of employing a "360 survey" as a tool for improving Petitioner's performance. A "360 survey" provides an employee with confidential assessments made by co-employees as a tool for self-improvement. A "360 survey" is not a disciplinary tool, nor does it effect an employees status. After receiving Petitioner's approval to conduct the "360 survey," on March 6, 2003, Mr. McKinnie distributed the survey questionnaire to Petitioner's co-employees. On the evening of March 6, 2003, Petitioner e-mailed Mr. McKinnie objecting to the "360 survey." The following day, March 7, 2003, the Jamestown Operations Center staff, including Petitioner and Mr. McKinnie, were in Deland, Florida, for a "two c's" (compliments and concerns) meeting. This is another human resources' tool. This gives employees the opportunity to express their concerns and for management to respond to those concerns. During the "c and c" meeting, Petitioner voiced her complaint about the "360 survey." This was Mr. McKinnie's first notice of her objection. She also complained that Mr. McKinnie treated employees as if they were in high school and intimidated them (or words to that effect). No mention was made of racial or sexual discrimination. The results of the "360 survey" were offered to Petitioner as a self-improvement tool. The survey was not included in her performance evaluation nor did it effect her pay. In early December 2003, Respondent's management received a complaint from a co-employee that Petitioner was using Respondent's postage machine for personal use. Shortly thereafter, Sandra Shields, conducted an investigation of the alleged impropriety. Respondent's postage machines and the cost of mailing are to be used for Respondent's business purposes only, not for personal use. During the investigation, Petitioner asserted that other employees similarly used the postage machine for personal use. She declined to identify any employees. The investigation failed to corroborated Petitioner's assertion. Petitioner had two employment-related incidents of theft. In 1990, she was arrested during her lunch period and incarcerated for retail theft. The company vehicle she was driving was impounded. She entered a pre-trial diversion program and admitted the theft. Her arrest and record of pre-trail diversion was made a part of her employment record. On a second occasion, in June 1992, Petitioner received a letter of reprimand because she "misused her position as an Engineering Technician for personal gain." She had produced and submitted engineering drawings for underground cable installation at the residence of a family member. The letter of reprimand noted: "This type of action cannot be tolerated. Further violations of this nature will result in disciplinary action, up to and including termination." As noted on the letter of reprimand, Petitioner did not agree with it (the letter). Incidental to this incident, Petitioner was terminated. She grieved her termination and was rehired at a lower paid position. The letter of reprimand was placed in her employment record. As a result of Petitioner's misuse of the postage meter, aggravated by the two previous incidents of theft, Petitioner was terminated. Subsequent to her termination, Petitioner complained to the Respondent's "Ethics Line" and invoked Respondent's dispute resolution process to contest her termination. Additional investigations did not change the facts or the outcome. At the hearing, Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas Martin Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33601 Curtis B. Lee, Esquire 37 North Orange Avenue, Suite 500 Post Office Box 3412 Orlando, Florida 32802 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact James A. Bitting, Petitioner, was first employed by Crawford and Company in its Tampa office as a property appraiser in October 1973, and remained so employed until he was terminated in July 1988. Petitioner was involved in an automobile accident in 1983 while on company business and sustained back injuries which thereafter was the source of lower back pain if he remained in one position (either standing or sitting) for an extended period. However, he made no claim and submitted no medical evidence of this handicap until after his termination from employment by Respondent. In 1987 and 1988, claims cases at Crawford decreased, and the regional office began telling the Tampa office that they should look to a reduction of personnel. Satellite offices at Brooksville and Plant City were closed and the adjustors in charge of those offices were brought in to the Tampa office. At the time of his termination there were four outside adjusters at the Tampa office with Respondent being the only designated property adjuster. The others dealt primarily with casualty claims. Property claims had declined to a point there were insufficient claims to occupy one adjuster full-time and Petitioner was being given a few simple casualty claims. The regional office and the Tampa office generally agreed that one appraiser should be terminated. At the time this determination was made Respondent had the lowest evaluations of the four adjusters. Further, he had received the second phase of a progressive discipline notice (Ex. 2) stating his work performance was unsatisfactory due to non-compliance with work standards. Petitioner presented no evidence to support his contention that his age was a proximate cause of his termination, other than his bare allegation that during this period no employee under 40 was terminated. Substantial evidence was presented that Respondent continues to have numerous people in it's work force older than 50 and 60 years of age. During the presentation of his case, Petitioner referred repeatedly to the failure of Respondent to provide him with a comfortable office chair in which he could sit without hurting his back. Although several employees of Respondent were aware that Petitioner had a back problem, Petitioner, prior to his dismissal, never presented any medical evidence that he needed special equipment, or was physically unable to perform any tasks. He had continued to climb ladders to the roofs of houses when necessary in his job as property adjuster. Following Petitioner's termination, his job was not filled. Respondent, as part of their reorganization, moved another adjuster into the department vacated by Petitioner, but this employee brought with her workers compensation claims which consumed 75-80% of her time. Later Respondent also transferred into the Tampa office a property general adjuster to drum up more casualty business. Upon his arrival he did the property claims formerly done by Petitioner using about 10% of his work time, and spent 80-90% of his time soliciting new business. A property general adjuster is qualified to handle complex claims involving industrial losses while a property adjuster like Petitioner is limited to handling less complex residential claims.
Recommendation It is recommended that a Final Order be entered finding Petitioner has failed to prove that his termination from employment by Crawford and Company was influenced by Petitioner's age or handicap, and that his Petition for Relief be denied. DONE and ENTERED this 18th day of December, 1990, in Tallahassee, Florida. COPIES FURNISHED: G. G. Harvey Manager, CFE Post Office Box 5047 Atlanta, GA 30302 James A. Bitting 11730 Marjorie Avenue Tampa, FL 33612 Louis P. DiLorenzo, Esquire One Lincoln Center Syracuse, New York 13202-1355 Dana Baird General Counsel and Acting Executive Director Human Relations Commission 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 K. N. AYERS 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 18th day of December, 1990.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was discriminated against through an adverse employment decision by the Respondent, because of the Petitioner's age.
Findings Of Fact The Petitioner was hired by the Respondent on or about April 27, 1998, as a salesperson. When the Petitioner was hired he was 77 years of age. He is currently 84 years of age. Apparently the principal reason the Petitioner was hired was because of his substantial business contacts and principal client, which was Winn Dixie Stores, Inc. The Petitioner had sold food, principally seafood, to Winn Dixie for a substantial period of time. The Petitioner worked for a division of the Respondent known as the Great Fish Company. The Great Fish Company began operations in October of 1998. Mr. Carter, the president of Great Fish Company was the Petitioner's supervisor. During his employment with the Respondent, the Petitioner worked from his home. He sold seafood to customers, principally Winn Dixie, for which he was primarily paid on a commission basis. During his term of employment his compensation plan was periodically changed by the Respondent. Some of those changes financially benefited the Petitioner in some years and other changes served to reduce his commission or compensation. During the term of the Petitioner's employment with the Respondent, the Respondent also periodically changed the compensation plans of other employees of the Respondent; some of those changes involved reductions of their compensation plans and some involved increases. This depended upon the sales volume of those individual employees or the revenue situation of the company overall. In or about June of 2003, the Respondent changed the Petitioner's compensation plan. This change did not benefit the Petitioner but represented a reduction in compensation. This change to his compensation plan, however, was based upon legitimate business and financial reasons and was non- discriminatory, because it was based upon a down-turn in business, sales, and revenue for the company. Around the same period of time, the Petitioner advised the Respondent that he believed he was underpaid on earned commissions. Because of this the Respondent performed an audit of the Petitioner's commissions to determine if indeed he had been underpaid. The results of that audit did not establish that the Petitioner had been underpaid but rather that he had been overpaid by approximately $9,000.00 dollars. The audit results were provided to the Petitioner and the Petitioner disputed the results. The Petitioner never complained during his employment to any employees of the Respondent or supervisors suggesting that any employees or supervisors had discriminated against him or retaliated against him because of his age or because of his dispute concerning compensation, during his term of employment. There is no evidence that the Petitioner was singled-out or treated less favorably than other employees, including other employees of different ages, in terms of his compensation or other employment conditions. Indeed, there was no persuasive evidence presented at hearing that the Petitioner was treated less favorably in any way than other employees of the Respondent, regardless of their ages. There apparently came a time after June of 2003 and during 2004 when the Petitioner earned very little or no commissions from the Respondent. His employment was never actually terminated by the Respondent. The Petitioner rather either voluntarily quit his employment sometime prior to the final hearing or his sales opportunities dropped off so that, essentially, he was earning little or no compensation from the Respondent, while working out of his home in accordance with their arrangement. This down-turn in business apparently had a great deal to do with the severe financial circumstances his principal customer, Winn Dixie Stores, Inc., found itself in during this same period of time. In any event, the reduction in the Petitioner's commissions and compensation was not shown to be due to any effort or intent by the Respondent to single him out because of his age and reduce his compensation in some effort to force him to resign or retire. The reduction in his compensation was for the business reason of a decrease in revenues generated by the Petitioner himself or being experienced by the company as a whole, necessitating reduction of not only the Petitioner's but other employee's compensation, as a matter of a prudent business practice by the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and argument of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of August, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 11th day of August, 2004. COPIES FURNISHED: 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 Wyn Samuel 130 Willow Pond Lane Ponte Vedra Beach, Florida 32082 J. Scott Hudson, Esquire 200 South Orange Avenue, Suite 1220 Orlando, Florida 32801 Robert J. Stovash, Esquire Stovash, Case and Tingley, P.A. SunTrust Center 200 South Orange Avenue, Suite 1220 Orlando, Florida 32801
The Issue Whether Respondent discriminated against Petitioner on the basis of her gender, age, and race as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Petitioner is a 49-year-old, African-American female. Petitioner was hired as a customer service representative at Respondent's Maitland, Florida, location on June 3, 2002. Petitioner received a copy of NuVox’ Employee Handbook, which addressed Respondent's anti-discrimination policies, as well as its policies regarding employee conduct, attendance, paid time off, and termination. Respondent provides voice and data communications services to businesses. On or about August 24, 2009, Petitioner was discharged from her employment with Respondent. Arleen Couvertier was Petitioner's supervisor between January 30, 2009, and May 2009. On February 20, 2009, Petitioner received a verbal warning for violating a policy regarding breaks, when she left for a break during a team meeting. Petitioner was informed that failure to comply with the expectations stated in the warning could result in further disciplinary action up to, and including, immediate termination. On April 8, 2009, Petitioner asked to have May 13, 2009, off as she had been subpoenaed to be in court. Petitioner was advised that she would not have enough paid time off to cover an absence on May 13, 2009, as she had already been approved for a three-day vacation at the end of May into early June, which would put her time off balance at an unacceptable negative 15 hours. Respondent suggested that Petitioner reduce her planned vacation by one day in May so the requested May 13, 2009, time off could be approved. Petitioner was reminded that if she kept her vacation hours, the May 13, 2009, court day would be an unplanned absence, which would result in an unpaid occurrence in accordance with Respondent's policies. Petitioner did not rearrange her vacation schedule and took May 13, 2009, off as an unapproved, unpaid absence, thus, earning an attendance occurrence. On May 11, 2009, Katylyn Weems became Petitioner’s supervisor. In May and June, Petitioner did not meet her performance goals. Petitioner's supervisor reviewed her performance statistics with Petitioner and suggested ways that she could improve. On July 30, 2009, Petitioner received a verbal warning from Ms. Weems, which was witnessed by her former supervisor, Ms. Couvertier, for an attitude problem that was borderline insubordinate, because Petitioner failed to acknowledge or respond to three different managers’ in-person, email, and instant message communications on July 29, 2009. Ms. Couvertier felt that Petitioner’s body language, her failure to answer a question asked from three feet away, and subsequent failure to turn away from her computer to answer the same question asked by Ms. Couvertier directly to Petitioner, was insubordination. On August 6, 2009, Petitioner was placed on a Final Written Warning for poor performance. In addition to her low work quality scores in May (45 percent) and June (54 percent), Petitioner scored equally as low in July (49 percent), compared to her goal of 85 percent through August. Petitioner was informed that she had to show significant performance improvement in 11 specific areas, including, but not limited to, continue to be on time at the start of the shift. Petitioner was told that she was expected to show immediate and sustained improvement in her performance and that failure to comply with the expectations in the final warning could result in further disciplinary action up to, and including, immediate termination. On August 10, 2009, Petitioner asked her supervisor to allow her to take Thursday, August 20, 2009, off from work. Ms. Weems denied her request, explaining that she had previously approved Petitioner’s request to take off Monday, August 24, 2009, and Wednesday, August 26, 2009, which was going to create a negative 13-hour balance and, therefore, she could not approve any greater negative time off balance. On August 20, 2009, Petitioner left a message for Ms. Weems that she would not be in that day because she had an appointment, which was later repeated by email. Petitioner did not appear for work on August 20, 2009. Ms. Weems sent an email to Petitioner informing her that she had earned a third unpaid occurrence for her August 20, 2009, absence without paid time off available, along with information about her two other occurrences. Ms. Weems also informed Petitioner that her day off on August 24, 2009, was no longer approved due to her lack of paid time off. On Friday, August 21, 2009, Petitioner called in to say she would not be in to work. Ms. Weems verbally informed Petitioner on the telephone that because she had taken unapproved time off on August 20 and 21, 2009, the approvals for time off on August 24 and 26, 2009, had both been rescinded and the days off would have to be rescheduled as she had no more available paid time off. Knowing that Petitioner had been subpoenaed to appear in court on August 26, 2009, Ms. Weems suggested that she try to come in on August 21, 2009, even arriving late, so that she would still have a paid time off day available to use on August 26, 2009. Petitioner said, “okay” before she ended the call, but did not come in to work at all on August 21, 2009. On August 24, 2009, Ms. Weems reminded Petitioner that her absence on August 20, 2009, was unapproved and that Petitioner had taken that day off anyway, as well as August 21, 2009. Ms Weems further reminded Petitioner that the August 20 and 21, 2009, absences had caused the approvals for time off on August 24 and 26, 2009, to be rescinded as Petitioner had no paid time off and could not have a further exception. In response, Petitioner emailed Ms. Weems, "I understand[,] but I will not be here on the 26th[.] I will be in court." As a result, on the same day, Petitioner was terminated due to insubordination related to her attendance and poor performance. The "insubordination" is related to Petitioner taking both August 20 and 21, 2009, off when she was told that she could not have August 20, 2009, as paid time off. Respondent presented evidence that credibly supports its assertion that its attendance policy was applied equitably without consideration of race, sex, or age.
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 finding that Respondent, NuVox, did not discriminate against Petitioner, Jacquelyn Brown, and dismissing the Petition for Relief. DONE AND ENTERED this 15th day of December, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 15th day of December, 2010.
The Issue Whether Petitioner was discriminated against by the Respondent based on race, and/or retaliated against due to the filing of a charge of discrimination with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Ronald Wilson, is an African-American male. Petitioner was employed with TMH on June 21, 1999, as an environmental services technician. On January 19, 2001, Petitioner received a disciplinary corrective action for discourtesy to a hospital visitor who had complained about Petitioner’s rude and overbearing behavior towards her in a visitor’s waiting area. After admitting the essential facts, Petitioner was suspended for two days for this infraction. On June 27, 2001, Petitioner filed a charge of discrimination with the FCHR, alleging he was wrongfully suspended because of his race. On September 5, 2001, Petitioner was told that his loan application with TMH Federal Credit Union had been denied. Petitioner told a credit union employee, Grace Chambers, that “God doesn’t appreciate people being treated this way” and “Someone is going to have some bad luck,” or words to that effect, when she advised him that his application had been denied. Although Petitioner was speaking metaphysically and did not intend to threaten Ms. Chambers, Ms. Chambers was upset by Petitioner’s comment, perceived Petitioner's comment as a threat and reported it to her supervisor, Marion McCaskey, President of the TMH Credit Union. McCaskey and Chambers, in turn reported Petitioner's threat to Charles Garner, Director of Security at TMH. Ms. McCaskey also reported that Petitioner was known for being unduly persistent in obtaining approval for a loan to the point she had become uncomfortable, albeit not physically threatened, in dealing with Petitioner. Mr. Garner reported Petitioner's conduct to his supervisor, Ron Dorsey. On September 6, 2001, Mr. Dorsey filled out a disciplinary action form recommending Petitioner's discharge because of his comment to Ms. Chambers. Because of Petitioner’s disciplinary history of insubordination and discourtesy, the recommendation was approved by TMH Human Resources, and Petitioner was given notice of his discharge on December 11, 2001. TMH's policy prohibits discourtesy to visitors and other employees, and threats to co-workers. Both of these violations are grounds for discharge. Petitioner produced no evidence that any other non- minority employee was charged with breaking these rules and was treated better. Without such evidence, Petitioner failed to establish any direct evidence that his suspension and discharge were racially motivated. Likewise, Petitioner failed to establish any circumstantial evidence of racial discrimination, since Petitioner’s statements to Ms. Chambers could arguably be considered a threat directed towards her, and there was no evidence that Ms. Chambers’ reaction was not genuine. Petitioner produced no evidence that Dorsey, Garner, Chambers, or McCaskey had notice or knowledge of his charge of discrimination when he was discharged. Therefore, Petitioner has failed to establish that he was discharged on September 11, 2001, in retaliation for filing the charge of discrimination on June 27, 2001. Petitioner produced no evidence that he suffered any past or future wage loss as a result of his discharge from TMH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of March, 2004, in Tallahassee, Leon County, Florida. S 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 12th day of March, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Ronald Wilson 816 Cochran Drive Tallahassee, Florida 32304 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
