The Issue The issue for determination is whether Respondent terminated Petitioner's employment on the basis of Petitioner's age and sex.
Findings Of Fact Petitioner is Lutye T. Willis. She is white and over 40 years of age. She was employed by Respondent from July 21, 1987, until December 30, 1988. Respondent in this matter is Crystal Brands, Inc., successor-in- interest to Hunter Haig, Inc., a subsidiary of Palm Beach Incorporated. Respondent operated a number of retail clothing outlets throughout the country at all times pertinent to these proceedings. Respondent opened a new Evan Picone Factory Outlet store in the vicinity of Lake City, Florida, in July of 1988. In conjunction with opening the new store, Herman Davis, Jack Williams and Steve Anderson, representatives of Respondent and acting as a group, conducted interviews of applicants for the position of store manager. Petitioner was hired as the manager of the new store, effective July 21, 1988. Petitioner had approximately four years of experience in retail sales, although she had little experience in management or supervision. She was hired in the store manager position at a salary rate of $8.71 per hour for a 40 hour week. Four days later, following conduct of other interviews with prospective applicants, a process in which Petitioner participated along with Davis, Williams and Anderson, an assistant manager for the new store was hired. Williams suggested that Petitioner might want to hire a male to assist in the sale of menswear. Petitioner was happy with the choice of Trevor Hickman for the position. She knew the 22 year old white male and, many years earlier, had been his cub scout teacher. Her testimony to the effect that she was forced to hire a male assistant manageris not credited. In the first few days following their hiring, Hickman and Petitioner were trained jointly by Jack Williams in the store's operations. Williams was not confident that Petitioner possessed adequate abilities and skills with regard to bookkeeping and cash register operation when he left the store three weeks later. He apprised home office personnel that Petitioner might require further assistance in these areas of the store's operation. Subsequent to Williams' departure from the store, Petitioner received additional training and assistance from Tabitha Smith, the female manager of another store owned by Respondent. Smith, manager of Respondent's store located in the neighboring vicinity of Valdosta, Georgia, was also consulted about once a week by Trevor Hickman, regarding reports and other store operations, during the period of Petitioner's employment. While good with customers, Petitioner was not so adept at the administrative tasks of management. She generally delegated the preparation of reports to Hickman, although the reports were the responsibility of the manager and were normally signed by her. However, monthly balance reports, required to be completed by the manager, were not assigned to, or prepared by, Hickman. Those reports were delinquent at the time of Petitioner's termination and were subsequently completed by Hickman. In October of 1988, Dan Hardin became the regional manager for Respondent. His regional supervisory role made him the immediate supervisor of Petitioner. He conducted a review ofthe store managed by Petitioner on October 31 and November 1, 1988. Hardin was disappointed with Petitioner's performance with regard to preparation of monthly balance reports and maintenance of the store's bank deposit log. Petitioner received a "poor" rating from Hardin with regard to these tasks in the review. Hardin explained to Petitioner the importance of telephoning the home office on a daily basis with information concerning the amount of funds deposited by her in the bank each day. In her role as the store manager, Petitioner established the work schedules for herself and Hickman. Sometime in late 1988, she arranged the schedules so that Hickman worked five days in a row from December 22 through December 28, in order that Petitioner might travel to Boston, Massachusetts to spend the Christmas holidays. Hickman was scheduled by Petitioner to be off several days around New Years' weekend and the week before Christmas. Petitioner asked Hickman to cover for her in the event that anyone from the corporate offices inquired about her during her absence. Under the arrangement, Hickman was to telephone Petitioner in Boston, Massachusetts, regarding inquiries from the corporate office. However, Hickman was not to tell superiors that Petitioner was in Boston. Hickman was discomfited by Petitioner's arrangements. He knew that Petitioner's plans were contrary tocompany policy and he feared he might be fired if he were viewed as collaborating with Petitioner's scheme. Under Respondent's vacation policy, no employees were permitted a vacation until they completed at least six months of employment. In addition, company policy required approval of managerial vacation by the employee's immediate supervisor and the corporate president, John Lane. Petitioner had not complied with either provision of this policy regarding her planned absence. Hardin normally communicated by telephone on a weekly basis with the store managed by Petitioner. Hardin spoke with Hickman by telephone in the early part of December and learned of the arrangement between Hickman and Petitioner to take time off during the holiday period. Hardin subsequently telephoned the store again and spoke with Petitioner. He asked Petitioner to perform certain tasks during the time period that he now knew she planned to be absent from the store. At that point in the conversation, Petitioner informed Hardin of her intention to go to Boston during the December 22-28 time period. Hardin attempted to dissuade Petitioner from carrying out her plans, pointing out the company vacation policy to Petitioner and the need for John Lane's approval of Petitioner's proposed absence. Hardin further told Petitioner that he could not personally approve Petitioner's request as her supervisor, that he did not believe John Lane would approve such an absence, that shecould not be away from the store that long, and that the period for the proposed absence was one of the busiest times of the year for retail merchandising. Petitioner told Hardin that she still intended to follow through with her holiday travel plans. Following the telephone conversation with Petitioner, Hardin informed Jim Shanis, Respondent's director of stores, of Petitioner's action. Subsequently, after telephoning the store during the period of December 22-28, 1988, and verifying that Petitioner was absent from the store, Hardin decided to terminate Petitioner's employment. Hardin's discharge of Petitioner took place on Friday, December 30, 1988. At that time, he informed Petitioner that her discharge was the result of the unauthorized vacation and her unsatisfactory performance. Hardin's discharge of Petitioner was consistent with Respondent's disciplinary policy which provided for immediate discharge for deliberate disregard of company policy or insubordination. Respondent does not have a work practice prohibiting employment of females in managerial positions. Further, the proof establishes that Respondent had all female management teams at ten of it's 39 stores during the period of Petitioner's employment, as well as individuals in some managerial positions who were over 40 years of age. After terminating Petitioner's employment, Hardin called Hickman to the store and promoted him to the store managerposition with a salary rate of $8.17 per hour, an amount less than that paid to Petitioner. On or about January 20, 1989, Petitioner wrote a letter to the company president, John Lane, complaining that she had not received severance pay. Petitioner did not include within her complaint any allegation that her termination resulted from discrimination on the basis of age or sex.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 21st day of November, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 21st day of November, 1990 APPENDIX The following constitutes my rulings with regard to proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-3. Rejected, conclusions of law unsupported by weight of the evidence. Adopted by reference. Rejected, not supported by weight of the evidence. First part of this proposed finding is rejected as unnecessary with regard to Petitioner's background. Remainder rejected as unsupported by the weight of the evidence. Rejected, unsupported by the evidence. Rejected, unnecessary. 9.-15. Rejected, not supported by weight of the evidence. Rejected, relevancy. Rejected, not supported by weight of the evidence. Rejected, although a male assistant was suggested to Petitioner because of fitting of male apparel, the weight of the evidence does not support that Petitioner was forced to hire Hickman or that she opposed his hiring. Rejected, hearsay. While Petitioner was granted leave to file the deposition of Herman Davis as a posthearing exhibit, no authority was provided to quote documents not in evidence as a basis for a finding of fact. 20.-21. Rejected, not supported by the evidence. 22. Adopted by reference. 23.-25. Rejected, not supported by weight of the evidence. 26. Rejected as argumentative. Although Hardin remained in the hearing room as Respondent's agency representative, Petitioner was not unfairly prejudiced as a result. Respondent's Proposed Findings 1.-5. Adopted in substance. 6.-10. Adopted by reference. 11.-21. Adopted in substance. 22.-24. Adopted by reference. 25.-41. Adopted in substance. 42. Adopted by reference. 43.-44. Adopted in substance. 45.-49. Rejected, unnecessary to result. COPIES FURNISHED: Dana Baird, Esq. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Lutye Willis P.O. Box 646 Brownsville, Vermont 05037 Edwin J. Turanchik, Esq. 501 East Kennedy Boulevard Suite 1206 Tampa, Florida 33602 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue Whether Respondent, Popeye’s Louisiana Kitchen (“Popeye’s”), discriminated against Petitioner, Desmond A. Lucas, in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact Mr. Lucas is an African-American male who contends he was discriminated against by his employer, Popeye’s, while working at one of its restaurants in Pensacola, Florida. He states the basis of the discrimination to be his gender, male. At the time of the final hearing, Mr. Lucas was residing in Oveido, Florida. As noted above, Mr. Lucas did not make a live appearance at the final hearing held in this matter. Popeye’s is a corporation which, at the time of the final hearing, owned approximately 130 restaurants in the southeastern United States, four of them being in northwest Florida. Store No. 28 is located at 3411 North Pace Boulevard, Pensacola, Florida. Mr. Lucas was hired in 2011 as a cashier/drive-through operator for Popeye’s Store No. 28. He worked there until the termination of his employment on September 1, 2015. During most of his employment, Lucas was considered a good employee. He was deemed a fast learner and was especially adept at cleaning his work area. Management talked to Mr. Lucas about entering the manager training process, but he at first refused, citing the need to care for his ailing mother. Around July 2015, Mr. Lucas finally began training as a manager. Up until that time, Mr. Lucas had been a very good employee, never being written up for failing to do his job properly. Later, Mr. Lucas began to develop a bad attitude toward his primary manager and other employees. On August 24, 2015, while Mr. Lucas was in training to be a manager, he and the night manager, Mr. Abram Gordon, were tasked with closing the store once business hours ended. Mr. Gordon did not testify, but Mr. Lucas said the manager gave him no specific instructions as to how to perform the “closing” duties, saying only, “You’ll figure it out.” Mr. Lucas had been working at Store No. 28 for four years, so management expected him to have a good idea about what needed to be done. He apparently did not. By all credible accounts, Mr. Gordon and Mr. Lucas did not do a good job cleaning up the store that evening. The following morning, Ms. McPherson, the head manager of Store No. 28, came in to work to find the mess left behind from the prior night’s closing. She was very upset and set about cleaning up the area so that it would be presentable when the store opened. She then proceeded to draft a written reprimand or “write-up” against both Mr. Gordon and Mr. Lucas for failing to close the store properly. She wrote up Mr. Gordon because as the manager on duty, he was ultimately responsible for closing; Mr. Lucas was written up for failing to clean his area properly. Mr. Gordon apparently discussed the write-up with Mr. Lucas before the latter’s arrival at work that day. Although Mr. Lucas admits that he talked with Mr. Gordon before coming to work that day, he maintains they never discussed the write-up. His testimony in that regard is not credible. His demeanor and attitude upon arrival at work that day bespeak prior knowledge of the reprimand and that he had a chip on his shoulder about it. When Mr. Lucas refused to accept Ms. McPherson’s criticism that the store had not been cleaned properly, she showed him some pictures she had taken that morning. Mr. Lucas said the pictures were inaccurate and he refused to accept any responsibility for the messy storefront. Mr. Lucas, in response, showed her some pictures he had taken of the store when it had previously been left in a messy condition, apropos to nothing. That someone else had not done their job previously did not excuse Mr. Lucas’ non-performance of his duties. Ms. McPherson gave the written reprimand to Mr. Lucas, but he refused to sign it, maintaining he had done nothing wrong. Mr. Gordon on the other hand accepted his write-up without objection and signed it. Mr. Lucas noticed that Ms. McPherson’s supervisor, Ms. Bishop, had arrived at the store for a routine site visit. He quickly approached Ms. Bishop and demanded a meeting to discuss the closing dispute and the write- up. Ms. Bishop, who has extensive training and experience dealing with angry employees, told Mr. Lucas she would set up a meeting to discuss the matter with him later after he had had an opportunity to calm down. This was not satisfactory to Mr. Lucas. Mr. Lucas then demanded the telephone number of Willie Barnes, an operations specialist who was Ms. Bishop’s supervisor. That request was denied because Ms. Bishop was not prone to giving out Mr. Barnes’ personal contact information. This made Mr. Lucas even angrier, and he continued to loudly complain about the situation. One of his co-workers, Cheyenne Ford, attempted to get Mr. Lucas to calm down and stop talking so loudly. Ms. Bishop could hear Mr. Lucas’s continuing complaints, and eventually she directed Ms. McPherson to tell Mr Lucas to clock out and go home for the day. Meanwhile, Ms. Bishop asked Mr. Gordon to set up a meeting to be attended by her, Mr. Lucas, Mr. Gordon and Ms. McPherson. The meeting was scheduled for September 1, 2015. When Mr. Lucas was told by Ms. McPherson to go home, he stopped outside the store and called the Popeye’s “Employee Hotline,” a service provided by Popeye’s through its human resources department. The content of the call was reduced to writing by the individual who answered. Strangely, the writer referred to Mr. Lucas as “she” throughout the report. Apparently she mistook him for a female, although he did not sound effeminate during the final hearing (at which he appeared via telephone). The call to the Employee Hotline was not in keeping with the established order of making complaints. Mr. Lucas should have waited until after his meeting with Ms. Bishop and Ms. McPherson before calling the hotline. During the hotline call, Mr. Lucas did not make any claim of discrimination based on his gender. Ultimately, Mr. Lucas appeared at the scheduled September 1, 2015 meeting. The meeting was held in a corner of the lobby at Store No. 28 and was attended by the aforementioned persons. Mr. Lucas, after waiting several minutes for the others to arrive, was given the opportunity to state his position and to make whatever complaints he desired. The managers, in turn, explained to Mr. Lucas what shortcomings they saw in his work and behavior. The meeting seems to have been somewhat heated, but everyone was allowed to express themselves. One of the issues discussed at the meeting was Mr. Lucas’ show of disrespect for Abbas Momenzadeh, vice president of operations for Popeye’s. Mr. Momenzadeh had come into the store on several occasions to observe and ask questions of the employees, as was his normal practice. He was always friendly to employees and attempted to engage them in conversation. When he spoke to Mr. Lucas, there was no response until one of the managers chastised Mr. Lucas. He then gave a grudging “Hey” to the vice president. According to Mr. Momenzadeh, this happened on more than one occasion.3/ Mr. Lucas was given the opportunity to “change his ways” and to fall back in line with corporate guidelines. He, however, did not see any need to change his behavior or work practices and announced that he had no intention of doing so. At that, Ms. Bishop decided to terminate his employment and did so, ending the meeting. When he arose to leave, Mr. Lucas produced his telephone to the others, indicating (they believed) that he had been recording the meeting. Ms. Bishop informed Mr. Lucas that it was illegal and improper to record someone’s statements without their consent, but he just smiled and walked away, waving his phone in the air. Mr. Lucas then filed his claim of discrimination, claiming that he and other male employees were treated badly while female employees were not. He claimed that Ms. Bishop and Ms. McPherson would only train females for manager positions, passing over qualified males. He claimed that Ms. McPherson talked much more sharply to male employees than female employees, allowing females to get away with things for which males were chastised. No direct evidence as to any of those allegations was presented at final hearing by Mr. Lucas. There is absolutely no credible, believable, or competent evidence in the record to support Mr. Lucas’ claims. By way of example, when he asked Ms. Bishop to identify the managers in the four stores she supervised, she responded that nine managers were female and nine were male, numbers that do not suggest that Popeye’s discriminates on the basis of gender. Also, Mr. Gordon, who was written up at the same time and for the same reason as Mr. Lucas, is still an employee (manager) for Popeye’s. Hearsay statements from a female employee offered into evidence by Mr. Lucas were neither competent evidence nor indicative of any discrimination against males by Popeye’s or its store managers. Mr. Lucas took the position that since he had never been disciplined before this incident, discrimination was the likely reason for termination of his employment. When asked why Popeye’s had not disciplined Mr. Lucas previously, the manager just noted that “we have a lot of tolerance.” Indeed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Popeye’s Louisiana Kitchen, did not discriminate against Desmond A. Lucas. DONE AND ENTERED this 9th day of March, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of March, 2017.
The Issue Whether Respondent, The Keyes Company, discriminated against Petitioner, Kim-Renée Roberts ("Roberts"), during her employment with Respondent, in violation of the Florida Civil Rights Act, section 760.10, Florida Statutes (2017), based on her gender.
Findings Of Fact The undersigned makes the following findings of facts based on the testimony presented at the hearing, the exhibits, and the record: Roberts is a female and has been a Florida-licensed real estate agent since 1988. Respondent is a real estate brokerage company. Mike Pappas ("Pappas") is Respondent's President and CEO. Kozlow has worked for Respondent for over 28 years and currently serves as its regional sales and branch manager at the branch located in Palm Beach Gardens, Florida. Third Palm Capital is the developer of a real estate project called the VistaBlue Project, a condominium located on the Atlantic Ocean on Singer Island in Palm Beach County, Florida. Keith Spina was the architect for the VistaBlue Project. Spina, Keith's brother, who is a Florida-licensed real estate agent, was contacted to gauge his interest in securing the listing for the VistaBlue Project on behalf of Respondent. After Respondent's representatives and Spina participated in meetings with Third Palm Capital, an exclusive listing agreement was reached on September 25, 2015, under which Respondent, through the management of Spina, would serve as the listing agent for the VistaBlue Project. Spina hired Roberts and Harris, another Florida-licensed real estate agent, to work as on-site sales people for the VistaBlue Project. As on-site sales people, it was their primary job to sell condominium units and interact with potential clients who visited VistaBlue's sales gallery. During the relevant time period, Harris was the only male working under Spina with respect to the VistaBlue Project. Spina also hired Farnsworth and Grunow as his administrative assistants for the Project. Despite her title, Farnsworth was also a Florida-licensed real estate agent. Ultimately, Spina's sales team was comprised of Roberts, Harris, Farnsworth, and Grunow. Spina later replaced Harris with Debbie Walker ("Walker") after Harris voluntarily left in February 2016. This sales team operated under Spina's supervision and he was their boss for all intents and purposes. Spina considered himself the "chief" of the sales team he assembled, with the understanding that Kozlow and Pappas were the two higher executives in the chain of command at Respondent. Since Spina was considered the sales team leader, Kozlow deferred to Spina to make daily decisions regarding his team. She generally did not involve herself in his decisions. As the team's boss, Spina had the discretion to hire and fire people on his team.1/ Spina developed the team's work schedule and work expectations. There was, however, frequent input from the other team members before he created the work schedule. Most of Spina's sales team began working on the VistaBlue Project in October 2015. Roberts, who was hired as an independent contractor on October 1, 2015, started work on the sales team in November 2015. Roberts was employed by Respondent as a real estate sales associate pursuant to an Independent Contractor Agreement ("Agreement") that contained details of her employment arrangement and responsibilities. Pet. Ex. 3. The Agreement was signed by her and dated October 1, 2015.2/ The Agreement and the meaning of its terms are not in dispute. The document speaks for itself. However, it contained several pertinent provisions paraphrased below: Roberts was not subject to the control of Respondent in the conduct of her business as a real estate sales associate. Pet. Ex. 3, ¶ 2.3/ As an independent contractor, she would not be treated as an "employee" with respect to her services for federal taxes or for any other purposes. Pet. Ex. 3, ¶ 1. She was solely responsible for all expenses associated with the conduct of her business. Pet. Ex. 3, ¶ 6d. She had no authority to bind Respondent to any promise or representation, unless expressly authorized to do so by Respondent in writing. Pet. Ex. 3, ¶ 8. She agreed to sell, lease, rent real estate listed with Respondent, and solicit additional listings on behalf of Respondent. Pet. Ex. 3, ¶ 6a. The Agreement could be terminated by either party on one day's notice. Pet. Ex. 3, ¶ 13. She agreed to pay any applicable membership or participation fees imposed by the local Board of Realtors. Pet. Ex. 3, ¶ 6c. She agreed to maintain her own automobile liability insurance at her cost. Pet. Ex. 3, ¶ 6g. As far as on-site responsibilities were concerned, the VistaBlue listing agent, Spina, was responsible for the real estate services required for the successful operation of his sales team and the promotion and sale of the condominium units by Respondent. Regarding compensation, Spina agreed to share some of his commission from the VistaBlue listing with Respondent sales associates, Roberts and Harris. The developer agreed to advance a monthly draw against the commission for the sales associates that worked at the VistaBlue Sales Gallery. On October 1, 2015, prior to the opening of the "on- site" VistaBlue Sales Gallery, Spina's sales team worked full time, five days a week, at Respondent's Legacy Place branch office preparing the ground work to launch the VistaBlue Project. Roberts started working on the VistaBlue team in the beginning of November 2015 and, like the others, first reported to Respondent's Legacy Place branch office. Spina expected all the team members, including Roberts, to attend the Legacy Place branch office from 9:00 a.m. to 5:00 p.m., five days a week during the start-up period. However, at the end of her first day at Respondent's Legacy Place branch office, Roberts informed Spina that she would not be coming back to Respondent's Legacy Place branch office because it was not what she was paid to do. Consequently, for some period, Roberts worked from home and received emails there.4/ Roberts's refusal to work at Respondent's Legacy Place branch office during the start-up period did not provide Spina the cohesive "team support" he needed during the early stages of the VistaBlue Project. The fact that Roberts did not work at Respondent's Legacy Place branch office on any consistent basis during the start-up period caused hard feelings, dissension, and frustration with Spina and the others who were working at the office. Eventually, in January 2016, the VistaBlue Sales Gallery officially opened on the condominium/project site.5/ Under the listing agreement with the developer, there were staffing requirements for the VistaBlue Sales Gallery. The listing agreement required Spina to ensure that two associates and one administrative assistant were on hand every day of the week: 10:00 a.m. to 5:00 p.m., Monday through Saturday; and 12:00 p.m. to 5:00 p.m. on Sunday. Roberts' late arrivals and sporadic attendance continued at the new VistaBlue Sales Gallery once it opened in January 2016. During the course of her employment, Spina discussed with Roberts the issues he had with her. Spina and Roberts disagreed, apparently, on many things, including, operation, sales and marketing decisions, and strategies.6/ Spina and Roberts disagreed, for instance, that she should go out and do sales calls before the sales gallery was open, they disagreed on her calling other agents to seek leads and market the property, they disagreed on when she should arrive at the office each day, they disagreed about marketing materials she did not like, and they disagreed about the use of a scale model kept at the site. Harris, the other male sales associate working at the VistaBlue Sales Gallery, testified that Roberts did not arrive at work on time very often.7/ According to Harris, Roberts would frequently arrive at the VistaBlue Sales Gallery an hour late. This frustrated Spina when he came to the sales gallery and she was not there. Grunow, a female who also worked in the sales office, testified that when Roberts was late, she heard Spina telling her that he expected her to be there on time and he expected her to be working while they were in the sales gallery. However, she never heard Spina yell at Roberts. Spina just talked loudly. Roberts acknowledged that her late arrivals caused dissatisfaction and frustration by other members of the sales team. It was apparent to the undersigned that Roberts' recurrent late arrivals at the VistaBlue Sales Gallery caused dissension and some frustration by other sales team members. Roberts could not recall if there were any formal rules that she had to follow while working at the sales gallery. According to Roberts, there were no practices or guidelines for how work was done at the sales gallery. Roberts' gender discrimination claim against Respondent is based upon the way Spina treated her, as opposed to other male employees in the office. In general, Roberts claimed that in meetings or in front of other team members, Spina yelled at her, berated her, and belittled her under a variety of different scenarios and circumstances.8/ She claimed that Harris was able to keep his draws, but she was not; that Harris could come and go as he pleased, but she could not; that her job was threatened when she spoke up; and if she did not do what Spina told her, her job was in jeopardy. She claims that when she brought up suggestions, she was belittled and berated and told she did not know what she was talking about.9/ More specifically, Roberts claim of gender discrimination revolved around several events over the ten months she worked on the VistaBlue listing, as outlined below. She claims that when she brought up the subject of an architectural model for the project at a meeting at the Respondent's Legacy Place branch office, Spina yelled at her and said, "We're not going to do that." "We don't need to have something like that in there."10/ She claims that when she asked about having bottled water at the sales gallery with the logo on it, Spina said "we're not going to have that, we're going to have this, this, and this." She claimed that when Spina gave her marketing materials to review, she marked up the materials with her comments. Spina incorporated her ideas on a new sheet, and sent it off to the developer, taking credit for the changes she proposed. She claimed that Harris, a male sales associate, was able to keep his draws after he departed, but she was not. Roberts testified about a meeting at the VistaBlue Sales Gallery with Harris, Spina, and Farnsworth, where she claims that Spina told her and Harris that they needed to make 2,000 phone calls a week. When she questioned this, Spina yelled at her and threatened her job. When encouraged by her attorney to provide any other details or examples of Spina's belittling or discriminatory behavior, she said she was "finished" and provided no more examples. On cross-examination, when Roberts was asked what Spina said when he yelled at her at the VistaBlue Sales Gallery, the only thing she could remember is that he wanted the sales associates to make 2,000 phone calls; she did not recall any other details. On cross-examination, when asked about the meeting at Respondent's Legacy Place branch office where the architectural model was brought up, Roberts said that Harris, Grunow, Farnsworth, and Spina were present. When asked what Spina said to her, Roberts said, "He did not know what that [the scale model] was, what I was referring to, why we needed it, and said we weren't going to have it." She could not recall anything else Spina said to her other than, "it was not going to be done." Regarding hiring and firing for the VistaBlue Project, if Spina was unhappy with someone, Spina needed to speak to the developer, discuss it with him, and ask him what he could do or not do to change it. When asked if he had the authority to get rid of people if they were doing something he did not want them to do, Spina said, "If the developer allowed me to, yes." Roberts' claim that Spina yelled at her and belittled her on multiple occasions, however, was contradicted by Harris, Grunow, Farnsworth, Ricci, and Spina himself. Harris testified that when he attended sales meetings with Roberts (the frequent situs of Spina's alleged yelling or belittling behavior), the meetings were very open, conversations flowed freely, ideas were shared, and everyone at the meetings had the opportunity to express themselves.11/ Significantly, when asked directly about whether Spina yelled at Roberts during these meetings, Harris responded emphatically that he had "absolutely" never heard Spina yelling at Roberts, or anyone else, for any reason. Grunow testified that although Roberts and Spina would let each other know if either one was not happy with how things were handled at the sales gallery, she never heard Spina yell. Farnsworth testified that she overheard several disputes discussed between Spina and Roberts regarding the operations of the sales gallery, the layout of the offices, the project scale model, the project renderings, the sales brochures, and the business cards. When these "differences of opinion," as she put it, were discussed, Spina would tell Roberts his decision and what he expected her to do.12/ It is also significant that when Farnsworth was pressed for details during on-site questioning by the developer's agent, Tuller, she was not able or willing to characterize Spina's behavior towards Roberts as verbally "abusive." Nor did she ever suggest to Tuller that Roberts needed protection or suggest that Tuller should do something directly to intervene in the ongoing dispute. Spina testified that in his discussions with Roberts, she had the opportunity to express her opinion about the sales gallery operations, but since he was the listing agent, the team leader, and the one hired to run the sales gallery for the developer, his decisions had to be honored and ultimately followed. They discussed many things, and they disagreed on many things, but he never yelled at her. Ricci, the marketing/advertising director of Interiors by Steven G, the interior decorator for the VistaBlue Project, was called by Roberts. She testified about her attendance and observations of the interactions between Spina and Roberts at several design meetings related to the condominium units. These meetings were held at the VistaBlue Sales Gallery. Ricci testified that at the meetings, Roberts was very out-spoken about her style and design preferences. Based on Roberts' input and very active involvement at the meetings, Ricci mistakenly concluded that Roberts was the head of sales or the sales director. Although Spina did not seem to be interested in what she had to say and may have cut her off, Ricci testified that Spina did not raise his voice at Roberts, and she did not witness any belittling behavior by Spina towards Roberts. When questioned directly by the undersigned at the hearing, Ricci testified that Roberts never mentioned to her that Spina's conduct or words were in the nature of sexual harassment. Likewise, Ricci never noticed anything of a sexual nature in any comments by Spina to Roberts. She never observed Spina yelling at Roberts. Tuller, the real estate developer's executive assigned to the VistaBlue Project, was responsible for all aspects of the VistaBlue Project. He testified that based upon his personal observations of Spina's interactions with the salesforce at the sales gallery, he found Spina to be very personable and professional. Tuller testified about a meeting with Roberts at a Marriott Hotel on August 4, 2016. During that meeting, Roberts complained that there were harsh and dysfunctional working conditions at the sales gallery. She complained that Spina was loud, raised his voice, and was short with the staff. Tuller responded to Roberts that, that was "news to him," and contrary to what he had personally observed. When Tuller asked Roberts bluntly if Spina's conduct included any sexual or other forms of harassment, Roberts quickly remarked, "No, no, not that, not that. It's just hard to be there."13/ On August 4, 2016, shortly after her hotel meeting with Tuller, Roberts attempted to call Kozlow but was unable to reach her.14/ Roberts sent Kozlow a text message that same day and wrote "I'm not sure if I should be speaking with you or with Mike . . . . There are some very serious issues at VistaBlue that I need to discuss and get some direction." They agreed to talk the following day. Later that same day, Kozlow sent an email back to Roberts, and copied Spina and Pappas, president of Respondent. She told Roberts that she had the utmost confidence in Spina and his management of VistaBlue and that she was sure that Spina could resolve any issues. On August 5, 2016, Roberts replied to Kozlow's email and wrote, "The reason I reached out to you is that the issue is with Kevin. I will make another attempt to resolve it with him. However, if there is no resolution I will reach out to you again. At a meeting I had with Kevin two weeks ago, he suggested that I speak to Randal [Tuller] but I wanted to handle this internally first." On August 5, 2016, Kozlow was copied on Spina's email to Roberts wherein he attempted to arrange a meeting with her that day. Later Kozlow wrote to Roberts and commented "Hopefully you and Kevin can resolve any issues. He is the lead and we will not be making any changes that he doesn't agree with." At the time of this text and email exchange between Roberts and Kozlow, Spina had worked for Respondent in Kozlow's branch office for more than seven years. Kozlow found Spina to be very friendly and respectful of others. She had not received any other complaints about Spina's conduct.15/ Kozlow testified that while she was exchanging the text messages with Roberts from Wisconsin, she did not know what the issues were at VistaBlue and that Roberts never told her what the nature of the issues were with Spina. Further, despite the opportunity and exchange of communications, Roberts never told her that Spina was discriminating against her on the basis of her gender or sex. Kozlow also testified about Respondent's policy against gender discrimination. She was aware of the policy when she received Roberts August 4 and 5, 2016, text messages and emails. The policy is published in Respondent's Policy Manual. The policy was in effect when she first started working for Respondent in 1990. Pet. Ex. 8. If she became aware that any associate or employee of Respondent was discriminating on the basis of gender or another protected class, she had a duty to report it to Pappas, the president and owner of the company. Once reported, there would be an investigation, and if the allegations were found to be true, there would be corrective action. After the meeting between Tuller and Roberts at the Marriott Hotel, Tuller called Spina and arranged a meeting with him to discuss Roberts' complaints. At the meeting, Tuller testified that Spina admitted he was frustrated with Roberts because she was hard to work with, she would not listen to him, she would not do what he asked her to do, she did not show up on time, and she was not professional. Tuller asked Spina to try to find a solution that would work for everyone. Spina testified that, subsequently, he talked again with Tuller and told Tuller that he needed to terminate Roberts from the sales gallery. When Tuller told Spina that there had been too many changes with marketing and that the owner of the project would not support such a change, Spina informed Tuller the only other option was for Spina to leave. Spina offered to pay for a manager to take his place. Tuller was amenable to this option, and subsequently, Spina and Tuller interviewed several managers to take his place. However, in the end, Tuller did not agree on a replacement for Spina. When Tuller asked Spina to stay, Spina told Tuller that he could not and that he was leaving the VistaBlue Project. Spina testified that the reason he consulted with Tuller about Roberts was because he felt that he did not have the authority to terminate somebody without consulting with the developer. As a result of Spina's decision to withdraw from the VistaBlue listing, the listing was terminated, and the draws against commission that the developer paid were reconciled against the commission that was due to Keyes on termination. At the termination of the listing agreement, the draws that were paid exceeded the commission that was due to Respondent by $6,000. Roberts admits that as a result of the termination of the VistaBlue listing, her position at the VistaBlue Sales Gallery came to an end. Spina did not tell her she was fired or terminated. She simply was not able to continue her position because of the loss of the listing by Spina and Keyes. She interviewed with the new broker for VistaBlue but was not hired. Although Roberts complained that she did not receive all of her draws, Roberts admitted that when she had previously wanted to take a listing for a different condominium unit outside of the VistaBlue Project, she had agreed to forego her draw. Spina further explained to her the reason she did not receive the August 2016 draw was that the draws that she had been paid exceeded the commission that was due to her upon the termination of the listing agreement. Although she was not happy, she agreed with that because that had been her agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief and find in Respondent's favor. DONE AND ENTERED this 6th day of April, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 6th day of April, 2018.
The Issue Whether the Petitioner has been subjected to employment discrimination by termination, allegedly based upon race, and by retaliation, for filing a charge of discrimination.
Findings Of Fact On or about November 29, 2005, the Petitioner applied for a job as a part-time sales clerk with the Respondent. The Petitioner indicated that she was available to work on Sundays, Mondays, and Wednesdays from 7:00 a.m. to 5:00 p.m. This was because she was already employed in another job. During the course of the hiring and orientation process, the Petitioner learned of the policies of the Respondent against harassment and discrimination of all types. She was instructed in those policies and acknowledged receipt of them. The Petitioner began her employment with the Respondent on December 27, 2005, as a part-time sales clerk at a convenience store (No. 31) in Milton, Florida. When she began her employment, the Store Manager was Bob Kukuk. The Assistant Managers for that store were Michael Morris and "Cynthia." There were also two other sales clerks, Cherie Dorey and Lugenia Word. Both Ms. Dorey and Ms. Word are white. Soon after the Petitioner was hired, Mr. Kukuk announced his resignation as store manager. On January 31, 2006, the Petitioner attended the new employee training session in Milton, Florida, which included training in the equal employment and non-harassment policies of the Respondent. During the question and answer session, concerning the harassment and discrimination portion of the training, the Petitioner told Training Manager, Robert Birks that she had a problem at her store involving a conflict with another employee. She felt that she was being required to do things that other employees were not required to do. Mr. Birks advised Ms. Myles that she should provide a written statement concerning her complaints to her supervisor and he provided her with pen, paper, and envelope to do so on the spot. The Petitioner wrote out a note and returned it to Mr. Birks in a sealed envelope and he gave the envelope to the District Advisor, Jamie Galloway on that same date. After reading the Petitioner's note, Ms. Galloway met with Petitioner on that same day to discuss her complaints. The Petitioner informed Ms. Galloway that Michael Morris, an Assistant Manager at her store, was telling employees that he was going to be the new store manager. The Petitioner told Ms. Galloway that she felt Morris did not like her because of her race. Ms. Galloway informed the Petitioner that, in fact, Morris would not be selected as store manager for store No. 31 and that Mr. Kukuk would be replaced with someone else other than Morris. She also informed the Petitioner that the Respondent had a zero tolerance for harassment and discrimination and that if the Petitioner had any problems with Mr. Morris that she should personally contact Ms. Galloway. In her capacity as District Advisor, Ms. Galloway supervised the day-to-day operations of a number of stores. In fact, during the above-referenced time period, Ms. Galloway was supervising her own normal district area, as well as that of another district manager who had resigned. The three sales clerks at store No. 31, Ms. Dorey, Ms. Word, and Ms. Myles were all reprimanded ("written-up") in February 2006, because of their cash registers being "short," or containing insufficient funds at the close of the business day or shift. The Petitioner was also counseled for insubordination on this occasion because she told Ms. Word, in front of customers, that she was not going to take out the trash because Mr. Morris and Ms. Dorey would be into work soon and "they never did anything anyway." Ms. Word confirmed that Ms. Myles had made that statement to the store management. Sometime in February 2006 the Petitioner expressed the desire to transfer to a store on the West side of Pensacola because she was no longer employed in her other job in the Milton area. She therefore wanted to work for Tom Thumb at a location closer to her residence. The Manager, Mr. Kukuk at that time, informed Ms. Galloway of this wish on the part of the Petitioner. Ms. Galloway contacted the District Advisor for the West side of Pensacola, Bill Jordan, to inquire whether any positions were available that would fit the Petitioner's schedule. Ms. Galloway followed up on the question with Mr. Jordan several days later, but Mr. Jordan said that he had no employment positions available at that time. The Petitioner then filed her Charge of Discrimination on February 16, 2006, (her first charge). In her Discrimination Charge the Petitioner maintains that she was constantly "getting written-up" for unnecessary matters by Mr. Morris, the Manager. In fact, however, she was written-up only once while Mr. Morris was the Assistant Manager of the store, as were Ms. Word and Ms. Dorey, the other clerks. Both Ms. Word and Ms. Dorey are white. Patricia Merritt was installed as the new store manager at store No. 31 on February 24, 2006. Ms. Merritt has worked for the Respondent for 17 years as a clerk, assistant manager, and manager. Ms. Merritt had the responsibility of managing the store, ascertaining that all duties involved in store operation were accomplished and supervising and monitoring the performance of other store employees. She imposed discipline, including termination if necessary, and also hired employees. Mr. Morris failed to appear for work, beginning the first week of March 2006. He was terminated from his employment with the Respondent on March 9, 2006. In February or early March, Ms. Merritt informed Ms. Galloway that she had overheard another employee referring to the Petitioner having filed a claim against the Respondent because of Mr. Morris. Prior to that time Ms. Merritt was unaware of any problem between Mr. Morris and the Petitioner. Between the time that Ms. Galloway met with the Petitioner on January 31, 2006, and the time she heard from store manager Merritt that the Petitioner was still having a problem with Morris in late February or early March, the Petitioner had not contacted Ms. Galloway to report any problem. After being advised of the matter by Ms. Merritt, Ms. Galloway advised Ms. Merritt to contact the Petitioner to find out her version of the events which occurred and to offer her a transfer to any one of five stores that Ms. Galloway was responsible for on the East side of Pensacola. Ms. Merritt met with the Petitioner and offered her the transfer opportunity, which the Petitioner refused at that time because she had a mediation pending. When Ms. Merritt began duties as store manager a misunderstanding occurred about the Petitioner's schedule. Ms. Merritt understood, mistakenly, that the Petitioner was available for fewer hours of work than she actually was. This resulted in the Petitioner being scheduled to work fewer hours for two or three weeks. Ms. Merritt was then informed of the Petitioner's actual scheduling availability by someone from the management office. On March 20, 2006, the Human Resource Manager, Sheila Kates, met with the Petitioner. The Petitioner complained about her reduced hours which Ms. Kates discussed with Ms. Merritt. As soon as Ms. Merritt realized that she had misunderstood the Petitioner's hours of availability she increased the Petitioner's hours on the work schedule. The Petitioner agreed that Ms. Merritt had been unaware about any problem between the Petitioner and Mr. Morris, when she reduced the Petitioner's work hours schedule because of her misunderstanding of the Petitioner's availability. Ms. Kates again offered to allow Ms. Myles to transfer to another store if she wished (apparently to help her avoid her apparent conflict with Mr. Morris), but the Petitioner again declined. Ms. Galloway, as part of her duties as District Advisor, conducted store inventory audits. She conducted a store inventory audit for Store No. 31 on May 30, 2006. During that audit she discovered that the store had a significant inventory shortage. Ms. Galloway therefore scheduled a "red flag" meeting the next day with each employee at the store, as well as meeting with them as a group to discuss inventory control. All of the employees at the store were counseled regarding the inventory shortage, including Ms. Myles and Ms. Word. Ms. Word, who is white, was issued a written reprimand on March 24th and April 24th, 2006, because of cash shortages. Ms. Word was subsequently terminated on June 16, 2006, for causing inventory shortages by allowing her friends to come in and take merchandise out of the store without paying for it, as well as for excessive gas "drive offs," or instances where people pumped gas into their vehicles and failed to pay for it. The Petitioner was given a $1.00 per hour raise by Ms. Merritt on or about April 2006. Ms. Merritt also changed the Petitioner from a part-time to a full-time employee in May 2006. This change enabled the Petitioner to become eligible for employee benefits. Ms. Merritt also, however, reprimanded the Petitioner for a cash shortage on July 14, 2006. The Petitioner admitted that her cash register was $48.00 dollars short on that day. The Petitioner complained to Ms. Galloway sometime in July of 2006 that Mr. Morris, the former store manager, and no longer an employee, had been vandalizing her car when he came to the store as a customer. Although these allegations were uncorroborated at that time, Ms. Galloway advised the Petitioner to call the police about the matter and to contact Ms. Kates directly, in the Human Resources office, if there were any more such incidents. The Petitioner filed a retaliation claim against the Respondent on August 7, 2006. Ms. Merritt had been considering the Petitioner for promotion to assistant store manager. The Petitioner completed a background check authorization for that position on September 19, 2006. Mark Slater is a Regional Manager for the Respondent. His duties include supporting the District Advisor's position, which includes recruitment, hiring and training of managers, reviewing sales trends, and reviewing any other financial trends, such as cash shortages, "drive offs" and inventory losses. In mid-October 2006, in the course of a routine review of reports from Store No. 31, Mr. Slater became aware of a possible problem regarding excessive gasoline drive offs, and an unusual purchase-to-sales ratio. Shortly after his review of those reports, Mr. Slater went to Store No. 31 to review the store's electronic journal. The electronic journal contained a record of all the store transactions. In his review of that journal, he focused on "voids," "no sales," and "drive offs," which could explain the irregularities that he had observed in his initial review. In his review of the "voids" at store No. 31 during the period in question, Mr. Slater noted quite a few voids for cigarette cartons, for large amounts, in a very short period of time. Specifically, in the course of seven minutes, he observed voids in the total amount of $406.23. He found this to be highly irregular and suspicious. Mr. Slater also looked at the drive-offs, because he had noticed some trends on that report as well. In reviewing drive-offs, he noticed that the same employee number was involved in both the voids and the drive-off transactions. Mr. Slater noted in his review that one drive-off was held on a void and then brought down as a drive-off, which appeared suspicious to him. Mr. Slater than matched up the electronic journal transactions with the security video tape that corresponded with that journal entry. In observing the video tape, Mr. Slater identified the transaction entered as a drive-off, but saw from the video tape that a customer had in fact come in and paid for the gas in question with cash. When he began his review Mr. Slater did not know which employee had the employee number that was used in association with the voids and the gasoline drive-offs. However, after he had concluded his investigation, he researched that number and found out that it was the number assigned to the Petitioner. Mr. Slater thus knew that the Petitioner had voided the drive- off transaction, as shown in the electronic journal, while the video tape showed that the Petitioner had actually served the customer who, in fact, did not drive-off without paying, but had paid $20.00 in cash for the gasoline in question. When she was asked about the security video showing the Petitioner accepting the $20.00 for the transaction which she had entered as a gas drive-off, the Petitioner responded that she did not recall it. Mr. Slater concluded that the Petitioner had not properly handled the transaction and took his findings to the Human Resources Manager, Sheila Kates. After consulting with Ms. Kates, the decision was made to terminate the Petitioner's employment. Prior to making his investigation and prior to making his conclusions, Mr. Slater was unaware of any issues between the Petitioner and Michael Morris. None of his findings and decisions regarding the situation with the Petitioner's voids and drive-offs had anything to do, in a retaliatory sense, with any issues or complaints the Petitioner might have had against Michael Morris or to the Respondent concerning Michael Morris. After being discharged for related types of conduct, neither Ms. Lugenia Word, who is white, nor the Petitioner, Ms. Myles, are eligible for re-hire 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 arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the charges of discrimination and retaliation at issue in their entirety. DONE AND ENTERED this 29th day of October, 2007, 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 29th day of October, 2007. COPIES FURNISHED: Latarsha Myles 2103 Haynes Street, Apt. C Pensacola, Florida 30326 Cathy M. Stutin, Esquire Fisher & Philips LLP 450 East Las Olas Boulevard, Suite 800 Ft. Lauderdale, Florida 33301 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
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was the victim of a discriminatory employment practice perpetrated by the Respondent by the alleged discharge of the Petitioner on account of her handicap.
Findings Of Fact The Respondent, Sunshine Jr. Stores, Inc., is a Florida corporation, with the principal offices located in Panama City, Florida. The Respondent operates convenience stores in Marianna and Alford, Florida, along with numerous other locations. On December 14, 1990, the Petitioner, Jo-Ann Duffy, was hired as a sales associate and placed in the Marianna store. She indicated in her job application that she was willing to work in Chipley, Bonifay, Marianna and Panama City, Florida. The Petitioner received her employee training in the policies and procedures under which the Respondent operates. She received training in policy no. 030-040, the robbery/theft policy. She signed a "statement of understanding" to that effect, acknowledging that she had received such training. That statement of understanding acknowledges that if the Petitioner violated company policies, such as the robbery and theft policy, her employment was subject to termination by the Respondent. The Petitioner was described as a good worker, initially; and she had a good working relationship with her supervisor, Mr. George Susanka. Mr. Susanka was the store manager and ultimately received some complaints regarding the Petitioner's attitude toward customers. He verbally counselled her regarding this matter. On April 25, 1991, the Petitioner received a written reprimand for failure to perform assigned duties, specifically, noncompliance with policies and procedures, including with regard to inventory shortages. The reprimand was placed in her personnel file. All of the employees at that store, Store No. 190, were also given written reprimands concerning these matters. On May 2, 1991, the Petitioner suffered an injury due to slipping and falling on a wet floor at the Alford Store No. 190. The Petitioner was taken to the emergency room and treated for her injuries. The physicians determined that the Petitioner had suffered a cervical spondylosis, with no evidence of acute injury. After a two-week leave of absence, the Petitioner received permission to return to work from her doctor, Dr. Laubauah, an orthopedist. On June 14, 1991, he released her to return to work with restrictions on her bending and lifting of weight. The Respondent was aware of the Petitioner's work restrictions and that she was receiving worker's compensation benefits from the Respondent as a result of her injury. The Petitioner returned to work at Store No. 190 in Alford, Florida, under the supervision of Renate Ovaldson, who was then store manager. The Petitioner was placed on light duty which is generally defined as merely operating the cash register. She was allowed to sit on a stool behind the counter while she worked, in view of her condition. The Petitioner was later transferred to Store No. 226 in Marianna, Florida. That store was under the supervision of George Susanka, the Marianna store manager. The basis for transferring the Petitioner to that store was that Mr. Susanka was shorthanded and needed another sales associate. Mr. Susanka had previously maintained a positive working relationship with the Petitioner at Store No. 190, and the decision to transfer the Petitioner to Store No. 226 was deemed to be beneficial to the store and to Mr. Susanka. The Petitioner was given light duty at Store No. 226, also, and was given a stool to sit on while she worked. Mr. Susanka was aware that she was taking medication for her back injury. Mr. Susanka's supervisor, Keith Shipman, was not aware that the Petitioner was taking medication. Store No. 226 was considered a less busy store in terms of sales volume; however, the neighborhood was considered to be less desirable. Mr. Susanka soon began receiving verbal complaints regarding the Petitioner's attitude toward customers at Store No. 226. He received a verbal complaint from a Ms. Virginia Smith stating that the Petitioner had been flirting with several men one evening at the counter and had permitted them to go into the store cooler and leave the store with beer without paying for it. A written statement signed by Virginia Smith regarding this incident was later received by the Respondent and placed in the Petitioner's personnel file. Mr. Susanka confronted the Petitioner concerning this incident and asked her if she had been afraid to report the theft, and she indicated that she was not. Mr. Susanka and the assistant store manager, Mr. Coley, conducted a "night ride", whereby they parked their car across the street from the store to observe activities at the store while the Petitioner was on duty. Mr. Susanka witnessed a customer walk in the store and walk out with a small item without paying for it. The only door in which to enter and exit the store was a few feet directly in front of the cash register counter. Mr. Susanka submitted a written statement on the incident, which was placed in the Petitioner's personnel file by the Respondent. Mr. Susanka discussed the various complaints he had received concerning the Petitioner's attitude, performance, and the incident he observed with Mr. Coley with his district manager, Keith Shipman. Mr. Shipman had been aware of prior complaints which the Respondent had received about the Petitioner's attitude with customers, as well. Based upon the documents contained in the personnel file, customer complaints and the fact of customers leaving the store without paying for merchandise while the Petitioner was on duty, and Mr. Susanka's relation of the various incidents, Mr. Susanka and Mr. Shipman made a decision to terminate the Petitioner. The stated reason for Petitioner's termination was violation of company policy and poor customer relations. Mr. Susanka completed an employee status report terminating the Petitioner on July 24, 1991. That report stated that the reason for termination was "on Saturday, July 20, 1991, the clerk, Jo- Ann Duffy, was talking and laughing with six guys at the counter and at that time there was three to four guys in the cooler and walked out with beer and did pay for it and also has a bad attitude with customers". Mr. Susanka testified that the statement had been written in error and it should have read "did not pay for it". The employee status report was signed by Mr. Susanka and Mr. Shipman and placed in the Petitioner's personnel file. Mr. Shipman stated that due to the fact that inventory control was so important in the convenience store business, the Respondent simply could not afford to keep in its employee a sales associate who allowed merchandise to leave the store unpaid for. The Respondent's disciplinary and termination policy no. 040-003 generally states the procedures for discipline and termination. The robbery/theft Policy No. 030-040 states that an employee who violates the guidelines of the robbery and theft policy (as the Petitioner did) is subject to disciplinary action up to and including dismissal.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's petition for relief. DONE AND ENTERED this 30th day of April, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5313 Petitioner's Proposed Findings of Fac A-C. Accepted. D. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. E-F. Accepted. G-H. Accepted, but not in itself materially dispositive. I-J. Accepted, but not in themselves materially dispositive. Rejected, as not in accord with the greater weight of this witness' testimony which was that some violations, such as allowing theft to occur, are the proper subjects of first occurrence terminations. Accepted, but not itself material. Rejected, as immaterial. Rejected, as immaterial given the greater weight of the testimony and evidence, which the Hearing Officer has accepted and embodied in the above Findings of Fact. Rejected, as immaterial. Accepted. Accepted, but not materially dispositive. Accepted, but not materially dispositive in itself. S-T. Accepted, but not itself materially dispositive. Accepted, but not itself materially dispositive. The Respondent's position in this case does not depend upon all low inventory being the fault of the Petitioner. Accepted, but not itself materially dispositive. Respondent's Proposed Findings of Fact 1-24. Accepted. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Ms. Jo-Ann Duffy Route One, Box 221-X Chipley, FL 32428 Kelly Brewton Plante, Esq. TAYLOR, BRION, BUKER & GREENE 225 South Adams Street Suite 250 Tallahassee, FL 32301
Findings Of Fact Anthony Scrima was certified by the Criminal Justice Standards and Training Commission on April 25, 1980, and holds certificate C-7401. He has been employed as a correctional officer by the Broward County Sheriff's Office since 1988. He was certified by the Commission at the time of the events alleged in the Administrative Complaint. Mr. Scrima has served as the warehouse manager for the Broward Correctional Institution for a number of years and is in charge of receiving goods at the institution, issuing the stock, property control, and general inventory at the institution. January 23, 1988, Mr. Scrima went to the Burdine's Department Store at Hollywood Fashion Center in Hollywood, Florida with his daughter to buy a birthday present for his niece. While there, he met his nephew, John Hutchens, in the company of high school-aged friends. Because the weather had become warmer during the day, John Hutchens asked Mr. Scrima to take a jacket home for him, so he would not have to continue carrying it around. Mr. Scrima then went into the women's department to buy his gift. When he left the store with his purchase and what he believed to be his nephew's jacket, he was confronted by a store security employee, Kathy Van Damas and a young black male security employee, Bobby Smith. They asked him to come back to the store to talk to them about the jacket, and he agreed to return with them. In the security office Ms. Van Damas accused Mr. Scrima of having removed the tag from the jacket and taking it from the store without paying for it. Mr. Scrima denied that he had stolen the jacket, but did offer to pay the $145 Ms. Van Damas claimed was the price of the jacket in order to settle the matter. Ms. Van Damas declined the offer, and instead called the Hollywood Police Department to the store and ultimately pressed the case in court on behalf of the department store. Ms. Van Damas' testimony that she had observed Mr. Scrima take the jacket from a rack, tear the tickets off the jacket, throw them to the floor and then wear the jacket out of the store is not persuasive for two reasons. First, it is inherently improbable that Mr. Scrima would have engaged in such conduct in the presence of his daughter. Second, Ms. Van Damas was quite adamant at hearing about certain things she believed she had observed. For example, she testified during the final hearing that she first observed Mr. Scrima from a ladder located behind a wall in a stock room near the contemporary clothing portion of the men's department, which permitted her to look over the wall from about 12 feet in height. When her deposition was taken in the criminal matter on April 6, 1988, she testified that she was on the floor, and first observed Mr. Scrima enter the department store at the men's fragrance counter, and that another store detective was in the security observation coup, not her. She also acknowledged during cross examination that she did not have a clear recollection of the facts as of the date of the hearing. The evidence against Mr. Scrima is not clearly convincing. Mr. Scrima agreed on July 6, 1988, to plea nolo contendere to the misdemeanor charge, and to pay $125 fine because the risk of going to trial and the attorney's fees involved in going to trial were large, the proposed fine was small, and the overall circumstances dictated accepting the prosecutor's offer as the most expedient method of disposing of the accusation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against Anthony Scrima be dismissed. RECOMMENDED this 20th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 90-5487 1 and 2. Adopted in Finding 2. Adopted in Finding 1. Adopted in Findings 3 and 6. Adopted in Finding 3, although the young girl was his daughter. 6 and 7. Rejected. See, Finding 6. 8. Adopted in Finding 4. 9 and 10. Implicit in Findings 3 and 4. Generally adopted in Finding 5. Adopted in Finding 4. Rejected as unnecessary. Implicit in Finding 4. Whether Mr. Scrima carried or wore the jacket out of the store is not relevant. Adopted in Finding 4. Rejected; not the more credible evidence. Although Ms. Van Damas may not have seen the nephew, rejected based on finding 3. Rejected as unnecessary. Rejected as unnecessary. Adopted in Finding 5. Rejected as unnecessary. Adopted in Finding 7. COPIES FURNISHED: Sharon D. Larson, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Terence L. LaBelle, Esquire 200 Southeast Sixth Street Suite 300 Fort Lauderdale, FL 33301 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact Petitioner, Earl R. Tyler, was born on October 9, 1915. Petitioner was employed by the Respondent as a storekeeper from approximately March of 1977 until April of 1978, at which time he voluntarily terminated his employment with Respondent in order to become a real estate salesman. Prior to his leaving the hospital, Petitioner had received no reprimands or complaints from his supervisors at the hospital regarding his work as a storekeeper. In September of 1978, Petitioner filed an application for employment in a clerical position at the hospital. On or about October 15, 1978, Petitioner received a letter from the hospital advising him that there was an opening in the clerical field and requesting him to contact the personnel office regarding that position. Although Petitioner was not employed at the time, he believed the open position to be on the night shift and, accordingly, he never contacted the hospital regarding that position. Dale J. Learn, the Materials Manager at Lehigh Acres General Hospital, had become good friends with Petitioner during the time that Petitioner worked at the hospital, and he also knew Petitioner's wife, who was working at the hospital. In February, 1979, Learn told Petitioner's wife to have Petitioner come to the hospital to talk to Learn about an expected vacancy in the storekeeper position. Petitioner complied, and he and Learn met in the hospital cafeteria and discussed the expected vacancy and the potential for Petitioner being rehired in that position. The storekeeper position was within the department of which Learn was the head, and Learn was currently restructuring both his department and the storekeeper position. At the time that he met with Petitioner in the hospital cafeteria, the storekeeper position was not yet available and had not been publicized. Petitioner expressed his interest in being rehired as the storekeeper, and Learn advised Petitioner that the position as envisioned would require no heavy lifting by the Petitioner since Learn also intended to hire a younger man to do the heavy lifting. Petitioner made no response to Learn's statements regarding the necessity or desirability of Petitioner engaging in heavy lifting. Several weeks after the meeting between Petitioner and Learn in the hospital cafeteria, Petitioner saw an advertisement in a Fort Myers newspaper wherein the hospital was advertising for the position of storekeeper/medical supplies. Since Petitioner had heard nothing from Learn subsequent to their meeting, Petitioner telephoned Joseph Feith to express his interest in the position. Feith advised Petitioner that the department managers had authority to make decisions regarding hiring of personnel, subject to the approval of Feith, who was the Executive Director of the hospital. Feith, accordingly, advised Petitioner to contact Learn. Petitioner telephoned Learn but was unable to reach Learn at that time. After several days, Learn returned Petitioner's telephone call. During that conversation, Learn suggested that Petitioner should be relaxing and enjoying life and playing golf, but that he would do all he could to assist Petitioner in obtaining a clerical position at the hospital. Petitioner made no response to Learn's comments regarding taking life easy and made no further contact with anyone at the hospital regarding employment as a storekeeper. Learn hired a man in his early thirties for the storekeeper's position. The decision to hire that applicant and to not hire Petitioner was made solely by Learn. Learn's decision was based upon the successful applicant's better qualifications, more recent work experience, and Learn's hope that that applicant would be more likely to remain in the position for a long term. The reorganization of his department by Learn had caused a large expansion in the inventory for which the storekeeper was responsible. Additionally, between the time that Petitioner left his employment with the hospital as its storekeeper and the time of the hearing in this cause, the position of storekeeper was held by three people instead of one, also indicating a substantial change in procedures regarding the position in question. At the time of the hearing, the storekeeper position was occupied by two men and one woman ranging in ages from the late thirties through the mid-fifties. Petitioner has no knowledge of any instances wherein Lehigh Acres General Hospital has discriminated against persons because of their age. The hospital does have a policy of nondiscrimination. During the times in question, the hospital employed approximately fifteen to twenty persons the approximate same age as the Petitioner. Further, at the time of the hearing in this cause, Feith, the Executive Director of the hospital, was fifty-eight years old, and Learn, the department manager, was fifty-four years old.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations declaring that Earl R. Tyler was not discriminated against on the basis of his age and dismissing his Petition for Relief with prejudice. RECOMMENDED this 22 day of July, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1981. COPIES FURNISHED: William E. Adams, Jr., Esquire Florida Rural Legal Services 1617 Hendry Street, Third Floor Fort Myers, Florida 33901 R. J. Castellanos, Esquire Kushner & Castellanos Post Office Box 1999 Fort Myers, Florida 33902 Mr. Norman A. Jackson Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue Whether Petitioner was discriminated against by Respondent, based upon her race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American female who was born on June 14, 1956. At the time of the Respondent’s reduction in force in 1998, Petitioner was 41 years old. She is a quiet and reserved person. In 1978, Respondent hired Petitioner as a management trainee. Initially, she was assigned to the J. C. Penney store in Metairie, Louisiana. As a trainee, she worked in the children’s department in that store. Petitioner received several subsequent assignments in the Metairie store, as well as in other stores. She was eventually promoted to the position of senior merchandiser. A senior merchandiser has the same job duties as a merchandiser. The chief differences are that senior merchandisers are paid more and typically receive more difficult and important departments to manage due to a larger sales volume and quickly changing fashion orientation. The men’s and women’s departments in J. C. Penney stores are generally the most challenging, while the children’s and home departments are less challenging since their sales volume is lower and they are less fashion oriented. In late 1992, Petitioner received a transfer to the Pensacola store as the women’s senior merchandiser. In 1992, Don Gray was the Pensacola store manager. In March 1993, Jimmy Graham, an African American, became the assistant store manager/business planning manager in that store. While she was assigned as the women’s merchandiser in the Pensacola store, Petitioner worked very closely with Mr. Graham and had no complaints about Mr. Graham. Petitioner does not allege that Mr. Graham discriminated against her in any way. When Mr. Gray retired in 1994, John Phelps, a Caucasian, became the Pensacola store manager. (He is approximately ten years older than Petitioner.) Prior to his Pensacola assignment, Mr. Phelps had not been in a position to affect Petitioner’s career. At the time that Mr. Phelps moved to the Pensacola store, Respondent had employed Petitioner for approximately 16 years. Ordinarily, a strong merchandiser would be promoted to an assistant store manager assignment (sometimes called a “second level” assignment) after seven to ten years of experience. Petitioner’s failure to be promoted to an assistant store manager assignment in the 16 years prior to her working with Mr. Phelps demonstrates that she was not considered a strong manager by upper level corporate management at J. C. Penney. In the 1990s, Respondent had a numerical management appraisal system. A rating of ‘1’ was the best rating, indicating that the manager’s performance far exceeded the job requirements. A rating of ‘2’ was the next rating, indicating that the manager’s performance exceeded requirements in many key areas of the job. A rating of ‘3’ was the next rating, indicating that the manager’s performance met job requirements in each key area. The rating of ‘3’ was not a disciplinary rating and the employee receiving such a rating was considered to be a very good employee. In fact, Ratings of ‘2’ and ‘3’ were common in J. C. Penney, with the difference sometimes being the strictness of the store manager’s interpretation of the rating criteria. The lowest ratings were ‘4’ and ‘5.’ The evidence showed that Petitioner had more often than not been rated a ‘2’ in the years before she worked with Mr. Phelps. In March 1995, at his first opportunity to appraise Petitioner, Mr. Phelps rated Petitioner a ‘2.’ In that appraisal, which covered 1994, he commended Petitioner for her very strong sales, but indicated that her operation should be more balanced. Examples of this lack of balance were her high shrinkage, high markdowns, and high overstock position. All of these factors were negative performance measurements. Petitioner’s high sales and high markdowns were direct results of her high overstock position, which required that she offer her excess merchandise at very low prices. In the 1994 appraisal, Mr. Phelps also noted that Petitioner’s leadership characteristics needed development. Specifically, Mr. Phelps thought Petitioner needed to be more outgoing, communicate potential problems better with management, and give more feedback in discussions with management. Mr. Graham helped prepare and agreed with Petitioner’s 1994 appraisal. Like Mr. Phelps, Mr. Graham felt “some of [Petitioner’s] people skills lacked,” with her primary weakness in leadership and working with second level managers. He also testified that Petitioner missed deadlines and that her sales results were “average since they were in line with the results in other store departments.” In short, Petitioner sales results were good when the whole store had good sales results. For 1995, Petitioner was rated a ‘3.’ Petitioner’s rating was based upon the fact that she missed her sales goal, her investment goal, and her leadership development goals. Petitioner was again rated as needing development in the leadership category. Again, Mr. Graham helped prepare and agreed with Petitioner’s 1995 appraisal. Prior to 1996, even though Petitioner’s department ranked in the top three in sales, the women’s department had a lower percentage of the total store’s sales than Respondent’s company-wide business model anticipated. This lower percentage indicated that Petitioner was not generating as many sales in the women’s department as the department should generate, if managed well. Therefore in June 1996, due to these performance issues, Petitioner was moved from the women’s department to the children’s department because it was an easier department to manage. Ms. Thomas experienced no loss in pay or other benefits due to this lessened responsibility. When Petitioner began to manage the children’s department in Pensacola, she also began to work more closely with the store’s other Assistant Store Manager, Joseph Waslo, a Caucasian male. Petitioner had no complaints about Mr. Waslo. Petitioner does not allege that Mr. Waslo discriminated against her in any way. Petitioner was rated a ‘3’ on her 1996 and 1997 appraisals. The wording on these appraisals reflect that Petitioner had made some improvement in her job performance. The improvement was due in part due to the fact that she was handling an easier job assignment. Mr. Waslo helped prepare and agreed with each of these appraisals. In 1997, Merchandiser Jerry Joachim, a Caucasian male, experienced significant performance issues. Mr. Phelps counseled Mr. Joachim on several occasions. Mr. Phelps lowered Mr. Joachim’s appraisal rating to a ‘3’ for 1997. Petitioner did not have to require such counseling from Mr. Phelps. The evidence was clear that neither Petitioner’s nor Mr. Joachim’s appraisals were based on any foreknowledge of a future reduction in force by Respondent because such a reduction was unknown at the time of these appraisals. The evidence was also clear that Petitioner’s race, age, or sex played a role in the ratings and evaluations. In February 1998, Debra Kellum, a Caucasian female, became the district personnel manager for the district in which the Pensacola store is located. When she attained this position, she was informed that Respondent was going to conduct a company-wide, reduction in force, unfortunately affecting a portion of its merchandisers. This action was necessary to reduce costs and assist the company in its efforts to transfer certain job functions like inventory selection from the stores to a centralized location. As the district personnel manager, Ms. Kellum was given detailed instructions regarding how to rank the merchandisers in her district. These instructions did not permit any variance or independent judgment. According to the instructions that Ms. Kellum (and Respondent’s other district personnel managers) received, she was to review the last three annual appraisals for all merchandisers (including senior merchandisers) in her district. Those who had most recently been rated a ‘1’ were ranked first. Next were those who had most recently been rated a ‘2.’ Among the merchandisers most recently rated a ‘3’ Ms. Kellum was instructed to examine their appraisals in the two previous years. Those who had been rated a ‘1’ or ‘2’ in those years were ranked before those who had been rated a ‘3’ all three years. Those merchandisers who had been most recently rated a ‘4’ or ‘5’ were ranked last. Neither race, age, nor sex was a factor in the ranking or the reduction-in-force process. The goal and the effect of the policy was to retain a certain number of the most recently highest ranked merchandisers and lay-off the remainder, even if a particular employee had good ratings. Ms. Kellum followed these instructions and ranked the approximately 100 merchandisers in her district of 20 to 24 stores. After she had completed the ranking, both her District Manager Michael Tucker and a regional manager checked her results for accuracy. Because the new staffing plan provided for fewer merchandisers in the district than the district currently had, those who were ranked highly on the list were retained while those near the bottom of the list were given a severance package and were terminated. Because many merchandisers in the district had been rated a ‘3’ for all three years, no merchandisers employed in this district who had been rated a ‘3’ for all three years were retained. In fact, the reduction in force caused some merchandisers who were currently rated a ‘3’ but had been rated a ‘2’ in the last three years to be terminated. Because Petitioner had been rated a ‘3’ for the last three years, and therefore, was scheduled to be terminated with a severance package, she was subject to the reduction in force. Even if all the other three merchandisers in the Pensacola store had been terminated, Petitioner still would have been subject to the termination because the reduction-in-force process considered all merchandisers in the district as one group, and Petitioner was being assessed against both her co-workers in the Pensacola store and merchandisers in other stores in her district. Some men, Caucasians, and managers under 40 years of age who were in Petitioner’s district were terminated. An example of a young Caucasian male who was terminated was Keith Graber, a Caucasian male aged 33. Mr. Graber had most recently been rated a ‘3’ and had been rated both a ‘2’ and a ‘3’ in the prior two years. Some women, African Americans, and managers over the age of 40 who were in Petitioner’s district were retained. For example, William Turner, an African-American male aged 42; Ronnie Harris, an African-American male aged 46; Robert Butler, an African-American male aged 40; Clarence Cook, an African- American male aged 48; and Brenda Eccles, an African-American female aged 45, were retained. There was no evidence that the reduction-in-force procedures were in any way discriminatory or that the reduction- in-force procedures were not consistently followed in Petitioner’s district or applied incorrectly to her. No one in the Pensacola store, including Mr. Phelps, had any input regarding the need for or scope of the reduction in force or the procedures to be followed in conducting it. No one in the Pensacola store, including Mr. Phelps, knew who would be affected by the reduction in force until the morning of March 20, 1998. On March 20, 1998, District Manager Michael Tucker and Ms. Kellum informed Petitioner that she was scheduled to be terminated and that her last working day would be May 2, 1998. Petitioner did in fact work until May 2, 1998. She received $8,696.92 in severance pay. Fellow Pensacola merchandisers Jerry Joachim, Kimberly Vincent (a Caucasian female), and Glenn Castellucci (a Caucasian male) were not subject to the reduction in force because each had been rated a ‘2’ on at least one of the last three appraisals. The appraisals and ratings for each of these individuals were supported by appropriate rationales and were not the result of any discrimination. When Mr. Phelps learned that Petitioner would be terminated and that Mr. Joachim would not be, Mr. Phelps told Mr. Tucker he would prefer for Petitioner to be retained instead of Mr. Joachim. Ironically, the only person Petitioner accused of discriminating against her was Mr. Phelps. However, Mr. Phelps’ desire to retain Petitioner over Mr. Joachim was not considered because of management’s desire to consistently apply Respondent’s reduction-in-force criteria. When Mr. Joachim learned that his employment would not be ending, he requested the severance package in exchange for his resignation. Mr. Joachim told Mr. Phelps that he was making this request because he understood that Mr. Phelps was dissatisfied with his work and would be lowering his appraisal ratings and moving towards terminating him. That request was granted. With the departure of Mr. Joachim, the store would have only two merchandisers. The store was approved for three merchandisers. Therefore, through application of the reduction- in-force criteria, another higher-ranked merchandiser was reassigned to the store in order to replace Mr. Joachim. Petitioner’s position was not replaced. Mr. Phelps mentored several managers in the Pensacola store, including Mr. Graham, Chris Jackson (an African-American male), and Ms. Vincent. Mr. Phelps was instrumental in Mr. Graham and Mr. Jackson’s promotions to store manager (in 1997) and sales support manager (in 1996), respectively. Moreover, Mr. Phelps supported Ms. Vincent’s being designated as a “high potential” manager, thus creating additional career opportunities for her. Mr. Phelps consistently rated Mr. Graham and Ms. Vincent as ‘2’s. Mr. Phelps did not mentor Petitioner because she did not seek out his assistance, as the others had, which again was part of the problem in her leadership skills. There was no evidence which showed Mr. Phelps discriminated against Petitioner. In January 2001, Stan Lollar was promoted to senior department manager. At the time of the promotion, Mr. Lollar was 51 years old. The title “senior department manager” is the current title for the merchandiser position. Mr. Phelps recommended Mr. Lollar for the position and was instrumental in Mr. Lollar’s attaining it. At the time that he achieved this position, Mr. Lollar was older than Petitioner was when she was subject to the reduction in force. In 1997, Mr. Phelps promoted Nadine Mitchell from a non-supervisory position in the Pensacola store to a supervisory position. At that time, Ms. Mitchell was an African-American female aged 41. Due to the high attrition rate amongst merchandisers and the year-long training needed before a new hire is ready to perform as a merchandiser, Respondent began to seek applications for management trainees shortly after the reduction in force had been completed. These trainees were needed to assume the positions of retiring, resigning, and promoted merchandisers. Compared to the pre-reduction-in-force time period, Respondent significantly reduced its recruitment efforts because fewer future replacement merchandisers would statistically be needed. The fact that Respondent advertised for new manager trainees after the reduction in force does not demonstrate discrimination by Respondent since there is a legitimate underlying business reason for the continued recruitment. In 2003, Petitioner will earn at least $46,199 at her retail management position with Sports Authority in Pensacola, Florida. Petitioner occupies a more senior position (a second level assignment) at Sports Authority than she did for Respondent. Prior to her employment at Sports Authority, Petitioner had been gainfully employed. No testimony was presented of any periods of unemployment or underemployment. At the time of her reduction in force from Respondent, Petitioner earned $45,224, less than her current income with Sports Authority. On January 23, 2003, FCHR issued its Determination, finding no cause to believe that either sex or age discrimination had occurred, but finding cause to believe that race discrimination had occurred. This determination occurred more than 180 days after the Charge had been filed. On February 24, 2003, Petitioner filed her Petition for Relief. Her Petition was filed more than four years after her employment with Respondent ended on May 2, 1998.
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 30th day of January, 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 30th day of January, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia Farris-Gruver, Esquire J. C. Penney, Inc. 6501 Legacy Drive, Mail Station 1111 Plano, Texas 75024 Lari Thomas 1055 Wonderwood Court Pensacola, Florida 32514-8512 Anthony Nathan Thomas, Sr. Qualified Representative 1055 Wonderwood Court Pensacola, Florida 32514-8512
Findings Of Fact Petitioner was employed as a part-time store clerk from January 11, 1983 until January 14, 1986 at Respondent's 7-Eleven Store No. 1413-25564 located at 2990-16th Street, North, St. Petersburg, Florida. Respondent is an employer within the terms of the Human Rights Act of 1977, Chapter 760, Florida Statutes. Upon employment by Respondent, employees must sign an Awareness Form which provides, in pertinent part, that "consumption or possession of alcoholic beverages or illegal drugs while on company property (this includes the parking lot and rear of the store)" is grounds for dismissal. Petitioner signed this Awareness Form, and thereby acknowledged having been informed of Respondent's disciplinary policies set forth on said form. On December 25, 1985, at approximately 1:15 a.m. Petitioner and coworker Debbie Meany consumed one bottle of champagne in 7-Eleven Store 1413- 25564 after closing-up the store at 1:00 a.m. Meany had purchased the champagne during their shift on the evening of December 24, and then drank it with Petitioner "because it was Christmas Eve." Meany testified that she became drunk while she and Petitioner drank the bottle of champagne. Petitioner's testimony at hearing that the champagne he drank with Meany was nonalcoholic is specifically rejected based upon Meany's testimony, the fact that nonalcoholic champagne was not sold in this 7-Eleven store at the time, and the fact that he referred to the champagne as "booze" in a letter written to Fred Nichols, Respondent's personnel manager, on January 10, 1986. Meany was fired along with Petitioner for consumption of alcoholic beverages on the premises, and has no apparent motive to be untruthful in her contention that the champagne was alcoholic. Due to an audit of 7-Eleven Store 1413-25564 which revealed a merchandise shortage of approximately $1300, polygraphs were ordered for all store employees. Meany's polygraph was on January 6, 1986, and it was during her examination by Robert Rathbun that she admitted to consuming the bottle of champagne with Petitioner. She signed a statement, which she confirmed at hearing, indicating Petitioner opened the bottle, and they drank the champagne together. Petitioner was polygraphed on January 10, 1986, after executing a consent form, and during the course of his examination, he showed deception in his answers to questions about the use of alcohol on the job. When he was confronted with this indication of deception and with Meany's statement, he admitted to drinking champagne with Meany in 7-Eleven Store 1413- 25564 after they had closed at 1:00 a.m. on December 25, 1987. Thereafter, Petitioner met with Mike McKenzie, field manager, and Larry Good, district manager, on January 13, 1986 to discuss the results of the polygraph. McKenzie and Good also met with Meany. Petitioner was terminated on January 14, 1986 for consumption of an alcoholic beverage in the 7-Eleven store at which he worked. Petitioner did not disclose any handicap or physical condition which would prevent him from performing the job of store clerk on his initial application for employment, or on an application he completed and submitted to Respondent on May 27, 1986, subsequent to his termination. There is no evidence that Petitioner ever informed McKenzie or Good of his handicap. However, Petitioner's immediate supervisors Watley and Egge, store managers, did know of his handicap, and did not require him to "front shelves." This is a normal part of a store clerk's duties by which merchandise is brought forward to the front of a shelf to take the place of products that have been purchased. It has been established that Petitioner is physically handicapped due to the injury of both his knees while in the Army. He was discharged from the Army due to his disability. This handicap makes it very difficult for him to bend down, and therefore the accommodation which Watley and Egge provided was reasonable and appropriate under the circumstances. Respondent does hold Christmas parties at which alcoholic beverages are consumed in its district office. However, the district office is a separate office building and there is no 7-Eleven store located at said office. Since the district office is not a store licensed to sell alcoholic beverages, the consumption of alcohol at that location is not a violation of Respondent's policy about the consumption of alcohol set forth on the Awareness Form. A review of Petitioner's personnel file indicates prior warnings for writing bad checks, and making unacceptable advances on a female coworker.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against Respondent. DONE and ENTERED this 10th day of March, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1988. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 9. Rejected as not based on competent substantial evidence. Rejected as irrelevant, unnecessary and as simply a summation of testimony which is not persuasive. Rejected in Findings of Fact 4, 6, 7 and 12. Rejected in Finding of Fact 4. Rejected as irrelevant. Rejected in Finding of Fact 4. Rejected as not based on competent substantial evidence. Rejected in Findings of Fact 5 and 6. Rejected in Finding of Fact 6. Rejected in Finding of Fact 12. Rejected as not based on competent substantial evidence. Rulings on Respondent's Proposed Findings of Fact: Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 1. 3-5. Adopted in Finding of Fact 3. 6-7. Adopted in Finding of Fact 4. 8-10. Adopted in Finding of Fact 5. 11-13. Adopted in Findings of Fact 4 and 6. 14-15. Adopted in Findings of Fact 4 and 7. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 18-19. Rejected as unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. 22-24. Adopted in Finding of Fact 8. 25. Adopted in Findings of Fact 7 and 8. COPIES FURNISHED: WINSTON S. MCCLINTOCK 475 - 41ST AVENUE, NORTH ST. PETERSBURG, FLORIDA 33703 E. JOHN DINKEL, ESQUIRE POST OFFICE BOX 1531 TAMPA, FLORIDA 33601 DONALD A. GRIFFIN EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG. F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925 SHERRY B. RICE, CLERK HUMAN RELATIONS COMMISSION 325 JOHN KNOX ROAD BLDG. F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925
