The Issue The issue is whether Respondent engaged in an unlawful employment practice, specifically whether Respondent failed to accommodate Petitioner's alleged disability.
Findings Of Fact Petitioner was hired by Dollar General in December 2006 as the second shift Human Resources (HR) Representative I for Dollar General's Alachua Distribution Center. As the second shift HR Representative I, part of Petitioner's responsibilities was to interact with the employees who worked on the second shift. Petitioner's immediate supervisor throughout her employment was Donna Myers, Senior Human Resource Manager. Ms. Myers interviewed and hired Petitioner. Petitioner's job as a HR Representative required her to conduct interviews, drug tests, participate in committees, interact with employees, transfer employees, and other employee- related duties. Petitioner was qualified for the position as HR Representative, having a master's degree in human resources management. Some concern existed among management as to whether Petitioner could be as effective in her job if she were to use a golf cart. The concern was whether she would be less approachable by employees when driving around rather than walking up to the areas where they worked. Since there was an "open door" policy for employees to approach Petitioner, she could always meet them in her office if they had enough time during a break. Company policy dictates that at least 10 percent of the HR Representative's time should be spent "walking the floor." Petitioner understood the walking requirement to be at least an hour per shift. Dollar General maintains and enforces an Anti- Discrimination and Harassment Policy, which prohibits, among other things, discrimination based on an employee's disability. Dollar General's Anti-Discrimination and Harassment Policy also contains a provision which provides, in pertinent part, that it intends to comply with the Americans with Disabilities Act by providing reasonable accommodations to qualified individuals with disabilities. Dollar General's Anti-Discrimination and Harassment Policy includes a procedure that allows and urges any employee who believes that that he or she is the subject of or has been the subject of discrimination to report the alleged discrimination by contacting a toll-free number. Ms. McIntosh was an employee of Dollar General, was aware of Dollar General's policy prohibiting discrimination and harassment in the workplace based on disability, and acknowledged receipt of Dollar General's Anti-Discrimination and Harassment Policy. Dollar General's Anti-Discrimination and Harassment Policy applies to all employees. As an employee, Dollar General's Anti-Discrimination and Harassment Policy applied to Ms. McIntosh. All of Dollar General's management team, who testified at hearing, were aware of the company's Anti-Discrimination and Harassment Policy. Dollar General's Anti-Discrimination and Harassment Policy instructs employees to speak with their supervisor or to call the Employee Response Center to request an accommodation or report any type of discrimination. Ms. McIntosh took medical leave in October 2007. In the October 25, 2007, certification for her medical leave, Ms. McIntosh's treating physician estimated that the probable duration of her condition was one to two weeks. Further, in the November 15, 2007, recertification, Ms. McIntosh's physician estimated that the probable duration of her condition was two to three months. Effective November 24, 2007, Ms. McIntosh's physician released her to return to work without any restrictions. The release does not indicate that Ms. McIntosh was unable to climb stairs or walk for extended periods of time. Ms. McIntosh was physically able to do her job when she returned from medical leave. Ms. McIntosh identified the disabilities for which she requested accommodations as arthritis in hips and knees, a dislocated disk, and a pinched nerve. Ms. McIntosh claims that her disabilities limited her ability to walk, stand, and climb stairs. Petitioner recalls making her first request for an accommodation to her direct supervisor, Donna Myers, to use the golf cart to tour the million-square-foot facility, and to be excused from climbing in September 2007 after being diagnosed with arthritis in her hips and knees. Petitioner reports being told that the golf carts were no longer allowed for use by HR personnel. Ms. Myers denied this exchange taking place, and testified that the golf cart was available for Petitioner's use at any time. Robert Barnes, the distribution center manager, confirmed Petitioner's understanding that the designated HR golf cart was no longer used in HR. Petitioner also reported her October 2007 injury to Ms. Myers. Petitioner was even seen at the emergency room by Mr. Barnes. The medical leave paperwork was submitted to Ms. Myers by Petitioner. Dollar General had knowledge of Petitioner's injuries and medical condition. Upon her return to work in December 2007, Petitioner again asked Ms. Myers about using the golf cart and decreasing the amount of time she was required to spend on the floor of the distribution center. This request was denied. Again, Ms. Myers denied that this exchange took place between Petitioner and her. Petitioner began to use a cane or walking stick to help her get around the distribution center. Ms. Myers acknowledged seeing Petitioner walking with aid of the stick. Petitioner is firm in her testimony that she informed her supervisor and others up the chain of command of her condition and her need for an accommodation. Nevertheless, Ms. Myers denies that Ms. McIntosh asked to use a golf cart, to be relieved of her responsibility to walk the facility to interact with employees, or to be excused from walking up and down the stairs to meet with employees. A series of correspondence and emails supports Petitioner's claim that Dollar General's management was aware on some level of the seriousness of her physical limitations. Medical records that were submitted to Ms. Myers in October 2007 by Petitioner describe her knee pain and inability to walk up stairs. Those records estimate two weeks before Petitioner's return to work. The October medical report led to a November 9, 2007, letter from Ms. Myers to Petitioner requesting an updated medical certification. Petitioner complied and provided a medical certification showing the knee injury to be more serious than first thought and accompanied by a herniated disc. This report evidenced a return to work time of two to three months after physical therapy and additional diagnostic procedures. Finally, Dollar General received a Fitness for Duty form from Petitioner's health care provider stating a return to work date of November 24, 2007. Petitioner convinced her physician to clear her for work under the belief she had to be qualified at 100 percent in order to return. Prior to raising the issue of her medical condition, Petitioner had a stormy relationship, at times, with her supervisor, Ms. Myers. An exchange of emails occurred in March and April of 2007 between Petitioner and Mr. Harbison detailing Petitioner's issues with Ms. Myers. Petitioner did not ask Mr. Harbison, who was in her direct chain of command, to modify the responsibilities of her job in any way, nor did she mention -– until her suspension in March 2008 -– that she allegedly requested and was denied a reasonable accommodation. Petitioner did not call Dollar General's Employee Response Center to request an accommodation for her medical condition. Petitioner believed that hotline to be only for hourly employees, although Dollar General's written policies did not dictate any such restriction. When Petitioner returned to work in December 2007 after receiving treatment for her knee and back injuries, she experienced difficulties in standing for extended periods, in walking, and in climbing stairs. The pain she experienced was intense when engaging in any of these activities. She was able, despite the pain, to perform tasks of daily living, such as bathing and dressing herself, which allowed her to go to work. In addition to not being permitted to use the golf cart to perform her job, Petitioner had a broken chair in her office which made it more difficult for her to get relief when she was not walking the distribution center floor. She was first able to get a chair from the office next door to hers, and then Mr. Arrendell allowed her to bring in a chair from the conference room. Petitioner recalls many instances of interaction with her supervisors and managers about her physical limitations, including discussions about her inability to walk in a Christmas parade and her inability to stand up without leaning against a wall during a staff presentation she made. Dollar General's witnesses were not able to recall the substance of these interactions, except for remembering that Petitioner had an issue of some sort regarding the parade. Petitioner was suspended in early March 2008, pending an investigation, and her employment was ultimately terminated on March 11, 2008, for conduct unbecoming of an HR professional. No evidence was produced at hearing as to the circumstances leading to her dismissal. Petitioner did not have surgery related to her back or knee conditions until after she left the employ of Dollar General. She received pain management until she had surgery on her back. She received a consultation for her knee injury, but never had surgery performed. Upon leaving her employment, she had no insurance to cover her medical bills. The medical bills amounted to approximately $200,000, with the hospital bill for her surgery being $106,000 by itself. Petitioner has suffered financial losses which led her to borrow money for food, for her electric bill, losing her truck, losing her home insurance, and becoming three months behind on her mortgage. Petitioner has suffered emotionally as well. She suffers anxiety attacks and has had suicidal thoughts. Petitioner tried to return to work after leaving Dollar General. She secured a manager's job with Cato, a women's fashion store. The job did not require any heavy lifting or climbing of stairs. Her salary there was approximately half of her $43,000 salary at Dollar General. She worked at Cato for less than six months, earning gross pay of $11,600. She left when she suffered pain that required a trip to the emergency room which resulted in her having her back surgery. She did not return to work at Cato. Petitioner's only other earnings after leaving Dollar General were unemployment compensation benefits of $498 every two weeks, plus a $25 bonus from the federal stimulus package. Petitioner could have performed the essential functions of her employment if a reasonable accommodation had been made for her physical limitations. Dollar General has made accommodations for employees with physical limitations in the past, generally in the context of a workers' compensation injury.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that an unlawful employment practice occurred; that Respondent should have provided a reasonable accommodation for Petitioner's disability; awarding attorney's fees to Petitioner in accordance with a Title VII action and costs; and such other relief as the Commission shall deem appropriate. DONE AND ENTERED this 4th day of March, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2010. COPIES FURNISHED: Melanie A. Mucario, Esquire Mucario, McHugh & Dowdel, PLLC Post Office Box 781847 Orlando, Florida 32878-1847 Alva Cross Hughes, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Shear Express, Inc., committed alleged acts of employment discrimination in violation of Section , Florida Statutes, by discriminating against the Petitioner because of her age and because of an alleged disability.
Findings Of Fact The Respondent first hired the Petitioner as a hair stylist during 1994. She worked continuously for the Respondent since that time until sometime in the year 2001. During that year, she was terminated for a "negative attitude towards customers." In late 2002, the Petitioner met with the president of the Respondent, Janet West, asking to have a second chance at employment and to get her job back. Consequently, Ms. West hired the Petitioner again as a hair stylist on December 11, 2002. When the Petitioner was re-hired on December 11, 2002, the Petitioner was 58 years old. When the Petitioner was terminated on July 29, 2004, the Respondent employed approximately 100 to 120 employees. Many of them were over 40 at that time and several were over 50 years of age. In fact, in her testimony, the Petitioner agreed that her age had nothing to do with her termination. In any event, the Petitioner suffered a fall in 2003, the investigation of which apparently revealed that the Petitioner suffered from a brain tumor. She underwent surgery for that brain tumor in September 2003, which was successful. She returned to work on October 14, 2003, with the only restriction being that she could not drive for some six months following surgery. The Petitioner was then diagnosed with shingles in November 2003, and for that reason had to be out of work until January 9, 2004. The Petitioner was able to return to work on that date without any physical restrictions or limitations following her recovery from shingles. She had already effected a full recovery, without restrictions, from the brain tumor surgery. The Respondent's testimony, which is indeed corroborated by that of the Petitioner, as well as the deposition testimony of Dr. Steven Crews, establishes that the Petitioner was able to perform all physical requirements and duties of her job as a hair stylist after her return to work in January 2004. She sought no accommodation for any disability from her employer, and the evidence reflects that she needed no accommodation. She exhibited no physical or mental impairment that substantially limited any major life activity nor was her employer informed of such, and there was no record of any such impairment. The Petitioner offered no evidence that there was any intent, action or circumstance on the part of her employer, the Respondent, to terminate her based upon any disability. In fact, as found above there was no evidence of disability, physical or mental. Rather, there was evidence from which it may be inferred that there was some ill will between the Petitioner and her employer and supervisor. The Respondent offered evidence which establishes that the Petitioner had engaged in a pattern of tardiness in coming to work and then leaving work early. She had a negative attitude toward customers and co-workers and was something of a disruptive influence in the workplace with regard to both customers and coworkers. The termination was shown by the Respondent to be due to the Petitioner's failure to follow rules and the continuing pattern of negativity in her attitude and actions towards customers and co-workers. Indeed, the incident report, in evidence as Respondent's Exhibit Three indicates that the basis for the ultimate termination action was insubordination.
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 of Human Relations dismissing the petition in its entirety. DONE AND ENTERED this 14th day of March, 2006, 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 14th day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Samanthia Downs 12740 Blue Heron Way Leesburg, Florida 34788 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice on the basis of his age in violation of section 760.10, Florida Statutes.
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the pre-hearing stipulation. Mr. Ferrell is a 65-year-old male, who is employed at Florida A & M University as a registrar officer. Mr. Ferrell has worked in the registrar’s office in various positions since 2003. Florida A & M University is a university located in Tallahassee, Florida. At all times material to this matter, Florida A & M University employed more than 15 full-time employees. Mr. Ferrell alleged that four employees, Lefevere Jordan, Cornelius McGlockton, Dyamond V. Smith, and Antonio Witherspoon were treated more favorably than he was treated because they are younger than he is. Specifically, he asserted that Mr. Jordan received a pay raise; Mr. McGlockton and Mr. Witherspoon received a promotion; and Ms. Smith was hired at a higher pay rate for the same position that he holds (registrar officer). Mr. Ferrell’s job responsibilities as a registrar officer include maintaining the state course numbering system, maintaining the university course catalog, scheduling classes, and scheduling events. During the time that Mr. Ferrell has been employed by Florida A & M University, he has never been disciplined for poor work performance or otherwise. Mr. Ferrell testified that in 2012 or 2013, Dr. Onwunli promised him and Mr. Jordan a $5,000 raise. Dr. Onwunli denied she made the promise. The undersigned finds Mr. Ferrell more persuasive on that fact. Regarding Mr. Witherspoon, he is currently classified as a registration coordinator. His job responsibilities include supervising three employees, transferring credits, and project management. The coordinator position was advertised on May 20, 2016. Mr. Witherspoon applied for the position and was hired. Mr. Ferrell did not apply for the coordinator position. Similar to Mr. Ferrell, Mr. McGlockton is classified as a registrar officer. His job responsibilities include processing enrollment verifications and maintaining the electronic online catalog. Mr. McGlockton has website experience and successfully completed training for managing the electronic catalog system in 2015. Ms. Smith is also classified as a registrar officer. Her job responsibilities include processing test credits, maintaining the Ad Astra system, and assisting with the academic advisement module. On February 16, 2017, the registrar officer position was advertised. Ms. Smith applied for and was hired for the position. However, Mr. Ferrell did not apply for the position posted in February 2017. At hearing, Mr. Ferrell acknowledged that he did not apply for the coordinator or the registrar officer positions. He explained that he did not believe he was qualified for the coordinator position because he does not possess a master’s degree. However, despite not having a master’s degree, the position qualifications included “a bachelor’s degree in an appropriate area of specialization and two years of progressive experience in an academic environment.” Regarding the registrar officer position, understandably, he testified that he did not apply because his position carried the same title. There was no evidence offered at the hearing to demonstrate that Mr. Ferrell did not meet the qualifications for the advertised positions. Dr. Agatha Onwunli is the University Registrar at Florida A & M University. She supervises 20 employees, including Mr. Ferrell. Her job responsibilities include making hiring and promotion decisions, and training employees who work in the registrar’s office. As described supra in these findings of fact, several registrar officers perform different tasks and she makes hiring decisions based on the needs of the office. Mr. Ferrell alleges Florida A & M University unlawfully discriminated against him on the basis of age. The crux of this case rests with the age of the other employees that are relied upon for comparison. Mr. Ferrell offered testimony regarding Mr. Jordan, Mr. Witherspoon, Mr. McGlockton, and Ms. Smith to prove a similarly situated employee outside his protected class, based on age, was treated more favorably than he was treated. Mr. Ferrell testified that the employees could not be his age for various reasons. However, there was no evidence presented at hearing regarding the age of the four employees offered as comparators. In his PRO, Mr. Ferrell attached exhibits that reflect the age of Mr. Jordan, Mr. Witherspoon, and Ms. Smith. However, the exhibits were not offered during the hearing and as a result, they are not evidence of record. A finding of fact may only be based exclusively on evidence of record.1/ Thus, the undersigned may not consider the exhibits offered post-hearing to make a finding of fact regarding the age of Mr. Jordan, Mr. Witherspoon, and Ms. Smith. The undersigned finds that there was not sufficient evidence presented at the final hearing regarding the age of Mr. Jordan, Mr. Witherspoon, Mr. McGlockton, and Ms. Smith.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the Findings of Fact and Conclusions of Law of this Recommended Order. DONE AND ENTERED this 5th day of April, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 5th day of April, 2018.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent discriminated against the Petitioner because of his alleged disability.
Findings Of Fact The Petitioner, Charles H. Miller, was employed by the Respondent, Department of Transportation, for approximately 15 years. In October 1999, Mr. Miller injured his ankle in a work-related accident. He experienced chronic pain and mobility limitations as a result of the accident and continually received medication and psychological and/or physical therapy to help relieve the symptoms of his condition. Mr. Miller wore a brace on his injured foot and took various narcotic pain relievers. On May 2, 2001, Petitioner began seeing Lewis Fabrick, Ph.D., a licensed clinical social worker. Dr. Fabrick determined that Mr. Miller was suffering from depression, anxiety and stress that resulted partly from the pain from the physical injury and partly from the side effects of the medication. However, the Department was not aware of the nature or extent of Mr. Miller's mental or emotional issues. Prior to December 2000, Mr. Miller reported directly to Thomas Malerk, the State Materials Engineer. At that time, Mr. Miller was acting as the data center manager and supervised several other employees. Around November 2000, Mr. Malerk assigned another employee to supervise Mr. Miller and eliminated Mr. Miller's supervisory responsibilities. Mr. Miller's pay and benefits were not affected by this change. Mr. Malerk took this action to correct problems with the data center that had resulted in complaints about Mr. Miller and the data center. Mr. Miller's physical condition was not a factor in Mr. Malerk's decision to change Mr. Miller's job. In December 2000, Mr. Miller complained to the Department's ombudsman that coworkers were making fun of his ankle brace and physical limitation. Mr. Miller alleged that Mr. Malerk had joked about Mr. Miller needing a boot on the other foot to match and that the personnel officer, John Cooper, would pretend to "draw like a cowboy" in a manner that ridiculed Mr. Miller's condition. Mr. Miller also alleged that another co-worker, Gale Page, was harassing him by making fun of his physical limitations. Neither Mr. Cooper or Mr. Page had any supervisory responsibility over Mr. Miller. After receiving Mr. Miller's complaint, the ombudsman contacted Mr. Cooper and Mr. Malerk to inform them of Mr. Miller's concern. At approximately the same time, Mr. Miller also told Mr. Cooper that he was being harassed by Mr. Page, Mr. Malerk, and Mr. Cooper. When Mr. Cooper asked Mr. Miller to specifically identify the harassment that had occurred, Mr. Miller only specifically reported that Mr. Page had made fun of his walk or his leg. Mr. Cooper then informed Mr. Malerk of Mr. Miller's complaint and approached Mr. Page. Mr. Cooper told Mr. Page that he should refrain from making comments about Mr. Miller's condition. When Mr. Malerk learned of Mr. Page's remark to Mr. Miller, he reprimanded Mr. Page and requested that he apologize or otherwise clear the matter. Mr. Malerk also discussed the matter with Mr. Miller. Mr. Malerk apologized to Mr. Miller for anything he might have said that was insensitive and asked Mr. Miller if he had made any inappropriate remarks. Mr. Miller told Mr. Malerk that they did not have a problem and that he considered the matter with Mr. Page closed. Other than the incident with Mr. Page, and the accompanying accusations involving Mr. Malerk and Mr. Cooper, neither Mr. Cooper or Mr. Malerk had any reason to believe that any Department employee might be harassing Mr. Miller or making jokes about his injury or condition. Contrary to Mr. Miller's claim, the evidence does not indicate that either Mr. Malerk or Mr. Cooper even made fun of Mr. Miller's condition. Mr. Miller and Mr. Malerk have known each other since 1997 and were friendly with each other. On May 22, 2001, the Department dismissed Mr. Miller. The decision to dismiss Mr. Miller was based upon a number of violations of the Department's conduct standards, including Mr. Miller's insubordination, absence without authorized leave, display of an uncooperative or antagonistic attitude, and a violent outburst by Mr. Miller on May 21, 2001, when he was advised of the Department's intention to dismiss him. The issues relating to Mr. Miller's dismissal were fully litigated in a proceeding before the Public Employees Relations Commission, which culminated in a Recommended Order and Final Order upholding the Department's decision to dismiss Mr. Miller for violation of the Department's conduct standards. Mr. Malerk was responsible for requesting Mr. Miller's dismissal. Mr. Malerk requested Mr. Miller's dismissal for the violations of the Department's conduct standards that were included in the dismissal letter and was not motivated to request his dismissal in any part by Mr. Miller's physical problems.
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,
Findings Of Fact Petitioner was employed by Respondent from April 29, 1979 until she was terminated on November 8, 1983. From approximately December 1982 to the time of her termination, Petitioner was a deli clerk. No evidence was presented of her job classification or duties from April 29, 1979 to December, 1982. On October 23, 1979 Petitioner was injured on the job while working for Respondent. She missed three weeks of work due to this injury. Petitioner sustained a second accident on the job on September 14, 1982 when she tripped over a protruding metal bar and fell, injuring her back, hip, arm and neck. Although she did not immediately miss any work following this second accident, she was out of work from early February 1983 until late April, 1983 while she was under a doctor's care for her injuries. She was released by her doctor to return to work on or about April 21, 1983. On September 29, 1983 Petitioner received a written warning from her supervisor for poor performance on the job, and violation of store procedures. Specifically, she was spending too much time with some customers while leaving other customers waiting, and was not properly making sandwiches pursuant to store procedures. Petitioner received no raises or promotions during the time material hereto, and other employees were hired after her for the same job at a higher rate of pay. Other employees did receive pay raises during this time. October 27, 1983 was Petitioner's last day of work. She went for a myelogram on the next day, her day off, and thereafter was told by the deli manager to take the rest of the week off. When she returned to work on November 7, 1983 she was told she had been replaced. On November 8, 1983 her supervisor met with her and officially terminated her. Petitioner testified the reason she was given for her termination was she "was not doing her work" and her supervisor "could no longer have her around" the store. Petitioner disputes these reasons for her termination. As a result of her injuries, Petitioner had to wear a back brace on the job, and she was in pain. However, she testified she always did her job, carried out all assigned tasks, including cleaning an 8 foot oven, assisted her co-workers in their jobs, and was always courteous and attentive to customers. Seven former co-workers called by Petitioner testified on her behalf and confirmed her testimony. Arnold Banals found no fault with Petitioner as a co- worker and tried unsuccessfully to get her a raise; Pam Meers had no problem working with Petitioner, and stated she was always on the job and courteous to customers; Betty Barrett described Petitioner as a hard worker and dependable; Mark Frierson considered Petitioner one of the best employees in the store who went cut of her way to help customers and co-workers; Mark Bradstock testified that Petitioner never took breaks and never complained about her back pain; Christina Dahl confirmed that Petitioner was a good worker and testified she cleaned the 8 foot oven spotless; and Sherrie Myers, Petitioner's daughter, Mark Frierson and Christina Dahl all confirmed they were making more than Petitioner and received raises, although Petitioner was employed by Respondent longer than them. Respondent admitted, through the testimony of Marshall Glass, that Petitioner was a conscientious worker who was good to some customers and co- workers. However, Glass testified Petitioner's injuries did adversely affect her job performance, and therefore, he stated that the termination was due solely to Petitioner's inability to do her job. A medical statement from Lawrence S. Cohen, M.D., dated November 28, 1983, which was approximately three weeks after her termination, states she had been cut of work for a month with shingles and a sprained ankle, and further, required brace immobilization. It indicates she would be returning to work in two days, but would require re-evaluation in 6 weeks. This statement contradicts Petitioner's position that she was able to work in early November, 1983. In fact, she had to have a myelogram, was suffering from shingles and a sprained ankle, and was immobilized with a back brace at that time. By November 30, 1984 Petitioner's back and hip condition associated with her injuries had deteriorated to the extent that Tomas E. Delgado, M.D., expressed the opinion that she had reached maximum medical improvement but could still not bend, lift more than 15 pounds, or stand for more than one hour at a time nor more than a total of four hours in a day. In September, 1985 C. Jin Whang, M.D., found Petitioner had reached maximum medical benefit. He advised her not to lift anything over 40 pounds and to avoid excessive lower back and neck movement. The medical diagnosis, nature and extent of her injuries is unclear since the medical statements submitted in evidence conflict in certain respects. Nevertheless, it is clear that from at least early November, 1983, Petitioner has been unable to stand for extended periods, lift, or perform movements associated with her former position of deli clerk. At the time of her termination in November, 1983, the evidence establishes that Petitioner was carrying out her job responsibilities in a satisfactory manner as far as her co- workers were concerned. However, medical statements confirm Respondent's testimony that her condition had deteriorated, and she could not perform her job in a manner that was satisfactory to her employer. Petitioner was 52 years of age at the time of her termination. There is no competent substantial evidence that she was terminated due to unlawful discrimination based on age. Other than the injuries discussed above, there is no competent substantial evidence of any handicap, nor of any unlawful discrimination based on a handicap. Regarding Petitioner's charge that Respondent unlawfully discriminated against her due to her injuries, and resulting disability sustained while on the job, Petitioner has not established a prima facie case of discrimination. Respondent has articulated a nondiscriminatory reason for the termination of Petitioner on November 8, 1983. The evidence does establish that Petitioner was unable to perform her job duties at the time of her termination, and therefore Respondent had legitimate, nondiscriminatory reasons for terminating her. Petitioner has not shown that she could have continued to perform her job duties during and after November, 1983, and therefore has not established that her termination at that time was pretextual. Petitioner has received workers' compensation benefits for lost wages from November 9, 1983 to the present. On the basis of this, Glass asserted, as Respondent's Comptroller, that Petitioner has sustained no economic loss even if unlawful discrimination occurred. Petitioner offered absolutely no evidence regarding her rate of pay with Respondent, the extent of her workers' compensation benefits and any economic loss she has sustained. She did not refute or in any way contest Glass' assertion, and admitted she has received workers' compensation benefits for all lost wages. Therefore, there is no basis for any finding of economic loss. Respondent does not contest that it is an "employer" with the meaning of Florida Human Rights Act of 1977, Chapter 760, Florida Statutes.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 30th day of March, 1987 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 30th day of March, 1987. COPIES FURNISHED: Effie C. Tew 1902 Meridel Avenue Tampa, Fl 33612 Marshall R. Glass Post Office Box 1808 Tampa, Fl 33601 Regina McGriff, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Fl 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Fl 32399-1925 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Fl 32399-1925
The Issue The issue in these cases is: a) whether the Department of Education is liable for attorneys' fees and costs incurred in the prosecution of the Rushton case (DOAH Case No. 89-1551) and b) if so, whether such fees and costs should include those incurred in the prosecution of a rule challenge styled, Florida Education Association/United and Florida Teaching Profession/National Education Association v. Department of Education, DOAH Case No. 88-0847R.
Findings Of Fact Petitioner Lewis Rushton is a person within the meaning of Section 760.02(5), Florida Statutes. Mr. Rushton is an individual within the meaning of Section 760.10(1). The Department of Education ("DOE") is a personwithin the meaning of Section 760.02(5). The School Board of Seminole County, Florida ("School Board"), which is also a person within the meaning of the same statute, was at all material times Mr. Rushton's "employer" within the meaning of Section 760.02(6). At all material times, Mr. Rushton was employed as a bus driver by the School Board, which removed him from this position on April 19, 1988. The reason for the School Board's action was that the continued service of Rushton, who was over 70 years of age, was contrary to Rule 6A-3.0141(a), Florida Administrative Code, which required mandatory retirement of bus drivers at age 70 years ("Rule"). The other Petitioners were similarly situated to Mr. Rushton. The only difference is that they were employed by different district school boards. The School Board gave Rushton the option to continue in employment as a bus monitor, which was a lower-paying job than bus driver. Rushton accepted this reassignment and experienced the resulting reduction in pay beginning the 1988-89 school year. At all material times, DOE, which promulgated the Rule, maintained standards affecting the ability of Rushton to engage in his occupation or trade within the meaning of Section 760.10(5). The Rule was part of these standards. On January 29, 1987, Rushton filed a Complaint of Discrimination, FCHR Case No. 88-5616, against the School Board. The Florida Commission on Human Relations dismissed this complaint on November 11, 1988. On May 3, 1988, Rushton timely filed and prosecuted a Complaint of Discrimination, FCHR Case No. 88-5703, against DOE. On September 7, 1988, the Florida Commission on Human Relations issued a Notice of Determination--Cause. The Notice of Determination names as the sole respondent the School Board, which had employed Mr. Rushton prior to requiring him to retire at age 70. After DOE filed a Request for Reconsideration on September 16, the Florida Commission on Human Relations issued on January 12, 1989, a Notice of Redetermination--Cause. The Notice of Redetermination names DOE as the sole respondent. The Notice of Redetermination states that DOE's "assertion that [the Rule] is an established 'bona fide occupational qualification' for employment has not been upheld." The quoted statement in the Notice of Redetermination is to a final order issued December 14, 1988. The final order found the Rule to be an invalid exercise of delegated legislative authority. The final order was the culmination of a Section 120.56 challenge to the Rule that had been prosecuted against DOE by two unions representing the Petitioners. This rule challenge was styled, Florida Education Association/United v. Department of Education, DOAH Case No. 88-0847R ("Rule Challenge"). The Florida Teaching Profession/National Education Association was an intervenor on the side of the petitioner in the Rule Challenge. Lorene C. Powell represented the petitioner in theRule Challenge, and Vernon T. Grizzard, of Chamblee, Miles and Grizzard, and the law firm of Egan, Lev & Siwica, represented the intervenor. As the final hearing in the Rule Challenge approached, DOE requested abatements of the pending cases in which individual bus drivers had sought relief under Section 760.10. At that time, the cases of all Petitioners except Mr. Rushton were pending in the Division of Administrative Hearings. The grounds for the abatements were that the decision in the Rule Challenge "would substantially affect the outcome" of the pending individual cases. Each case was abated. The parties in the Rule Challenge stipulated that various counties, due to the Rule, had not rehired bus drivers who would have been rehired but for the fact that they had attained the age of 70 years. The parties also agreed that Sections 760.10 and 112.0444 [sic], together with cited federal law, "do not permit an age limitation on employment with the exception of where such an age limitation is based on Bona Fide Occupational Qualification." The stipulated issues for determination in the Rule Challenge included "whether the 70-year old age barrier . . . is a [bona fide occupational qualification] and thus a valid exception to the state and federal ban on age discrimination based solely on chronological age." By memorandum dated January 11, 1989, DOE informed school board superintendents of the final order invalidating the Rule. By letter dated February 9, 1989, the School Boardnotified Mr. Rushton that DOE was no longer requiring enforcement of the mandatory retirement rule and he could return to work as a bus driver if he could meet certain lawful requirements. Each Petitioner was so notified by his respective school board. By Petition for Relief filed March 21, 1989, Mr. Rushton sought relief against the School Board and DOE, including a finding that mandating his retirement due to age was an unlawful employment practice, an award of back pay and associated benefits, and an award of attorneys' fees in the prosecution of the subject proceeding and such other proceedings as were necessary or appropriate to obtain the relief and apportioning the fees between the School Board and DOE. With the filing of the Petition for Relief on March 21, 1989, John Chamblee of the law firm of Chamblee, Miles and Grizzard entered his appearance for Mr. Rushton. Mr. Chamblee had been retained for Mr. Rushton by his union, the Florida Teaching Profession/National Education Association. On or shortly after May 1, 1989, the School Board settled with Mr. Rushton by agreeing to compensate him for back pay, interest, and other benefits constituting relief otherwise available under Section 760.10. Similar settlements between the other Petitioners and their respective school boards resulted in the dismissal of all claims against the various school boards.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitions for Relief in the above-styled cases. ENTERED this 2nd day of May, 1990, in Tallahassee, Florida. COPIES FURNISHED: John J. Chamblee, Jr. Chamblee, Miles and Grizzard 202 Cardy Street Tampa, FL 33606 Vernon T. Grizzard Chamblee, Miles & Grizzard 116 South Monroe Street Tallahassee, FL 32301 Sydney H. McKenzie III General Counsel Carl J. Zahner Assistant General Counsel Department of Education Knott Building Tallahassee, FL 32399 Lorene C. Powell, Assistant General Counsel FEA/United 208 W. Pensacola Street Tallahassee, FL 32301 Ned N. Julian, Jr. Sun Bank Building, Suite 22 Post Office Box 1330 Sanford, FL 32772 Tobe Lev Egan, Lev & Siwica P.O. Box 2231 Orlando, FL 32802 Norman Smith Brinson, Smith & Smith 1201 W. Emmett St. Kissimmee, FL 32741 ROBERT E. MEALE 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 2nd day of May, 1990. William H. Vogel, Assistant Superintendent Personnel and Administrative Services P.O. Box 1948 Kissimmee, FL 32742-1948 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
Findings Of Fact Martin Marietta Corporation is a multi-state, multi- national defense contractor. Respondent functions as one of its primary divisions/operations in Orlando, Florida. The Petitioner, Frank Maggio was born on April 3, 1914. Petitioner was employed by Respondent on June 16, 1981 in the position of Quality Control Fabrication Inspector A (Fate A Inspector) at Respondent's Orlando facility. Respondent's primary role within the overall corporate operation is the production of highly sophisticated, high-tech missile systems. The development and production of these weapons is maintained under tight security due to the involvement of the national defense effort. Because of Respondent's participation in military and defense programs, the manufacturing process is constantly reviewed and critically inspected by governmental agencies. The Respondent utilizes "state-of-the-art" machines and equipment on its advanced, technical and highly complex defense projects. Petitioner's responsibilities as a Fab A Inspector included checking the first piece of hardware off of the machines, qualifying the tape that runs the machine with his stamp and checking the dimensions of the first layout. This procedure is referred to as a set-up and, once "bought off" "accepted) by the "A" inspector, it establishes the critical reference point or benchmark for the sophisticated, state-of- the-art-manufacturing processes of the Respondent. Respondent's operations involve the manufacture or production of weaponry or weapons systems that require tolerances The Petitioner was given a warning that another similar incident might result in further disciplinary action, up to and including discharge and specifications which are not found or even known in consumer oriented production plants. Certain pieces of equipment used will drill and measure within one one-thousandth of an inch (1/1,000"). The integrity of the highly integrated and closely coordinated production procedures depends upon the correct initial setting, which "commits" the production process. If the initial setting is off or in error, nonconforming parts or items will be manufactured. If the nonconforming parts cannot be reworked or brought into tolerances, they are regarded as scrap and represent a loss to the company. The Petitioner functioned as the only Fab A Inspector on the second shift with very little, if any, supervision. "B" and "C" Inspectors were present, but not performing in a capacity that could provide a backup for Petitioner. In February, 1983, Petitioner functioned under the direct supervision of Charles Holley, Chief Quality Inspector. Although both men worked on the second shift, Petitioner performed as a Fab A inspector and was responsible for making the initial, critical decisions on "set-up" tapes for the second shift production operations. On April 5, 1983, while on his second shift assignment, Petitioner "bought off" on a first piece inspection in order to qualify a newly released tape. On April 7, 1983, the first shift rejected a piece on that particular tape because the dimensions were out of tolerance. Subsequently, after a second inspection of the piece by the senior tool inspector, it was determined that the part was non-conforming and out of tolerance. This error lead to the production of approximately 180 pieces of "scrap" and a loss of about $100,000. As a result of this incident, Mr. Holley, Petitioner's superior, completed a Significant Incident Report (S.I.R.) dated April 18, 1983, which was placed in Petitioner's personnel file. Pursuant to routine procedure, Petitioner was counseled about the S.I.R. and given an opportunity to respond. The Petitioner was given a warning that another similar incident might result in furhter disciplinary action, up to and including discharge. Following the April, 1983 incident, Mr. Holley felt that Petitioner's work performance began to decline. Mr. Holley was dissatisfied because Petitioner often used scales for measurements at times when Mr. Holley believed that calipers should have been used. In addition, Petitioner used his lunch break to take naps, and several times he was late returning to work. Sometime in late September or early October, the Petitioner approved a piece of hardware similar to that involved in the April, 1983 incident and it too was rejected for being out of tolerance. Following this incident, Mr. Holley once again went to the Personnel and Industrial Relations Department (S.I.R.) attempting to have another S.I.R. placed in Petitioner's file. However, the management in P.I.R. did not allow the report to be placed in Petitioner's file. Subsequently, Petitioner was not reprimanded or otherwise disciplined and no official record was kept of this incident. During February, 1984, a "set-up" error by Petitioner on a secret laser tracking missile project know as "Hell-Fire" caused unusable parts to be manufactured and a financial loss to Respondent. Prior to submitting an S.I.R., Mr. Holley met with management in the Personnel and Industrial Relations Department to discuss the Petitioner's situation. It was at this time that Mr. Thomas Mallis, supervisor of employee relations, seized upon the idea of Petitioner's upcoming 70th birthday on April 3, 1984 as a way in which to be rid of Petitioner. Mr. Mallis reasoned that rather than attempting to terminate Petitioner for cause, Petitioner's 70th birthday would provide a point where Petitioner could be "gracefully retired" under Martin Marietta Corporation's corporate retirement policy. Martin Marietta Corporation has a nationwide corporate retirement which requires retirement at age 70. Generally, the company does not enforce this requirement at facilities which are located in states where such a policy violates age discrimination laws. Likewise, Respondent does not generally enforce the corporate wide retirement policy at its Orlando facility because it is subject to Florida state law concerning age discrimination. As of April 4, 1984, Respondent employed approximately 11,000 employees. Approximately 5,017 of those employees were 40 years of age and a small number were over 70. Although the company's age 70 retirement policy is not generally enforced at Respondent's Orlando facility, the retirement plans provided by the company and the benefits package negotiated by the union with the company for retirement pay focus on age 70 as the point at which retirement benefits mature or "top out." After age 70, no further benefits accrue under the retirement plan. Thus, as a matter of established practice and/or expectation on the part of the employees, virtually all workers have retired or plan to retire on or before their 70th birthday. Therefore, Mr. Mallis believed that having respondent "retire" at age 70 would be an easy non-confrontational way to terminate Petitioner's employment. As a member of the United Aerospace Workers local bargaining unit, Petitioner would have had the right to object and file a grievance concerning any proposed termination for cause by Respondent. By "retiring" Petitioner under the corporate policy, Mr. Mallis believed that a "bitter challenge" under the union's often cumbersome grievance/arbitration procedures could be short-circuited. Under the Respondent's progressive discipline system, generally employees are given 3 to 5 S.I.R.'s or written warnings before any stronger action is taken. At the time of his involuntary retirement by Respondent on April 4, 1984, the Petitioner was not vested under the company's retirement program and was not entitled to any benefits thereunder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that a Final Order be entered finding that the Respondent is guilty of a violation of Section 760.10, Florida Statutes and awarding the Petitioner attorney's fees. It is further RECOMMENDED that the Petitioner be reinstated to his former position. The Respondent may seek to institute proceedings within 30 days from the date of the final order to terminate Petitioner for cause based on his work performance up to April 4, 1984. If the respondent is barred from attempting to terminate Petitioner for cause based on those past incidents for whatever reason, if Respondent chooses not to institute termination proceedings, or if the Respondent successfully defends any termination proceedings, then the Petitioner shall be entitled to back pay for the statutory maximum of two years. DONE and ORDERED this 18th day of August, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1986. COPIES FURNISHED: Joseph Egan, Jr., Esquire Post Office Box 2231 Orlando, Florida 32802 Thomas C. Garwood, Jr., Esquire 57 West Pine Street, Suite 202 Orlando, Florida 32801 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. Adopted in Findings of Fact 1 and 3. Partially adopted in Findings of Fact 14 and 16. Matters not contained therein are rejected as misleading. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as misleading. Adopted in Finding of Fact 5. Adopted in Findings of Fact 4, 5, and 6. Adopted in Finding of Fact 7,/ Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 10 and 11. Matters not contained therein are rejected as unnecessary and subordinate. Partially adopted in Findings of Fact 13, 14, 16, and 17. Matters not contained therein are rejected as not supported by competent substantial evidence and/or subordinate. In particular, the finding that the "Petitioner under normal circumstances, should have been discharged for his pattern of poor performance and the associated financial impact upon the company" is rejected as not supported by competent substantial evidence. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as argumentative and/or subordinate. ================================================================ =
Findings Of Fact Petitioner was employed at Respondent as a bartender from May, 1987 until October 29, 1987, when she was terminated. On October 29, 1987, she was terminated by Scott McGregor, owner of Respondent, due solely to the fact that she was pregnant at the time. Petitioner was nine and one-half weeks pregnant when she was terminated. She had told her employer when she became pregnant, and he had told her she could keep her job as long as she wanted, and even into her ninth month of pregnancy. On the day Petitioner was fired, McGregor referred to her pregnancy and indicated her condition was not consistent with the name of his business, "Heavenly Bodies". Petitioner's gross hourly wage was $4.50, and she regularly worked six days a week, seven and one-half hours a day, for a total of 45 hours a week. She attempted to find other work as a bartender after she was terminated, but could not find employment because of her pregnancy. She remains unemployed to date. However, her current unemployed status appears to result from her decision to stay home with her baby. Due to her termination based solely on her pregnancy, Petitioner was discriminated against by Respondent based on sex. Respondent has suffered damages in the amount of $4,455.00 due to lost wages. This amount is computed from her hourly wage for a period of 22 weeks, which covers the period of time from her termination at nine and one-half weeks to the end of her eighth month of pregnancy. No award is made for the period after her baby was born since she has voluntarily remained home with her baby, and has not sought employment during this time.
Recommendation Based upon the foregoing, it is recommended that the City of Clearwater, Community Relations Board, enter a Final Order finding that Respondent has unlawfully discriminated against Petitioner based upon sex, and awarding Petitioner $4,455.00 in actual damages for back wages as a result of such discrimination. DONE AND ENTERED this 6th day of September, 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 6th day of September, 1988. COPIES FURNISHED: Lori Baxter 3054-G Beecher Drive, East Palm Harbor, Florida 34683 Scott McGregor, Owner Heavenly Bodies II 3323 U.S. 19 North Clearwater, Florida 34619 Ronald M. McElrath Office of Community Relations Post Office Box 4748 Clearwater, Florida 34618 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his age.
Findings Of Fact The following Findings of Fact are based on the testimony adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding. Title 49 C.F.R. § 391.1(a) provides that “[t]he rules in this part establish minimum qualifications for persons who drive commercial motor vehicles as, for, or on behalf of motor carriers.” During the time relevant to the instant case, 49 C.F.R. § 391.41(a)(1)(i) mandated that “[a] person subject to this part must not operate a commercial motor vehicle unless he or she is medically certified as physically qualified to do so. . . .” Title 49 C.F.R. § 391.41(b)(6) specifies that a person is qualified to operate a commercial motor vehicle if he “[h]as no current clinical diagnosis of high blood pressure likely to interfere with his ability to operate a commercial motor vehicle safely ” A driver of commercial motor vehicles must obtain the aforementioned certification every two years. See 49 C.F.R. § 391.45(b)(1)(mandating that any driver who has not been medically examined and certified during the preceding 24 months must be medically examined and certified in accordance with § 391.43 of this subpart as physically qualified to operate a commercial motor vehicle).1/ CRST Trucking initially hired Mr. Williams approximately 15 years ago as a commercial truck driver. At that time, Mr. Williams was 75 or 76 years old. Mr. Williams regularly performed drives for CRST Trucking that exceeded 1,000 miles. On one occasion, he drove an 18-wheeler from Florida to California and back. According to Mr. Williams, CRST Trucking wrongfully terminated him in 2010 because he supposedly was unable to safely get in and out of his truck. After he passed the required medical examination, CRST Trucking rehired Mr. Williams in 2015 when he was 88 years old.2/ At some point thereafter, Mr. Williams’ employment with CRST Trucking ended again. Mr. Williams reapplied with CRST Trucking in 2017 when he was 90 years old. After he failed the 2017 examination because his blood pressure exceeded the allowable limit, CRST Trucking did not rehire him. Mr. Williams does not dispute that his blood pressure was high during the examination, but he attributes that to his failure to take his blood pressure medication beforehand. While Mr. Williams testified that CRST Trucking hired younger drivers, he presented no evidence that CRST Trucking hired younger drivers who failed to obtain the required certification. Mr. Williams was a very compelling and articulate witness and should be commended for his strong desire to continue being a productive member of society. Even though Mr. Williams failed to present a prima facie case of age discrimination, the undersigned is convinced that he is capable of performing meaningful work as an employee or a volunteer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Howard B. Williams’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 26th day of February, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 26th day of February, 2019.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on November 2, 2009.
Findings Of Fact Petitioner is 74-year-old male who was employed by Respondent as Human Resources Director from July 1994 until January 30, 2009. His job was an office job that required him to sit at a desk, attend meetings, and occasionally visit people in other parts of the plant to discuss business. Respondent, Daws Manufacturing Company (Daws), is an employer within the meaning of the Florida Civil Rights Act. Daws is a Florida corporation with its principal office in Pensacola, Florida. Daws is a manufacturer that builds aluminum toolboxes for trucks, and other truck accessories. James Nowak is Daws' Vice President and Chief Financial Officer. According to Mr. Nowak, a decision to cut overhead was made in the summer of 2008, as a result of three years of significant economic losses. The decision was made to close the manufacturing component of its Pensacola facility so that the company could survive. To accomplish this, Daws implemented a reduction in force which involved two layoffs in 2008. As Human Resources Director, Petitioner played a significant role in the layoff process. Mr. Nowak described Petitioner's role as "orchestrating" the layoffs, meaning that Petitioner was the person "who managed it, who disseminated the information, and who was at the center point of getting the project completed." Harold Clinton "Clint" Daws is Respondent's President and Chief Executive Officer. While Petitioner and Mr. Nowak played significant roles in the reduction in force process, Mr. Daws was ultimately responsible for deciding which employees were to be laid off. Forty-seven employees were laid off in August 2008. Thirty-one employees were laid off on December 5, 2008. Only six employees remained in the Pensacola plant following the December 2008 layoff. Petitioner was one of the employees slated to be laid off in December 2008. However, Petitioner suffered a heart attack in mid-November 2008 and underwent open heart surgery. This happened prior to the December 2008 layoff. Because of Petitioner's medical situation, Mr. Daws agreed that Petitioner would not be laid off as scheduled in December 2008, but could remain employed through January 2009. Petitioner was the only employee scheduled to be laid off in December 2008 whose termination was deferred. Petitioner returned to work on January 19, 2009, and was scheduled to be laid off January 30, 2009, the last working day of that month. He requested to stay on longer than scheduled, but that request was denied by Mr. Daws. Petitioner remained covered under the company's health insurance through January. From January 19 through his last day of employment, Petitioner spent time cleaning his office and tending to other matters. During January 2009, Petitioner underwent cardiac rehabilitation. He left the office for a couple of hours during the work day to participate in his rehabilitation. This was handled the same as for any employee who had to go to a medical appointment. However, Petitioner did not request any accommodation regarding any disability during this time. Petitioner acknowledged at hearing that he never made a complaint of discrimination to Mr. Daws based on his age, gender, or perceived disability. Before leaving on his last day of employment, Petitioner wrote a letter to Workforce Escarosa, a local agency that handles unemployment claims, advising that he was "laid off today due to a reduction in force-job elimination." He again made this assertion to Workforce Escarosa in a February 27, 2009 letter in which he reiterated that he was "laid off due to a reduction in force, job elimination, and I am not to be considered a retiree." Upon termination, Petitioner was offered and accepted insurance under COBRA. The COBRA coverage was later rescinded by the insurance company, not by Daws, apparently because it discovered Petitioner was on Medicare and was not eligible. Mr. Nowak never discussed Petitioner's medical expenses from his heart attack or previous medical problems with the company's insurance agent or the company's president. Following Petitioner's termination from employment, the position of Human Resources Director was eliminated as part of its reduction in force. The remaining duties of the Human Resources Director position were apportioned between Mr. Nowak and Ms. Violeta Gordon, Petitioner's assistant. Daws did not hire anyone to serve as the Human Resources Director. At hearing, Petitioner alleged that he was discriminated against earlier in his employment. Specifically, he asserted that he did not receive a pay raise from 1995 until 2002 and that he was asked in 2006 when he was going to retire. While Mr. Daws testified as to legitimate, non-discriminatory reasons for Petitioner not receiving a pay raise and denied asking Petitioner when he was going to retire or encouraging him to retire, these allegations are untimely as will be more fully addressed in the Conclusions of Law. At the time of his layoff, Petitioner was 72. Petitioner alleged in his Employment Complaint of Discrimination that his assistant, Ms. Gordon, was 65. There is nothing in the record to indicate otherwise and, based upon observations of her while testifying at hearing, 65 is a reasonable approximation of her age.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that Daws Manufacturing Company is not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 7th day of January, 2011, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2011.
