The Issue Whether the Petitioner, Macia Poole, was subject to an unlawful employment practice by Respondent, Westminster Village of Pensacola, on account of her sex or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact On April 3, 2015, Petitioner’s Employment Complaint of Discrimination and Petition for Relief were transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations for a formal administrative hearing to be held in accordance with section 120.57, Florida Statutes. On April 10, 2015, a Notice of Hearing by Video Teleconference was entered which set the final hearing for June 1, 2015, at 9:00 a.m., Central Time, (10:00 a.m., Eastern Time), at video teleconference sites in Pensacola, at the Office of the Judges of Compensation Claims, Video Teleconferencing Room, 700 South Palafox Street, Suite 305, Pensacola, Florida, and in Tallahassee, at the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. On May 4, 2015, one Subpoena Duces Tecum and four Subpoenas Ad Testificandum were issued at the request of Petitioner. On May 14, 2015, Petitioner electronically filed her Notice of Appearance in this proceeding. On May 26, 2015, Petitioner filed a Request to Reschedule Video Hearing. The Request made no allegation of an inability to attend the hearing, only that her attendance would be an “inconvenience.” The Request was denied. The filing of the Request is convincing evidence that Petitioner knew that the final hearing was scheduled to be heard in accordance with the Notice of Hearing by Video Teleconference. On June 1, 2015, at the scheduled date, time, and place, the final hearing was convened. Mr. Moran, representing Respondent, Westminster Village of Pensacola, made his appearance. Petitioner did not appear. The final hearing was recessed for twenty minutes to allow Petitioner to appear. During the recess, the undersigned confirmed that the Division had not received any communication from Petitioner of exigent circumstances that may have interfered with her appearance at the final hearing. After twenty minutes had passed, the final hearing was re-convened. Petitioner was not in attendance. Respondent was prepared to proceed, and had its witnesses in attendance at the Pensacola video location. Mr. Moran confirmed that he had received no emails from Petitioner, that being their normal form of communication. At 9:25 a.m., Central Time, (10:25 a.m., Eastern Time), the final hearing was adjourned. There was no evidence presented at the final hearing in support of Petitioner’s Employment Complaint of Discrimination and Petition for Relief.
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 finding that Respondent, Westminster Village of Pensacola, did not commit an unlawful employment practice as to Petitioner, Macia Poole, and dismissing the Petition for Relief filed in FCHR No. 2014-01235. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of June, 2015. COPIES FURNISHED: Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Brian J. Moran, Esquire Moran Kidd Lyons Johnson, P.A. 111 North Orange Avenue, Suite 900 Orlando, Florida 32801 (eServed) Macia Deanne Poole Apartment 176 6901A North 9th Avenue Pensacola, Florida 32504 (eServed) Christopher R. Parkinson, Esquire Moran, Kidd, Lyons, and Johnson, P.A. 111 North Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Errol H. Powell, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's Withdrawal of Notice of Establishment and Motion to Dismiss Protest, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Mazda Motor of America, Inc. d/b/a Mazda North American Operations and BCSS, Ltd. d/b/a Bachrodt Mazda Pompano Beach to sell automobiles manufactured by Mazda (MAZD) at 1801 West Atlantic Boulevard, Pompano Beach (Broward County), Florida 33069. Filed September 21, 2009 2:40 PM Division of Administrative Hearings. DONE AND ORDERED this /7iy of September, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this {i{j.h day of September, 2009. 1¼in'·ap·k, uDealer AdmlnilllalDf NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Louis C. Bachrodt, III BCSS, Ltd. d/b/a Bachrodt Mazda Pompano Beach 1801 West Atlantic Boulevard Pompano Beach, Florida 33069 John J. Shahady, Esquire Adorno & Yoss, LLP 350 East Las Olas Boulevard, Suite 1700 Fort Lauderdale, Florida 33301-4217 2 Dean Bunch, Esquire Nelson Mullins Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32309 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 3
The Issue The issue in the case is whether Clifford McCullough (Petitioner) was the subject of unlawful discrimination by Nesco Resources (Respondent) in violation of chapter 760, Florida Statutes (2015)1/.
Findings Of Fact The Respondent is a company that refers pre-screened job candidates to employers upon request by an employer seeking to fill a specific position. The Petitioner is an African-American male, born in 1959, who sought employment through the Respondent. The Respondent does not make the hiring decision. The actual decision is made by the employer requesting referrals from the Respondent. The Respondent is compensated by the employer if and when the employer hires an applicant referred by the Respondent. On occasion, the Respondent publishes advertisements seeking applications to fill specific positions, such as “forklift drivers.” The fact that the Respondent seeks applications for specific positions does not mean that an employer has contacted the Respondent seeking referrals for such positions. The advertisements are used by the Respondent to create an inventory of applicants who can be referred to employers. On December 20, 2013, the Petitioner submitted a job application to the Respondent seeking a “forklift driver” position. At that time, the Petitioner indicated to the Respondent that he was available to perform “warehouse, packing, production, shipping and receiving tasks.” Several weeks prior to the Petitioner’s application, the Respondent had referred job candidates to an employer seeking to fill an available forklift driver position. The employer filled the position by hiring an African-American male born in 1961 who was referred to the employer by the Respondent. As of December 20, 2013, the Respondent had no pending employer requests seeking referrals to fill forklift driver positions. The evidence fails to establish that the Respondent had any employer requests at that time which were consistent with the Petitioner’s skills. The Respondent’s general practice when contacted by a prospective employer is to recommend applicants who have maintained ongoing contact with the Respondent’s staff after the submission of an application. There was minimal contact between the Petitioner and the Respondent after the Petitioner submitted his application in December 2013. The Respondent presumes that some people who submit applications subsequently relocate or obtain employment elsewhere. Accordingly, the Respondent requires that previous applicants periodically submit new employment applications so that the Respondent’s inventory includes only active job seekers. On April 8, 2014, the Petitioner submitted another application to the Respondent. Also in April 2014, an employer contacted the Respondent to obtain referrals to fill another forklift driving position. The employer filled the position by hiring an African- American male born in 1964, who was referred to the employer by the Respondent. Prior to his referral for the forklift driver position, the successful applicant routinely contacted the Respondent’s staff, in person and by telephone, regarding available employment opportunities. The evidence fails to establish whether the Respondent was included within the applicants who were referred to the requesting employer. There is no evidence that the Respondent’s referral process reflected factors related to any applicant’s race, color, sex, or age. The Petitioner has also asserted that his application should have been referred to an employer who, on one occasion, was seeking to fill an available cleaning position. The position was a part-time job paying an hourly wage of $10. The Petitioner had not submitted an application for such a position. Nothing in the information provided by the Petitioner to the Respondent indicated that the Petitioner was interested in such employment. Through the Respondent’s referrals, the employer filled the cleaning position by hiring an African-American male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's complaint of discrimination. DONE AND ENTERED this 21st day of June, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2016.
Findings Of Fact The Petitioner was employed as a road driver by Overnite on September 24, 1984. He was initially hired at Overnite's Memphis, Tennessee Terminal. In September, 1985, the Petitioner was diagnosed as having non-insulin dependent diabetes. He has remained a diabetic to the present. He became insulin dependent in approximately November of 1988. In March of 1986, the Petitioner was transferred, in accordance with his request, to the Overnite Terminal in Miami, Florida. This transfer was approved by the Miami Terminal Manager, Donald G. Collins. At the time of the transfer or at least within a few days after the Petitioner's transfer to Miami, Collins was aware that the Petitioner was diabetic because of he reviewed the Petitioner's personnel file which included a physical examination form. Petitioner was employed at the Miami Terminal for approximately twenty- one months. During that time, he worked under the supervision of the Terminal Manager, Don Collins. There is no persuasive evidence of conflicts between the Petitioner or Collins or any harassment of the Petitioner by Collins during the twenty-one months the Petitioner worked in Miami. The Petitioner was never disciplined, threatened, suspended, or reprimanded by Collins prior to his termination. The whole time he worked in Miami, the Petitioner had and was known to have diabetes. The Petitioner was discharged by Overnite on December 11, 1987. The reasons for the Petitioner's discharge were: Petitioner had possessed and carried a firearm on Company property; he carried a concealed weapon without a permit; he displayed a firearm to a black employee in the Overnite Jacksonville, Florida, terminal bunkhouse, intimidating the employee and causing him to become nervous and complain about the incident; and, he improperly maintained his driver's logs by failing to log in rest stops along his route in violation of Company and Department of Transportation regulations. The initial decision and recommendation to terminate the Petitioner was made by Gerald Rogers, a Safety Director for Overnite. Roger's job, commonly known as a "Safety Man", was to travel around the country and enforce safety and operating rules for Overnite. Rogers was not attached to any particular terminal and his job duties did not relate to the day-to-day operations, job assignments, or personnel workings in Miami or any other terminal. However, a Safety Man for Overnite, has the authority to terminate Road Drivers. At the time Rogers recommended the Petitioner be terminated, Rogers was conducting an unrelated investigation of theft at the Jacksonville, Florida, terminal. Prior to December 10, 1987, Rogers had never met nor spoken with the Petitioner. There is no indication that Rogers was ever aware that the Petitioner was a diabetic. Rogers had never spoken with Don Collins about the Petitioner prior to the instructions he gave Collins to terminate the Petitioner the day before the Petitioner's discharge. The events leading to Petitioner's discharge began when Petitioner, who is white, was involved in a couple of encounters with a black Driver from Gaffney, South Carolina, Dennis Dawkins. There is conflicting testimony as to what transpired during these incidents. In any event, it is clear that these incidents led to Rogers' discovery that Petitioner was carrying a gun on company premises. The first incident occurred approximately one month before Petitioner was fired. The Petitioner had made his normal run from Miami to Jacksonville and was taking "downtime" in the Jacksonville bunkhouse. Dawkins, who had known the Petitioner for a little more than a year, was also taking downtime at the Jacksonville Terminal. While the two men were in the bunkroom, Petitioner took his pistol out of his overnight bag and displayed it to Dawkins. Petitioner did not physically threaten Dawkins with the pistol, but he did point it at Dawkins repeatedly, despite Dawkins' insistence that he point the barrel in another direction. Dawkins asked Petitioner to put the pistol away saying that it was against Company policy to have it on the premises, and that he had a friend who was shot with a pistol and did not like to be around them. Despite Dawkins' request, the Petitioner did not put the weapon away. Dawkins left the room after several minutes. This incident caused Dawkins to become nervous, scared, and intimidated and, immediately upon leaving the bunkroom, Dawkins reported the incident to other Drivers, including Claude Walls, a Road Driver out of Birmingham, Alabama. Shortly after the incident involving the pistol, Petitioner informed Dawkins that he was prejudiced against blacks. On another occasion, Petitioner told Dawkins that when white people wanted to start a fight, a person would put a block on his shoulder and the other guy would knock it off. However, he said when black kids start fighting, they stick their finger up against the other one's nose. After making this statement, Petitioner placed his finger against Dawkins nose and Dawkins slapped it away. Dawkins became angry and told the Petitioner not to do that again. Dawkins reported this incident to the other Drivers. On or about December 9, 1987, Gerald Rogers was in Jacksonville to investigate thefts at the Jacksonville Terminal. During that visit, Rogers spoke with Claude Walls who reported the incident between Petitioner and Dawkins involving the pistol in the bunkroom. Walls also told Rogers about the incident when Petitioner stuck his finger in Dawkins face. When Dawkins arrived at the Jacksonville Terminal from his scheduled run from Gaffney, he was interviewed by Gerald Rogers regarding the matters conveyed to Rogers by Walls. Dawkins confirmed that he had been intimidated and had become nervous because of the Petitioner's handling of the pistol in the bunkroom and he confirmed the "nose pointing" incident. He also informed Rogers that Petitioner had stated he was prejudiced. The following day, when the Petitioner arrived from Miami, he was interviewed by Gerald Rogers. Rogers inquired as to whether the Petitioner was carrying a firearm on Company premises. Petitioner admitted that he was. Gerald Rogers asked Petitioner whether he had a permit to carry a concealed weapon, and Petitioner stated that he did not. Rogers also checked the Petitioner's log and compared it to the tach chart for his truck. This review indicated that Petitioner had made stops along his route which were not properly logged into his Driver's log. The Petitioner admitted his failure to log in all his stops. This failure on the part of the Petitioner was a violation of Company policy and Department of Transportation regulations. On December 10, 1987, after interviewing the Petitioner, Rogers contacted Don Collins and informed him that the Petitioner was carrying a weapon on Company premises in a concealed manner without a permit. He also told Collins about the improper log entries made by the Petitioner. Rogers recommended that the Petitioner be terminated by Collins upon his return to Miami. On December 11, the Petitioner returned to Miami and was terminated by Don Collins in the presence of the Operations Manager, Randy Gobble. The information investigated and discovered by Rogers and communicated to Don Collins was the basis for the termination of the Petitioner's employment on December 11, 1987. There is no dispute that the Petitioner carried a firearm at work during the majority of the time he was employed in Miami. He carried this weapon on Company property, both in his assigned truck and on his person, either in his pocket or in his overnight bag. Overnite has an unwritten policy that employees are not to carry firearms on Company property. This policy is not set forth in the Employee Handbook. The policy is disseminated to Drivers and employees during Overnite's orientation and through word-of-mouth instructions at various times. This policy was known to Don Collins and was one of the underlying bases for the decision to terminate the Petitioner's employment. However, it does not appear that all employees were aware of the policy. While the policy could have been more clearly announced and/or disseminated, the evidence did not support Petitioner's contention that Respondent's reliance on this policy to discharge Petitioner was a pretext. Petitioner denies any knowledge of a Company policy prohibiting the carrying of firearms on Company property. Nonetheless, it is clear that the policy was well known to most employees including those responsible for Petitioner's discharge. Petitioner contends that other Drivers possessed firearms on Company premises. However, there is no evidence that those persons responsible for the Petitioner's discharge (Don Collins and Gerald Rogers) had any knowledge of other employees who violated the Company policy regarding the possession of firearms on Overnite premises. No previous indicents of employees carrying firearms on Company premises had been brought to the attention of Overnite mangement. Petitioner contends that there were at least two other Road Drivers who carried weapons on company property. Both of those drivers worked at night and had little or no contact with Collins. Petitioner also contends that a Dock Worker, James Watkins, and a night-shift Dock Supervisor, Tom Gaskins, carried weapons. However, no persuasive evidence was presented that Collins or Rogers ever observed or had knowledge that either of these two Dock Workers, or any drivers, were in possession of weapons on Company premises. James Watkins admitted that he carried a weapon, as did his Supervisor, Tom Gaskins. However, he acknowledged that there was a Company policy prohibiting firearms on Company premises and that he knew that his possession of a weapon on the Miami Terminal dock was in violation of that Company policy. Furthermore, Watkins had a conversation with Tom Gaskins, his Supervisor, about carrying weapons at work and they had talked about hiding their weapons and keeping them out of sight as much as possible because they knew it was against Overnite policy. Watkins and Gaskins had "confined" their firearms and kept them out of sight because of the "obvious" -- they could get fired. In sum, it is clear that there was a company policy prohibiting the carrying of a weapon on company property and this policy was known to most, if not all, Overnite employees in the Miami Terminal. While some employees violated this policy, such activities were concealed from and not known to Don Collins at the time he discharged the Petitioner for violating the policy. Petitioner argues that Respondent's reliance on his carrying of a weapon as a grounds for discharge is pretext because his immediate supervisors, Tom Gaskins and Mark Carlson, had been aware for a long time that he carried a weapon on Company property. However, neither Gaskins nor Carlson was involved in or had knowledge of the Petitioner's discharge prior to its occurrence. Furthermore, Carlson states that he had previously informed the Petitioner that it was against Company policy to carry firearms on Company premises. The persons who were responsible for the discharge (Collins and Rogers) had no prior knowledge that Petitioner had been violating Company policy by carrying a weapon. It is clear that the violation of the prohibition against possession of firearms on Company premises is considered a major infraction by upper management. While some lower level supervisors may have been willing to overlook the violation, there is no basis for concluding that Collins' and Rogers' reliance on the policy was a pretext for discrimination. Furthermore, the context in which Rogers discovered that Petitioner was carrying a weapon appears to have magnified the significance of Petitioner's violation of this company policy. The Petitioner alleges in his Petition that the incident with Dawkins was contrived by Overnite subsequent to his discharge and in response to his claim of handicap discrimination. However, the evidence established that the Dawkins incident was known on December 11, 1987 and was one of the bases for the decision to terminate the Petitioner. The Employee Separation Sheet for the Petitioner, which was completed on December 11, 1987, noted that one of the reasons the Petitioner was being terminated was because he had displayed a firearm. Furthermore, the issue of whether Petitioner had displayed his pistol to a co-worker was raised and contested during Petitioner's attempt to gain unemployment benefits in January of 1988. Petitioner did not voice any complaint that he had been discharged because of his handicap until approximately March, 1988. In sum, the reasons given by Overnite for the Petitioner's discharge existed at the time he was terminated from employment and were not pretextual or contrived in response to the charge of discrimination which was not made until approximately three-and-a-half months later. One of the factors leading to the decision to discharge the Petitioner was the belief of Don Collins that the Petitioner was required to have a federal or state-issued permit to carry a concealed weapon in his truck. More than six months after the Petitioner's discharge, the Petitioner presented a statute to the Florida Commission on Human Relations which proved that he was not required to have a permit while he carried the pistol in his commercial vehicle in a zippered bag. Neither Collins nor Rogers were aware at the time of the Petitioner's discharge that Petitioner did not need a permit to carry the weapon in his zippered bag. While their interpretation or knowledge of the law was apparently in error, the evidence did not establish that their reliance on this factor was pretextual. Overnite employs other persons who are both non-insulin and insulin dependent diabetics. Some of these people have been employed and have been known diabetics since prior to the Petitioner's discharge. There is no indication that any of these individuals have been subjected to adverse or disparate treatment. Indeed, it appears that the Company went to great lengths to accommodate another Driver who became insulin dependent. That Driver was transferred to a Check-Bay Attendant position since Department of Transportation regulations prohibited that employee from driving a commercial vehicle while on insulin. There is no persuasive evidence that the Company discriminates against individuals who are diabetic. Because of freight back-ups over the weekend, Road Drivers in Miami were sometimes asked whether they would work the city routes on Mondays, their day off. This practice was common from the time Petitioner transferred to Miami in March of 1986 and continued for the year-and-a-half before he was discharged. The evidence established that the decision of whether to do the city runs was up to the Drivers. They were paid for the work if they chose to accept it. Shortly after his arrival in Miami, Petitioner volunteered to work on the city route on two or three occasions. Petitioner contends that his diabetic condition caused him to become easily fatigued which made it difficult for him to drive the city route on his days off. Petitioner claims that he was terminated because he refused to do the city runs. This contention was not supported by the evidence. The Road Drivers, for any reason or no reason, could opt not to work on their day off, which many did. There were no adverse repercussions to any Driver who did not work on Monday. The evidence established that there were almost always Road Drivers who wanted the extra money and would work on Monday. The Petitioner was not required or requested to do any city runs during the last year he worked for the company. In approximately November of 1986, all line haul road trips were canceled and the Road Drivers were required to do city routes for several weeks due to a backup in freight. Petitioner was absent from work due to illness for much of this time. The Petitioner did make several city runs during one particular week and informed Collins after he attempted to deliver a load of cigarettes that he could do no more because he became easily fatigued. It does not appear that the operation of the Terminal was in any way adversely affected by Petitioner's refusal to make any more city runs after approximately November of 1986. There is no persuasive evidence that the Petitioner's discharge was in any way motivated by or based upon his refusal to make city runs or the fact that he did not do city runs in 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Human Relations Commission enter a final order denying Petitioner, Robert L. Fields' Petition for Relief. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of September, 1991. J. STEPHEN MENTON 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 24th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5134 Only Respondent submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Respondent. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6 and 7. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 15. Adopted in substance in Findings of Fact 16 and 18. Adopted in substance in Findings of Fact 16 and 17. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 8 and 9. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Adopted in substance in Findings of Fact 13. Rejected as irrelevant and unnecessary. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 23. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 25 and 26. COPIES FURNISHED: Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Daniel E. Jonas, Esquire Jonas & Jonas 300-71st Street Suite 630 P. O. Box 41-4242 Miami Beach, Florida 33141 David L. Terry, Esquire Blakeney, Alexander & Machen 3700 NCNB Plaza Charlotte, North Carolina 28280
The Issue This is a case in which the Petitioner alleges that the Respondent has engaged in an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by engaging in the following activities: (a) Discharging the Petitioner from her position of employment with Respondent because of Petitioner's race and (b) after discharging the Petitioner, continuing to seek applications for the position previously held by the Petitioner from similarly qualified or less qualified applicants. Subsequent to the filing of her petition for relief, the Petitioner filed a motion for default pursuant to Rule 22T- 9.008(5)(d), Florida Administrative Code, based upon the Respondent's failure to file an answer to the petition as required by the cited rule. By order dated September 21, 1987, the Respondent was given until October 5, 1987, within which to show cause as to why the relief requested in the motion for default should not be granted. The Respondent failed to respond to the order of September 21, 1987, and on October 7, 1987, an order was issued which included the following language: That pursuant to Rule 22T-9.008(5)(d), Florida Administrative Code, the Respondent is hereby deemed to have admitted all material facts alleged in the petition. That at the final hearing in this case the material facts alleged in the petition will be taken as established without further proof, but both parties will be afforded an opportunity at the final hearing to offer evidence regarding any additional relevant facts. On the day scheduled for the hearing, the Petitioner and her attorney appeared at the time and place set forth in the Notice of Hearing, but there was no appearance on behalf of the Respondent. Approximately 45 minutes after the scheduled commencement time, the Hearing Officer called the Respondent's offices in Jacksonville and was advised by an employee of Respondent that the Respondent did not intend to have anyone attend the hearing. Shortly thereafter the hearing was convened and the Hearing Officer received evidence offered by the Petitioner. At the conclusion of the presentation of evidence by the Petitioner, the Petitioner requested, and was granted, 15 days within which to file a proposed recommended order. Thereupon the record of the hearing was closed without any appearance having been made on behalf of the Respondent. On November 16, 1987, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. Specific rulings on all findings proposed by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order. Following the hearing, the Respondent was advised by letter of its right to file a proposed recommended order, but as of the date of this recommended order the Respondent has not filed any post-hearing document with the Hearing Officer.
Findings Of Fact On October 11, 1985, the Petitioner was referred by Job Finders of Florida, a private job placement service, to apply for a position with the Respondent, Handling Systems Engineering, Inc. The job the Petitioner applied for was Secretary/Dispatcher. The Petitioner met all of the qualifications for the job of Secretary/Dispatcher. The Petitioner was interviewed by Mr. Jim Hart, the manager of the Ocala office of the Respondent. After interviewing the Petitioner, Mr. Hart decided, on the basis of her experience and references, that the Petitioner was the best qualified of several applicants. In this regard, it is noted that the Petitioner's prior employment had required the performance of duties substantially similar to those of the Secretary/Dispatcher position with Respondent. Thereafter, in the afternoon or evening of October 11, 1985, Mr. Hart telephoned the Petitioner, offered her the job, and advised her that she was to report to work on October 14, 1985. On October 14, 1985, the Petitioner reported to work at the Ocala office of the Respondent and immediately began performing the duties of Secretary/Dispatcher. During the work day on October 14, 1985, the Petitioner received a telephone call from Mrs. Lou Mohrman, the managing director of the Respondent. Mrs. Lou Mohrman welcomed the Petitioner to her position of employment and stated that she was pleased with the Petitioner's placement with the company. On October 15, 1985, Mr. L. D. Mohrman, president of Respondent, accompanied by Mrs. Lou Mohrman, managing director, visited the Ocala offices of the Respondent. After engaging in a boisterous conversation with Mr. Hart and visually ascertaining the Petitioner's race, Mrs. Mohrman summarily dismissed Petitioner without articulating a legitimate business reason for the termination. Within the next few days the Respondent listed the Secretary/Dispatcher position as vacant and continued to seek to fill the position with individuals with qualifications similar to or less than the qualifications of the Petitioner. The Petitioner is a black female. She is a person within the meaning of Sections 760.02(5) and 760.10(1), Florida Statutes. The Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. The dismissal of the Petitioner from her position of employment with the Respondent was motivated by the president and the managing director ascertaining the Petitioner's race. The dismissal of the Petitioner was motivated solely by her race. The Petitioner's starting salary at the Respondent company was $4.50 per hour for a 40-hour work week. After her termination, the Petitioner sought employment elsewhere and obtained another job in January of 1986, where she worked until November of 1986. In November of 1986 the Petitioner voluntarily left her job in order to finish school. When she began work in January of 1986 the Petitioner was making $3.80 per hour. When she quit in November of 1986 she was making $4.00 per hour.
Recommendation Based on all of the foregoing, it is recommended that the Florida Commission on Human Relations issue a final order to the following effect: Concluding that the Respondent has engaged in an unlawful employment practice; Prohibiting the Respondent from terminating any employee on the basis of the employee's race; Requiring the Respondent to offer reinstatement to the Petitioner under the terms and conditions of employment to which she would be presently entitled if she had been continuously employed, including any raises to which she would have been entitled on the basis of longevity. Requiring the Respondent to pay back pay to the Petitioner from the date of termination until November of 1986 in an amount equal to the total amount the Petitioner would have earned as a Secretary/Dispatcher during that period, less any amounts actually earned during that period; and Requiring the Respondent to pay to the Petitioner her reasonable attorney's fees incurred in this case. DONE AND ENTERED this 4th day of December, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3048 The following are my specific rulings on the findings of fact proposed by the parties. Findings proposed by Petitioner: Paragraph 1: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraph 2: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraphs 3, 4, 5, 6,7, and 8: Accepted Paragraphs 9, 10, 11, and 12: Not included in findings of fact because they are subordinate procedural details. Paragraphs 13, 14, and 15: Covered in prior findings. Paragraph 16: Accepted Paragraph 17: Covered in prior findings. Findings proposed by Respondent: (None) COPIES FURNISHED: Harry L. Lamb, Jr., Esq. Perry & Lamb, P.A. 312 W. First Street Suite 605 Sanford, Florida 32771 Mr. L. D. Mohrman, President Handling Systems Engineering, Inc. 3000 West 45th Street Jacksonville, Florida 32209 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner’s race.
Findings Of Fact Petitioner, Che Johnson, worked as a helper to full-time installers of hurricane shutters with Respondent. He was training to become a full-fledged installer. Respondent, AABC, d/b/a Roll-A-Guard (“Roll-A-Guard” or “Respondent”), is a company that installs hurricane shutters from its offices and warehouse in Largo, Florida. Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations against Respondent, stating, under penalty of perjury, that Respondent had 15+ employees. When asked by Respondent’s president why he believed 15 people were employed by Respondent, he was unable to give an answer. Petitioner admitted he never saw 15 people at the warehouse when he was working there. Roll-A-Guard, between October 21, 2016, and January 20, 2017, which covers the entire time Petitioner was employed with the company, never had more than seven employees on the payroll. This was substantiated by a payroll report from Respondent’s Professional Employer Organization and by testimony of Respondent’s president. This number of employees is substantially below the statutorily required number of employees (15) for Roll-A-Guard to be deemed an “employer” for purposes of the Florida Civil Rights Act of 1992. Petitioner, an African-American male, claimed that he was discriminated against on the job by his boss and president of Roll-A-Guard, Andrew J. Ayers, referring to him in a racially discriminatory way when calling on customers on several occasions. Petitioner claims that Mr. Ayers asked customers on three to four occasions whether they thought Mr. Johnson “was as cute as a puppy dog.” This offended Mr. Johnson, and he believed the statement to be discriminatory against him on the basis of his race. Mr. Johnson offered no additional testimony, nor any additional evidence, other than his own testimony that these remarks were made by Mr. Ayers. Mr. Ayers denied, under oath, that he had ever referred to Mr. Johnson as a “puppy dog,” and was especially offended not only that Mr. Johnson never raised the issue with him, but that Mr. Johnson went to the company’s Facebook page after his employment was terminated, and posted comments about Roll-A-Guard being a racist company that discriminated against African- Americans. The other employees of Roll-A-Guard, who testified at hearing, also never heard the “puppy dog” remarks allegedly made, nor did they believe Mr. Ayers was prejudiced in any way against Mr. Johnson. Although the lack of 15 employees by Respondent fails to invoke the jurisdiction of the Civil Rights Act of 1992, the evidence at hearing demonstrates Mr. Johnson’s termination from employment was unrelated to his claim of having been called a “puppy dog” by Mr. Ayers. On the day Mr. Johnson was terminated from employment, January 20, 2017, Mr. Ayers informed the workers that no one should leave the warehouse for lunch due to a rush job on a substantial order of hurricane shutters. Despite Mr. Ayers’ warning, Mr. Johnson left for lunch in the afternoon and was unreachable by Mr. Ayers, who attempted to text him to order him to return to work. Mr. Johnson did not immediately respond to the texts. Although Mr. Johnson eventually responded to the texts from Mr. Ayers after 45 minutes to an hour, Mr. Ayers was perturbed by that point, and actually hired a new worker to replace Mr. Johnson, and told Mr. Johnson not to return to work since he was fired. Mr. Ayers fired Mr. Johnson, in part, because he believed Mr. Johnson was not only leaving for lunch, but for the weekend. Other witnesses working that day confirmed this by testifying they heard words to the effect of “See you Monday.” Mr. Johnson admitted he left for lunch, but testified that he intended to return that afternoon after he had eaten.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Roll-A-Guard, is not an “employer” and, therefore, not subject to section 760.10, Florida Statutes, or any of the provisions of the Civil Rights Act of 1992, and dismissing Petitioner’s charge of discrimination against Respondent. DONE AND ENTERED this 3rd day of January, 2018, 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 3rd day of January, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Che Johnson 2428 Fairbanks Drive Clearwater, Florida 33764 (eServed) Andrew J. Ayers Roll-A-Guard Suite 206 12722 62nd Street Largo, Florida 33773 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact On or about September 25, 2010, Petitioner filed a Charge of Discrimination against Respondent with the FCHR. Pursuant to the FCHR's procedure, an investigation of the matter was completed, that resulted in a Notice of Determination: No Cause. Essentially, the FCHR found that based upon the allegations raised by Petitioner there was no reasonable cause to believe an unlawful employment practice occurred. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination, and to seek relief against Respondent for the alleged violation. The FCHR forwarded the matter to DOAH for formal proceedings. DOAH issued a Notice of Hearing on April 15, 2011, that was provided to all parties at their addresses of record. It is presumed, the parties received notice of the hearing date, time, and location. In fact, counsel for both parties did appear. Prior to the hearing, the parties engaged in discovery and Petitioner participated in a deposition on or about May 24, 2011. It is undisputed that Petitioner knew or should have known of the hearing date, time, and place.
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 claim of discrimination. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 30th day of June, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. John Gadd, Esquire The Law Offices of W. John Gadd 2727 Ulmerton Road, Suite 250 Clearwater, Florida 33762 Glenn Michael Rissman, Esquire Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterman, PA 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, The Meltdown on 30A (“The Meltdown”), discriminated against Petitioners, D’Shante L. LeBeaux, Erin M. Scott, and Latanya M. Scott (collectively, the “Petitioners”), in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact The Meltdown is a restaurant operated out of a 23-foot- long Airstream trailer. It does not have tables and chairs for customers to consume their meals; it is a “to go” establishment. The trailer can comfortably hold about five people when it is in operation. The Meltdown operates on Highway 30A (hence its name) and is generally parked near the beach in Seaside, a tourist area. The Meltdown serves between 500 and 700 sandwiches per day. The restaurant is one of five owned by Mr. Shirley and managed by Mr. Haile. In February 2016, The Meltdown switched its payroll functions from Oasis to ECB. The change resulted also in a new method of signing in, on-line, by which employees were able to be paid. D’Shante L. LeBeaux is an African-American woman. At final hearing, she claimed to have a disability, but did not raise that as a basis for the discrimination claim against The Meltdown. She began working for The Meltdown in June 2016. She voluntarily left her employment when her means of transportation, Latanya Scott, resigned around August 19, 2016. While working for The Meltdown, Ms. LeBeaux was never written up or disciplined for missing work or performing poorly. Ms. LeBeaux did not cite any instance of discriminatory actions or words by her employer. She claimed that the manner in which her schedule was handled, i.e., that she did not always work the same hours as Latanya Scott, constituted discrimination. The testimony was not persuasive. Latanya Scott is an African-American woman. She is married to Erin Scott, an African-American woman. Latanya Scott was hired on June 24, 2016. On August 10, 2016, she provided a letter to The Meltdown which stated her intent to resign as of August 19, 2016. As of that date, she voluntarily ceased working for The Meltdown. Her reason for resigning was, primarily, that Mr. Haile had not shown any compassion when Latanya Scott’s grandmother got sick (and ultimately passed away). While working at The Meltdown, Latanya Scott was written up for being belligerent to other employees. She was passed over when a manager, Carolyn Bramlett, left her position and a new manager was needed. No one was hired, however, to replace Ms. Bramlett; Mr. Haile simply took over the responsibilities himself. Erin Scott is an African-American woman and is the wife of Latanya Scott. She was hired at The Meltdown on May 29, 2016, and continues to work there. She cited to no discriminatory actions by The Meltdown, but suggested that other related couples may have been treated somewhat differently than were she and her wife. Her complaints were neither confirmed nor deemed discriminatory. Erin Scott continues to work in a supervisory capacity for The Meltdown and is considered a good employee. Each of the Petitioners stated that they never received an employee handbook until recently, i.e., during the pendency of this administrative hearing. They never saw, therefore, the nepotism policy set forth in the handbook. The owner and manager maintain that all employees are given the handbook when they “signed in” as an employee the first time. Based upon the facts of this case, whether or not the Petitioners were provided an employee handbook or knew about the nepotism policy is essentially irrelevant to their claims of discrimination. There were a number of family members working at The Meltdown when Mr. Haile first began managing. When ECB came in, a nepotism policy was enacted that prevented any further employment of family members. The family members who were already there were grandfathered in, i.e., they were not asked to resign. Mr. Haile does not remember Ms. LeBeaux raising the issue of a disability at the time of her hiring. She did begin asking for fewer hours, no more than 25 per week, at some point and Mr. Haile tried to accommodate her. He learned that she and Latanya Scott were riding together, which created a small problem, but he attempted to work around that issue as well. Mr. Shirley operates all of his restaurants without tolerating discrimination or harassment. His credible testimony was that the Petitioners seem to have a problem with how the restaurant was managed rather than having a complaint about discrimination. He genuinely appears to care about his employees and to wish to do the right thing vis-à-vis his employees. In short, there was no credible or persuasive evidence of discrimination against Petitioners by The Meltdown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, The Meltdown on 30A, did not discriminate against Petitioners, D’Shante L. LeBeaux, Erin M. Scott, and Latanya M. Scott, and their Petitions for Relief should be denied. DONE AND ENTERED this 1st day of September, 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 1st day of September, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) D'Shante LaCheryl LeBeaux Apartment B 190 Patrick Drive Defuniak Springs, Florida 32433 (eServed) Timothy Tack, Esquire Miller Tack & Madson Suite 135 3550 Buschwood Park Drive Tampa, Florida 33618 (eServed) Erin M. Scott Post Office Box 962 Defuniak Springs, Florida 32433 Latanya M. Scott Post Office Box 962 Defuniak Springs, Florida 32433 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
