The Issue The issue in this case is whether Respondent, Just 1 More Bar and Grill (hereinafter the "Bar"), discriminated against Petitioner, Mildred R. Smith, by refusing her entry into the Bar due to her race, African-American.
Findings Of Fact Petitioner is an African-American woman. The Bar is a Florida sole proprietorship which operates as an establishment selling alcohol for consumption on the premises. Despite its name, there is no grill or food service at the Bar. The Bar is owned by Kerry Winkler, a Caucasian male. On or about May 8, 2011, Petitioner was going to meet a male friend at an establishment across the street from the Bar. Petitioner could not remember the exact date, but thought it was in April or May. Petitioner was accompanied by a female friend. Petitioner and her female friend had just left church, and it was approximately three or four o'clock on a Sunday afternoon. Upon arrival at the male friend's establishment, no one was there. Petitioner decided to go into the Bar to have a beer while she waited. Her companion did not join her. Petitioner recounts that as she started to enter the Bar, a man stood in the doorway, held out his hand, and said, "You can't come in here." Nothing more was said. The man was a large white man and wearing a "biker's jacket" with a rag on his head. He had a large mustache. Petitioner says that she could see into the Bar and that all the patrons in the Bar were white. She turned around and walked back to her car. As she crossed the parking lot, a man sitting on a motorcycle said, "Man, that was quick." Petitioner concluded that she had been discriminated against because of her race. She believed she had been denied admission to the Bar because she is African-American. She filed a complaint with the Florida Commission on Human Relations about the incident. In her verified complaint, Petitioner said that she "was met by a white female (Kerry Winkler) who told me I could not enter the building and that I was not welcome there." Under oath at the final hearing, Petitioner said that she could not explain her verified statement to the Commission, because she remembers being met by a large white male, not a woman. She did not know why the name Kerry Winkler was in her signed statement. Kerry Winkler, the owner of the Bar, is, in fact, a Caucasian male. At the final hearing, Petitioner was introduced to Kerry Winkler; she said he was not the man who met her at the door of the Bar. No one associated with the Bar knows who the man was that Petitioner met at the front door. There are no employees fitting his description and neither the owner, nor patrons at the Bar, recognized the person Petitioner described. Several regular patrons of the Bar testified at final hearing. Each of them was an African-American male. Each affirmed the Bar's open policy of allowing all people to come into the Bar. None of them had ever witnessed any discriminatory behavior at the Bar, especially by the owner who they all knew and respected. Neither the owner, nor his wife (who was likely operating the Bar on the day in question), could identify the person that Petitioner described. No one by that description is an employee or otherwise affiliated with the Bar. Neither the owner, nor his wife, was aware that Petitioner had allegedly been denied admission into the Bar until several months after the fact. They received notice of the allegation from the Commission well after the fact. Petitioner did not contact the Bar after the fact to make a complaint or report the alleged incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Mildred R. Smith in its entirety. DONE AND ENTERED this 8th day of August, 2011, 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 8th day of August, 2011. COPIES FURNISHED: Larry Kranert, 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 Mildred R. Smith Post Office Box 4158 Lake Wales, Florida 33859 Robert H. Grizzard, II, Esquire Robert H. Grizzard, II, P.A. Post Office Box 992 Lakeland, Florida 33802-0992
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Darryl Royster, was subjected to employment discrimination, by allegedly being terminated on the basis of his race or disability/handicap, by denial of a promotion and training, being subjected to discriminatory terms and conditions of employment, and by retaliation.
Findings Of Fact The Petitioner was employed by Pate Steveodore Company, Inc., (Pate) at times pertinent hereto. The Petitioner is an African-American male. Pate is a licensed Stevodore Company operating at the Port of Pensacola. Pate typically handles loading or unloading of various types of cargo, including soy beans, frozen food products, and other materials from railroad cars located in the port or onto ships berthed at the port. Pate has a staff of six permanent employees, including a president, vice-president, office manager, accounting clerk, and pier superintendent, as well as a part-time payroll clerk. Depending on the amount of work available at any particular time, Pate employs from 0 to 60 longshoremen, the majority of whom are African-American. The Petitioner was first employed by Pate in September 2005, as a longshoreman, responsible for loading and unloading box cars. Scott Miller is the former supervisor of the Petitioner. In his testimony he established that, typically, two teams of three longshoremen each would be assigned to load or unload each box car. The members of such teams work together to load or unload cargo from pallets, typically completing the unloading of two cars in a morning and two cars in the afternoon. The employees typically take breaks from the work in between pallets or box cars, but are allowed to take breaks whenever they feel the need. They arrange the schedule for taking breaks among themselves and without direction from supervisors. The Petitioner was working on August 2, 2006. On that date he contends that he suffered a back injury while lifting a 110 pound sack of beans. He states that he attempted to inform his supervisor, Mr. Miller, of the alleged injury, but was instructed to either return to work that day, or to leave if he was unable to do so. Mr. Miller was apparently frustrated with the Petitioner on that day because the Petitioner had left the work area on two occasions that morning for prolonged periods of time. The first time was when he went to the main office of Pate to discuss the fact that his child support payments were being withheld from his checks and to demand that the money be returned to him. The Petitioner wanted Pate to reimburse him for the withheld amounts and Pate explained to the Petitioner that they were legally required to make the deductions from his payroll. The second time that day he went to the main office to inform Mr. Pate that he had a job interview with an insurance company and would not be returning to work that afternoon after lunch. The Petitioner told Mr. Pate that he had already informed Mr. Miller that he would not be working that afternoon. Actually, he had never told Mr. Miller he was going to be absent in the afternoon. Because Mr. Miller did not have a replacement for the unexpected absence of the Petitioner, Mr. Miller had to perform the Petitioner's job loading and unloading cargo, during both the morning and afternoon absences. Mr. Miller told Mr. Pate of his dissatisfaction with the unexcused absences and having to perform the Petitioner's work himself. Pate did not hear from the Petitioner again until August 8, 2006, when Michael Pate, the company president, and Rosalee Garrett, the office manager, received a fax from the Petitioner requesting that they pass along certain information to the company's workers' compensation carrier, so that the Petitioner could be paid for the time he had been off work. The Petitioner informed Pate that he would be retuning to work the following week and attached a note from a medical clinic asking that he be excused from work until August 14, 2006. Ms. Garrett responded to the request and forwarded the requested information to the company's workers' compensation carrier. She also requested that the Petitioner report to the office so that he could complete an accident report form so that his workers' compensation claim could be properly processed. Pate's workers' compensation carrier's coverage policy and the workers' compensation law requires that an accident report be submitted by the claimant.1/ On August 11, 2006, the Petitioner wrote to Mr. Pate and Ms. Garrett informing them that he would not be able to return to work until October 20, 2006, because he was still experiencing back pain and rectal bleeding. The Petitioner wanted to wait until he could be seen by a doctor so that he could determine the source of those two problems. The Petitioner informed Mr. Pate and Ms. Garrett that he could perform light-duty work that did not involve bending or heavy lifting, such as running errands for the company, supervising other employees, and that he could also do work on the computer. Thereafter, on August 28, 2006, the Petitioner came to Pate's main office, again requesting light-duty work. There was no such work available, however, and Mr. Pate so informed the Petitioner. At that point the Petitioner became very upset and belligerent and began cursing Mr. Pate. Mr. Pate regarded that as threatening behavior and insubordination and was unwilling to tolerate such conduct. Mr. Pate escorted the Petitioner out of the office to converse with him outside, away from the other employees, because of his behavior, but was unsuccessful and thereupon terminated him. He told him to leave the premises, but ultimately had to call the port security office to have the port security personnel escort the Petitioner off the premises and outside the secure area of the Port of Pensacola. The testimony of Ms. Garrett corroborates that of Mr. Pate in establishing that the Petitioner was terminated because he became threatening, argumentative, and insubordinate toward Mr. Pate. In terms of his claim regarding racial discrimination, based upon allegedly different terms and conditions of employment imposed upon him, the Petitioner claims that he and other African-American employees were not allowed to take breaks or to train for and become forklift operators. The testimony of three witnesses, however, established that African-American employees are granted the same breaks as white employees and are otherwise treated the same with respect to the terms and conditions of their employment. The Petitioner was allowed to, and did take breaks during his employment with Pate. Moreover, contrary to the Petitioner's position, it was established, by persuasive, credible testimony, that in terms of the alleged issue concerning African-American employees not being allowed to become forklift drivers, that Pate conducted training so that such employees could become forklift drivers. Some employees took advantage of that training and became forklift drivers. In fact, the majority of Pate's forklift drivers are African-American. The Petitioner also contended that he was discriminated against in terms of his race for failure of Pate to promote or train him or other African-American employees. According to the preponderant, persuasive testimony and evidence presented at the hearing, however, there was no open position available at Pate, during the Petitioner's employment time there, to which he could have been promoted, nor had he ever applied for a promotion position. There was no denial of training opportunities because there was no training offered to any employee during the period of time of the Petitioner's employment with Pate and there was no evidence to show that the Petitioner ever requested training for any position at Pate. As found above, before the Petitioner became employed there, Pate did offer training for forklift drivers and trained some employees as forklift drivers, the majority of whom were African-American.
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 the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 19th day of March, 2008, 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 19th day of March, 2008.
The Issue The issues in this case are whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (''FCHR''), and, if so, what relief should be granted.
Findings Of Fact Petitioner is an African-American female. Petitioner began working for Respondent as a part-time Self-Checkout Host on February 1, 2017. Upon hiring, her initial rate of pay was $9.00 per hour. After three months of employment, Petitioner’s pay was increased to $10.00 per hour in May of 2017. Subsequently, Petitioner received pay increases raising her hourly rate to $11.00, and then $11.50. In April of 2018, Petitioner was promoted to the full-time position of Customer Service Manager (''CSM''). Along with the promotion, Petitioner also received a raise, bringing her rate of pay to $13.65 per hour. In April of 2019, Respondent gave Petitioner another raise, resulting in hourly pay of $13.90. Respondent maintained a Statement of Ethics, of which Petitioner was aware. The Statement of Ethics explained that Respondent’s overall operations were guided by four core Beliefs, which were: Respect for the Individual; Service to our Customers; Striving for Excellence; and Act with Integrity. Based on what she heard from her coworkers, Petitioner believed that she was entitled to a market-adjustment pay increase in April of 2019. She sought information about the pay increase from her store manager and others. Petitioner reported her belief that she was entitled to a pay increase, which she had not received, to Respondent’s Associate Relations Department (''Department''). After what was described as a thorough review of Petitioner’s concerns, the Department closed the matter. Petitioner testified that a white male named Chance was making more money than she, based on conversations between Petitioner and Chance. Chance worked as a Money Manager Associate, a position that Petitioner never held during her employment with Respondent. Ms. Durocher testified that Chance was not paid more than Petitioner. In 2019, there were ten individuals who held the position of CSM at the store where Petitioner worked. In addition to Petitioner, those who worked in CSM positions included multiple African-American females and one African-American male. Petitioner did not present any evidence to suggest or establish that any male, or non-African-American, employee was paid more than she was for performing similar work. On October 26, 2019, Petitioner discussed the problem she perceived with her rate of pay with Ms. Durocher. During their conversation, Petitioner raised her voice and the interaction escalated to the point that another employee went to enlist the assistance of the Store Manager. When the Store Manager arrived, he joined the conversation with Petitioner and Ms. Durocher. Ms. Durocher expressed to Petitioner that she believed that Petitioner was being paid commensurate with her skills and duties; and that her rate of pay had been investigated and was determined to be appropriate. Throughout the conversation, Ms. Durocher perceived Respondent’s conduct to be disrespectful. Ms. Durocher and the Store Manager repeatedly encouraged Petitioner to calm down, but their attempts were unsuccessful. On the same day, Petitioner’s employment was terminated by Respondent for violating the core Belief of Respect for the Individual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2021. Jamie Rotteveel, Esquire Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Jeruscha Toussaint 5835 Northwest Lomb Court Port St. Lucie, Florida 34986 Allison Wiggins, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Littler Mendelson, P.C. 2301 McGee Street, 8th Floor Kansas City, Missouri 64108 Kimberly Doud, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Nancy A. Johnson, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801
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.
The Issue The issue is whether Respondent discriminated against Petitioner based on his race contrary to Section 760.10, Florida Statutes (2009).
Findings Of Fact Respondent operates a lumber mill in a community known as Cypress near Marianna, Florida. In 2007, Respondent hired Petitioner, an African-American male, to operate a 966 Caterpillar loader (the loader) at the mill. Melvin Lewis is an African-American male. Mr. Lewis is a second-shift supervisor. At all times relevant here, Mr. Lewis was Petitioner's immediate supervisor. Mr. Lewis reports directly to Ross Jackson, a white male. Mr. Jackson has been Respondent's general manager since January 2008. In May 2008, Mr. Lewis told Petitioner that the loader was slowly leaking brake fluid. Mr. Lewis instructed Petitioner to always check the loader to ensure that it had brake fluid. On or about Thursday, May 28, 2009, between 2:30 a.m. and 3:00 a.m., Petitioner was involved in an accident while operating the loader. Petitioner told Mr. Lewis that a log fell onto the loader, the brakes failed, and the loader went over a retaining wall. After the accident, Mr. Lewis immediately checked the brake fluid reservoir. He found the reservoir empty. Petitioner knew or should have known the standard procedure to follow when, and if, a log rolled onto a loader. In that event, the loader operator was supposed to immediately call his supervisor on the two-way radio and request help. At the time of the accident, Petitioner and Mr. Lewis had working two-way radios. Petitioner used the radio to call Mr. Lewis right after the accident. He did not call for help when the log first rolled onto the loader. On May 28, 2009, Petitioner was operating the 966 loader on a ramp that is 75-feet long and 40-feet wide with a retaining wall on each side of the ramp. At the high end of the ramp is a flat area where Petitioner was picking up logs from a pile. To get off of the flat part of the ramp, Petitioner had to accelerate backwards to then go down the ramp. When the accident occurred, Petitioner had traveled almost all of the way down the 75-foot ramp and then turned the loader 90 degrees toward the retaining wall. To go over the one and one-half foot retaining wall, the loader must have been traveling at a fairly high rate of speed. The accident tore the transmission off of the loader. The loader was inoperable and had to be repaired. The cost of the repairs was over $14,000. After the accident, Mr. Lewis told Petitioner that "this is really bad." Mr. Lewis first directed Petitioner to clock-out and go home. Mr. Lewis then told Petitioner to stay until Mr. Jackson arrived at work at 5:00 a.m. When Mr. Jackson came in to work, he told Petitioner that he would be suspended until Mr. Jackson and Mr. Lewis had a chance to review the situation. Mr. Jackson told Petitioner to report back on Monday, June 1, 2009. Mr. Lewis decided that Petitioner should not be allowed to operate equipment for the following reasons: (a) Petitioner failed to keep brake fluid in the loader as instructed; (b) Petitioner failed to call for help on his radio when the log rolled onto the loader; and (c) with the log on the loader, Petitioner accelerated backward down the ramp, turned the loader 90 degrees, and drove the loader fast enough to hit the retaining wall and bounce over it. Mr. Lewis recommended termination of Petitioner's employment. Mr. Jackson concurred. Petitioner was terminated on June 1, 2009. No evidence indicates that the decision to terminate Petitioner's employment was based on his race. There was no persuasive evidence that Respondent gave any white employee more favorable treatment under similar circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 10th day of August, 2010. COPIES FURNISHED: Eric J. Holshouser, Esquire Fowler, White and Boggs, P.A. 50 North Laura Street, Suite 2800 Jacksonville, Florida 32202 Gary Powell 6782 Bumpy Lane Grand Ridge, Florida 32442 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 100 Tallahassee, Florida 32301
The Issue Whether Respondent, JR Conway Enterprises, LLC (Respondent), violated the Florida Civil Rights Act of 1992, section 760.10(7), Florida Statutes,1 by terminating Petitioner, Tina Garner (Petitioner), in retaliation for her reporting sexual harassment.
Findings Of Fact Respondent, JR Conway Enterprises, LLC, owns a number of businesses. Jeff Conway is Respondent’s managing member. Petitioner was hired by Respondent near the end of July 2018, to work as a bookkeeper doing payroll and accounts for Respondent’s real estate office known as Sunshine State Deals. In September 2018, Respondent opened a Smoothie King in the Spring Hill, Florida area. As the date for opening the Smoothie King grew closer, Petitioner took on more responsibilities and helped open and operate that store. Morgan Katocs was hired in September 2018 to work at the Smoothie King. Ms. Katocs was 17 years old at the time she was hired. Ms. Katocs brother, Hunter McGhee, was also hired to work at the Smoothie King. The Smoothie King store opened on September 18, 2018. Petitioner had no authority to hire employees for Respondent. Apparently, all hires to work at the Smoothie King were made by Brandon Berlinrut, who was a friend of Jeff Conway and recruiter for Respondent. While Petitioner had no hiring authority, during the time she worked at the Smoothie King, she supervised Ms. Katocs. As the Smoothie King was opening, there was work that needed to be completed. Respondent hired his friend, Constantine Tremoularis, as an independent contractor to install security cameras, work on the point of sale, and conduct various work at the location. Mr. Tremoularis was given access to areas at the Smoothie King store where only employees were permitted. While working at the Smoothie King, Ms. Katocs had physical limitations due to a back condition caused by a car accident. When Ms. Katocs requested assistance in lifting a mop bucket, Mr. Tremoularis responded, “I bet men like to say that they broke your back,” in a context inferring injury during sex. Ms. Katocs interpreted the comment as an unwelcome sexual comment and was offended and upset. Ms. Katocs reported the unwanted sexual comment to Ms. Garner within an hour after the comment was made. Later, while Petitioner was at Respondent’s real estate office, both Ms. Katocs and her mother called her on the telephone from the Smoothie King office and asked her to set up a meeting with Mr. Conway to discuss the unwanted sexual comment. They both expressed a desire for Petitioner to be present during the meeting. Ms. Garner told Mr. Conway of Ms. Katocs and her mother’s desire to have a meeting with him to discuss the unwanted sexual comment, and of their request that Petitioner be present at the meeting. Mr. Conway met with Ms. Katocs and Ms. Katocs’s mother on October 4, 2018, to discuss the incident. Mr. Conway did not invite Petitioner and Petitioner did not attend the meeting. Although he did not tell Ms. Katocs or her mother, the reason that Mr. Conway did not want Petitioner in the meeting is because he had already decided to terminate Petitioner’s employment for reasons unrelated to the reported unwanted sexual comment from Mr. Tremoularis. At the meeting, Ms. Katocs, her mother, and Mr. Conway discussed the unwanted sexual comment. During the meeting, Mr. Conway agreed to make changes and provide sexual harassment training for Respondent’s employees. On October 4, 2018, the day after the meeting between Ms. Katocs, her mother, and Mr. Conway, Mr. Tremoularis apologized to Ms. Katocs. Although he was allowed to stay at the Smoothie King location from several days to over a week to finish the job, Mr. Tremoularis made no further unwanted sexual comments to Ms. Katocs. On Saturday, October 6, 2018, Mr. Conway called Petitioner on the telephone and advised her that she was terminated. Mr. Conway terminated Petitioner because he perceived her as rude, argumentative, and combative. Mr. Conway also believed that Petitioner was responsible for hiring her daughter, Tina Rowlands, to work at the Smoothie King store even though Petitioner knew that Mr. Conway did not approve of the hire. Mr. Conway’s perceptions of Petitioner’s aberrant behavior were consistent with those observations reported by Karen Stapleton in her testimony at the final hearing. Karen Stapleton, who worked with Mr. Conway’s companies as a consultant and in accounting, worked with and helped train Petitioner at Respondent’s real estate office in September 2018. Ms. Stapleton also observed Petitioner scream at an employee at Respondent’s Smoothie King store. When Mr. Conway terminated Petitioner, he also terminated Petitioner’s daughter, Ms. Rowlands, as well as Petitioner’s daughter’s boyfriend, Jake Fryar. Although Mr. Conway approved of Jake Fryar’s hire, he decided to terminate Mr. Fryar as well because of his association with Petitioner and Petitioner’s daughter. Respondent’s decision to terminate Petitioner was made because of Mr. Conway’s perceptions about Petitioner’s combative behavior and Mr. Conway’s belief that Petitioner was responsible for hiring her daughter. Although in close proximity to the time of Petitioner’s termination on October 6, 2018, Mr. Conway had already decided to fire Petitioner prior to Petitioner’s report of the unwanted sexual comment made to Ms. Katocs and Mr. Conway’s meeting with Ms. Katocs and her mother to discuss the incident. As confirmed by the testimony of a locksmith, who was contacted on September 28, 2018, to change locks on Respondent’s offices and the Smoothie King store, Respondent’s decision to terminate Petitioner was made in late September 2018. Although the locks were not changed until October 6, 2018, the timing of the lock change request and Mr. Conway’s credible testimony confirm that the decision to terminate Petitioner’s employment was unrelated to her report of unwanted sexual comments. Following the October 4, 2018, meeting between Ms. Katocs, her mother, and Mr. Conway, Morgan Katocs continued her employment at the Smoothie King store until she voluntarily left at the end of December 2018. Ms. Katocs testified that she left Smoothie King because, in her view, nothing changed; she felt uncomfortable about remaining employed there, the promised sexual harassment training never occurred, and another employee was making inappropriate sexual remarks to other female employees. Ms. Katocs also did not like a manager that was hired after Petitioner was terminated, who, according to Ms. Katocs, was a bully and abusive. Ms. Katocs further testified that neither she, nor her brother, who was also employed at the Smoothie King, received negative repercussions from her report of the unwanted sexual comment from Mr. Tremoularis. Ms. Katocs’s brother remained employed at the Smoothie King until voluntarily leaving in April 2019.
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 Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 9th day of February, 2021, in Tallahassee, Leon County, Florida. S James H. Peterson, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Jeff Conway JR Conway Enterprises, LLC Post Office Box 15389 Brooksville, Florida 34604 William Sheslow, Esquire Whittle & Melton, LLC 11020 Northcliffe Boulevard Spring Hill, Florida 34608 Erik DeL'Etoile, Esquire DeL'Etoile Law Firm P.A. 10150 Highland Manor Drive, Suite 200 Tampa, Florida 33610
The Issue The issue is whether Respondent, Wal-Mart Stores East, LP (“Walmart”), discriminated against Petitioner, Ramon Santiago Lopez (“Petitioner”), based upon his national origin or age, and/or terminated his employment in retaliation for engaging in protected activity, in violation of section 760.10, Florida Statutes (2016).1/
Findings Of Fact Walmart is an employer as that term is defined in section 760.02(7). Walmart is a national retailer. Petitioner is a Cuban (Hispanic) male. He was 62 years old when he was hired by Walmart in November 2005 and was 72 years old at the time of his dismissal. Petitioner was initially hired to work at a store in Jacksonville, but transferred to Tampa. In June 2010, Petitioner requested a transfer back to Jacksonville and was assigned to Store 4444 on Shops Lane, just off Philips Highway and I-95 in Jacksonville. The store manager at Store 4444 was Scott Mallatt. Mr. Mallatt approved Petitioner’s transfer request and testified that he “very much” got along with Petitioner. Petitioner confirmed that he never had a problem with Mr. Mallatt. Petitioner testified that when he first started at Store 4444, he had no problems. After about four months, however, he began reporting to a supervisor he recalled only as “Lee.” Petitioner described Lee as “kind of a maniac.” Lee would harass Petitioner and give him impossible assignments to accomplish. Petitioner testified that he complained repeatedly to Mr. Mallatt about Lee’s abuse, but that nothing was ever done about it. Eventually, Petitioner gave up complaining to Mr. Mallatt. Mr. Mallatt testified that Petitioner never complained to him about being discriminated against because of his national origin or age. Petitioner apparently did complain about being overworked, but never tied these complaints to any discriminatory intent on the part of Lee. Petitioner testified that Lee no longer worked at Store 4444 in January 2016. From 2010 to 2015, Petitioner worked from 1:00 p.m. to 10:00 p.m. in various departments, including Grocery, Dairy, Paper, Pet, and Chemical. In 2015, Petitioner spoke with Mr. Mallatt about working at least some day shifts rather than constant nights. Mr. Mallatt approved Petitioner’s request. In August 2015, Petitioner was moved to the day shift in the Maintenance department. As a day associate, Petitioner typically worked from 8:30 a.m. to 5:30 p.m. Assistant Store Manager April Johnson transferred to Store No. 4444 in October 2015. Petitioner reported directly to Ms. Johnson. On January 14, 2016, Petitioner was scheduled to work from 8:30 a.m. until 5:30 p.m. He drove his van into the parking lot of Store No. 4444 at approximately 7:58 a.m. He parked in his usual spot, on the end of a row of spaces that faced a fence at the border of the lot. Petitioner liked this spot because the foliage near the fence offered shade to his vehicle. Closed circuit television (“CCTV”) footage, from a Walmart camera with a partial view of the parking lot, shows Petitioner exiting his vehicle at around 8:00 a.m. Petitioner testified that he could see something on the ground in the parking lot, 50 to 60 meters away from where his van was parked. The CCTV footage shows Petitioner walking across the parking lot, apparently toward the object on the ground. Petitioner testified there were no cars around the item, which he described as a bucket of tools. Petitioner stated that the bucket contained a screwdriver, welding gloves, a welding face mask, and a hammer. The CCTV footage does not show the bucket. Petitioner crosses the parking lot until he goes out of camera range.3/ A few seconds later, Petitioner returns into camera range, walking back toward his car while carrying the bucket of tools. When Petitioner reaches his van, he opens the rear door, places the bucket of tools inside, then closes the rear door. Petitioner testified that after putting the tools in the back of his van, he went to the Customer Service Desk and informed two female African American customer service associates that he had found some tools and put them in his car. Petitioner conceded that he told no member of management about finding the tools. Walmart has a written Standard Operating Procedure for dealing with items that customers have left behind on the premises. The associate who finds the item is required to take the item to the Customer Service Desk, which functions as the “lost and found” for the store. Mr. Mallatt and Ms. Johnson each testified that there are no exceptions to this policy. Petitioner was aware of the Standard Operating Procedure. On prior occasions, he had taken found items to the Customer Service Desk. Petitioner conceded that it would have been quicker to take the bucket of tools to the Customer Service Desk than to his van. However, he testified that he believed that he could have been fired if he had taken the tools to the desk before he had clocked in for work. Petitioner cited a Walmart policy that made “working off the clock” a firing offense. It transpired that the policy to which Petitioner referred was Walmart’s Wage and Hour policy, which states in relevant part: It is a violation of law and Walmart policy for you to work without compensation or for a supervisor (hourly or salaried) to request you work without compensation. You should never perform any work for Walmart without compensation. This language is plainly intended to prevent Walmart from requiring its employees to work without compensation. Petitioner, whose English language skills are quite limited, was adamant that this policy would have allowed Walmart to fire him if he performed the “work” of bringing the tools to the Customer Service Desk before he was officially clocked in for his shift. Therefore, he put the tools in his van for safekeeping and informed the Customer Service Desk of what he had done. Petitioner was questioned as to why he believed it was acceptable for him to report the situation to the Customer Service Desk, but not acceptable for him to bring the tools to the desk. The distinction he appeared to make was that the act of carrying the tools from the parking lot to the desk would constitute “work” and therefore be forbidden, whereas just stopping by to speak to the Customer Service Desk associate was not “work.” The evidence established that Petitioner would not have violated any Walmart policy by bringing the tools to the Customer Service Desk before he clocked in. He could have been compensated for the time he spent bringing in the tools by making a “time adjustment” on his time card. Mr. Mallatt testified that time adjustments are done on a daily basis when associates perform work prior to clocking in or after clocking out. Petitioner merely had to advise a member of management that he needed to make the time adjustment. Mr. Mallatt was confident that the adjustment would have been granted under the circumstances presented in this case. Petitioner did not go out to retrieve the tools after he clocked in. Mr. Mallatt stated that employees frequently go out to their cars to fetch items they have forgotten, and that Petitioner absolutely would have been allowed to go get the tools and turn them in to the Customer Service Desk. Later on January 14, 2016, Ms. Johnson was contacted by a customer who said tools were stolen off of his truck.4/ Ms. Johnson had not heard anything about lost tools. She looked around the Customer Service Desk, but found no tools there. Ms. Johnson also called out on the store radio to ask if anyone had turned in tools. Finally, the customer service manager at the Customer Service Desk told Ms. Johnson that Petitioner had said something about tools earlier that morning. Ms. Johnson called Petitioner to the front of the store and asked him about the missing tools. Petitioner admitted he had found some tools in the parking lot and had placed them in his vehicle. Ms. Johnson asked Petitioner why he put the tools in his vehicle. Petitioner told her that he was keeping the tools in his car until the owner came to claim them. Ms. Johnson testified that Petitioner offered no other explanation at that time. He just said that he made a “mistake.” Ms. Johnson explained to Petitioner that putting the tools in his vehicle was not the right thing to do and that he should have turned them in to “lost and found,” i.e., the Customer Service Desk. Petitioner was sent to his van to bring in the tools. After this initial conversation with Petitioner, Ms. Johnson spoke with Mr. Mallatt and Mr. Cregut to decide how to treat the incident. Mr. Cregut obtained approval from his manager to conduct a full investigation and to interview Petitioner. Mr. Cregut reviewed the CCTV footage described above and confirmed that Petitioner did not bring the tools to the Customer Service Desk. Ms. Johnson and Mr. Cregut spoke with Petitioner for approximately an hour to get his side of the story. Petitioner also completed a written statement in which he admitted finding some tools and putting them in his car. Mr. Cregut described Petitioner as “very tense and argumentative” during the interview. As the interview continued, Mr. Cregut testified that Petitioner’s reaction to the questions was getting “a little bit more hostile [and] aggressive.” Mr. Cregut decided to try to build rapport with Petitioner by asking him general questions about himself. This tactic backfired. Petitioner volunteered that he was a Cuban exile and had been arrested several times for his opposition to the Castro regime. Petitioner then claimed that Mr. Cregut discriminated against him by asking about his personal life and prejudged him because of his activism. Mr. Cregut credibly testified that he did not judge or discriminate against Petitioner based on the information Petitioner disclosed and that he only asked the personal questions to de-escalate the situation. Mr. Cregut’s only role in the case was as an investigative factfinder. His report was not colored by any personal information disclosed by Petitioner. At the conclusion of the investigation, Mr. Mallatt made the decision to terminate Petitioner’s employment. The specific ground for termination was “Gross Misconduct – Integrity Issues,” related to Petitioner’s failure to follow Walmart policy by bringing the tools to the Customer Service Desk. Mr. Mallatt testified that his concern was that Petitioner intended to keep the bucket of tools if no owner appeared to claim them. Mr. Mallatt credibly testified that had Petitioner simply taken the tools to the Customer Service Desk, rather than putting them in his vehicle, he would have remained employed by Walmart. Walmart has a “Coaching for Improvement” policy setting forth guidelines for progressive discipline. While the progressive discipline process is used for minor and/or correctable infractions, such as tardiness, “serious” misconduct constitutes a ground for immediate termination. The coaching policy explicitly sets forth “theft” and “intentional failure to follow a Walmart policy” as examples of serious misconduct meriting termination. Petitioner conceded that no one at Walmart overtly discriminated against him because of his age or national origin. He testified that he could feel the hostility toward Hispanics at Store 4444, but he could point to no particular person or incident to bolster his intuition. Petitioner claimed that his dismissal was in part an act of retaliation by Ms. Johnson for his frequent complaints that his Maintenance counterparts on the night shift were not adequately doing their jobs, leaving messes for the morning crew to clean up. Ms. Johnson credibly testified that Petitioner’s complaints did not affect her treatment of him or make her want to fire him. In any event, Ms. Johnson played no role in the decision to terminate Petitioner’s employment. Petitioner’s stated reason for failing to follow Walmart policy regarding found items would not merit a moment’s consideration but for Petitioner’s limited proficiency in the English language. It is at least conceivable that someone struggling with the language might read the Walmart Wage and Hour policy as Petitioner did. Even so, Petitioner was familiar with the found items policy, and common sense would tell an employee that he would not be fired for turning in customer property that he found in the parking lot. At the time of his dismissal, Petitioner had been working at Walmart for over 10 years. It is difficult to credit that he was completely unfamiliar with the concept of time adjustment and truly believed that he could be fired for lifting a finger to work when off the clock. Walmart showed that in 2016 it terminated three other employees from Store 4444 based on “Gross Misconduct – Integrity Issues.” All three were under 40 years of age at the time their employment was terminated. Two of the employees were African American; the third was Caucasian. Petitioner offered no evidence that any other employee charged with gross misconduct has been treated differently than Petitioner. At the hearing, Petitioner’s chief concern did not appear to be the alleged discrimination, but the implication that he was a thief, which he found mortally offensive. It could be argued that Mr. Mallatt might have overreacted in firing Petitioner and that some form of progressive discipline might have been more appropriate given all the circumstances, including Petitioner’s poor English and his unyielding insistence that he never intended to keep the tools. However, whether Petitioner’s dismissal was fair is not at issue in this proceeding. The issue is whether Walmart has shown a legitimate, non-discriminatory reason for terminating Petitioner’s employment. At the time of his dismissal, Petitioner offered no reasonable explanation for his failure to follow Walmart policy. Mr. Mallatt’s suspicion regarding Petitioner’s intentions as to the tools was not unfounded and was not based on any discriminatory motive. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Walmart for his termination. Petitioner offered no credible evidence that Walmart’s stated reasons for his termination were a pretext for discrimination based on Petitioner’s age or national origin. Petitioner offered no credible evidence that his termination was in retaliation for his engaging in protected activity. The employee who was allegedly retaliating against Petitioner played no role in the decision to terminate his employment. Petitioner offered no credible evidence that Walmart discriminated against him because of his age or national origin in violation of section 760.10.
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 Wal-Mart Stores East, LP, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 25th day of October, 2018.
The Issue Whether the Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, Lakeyta Givens, is a black female, and was first employed by the Respondent on February 6, 2001. The Petitioner had no experience in the business of re- financing real property; however, the Petitioner was trained by the Respondent, and was given one promotion and a pay-raise. She became sufficiently knowledgeable and productive that she was tasked to train other employees. After she had been with the company for nearly two years, her supervisor wanted to step down for personal reasons. This opened up a position with greater responsibility and increased pay. The Respondent was a closely held corporation owned and operated by Anthony and Rachel Catanzeriti. Anthony Catanzeriti was the manager of the office and was there daily. His wife, Rachel, was the president of the corporation and was not there on a daily basis. She did, however, exercise primary control over the company. Anthony Catanzeriti asked the Petitioner if she would be interested in moving into the supervisor's position at a salary of $15.00 per hour, a raise of $5.00 per hour. The Petitioner indicated that she would be pleased to make the move. Mr. Catanzeriti indicated that his wife would have to approve the promotion, and that he would talk to her about the promotion. There was no action on the promotion for a long time. The Petitioner was concerned about the status of her promotion. The Petitioner heard during this time that Rachel Catanzeriti had stated that she "would not have a nasty nigger work in the company." The Petitioner asked to speak about her promotion with Mr. and Ms. Catanzeriti, but because of various mutual indispositions a meeting was delayed. On February 3, 2003, Rachel Catanzeriti came in to do some personnel work, and a meeting was arranged at which Mr. Catanzeriti was not present. From the content and progression of this meeting, it was clear that the Petitioner was concerned that she was not being promoted because of her race. The Petitioner immediately confronted Ms. Catanzeriti about the purported racial slur. Ms. Catanzeriti denied having made such a remark; however, she immediately became angry. The meeting never addressed the promotion because of Ms. Catanzeriti's anger. In an effort to de-escalate the situation, the Petitioner walked out of the office. Ms. Catanzeriti followed the Petitioner out of the office and between buildings continuing the heated exchange. The Petitioner asked her to discuss the racial epithet, and Ms. Catanzeriti, replied, "Let's talk about your big fat ass." Very shortly after this comment and within the same argument, Ms. Catanzeriti fired the Petitioner. Subsequently, the supervisor's position was filed by a white female, whom the Petitioner had previously trained. The Petitioner's work record was good, and her attendance was regular. She was unable to find employment until April 2004. After the Petitioner had been fired, U S Mortgage, Inc., was closed by the Office of the State's Attorney. The Petitioner reported that Mr. Catanzeriti was currently imprisoned out of state, and Ms. Catanzeriti was living in Texas.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter its final order directing that the Respondent desist from discriminatory employment practices and awarding the Petitioner $4,800.00 in damages for lost wages. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 6th day of May, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lakeyta Givens Post Office Box 293 Sanderson, Florida 32087 U S Mortgage, Inc. 28 West Macclenny Avenue, Suite 14 Macclenny, Florida 32063 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is David L. Lucas. He was employed by Respondent, Marc Downs, Inc., a clothing store chain, from August of 1989 until January 28, 1990. Approximately two months before the conclusion of his employment with Respondent, Petitioner and other employees employed in the Marc Downs Store located in the Wal-Mart Shopping Center on East Apalachee Parkway in Tallahassee, Florida, began working under the supervision of a new store manager. The new store manager was Desiree DeVelder, a white female. In addition to DeVelder, there was one other white female employee on the store's sales staff. The remainder of the ten person sales force in the clothing store was black. Petitioner was the only black male member of that sales force. Petitioner and other employees became increasing aware of DeVelder's discomfort at working with a predominantly black sales force. She kept to herself when at all possible. She confided to Petitioner that she did not like the way that the black people acted and on one occasion she stated that there were too many blacks working in the store. On January 28, 1991, DeVelder called a meeting of the store employees after the store had closed for the day. She presented each of the black employees, but not the solitary white employee, with a form entitled "Employee Disciplinary Notice". The form had been filled out for each black employee recipient and documented that the employee was the subject of disciplinary action for "poor attitude and not following Marc Down's Employee Policy Manual". The form further documented that the corrective action was to be a 30 day probationary period for the employee and that unemployment compensation would not be paid if the employee quit or was dismissed from employment during the probationary period. Each form for each employee was signed by DeVelder. DeVelder asked each of the black employees to sign their individual forms. Petitioner asked for an explanation of the form. DeVelder refused to provide an answer and Petitioner said he would think about it and provide DeVelder with a decision the next day. As he turned to leave, DeVelder struck him in the back and began screaming at him that he was fired.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the Petition for Relief and directing the payment to Petitioner by Respondent of back pay at the rate of $400 per month from January 28, 1990. DONE AND ENTERED this 13th day of May, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1992.
