Findings Of Fact Martin Marietta Corporation is a multi-state, multi- national defense contractor. Respondent functions as one of its primary divisions/operations in Orlando, Florida. The Petitioner, Frank Maggio was born on April 3, 1914. Petitioner was employed by Respondent on June 16, 1981 in the position of Quality Control Fabrication Inspector A (Fate A Inspector) at Respondent's Orlando facility. Respondent's primary role within the overall corporate operation is the production of highly sophisticated, high-tech missile systems. The development and production of these weapons is maintained under tight security due to the involvement of the national defense effort. Because of Respondent's participation in military and defense programs, the manufacturing process is constantly reviewed and critically inspected by governmental agencies. The Respondent utilizes "state-of-the-art" machines and equipment on its advanced, technical and highly complex defense projects. Petitioner's responsibilities as a Fab A Inspector included checking the first piece of hardware off of the machines, qualifying the tape that runs the machine with his stamp and checking the dimensions of the first layout. This procedure is referred to as a set-up and, once "bought off" "accepted) by the "A" inspector, it establishes the critical reference point or benchmark for the sophisticated, state-of- the-art-manufacturing processes of the Respondent. Respondent's operations involve the manufacture or production of weaponry or weapons systems that require tolerances The Petitioner was given a warning that another similar incident might result in further disciplinary action, up to and including discharge and specifications which are not found or even known in consumer oriented production plants. Certain pieces of equipment used will drill and measure within one one-thousandth of an inch (1/1,000"). The integrity of the highly integrated and closely coordinated production procedures depends upon the correct initial setting, which "commits" the production process. If the initial setting is off or in error, nonconforming parts or items will be manufactured. If the nonconforming parts cannot be reworked or brought into tolerances, they are regarded as scrap and represent a loss to the company. The Petitioner functioned as the only Fab A Inspector on the second shift with very little, if any, supervision. "B" and "C" Inspectors were present, but not performing in a capacity that could provide a backup for Petitioner. In February, 1983, Petitioner functioned under the direct supervision of Charles Holley, Chief Quality Inspector. Although both men worked on the second shift, Petitioner performed as a Fab A inspector and was responsible for making the initial, critical decisions on "set-up" tapes for the second shift production operations. On April 5, 1983, while on his second shift assignment, Petitioner "bought off" on a first piece inspection in order to qualify a newly released tape. On April 7, 1983, the first shift rejected a piece on that particular tape because the dimensions were out of tolerance. Subsequently, after a second inspection of the piece by the senior tool inspector, it was determined that the part was non-conforming and out of tolerance. This error lead to the production of approximately 180 pieces of "scrap" and a loss of about $100,000. As a result of this incident, Mr. Holley, Petitioner's superior, completed a Significant Incident Report (S.I.R.) dated April 18, 1983, which was placed in Petitioner's personnel file. Pursuant to routine procedure, Petitioner was counseled about the S.I.R. and given an opportunity to respond. The Petitioner was given a warning that another similar incident might result in furhter disciplinary action, up to and including discharge. Following the April, 1983 incident, Mr. Holley felt that Petitioner's work performance began to decline. Mr. Holley was dissatisfied because Petitioner often used scales for measurements at times when Mr. Holley believed that calipers should have been used. In addition, Petitioner used his lunch break to take naps, and several times he was late returning to work. Sometime in late September or early October, the Petitioner approved a piece of hardware similar to that involved in the April, 1983 incident and it too was rejected for being out of tolerance. Following this incident, Mr. Holley once again went to the Personnel and Industrial Relations Department (S.I.R.) attempting to have another S.I.R. placed in Petitioner's file. However, the management in P.I.R. did not allow the report to be placed in Petitioner's file. Subsequently, Petitioner was not reprimanded or otherwise disciplined and no official record was kept of this incident. During February, 1984, a "set-up" error by Petitioner on a secret laser tracking missile project know as "Hell-Fire" caused unusable parts to be manufactured and a financial loss to Respondent. Prior to submitting an S.I.R., Mr. Holley met with management in the Personnel and Industrial Relations Department to discuss the Petitioner's situation. It was at this time that Mr. Thomas Mallis, supervisor of employee relations, seized upon the idea of Petitioner's upcoming 70th birthday on April 3, 1984 as a way in which to be rid of Petitioner. Mr. Mallis reasoned that rather than attempting to terminate Petitioner for cause, Petitioner's 70th birthday would provide a point where Petitioner could be "gracefully retired" under Martin Marietta Corporation's corporate retirement policy. Martin Marietta Corporation has a nationwide corporate retirement which requires retirement at age 70. Generally, the company does not enforce this requirement at facilities which are located in states where such a policy violates age discrimination laws. Likewise, Respondent does not generally enforce the corporate wide retirement policy at its Orlando facility because it is subject to Florida state law concerning age discrimination. As of April 4, 1984, Respondent employed approximately 11,000 employees. Approximately 5,017 of those employees were 40 years of age and a small number were over 70. Although the company's age 70 retirement policy is not generally enforced at Respondent's Orlando facility, the retirement plans provided by the company and the benefits package negotiated by the union with the company for retirement pay focus on age 70 as the point at which retirement benefits mature or "top out." After age 70, no further benefits accrue under the retirement plan. Thus, as a matter of established practice and/or expectation on the part of the employees, virtually all workers have retired or plan to retire on or before their 70th birthday. Therefore, Mr. Mallis believed that having respondent "retire" at age 70 would be an easy non-confrontational way to terminate Petitioner's employment. As a member of the United Aerospace Workers local bargaining unit, Petitioner would have had the right to object and file a grievance concerning any proposed termination for cause by Respondent. By "retiring" Petitioner under the corporate policy, Mr. Mallis believed that a "bitter challenge" under the union's often cumbersome grievance/arbitration procedures could be short-circuited. Under the Respondent's progressive discipline system, generally employees are given 3 to 5 S.I.R.'s or written warnings before any stronger action is taken. At the time of his involuntary retirement by Respondent on April 4, 1984, the Petitioner was not vested under the company's retirement program and was not entitled to any benefits thereunder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that a Final Order be entered finding that the Respondent is guilty of a violation of Section 760.10, Florida Statutes and awarding the Petitioner attorney's fees. It is further RECOMMENDED that the Petitioner be reinstated to his former position. The Respondent may seek to institute proceedings within 30 days from the date of the final order to terminate Petitioner for cause based on his work performance up to April 4, 1984. If the respondent is barred from attempting to terminate Petitioner for cause based on those past incidents for whatever reason, if Respondent chooses not to institute termination proceedings, or if the Respondent successfully defends any termination proceedings, then the Petitioner shall be entitled to back pay for the statutory maximum of two years. DONE and ORDERED this 18th day of August, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1986. COPIES FURNISHED: Joseph Egan, Jr., Esquire Post Office Box 2231 Orlando, Florida 32802 Thomas C. Garwood, Jr., Esquire 57 West Pine Street, Suite 202 Orlando, Florida 32801 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. Adopted in Findings of Fact 1 and 3. Partially adopted in Findings of Fact 14 and 16. Matters not contained therein are rejected as misleading. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as misleading. Adopted in Finding of Fact 5. Adopted in Findings of Fact 4, 5, and 6. Adopted in Finding of Fact 7,/ Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 10 and 11. Matters not contained therein are rejected as unnecessary and subordinate. Partially adopted in Findings of Fact 13, 14, 16, and 17. Matters not contained therein are rejected as not supported by competent substantial evidence and/or subordinate. In particular, the finding that the "Petitioner under normal circumstances, should have been discharged for his pattern of poor performance and the associated financial impact upon the company" is rejected as not supported by competent substantial evidence. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as argumentative and/or subordinate. ================================================================ =
The Issue Whether the Petitioner was subject to an unlawful employment practice by Respondent, the City of DeLand, on account of his race, or as retaliation for engaging in protected activities in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter an employee of the City, is African-American. Respondent is a Florida municipality established pursuant to Article VIII, § 2(b), Florida Constitution and chapter 166, Florida Statutes. Respondent employs more than 15 full-time employees at any given time. Petitioner was initially employed by the City in April 2010 as a Maintenance Worker II in the Parks and Recreation Department. On February 21, 2012, Petitioner was terminated by the City for failing to report to work for a period of days. He was considered by the City to be a “no call/no show.” Petitioner filed a complaint with the federal Department of Labor (DOL), in which he asserted that his absence from work was authorized under the Family Medical Leave Act (FMLA). On April 26, 2012, Petitioner filed a complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) alleging that the City?s decision to terminate him was based on race and age discrimination. The complaint was transferred to the FCHR for disposition. The DOL determined that Petitioner?s absence from work was warranted by application of the FMLA, upon which the DOL and the City reached an agreement to resolve the DOL complaint. On July 9, 2012, as part of the agreement, Petitioner was reinstated as a Maintenance Worker II, with back pay and benefits. When the decision was made to reinstate Petitioner, Petitioner withdrew the FCHR complaint. At the time of Petitioner?s reinstatement, the City did not have an opening in its Parks and Recreation Department, his previous position having been filled. The City did have an opening for a Maintenance Worker II in its Utilities Department. The Utilities Department opening had been advertised, the interview process for the opening had been completed, and a candidate had been selected. However, as the result of the DOL settlement, Petitioner was selected to fill the position. Petitioner was placed on the mowing crew, and was responsible for keeping areas around the City?s lift stations, well houses, and wastewater plant mowed. On July 13, 2012, the City issued a written reprimand to Petitioner. The reprimand related to Petitioner?s complaints to the City Utilities Director, Mr. Ailes, regarding Petitioner?s assignment to the mowing crew and his supervisory chain-of-command. The memorandum suggested that Petitioner was not “a team player.” There was no evidence of further adverse action relating to Petitioner?s job performance. After Petitioner settled into the job, he performed well. He was a hard worker, and never had to be coaxed into working. Mr. Swanson described Petitioner as a “go-getter,” who came up with more efficient ways of keeping up with the work and making the areas look nice. Mr. Swanson testified that it was good to have a third person on the mowing crew. On or about July 13, 2012, an equipment operator position came open. It was advertised, and applications were accepted. Petitioner submitted an application for the position. Petitioner was selected as one of five applicants to continue with the interview process.1/ Among the applicants was Jose Alejo. Mr. Alejo is Hispanic. Petitioner and Mr. Alejo were employees of the City, and were considered as “in-house” candidates. The interview team consisted of Mikel Grimm, a foreman with the City?s Utilities Department; Obadiah Henry, a Utility Locator with the City?s Utilities Department; and Danny Pope, a Supervisor with the City. Mr. Henry had been a foreman with the City?s Utilities Department before a voluntary break in service, and had extensive experience as an equipment operator. As a former foreman, Mr. Henry had been on numerous interview committees for positions including equipment operator. He was considered to be the best qualified to serve on the interview committee, even though committee members were typically at the foreman level or higher. Mr. Henry is African-American. Mr. Grimm and Mr. Pope are white. Petitioner had no “issues” with any of the members of the interview team, or with any of the other foremen in the Utilities Department. Petitioner was working on the day that interviews were scheduled. He was taken off of his mower at between 11:00 a.m. and 12:00 p.m. for an interview scheduled for 2:00 p.m. Interviews consisted of a short oral interview, followed by a practical test in which the applicants were tested on a dump truck and a backhoe. The applicants were to drive the dump truck through a sort of “obstacle course” and, using a backhoe, dig a hole to a pre-established specification. The questions asked of each of the applicants during the interviews were identical. The equipment used and the layout of the practical test performed by each of the applicants were identical. Each of the members of the interview team independently prepared his own scoring evaluation, without comparison of notes, numbers, or scores of the other members. After the scoring was completed, the scores were tallied. Mr. Henry was surprised at how even the scores were between the evaluators for each of the applicants. Each of the members of the interview team generally thought Mr. Alejo performed better in the interview. As to the practical test, Mr. Alejo “just proved it on the machine that he was the better applicant.” In short, Mr. Alejo simply dug a better hole. Mr. Henry noted that the decision was based on how the applicant performed on that day. While he acknowledged that Petitioner, or one of the other applicants, may have performed better on another day, “that?s what I had to go off of was that day.” Mr. Henry testified credibly and convincingly that the interview team made the effort to handle the interviews in a professional and honest way. The interview team was not told by higher-level supervisors or anyone else who should be selected as the leading candidate. His testimony is credited. Mr. Henry testified that if he had seen any evidence of racial bias, he would have reported it. He saw none. The recommendation of the interview team was unanimous that the position of equipment operator should be offered to Mr. Alejo, who scored significantly higher than Petitioner. The City accepted the recommendation of the interview team, and offered the position to Mr. Alejo, who accepted.2/ The interview process, using standardized questions and procedures, has been the practice of the City for more than six years. The purpose of the interview and practical test process was to make the hiring process more equal, rather than being based on a “gut feeling” or on how someone may have “felt about the guy.” The interview and selection process raises no issue of discriminatory of retaliatory bias in its application. On or about September 14, 2012, Petitioner received an employee performance evaluation that Petitioner described as “a good evaluation.” During the period of time at issue in this proceeding, Petitioner did not complain to any co-worker or to supervisory staff that he was subject to discriminatory acts as an employee of the City. On May 3, 2013, Petitioner voluntarily resigned from employment with the City. The reason given by Petitioner was that he wanted to return to Minnesota. Petitioner had lived in Minnesota for 30 years, and planned to move back and get a job driving a truck. In his letter of resignation, Petitioner made no mention of any discriminatory or retaliatory act, stating that “[i]t has been a pleasure to work for the City.” The City currently employs six equipment operators. Of those, three are Hispanic, two are white, and one is African- American. Ultimate Findings of Fact The personnel decision to re-hire Petitioner to the position of Maintenance Worker II in the Utilities Department was made because there was an opening in that department. There was no competent, substantial evidence adduced at the hearing to support a finding that the decision was made due to Petitioner?s race, or in retaliation for Petitioner?s earlier EEOC complaint. The decision to hire an applicant other than Petitioner for the position of equipment operator was made after a reasonable and fair applicant interview and evaluation process that was done in accordance with the City?s established and objective hiring practices. There was no competent, substantial evidence adduced at the hearing that any persons who were not members of the Petitioner?s protected class, i.e., African-American, were treated differently from Petitioner, or were not subject to similar personnel policies and practices. There was no competent, substantial evidence adduced at the hearing that the City?s decision to hire Mr. Alejo over Petitioner was made in retaliation for Petitioner?s earlier EEOC complaint.
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, the City of DeLand, did not commit any unlawful employment practice as to Petitioner, Ray Neloms, and dismissing the Petition for Relief filed in FCHR No. 2012-02720. DONE AND ENTERED this 28th day of August, 2013, 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 28th day of August, 2013.
Findings Of Fact Petitioner was hired and began work with DPR on August 22, 1989, in the position of Information Specialist II. The job duties for that position are contained in Respondent's Exhibit 1. Petitioner was terminated on February 5, 1990, before the expiration of her probationary term under the Career Service System. On November 30, 1989, Randy Reid was hired as a public information specialist and worked with Petitioner. It is uncontroverted that Ms. Reid and Petitioner had a personality conflict. Effective January 25 or 26, 1990, Ms. Reid was promoted to the position of Public Information Supervisor, a position to which Petitioner was directly responsible. Before that time, Petitioner had made Ms. Reid aware that the duties which she was performing were not the duties for which she had been hired. Specifically, Petitioner wanted to cover board meeting and to write. Instead she was spending much of her time responding to telephone requests for information. Ms. Reid initiated the paper work to promote Petitioner to the position of Information Specialist III. According to Respondent's Exhibit 2, Petitioner would have been performing the duties for which she had expressed an interest. She would also receive a pay increase. When Ms. Reid informed Petitioner of this promotion, Petitioner was unhappy because she did not want to begin an new probationary period. Petitioner made the situation more difficult by refusing to take directions from Ms. Reid unless the instructions were given by Ms. Reid in writing. Petitioner also responded inappropriately to reporters' requests for information. Instead of advising that certain confidential information was not available, Petitioner, having been a reporter herself for 15 years, expressed empathy with the reporters' dilemma and frustration with not being able to get the information the reporters sought. The information was confidential and Florida Statutes expressly prohibit disclosure. On February 2, 1990, an incident occurred during which Petitioner was insubordinate to Ms. Reid. Petitioner raised her voice and told Ms. Reid that she would not take verbal directions from her. Petitioner then left her work place and went to the personnel office to complain about Ms. Reid's alleged verbal abuse. Based on this incident and the other problems experienced between Ms. Reid and Petitioner, Ms. Reid recommended to the DPR Assistant Secretary that Petitioner be terminated. When Petitioner returned to her work place, Ms. Reid took her to the Assistant Secretary's office. Petitioner was given the option to resign or be terminated. She was very agitated when the Assistant Secretary presented her with that option. She was given the upcoming weekend to make her decision. Petitioner returned to work the following Monday morning, February 5, 1990. She refused to resign and she was terminated. The parties stipulate that Petitioner is over the age of forty and is of French origin. Petitioner's position of Information Specialist II was filled by a person over age forty of American origin. Petitioner alleged throughout this proceeding that Ms. Reid regularly, verbally harassed her by making disparaging comments about her age and national origin. She alleged that Ms. Reid is married to a German man from the Alsace- Lorraine region, which has been the subject of many disputes between the French and Germans. She further alleged that the marital relationship prompted Ms. Reid to harass her in order to please her husband. Finally, Petitioner alleged that Ms. Reid verbally abused her with specific negative comments about her age and French accent. Absolutely no credible evidence was produced by Petitioner to substantiate any of these allegations. It is found that Ms. Reid did not verbally harass Petitioner based on age or national origin. Petitioner did perform her job duties adequately except for the specific instances found herein.
Recommendation Based upon 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 for age and national origin discrimination. DONE and ENTERED this 28th day of May, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 28th day of May, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Liliane Parbot-Johnson Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); and 12 & 14(11). Proposed findings of fact 2, 3, 4, and 15 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 5-11, 13, and 17 are unsupported by the credible, competent and substantial evidence. Proposed finding of fact 16 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 3(4); 4(3); 5(5); 6(5); and 10(10). Proposed findings 2, 7, 8, and 9 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Liliane Parbot-Johnson Post Office Box 20363 Tallahassee, FL 32316 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Ronald M. McElrath, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue The issue to be resolved in this proceeding concerns whether the above-named Respondent discriminated against the Petitioner based upon her race, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Barbara Means, is an employee of the Department, occupying the position of "Accountant III." She has been employed with the Department since 1994. She applied for a promotion to a position of "Accountant IV" in October 2003. She competed for that position with other employees. The Petitioner was one of three finalists for the Accountant IV position. The other two finalists for the position were employees who had been hired by the Department in 1995 and 1997. One factor considered in the evaluation process for the promotion position was the various employees' most recent performance evaluations. The Petitioner had received lower overall performance evaluation scores than had the other two finalists. The three finalists, including the Petitioner, were interviewed by a panel of four supervisors, one of whom was Omar Arocho, the Petitioner's own supervisor. Mr. Arocho supervised both Petitioner Means and Ms Wells, one of the other finalists for the accountant position. The four interviewers asked each employee applicant the same ten skills questions and then recorded their responses, for comparison with standard acceptable answers to the questions. The employee performance during this skill interview was considered to be crucial to a determination of who was to be promoted to the subject position. The testimony of Mr. Arocho persuasively established that the Petitioner was excelled in these interviews by the two competing co-workers. This is shown in his testimony, in the recorded responses to the questions in evidence, and their comparison to the standard acceptable answers provided. The conclusion of the evaluation panel of four supervisors, according to Mr. Arocho's testimony which is accepted, was that the Petitioner and the other two applicants were qualified, but that the other two applicants were more qualified than the Petitioner. The Petitioner was not promoted to the position of Accountant IV and remains in the position of Accountant III with the Department. There was no substantial, persuasive evidence to show that the employment decision made by the panel of four supervisors, including supervisor Arocho, was based in whole or in part on any intentional discrimination or animus based upon the Petitioner's race.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 1st day of November, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2004. COPIES FURNISHED: Barbara Means Post Office Box 1345 Newberry, Florida 32669 Mark Simpson, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact At all times relevant to this proceeding, Petitioner, an African-American male, was employed by Respondent as a truck driver. In or around 1997, Respondent hired Petitioner as a forklift operator, a position he voluntarily abandoned (after roughly one year) to pursue other opportunities. Some six years later, in 2004, Petitioner returned to Respondent's employ as a truck driver. This second stint of employment continued until June of 2011, at which time Petitioner resigned his position——again, voluntarily——in order to "cash out" his 401K account. Tellingly, in his resignation letter, Petitioner thanked Respondent "for the opportunities [it] had provided [him] during the years," and noted that he "really enjoyed working for Mullins Lumber." Several months later, Respondent approached Petitioner about returning to his former truck-driver position. Petitioner agreed and resumed his employment with Respondent in August of 2011. For all that appears, Petitioner discharged his obligations suitably until the afternoon of August 14, 2012. On that occasion, Petitioner used a forklift to load materials onto his tractor trailer, a task he had performed numerous times. After the loading process was complete, Petitioner drove the forklift around the back of his truck and in the direction of the forklift shed. At one point along the way, it was necessary for Petitioner to make a blind turn around a truck belonging to a colleague, Wes Walker. Needless to say, such a maneuver presents a substantial danger to any person who might be nearby; for that reason, Respondent's forklift operator workbook, whose terms Petitioner was obliged to follow,2/ provides that drivers must: Slow down at cross isles [sic], exits, and blind corners; sound horn at once upon approaching any of these situations. (Emphasis in original).3/ Of the mistaken assumption that no other workers were in the immediate area because of inclement weather (a light rain was falling), Petitioner neither sounded the forklift's horn nor slowed to an appropriate speed as he negotiated the blind corner.4/ As a consequence, Petitioner accidentally collided with Respondent's vice president, Scott Mullins, who was conversing with Mr. Walker at the rear of the truck.5/ The evidence is undisputed that Scott Mullins suffered a broken tibia and fibula, injuries that required surgery and months of physical therapy to correct. Within hours of the accident, one of Respondent's owners and officers, Clarke Mullins, suggested to Petitioner (who was noticeably distraught) that he take the rest of the week off and return to work the following Monday. Petitioner agreed and departed the worksite shortly thereafter. Over the next several days, Clarke Mullins conducted a brief, yet adequate, investigation of the events of August 14, 2012. The investigation included an interview of Mr. Walker, an African-American, who confirmed that Petitioner's operation of the forklift was lacking. Upon the completion of his investigation, Clarke Mullins concluded that the accident of August 14 warranted the termination of Petitioner's employment.6/ Petitioner was thereafter replaced by an African-American driver some three years and seven months his junior.7/ During the final hearing in this cause, Petitioner offered no direct evidence in support of his claim of age discrimination. Although the age disparity between Petitioner and his replacement is sufficient to raise an initial inference of impropriety, Petitioner has failed to prove that Respondent's proffered reason for the firing——the accident——is a mere pretext for age discrimination. On the contrary, the undersigned credits Clarke Mullins' testimony that the accident was the sole basis for Petitioner's termination.8/ The charge of race discrimination fares no better. Petitioner's conclusory assertions notwithstanding, the record is devoid of any evidence, direct or otherwise, suggesting that Petitioner's termination was motivated by racial considerations. Quite the opposite, in fact: Petitioner was replaced by a member of his own race; and, as noted above, the undersigned credited Clarke Mullins' testimony that Petitioner was fired for the accident alone.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 14th day of August, 2014, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 14th day of August, 2014.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of her race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From 1991 until she resigned in November 2005, Petitioner Gloria J. Bias-Gibbs ("Bias-Gibbs") worked for Respondent Jupiter Medical Center ("JMC") in several different positions, which were mostly clerical in nature. Starting in 2001, and continuing throughout the time period relevant to this case, Bias-Gibbs' job was to perform "chart prep" in the Same Day Surgery unit, which is within JMC's Surgical Services Department. As a chart prep employee, Bias-Gibbs' task was to assemble patients' charts for the medical personnel. During the time she held the chart prep position, Bias-Gibbs was the only person who occupied it. Volunteers had performed the chart prep duties before Bias-Gibbs assumed them, and, after she resigned, volunteers once again were given the chart prep duties to perform. Bias-Gibbs' immediate supervisor in Same Day Surgery was Janet Sparks, the Clinical Manager. Ms. Sparks, in turn, reported to Beth Suriano, the Director of Surgical Services. Ms. Sparks and Ms. Suriano are white women; Bias-Gibbs is a black woman. Not long after she began her tenure as a chart prep, Bias-Gibbs began to believe that she was a victim of racial discrimination at work. In particular, she felt that Ms. Sparks was a racist who repeatedly took adverse action against her solely because she is black. The many allegedly discriminatory acts about which Bias-Gibbs presently complains can be divided into three main categories: (a) denials of her requests for promotion or transfer to another position; (b) Ms. Sparks' conduct; and (c) refusals to provide training, most notably in relation to a computer program known as "Fast Forms," about which Bias-Gibbs alleges she received inadequate instruction. The Requests for Transfer. Between April 16, 2001, and February 22, 2005, Bias-Gibbs submitted sixteen job transfer applications, seeking positions at JMC that she believed were more in keeping with her qualifications than chart prep. None of these applications was approved. Bias-Gibbs does not know the identities, racial characteristics, or qualifications of any of the persons whom JMC hired for the sixteen positions Bias-Gibbs sought. Because she applied for these positions and did not get them, however, Bias-Gibbs feels that she was discriminated against. In addition, Bias-Gibbs once sought to transfer to another position in the Surgical Services Department. The job of Patient Access Specialist was given, however, to another employee of JMC, Joyce Stokes, who assumed the position some time in 2004. Unlike Bias-Gibbs, Ms. Stokes (who happens to be white) had taken a medical terminology course and examination. Because proficiency in medical and surgical terminology is desirable for the position in question, Ms. Stokes was more qualified than Bias-Gibbs to be a Patient Access Specialist. Ms. Sparks' Conduct. Bias-Gibbs' complaints about Janet Sparks, whom she calls a "racist," revolve around allegations that Ms. Sparks forced Bias-Gibbs to sit in a back room while on the job; made racially insensitive remarks concerning Bias-Gibbs' appearance (specifically, her hair); refused to transfer Bias-Gibbs to a different position in the Surgical Services Department (the incident discussed above); kept an overly watchful eye on Bias- Gibbs while she was working; and generally declined to give Bias-Gibbs more challenging assignments in addition to chart prep. Work Station. Bias-Gibbs worked in a room apart from the secretaries in the unit. Her work area was neither "on the floor" nor in public view. While she believes that this "back room" placement was discriminatory, Bias-Gibbs' job as a chart prep employee did not require her to sit "out front." There is no evidence that Bias-Gibbs was singled-out for different treatment regarding her work station. To the contrary, after Bias-Gibbs resigned, the chart prep work continued to be done in the same room where Bias-Gibbs had labored, with the same supplies that were available to Bias- Gibbs while she was employed. Insensitive Remarks. Bias-Gibbs does not believe that she was harassed because of her race. She does complain, however, about derogatory remarks she attributes to Ms. Sparks. According to Bias-Gibbs, when Bias-Gibbs wore her hair in braids to work, Ms. Sparks made comments to the effect that she (Bias- Gibbs) looked like Whoopi Goldberg. In addition, Ms. Sparks once told Bias-Gibbs that she wished she (Ms. Sparks) were black because, if she were black, then it would be easier to take care of her hair. The undersigned takes Bias-Gibbs at her word that these quips were offensive and hurtful to her (although she never told Ms. Sparks that the comments at issue made her uncomfortable). To infer, however, that racial animus motivated these comments (there being no direct evidence of discriminatory intent) would require that the words be given a very mean connotation (and the speaker absolutely no benefit of the doubt) because, viewed objectively, the statements appear to be, at worst, inconsiderate, unkind, or rude. Ultimately, there is insufficient evidence upon which to base a finding (or to infer) that these remarks were anything but workplace banter of the sort that anti-discrimination laws are not designed to reach. "Excessive" Supervision. Bias-Gibbs believes that Ms. Sparks was hypervigilant about watching her work, which made Bias-Gibbs nervous or uncomfortable. Although she attributes this watchfulness to racism, Bias-Gibbs conceded, when pressed, that it was not discriminatory for her supervisor to keep an eye on her at work. There is no evidence, in any event, that Ms. Sparks subjected Bias-Gibbs to closer scrutiny than other employees, much less that she treated Bias-Gibbs differently in this regard based on her race. Underutilization. As an overarching complaint about Ms. Sparks, Bias-Gibbs believes that her supervisor generally refused to allow Bias-Gibbs to perform the kind of work that would make full use of her skills. At most, however, the evidence shows that Ms. Sparks and Bias-Gibbs had different opinions about Bias-Gibbs' potential for taking on other responsibilities. There is no evidence that Ms. Sparks' opinion, which was that Bias-Gibbs should continue working in chart prep, was racially based. Inadequate Training. Bias-Gibbs felt that she was discriminated against because other individuals were given more training than she was on using the Fast Forms computer program. Bias-Gibbs did receive instructions on using Fast Forms, however, which were sufficient to enable her to look up patients' names in the database——the only function of the program that was relevant to, and helpful in the performance of, her duties. The secretaries who used Fast Forms were provided more training in the use of the program, it is true, but their duties were different than Bias- Gibbs's duties, and hence they used Fast Forms for reasons in addition to retrieving names. The secretaries, in short, were provided more training than Bias-Gibbs, not because the latter is black, but because, as secretaries, they needed more training than Bias-Gibbs. The bottom line: there is no persuasive evidence that Bias-Gibbs was given inadequate training——period. At all times during Bias-Gibbs' tenure as an employee of JMC, the hospital had an anti-discrimination policy, an anti- harassment policy, an equal employment policy, and a grievance policy, which were available to all employees. Bias-Gibbs was aware of these policies, yet she never made any allegations of racial discrimination or harassment, disparate racial treatment, or racial comments to Ms. Sparks, Ms. Suriano, or anyone else. Similarly, she never used the grievance procedure to complain that she had been denied a promotion or transfer because of her race. Bias-Gibbs resigned her position at JMC in November of 2005. Although she now maintains that she felt compelled to resign her position because she was denied opportunities to advance at the hospital (and because she needed a job that paid more money), at the time Bias-Gibbs informed others that she was leaving her position in Same Day Surgery because she had gotten a better-paying job at the post office. Bias-Gibbs filed a Charge of Discrimination against JMC at some point on or after July 19, 2006. (She signed the charging document on September 22, 2006, but there is an inscription on the instrument indicating that it was filed on July 19, 2006. There is no evidence explaining this discrepancy.) Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that JMC discriminated unlawfully against Bias-Gibbs on the basis of her race; or it proves, affirmatively, that JMC did not, in all likelihood, unlawfully discriminate against her. Either way, it is determined, as a matter of ultimate fact, that JMC did not violate the civil rights laws in its treatment of Bias-Gibbs while she was an employee of JMC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Bias-Gibbs' Petition for Relief as partially time- barred, and alternatively (and additionally) finding JMC not liable on the merits for racial discrimination. DONE AND ENTERED this 24th day of April, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 24th day of April, 2008.
The Issue The issues in this case are: (1) Whether Petitioner filed her charge of discrimination with the Florida Commission on Human Relations within 365 days after the alleged discriminatory act; and (2) Whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of her national origin, gender, or pregnancy.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Olivera is a Cuban-American female. The City hired her, effective March 8, 1993, to work as a secretary in the City Manager’s office. After one week, Olivera was promoted to the position of Office Manager, a more demanding job that entailed much greater responsibilities. The evidence regarding Olivera’s performance as Office Manager is in conflict. Her supervisors believed that Olivera was a marginal employee who failed to discharge her duties satisfactorily. The City has placed in evidence a number of contemporaneous memorandums and other documents that memorialize one or another of Olivera’s perceived performance deficiencies. In contrast, Olivera believed she was performing well, and that her supervisors’ complaints about her were, for the most part, false, exaggerated, or unfair — and worse, a pretext for unlawful discrimination. (Olivera admitted that she had had problems with tardiness during her first year of employment, but all agreed that Olivera had corrected this particular deficiency.) In short, Olivera perceived that she had been singled out for disproportionately harsh treatment and had been made the scapegoat when others failed to do their jobs. More ominously, Olivera accused the City Manager, R.J. Intindola, of constantly having made racist comments about Blacks and Cubans. She claimed that Mr. Intindola uttered racial slurs with such frequency that the workplace became hostile. Further, Olivera asserted that her complaints about Mr. Intindola’s behavior fell on deaf ears. As with the issues pertaining to Olivera’s job performance, the evidence regarding Mr. Intindola’s conduct is in conflict. Mr. Intindola himself denied having uttered the slurs that Olivera put on his lips, yet he admitted that “one time,” in Olivera’s presence, he had referred to another employee, Christy Dominguez, as a “crazy Cuban.” Mr. Intindola claimed that everyone present knew that he was kidding and laughed at the repartee between him and Ms. Dominguez. No one who testified at hearing corroborated Olivera’s account of Mr. Intindola’s conduct. Indeed, Ms. Dominguez, who has been employed with the City since May 1974, disclaimed having witnessed any discriminatory behavior in the workplace there, despite having been the subject of the one possibly derogatory comment that Mr. Intindola indisputably made. On or around April 24, 1995, Olivera was asked to resign her employment with the City to avoid being fired, which would be the consequence of her refusal. Faced with this choice, Olivera submitted a letter of resignation dated April 24, 1995. Thereafter, she received severance pay equal to two-months’ salary. Some time later, most likely during the first few weeks of March 1996, Olivera filed both a Charge Questionnaire and an Affidavit (collectively, the "Federal Forms") with the United States Equal Employment Opportunity Commission ("EEOC"). In the Federal Forms, Olivera alleged that the City had discriminated against her, primarily on the basis of her national origin. The EEOC notified Olivera by letter dated March 22, 1996, that, because her charge had not been timely filed under Title VII of the Civil Rights Act of 1964, the commission had forwarded the Federal Forms to the FCHR. On May 6, 1996, according to a date stamp on the face of the document, the FCHR received a Charge of Discrimination that appears to have been signed by Olivera on April 14, 1996. In this Charge of Discrimination, Olivera again alleged that the City had discriminated against her on the basis of national origin, in violation of her rights under the Florida Human Rights Act. Ultimate Factual Determinations The evidence in this record is not sufficient for the trier to ascertain whether, as a matter of objective historical fact, Olivera adequately performed on the job or not. Suffice it say that a preponderance of evidence fails to establish anything except that Olivera, on the one hand, and her supervisors, on the other, sincerely believed the opinions they expressed on this subject. In other words, Olivera honestly believes that she performed competently and was discriminated against. Her supervisors at the City, in turn, honestly believe that Olivera did not measure up to the Office Manager’s position and needed to be let go for that legitimate reason and no others. The upshot of this inconclusiveness is that Olivera has failed to demonstrate, by a preponderance of evidence, that the City violated her civil rights. Olivera’s conviction that she was the victim of unlawful discrimination, no matter how sincerely and firmly held, is not proof of the fact, at least not without more than the evidence in this record establishes. By the same token, the evidence does not exactly exonerate the City, in the sense of proving that its hands were completely clean or that it acted honorably in respect of Olivera. Rather, more likely than not, Mr. Intindola did on occasion make offhand comments about Cubans at which some persons could take offense. A preponderance of evidence fails to show, however, that he uttered these remarks with a discriminatory intent; that Olivera (or anyone else) suffered any material harm or humiliation as a result of hearing them; or that he did so with such frequency or in such fashion that his conduct could be called extreme. In sum, while it is fair to infer, and the trier so finds, that Mr. Intindola was not always as sensitive to the feelings of others as, in hindsight, he probably should have been, there is nevertheless insufficient evidence to support a finding that he acted willfully or that Mr. Intindola’s occasionally insensitive behavior was so consistently and frequently repeated as to become a condition of Olivera’s employment with the City. Likewise, the greater weight of evidence fails to establish that the environment in which Olivera worked was a hostile or abusive one. On this record the trier cannot say that, more likely than not, the workplace was permeated with discriminatory intimidation, insult, and ridicule. Further, the evidence does not establish that Olivera was treated differently than similarly situated employees who were neither Cuban- American, female, nor pregnant. In the final analysis, then, considering the totality of the circumstances, the evidence presented at hearing demonstrates no more than that the City terminated the employment of an at-will employee for performance-related reasons unrelated to her national origin, gender, or medical condition (pregnancy).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Olivera's Petition for Relief. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2001.
The Issue Whether Respondent is guilty of an unlawful employment practice by failing to hire Petitioner on the basis of age or in retaliation.
Findings Of Fact On February 24, 1994 (amended March 10, 1994), Petitioner filed a Charge of Discrimination, based on age and retaliation, with the Florida Commission on Human Relations. That charge listed the most recent discrimination as October 18, 1993 and alleged that Petitioner had been rejected for a post in Panama City; that Respondent, through a Ms. Retherford, had denied Petitioner access to other applicants' records for ten days; and that Ms. Retherford, Ms. Jenkins, and Ms. Ciccarelli of Respondent's District 2, had made sure everyone in their District knew Petitioner's name and to avoid hiring him. To further specify his charges, Petitioner attached a December 16, 1993 memorandum from Ms. Radigan to Mr. Clary. (See below, Finding of Fact No. 56). The Charge of Discrimination then concluded, "the specific job for which I applied was set in Marianna and closed on 18 October; though I had been referred to that job by Karen Dalton, an HRS specialist at HRS headquarters, I never had a chance at that job." (P-2) By a "Determination: No Cause", dated March 20, 1995, the Commission advised Petitioner that he could file a Petition for Relief within thirty-five days, pursuant to Section 760.11 F.S. On April 22, 1995, Petitioner filed his Petition for Relief, which was referred to the Division of Administrative Hearings for a formal evidentiary hearing, pursuant to Section 120.57(1) F.S.. That timely Petition for Relief alleged both age and retaliation discrimination by Respondent's failure to hire Petitioner for a number of posts, none of which the Petition specifically named by position number or date. The retaliation allegation was based on Petitioner's "causing trouble," not due to his filing any prior formal complaints with the federal Equal Employment Opportunity Commission or Florida Commission on Human Relations or upon his participation in these types of litigation on behalf of anyone else. Although the subject matter jurisdiction of the Division of Administrative Hearings is bounded by the Charge of Discrimination, the Petition for Relief, and Chapter 760 F.S., the parties were permitted to present some historical information. Even so, the parties' presentation of evidence did not always clearly correlate Respondent's dated employment advertisements for named, numbered, or described positions to specific applications of Petitioner and/or specific interviews or hirings of other persons. Respondent agency demonstrated that as of October 13, 1993, it was employing at least one employee older than Petitioner, at least one in her sixties, others in their fifties, and hundreds who were over 39 years old. However, none of this information is particularly helpful in resolving the issues in this case. While Respondent's figures may speak to longevity of employees or duration of their employment with Respondent, they are silent as to each employee's age as of the date Respondent first hired each one. (R-9) Petitioner is a white male who at all times material was 63-65 years of age. Petitioner repeatedly applied for job vacancies advertised by Respondent agency and was not hired for any of them. Every position for which Petitioner applied required, at a minimum, that applicants have a bachelor's degree from an accredited college or university plus three years' professional experience in one or more of the following employments: abuse registry; developmental services; law enforcement investigations; licensed health care; children, youth, and family services; child support enforcement; economic services; aging and adult services; licensed child day care; mental health; or elementary or secondary education. Specific types of bachelor's degrees or any master's degree could substitute for one of the three years' required experience in the named programs. Specific types of master's degrees could substitute for two years of the three years' required experience in the named programs. However, no matter how many or what type of college degrees an applicant had earned, Respondent still required applicants to have at least one year of specialized experience. (P-1, R-1, R-2, R-4, R-5, and R-7). In fact, Petitioner met the foregoing requirements at all times material. "In the late summer of 1992," Petitioner first responded to one of Respondent's advertisements for a Protective Investigator position in Panama City. (P-1, P-14) He was turned down without an interview for that position by a letter dated September 22, 1992. (P-1). Feeling that he was qualified for the foregoing position and that he should have at least been given the opportunity to interview, Petitioner made an appointment with Ms. Charlie Retherford, who had advertised the position. The contents of Ms. Retherford's explanation about ten days later is not of record, but Petitioner remained dissatisfied. Petitioner next made a request pursuant to Chapter 119 F.S., The Public Records Act, to view the records of other applicants. Petitioner felt he was "hassled" over this request, but admitted that Respondent provided the records within two weeks. Petitioner did not elaborate upon why he felt "hassled," only stating that he felt two weeks was an "unreasonable delay." Petitioner analyzed the records and formed the opinion that "there was good reason to believe" Respondent did not interview him because he was over 60 years old. Petitioner testified that those applicants selected by Respondent for interviews averaged 29 years old, but Petitioner did not offer in evidence the records he had reviewed so as to substantiate his assertion. In correspondence and interviews which occurred after September 22, 1992, Petitioner revealed his age to various employees of Respondent. (See Findings of Fact 14, above, and 24, 41, and 45 below). However, an applicant's age or birth date is not required on Respondent's standard employment application form, and on Petitioner's September 5, 1992 application received by Respondent September 9, 1992 (P-14), Petitioner had left blank the "optional" line for date of birth. Therefore, it was not established that the Respondent knew, or even how the Respondent could have known, Petitioner's age prior to its September 22, 1992 failure to hire him. Despite Petitioner's testimony as to the average age of interviewees, the mean age of all the applicants up to September 22, 1992 was not established, so it is not clear whether any twenty-nine year olds or persons younger than Petitioner also were not interviewed as well as Petitioner, who was not interviewed and who was in his sixties. Additionally, no nexus between any other applicant's qualifying credentials and Petitioner's qualifying credentials was put forth. Therefore, it is impossible to tell if those applicants who were interviewed prior to September 22, 1992 were more or less qualified than Petitioner, or if there was any pattern of Respondent refusing to interview applicants of any age. By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator with its Aging and Adult Services Unit in Chattahoochee. (P-4). By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-5) By a January 22, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-6) By a January 27, 1993 letter, Respondent turned down Petitioner's application as a Protective Services Abuse Registry Counselor after he was interviewed. (P-3, P-7) (See Findings of Fact 24 and 41, below. By a February 25, 1993 letter, Respondent turned down Petitioner's application for Research Assistant Position No. 05396 at Florida State Hospital. (P-8) Petitioner did not offer in evidence any of his applications corresponding to the Respondent's refusals to hire him between September 22, 1992 and February 25, 1993. 1/ For the period of September 22, 1992 through February 25, 1993, Petitioner's only evidence of age or retaliation discrimination was his subjective personal conviction that age was a factor in Respondent's refusal to hire him and the Radigan memorandum issued ten months later and discussed in Findings of Fact 56-65, below. Affording Petitioner all reasonable inferences, the undersigned infers that due to Petitioner's post- September 22, 1992 interview with Ms. Retherford, Respondent's District 2 hiring personnel could have been aware of Petitioner's age from late September 1992 onward. However, there was no evidence presented by which it can be affirmatively determined that between September 22, 1992 and February 25, 1993 that Respondent knew the age of all other applicants before deciding which ones to interview or that there was a pattern of only interviewing persons under a certain age. 2/ Further, in an August 12, 1993 letter, Petitioner stated to the Secretary of Respondent agency that he had, in fact, been interviewed by Respondent in January 1993. (P-3) (See below, Finding of Fact 41.) It also must be inferred from that information that Respondent did not systematically exclude Petitioner from the interview process on the basis of age or retaliation at least through January 1993. Petitioner's last application before October 14, 1993 which was admitted in evidence is dated April 8, 1993. It was stamped "received" by Respondent on April 9, 1993. It also does not give his age or date of birth. It specifies that Petitioner was applying for a Protective Investigator position closing April 12, 1993. (P-15). In April 1993, Brenda Ciccarelli, an official in Respondent's District 2, requested Karen Dalton, a recruitment coordinator in Respondent's Personal Services Section, to review Petitioner's employment application to determine if he met the minimum requirements for employment in the advertised position. Ms. Dalton's testimony is not altogether clear as to which application or applications she reviewed in April 1993, but from the evidence as a whole, it is inferred that she reviewed Petitioner's September 5, 1992 (P-14) and/or his April 8, 1993 (P-15) applications or applications by Petitioner which were substantially similar. Ms. Dalton analyzed Petitioner's application(s) and determined that Petitioner did not meet Respondent's minimum requirements. She satisfied herself that she had made a correct analysis by conferring with Mr. Joe Williams of the Department of Management Services. By a May 7, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-9) Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from May 24, 1993 to June 7, 1993. (R-1) Respondent readvertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from June 21, 1993 to July 26, 1993. (R-2) Effective August 6, 1993, Respondent hired Jack Connelly, then 45 years old, for Position No. 48210 in Port St. Joe, Gulf County. (R-3) Respondent introduced a tabulation of the ages of the applicants for Position No. 48210 which was completed as of the effective date the position was filled. It included columns listing birth dates of applicants, if known; a column indicating applicants' handicaps, if any; a column indicating whether an applicant was eligible; and a column indicating which applicants were interviewed. (R-3) Mr. Connelly, the successful applicant, was interviewed, as were eleven other applicants. Ten applicants, among them Petitioner, were not interviewed. (R-3) The applicants who were interviewed were respectively forty-five, fifty, forty-six, forty-one, thirty-seven, fifty-eight, one unlisted, forty- four, forty-one, forty-four, and thirty-one years of age. The ages of those not interviewed were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two. (R-3) There is nothing in the record to show that the qualifications of the applicants interviewed or those of Jack Connelly, who was hired, were lower than Petitioner's qualifications. There is no discernible pattern of excluding anyone by age. 3/ Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 50968 in Panama City, Bay County from May 17, 1993 to May 31, 1993. (R-4) Respondent readvertised Protective Investigator/8308 Position No. 50968 in Panama City, Bay County from June 21, 1993 to July 6, 1993. (R-6) By a July 20, 1993 letter, Respondent turned down Petitioner's application for Protective Investigator in Panama City. (P-10) Effective August 6, 1993, Respondent hired Edward Bonner, then fifty- three years old, for Position 50968. He was one of the applicants interviewed. (R-6) Respondent presented another columnar tabulation completed as of the effective date Mr. Bonner was hired. It showed that the interviewed applicants were ages fifty-three, fifty, forty-six, forty-one, twenty-seven, fifty-eight, one unlisted, forty-six, forty-one, forty-four, and thirty-one, respectively. The uninterviewed applicants were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-seven, and thirty-two respectively. (R-6) Again, there is no discernable pattern of excluding anyone by age. 4/ There is nothing in the record to show that the qualifications of the interviewees or of Edward Bonner were lower than Petitioner's qualifications. On August 12, 1993, Petitioner wrote the agency Secretary, Mr. H. James Towey, complaining that he had been discriminated against because of his age, which he then gave as This letter listed the dates of discrimination as 9/22/92, 11/24/92, 11/24/92 again, 1/22/93, 1/27/93, 2/25/93, 5/7/93/ and 7/20/93. Therein, Petitioner admitted that Respondent had interviewed him approximately January 1993 for a System Abuse Registry Counselor position and that the interview had gone very well from his point of view. (P-3) Respondent advertised Protective Investigator/8308 (anticipated vacancy) Position No. 04385 in Panama City from June 21, 1993 to July 6, 1993. (R-7) Effective September 3, 1993, Respondent hired Johnnie A. Knop (female), DOB unlisted, for Position No. 04385. Respondent's tabulation completed on the effective date of hiring Ms. Knop showed that not counting Ms. Knop, whose age does not appear, the interviewees were thirty-eight, fifty, forty-six, forty-one, thirty-three, fifty-eight, forty-four, forty-one, forty- four, and thirty-one years of age, respectively. The non-interviewees were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two years of age. (R-8) Once more, there is no discernible pattern of excluding anyone by age. Moreover, it is not possible to tell whether or not Respondent hired someone older or younger than the Petitioner. 5/ There is nothing in the record to show that Johnnie Knop's qualifications were lower than Petitioner's. In September, 1993, Ms. Dalton had a conversation with Petitioner which lasted approximately ninety minutes. Based upon the contents of Petitioner's Exhibit 13, it is found that this conversation occurred on September 13, 1993 in response to letters of complaint written by Petitioner on May 20 and August 12, 1993. The Petitioner's May 20 letter is not in evidence, but it is inferred that the August 12 letter referenced in P-13 was Petitioner's complaint to Secretary Towey (P-3) concerning age discrimination and discussed above in Finding of Fact 41. During their conversation, Ms. Dalton discovered that some of Petitioner's remote job experiences were useful for certifying him qualified. Together, Petitioner and Ms. Dalton worked through a list of Respondent's job openings, and Ms. Dalton sent one of Petitioner's applications on to Cheryl Nielsen who was hiring for a position in Marianna. At formal hearing, Ms. Dalton explained credibly that she had not originally categorized Petitioner as meeting the professional experience requirement in the "elementary or secondary education" category because she misunderstood his prior application(s) which she had reviewed. Where the September 5, 1992 application had related Petitioner as employed as "a teacher at Dozier School for Boys (Washington County Program at Dozier)" and the April 8, 1993 application listed him as " a teacher at Dozier School for Boys" for eleven months in 1990-1991, Ms. Dalton previously had understood that his employment merely constituted "shopwork, independent living", which is literally part of what Petitioner had written. Ms. Dalton previously had not equated that phraseology with professional teaching experience in an elementary or secondary school. Ms. Dalton also credibly explained that she had the erroneous perception of Petitioner's past experience listed as "supervisor, driver education" at Parks Job Corps Center as being solely employment in a private driver's education school. Petitioner had written "vocational training center," to describe the Center's function. Less understandable but unrefuted was Ms. Dalton's testimony that she had not equated Petitioner's teacher status for eight years in the Oakland County, California Public Schools as "teaching" because of the way Petitioner's application(s) had presented that prior employment which had occurred in the late sixties and early seventies. Despite both applications clearly stating this was public school teaching, Ms. Dalton had once again erroneously assumed that Petitioner had worked in a driver education school, when he had, in fact, been teaching a regularly scheduled minor course curriculum of driver's education in the standard curriculum of a public high school. Apparently, she had given less emphasis to this and had become confused by the explanatory material that Petitioner had added to explain the other things he had done besides teaching. She also gave less emphasis to other employments involving several years even if they included the word "teacher" because they were remote in time. (P-14 and P-15; compare P-16). After their clarifying interview, Ms. Dalton considered Petitioner qualified for the position(s) applied for, even though his qualifications previously had not been apparent to her from his written application(s). Convinced that Petitioner's application style did not present him to best advantage, Ms. Dalton advised Petitioner how to re-do his application to emphasize the factors significant to Respondent and maximize his employment opportunities with Respondent. On the basis of their conversation alone, Ms. Dalton sent a September 15, 1993 letter to Petitioner, and copied Ms. Jenkins and Ms. Ciccarelli, both employed in Respondent's District 2, to the effect that Petitioner met the eligibility requirements for the Protective Investigator classification. (P-13) Petitioner revised his application to detail that some of his school activities which were remote in time actually involved teaching. He submitted the rewritten application to Ms. Dalton approximately October 14, 1993. (P-16). After the revision, Ms. Dalton credited Petitioner with three years and nine months of "teaching in an elementary or secondary school" based only on his teaching during the 1960's. She also forwarded the revised application to Marianna and Ms. Nielsen. A review of the Petitioner's only three applications in evidence (September 5, 1992 at P-14; April 8, 1993 at P-15; and October 14, 1993 at P-16) reveals that Petitioner's original application style is so detailed and thorough that some portions September 1992 and April 1993 applications are less than clear as to what entity employed him and what his title was. For instance, he frequently used job titles that were more administrative, like "program manager", than educational, like "teacher". While a thorough reading of either of the applications in Petitioner's original style would probably reveal that he had, indeed, been employed in public school teaching positions approximately 30 years before, Petitioner's original applications require much more concentrated reading than does his revision in order to sort through the material matters and exclude extraneous and cumulative material that had no significance to Respondent's application process. The unrevised applications are not clear that he actually "taught" for a total of three years and nine months in public elementary or secondary schools as understood by Respondent's assessment system. According to Cheryl Nielsen, the position in Marianna for which Petitioner was certified eligible by Ms. Dalton and which closed October 18, 1993 was a temporary position. It existed solely because the individual holding the permanent position had been on workers' compensation leave. When it became apparent to Ms. Nielsen that the injured job holder would not be returning permanently, she decided not to continue the hiring process for the temporary position. Instead, she decided to advertise and fill the position in Marianna as a permanent position once the appropriate waiting period ran out. This was a reasonable decision because it would require six weeks' training before any hiree would be useful and because by going directly to the hiring of permanent personnel, Ms. Nielsen could avoid having to repeat the training process with a different person in a short period of time. No one was interviewed or hired for the temporary position for which Petitioner applied. There is no evidence in this record to tell the undersigned if Petitioner applied for Miss Nielsen's permanent position. Indeed, there is no evidence that Petitioner applied for any positions with Respondent after October 14, 1993. On November 26, 1993, Petitioner wrote Mr. Clary, Respondent agency's Deputy Secretary for Administration. The "Re:" line of this letter states that the letter refers to "'contracts' which cost HRS a fortune but serve no legitimate purpose." A fair reading of Petitioner's letter is that he was complaining concerning a letter from Dr. James Henson of Tallahassee Community College (TCC) which constituted a reply to Petitioner's inquiry concerning a TCC job vacancy announcement. Neither Petitioner's letter to Dr. Henson nor Dr. Henson's reply letter to Petitioner are in evidence to further explain what was actually going on. In his November 26, 1993 letter to Respondent's Deputy Secretary Clary, Petitioner characterized Dr. Henson's letter to him as "condescending" and "elitist" and stated Petitioner's opinion that Respondent should not have contracted with TCC to recruit field instructors because it was a waste of money. Petitioner's letter is entirely coherent, but its tone is agitated and vituperative. It attacks the agency's expenditure of funds to Dr. Henson and TCC and their qualifications. It does not mention Petitioner's age or job applications to Respondent in any way. (P-12) Apparently as a result of yet another of Petitioner's letters dated November 19, 1993, which November 19, 1993 letter is not in evidence, Ms. Radigan, Respondent's Assistant Secretary for Children and Family Services, wrote the following December 16, 1993 memorandum to Deputy Secretary Clary, copying Secretary Towey and the Assistant to the President of TCC. I wanted to give you some feed back on this issue. Mr. Sondel has written many such letters across the last six to eight years. He is very well known by the recruitment and personnel professionals in the Tallahassee area, in both the private and public sectors. Bob Roberts discussed this issue with Mr. Marshall Miller, special assistant to Dr. Henson at Tallahassee Community College (TCC). Mr. Miller suggested that DHRS [Respondent agency] should make no response to or take any action pertinent to the letter. Dr. Henson would prefer that he or his attorney make any response as he sees proper. The field instructor position in question is one of twenty new contracted professionals being recruited state wide that will be located in each district to provide clinical expertise, technical assistance, job coaching and staff training for a four unit staff in the Children and Family Services Program. Due to the nature of the job tasks that will be assigned to the new contracted professionals, the Districts expect that they will have relevant professional training and work experience in public child welfare systems. Please let me know if you have any questions, or wish to have additional information. Emphasis and bracketted explanatory material supplied. (P-11)57. The language emphasized above was not emphasized in Ms. Radigan's original memorandum, but has been characterized in Petitioner's testimony as "the smoking gun" upon which Petitioner relies to demonstrate that Ms. Radigan, via "retaliatory slander", had prevented Respondent agency from hiring Petitioner throughout 1992- 1993. He attributed her remarks to be the result of his letters to the Respondent complaining of age discrimination. Petitioner testified credibly and without refutation that he had never applied for employment with Respondent before the summer of 1992 and that he was first denied employment by Respondent on September 22, 1992. This is accepted. At the time of Ms. Radigan's memorandum, Petitioner had filed no formal charges of discrimination against Respondent. Therefore, it is impossible for any retaliation by Respondent between September 22, 1992 and October 18, 1993, if it existed, to have been based upon formal charges by Petitioner. Petitioner's subjective reading of the Radigan memorandum to the effect that it presents him as a "kook who should not be taken seriously" is one possible interpretation, but otherwise, Petitioner's interpretation is flawed. The Radigan memorandum is dated well after Respondent's last failure to hire Petitioner. That alone is not conclusive to show that its contents did not affect Respondent's hiring process between September 22, 1992 and October 18, 1993 because it could relate back to Respondent's prior retaliatory non- hiring practices. However, a clear reading of the memorandum itself does not permit such an interpretation. First, the memorandum refers to a letter by Petitioner dated approximately a month after the Respondent's last failure to hire Petitioner. Although Petitioner claimed that the Radigan memorandum refers to Petitioner's complaints of age discrimination, that was not proven. Since the Petitioner's November 19, 1993 letter, which the Radigan memorandum addressed, is not in evidence, it is impossible to determine precisely which of Petitioner's complaints Ms. Radigan's memorandum addressed, but even if Petitioner's November 19, 1993 letter had complained of age discrimination, that complaint was made after Petitioner had ceased to apply with Respondent. Therefore, retaliation at that point could not relate backwards to hiring practices already concluded. The letters of Petitioner over six to eight years to which the body of the memorandum refers apparently include his letters to private sector entities as well as government agencies other than Respondent agency. Therefore, the fact that Petitioner had only been applying to Respondent for two, not six or more, years (see Finding of Fact 58, above) does not establish any intentional misstatement of fact by Ms. Radigan. If these letters and Petitioner's November 19, 1993 letter to Respondent all contained complaints of age discrimination, then it was appropriate for Ms. Radigan to report that fact, but there simply is insufficient evidence in this record to determine if that is what happened here. Ms. Radigan's memorandum says nothing to the effect that Respondent should not hire Petitioner, that TCC should not hire him for itself, or that TCC should not recruit him for a position with Respondent. Nothing in the memorandum permits the inference that Ms. Radigan did anything except investigate the situation existing between Petitioner and TCC and report back to her superior all available information, including gossip about Petitioner from both the public and private sectors. Gossip is always reprehensible, but people talking about unspecified letters Petitioner wrote without more does not constitute retaliatory discrimination or age discrimination. Whether the situation between Petitioner and TCC had to do with TCC's failure to recruit Petitioner or with Petitioner's complaint about the cost of Respondent's contract with TCC to do its recruiting is unclear in this record. (P-12) (See Finding of Fact 55 above). If anything, the latter is more likely since in his Charge of Discrimination (P-2), even Petitioner described the Radigan memorandum as addressing "a matter only tangentially related to my employment possibilities." Therefore, no retaliation discrimination for raising the issue of age discrimination has been clearly proven.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying and dismissing the Petition for Relief. RECOMMENDED this 14th day of December, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 14th day of December, 1995.
The Issue Whether Respondent, Milos, illegally terminated Petitioner based on her race (Black), in violation of the Florida Civil Rights Act ("FCRA"), section 760.10, Florida Statutes (2018).
Findings Of Fact The undersigned makes the following findings of material and relevant fact: Petitioner is a Black female who worked for Milos as a line cook. Respondent is a Greek restaurant located in Miami, Florida. On January 12, 2016, Respondent hired Petitioner for a line cook position. Petitioner was interviewed and hired by Arsan. Arsan supervises all back-of-the-house staff and was Petitioner's supervisor throughout her entire 20-month period of employment. On May 30, 2016, approximately four and a half months after Petitioner's hire at Milos, Arsan gave Petitioner a raise in pay because he felt that she was performing well. Many of the employees Arsan supervises at Milos are Black. PETITIONER'S PERFORMANCE ISSUES AT MILOS On September 23, 2016, Petitioner was suspended for insubordination and violating company policies and procedures. Resp. Ex. 7 and 8. More specifically, Arsan was notified by the sous chef that there had been an argument between Petitioner and a coworker. Arsan attempted to investigate the dispute and found Petitioner to be very emotional and aggressive during the investigation. She was asked to leave but refused. Eventually, she left the premises. This incident came on the heels of another similar incident involving a verbal argument with a coworker, which occurred on September 17, 2016. Subsequently, on April 28, 2017, Petitioner was involved in another workplace argument with an employee named Rosa Salazar ("Salazar"). Resp. Ex. 10. The manager on duty intervened and attempted to resolve the dispute and calm the parties down. After he did so, Petitioner left work without permission and left early the following day as well. On June 27, 2017, a third employee named Ishay (a.k.a., Ayse Akbulut) complained that she could not work with Petitioner at their assigned station because Petitioner was "being rude and territorial." Resp. Ex. 11. Arsan spoke to Petitioner and resolved the matter between the two employees. However, he documented the incident as other employees had previously complained about Petitioner creating a hostile working environment. On June 30, 2017, Petitioner reportedly was involved in yet another workplace incident with Sonya Cabret ("Cabret"). Cabret complained that Petitioner made racially charged and demeaning comments to her based on Cabret's Haitian national origin. More specifically, Cabret complained that Petitioner called her an "ignorant Haitian," a "f ing Haitian," and stated that Cabret does not know how to speak English and that Cabret could not find a job anywhere else. Two months prior, Salazar had also complained that Petitioner made derogatory remarks to her based on Salazar's Latin ethnicity. Resp. Ex. 12 and 13. Salazar recounted that Petitioner had called her a "f ing Latino." Arsan disciplined Petitioner by counseling her and sending her home for the day. Each of the above incidents occurred prior to Hurricane Irma in September 2017. The undersigned finds that these incidents, and their related warnings and discipline, are relevant to the ultimate decision to discharge Petitioner and have some bearing on the propriety and necessity for termination. PETITIONER'S FAILURE TO RETURN TO WORK AFTER HURRICANE IRMA At some point in time on Wednesday, September 6, 2017, Arsan informed all employees that Milos would be closed at the end of the work day due to the approaching landfall of Hurricane Irma. Petitioner had been scheduled to report to work on September 6, 2017, at 10:00 a.m., but she did not do so. At 12:40 p.m. on September 6, 2017, Petitioner texted Arsan that she could not report to work because she was evacuating to Georgia due to Hurricane Irma. However, she hoped to return to work the following Tuesday (September 12, 2017). Resp. Ex. 14. After the hurricane had passed, on September 10, 2017, Arsan sent a group text message to all back-of-the-house staff alerting them that the restaurant was "closed for Monday" (September 11, 2017) and "we will be probably open for Tuesday" (September 12, 2017). Resp. Ex. 15. Petitioner received this text message. Petitioner never informed Arsan that she would not be back from Georgia by September 12, 2017, as she mentioned in her text message on September 6, 2017. Believing Petitioner would be back in Miami on September 12, 2017, Arsan scheduled Petitioner to work Wednesday, September 13, 2017. Resp. Ex. 16. On September 13, 2017, Petitioner did not call in or report for work. That same day, Arsan called Petitioner to find out why she did not report to work. Petitioner did not answer or return Arsan's call. On September 14, 2017, Petitioner again failed to call in or report for work. Arsan again attempted to reach Petitioner by telephone, but she did not answer. Arsan then sent Petitioner a text message notifying her that she was scheduled to be at work. Petitioner responded to Arsan's text messages on September 14, 2017, and the following discussion ensued: Arsan: "Denise you are scheduled to work today[.]" Petitioner: "Nobody called me and told me anything I cannot get out until Tuesday or Wednesday I'll [sic] area was hit bad and the bus is [sic] down here start running Wednesday[.]" Arsan: "Denise everybody is at work except you. How the bus starting [sic] on wednesday, [sic] half of staff is using the bus and they are here, The buses working [sic] fine." Petitioner: "When you come to my family I don't care about no job [sic] that's not my life we had an emergency down here we don't have any lights some of the buses is not running my house got water in it I am coming from Georgia so I might not be back until Thursday I have a lot of stuff to take care of in my house[.]" Arsan: "Please help let [sic] me understand your situation are you in Miami? or Georgia? Petitioner: I will be in Miami tonight I still have a lot of stuff to do at my. . . . Resp. Ex. 14. Arsan and Petitioner did not have any further communications after this text message exchange. Further, Petitioner did not initiate or attempt to send any more text messages to Arsan after the September 14, 2017, exchange. Petitioner did not report for work scheduled on September 15, 16, 17, 18, 19, or 20. Petitioner testified that she did not report to work from September 13, 2017, to September 20, 2017, because she was attending to damage to her home caused by the hurricane. Based on Petitioner's text message that she does not "care about no job [sic]," Arsan, after consulting with Milos' outside contracted human resource company, removed Petitioner from the schedule for the week of Monday, September 18, 2017, to Sunday, September 24, 2017. On September 21, 2017, Petitioner showed up at Milos to work. Arsan believed Petitioner had abandoned her job and did not expect her to report to work again. After she arrived, Arsan directed Petitioner to speak to Faundez, Milos' outside human resource representative at Eleva Solutions. Contrary to what Petitioner told Arsan (i.e., that she missed work because she was attending to damage in her home from the hurricane), Petitioner gave Faundez three different reasons for her failure to call in or show up for work the preceding week: she did not know that she was supposed to be at work; there was no bus transportation; and (c) Petitioner had to be evacuated. Faundez concluded that Petitioner's reasons for failing to appear for work were inconsistent and conflicted with each other. She also did not believe that Petitioner had provided a definitive or plausible answer explaining why she had not returned to work. After consultation, Faundez and Arsan decided together to terminate Petitioner's employment. Arsan was not the sole decision-maker with respect to Petitioner's termination. Prior to her termination and despite having received Respondent's antidiscrimination policy and complaint procedures, Petitioner never complained that Arsan was discriminating against her because of her race. During the course of the hearing, Petitioner was unable to identify any employee(s) outside of her protected class who engaged in the same conduct and were not terminated from employment. Specifically, on cross-examination, Petitioner admitted that she was unable to identify a single non-Black employee who failed to show up for work following the hurricane and who was not terminated from employment. The evidence Petitioner offered to support her race discrimination claim was vague, unpersuasive, and included only conclusory and general allegations by her that Arsan "was a racist" and is a "nasty human being." There were no emails, texts, documents, or other direct evidence from Petitioner or Arsan supporting her claim that she was fired by Milos because of her race. Likewise, Petitioner called no witnesses to offer any compelling facts or circumstances to support her claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief with prejudice and find in Respondent's favor. DONE AND ENTERED this 23rd day of October, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2018.
The Issue The issue is whether Respondent, Miami-Dade County (County), discriminated on the basis of age in violation of the Florida Civil Rights Act (FCRA), when it did not hire Petitioner, Omar Garcia, Jr.
Findings Of Fact Petitioner is a 54-year-old male who submitted over 300 job applications to the County from May 2018 to August 2019. The County is a political subdivision of the State of Florida. It has approximately 25,000 full time employees and 3,000 part time employees. The County is an "employer" as defined by section 760.02(7). Between January 2018 and the date of the hearing, the County received over 820,000 applications for employment vacancies. Less than one percent of these applications resulted in an applicant being hired by the County. In other words, over 99 percent of the applications submitted to the County were rejected. Although Petitioner's resume and employment applications were not entered in evidence, Petitioner testified he holds a business administration degree from California State Polytechnic University Pomona. He also had 27 years of experience as a federal law enforcement officer, including with the United States Department of Homeland Security (DHS). Petitioner resigned from DHS in lieu of termination after he was arrested on a domestic violence charge. That charge was eventually nolle prossed. He did not reveal to the County that he had resigned in lieu of termination from the DHS position, or that he had been arrested or charged with domestic violence. Again, because the applications were not in evidence it is unclear if Petitioner was required to disclose this information. Prior to resigning from DHS, Petitioner began applying for positions with the County in May 2018. Petitioner was not discerning in selecting the positions for which he applied. He submitted applications for a wide assortment of occupations including administrative, clerical, financial, law enforcement, and human resource positions. The specific positions included, but were not limited to, the following: Account Clerk, Administrative Secretary, Airport Operations Specialist, Aviation Property Manager, Bus Stock Clerk, Contracts Officer, Corrections Officer, Finance Collection Specialist, Fleet Management Specialist, Library Assistant, Fire Investigator, Paralegal, Real Estate Advisor, Risk Management Representative, Tax Records Specialist, Storekeeper, Victim Specialist, and Water and Sewer Compliance Specialist. Submitting an application is the initial step in the County's hiring process. Once the application is received, it is screened by a computer software system to determine whether the applicant meets the minimum eligibility requirements of the position. The County's Human Resources department forwards those applications deemed "eligible" to the County department hiring for the position. The hiring department then reviews the applications sent by Human Resources to determine if the applicant is "Qualified." To be "Qualified," an applicant must meet the minimum eligibility requirements, and then specific qualifying criteria imposed by the hiring department. For example, for a secretarial position the County may receive 500 eligible applications for one position, but cannot interview all 500 applicants. To whittle down the applicants, the hiring department may have additional requirements such as a certain number of years of secretarial experience, or experience in specific professional areas. The hiring department interviews those applicants with the best qualifications and/or most relevant experience. The unrebutted evidence established that an interview is required prior to selection for a position. Failure to attend an interview would ruin the applicant's chances to be hired. Out of the approximately 300 applications Petitioner submitted for various positions, he met the minimum eligibility requirements for 96.3 Out of the 96 applications forwarded by Human Resources, Petitioner was deemed by the hiring departments to be "Qualified" for 60 positions, and deemed "Not Qualified" for 36 positions. Of the 60 for which he was deemed "Qualified," he was offered interviews for two positions in law enforcement. Of the two interviews he was offered, he only attended one.4 There was no evidence that anyone in the County's hiring process knew Petitioner's age. The County established that it does not ask for applicants to reveal their age on the County job application, nor is the age or date of birth transmitted to the hiring department. There was also no evidence of the ages of the selected applicants who filled the specific positions for which Petitioner applied.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Omar Garcia's Petition for Relief. DONE AND ENTERED this 7th day of December, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Marlon D. Moffett, Esquire Miami-Dade County 27th Floor, Suite 2810 111 Northwest 1st Street Miami, Florida 33128 (eServed) Omar Garcia 4670 Salamander Street Saint Cloud, Florida 34772 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
