The Issue The issue is whether the Petition for Relief should be dismissed as untimely because it was received by the Florida Commission on Human Relations (Commission) more than 35 days after the date of the Commission's "no cause" determination.
Findings Of Fact The following facts, which are assumed to be true for purposes of considering Respondent’s motion to dismiss,” are contained in the Petition and the related documents referred by the Commission to the Division: 1. On or about October 1, 1999, Petitioner filed a charge of discrimination with the Commission. 2. The charge alleged that during the course of her employment with Respondent, Petitioner was "subject to a racially and sexually hostile work environment" and that she was “subject to disparate treatment in terms of scheduling, job assignments, work conditions, promotions and disciplinary actions." The charge further alleged retaliation by Respondent as a result of Petitioner's complaints regarding the discriminatory treatment. 3. The Commission staff investigated the charge, and based upon that investigation, the Executive Director of the Commission issued a "no cause" determination on August 27, 2002. On that same date, notice of the determination was sent to Petitioner by U.S. Mail. 4. The notice stated in relevant part: NOTICE OF DETERMINATION: NO CAUSE PLEASE TAKE NOTICE that a Determination has been made in the above-referenced complaint that there is no reasonable cause to believe that an unlawful employment practice has occurred. A copy of the Determination is attached. [Petitioner] may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. * * * If [Petitioner] fails to request an administrative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). (Emphasis supplied) . 5. Included with the notice was a blank Petition for Relief form, which Petitioner completed and sent to the Commission. 6. The Petition, like the charge of discrimination, alleges that Petitioner “was subject to a racially and sexually hostile work environment." 7. The Commission received the Petition on October 16, 2002, as shown by the date-stamp on the Petition. 8. There are no allegations in the Petition which explain the delay between the Commission's determination and the filing of the Petition. However, at the telephonic hearing on the motion to dismiss, counsel for Petitioner stated that the late filing of the Petition resulted from Petitioner’s mistaken assumption that weekends and holidays were not to be included when calculating the 35-day deadline for filing the Petition. 9. There is nothing to suggest that either the Commission or Respondent contributed in any way to Petitioner’s mistaken assumption regarding the calculation of the 35-day deadline. 10. Petitioner was apparently not represented by counsel at the time she filed the Petition.
Conclusions For Petitioner: Joseph P. Hoffman, Esquire 1415 Dean Street, Suite 110 Fort Myers, Florida 33901 For Respondent: Gordon R. Leech, Esquire Wiederhold, Moses & Rubin Brandywine Center II, Suite 240 560 Village Boulevard West Palm Beach, Florida 33409
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. _ | ; DONE AND ENTERED this / | day of April, 2003, in Tallahassee, Leon County, Florida. a, Ee To fod wore & T KENT WETH@RELL, Administrative Law guage Division of Administrative Hearings The DeSoto Building 1220 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 Pt Administrative Hearings this [ st day of April, 2003.
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact Petitioner, Howard B. Steele, a black male, has been employed with the City of Lynn Haven since October, 1981. At the time he sought employment, Petitioner applied for the position of meter reader "or any available position." A meter reader position was not available, so Petitioner accepted a position in the sanitation department, picking up garbage. Three months after his employment, Mr. Steele was transferred to the street department to work on the trash truck. The trash truck crew picks up yard trash. During the summer of 1984, Mr. Steele was selected to assist with the maintenance and upkeep of the parks during baseball season. Parks and recreation was a part of the street department, and at all relevant times, was a two-man unit. When baseball season was over, Mr. Steele and his coworker would work in the sanitation department. In 1986, Mr. Steele and another coworker were assigned to handle the parks and recreation responsibilities exclusively during the entire year. Mr. Steele was no longer required to work in the sanitation department. The City of Lynn Haven is a municipality chartered pursuant to Laws of Florida, 1951, Ch. 27685, Sec. 5. At all relevant times, Lynn Haven employed approximately 98 persons. Of the 98 employees, fifteen are black and constitute approximately fifteen percent of the City's work force. The general population of non-whites in Lynn Haven and Bay County is approximately 13.8 percent and 14.3 percent, respectively. The general population of blacks in Lynn Haven is 10.1 percent. However, the City's qualified applicant pool is significantly less than ten percent. 1/ When the City's percentage of blacks in the work force is compared to the qualified applicant pool or even to the general population figures, it is apparent the City has no hiring practices or policies that disproportionately impact on blacks. In 1979, Lynn Haven adopted a Position Classification and Pay Plan (the Plan). The Plan has been slightly modified over the past ten years. The Plan includes eight general job classifications, as follows: Administrative, Clerical, Labor, Public Safety, Equipment Operation, Refuse, Utilities, and Supervision. Each job classification has a corresponding pay range that can be adjusted in exceptional circumstances. Salary increases are obtained primarily by two methods: cost-of-living raises and merit raises. 2/ Currently, both raises are given annually to all employees. However, prior to June 1989, merit raises were given biannually. A merit increase is not automatic but is given in conjunction with an annual evaluation on the employee's anniversary date of employment. Merit raises generally range from zero to five percent within the job's pay range. Consequently, while an employee is always eligible for a cost-of-living increase, it is possible for an individual to reach the maximum salary level for his or her position and no longer be eligible for a merit increase. Additionally, under the Plan, if an employee is demoted for just cause, the demotion may be in the form of a reduction in pay or to a lesser job classification. If, however, the demotion is due to an employee's inability to perform his or her work because of health or other reasons, there is no change in the employee's pay unless recommended by the department head. Therefore, it is possible for a person to be demoted into a lower job classification and make more money than a person with more seniority already in the lower job classification. The demotion policy is facially neutral and works to the advantage or disadvantage of blacks and whites equally. In 1981, when Mr. Steele was hired, he was paid $3.35 per hour. At that time, the salary range for unskilled laborers was $2.67 to $3.74 per hour. Currently, Mr. Steele is essentially an unskilled laborer with seniority in the parks and recreation unit. He is primarily responsible for maintaining the cleanliness of the city parks. This includes mowing the grass, cutting the shrubbery, and making minor repairs. Mr. Steele also lines the playing fields before ball games. While Mr. Steele does delegate assignments and duties to his crew member, Tommy Flanders, and is sometimes required to supervise community service workers, he does not function as a department head or have the responsibilities of a foreman such as Mr. Gray or Mr. Marlowe who hold foreman positions. During his employment, Mr. Steele has received a written reprimand for falsifying a time card and has also had a well-documented problem with absenteeism spanning several years. Since his employment in 1981, Mr. Steele has been given a cost-of- living increase each year he has been employed with the City. Mr. Steele has also received the appropriate number of merit raises. None of these raises were inequitable or discriminatory. Mr. Steele received his first merit increase in July, 1982, and his second merit increase in April, 1983. Under the policy existing at the time, merit increases were given every two years. Mr. Steele, however, received an extra merit raise because of his job performance. In 1985, Mr. Steele, along with approximately 20 other white and black employees, were eligible for a merit increase. However, the City inadvertently failed to give these employees their raises. The missed raises were due exclusively to an oversight by the City and were corrected in 1986 when they were discovered. In 1986, Mr. Steele was given a 15% salary increase which included his annual cost-of-living raise and a two-step merit increase. In 1987, Mr. Steele was given a cost-of-living raise but not a merit increase. As noted above, merit increases were given biannually, and because Mr. Steele had received a two-step merit increase in 1986, he was not entitled to a merit increase in 1987. On November 3, 1988, Mr. Steele received a merit increase which raised his salary to $6.91 per hour. The following June (1989) the compensation policy was amended to permit merit raises annually. Under the new policy, Mr. Steele was eligible for a merit increase in October, 1989. Once again, the City inadvertently failed to give Mr. Steele his merit increase in 1989 but corrected the oversight retroactively. 3/ On March 10, 1990, when Mr. Steele filed his Charge of Discrimination, he was being paid $7.44 per hour. On October 29, 1990, Mr. Steele received a merit raise which brought his salary to $7.55 per hour, and on December 28, 1990, Mr. Steele received a cost-of-living raise which brought his rate of pay to $7.78 per hour. 4/ Mr. Steele has received other raises since 1990 and is currently making $8.82 per hour. It is undisputed that Tommy Flanders, Mr. Steele's white co-worker with less seniority in the parks and recreation unit, was at one time paid a higher hourly rate than Mr. Steele. Mr. Flanders was hired in April, 1981, in the fire department as a paid fireman. Mr. Flanders had been a volunteer fireman with the City since 1968. Mr. Flanders was unable to get state certification because of a vision problem, and upon denial of a fireman's certification, he was demoted to the sanitation department. He worked in this job approximately two months and then moved to Pensacola after a work-related injury. Mr. Flanders returned to Lynn Haven in August, 1985, and was hired by the City as a truck driver in the street department at a rate of $4.21 per hour. Mr. Flanders' pay was consistent with the City's pay classification system. He was promoted to Step 1 foreman in February, 1986, at a rate of $5.96 per hour. Mr. Flanders remained in the sanitation department until he was injured in another job-related accident in August, 1988. When he returned from workers' compensation leave to light duty in November, 1988, Mr. Flanders was assigned to the parks and recreation unit as a crew member with Mr. Steele. Although this was essentially a demotion, the City's demotion policy permitted Mr. Flanders to maintain the same hourly rate of pay he received as a foreman with the sanitation department. This created an unfortunate situation for Mr. Steele, who had been in the recreation unit longer and had more experience in the parks and recreation unit than Mr. Flanders. However, the pay disparity was consistent with the then-current pay and classification plan and is one reason the City began to move toward adoption of a new compensation and job classification plan. Mr. Flanders' current hourly rate is $8.45 per hour. John Barnes, a black male, is presently employed with the City as a meter reader at the rate of $9.55 per hour. Mr. Barnes was hired as a sanitation worker in 1980 at the rate of $3.35 per hour. Mr. Barnes was promoted to truck driver and then to backhoe operator. In 1987, he was encouraged by the City to apply for a firefighter's position. Mr. Barnes was hired as a firefighter. When Mr. Barnes was unable to successfully complete the state certification requirements for firefighters, he was transferred to the street department. 5/ Although this was a demotion, Mr. Barnes, like Mr. Flanders, was permitted to keep his higher pay as a fireman pursuant to the City's Compensation and Pay Plan. Mr. Barnes stayed in the street department until Sammy Oliver, a white male, encouraged Mr. Barnes to apply for a meter reader opening. Mr. Barnes filled out an application and was given the job. He has been a meter reader approximately six years during which Mr. Barnes has received job training in computerized meter reading. James Powell, a black male, worked for the City approximately 22 years before he retired in 1991. At the time of his retirement, Mr. Powell was sign foreman making $10.77 per hour. Although Mr. Powell testified he did not know he was the sign foreman, the payroll records of the City showed that Mr. Powell was classified as "sign foreman." In addition, Mr. Powell admitted on cross examination that, besides himself, numerous other blacks held position outside of the sanitation department, as follows: a black police officer, a black meter reader, a black school guard, two blacks in the recreation unit, and Charlie Smith, a black member of management working in the administrative department of City Hall. Willie Mallard is a black male working in the sanitation department. Mr. Mallard testified that he has worked for the City for ten years, and no one has ever asked him to be foreman. Mallard admitted on cross examination, however, that he had never expressed any interest in becoming foreman. Mallard further testified that the only promotion he ever sought was given to him when it came open. L. D. Marlowe is the current supervisor of the street department. He has worked for the City approximately seven years and is making approximately $11.00 per hour. His position carries greater responsibility than Howard Steele's, and he supervises a greater number of employees than Mr. Steele. Bob Gray, a white male, is the current foreman in the sanitation department. Mr. Gray has worked for the City on two occasions, the latest tenure being in 1987 when he was hired to work on the back of a garbage truck. After two years he worked his way up to foreman. Mr. Grays quick promotion was due to his work ethic and desire to work. Ralph Hester, the former city manager, approached him about the foreman position when Tommy Flanders was demoted in 1987. Mr. Gray had previously expressed to Mr. Hester interest in advancement and was more qualified than Mr. Steele for such a position. 6/ Mr. Gray testified that he is currently making $22,000 a year. However, at the time Mr. Steele filed his first Charge of Discrimination, Mr. Gray was making $8.00 per hour. In 1986, Ralph Hester, city manager at the time, appointed Tommy Flanders, a white male, to be the new foreman of the sanitation crew. Hester's decision was based upon the recommendation of the administrative assistant to the public works director, Jackie D. Cornette. Cornette's recommendation was based on the fact that Flanders was the "best worker." Although Mr. Steele did not express any interest in the position, he objected to Mr. Flanders' promotion. When the promotion was announced at a group meeting, Mr. Steele questioned why Mr. Flanders was given the job instead of other workers with more seniority. Mr. Steele did not ask that he be given the sanitation foreman's position. In 1987, the position of foreman was again open when Mr. Flanders was injured and was placed on light-duty work assignment. Although Mr. Steele did not express any interest in the sanitation foreman's job he was considered for the job, but was rejected because of his excessive tardiness, abuse of sick leave, and his inability to work unsupervised. In fact, Mr. Steele never sought the position or expressed any interest in advancing outside of the recreation unit. Mr. Steele did complain repeatedly that his current position should be better compensated; however, there was no evidence Mr. Steele ever actively sought any other position available under the City's pay and classification plan. Additionally, there was no higher position in the recreation unit under the City's pay and classification system to which Mr. Steele could be promoted. Finally, the evidence demonstrated that the City's promotion policy was based on merit rather than on seniority. However, the evidence did not demonstrate that the City's promotion policy was discriminatory. In fact, black employees who merited promotion were encouraged to seek such promotions and were promoted. The evidence was clear that Mr. Steele was not personally sought for promotion because of his excessive tardiness, abuse of sick leave and his inability to work unsupervised. Mr. Steele's lack of promotional offers had nothing to do with his race. Given these facts, Mr. Steele has failed to establish that he has been subjected to any unlawful employment practice and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED: That a Final Order be entered by the Florida Human Relations Commission denying and dismissing the Petition for Relief filed herein. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10 day of September, 1992. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 10 day of September, 1992.
The Issue Whether the Respondent committed unlawful employment practices as alleged in the Petition for Relief served by mail March 20, 1987. Ten subparagraphs of that Petition address individual allegations, each of which are discussed fully in the following conclusions of law.
Findings Of Fact Petitioner Brahim Derder is a citizen of Algeria with permanent resident status in the United States. At all times relevant, he was an adult male resident of the State of Florida, classified by his employer as "Black." Petitioner is a person within the meaning of Section 760.02(5), Florida Statutes. Petitioner graduated from the University of Miami with a Bachelor's Degree in Industrial Engineering in 1980. Prior to his employment with Respondent American Telephone and Telegraph Information Systems (ATTIS), he was employed from 1981 to 1983 by another subsidiary (Southern Bell) of Respondent's parent company, American Telephone and Telegraph (AT&T), as a marketing representative in Miami, Florida. Respondent ATTIS is in the business of selling and leasing data and voice terminal equipment. Petitioner became an employee of ATTIS in 1984. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. Petitioner was terminated by Southern Bell as a result of his alleged failure to pass one of its required training courses. He was subsequently reinstated as a result of a complaint resolution pursuant to Southern Bell's own internal affirmative action program, also known as an equal employment opportunity (EEO) complaint resolution. Thereafter, Petitioner continued to be uneventfully employed by Southern Bell for about a year. Approximately August 1983, AT&T began preparation for court-ordered divestiture. Divestiture required the separation of the Bell operating companies from AT&T. Petitioner was assigned to a division within ATTIS in Miami due to the divestiture and its resulting reorganization. Once within ATTIS, Petitioner successfully protested through internal ATTIS-EEO channels a "limited contribution" performance rating given him upon his exit from Southern Bell, and obtained a change to "not rated," which rating, in turn, resulted in a modest pay increase. The subsidiaries of AT&T, like their parent company, had established formalized but voluntary internal EEO/Affirmative Action programs. At no time prior to Petitioner's termination by ATTIS in November 1985, did Petitioner file any charges of discrimination with any external governmental agency, including but not limited to the Federal Equal Employment Opportunity Commission or the State of Florida Commission on Human Relations. In 1984, ATTIS downsized its work force and Petitioner's position was "surplused." Petitioner was offered a position with ATTIS in Atlanta, Georgia but rejected it and located a job at ATTIS' Data Systems operation in Orlando, Florida. Once at ATTIS in Orlando, Petitioner worked under the supervision of four different managers in the course of approximately two years until his involuntary termination on November 18, 1985. This was a period of ongoing reorganization for the AT&T subsidiary and personnel changed frequently. Also, normal employee review and appraisal procedures were not always followed to the letter. Nonetheless, none of the four different ATTIS supervisors for whom Petitioner worked in that period of time found Petitioner's job performance to be satisfactory. Petitioner worked under Lowell Rogers' direct supervision from approximately April 1984 until the end of that year. Because Mr. Rogers accepted a position in New Jersey, he was not always available on ATTIS' Orlando jobsite even though he technically continued to have an office there until well into 1985. The written performance appraisal prepared for Rogers' signature reads in pertinent part: Based upon his exposure to training in the areas listed above, his performance has not been what would normally be expected within the given time frames. * * * Mr. Derder must devote both the time, motivation, and sincere desire to learn and adapt to both technical and development tasks which would allow him to be a more productive employee. It appears that other factors (relocation and job classification issues, etc.) consume far too much time and as a consequence, his training and productivity has suffered to date. (P-3, P-4) The appraisal was not, however, wholly negative. Steve Holmes, Petitioner's second supervisor, showed Rogers' appraisal to Petitioner approximately April 22, 1985 without Rogers' signature thereon (P- 3), and Petitioner made the cognitive leap without any valid foundation, that Holmes (not Rogers) had negatively rated Petitioner for discriminatory reasons only. Rogers did not physically sign this negative appraisal until May 16, 1985 (P-4). Petitioner's confusion concerning Rogers' negative appraisal is reasonable because the appraisal had been signed first by Rogers' supervisor, the District Manager, on January 22, 1985, before being returned for Rogers' signature and Petitioner had received a merit increase on his year's employment anniversary in April 1985 based on his 1984 service, but no discriminatory motivation or act was proven with regard to Rogers' evaluation. Steve Holmes was Petitioner's supervisor at ATTIS in Orlando from January 1985 until May 16, 1985. His exit evaluation of Petitioner was also negative as follows: Brahim has been substantially distracted from the performance of his job by an almost obsessive belief that he has been unfairly treated with regard to his transfer into AT&T-IS ... Brahim needs to treat deadlines with more urgency. He needs to plan his work more effectively so as to identify possible problem areas and develop remedies before they become overwhelming. He needs to double check his work for errors in data (typo's) and information ... (P-12) Petitioner's work for Holmes was to gather data for a report on the Integrated Services Digital Network (ISDN) project. The project involved conversion of several small lines and switches to bigger ones at many locations nationwide. The information gathered was generated from numerous sources geographically scattered throughout the United States. Although component information changed daily as the actual switchovers progressed, the overall intent behind the report was to assemble data, collate it into meaningful graphic tables and verbal explanations, and present it as a finished printed report which could be published monthly and presented to higher levels of management so that the past month's progress could be assessed and future planning decisions could be wisely made. Petitioner's view was that a computer/word processor was necessary to complete his task, whereas management felt Petitioner's input prior to typing of the report could be done with paper and pencil or possibly with paper and pencil and a calculator. Petitioner was nonetheless permitted to use an IBM-PC computer assigned to a peer employee. Petitioner felt his ISDN report had to be rewritten entirely each time there were any data changes whatsoever because the different sections within the report were interdependent. Management had contemplated that because the report would be published monthly, at some point each month Petitioner would reconcile all available data for that month and publish the report. Although Petitioner submitted many draft versions of the ISDN report, which was intended to be published monthly, a final version of the report was never completed by Petitioner to Holmes' satisfaction over at least four months of report drafts. Mr. Holmes felt that the Petitioner was not properly assessing the interdependent sections and relating them to one another so as to give an accurate overview for any single month. Early in their association, Holmes called these problems to Petitioner's attention. Holmes had contemporaneously provided Petitioner with an analysis of his May 1985 ISDN submission, pointing out over 300 alleged errors by Petitioner. At formal hearing, Holmes expressed his concerns with regard to several months' submissions by showing one mathematical error of $300,000 on one of Petitioner's submissions, and by indicating that such an error was one example of several similar significant errors made repeatedly by Petitioner. Holmes indicated that the $300,000 error illustrated how the interdependence of rapidly changing data had not been accounted for by Petitioner, who apparently changed data entries piecemeal, as the data became available, without reconciling data as of one single given date each month. Holmes made distinctions between Petitioner's errors of omission, which Holmes had called to Petitioner's attention and which Petitioner often could rectify, and Petitioner's errors of internal contradiction within the reports which Petitioner seemed unable to comprehend. Simply stated, Petitioner always had some part of the report "out of sync" with another or other parts. Petitioner incorrectly attributes Holmes' criticisms of this and all of his ISDN report submissions to mere cosmetic or stylistic opinions or to Holmes' unawareness of the most up-to-date data. Holmes eventually would not accept Petitioner's relying on ISDN project delays (field implementation delays not attributable to Petitioner) as excuses to cover up ISDN report delays which clearly were attributable to Petitioner. Holmes described Petitioner's problem with the entire project as one of Petitioner's inability to conceptualize the project as opposed to Petitioner's unwillingness to do the project. In assessing the two witnesses' respective approaches to the report, Mr. Holmes' explanations are less emotional, more reasonable, more detailed, and more credible than are Petitioner's. Petitioner used ATTIS' internal EEO procedures to protest his performance appraisals by Rogers and Holmes and to object to the paygrade assigned to him when he came to work with Orlando ATTIS. Once in Orlando, Petitioner had discovered that the maximum of his paygrade range at Orlando ATTIS was lower than the maximum of his paygrade range at Miami ATTIS had been. Petitioner showed no reason management should correct Petitioner's inadvertent error but claimed Holmes blocked attempts which otherwise would have been successful to upgrade Petitioner's paygrade. Holmes denies it, stating he had no such authority. Concerning Petitioner's paygrade adjustment request, there is no space on the form requiring anyone in Holmes' position to approve it. Apparently, a higher superior named Ron Phillips signed the request for a concurrence by David L. Oertle and then signed "R.E. Phillips for David L. Oertle" [emphasis supplied] in the space wherein Mr. A Oertle's concurring signature was required (P-10). Why the paygrade adjustment did not go through under these peculiar circumstances or if there were other management considerations why it was not consummated is anybody's guess, but discrimination or interference by Mr. Holmes with regard to the paygrade adjustment request was not proven. Holmes admits he became aware of an internal EEO investigation of himself requested by Petitioner with regard to the failed pay adjustment request as set out infra. The paygrade adjustment was never a "promotion" as characterized by Petitioner. Mr. Holmes does not deny that he was aware in December 1984 that Petitioner had filed two previous internal EEO complaints at Southern Bell and at Miami ATTIS. He discussed these with Petitioner when Petitioner first joined his workforce because one complaint was ongoing and Holmes was afraid it would detract from some of Petitioner's work time. Early in 1985, Holmes noted these concerns in a personal journal he used to record many different kinds of events at his office. Petitioner acknowledged that he threatened Holmes with an EEO complaint at Orlando ATTIS if Holmes would not sign off on the paygrade adjustment request (TR 91). Holmes, already leery of Petitioner, and increasingly dissatisfied with Petitioner's job performance, gradually began to record in his personal journal reminders relating to Petitioner's job performance. In approximately April, 1985, upon suggestions from internal EEO personnel, Holmes began to more carefully document in his journal his confrontations with, and performance-related concerns about, Petitioner. When Petitioner discovered that portions of Holmes' journal relating to him had been circulated by Holmes to upper management, Petitioner perceived Holmes' actions as purely retaliatory for his EEO involvement and prepared by Holmes solely to get Petitioner fired for discriminatory reasons attributable to racial, ethnic, and national bias. I find that although Holmes' journal includes references to Petitioner and Petitioner's EEO involvement, the entries taken as a whole are reasonable under the circumstances and anticipatory of future need to document employee problems rather than evidence of discrimination against an employee for that employee's exercise of EEO involvement. Petitioner's allegations that Steve Holmes was improperly and unlawfully motivated for this journal are not adequately substantiated. Holmes declined Petitioner's request to sign his AB-36 form (P-19) so as to permit Petitioner to transfer divisions within ATTIS because Holmes felt Petitioner's past job performance for him did not merit the transfer to another job in the international or out-of-state geographic areas and in the substantive areas Petitioner had requested and because Petitioner presented the form to him simultaneously with Petitioner's move to another workforce within the same district. Also, the jobs listed were not necessarily open. In that new workforce, Petitioner was supervised by his third supervisor, Gus Schulties, for what was admittedly a very short period of time, approximately three months, one month of which Petitioner was on vacation. The credible evidence as a whole does not establish that Petitioner was transferred due to any belief in the truth of Petitioner's charges against Rogers or Holmes, but that it was in the nature of diffusing a bad situation created by Petitioner and giving Petitioner an opportunity to perform better. Around August 20, 1985, Schulties was reassigned and replaced by Barbara Wayne. Schulties' evaluation of Petitioner includes the following commentary: I think he should have been able to do more on his own effort. I do not believe he has the initiative to get deeply involved. * * * This employee needs development in many aspects of the data communications environment. (P-32) Schulties' written evaluation was signed by Petitioner's next supervisor, Barbara Wayne, because Schulties had been relocated on the date it was due. Later, Schulties concurred in the decision to terminate Petitioner. Mr. Schulties was present when Ms. Wayne fired Petitioner on November 18, 1985. Petitioner had worked for Wayne for approximately three months. While working for Ms. Wayne, Petitioner was orally counselled several times concerning his inability to conceptualize job assignments so as to achieve results, and these sessions were contemporaneously documented by Wayne, whose testimony at hearing was consistent and credible. Petitioner never achieved the objectives which directly applied to his job and which were set for him by Ms. Wayne. While working under Holmes, Schulties, and Wayne, Petitioner produced a number of what might be termed "self-assigned projects" of cosmetic or internal employee relations value, but these projects were not always directly related to the Petitioner's job or his employer's project objectives. While Petitioner established that ATTIS management would not approve all of the company training he wanted, his requests for such training were not always reasonable in relation to the subject matter of projects to which he was assigned, nor were his requests always reasonable in relation to management standards of cost-effectiveness and the employer's need for Petitioner's presence on the job. All of management's denials or non-approvals of training were reasonable in the context of balancing of costs against expected productivity to be gained from the training. Petitioner was, in fact, approved for, and attended, several training courses, and was paid overtime when he taught himself computer programs on nights and weekends, even though the use of the computer was nonessential to his job duties from management's perspective. Petitioner never established by direct credible evidence that other employees in similar circumstances at ATTIS Orlando were given the training he was denied or that his job truly required the training which he was denied. Petitioner speculated that certain employees resented him because he had a Bachelor's Degree which they did not have, but "college graduate" is not a statutorily protected classification. Several employee witnesses had at least some college courses. A college degree was not necessary for employment or promotion at ATTIS. Employee resentment that Petitioner did not meet deadlines and avoided necessary tasks he felt were below him did exist. Petitioner's initial internal (P-15, P-16) and external (P-40, P-41) complaints did not raise an issue of verbal slurs of national or racial tone, but his Petition for Relief does. At hearing, Petitioner initially accused supervisors Wayne and Holmes, and a coworker, Shipp, of making ethnic jokes and derogatory comments about Petitioner's race and national origin. However, Petitioner conceded that neither Schulties nor Rogers were ever out of line and that Wayne had very little conversation with Petitioner about his ethnic background or race. Petitioner testified that his relationship with Mr. Shipp was satisfactory except that Mr. Shipp repeatedly made comments and jokes concerning Petitioner's light skin and not being as black as a typical African; wanted to know about Petitioner's wife when Petitioner told Mr. Shipp that he had married a black woman; made some discriminatory comments concerning Petitioner's education and schooling in Africa; referred to Petitioner's family as "zebras" and "camel drivers," and suggested Petitioner had bought his University degree. As might be expected, all ATTIS personnel denied making any racial or ethnic slurs. Giving Petitioner every benefit of the doubt that some hurtful, biased comments may have been made by Shipp and Holmes, Shipp was only Petitioner's team leader for a short period of time when Petitioner was assigned to Barbara Wayne, and he was essentially Petitioner's peer. Shipp, like other employees, had input to Wayne's final evaluation, but he was not the sole source of Wayne's displeasure with Petitioner's performance, and Shipp never evaluated Petitioner. Petitioner was transferred away from Holmes' supervision in response to Petitioner's internal EEO complaints against Holmes, which complaints apparently were never verified by EEO and which complaints apparently never alleged any record of ethnic or racial slurs by Holmes. Petitioner concedes that he did not wish to make much of the comments and jokes around him and also took offense at most of his coworkers declining his invitations to coffee and lunch. Shipp did occasionally eat and take breaks with him. There apparently was little socializing in this workforce and Petitioner seemed to misunderstand that. It was also clearly established that the Respondent employer has in place an aggressive internal anti-discrimination grievance and affirmative action policy and procedures which Petitioner had free access to and which repeatedly gave him the benefit of the doubt. It was also affirmatively put forth by Petitioner that he made a point of confronting Mr. Schulties, Ms. Wayne, and Mr. Shipp and of telling each of them that he had had successful internal EEO actions, and/or that he had complained about Holmes before any one of them had any significant contact with him. (TR 176-177, 242, 251-252). Petitioner also affirmatively put forth that he "begged" Schulties and Wayne not to be prejudiced against him almost upon first meeting with each. I conclude that this overly aggressive and hypersensitive behavior on Petitioner's part resulted in his misconstruing some conversations and constituted a non- pretextual reason for Wayne to carefully document each meeting with Petitioner. Petitioner showed that one employee (Karnes) was negatively rated by Ms. Wayne for the first time but was permitted additional time to improve his performance without immediate termination, but Karnes' single negative evaluation does not correlate to Petitioner's negative ratings from four successive supervisors so as to demonstrate unequal treatment of Petitioner. Petitioner perceives all criticisms of, or negative comments about, his job performance as incorrect and without merit but the accuracy of his perception has not been adequately substantiated in this proceeding, and I find that his poor job performance was his employer's and supervisors' primary motivation in terminating Petitioner's employment. Petitioner's charges of discriminatory treatment are based largely on his perception or conjecture that there could be no nondiscriminatory reason for management's actions since he had the academic qualifications to do the job and the willingness to do it. However, his repeated failure to timely complete projects to his employer's specifications is sufficiently documented in the record. Petitioner's education and ability notwithstanding, Petitioner's performance was unacceptable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Human Relations Commission enter a Final Order dismissing Petitioner's Petition for Relief. DONE and RECOMMENDED this 25th day of February, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1258 The following constitute rulings pursuant to section 120.59(2), Florida Statutes, upon Petitioner's and Respondent's respective proposed findings of fact (PFOF). Petitioner's PFOF 1-2. Except as subordinate or unnecessary covered in FOF 1. 3-4. Irrelevant. Except as irrelevant, covered in FOF 1. Rejected as not supported by the greater weight of the credible competent evidence but see FOF 22. 7-18. The only relevant and material history of Petitioner's relationship with Southern Bell is set forth in FOF 3. To the extent these proposals are not covered there, they are irrelevant or immaterial to any dispositive issue in this cause. 19. Covered in FOF 6. 20-23. Except as covered in FOF 6-7, rejected as immaterial. Covered in FOF 8. Not supported by the greater weight of the credible competent evidence as set forth in FOF 8. Job descriptions are not dispositive of any material issue in this cause. Petitioner received oral and written job descriptions at appropriate times. Covered in FOF 9. Covered in FOF 9-10. 28-29. Rejected as not supported by the greater weight of the credible competent evidence which resulted in the FOF 12-13. Had uppermost management approved the change, it would have gone through and there is insufficient proof it was justified just because Petitioner inadvertently accepted a lower pay grade and meant to accept a higher pay grade or that Petitioner interpreted a lateral transfer as being lateral in all respects including salary, when it was not. Peripherally, see the conclusions of law (COL). 30-32. Subordinate and unnecessary but it is noted that Petitioner's PFOF 31-32 admits receipt of a job description in this position and workforce. See peripherally FOF 11. Covered in FOF 11. Immaterial. 35-40. The proposals are mostly mere recitations of part of Petitioner's testimony as opposed to statements of ultimate or even material fact. Additionally, as stated, these proposals are not supported by the greater weight of the credible evidence as a whole. See FOF 11. 41-42 and 44. Immaterial and not dispositive of any issue at bar. 43 and 45. Covered in FOF 10-11, and 22. Rejected as not supported by the greater weight of the credible evidence as a whole. Moreover, Petitioner admits elsewhere in the record that if being told why and how his job performance needed improvement was counselling, the counselling occurred. The Hearing Officer recognizes that "counselling," "criticism," and "harassment" are all subjective words and has considered both the credibility and perspective of all witnesses' testimony and has considered all the documentary evidence in making these findings of fact. Covered in FOF 11. 49. Rejected as not supported by the greater weight of the credible evidence and as related in FOF 11. 48, 50-52. Except as subordinate and unnecessary, covered in FOF 8- 10. Except as subordinate and unnecessary, covered in FOF 19. Covered in FOF 12-13. Covered in FOF 10. There was some overlapping of supervisory- authority as found in FOF 7-12. However, the minimum inconsistencies in testimony and documentation recited by Petitioner's proposal are accounted for due to early failure to document, the on-again, off-again supervision of Mr. Rogers, and Petitioner's mid-year transfer to Mr. Schulties' supervision. Petitioner's proposal is therefore not consistent with the record as a whole, is immaterial, and is not dispositive of any material issue at bar. 56-72. FOF 13-14 cover relevant facts as supported by the greater weight of the credible competent evidence as a whole. Petitioner's proposals are not consistent among themselves and are mostly recitations of Petitioner's testimony concerning his own internal but unsubstantiated perceptions of events, and are rejected for those reasons and in certain respects, as demonstrated by the facts as found in FOF 13-14 and FOF 22, are not supported by the record as a whole. Other rejected material is rejected as subordinate or unnecessary as is also demonstrated by the ultimate facts as found in the recommended order. Rejected as not supported by the greater weight of the credible evidence as a whole. See FOF 11. Most of this proposal is rejected as subordinate and unnecessary. The remainder is rejected as not supported by the record as a whole. See facts as found in FOF 12- 15, and 20. Covered in FOF 20. 76 and 78. Subordinate and unnecessary and not dispositive of any issue at bar. 77. Rejected as not supported by the greater weight of the evidence as a whole except as covered in FOF 18. 79. Covered In FOF 17. 80-81. To the extent supported by the greater weight of-the credible competent, substantial evidence of record, these PFOF are covered in FOF 15-16; otherwise rejected as not so supported. 82, 86, 87. Rejected as not supported by the greater weight of the credible evidence as a whole and as not dispositive of any issue at bar; Petitioner received a job description under a different title plus considerable oral explanation. If Wayne did not reply in writing to every memorandum, it is immaterial. 83-85. Rejected as-covered in FOF 18. Petitioner did not establish that employees in similar circumstances were given more or different training than he was denied. 88-99. Again these are largely recitations of Petitioner's testimony rather than statements of ultimate fact. None are necessary or dispositive of a material issue at bar. The requests for additional work are immaterial since Petitioner was consistently being told he was not satisfactorily completing his basic assignments. See FOF 16, 20, and 22. Petitioner's PFOF 97 and 98 are also immaterial in that Petitioner appropriated all team credit to himself and passed off all personal inadequacies onto the team. See FOF 17 and 22. Except as set out supra, the PFOF 88-99 are subordinate and unnecessary. 100. Subordinate and unnecessary, but see FOF 16 and 17. 101-104. Except as subordinate and unnecessary or as not supported by the greater weight of the credible evidence, covered in FOF 19-20. 105-107. Rejected as stated because they are misleading of the record as a whole. Subject matter covered in FOF 15-16 and 20. 108-114. Except as subordinate or unnecessary or as not supported by the greater weight of the evidence, covered in FOF 15-16. 115. Unnecessary. Respondent's PFOF 1,3. Covered in FOF 1. 2. Covered in FOF 2-6. Covered in FOF 7, 15-16. Covered in FOF 1-6. 6-8. These proposals are generally rejected because they consist of many paragraphs, sentences, footnotes, and quotations which are not appropriately divided out and numbered pursuant to Chapter 120, Florida Statutes, and Rules 22I-6.24 and 22I-6.31, Florida Administrative Code, and instructions contained in the post-hearing order and authority cited therein, and which contain lengthy and burdensome recitations from documentary exhibits and of testimony rather than statements of ultimate facts to be found. Further, they contain large quantities of subordinate and unnecessary material interspersed with mere argument of counsel. Where they could be accepted, they are covered in FOF 7- 22. COPIES FURNISHED: Donald A. Griffin, Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Vidal Marino Velis, Esquire 2100 Coral Way, Number 300 Miami, Florida 33145 Sherryll Martens Dunaj, Esquire 501 City National Bank Building 25 West Flagler Street Miami, Florida 33130
The Issue The central issue in this cause is whether Petitioner abandoned his position and thereby resigned his career service position at Children, Youth, & Families Services.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner was employed as a counselor working with the District XI Children, Youth, & Families (CYS) Services. Petitioner was assigned to monitor approximately twenty-five foster care children. After some past employment disputes, Petitioner was reinstated by the Department effective March 31, 1987. Petitioner returned to work on April 17, 1987, however, he was not satisfied with the working environment. In a memorandum dated April 22, 1987, Petitioner alleged: The same pattern of capricious, arbitrary and discriminatory practices which led to my previous illegal dismissal from services at a time I was disable, as the result of an accident which had occurred while fulfilling my duties for this Department, are still present. All my fundamental rights have been thoroughly violated. Even workman compensation has been denied to me. With so painful experience and in light of outstanding losses I have consequently suffered, any idea of subsidizing HRS with my own car, car insurance, car repairs and advance funding for gasoline purchase as an obligatory condition for employment at CYF is being rejected as unfair practices; and violate the equal Employment Opportunity Laws. Various efforts made to have this abusive situation corrected have been met with the flagrant opposition of fierce administrators of this department, totally obstinated not to let fairness and logic prevail. In light of all these facts, it is my conclusion that my interests can be better preserved by my abstention from any involvement at HRS until these matters are properly attended by your diligence in the best of the delays, or by a court of law. In consequence effective Friday April 24, 1987 I have decided to temporarily not to be in attendance at Unit 462 Foster Care. In response, the District Program Manager for Social Services, Frank Manning, wrote to Petitioner on April 23, 1987, and advised him that failure to report to work as scheduled would be cause for action pursuant to Chapter 22A- 7.010(2). Petitioner failed to appear or to call in to work for hour consecutive work days, to wit: April 27-30, 1987. Petitioner was not authorized to take leave during the time in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Administration enter a Final Order affirming the decision that Petitioner abandoned his position and thereby resigned from the Career Service. DONE and RECOMMENDED this 5th day of February, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1988. COPIES FURNISHED: Morton Laitner, Esquire Dade County Health Unit 1350 North West 14th Street Miami, Florida 33215 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Louis C. Germaine 308 Northeast 117th Street Miami, Florida 33161 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged by Petitioner.
Findings Of Fact Age Discrimination Petitioner, Ila Sharpe, was employed by FCHR from June 28, 2002, until February 6, 2006. Regina Owens is the housing investigations manager for FCHR. In approximately May 2004, Ms. Owens hired Petitioner into the housing unit upon the suggestion of the deputy director, Nina Singleton. Ms. Owens placed Petitioner in a vacant Senior Clerk position under her supervision in the housing unit. At the time, Ms. Owens became Petitioner’s supervisor, Ms. Owens was 51 years old. Petitioner was approximately 50 years old at that time. After Petitioner was in the Senior Clerk position for six or seven months, Ms. Owens promoted Petitioner to the position of Investigation Specialist I. Ms. Owens waived the requirements of a college degree and investigative writing experience for this new position, because Petitioner already worked for FCHR and had expressed an interest in moving up. The Investigator Specialist I position is a Selected Exempt Service position which included investigating cases, as well as “intake” duties. Ms. Owens explained to Petitioner that she would be doing investigations after about four months on the job. Petitioner was promoted to this position in January 2005. Ms. Owens sent Petitioner to Washington D.C. for training on three occasions in 2005: February, June, and December. Each training session lasted about a week and was conducted by the National Fair Housing Training Academy. After attending the February week-long training session, Petitioner continued to perform solely “intake” duties. Following the February training, Ms. Owens asked Petitioner if she was ready to take on an investigative caseload. Petitioner indicated that she was not ready to do so at that time. After Petitioner attended the June 2005, training session, Ms. Owens again spoke to Petitioner and determined that Petitioner was still not ready to take on investigative duties, although she had been in the position more than four months. In September 2005, Ms. Owens had e-mail communications with Petitioner, which gave her cause for concern that Petitioner might not know the answers to matters on which she had received training. In particular, Ms. Owens was concerned that Petitioner’s e-mail responses to her indicated that Petitioner was confused as to whom an investigator should be dealing with in a particular situation. Petitioner attended the third week-long training session in December 2005. After a discussion with Petitioner, Ms. Owens was still concerned about Petitioner’s reluctance to take on investigative duties despite her training and length of time on the job. Petitioner had been in the investigator specialist position for nearly a year but never investigated a case. In late December 2005, Ms. Owens developed a test for employees of the housing unit. The purpose of the test was to test employees’ working knowledge of the HUD manual and research skills in using the manual, specifically regarding the intake process. The “Housing Unit Intake Test” was based on the HUD manual, which is the book that all investigators have and use. The test was similar to the test the investigators had to take in Washington during training. The test developed by Ms. Owens is now given to all new investigators during their training. On January 5, 2006, Petitioner was first given the test using a “closed book” administration. The test pertained to the HUD manual materials, and Petitioner was given an hour to complete the closed book test. The purpose of the closed book administration was to assess the employee’s working knowledge of the subject matter. Petitioner scored ten correct answers out of 34 test questions. On January 6, 2006, Ms. Owens again gave Petitioner the same test questions. However, this second administration of the test was “open book” with two hours allowed to take the test. The open book administration was designed to assess the employee’s ability to do research, find the answers in the HUD manual, and to answer the questions correctly. Petitioner scored 11 correct answers out of 34 test questions. Also on January 6, 2006, Ms. Owens administered the same test to investigation specialist Julina Dolce. Ms. Dolce’s score on the closed book test is unclear from the record. However, on the open book test, Ms. Dolce received a score of 27 correct answers out of 34 test questions. After taking the test, Petitioner spoke to Ms. Dolce about what was on the test. However, there is no evidence in the record that Ms. Owens was aware that Ms. Dolce had a “heads up” on the test content prior to taking the test. The test was also given to Marshetta Smith on January 6, 2006. At the time she took the test, Ms. Smith was a senior clerk who did not do much intake work, and was approximately 30 years old at the time. While not an investigator, Ms. Smith was given the test to assess her working knowledge and research skills for potential upward mobility. Ms. Smith had 11 correct answers out of 34 test questions. Ms. Smith has since been terminated from employment with Respondent. About two weeks after administering the first test, Ms. Owens administered a different test, the “55+ exam”, which pertained to housing regulations for older persons. Petitioner scored 14 correct answers out of 20 test questions on the closed book administration and 16 correct answers out of 20 test questions on the open book administration of the test. Based upon her reluctance to take on an investigative caseload and upon her poor performance on the intake test, it was determined that Petitioner would be demoted to a senior clerk position. A meeting was held on January 26, 2006, with Ms. Owens, Petitioner, and the human resources manager, informing Petitioner of the intended demotion to be effective February 10, 2006. On January 30, 2006, Petitioner submitted her letter of resignation to Ms. Owens effective February 6, 2006. Her resignation was accepted, effective the close of business February 6, 2006. Consequently, the demotion did not take place as Petitioner resigned from employment with Respondent prior to the effective date of the intended demotion. After Petitioner’s resignation, Respondent moved Ms. Dolce into Petitioner’s position of investigation specialist. At that time, Ms. Dolce was 31 years old. While making a vague assertion that Ms. Owens made innuendos regarding younger people “some time ago”, Petitioner acknowledged that Ms. Owens never said anything derogatory to Petitioner about her age. Sherry Taylor began working at FCHR in 1999 as a senior clerk. She moved into an investigator position in April 2000. When Ms. Owens came into the housing unit in 2004, Ms. Taylor was an investigator II. Ms. Taylor was demoted in the fall of 2006 to an investigator I because the quality of her work “went downhill." At the time of her demotion, Ms. Taylor was 30 years old. There is no competent evidence that FCHR used age as a criterion in its decision to demote Petitioner. Timeliness Petitioner sent a document entitled “Technical Assistance Questionnaire for Employment Complaints” to the EEO Office, which alleged that she had been discriminated against by FCHR on the basis of her age. The fax cover sheet shows a date of January 19, 2007, but no “received” stamp appears on the document. The document included a request from Petitioner that the “complaint” not be forwarded to FCHR for investigation. Despite this request, the EEO office forwarded the completed questionnaire to FCHR on January 31, 2007. This date is confirmed by the date stamp indicating receipt, as well as the fax transmittal notation at the top of each page. However, the investigation was conducted by the EEO Office. The Determination: No Cause dated July 30, 2007, issued by FCHR to Petitioner states in part that “the timeliness and all jurisdictional requirements have been met.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of June, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2008.
The Issue The issues in this case are whether, in violation of the Florida Civil Rights Act, Respondent terminated Petitioner's employment on the basis of her race, or retaliated against her for engaging in protected activity; and whether Respondent subjected Petitioner to a hostile work environment.
Findings Of Fact Respondent Cole, Scott & Kissane, P.A. ("CSK"), is a law firm having offices throughout the state of Florida. Petitioner Latasha McCleary ("McCleary"), an African-American woman, worked for CSK in its Orlando office as a legal assistant from August 7, 2017, through July 31, 2018. However, because McCleary began taking medical leave on June 6, 2018, and never returned to work, her last day in the office was June 5, 2018. Thus, the period of time in which McCleary actually functioned as a regular CSK employee was ten months. During her tenure with the firm, McCleary provided secretarial and administrative support to several attorneys, including partner Bartley Vickers and associates Jeremy Beasley and Shawn Gibbons. McCleary's direct supervisor was the then office manager, Lilliam Hernandez. CSK regarded McCleary as a valued and high-performing employee. Although, as will be discussed, McCleary complains that she was subjected to unfair criticism during the last weeks of her time in CSK's Orlando office, she was never reprimanded, disciplined, or subjected to an adverse employment action. For the first nine months of her employment, McCleary got along well with the attorneys for whom she worked, including Mr. Vickers, and she has no complaints about their treatment of her during this period. The only noteworthy incident or incidents of relevance to have occurred in this time frame are a secretary's use, on one or perhaps more occasions, of the "n- word" in McCleary's presence. An employee's use of this racial epithet in the workplace is, of course, extremely offensive and inflammatory, to say the least, and, if unchecked, could create a hostile work environment. That did not happen here, however. The legal assistant who made the offensive remark (apparently in the presence of peers only, not supervisors or managers) apologized to McCleary when the latter expressed her discomfort. McCleary never reported the incident(s) in writing to the firm's management, as the Employee Handbook required——a fact from which the undersigned infers that she accepted her co-worker's apology——and the bad behavior stopped. The upshot is that this upsetting incident was resolved informally among the affected employees without initiating an investigation by the firm, and a nascent problem was nipped in the bud. The watershed moment in this case occurred on May 7, 2018, at the beginning of McCleary's tenth month with CSK. An expert witness retained by CSK was scheduled to conduct an on- site inspection that day but failed to appear, forcing a last- minute cancelation which caused opposing counsel to incur travel expenses that CSK had to reimburse. McCleary mistakenly had failed, on the previous business day, to confirm the expert's availability, as the firm's routine required, and thus, she bore some responsibility for the unwanted results. That said, there is no evidence that this situation was other than a relatively minor inconvenience that could be fixed, learned from, and forgotten. When the problem came to light on May 7, 2018, Ms. Hernandez, the office manager, sent an email to McCleary reminding her that the inspection "should have been confirmed" beforehand to avoid a "waste[] [of] time and money." McCleary apologized for making a "human error" and promised it would not happen again. On May 9, 2018, Mr. Vickers, the partner, sent an email to McCleary and Mr. Gibbons, the associate, telling them that "some form of confirmation is needed" "for confirming inspection dates." He added: "This is a mistake that I imagine will not happen again, and I am glad we can move past it and look to the future without these types of issues again." The only thing remarkable about these emails is how unremarkable they are. Two points of interest will be mentioned. First, as just suggested, the tone of each message was neither derogatory nor personal, but measured and professional. There was a touch of criticism, to be sure, as would be expected, but the criticism was constructive in nature, not harsh or angry in tone. Second, McCleary was not the only one called to account. Mr. Vickers's email was directed as much to the associate attorney as to McCleary. The next day, Thursday, May 10, 2018, Mr. Vickers conducted a training meeting for the legal assistants in his group, which McCleary attended. There were a number of topics on the agenda, covering a range of administrative tasks that CSK expected its litigation support staff to carry out. Although Mr. Vickers brought up that week's scheduling snafu as an example of miscommunication-driven consequences, no evidence suggests that McCleary's mistake had prompted the meeting. Further, McCleary was not identified in the meeting as having been at fault or involved in the incident. McCleary, however, complains that she was "singled out" during the meeting, "80% [of which, she maintains,] covered what happened with [her] in regards to the May 7th re-inspection." The greater weight of the evidence does not support her characterization of the training session. According to McCleary, Mr. Vickers, who had been a good boss for the previous nine months, suddenly turned into a tyrant around May 10, 2018. McCleary alleged in an email written a few weeks later, on June 1, 2018, that soon after the canceled inspection, Mr. Vickers had begun asking her "idiotic questions to be sure [she knew] her job," and been constantly micromanaging [her] with multiple emails" accusing her of making numerous mistakes. Yet, although this entire period spans just 18 business days, McCleary produced none of Mr. Vickers's alleged, accusatory emails. The greater weight of the evidence does not support McCleary's allegations concerning Mr. Vickers's treatment of her during the month of May 2018. Sometime near the end of May, McCleary sent out notices of taking deposition duces tecum that did not have the document requests attached. McCleary was not solely to blame for this oversight; the attorney handling the case should have reviewed the papers to make sure that everything was in order before service. Still, as the legal assistant, McCleary should have spotted the omission and brought it to the attorney's attention. On the morning of May 31, 2018, after the problem had been discovered, Mr. Vickers sent an email to McCleary and Mr. Beasley, the associate, admonishing them to "stay focused" when preparing deposition notices for service. Similar to the canceled inspection earlier in the month, the incomplete deposition notices were a problem that CSK obviously would rather have avoided; inattention to detail, moreover, is something any reasonable employer should want to correct. There is no evidence, however, that CSK generally, or Mr. Vickers in particular, made a big deal about this incident. Mr. Vickers told McCleary and the associate that he hoped "it would not happen again"——and that, it seems, would be that. Except it wasn't. Later that day, May 31, 2018, McCleary spoke to the office administrator, Johnson Thomas. During this conversation, McCleary complained about working for Mr. Vickers and asked to be transferred to a different group of attorneys. On Friday, June 1, 2018, McCleary again contacted Mr. Thomas, sending him the email mentioned above. This email was the first written notice that CSK received from McCleary concerning her complaints about Mr. Vickers. In the email, McCleary did not allege racial discrimination, per se, but she did include some language which clearly indicated that such a charge might be forthcoming: "I refuse to subject myself to further retaliation, oppression and disrespect from Mr. Vickers. He is creating a hostile working relationship between us. I cannot concentrate on work and am in need of immediate transfer." (emphasis added). The following Tuesday, June 5, 2018, CSK approved McCleary's request to be transferred, assigning her to the work group headed by partner Melissa Crowley. When the announcement was made, Ms. Crowley sent an email to McCleary stating, "Welcome Latasha! I look forward to working with you." McCleary never reported for duty under Ms. Crowley. Instead, she took a sick day on June 6, 2018, and applied for unpaid medical leave. Despite McCleary's having presented somewhat nonspecific reasons, such as heart palpitations and anxiety, the firm granted McCleary's application and placed her on medical leave through July 11, 2018. In mid-July, McCleary provided CSK with a note from her mental health counselor in support of a request to extend the unpaid medical leave until September 5, 2018. On July 12, 2018, the firm informed McCleary that it would not be able to keep her position open that long without hiring a replacement, but agreed to let her remain on leave until July 31, 2018. CSK made it clear to McCleary that she needed to return to work on August 1, 2018, or face dismissal on grounds of abandonment. McCleary did not return to work on August 1, 2018, and the firm terminated her employment. Ultimate Factual Determinations There is no persuasive evidence that CSK took any actions against McCleary motivated by discriminatory animus, or created (or acquiesced to the creation of) a hostile work environment. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful racial discrimination could be made. There is no persuasive evidence that CSK took any retaliatory action against McCleary for having opposed or sought redress for an unlawful employment practice. Ultimately, therefore, it is determined that CSK did not discriminate unlawfully against McCleary on any basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding CSK not liable for race discrimination, retaliation, or creating a hostile work environment. DONE AND ENTERED this 20th day of December, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of December, 2019. COPIES FURNISHED: Reshad Favors, Esquire Mosaic Law Firm Tenth Floor 1875 Connecticut Avenue Northwest Washington, DC 20009 (eServed) Robert Alden Swift, Esquire Cole, Scott & Kissane, P.A. Tower Place, Suite 750 1900 Summit Tower Boulevard Orlando, Florida 32810 (eServed) Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Second Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination against Respondent on the basis of her age and gender (female).
Findings Of Fact Petitioner is female. Petitioner initiated her retirement from Respondent employer in February 2005 at age 65. No evidence was presented at the disputed-fact hearing to establish the number of persons employed by Respondent at any material period of time. However, because Respondent has acknowledged in its Proposed Findings of Fact that Petitioner is an "aggrieved person," as that term is defined in Section 760.02(10), Florida Statutes, and has further acknowledged that at all times material to this cause, Respondent was an "employer" as that term is defined in Section 760.02(7), Florida Statutes, and Respondent is hereby found to be a statutory employer under Chapter 760, Florida Statutes. Petitioner began part-time employment as an Order Entry/Mail Clerk with Respondent in July 1983. At the same time, and dating from May 30, 1983, Petitioner was also employed part-time with Sears, Roebuck and Company (Sears). In 1984, Petitioner accepted full-time commission sales employment with Sears and continued to work part-time for Respondent Employer. She worked full-time for Sears and part- time for Respondent until July 1996. Between 1983 and 1996, Jack Barber, president and CEO of Respondent Employer, repeatedly asked Petitioner to come to work full-time for Respondent. In July of 1996, Petitioner accepted full-time employment as Chief Finance Officer/Human Relations Director of Respondent Employer. At the time of her transition to her new, full-time position with Respondent, Petitioner was doing accounts receivable, accounts payable, payroll, and general ledger bookkeeping. Petitioner was qualified for all positions she held while employed by Respondent. At all times material, Petitioner was an exemplary employee. Petitioner testified that, as an inducement to give up her full-time Sears employment with its vested pension and excellent pay and benefits, Mr. Barber "guaranteed [her] in writing a five percent yearly increase in salary with no end date." It was Petitioner's position that between July 1996 and February 2005, when she retired, Respondent had a written employment contract with her, which contract had been negotiated in July of 1996, and that this contract provided for Petitioner to receive a raise equivalent to five percent of her base pay; one week of vacation in 1996; three weeks of vacation in 1997 and 1998; three days compensatory time (personal holidays) in 1996; six days of compensatory time (personal holidays) in 1997 and 100 percent medical insurance. The document she represented as her contract of employment was admitted in evidence as Petitioner's Exhibit One. Petitioner's Exhibit One is not dated. It also states no ending date and does not contain the signature of either Petitioner or Mr. Barber. It resembles arithmetic computations without setting out in sentences either Petitioner's or Respondent's obligations one to the other. It only lists the years 1996, 1997, 1998, and 1999, with regard to salary; only 1996, 1997 and 1998, as to vacation; and only 1996 and 1997 as to "comp. time." It bears the expression: "$150,000.00 + - 5 yrs." Furthermore, Petitioner testified that the exhibit does not encompass the whole of the parties' oral understanding at that point-in-time, because she believes that Mr. Barber also orally assured her that the five percent annual salary increases would continue as long as she was employed by Respondent, that vacation time and personal holiday time would accrue annually based upon Petitioner's original date of hire in 1983; and that Respondent company would institute a retirement plan in the near future. Mr. Barber testified that he had intended his notes and computations in 1996 on Petitioner's Exhibit One to only show that he anticipated if Petitioner came to work for Respondent in 1996: that he would guarantee Petitioner a term of employment up to at least five years; that there would be at least three years (1997, 1998, and 1999) with a five percent increase for her each year; and that, based on the foregoing prognosis, Petitioner could expect to earn at least $150,000.00 over a five-year period. Mr. Barber never intended Petitioner's Exhibit One to be a contract of employment. Petitioner candidly admitted that Respondent granted her five percent pay increases in January 1997, 1998, and 1999. Petitioner calculated that, without bonuses, she was paid half of $27,300.00 in 1996 because she started in July; $28,665.00 in 1997; $30,097.60 in 1998; and $31,720.00 in 1999. Petitioner accepted Respondent's figures that her annual W-2 compensation 1999 (including bonuses) was as follows: $33,635 2000 $31,720 2001 $32,830 2002 $33,015 2003 $32,330 2004 $31,720 Therefore, Petitioner's income without bonuses from Respondent for her first five years of employment (1996-2000) may have been less than $150,000.00. It was Petitioner's further position that the Respondent Employer had "contracts" similar to Petitioner's Exhibit One with other employees, specifically Greg Barber and Rob Humphrey (both younger male employees), which were honored by Respondent and that Petitioner's "contract" was not honored by Respondent. Petitioner claimed that Jack Barber's honoring the younger men's contracts, and not hers, constituted the acts of age and gender discrimination she complains of here. No contract between Respondent Employer and Greg Barber was presented for comparison with Petitioner's Exhibit One. No contract between Respondent employer and Rob Humphrey was presented for comparison with Petitioner's Exhibit One. Petitioner maintained that she "performed many of the same duties as Barber and Humphrey who were younger than she was at all times material and that she received less compensation." Greg Barber is the son of President/CEO Jack Barber. Since March 1985, Greg Barber has been the company's general manager and sales manager. Greg Barber also acts as co-CEO with his father. At all times material, he received a base salary plus commission based on total company sales. Greg Barber's responsibilities also included overseeing order entry personnel, accounts receivable/payable personnel, purchasing/inventory control personnel, mailroom personnel, shipping/warehouse personnel, service department personnel, and the receptionist. He also answered customer service calls and took phone orders. Rob Humphrey is the salesman responsible for Respondent's United States and Canadian sales. At all times material, he was paid a base salary plus commission based on Respondent's sales in the United States and Canada. Mr. Humphrey's responsibilities included training and overseeing a staff of two or three phone order entry/customer service personnel while also taking phone orders himself. At all times material, Petitioner was a salaried, non- commission employee. Petitioner claims that she performed many duties outside her job description. Specifically, she contends that she assisted both Rob Humphrey and Greg Barber in doing their jobs. Specifically, she described sharing responsibility with Greg Barber for making decisions regarding copy writing, marketing, in-putting of advertising materials, and direct marketing mailings. No witness corroborated Petitioner's assessment of her assistance to Greg Barber or Rob Humphrey, but at most, Petitioner only irregularly assisted these commissioned salesmen with their clerical or office tasks. She did not sell product. Despite Petitioner's contention that she performed some of the same services that Greg Barber and Ron Humphrey performed, it appears that the majority of the services she performed for Respondent were very different from theirs. It further appears that Humphrey and Barber performed services that were different from each other. Greg Barber had far more authority and responsibility than either Mr. Humphrey or Petitioner, and because of his position, Greg Barber received a commission out of Rob Humphrey's commission. In other words, as Mr. Humphrey's sales manager, Greg Barber received a percentage commission of all sales by whomever the sale was made and this increased Greg Barber's overall income. Likewise, Mr. Humphrey's responsibilities, particularly the necessity for him to deal with Canadian sales and marketing problems, varied greatly from Petitioner's responsibilities, which were primarily clerical or financial and home office based, and differed from Greg Barber's responsibilities, which were concentrated on home office management and sales in the United States. Petitioner maintained that other employees received raises when she did not. However, Respondent demonstrated that the annual base wage for Petitioner from 1999 through and including 2004, was $31,720.00; for Mr. Humphrey was $13,000.00; and for Mr. Barber was $47,840.00. Respondent further demonstrated that the base wages for all three employees remained constant from 1999 through 2004, and that Messrs. Barber and Humphrey, the commissioned employees, had fluctuations in their total gross wages during the five years from 1999 through 2004, due to fluctuations in the company sales and their resultant commissions. Rob Humphrey's W-2 compensation was below Petitioner's W-2 compensation from 1999 to 2001 and slightly exceeded hers from 2002 through 2004. Greg Barber's W-2 compensation exceeded Petitioner's W-2 compensation consistently from 1999 through 2004. Respondent demonstrated that in the year 2003, Respondent company suffered substantial losses, which affected the salesmen's commissions, and thus their overall income, but Petitioner's and everyone else's base wages remained the same, regardless of business conditions. How bonuses were calculated is unclear from the evidence, but in 1999, Petitioner's bonus was higher than either Mr. Humphrey's or Greg Barber's bonus. In 2000, no one got a bonus. In 2001, Greg Barber's bonus was $2,360.00; Mr. Humphrey's bonus was $540.00; and Petitioner's bonus was $1,110.00. In 2002, Greg Barber's bonus was $2,500.00; Mr. Humphrey's bonus was $665.00; and Petitioner's bonus was $1,295.00. No one received a bonus from 2003-2004. One of Petitioner's responsibilities while employed by Respondent was to assist Greg and Jack Barber in writing an employee handbook. This handbook clearly states that all of Respondent's employees are "at will" employees. That means that no guarantee of continued employment existed for any employee. Petitioner acknowledged that she had read that part of the handbook. The handbook also provides a reasonable procedure for someone, who believes that he or she is being discriminated against, to report that allegedly discriminatory treatment. Petitioner acknowledged that she never complained of sex discrimination or age discrimination while employed by Respondent. Petitioner also was aware she could file an Equal Employment Opportunity Commission complaint. She never did this either. Petitioner did complain to Jack Barber that her job was of greater importance than that of Greg Barber or Rob Humphrey, and she did repeatedly lodge her concerns with Jack Barber that her pay in comparison to theirs was inappropriate. Although denied by Mr. Barber, Petitioner is more credible that she asked for a five percent increase each year. In response to one of her complaints, Jack Barber "evened out" a bonus for her. In early 2005, Petitioner again approached Jack Barber regarding what she considered to be her "promised five percent annual increases." Petitioner and Jack Barber met several times during the months of April and May 2005. When their negotiations were not fruitful, Petitioner gave notice of retirement and left Respondent's employ on June 3, 2005, at age It had been her prior intent to continue working full-time for Respondent through the end of the year 2005. She hoped to continue working for Respondent part-time for several years beyond 2005. Petitioner testified that all employees received a retirement plan in 2001, but that she was not granted the promised yearly five percent increase in January 2000 and was not provided any reason or explanation for the decline in her base pay after that. She calculated that if the five percent per year increase had been given her, she would have received an additional $63,798.47, provided she had worked to the end of 2005, as she had intended.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 2nd day of August, 2006. COPIES FURNISHED: Kay F. Kelley Post Office Box 559 Center Hill, Florida 33514 Timothy Shea, Esquire 800 North Ferncreek Avenue, Suite 9 Orlando, Florida 32803 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, against Petitioner due to his age.
Findings Of Fact Petitioner was employed by Respondent as an Employee Relations Specialist from July 30, 2007, to March 7, 2008. Petitioner’s position as an Employee Relations Specialist was a full-time salaried exempt position. Throughout Petitioner’s employment, Mary Campbell was the Director of Human Resources for Respondent, and William Davis was the Human Resources Manager for Respondent. Campbell was Petitioner and Davis’s direct supervisor. On March 6, 2008, Petitioner submitted a letter of resignation to Campbell, effective Friday, March 7, 2008. Pursuant to Respondent’s termination policy, salaried exempt employees are expected to provide a minimum of four weeks’ notice of their resignation, and failure to do so could block their eligibility for rehire and payment of accrued paid time off (PTO). Petitioner failed to provide the required four weeks’ notice when he resigned his employment with Respondent. Petitioner understood that resigning with less than four weeks’ notice would block his eligibility for rehire, but, despite that understanding, he chose to resign on such short notice because he was starting a new job the next Monday. Petitioner expressed that understanding in his resignation letter, stating: “I understand the ramification of my early resignation but my future employer will not hold a position for thirty days.” (Resignation letter, Respondent’s Ex. 1). On March 7, 2008, Campbell signed a Personnel Action Notice relating to Petitioner’s resignation of employment, stating that “Dwayne Clark resigned his position for another opportunity without proper notice, accepting the consequences of losing PTO and rehire eligibility.” Campbell, without the involvement of Davis, classified Petitioner as ineligible for rehire on March 7, 2008. At hearing, Petitioner acknowledged this action was not discriminatory. The Monday after his resignation, Petitioner began working for Citizens Property Insurance as a Human Resources Generalist, and was involuntarily terminated after six weeks of employment with Citizens. In July 2009, Davis was promoted to Director of Human Resources after Campbell resigned from her employment with Respondent. On April 15, 2011, Richard Rivera was hired by Respondent as the Human Resources Manager. Prior to that, Rivera was employed by University of Florida Shands Medical Center’s (UF Shands) Human Resources Department, which shares the same building with Respondent’s Human Resources Department. Rivera knew Petitioner as a human resources employee of Respondent in 2007/2008. However, they had never spoken prior to mediation of this matter in 2017. Since becoming Director of Human Resources, Davis has received several requests for an exception to the termination policy from former employees classified as ineligible for rehire. Though he has the authority to do so, Davis has never made an exception to the termination policy or rehired anyone who had been classified as ineligible for rehire. In July 2010 and early 2012, Petitioner asked Davis to make an exception to the termination policy and reclassify him as eligible for rehire. However, Davis did not reclassify Petitioner as eligible for rehire because “[w]hen you make an exception, you have problems enforcing the policy going forward, so that’s why I do not make exceptions.” Petitioner claims that while he was employed with Respondent, Campbell made two exceptions to the termination policy and allowed the rehire of two former employees who had been classified as ineligible for rehire. However, other than their gender and race, Petitioner could not name or otherwise identify the two former employees in a way that would allow Respondent to attempt to verify his claim. Petitioner asserted that a physician assistant (PA) had been rehired by Respondent after providing less than four weeks’ notice of her resignation. Respondent was able to identify that individual as Allison McFauls. Ms. McFauls has worked as a Senior PA since 1998 and has never been an employee of Respondent or subject to Respondent’s termination policy. Ms. McFauls has always been employed by UF Shands, which is a separate entity from UF Jacksonville Physicians, Inc., with a separate human resources department and separate personnel policies. Neither Davis nor Rivera is aware of any employee of Respondent receiving an exception to the termination policy. Davis classified Hubert Collins, an Employee Relations Manager, who is nearly 20 years younger than Petitioner, and Christy Wright, who is even younger than Collins, as ineligible for rehire due to their failures to comply with the required resignation notice period in the termination policy. During their conversation in July 2010, Petitioner asked Davis if Respondent would be interested in contracting with Petitioner’s consulting company to assist with the Office of Federal Contract Compliance Programs (OFCCP) compliance review. Respondent did not contract with Petitioner because Respondent performed compliance review work and completed its Affirmative Action Plan in-house. Davis did not ask Petitioner questions regarding his age and does not recall having a conversation with Petitioner about retirement since Petitioner’s employment with Respondent. Even if such topics of conversation occurred, Petitioner agreed he may have been the one to raise them. On September 12, 2016, Petitioner applied online for a vacant Employee Relations Specialist position with Respondent. However, due to Petitioner’s failure to comply with Respondent’s four-week notice requirement, Petitioner was ineligible for rehire with Respondent in September 2016. On September 14, 2016, Rivera reviewed the applications and selected which applicants would be interviewed and considered for the open Employee Relations Specialist position. Because Petitioner was ineligible for rehire, Rivera removed Petitioner from further consideration. Rivera did not base his decision on Petitioner’s age, and there was no persuasive evidence of record that Rivera was biased against Petitioner because of his age. On September 14, 2016, Rivera rejected Petitioner’s application in the online application system and entered “ineligible for rehire” as the reason for rejecting Petitioner’s application. The same day, Petitioner was sent a form email notifying him that his application had been removed from consideration for the Employee Relations Specialist position. No one but Rivera was involved in the decision to remove Petitioner from consideration for the position. Rivera did not inform Davis or anyone else that Petitioner had applied for the Employee Relations Specialist position. Likewise, Davis never directed Rivera or anyone else to reject applications from Petitioner. Petitioner did not communicate with Davis, Rivera, or any other employee about his September 12, 2016, application. Nor did Petitioner request an exception to the termination policy from Davis or anyone else in 2016. Davis did not know that Petitioner had applied for the Employee Relations Specialist position until November 2016, when Respondent was notified by the Commission that Petitioner had filed a charge of discrimination. After receiving Petitioner’s charge of discrimination in November 2016, Davis reviewed Petitioner’s September 2016 application, and noticed that Petitioner stated that he had resigned from his employment with Citizens Property Insurance, which Davis knew to be false. If Petitioner had been hired for the Employee Relations Specialist position, Davis would have terminated Petitioner’s employment for falsifying his application.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Margaret P. Zabijaka, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Jesse D. Bannon, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Dwayne E. Clark, Sr. 11334 Bridges Road Jacksonville, Florida 32218 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
The Issue Whether Petitioner, a member of a protected class, was denied training, subjected to unequal terms of employment and denied promotion to three jobs including the position of Lead Custodian with the Respondent in the Physical Plant Department in 1993, on the basis of his gender (male) and race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1993).
Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a custodian in the Physical Plant Department since July 1989 and during the relevant period of time including 1993 and 1994. Petitioner is a male African-American, and a member of a protected class. Petitioner applied for a promotion to three different positions at the college between August 26, 1993 and December 6, 1993. In late August, 1993, Petitioner applied for the part-time position of House Manager at the college theatre. Petitioner was not selected because his present work schedule would overlap the position at the theatre and his prior work experience was not relevant to the position. In addition, another candidate possessed better interpersonal and communication skills, and his education and work experience was more relevant to the position than the Petitioner's. In early October, 1993, Petitioner applied for the position of HVACR (heating, ventilation, air conditioning and refrigeration) apprentice. The position is a learning position which requires working with a lead mechanic. Part of the job requirement for the apprentice position was the ability to attend trade school in HVACR. During the employment interview Petitioner expressed reservations about attending the HVACR training because he was presently enrolled in night classes at Rollins College. In addition to Petitioner, two white males and a Hispanic male applied for the position. A Hispanic male was selected for the position who had better qualifications. Thereafter, the racial make-up of the HVACR Department consisted of two whites, one black and one Hispanic male. On October 14, 1993, three vacancies for the newly created position of Lead Custodian in the Physical Plant Department was advertised by Respondent. Petitioner was one of nine applicants for the position. The nine individuals who applied for the position of Lead Custodian consisted of four African-American males, three African-American females and two Caucasian females. Following the review of each persons application and file and a personal interview, two African-American males and one African-American female were selected for the positions. Petitioner was not recommended for one of the vacancies. The selection process was based on relevant work experience and work history, and was not based on improper or discriminatory race or gender considerations. Petitioner was not denied training based on his race or gender. Petitioner applied for and attended six seminars covering a variety of subjects over the last several years. Respondent's stated reasons for its promotion and training decisions were not proven to be pretextual.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 24th day of October, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner: Accepted in substance: paragraphs: none Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 1, 2, 3, 4, 5, 6. COPIES FURNISHED: Lea Ann Banks, Esquire BAKER & HOSTETLER P. O. Box 112 Orlando, Florida 32802 Mr. Ulysses B. Williams 1020 Polk Avenue Orlando, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
