Findings Of Fact Petitioner was employed by VOTRAN from June 6, 1977, until his discharge on January 19, 1982. He started as Serviceman; was promoted to Mechanic B on October 31, 1977; to Night Leadman on August 7, 1978; to Mechanic A on January 13, 1980; and to permanent Night Leadman on November 30, 1981. He was the senior mechanic in the maintenance department and, prior to December, 1981, was Leadman on the day shift. Effective November 30, 1981, the position as Leadman on the day shift was abolished and these duties were absorbed by the Maintenance Superintendent, Owen Davis. Pursuant to the Union contract in effect at VOTRAN, available jobs are bid by seniority and go to the most senior qualified man seeking the position. When the Day Leadman position was abolished, Petitioner bid on the Night Leadman position and, as senior mechanic, was awarded the job. Working days (or nights) for the Night Leadman are Tuesdays through Saturdays, with Sundays and Mondays off. This was known to Petitioner at the time he submitted his bid and was awarded this position. After a short time as Night Leadman, Petitioner requested leave on Saturday to attend an uncle's funeral in Georgia. Davis told Petitioner this would leave them shorthanded. Petitioner then told Davis that he did not like working on Saturday and wouldn't come in. Davis reported this incident to the General Manager, Kenneth Fischer. Late in December Petitioner met with Fischer, at which time Petitioner told Fischer he was unable to handle the job of Night Leadman. Fischer offered Petitioner the option of swapping jobs with a Mechanic A on the day shift but that job paid less and Petitioner turned it down. On another occasion, Fischer learned Petitioner had called in and said he could not come to work on Saturday because he had to move furniture. That resulted in a memo of January 12, 1982 (Exhibit 3) memorializing the December 29, 1981, meeting between Petitioner and Fischer in which Fischer repeated his warning to Petitioner against calling in sick on Saturdays unless his illness could be documented. This memo was delayed getting into Petitioner's box and was not received by him until the following Friday. Fischer was off Saturday, Petitioner was off Sunday and Monday, and on Tuesday, January 19, 1982, Petitioner met with Fischer. After Fischer had entered his car in the parking lot around 6:00 p.m. preparing to go home, Petitioner approached the car and told Fischer he would like to speak to him. Fischer got out of his car, they walked back into the building, Fischer unlocked his office, and they entered. Petitioner tossed the memo of January 12, 1982, on the desk complaining that he thought he was being discriminated against and that if the rules respecting sick leave of less than three days were being changed they should apply to all employees and not just to Petitioner. The meeting quickly escalated into a confrontation with Petitioner telling the younger Fischer that Petitioner was a 40-year-old man with a family, and that Fischer was not man enough to fire him. Whereupon Fischer told Petitioner to "hit the door." Petitioner then told Fischer that he would get VOTRAN's "shit" together and for Fischer to get Petitioner's "shit" together, and Petitioner left. Petitioner's voice immediately prior to his departure was sufficiently loud to be heard by two employees from 200 feet down the hall from Fischer's office. Petitioner's testimony conflicted with the above finding of what went on at the fateful meeting of January 19. Petitioner testified that he remained calm during the meeting, that he never told Fischer that the latter was not man enough to fire him, that he told Fischer they should discuss the matter like grown men, that he used the word "shit" to indicate personal property, and that Fischer is the one who got angry and told Petitioner to "sit down" before he told Petitioner to "hit the door." Petitioner also testified that during the little ever a month he was Leadman on the night shift he missed one or two Saturdays, that the memo of January 12 made him feel he was being treated differently from others, and that he and Fischer had at least three conferences before January 19, 1982, when he was fired. VOTRAN is a publicly owned transportation company subsidized by Volusia County and originally financed by the Federal Government. While funded by the Federal Government VOTRAN was subject to and in compliance with all federal laws proscribing discrimination. Of the 83 employees of VOTRAN, 20 are black. In Volusia County blacks constitute approximately 13 percent of the population. While employed at VOTRAN, Petitioner attended three schools to improve his training and VOTRAN paid the tuition. Although there was a discrepancy between Petitioner's testimony that he was the only black mechanic employed by VOTRAN, and VOTRAN's testimony that there were two blacks employed as mechanics, the evidence was unrebutted that following Petitioner's discharge another black mechanic was hired by VOTRAN. To further support his claim that he was fired because of his race, Petitioner testified that as a Leadman he was never issued a white shirt, that white shirts and blue pants were provided supervisors (including leadmen) by VOTRAN, and that blue shirts were issued to other workmen except in the bodyshop where the workers were issued white pants and shirts. Petitioner mentioned this difference to one of the shop's stewards who told Petitioner that if he felt wronged he should file a grievance. Petitioner never filed a grievance and neither the Superintendent nor the Director of Maintenance was asked by Petitioner to provide him with a white shirt. Other witnesses testified that some leadmen wore white shirts, others wore blue shirts, and it was generally left to the choice of the leadman which color shirt he wore. One witness called by Petitioner testified that he once overheard a Fischer and Davis conversation at which the phrase "dumb niggers" was used. Both categorically denied ever making such a racial slur. No other witness testified to any incident which could lead to a conclusion that Fischer was in any manner prejudiced or racially discriminatory. His reputation among the bus drivers is that he "goes by the book." As another ground to support his charge of racial discrimination, Petitioner testified that while he was Night Leadman he was not provided a key to the Superintendent's desk which other night leadmen had been provided; and that when it was necessary to get into the desk for special tools kept there, it was necessary to call the Superintendent, who would come down and unlock the desk. The Superintendent, Davis, confirmed that Petitioner had not been issued a key because a short time before Petitioner started the night shift too many keys had been issued, all of these keys had been called in, and, when he found his presence was frequently required at night to open the desk, he reissued a key to the Night Leadman. By this time Petitioner had been terminated. The contract between VOTRAN and the Teamsters Union provided for arbitration of grievances. This document also provides that neither employer nor Union will discriminate against any individual with respect to recruitment, hiring, training, promotion, or other employment practice for reasons of race, etc. (Exhibit 1, Article 9). When Petitioner told the shop's steward (also black) that he had been fired, he did not indicate he was fired by reason of race. Petitioner was advised by the shop's steward that he could file a grievance with the Union and his firing could go to arbitration if not settled prior to that step. Petitioner was not a dues-paying member of the Union, and, although covered by the contract, did not feel he would get a sympathetic ear from the Union. The General Manager, William Barrett, who preceded Fischer, was called as a witness by Petitioner. Barrett was General Manager when Petitioner was hired, approved the various training programs taken by Petitioner at VOTRAN's expense, and found Petitioner to be a good and reliable employee. Barrett further testified that it was necessary to maintain discipline in order to operate effectively and that if an employee challenged his authority he would have no choice but to fire the employee immediately.
The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on his national origin (Hispanic), by limiting, segregating, or classifying employees in a discriminatory fashion, or by retaliating against Petitioner for his opposition to unlawful employment practices.
Findings Of Fact Respondent is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Respondent is a family owned company based in Winter Park that installs residential and commercial insulation and acoustical ceilings and tiles. The company is divided into two divisions. The Insulation Division is headed by William Aldrich. The Acoustic/Ceiling Division is headed by Dale Aldrich, Jr., who was Petitioner's ultimate supervisor. Subsequent references to "Mr. Aldrich" are to Dale Aldrich, Jr. Petitioner, a Hispanic male originally from the U.S. Virgin Islands, was hired by Respondent in February 2006 to work in the Acoustic/Ceiling Division. He was hired as a tile installer, the entry-level position in the Acoustic/Ceiling Division. A tile installer drops ceiling tiles into the gridwork installed by a ceiling mechanic. With experience, a tile installer may work his way up to ceiling mechanic. "Ceiling mechanic" is not a licensed position, and there is no formal progression through which an employee works his way up to this more skilled, higher paid position. Advancement depends on management's recognition that an employee's skills have advanced to the point at which he can be entrusted with the mechanic's duties. Three to four years' experience is generally required to advance from tile installer to ceiling mechanic. By all accounts, including those of the ceiling mechanics who supervised him at job sites and that of Mr. Aldrich, Petitioner was more than competent as to his actual job skills. During the approximately thirteen months he worked for Respondent, Petitioner received four pay raises. He was making $14.00 per hour at the time of his termination in August 2007. The evidence produced at the hearing demonstrated that Petitioner had problems controlling his temper on the job. He was generally negative and quick to take offense at perceived slights, especially when he inferred they were due to his national origin. During his employment with Respondent, Petitioner was involved in at least three altercations with fellow employees and/or general contractors for whom Respondent worked as a subcontractor. The earliest incident occurred in October 2006. Petitioner was working on a job site at which Respondent was a subcontractor for Harkins Development Corporation. Petitioner testified that a Harkins supervisor named Harley was "commanding" him to perform tasks on the job site. Petitioner was affronted, because he was not Harley's employee and because Harley, who was white, did not appear to be giving commands to the white employees of Respondent. After lunch, Harley feigned that he was about to throw a soft drink at Petitioner. In fact, the Wendy's cup in Harley's hand was empty, though a drop or two of condensation from the outside of the cup may have landed on Petitioner. In Petitioner's version of the story, Petitioner then stood up and asked Harley if he would enjoy being on the receiving end of such treatment. Petitioner then phoned Mr. Aldrich and asked to be sent to a different job site. Mr. Aldrich refused, and instead scolded Petitioner. Petitioner believed that Mr. Aldrich was retaliating for his complaint. Petitioner walked off the job site for the rest of the day, and worked at a different site the next day. Petitioner entered into evidence the written statement of his co-worker, Eddy Abud. Mr. Abud is Hispanic, with a national origin in the Dominican Republic. Mr. Abud witnessed the confrontation between Petitioner and Harley. Mr. Abud stated that Harley shook his cup and a "couple drops" of water splashed on Petitioner, who "went ballistic." Petitioner used obscenities against Harley and invited him to fight. Harley threw Petitioner off the job, an action with which Mr. Abud agreed. Petitioner entered into evidence the written statement of his co-worker, Robert "Pappy" Amey. Mr. Amey is white, and wrote that Petitioner "acted like a man all the time" except for the incident with Harley. Mr. Amey's statement reads as follows, in relevant part: Harley had a big drink cup and he turned around and flipped it, playing, nothing came out. Justo lit up [and] called him a mother fucker a dozen times. He said if I find you on the street, I'll kill you. I leaned to him and I said, "Justo, shut up." He did not, he cussed Harley out the door. It was Harley's job. This was unprofessional behavior by Justo. It was just horseplay and it was empty. No reason to act like that. Despite his overall respect for Petitioner, Mr. Amey stated that Petitioner should have been fired for his actions. Mr. Aldrich testified that Harley called him and told him that Petitioner had threatened him. Petitioner told Harley that he would not do anything on the job, but would "kick his ass" if he saw him away from the job. Mr. Aldrich stated that Harkins was one of Respondent's largest, longest-standing accounts, and that he knew Harley as a "stand up guy" who would have no reason to lie about such an incident. The second incident occurred later in the same month, on October 31, 2006. Petitioner was working for Respondent on a project at the University of Central Florida. A ceiling mechanic named Adam Sorkness was in charge of the project. Petitioner testified that Mr. Sorkness had already angered him in September 2006 by making racial jokes about black employees, and that Mr. Aldrich had separated Petitioner from Mr. Sorkness on subsequent jobs up to October 31, 2006. At first, there were no problems on the University of Central Florida job. Petitioner accepted his assignment from Mr. Sorkness. On this day, every man on the job was installing ceiling tile, which involved wearing stilts. According to Petitioner, two white employees arrived later in the morning and decided to work together, leaving Petitioner to work with Isaiah Fields, a black employee whom Petitioner alleged was the butt of Mr. Sorkness' earlier racial jokes. Petitioner became agitated because it appeared the two white employees were doing no work. Mr. Fields testified that he and Petitioner were working around a corner from Mr. Sorkness. They heard loud laughter from around the corner. Mr. Fields said that the laughter was not directed at him or Petitioner, but that it appeared to anger Petitioner, who said, "Wait a minute," and headed around the corner on his stilts. Mr. Fields stayed put and thus did not see the subsequent altercation. Petitioner approached Mr. Sorkness, who was also on stilts. Petitioner complained about the job assignments. Mr. Sorkness replied that everyone was doing the same job and that Petitioner could leave if he didn't like it. Petitioner became more incensed, calling Mr. Sorkness a "sorry white faggot." Petitioner took off his stilts, then confronted Mr. Sorkness at very close range. Mr. Sorkness pushed Petitioner away. Petitioner then charged Mr. Sorkness and they engaged in a brief fight. Ben Davis, a white ceiling mechanic who witnessed the altercation, called it a "scuffle."3 Mr. Aldrich investigated the matter and determined that Petitioner was the instigator of the fight. He suspended Petitioner for three days, and gave Mr. Sorkness a verbal warning. Mr. Aldrich issued a "written warning" to Petitioner cautioning him that he was subject to termination. Mr. Aldrich wrote the following comments: "Justo has been given 3 days off without pay. Normally an employee would be fired for this action. Justo has NO MORE chances. Next offense will result in immediate termination of employment with Energy Savings Systems." The document was signed by Mr. Aldrich and Petitioner.4 Petitioner claimed that Mr. Aldrich cut his hours in retaliation for the UCF incident, and it took several months for his hours to come back up to 40 per week. The time sheets submitted by Petitioner showed fluctuations in his work hours before and after the incident, which is consistent with Mr. Aldrich's testimony that he only cuts hours when work is slow for the company. The evidence demonstrated that Petitioner's hours were reduced at times because he would refuse to take certain jobs, either because of their location or because Petitioner did not want to work with certain people, such as Mr. Sorkness. The third and final incident occurred on August 20, 2007. Petitioner was working on a job for which Respondent was a subcontractor to Alexander-Whitt Enterprises, a general contractor. Alexander-Whitt's superintendent on the job was Dan Alexander. Mr. Alexander asked Petitioner to clean up. Petitioner resented either the order itself or Mr. Alexander's method of delivering it, in light of a brief altercation between the two men on the job site three days earlier. Petitioner threatened to slap Mr. Alexander. Mr. Aldrich testified that he received several calls from Mr. Alexander complaining about Petitioner over the course of this job. Petitioner had an "attitude" about Mr. Alexander's instructing him on the job. Mr. Aldrich apologized. After Petitioner's threat, Mr. Alexander called yet again and told Mr. Aldrich that he wanted Petitioner off the job. After this call, Mr. Aldrich fired Petitioner. Aside from his own suspicions and resentments, Petitioner offered no evidence that his termination had anything to do with his national origin or was retaliation for his complaints about the company's discriminatory practices. In fact, Petitioner never made a formal complaint while he was employed by Respondent. His only "complaints" were to certain co-workers that he was being discriminated against because he was Hispanic. Andy Weatherby, a ceiling mechanic who at times was Petitioner's field superintendent, recalled Petitioner telling him that he felt disadvantaged on the job for being Hispanic, but that Petitioner described no specific incidents of discrimination. Julio Oliva, a junior ceiling mechanic with Respondent, is of Puerto Rican descent. Mr. Oliva testified that he saw no discrimination at the company. He worked often with Petitioner, whom he described as having a negative attitude. Mr. Oliva testified that it was difficult to merely pass the time in conversation with Petitioner, because Petitioner always had something negative to say. Edgar Mullenhoff, also Puerto Rican, has worked for Respondent since 1982 and is the field superintendent for the insulation side of the company. Mr. Mullenhoff described the company as "like a family" and stated that he never felt a victim of discrimination. Mr. Abud's written statement attests that he has had no problems working for Respondent, and that "we have great bosses." Petitioner noted what he termed a discriminatory pattern in the ethnic diversity of the Insulation Division versus the Acoustic/Ceiling Division. While conceding that most of Respondent's employees are Hispanic, Petitioner notes that the great majority of the Hispanics work in the lower paying, less skilled Insulation Division. Petitioner further argued that those few Hispanics hired in the Acoustic/Ceiling Division are given no opportunity to advance to the position of ceiling mechanic. William Aldrich, the head of the Insulation Division, testified that there is a much higher turnover in insulation, and that for the last four years or so the only applicants for the positions have been Hispanic. He credibly testified that he hires anyone who appears capable of doing the job. As to Petitioner's lack of advancement, it must be noted that he worked for Respondent for just a little over one year. Mr. Oliva testified that he has worked for Respondent for five and one-half years. He spent the first two years performing menial tasks and learning on the job. Mr. Oliva stated that Respondent's ceiling mechanics were helpful to him in learning the trade, and he felt no barriers due to his national origin. Mr. Sorkness testified that it took him between four and five years to become a mechanic. Mr. Davis testified that it took him between three and four years to work his way up to ceiling mechanic. The greater weight of the evidence establishes that Petitioner was terminated from his position with Respondent due to misconduct on the job. The greater weight of the evidence establishes that Respondent has not discriminated against Petitioner or any other employee based on national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Energy Savings Systems of Central Florida, Inc. did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 24th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2009.
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice on the basis of religion; or in retaliation to his engagement in a lawful employment activity, in violation of section 760.10, Florida Statutes.
Findings Of Fact Respondent, Escambia County, is a political subdivision of the state of Florida that is authorized to carry out county government, pursuant to section 125.01, Florida Statutes (2016). Escambia County is an employer as that term is defined by the Florida Civil Rights Act 1992. Petitioner, Mr. Love, was employed by Blue Arbor, Inc., a staffing agency. Blue Arbor had a contract with Escambia County for temporary labor services. Blue Arbor assigned Mr. Love to a temporary job with Escambia County, Public Works Department, Office of Engineering and Construction, as an engineering project coordinator. The assignment was for one year. Petitioner was assigned to the job from May 26, 2014, until his termination. On January 26, 2015, Escambia County terminated Petitioner’s temporary employment contract. Petitioner was an employee of Escambia County as that term is defined by the Florida Civil Rights Act of 1992. Mr. Love is a Christian. Petitioner timely filed a complaint with the Commission alleging Respondent engaged in an unlawful employment practice by terminating Petitioner on the basis of his religion. As an engineering project coordinator, Petitioner’s job responsibilities included: management of complex projects, ability to prioritize work, and ability to exercise good interpersonal skills with co-workers, supervisors, and the public. Mr. Love earned a Bachelor of Science in Engineering Technology and Construction degree in December 2013. Mr. Love had no prior drainage or roadway experience before working for Escambia County. Mr. Love began working for Escambia County following a storm that was declared a disaster. Due to the disaster, staff was expected to be flexible and able to perform job duties without refusal or hesitation. Respondent asserts that it terminated Petitioner’s contract due to his inability to perform job responsibilities without objection or hesitation, work performance, and disruptive behavior. Mr. Love had multiple supervisors during his eight month tenure at Escambia County. While working at Escambia County, Mr. Love’s supervisors had issues with his work performance and his behavior. Mary Bush, a construction manager, supervised Mr. Love in 2014. Ms. Bush had issues with Mr. Love’s file storage practices and behavior. Ms. Bush testified that Mr. Love saved all his work on a personal computer and was told several times to save his work in the shared folder. Mr. Love refused to save his work on the shared drive on the basis that the documents were his work. During the time Ms. Bush supervised Mr. Love, she experienced two incidents with Mr. Love involving outbursts. On one occasion, Mr. Love was in Ms. Bush’s office seeking review of Mr. Love’s work. Mr. Love stated in a raised voice, “you need to review the report so I can do my job.” On another occasion, Ms. Bush directed Mr. Love to identify his documents using a certain description and explained the importance of the practice. Mr. Love objected on the basis that the practice was an asinine process. Mr. Love was reassigned to another supervisor due to the outbursts involving Ms. Bush. At no point did Mr. Love state that his objection to following directions was based on his religion. Chris Curb, an engineering manager for stormwater, also supervised Mr. Love during his tenure at Escambia County. Despite the direction from Ms. Bush, the file-sharing issue continued. On December 30, 2014, Chris Curb notified Mr. Love by email that his file saving was a “problem.” Mr. Curb advised Mr. Love that his file folder was not a standard subfolder and he needed to save all files in the proper shared subfolders. He explained that file sharing is important so Escambia County could comply with state regulations and records requests. He further explained that Mr. Love was not the sole owner of a project record because other employees would need access to the work. He concluded his email with instructions for Mr. Love to use designated file folders. A third supervisor, Jim Duncan, also had issues with Mr. Love’s work performance and behavior. Similar to his practice under prior supervisors, Mr. Love refused to save his files to the shared file folder. Mr. Love also repeatedly refused to attend mandatory meetings without a direct command. For example, on multiple occasions Mr. Love’s supervisor had to locate and direct him to attend the weekly department meetings. Mr. Love testified that he was reluctant to attend the meetings because he believed they “were unproductive and take up too much time.” Similar to other supervisors, Mr. Love engaged in an outburst with Mr. Duncan. Mr. Duncan was a construction manager when he supervised Mr. Love and thus, was responsible for directing Mr. Love to advance projects from conception to completion. One such project was ENG Flood 414-85, which was also referred to as the Beulah Road at Helms Intersection project (“Beulah-Helms project”). Mr. Love was the project coordinator for the project. In October 2014, Roads, Inc., a construction company, submitted a bid for the Beulah-Helms project. Brett Moylan is the vice-president and chief operating officer of Roads, Inc. The project was a pricing agreement contract. Pricing agreement contracts are contracts where prices are established for a period of one year and are adopted by the Escambia County prior to the award of any specific pricing agreement contract. Pricing agreements have a blackout period and bidding process that also takes place prior to acceptance of the pricing agreement. In December 2015, Mr. Love was in the final stages of the procurement process for the Beulah-Helms project. Roads, Inc. was the lowest bidder on the project. Mr. Love corresponded with Mr. Moylan regarding the documents necessary to approve the project. Mr. Love requested a construction schedule and MOT plan for the project before the work order could be approved. Mr. Moylan asserted in an email that the construction schedule would begin after the purchase order is issued. Mr. Moylan later submitted the MOT plan and signed the work order. On January 22, 2015, Mr. Love sent an email to Mr. Moylan requesting the construction schedule and another signed work order with the appropriate dates. Mr. Love advised Mr. Moylan that he would not begin the project until Mr. Moylan submitted the construction schedule. Although Mr. Moylan explained that he usually did not submit a construction schedule, he ultimately provided the construction schedule to Mr. Love indicating that the project would begin the following Monday and “be substantially complete within 60 days of commencement, and have a completion date within 90 days.” The construction schedule provided by Mr. Moylan was an acceptable schedule. For a reason that was not addressed at hearing, Mr. Love asked Mr. Moylan for the construction schedule again, despite receiving it. Mr. Moylan advised Mr. Love to accept the next lowest bidder. As a result of the email exchange with Mr. Moylan, Mr. Love planned to send Mr. Moylan a follow-up email about accepting the next highest bidder, which would purportedly cost Escambia County an additional $20,000 for the project. Before Mr. Love drafted the email, he called Mr. Moylan to discuss the issues referenced in the email. Mr. Love testified that before he called Mr. Moylan he “drove around the block a couple of times, before he could call Mr. Moylan because [he] knew that the conversation was going to get heated.” Mr. Love described the conversation as heated, and they “cut each other off” during the conversation. Mr. Moylan contacted Mr. Duncan to complain about Mr. Love’s behavior related to the Beulah-Helms project. Mr. Duncan approached Mr. Love to discuss the exchange between Mr. Love and Mr. Moylan. Mr. Duncan directed Mr. Love to award the Beulah-Helms project to Roads, Inc. Mr. Love objected to awarding the contract to Roads, Inc. He testified that his objection was based on his religion because “[he] had an obligation to utilize his moral and ethical judgment which is inherent to [his] religion.” Mr. Love stated that the religious accommodation was based on his request for additional information before he could feel comfortable awarding the project to Roads, Inc. Mr. Love testified that he told Mr. Duncan that he refused to award Roads, Inc., without the construction schedule “based on a matter of principal.” Mr. Love did not say he refused to approve the project based on his religion. He did not say he needed an accommodation for his religion. Mr. Duncan directed Mr. Love not to take any further action until they discussed Mr. Love’s objection with the department manager, Joy Jones. During the conversation, Mr. Love became angry and yelled at Mr. Duncan. Sharon Johnson, a project coordinator, witnessed the exchange between Mr. Love and Mr. Duncan. Specifically, Ms. Johnson observed Mr. Love and Mr. Duncan having the discussion about the Beulah-Helms project. Ms. Johnson described Mr. Love’s demeanor as unhappy and upset. She testified that he raised his voice and yelled at Mr. Duncan. At the same time, Mr. Duncan attempted to calm Mr. Love. Ms. Johnson could not recall the substance of the discussion, but she testified without hesitation that Mr. Love did not mention anything about his religion. Ms. Johnson’s testimony is found to be credible. On January 26, 2015, Escambia County terminated Petitioner’s contract. Joy Jones, the Engineering Department manager, made the final decision to terminate Mr. Love’s contract. Although Ms. Jones did not directly supervise Mr. Love, she was aware of the issues concerning his work performance and behavior through complaints from her staff who directly supervised Mr. Love. After several complaints of angry outbursts, difficulty meeting deadlines, failure to save critical documents to the shared drive, inability to move projects in the process without reluctance, and inability to work with several supervisors, Ms. Jones made the decision to terminate Mr. Love’s contract. Based on the evidence, Respondent has demonstrated that Mr. Love’s termination was based on a legitimate business decision due to poor work performance and disruptive behavior. Approximately one year after his termination, Mr. Love sent an email to the Escambia County Administrator, Jack Brown. The email complained of perceived damage to Mr. Love’s reputation, credibility, and career. Mr. Love did not mention any complaint of religious discrimination or retaliation. In his response to Mr. Love, Mr. Brown explained that “in the project coordinator position staff must examine and thoroughly understand applicable process. Refusal and hesitation to perform job duties affect production, grant reimbursement deadlines, and citizen expectations.” Mr. Love did not explicitly mention anything about his religion or religious discrimination to any of his supervisors before he was terminated from Escambia County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s discrimination complaint and Petition for Relief consistent with the Findings of Fact and Conclusions of Law of this Recommended Order. DONE AND ENTERED this 24th day of May, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Benjamin David Love Post Office Box 1132 Gonzalez, Florida 32560 (eServed) Meredith D. Crawford, Esquire Escambia County Board of County Commissioners Suite 430 221 Palafox Place Pensacola, Florida 32502 (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 committed an unlawful employment practice by discriminating against Petitioner based on his race.
Findings Of Fact In February 2006, Respondent hired Petitioner, an African-American male, knowing that he had a criminal record. Respondent employed Petitioner as a porter. Respondent employed other African-American and Caucasian people as porters, housekeepers, and janitors. Initially, Respondent paid Petitioner $7.25 per hour. Respondent was impressed with Petitioner's enthusiasm and willingness to perform physically demanding work. Respondent gave Petitioner a reward for always being on time and not being absent. Respondent eventually raised Petitioner's salary to $10.00 per hour or $400 per week. Respondent gave Petitioner the promotion so that he and his wife could qualify for a mortgage. Respondent helped Petitioner pay off his wife's credit card debt for the same reason. After Petitioner and his family moved into their new home, Carol Collett, Respondent's Caucasian General Manager, helped Petitioner furnish the house. Ms. Collett also attended the christening of Petitioner's new baby. Ms. Collett tried to help Petitioner as much as she could because she believed that everyone deserves a second chance. At all times relevant here, Petitioner worked the night shift when there was no supervisor on the premises. Petitioner's position required Ms. Collett's trust because his duties included taking care of the front desk. From approximately June 2007 through November 2007, Petitioner worked an average of 62 hours per week with no overtime compensation. There is no persuasive evidence that the other porters, Caucasian and/or African-American, were paid more than Petitioner or for overtime work. Petitioner never requested a raise, but he did request to work as a janitor. However, Petitioner presented no evidence that a janitor's position was available. More importantly, Petitioner lacked the skills to perform janitorial/maintenance work for Respondent. In time, Ms. Collett noticed a change in Petitioner's behavior. On one occasion, Petitioner's wife informed Ms. Collett that Petitioner had not come home with his pay check. On or about November 3, 2007, Ms. Collett confronted Petitioner about his declining job performance and his suspicious activities involving hotel guests. Petitioner denied that he was using or selling drugs or that he brought hookers to the job site. During the conversation, Petitioner began to cry, stating that he had let Ms. Collett down. Petitioner said that he "would rather to go back jail where life was easier and he would not have the pressure of daily life." Ms. Collett did not have a chance to terminate Petitioner because he left voluntarily. Petitioner came back to the hotel one time to pick up his last pay check. At that time, Ms. Collett confronted Petitioner about some money that was missing from the front office. The office had been locked the night before, but someone had entered it through the ceiling from the adjoining room. Petitioner could not find another job. He is now in prison.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of May, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2009. COPIES FURNISHED: Kenneth W. Johnson, DC #646344 Gulf Correctional Institution 699 Ike Steele Road Wewahitchka, Florida 32465 Jerome D. Mitchell, Esquire Riggio & Mitchell, P.A. 1326 South Ridgewood Avenue Suite 8 Daytona Beach, Florida 32114 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Petitioner, Clarence E. Burtoft, was hired by respondent, Southern Linen Service, in November, 1982 as assistant general manager at its Daytona Beach plant. Prior to this employment, he had back surgery performed in Augusta, Georgia but the effects of such surgery did not interfere with his job duties. After being on the job for approximately three days, he was told by the regional manager that labor costs needed to be reduced, and that one employee must be laid off. He was also told to shift two female employees from one department to another. There is a dispute between the parties as to what the actual instructions were, and whether they were in fact carried out by Burtoft. Nonetheless, the employer construed Burtoft's actions as not complying with its instructions, and Burtoft was accordingly terminated the following day and told he was not the right man for the job. The back surgery was not related in any respect to the termination and Burtoft himself acknowledged as much. Burtoft's complaint is that his job records at Southern Linen Service contain a notation that he was fired for refusing to follow instructions. He only wants that adverse information removed. 1/ He is not contending that his employer unlawfully discriminated against him, or requesting that his job be reinstated with full back pay. Indeed, it was only after he visited the State employment office that he filed this complaint upon that office's encouragement. At no time was he ever told by any Florida Commission on Human Relations representative that its jurisdiction extended only over certain employment practices, and that any complaint must necessarily be founded on some form of discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for relief filed by Clarence E. Burtoft be DENIED. DONE and ENTERED this 2nd day of March, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1984.
The Issue Did Respondent engage in unlawful employment practices against Petitioner on the basis of race, and if so, what remedies are available to redress the wrong? Sections 760.10 and 760.11, Florida Statutes.
Findings Of Fact Petitioner meets the definition of "person" in Section 760.02(6), Florida Statutes, entitled to assert claims for relief under the Florida Civil Rights Act. It was not disputed that Respondent is an "employer" within the meaning Section 760.02(7), Florida Statutes. Based upon the record it is inferred that Respondent is an employer subject to the Florida Civil Rights Act in the conduct of its employment practices. Respondent is a corporation with three shareholders who each have a one-third interest in the business. In the corporation the shareholders are Vehad Ghagvini and his brothers. Vehad Ghagvini is the president of the corporation and responsible for the day-to-day operation. Vicki Goodman serves as the Human Resources Administrator for the company and is responsible for matters associated with claims of discrimination by company employees. At times relevant Larry Smith was a supervisor for Respondent. On two separate occasions Petitioner worked for Respondent. The first occasion was from November 8, 1999, through June 7, 2000. His position with the company was that of a laborer. When he separated from employment on June 7, 2000, it was based upon his own decision. At that time it was indicated in his personnel record that Petitioner would be subject to being rehired and it was commented that Petitioner was considered to be a hard worker and reliable. The personnel records show the signature of Larry Smith as supervisor when Petitioner terminated his employment with Respondent on June 7, 2000. Petitioner returned to employment with Respondent in October 2000, and was involuntarily terminated on December 5, 2000, from his position of a laborer. According to the papers describing his separation from employment on December 5, 2000, he was terminated for "failure to attend job responsibilities; excessive absences on Saturdays." The form indicated that his work evaluation was poor. It was indicated that Respondent did not intend to rehire Petitioner beyond that date. Other comments in the discharge indicated that Petitioner "was a reliable and diligent worker during previous employment with the company but failed to work to same standards this time around." Petitioner was required to work on Saturday. He did not work on October 7, 2000, a Saturday, the Saturday of the week of October 9, 2000, the Saturday of the week of October 23, 2000, the Saturday of the week of October 30, 2000, the Saturday of the week of November 13, 2000, and Saturday, December 2, 2000. During this time frame Petitioner worked as a service truck operator with duties that included fueling Respondent's equipment on road construction jobs that were ongoing on the Saturday dates that Petitioner missed. Before his termination Petitioner had been counseled on October 17, 2000, and in November 2000 concerning his absences on Saturdays. Petitioner's testimony that he was only required to work on Saturday on a voluntary basis and that meant that he only needed to work one Saturday in his more recent employment is not accepted. Attached to Respondent's Exhibit numbered 5 is an EEO summary from Respondent pointing out that employees of various races had been subject to termination in a pattern that does not discriminate based upon race. Petitioner's termination on December 5, 2000, is in keeping with that practice. Petitioner has portrayed his dismissal from employment with Respondent as originating with his mistreatment by his supervisor, Larry Smith, not his absence from the job. As Petitioner describes it, about a week or two before he was terminated in December 2000, Larry Smith approached Petitioner and told Petitioner that he did not want Petitioner having conversations with females on the job. Petitioner is an African-American. At that time there were two Caucasian females working at the same location Petitioner worked. In particular, one of the females on the job asked Petitioner to take her position directing traffic on the roadway while she went to the restroom. Before she returned Mr. Smith pulled up and saw Petitioner holding the flag for directing traffic. Mr. Smith asked Petitioner why he was holding the flag. Petitioner explained that he was helping the female employee while she went to the restroom by directing traffic until she returned. Later Mr. Smith came back and told Petitioner that he did not want Petitioner having conversations with that female employee. Petitioner surmised that the reason that Mr. Smith had for Petitioner not speaking to the female employee was in relation to the difference in their races, Petitioner's race and that of the female employee. This opinion was reinforced in Petitioner's mind because a similar conversation about not speaking to the female employee occurred three times. Mr. Smith stated his position in such a manner as to have his comments pertain to both female employees on the job. Mr. Smith's remarks were not stated in a manner where he literally said that he did not wish Petitioner to speak to the female employees because Petitioner was an African- American or Black and that the other persons were Caucasian or White. Another incident described by Petitioner was one in which an African-American employee of Don Olsen Tire Company came to repair a tire on a piece of equipment belonging to Respondent. One of the female employees asked for a ride with that individual in his truck back to another location where her van was located. Petitioner, the Don Olsen truck driver, and the female employee rode in the tire repair truck. This was observed by Mr. Smith. Mr. Smith approached the female employee and told her that he did not appreciate that she was disrespecting him and his wife by being in the truck with two black guys. Later that day, a Friday, Mr. Smith approached Petitioner and stated that he did not want Petitioner having a conversation or anything to do with females on the job. The following Monday Petitioner was terminated. Petitioner believes that he was terminated because of the circumstances with the female employees of another race that have been described. Mr. Smith also told the Don Olsen employee that he did not want that individual back on the job site fixing anything because the white female employee had been in that individual's truck. There was no showing that Petitioner made Respondent's upper level managers aware of Mr. Smith's comments concerning conversations which Petitioner had with Caucasian females on the job. According to company records, at one time Petitioner had been informed by Respondent concerning the procedures for making complaints about employment practices related to issues of alleged discrimination. At the time that Petitioner was terminated, Mr. Smith pulled up beside him on the job site and commented to the effect "I don't need you no more." That was the only reason given at a subsequent time when Petitioner spoke to Mr. Ghagvini concerning Petitioner's termination. Mr. Ghagvini said that he had heard from Superintendent Smith and that he was going to leave it at that. Petitioner presented no evidence concerning his claim that Whites were allowed to stand around and talk and that black employees were not allowed to do so, or that black employees were in any manner worked harder than white employees. Notwithstanding the prospect that Mr. Smith's motives when telling Petitioner not to speak to female employees on the job was racially motivated, the reason for Petitioner's dismissal was in relation to his failure to attend his duties on Saturday at various times. That explanation was not created as a pretext to divert attention from racial discrimination. After his termination from Respondent, Petitioner filed for unemployment and received those unemployment payments until his eligibility ran out. In that time period he looked for jobs. Eventually Petitioner obtained a position as a pipe layer with Sayaler Utility. He began employment with that company in October 2002, and the employment was continuing at the time of the hearing. Petitioner receives $8.00 an hour for his work and works on an average 35 hours a week. When he was dismissed from his employment with Respondent, Petitioner was receiving $8.50 an hour and was working an average of 35 hours a week.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by FCHR dismissing Petitioner's Petition for Relief in all respects. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2003. COPIES FURNISHED: Lonnie Jennings Post Office Box 782 Greenville, Florida 32331 Vehad Ghagvini, President Vicki Goodman, Personnel Representative Sandco, Inc. 2811 Industrial Plaza Drive Tallahassee, Florida 32310 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 Whether Petitioner was terminated from her position with Respondent as a picker/stock keeper on or about September 26, 2001, on the basis of her race (African-American) and/or gender (female), in violation of Section 760.10(1)(a), Florida Statutes (2001).
Findings Of Fact Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a temporary employee to perform the job of picker/stock keeper at its Parts Distribution Center in Orlando, Florida, during the time period from September 12, 2001, to September 26, 2001, the date she was terminated. Petitioner worked a total of 14 days for Respondent. Petitioner is an African-American female, a member of a protected class. The Parts Distribution Center for Respondent in Orlando, Florida, is a facility that holds automotive parts that are then shipped to dealerships. All temporary employees at Respondent are at-will employees. Temporary employees are told during their orientation that they are at-will employees who can be terminated at any time, for any reason. Temporary employees at Respondent are only eligible to work 119 days. Most temporary employees are not offered full time permanent employment. There is no guarantee that a temporary employee will receive an offer to work as a permanent employee. Petitioner was hired to perform the job of picker/stock keeper. A picker/stock keeper takes parts off of shelves to be shipped to dealerships. Petitioner participated in an orientation, and Petitioner received the same training as every other temporary employee. Petitioner worked the night shift. Respondent maintains written Standards of Conduct to which all employees must adhere. The Standards of Conduct apply to both temporary and permanent employees. The Standards of Conduct were in effect in September 2001, when Petitioner worked as a temporary employee. All employees are given a copy of the Standards of Conduct when they are hired. Petitioner received a copy of the Standards of Conduct when she was hired, and the Standards of Conduct are posted throughout the plant. The Standards of Conduct provide that an employee's "[f]ailure or refusal to follow the instructions of supervision" is grounds for "disciplinary action up to and including discharge." The supervisors who worked at Respondent's Distribution Center during Petitioner's employment were Richard Alvarez ("Alvarez") (Hispanic male), Lenier Sweeting ("Sweeting") (Black male), and Joe Bromley (White male). Alvarez was temporary supervisor for the night shift from June 2001 until December 2001. Alvarez was Petitioner's direct supervisor. Sweeting was a supervisor in September 2001. Sweeting was chosen to become a supervisor by Hal McDougle, a Black male. Sweeting was the supervisor on the day shift when Petitioner worked at the Distribution Center. His shift ended at 3:30 p.m. but he stayed in the building to help with the transition to the night shift. Alvarez would normally walk Sweeting to the front door to discuss what had occurred during the day shift. On September 25, 2001, Sweeting was walking past the bathroom with Alvarez and heard two women talking and laughing in the bathroom. Alvarez recognized one of the voices to be that of Petitioner. Alvarez had heard rumors that Petitioner had been taking a lot of extended breaks and told Sweeting about the complaints he had been receiving. Alvarez received at least two complaints, and possibly four or five, from Petitioner's co- workers that she was taking extended breaks and not on the floor working. Alvarez wanted to wait and see how long Petitioner remained in the bathroom. Sweeting and Alvarez waited outside the bathroom until they saw Petitioner exit the bathroom with Maria Dejesus. Alvarez believes that he and Sweeting waited outside the bathroom for approximately ten to 15 minutes. Alvarez told Petitioner that she had been taking an extensive break and needed to go back to work. Sweeting witnessed Alvarez tell Petitioner to go back to work in a professional tone. Alvarez also told Petitioner that he had heard rumors that she was taking extended breaks. He told her that since he saw it first hand, he wanted to mention it to her and let her know it would not be tolerated. Petitioner asked Alvarez which bathroom she could use in a very sarcastic tone. Sweeting observed Petitioner ask this question. Alvarez told Petitioner that he did not care which bathroom she used, as long as she did not abuse the break period. Petitioner proceeded to ask Alvarez in a sarcastic tone which bathroom she could use several times throughout the night. Despite Petitioner's sarcastic tone, Alvarez answered her questions professionally. Alvarez never asked Petitioner how old she was, whether she was married or how many children she had. Sweeting asked Maria Dejesus to go back to work as well. Sweeting and Alvarez have told other employees to go back to work when they have observed employees taking extended breaks. They have spoken to employees of both genders and all racial groups. On September 26, 2001, Alvarez assigned Petitioner to the "fast rack" area. Petitioner had never previously worked in the fast rack area. Alvarez personally instructed Petitioner in how to perform the assignment. Alvarez told Petitioner to pick the parts and put them on a rack float. After Alvarez gave Petitioner her instructions, Petitioner began her assignment. Petitioner never asked Alvarez any questions about her assignment or expressed that she was having difficulty with the job. Wanda Carithers ("Carithers") saw Petitioner using the wrong equipment to complete her assignment. Petitioner was using a bin cart instead of a float to pick the items. Alvarez noticed that Petitioner's assignment was running late. Alvarez walked over to the fast rack area and asked Petitioner two questions. Alvarez asked Petitioner whether she was going to be able to pick the whole assignment using the bin cart that she was using. Petitioner did not respond to or acknowledge Alvarez. Alvarez then asked Petitioner if she was almost done with her assignment. Petitioner rolled her eyes and said, "Your first question, yes, second question, no." Alvarez was very uncomfortable with Petitioner's response and demeanor. Alvarez told Petitioner that perhaps they had gotten off on the wrong foot. Petitioner asked Alvarez something about her union rights. Alvarez saw Petitioner's co-worker, Carithers, who was a union representative, driving by. Alvarez asked Carithers to explain to Petitioner her union rights as a temporary employee. During this conversation, Alvarez tried repeatedly to talk to Petitioner and on each occasion, Petitioner cut Alvarez off and would not let him speak. When Alvarez realized that he was not making any progress with Petitioner, he asked her to go to the warehouse office so that they could talk to a senior supervisor, Al White ("White") (Black male). Alvarez hoped that they could work out their differences with White's help. Alvarez started to walk approximately ten steps. He turned back and realized that Petitioner was not moving towards the office. Alvarez walked back to Petitioner and asked her a second time to go to the office. Once again, Petitioner did not move. Alvarez told Petitioner, "This is your last chance; go to the warehouse office." Once again, Petitioner did not move. Alvarez, after asking Petitioner to go to the office three times with no response, told Petitioner that her services were no longer needed, that she should gather up her things, and that she was terminated. Alvarez terminated Petitioner for her failure to follow a direct order of her supervisor in violation of Respondent's Standards of Conduct No. 6. Petitioner refused to move even after she was terminated. Petitioner asked Alvarez to reconsider, and he said that he had made up his mind. Alvarez started to walk away. When he saw that Petitioner was still not moving, he told her that he could call law enforcement to escort Petitioner off the property. Alvarez, and ultimately Petitioner, walked to the office. White asked Petitioner if she knew why she was terminated. Petitioner never asked to have someone from the union with her in the office until after she was terminated. At that time, Alvarez and White complied with her request and paged Rodney Witt, a union official, to come to the office. Carithers observed Petitioner fail to follow Alvarez's instruction to go to the office. Carithers recalls that Petitioner told Alvarez that Petitioner did not have to listen to Alvarez. Amber McPherson heard Alvarez call Petitioner to the office several times. Petitioner did not respond to Alvarez's requests. Sweeting has never experienced discrimination from management while working for Respondent for over seven years. Sweeting has never heard Alvarez make any gender or race-related comments or slurs. Sweeting has never heard any management employee at Respondent make a gender or race related comment or slur. Alvarez did not consider Petitioner's gender or race when he made the decision to terminate Petitioner. In addition, Petitioner lied on her application to Respondent and failed to indicate that she had been terminated from a prior employment. Petitioner had been terminated from Walt Disney World Company for theft. If Respondent had known that Petitioner had lied on her application or had been terminated for theft from a prior employer, it would not have hired her. Had Respondent learned that she had lied on her application after she was hired, she would have been terminated. Petitioner had no idea why she thinks she was treated differently based upon her gender or race. She just had a "feeling" or a "hunch." Petitioner had no evidence or information that her termination was based on her gender or race. Petitioner had no idea why she was terminated. She did not believe that it was because she failed to follow a command. Petitioner had no idea whether her supervisor, Alvarez, considered her gender or race when he terminated her employment with Respondent. Petitioner bases her claims that Respondent discriminated against her on the fact that there is general racism and sexism in society. Petitioner checked the "sex" and "race" box on her FCHR Charge of Discrimination simply because she is female and African-American. Petitioner felt as though she was harassed but cannot articulate a reason for it.
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 8th day of April, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 8th day of April, 2003. COPIES FURNISHED: Stephanie L. Adler, Esquire Susan K. McKenna, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Dorothy J. McCrimmon 5361 Commander Drive Number 304 Orlando, Florida 32822 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner was hired by Respondent in January, 1986, as a dishwasher at $4.00 per hour. Because of his good work and dependability, Petitioner received periodic increases in his rate of pay, and in May, 1987, he became head dishwasher at $6.00 per hour. Respondent's owners also own certain apartments located next to their restaurant, and since Petitioner had been a dependable employee, he was given the additional responsibility of showing these apartments when anyone wanted to rent one that was vacant. He also performed repair and maintenance work on the apartments Petitioner was allowed to take time off from his job as head dishwasher to show vacant apartments, and was periodically assigned work to do on the apartments when he was not working at the restaurant. Petitioner agreed to, and was readily willing to perform these additional duties for which he was allowed to live in one of these apartments for $15.00 per week, rather than the normal rate of $65.00 per week. Beginning in October, 1987, Petitioner began to call in sick to his job at Respondent on a regular basis. Between the week of October 18, 1987, and his termination on January 12, 1988, he did not work a full forty hour week. This was during Respondent's busy time when business was especially heavy, and was a great inconvenience to other staff and the owners of Respondent. Frequently, Petitioner gave virtually no notice of his absence. Due to his repeated absences, and his lack of dependability, Respondent terminated Petitioner on January 12, 1988. Thereafter, Petitioner timely filed a complaint of discrimination with the City of Clearwater, Office of Community Relations. Petitioner introduced no evidence in support of his allegation of discrimination based upon race. He alleges that a white woman was hired to replace him, but he did not identify her, or in any way corroborate his charge. Respondent disputed this allegation, and denied that Petitioner's discharge was due to anything but his repeated absences and increasing lack of responsibility. There is absolutely no evidence that Petitioner was terminated based upon racial considerations.
Recommendation Based upon the foregoing, it is recommended that the City of Clearwater, Office of Community Relations, enter a Final Order dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of September, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1988. COPIES FURNISHED: Amyer Jones 1343 San Remo Street Clearwater, Florida 34616 Richard R. Logsdon, Esquire 1423 South Ft. Harrison Street Clearwater, Florida 34616 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618 Ronald McElrath, Director Office Of Community Relations Post Office Box 4748 Clearwater, Florida 34618
The Issue The issue is whether Respondent discriminated against Petitioner based on his national origin in violation of Section 760.10(1), Florida Statutes (2008).
Findings Of Fact Respondent operates a residential and commercial waste collection and disposal business. Respondent has multiple locations across the southeastern United States. It employs approximately 8,623 employees. Payroll Management, Inc. (PMI) is an employee leasing company. It assists companies with their human resource issues, payroll needs, employee benefits and worker compensation coverage. Respondent is a client of PMI. Petitioner is an Hispanic male, who was born in Cuba in 1972. As a permanent resident, Petitioner is entitled to work. Petitioner is able to speak some English but occasionally needs a Spanish interpreter. David Otano was a driver/supervisor for Respondent's predecessor in Panama City, Florida. When Respondent bought the predecessor in 2006, Mr. Otano worked as operations manager for Respondent. Petitioner and Mr. Otano are friends. In February 2008, Mr. Otano recommended that Respondent hire Petitioner as a "slinger." A slinger rides on the back of a garbage truck to assist the driver in collecting garbage. On February 11, 2008, Petitioner filled out an employment application with PMI. At that time, Petitioner signed an acknowledgement that he was a leased employee of PMI who was assigned to work for a work site employer. Among other things, the acknowledgement stated as follows: I acknowledge that I am aware that PMI adheres to a grievance policy and it is the employee's right to file a grievance if he/she feels they have been unfairly treated. I understand that if I do not utilize the grievance procedures, my unemployment benefits may be denied me. PMI's employment application package also includes the following employee's certifications/acknowledgements: I CERTIFY and ACKNOWLEDGE that the following is true and correct: I have read, have been read, or will read IMMEDIATELY upon hire, the Employee's Post-Hire Handbook ("Handbook"). Further, I understand and agree to the provision as stated in the Handbook and within the Post- Hire Handbook, Post-Hire Packet, policy manual and safety manual. * * * I hereby acknowledge that I have received a copy of the PMI Post-Hire Handbook . . . . Petitioner signed the certification/acknowledgement on February 2, 2008. PMI's Post-Hire Handbook contains the company's harassment policy. The policy provides as follows in pertinent part: 3. Any employee who feels victimized by harassment should IMMEDIATELY report it to PMI's Human Resource Department . . . PMI will undertake a careful investigation, which may include interviewing other employees who have knowledge of the alleged incident or similar situations. Your complaint, along with the investigative steps and findings, will be documented in accordance with our dispute resolution procedures. PMI routinely trained Respondent's managers and supervisors about the non-discrimination policy. The instruction included an admonition to make decisions about employees based on their work performance and not because of their ethnicity or any other reason. Respondent and PMI knew that Spanish was Petitioner's first language when he was hired. They also knew Petitioner was originally from Cuba. At times, Petitioner had difficulty communicating with his direct supervisor, Penny Atkins. On those occasions, Ms. Atkins found another Spanish-speaking employee, such as Mr. Otano, to act as a translator and/or interpreter. It was not unusual for Respondent to employ people who spoke very little English. For example, Respondent once hired a Russian who spoke limited English. There were no problems with Petitioner's work performance when he was on a route. However, Petitioner was sent home when he was not dressed properly, such as wearing shorts instead of long pants or not having on work boots. Petitioner lived about two miles from the work site. When he was sent home, Ms. Atkins expected him to come right back to work. Decisions to send Petitioner home due to improper clothing were not based on Petitioner's national origin. Residential slingers usually worked Monday, Tuesday, Thursday, and Friday. Sometimes, Petitioner was sent home when there were too many slingers and not enough routes to run. If possible, such time off would be made up on a Wednesday. Occasionally, instead of sending a slinger home, Ms. Atkins would allow two slingers to ride on the back of one residential truck. At other times, Petitioner was given more work or extra routes to ride when there were not enough slingers. There is no persuasive evidence that Ms. Atkins' scheduling decisions were related to the national origin of any employee. Mr. Otano testified that Ms. Atkins wanted him to fire Petitioner because Petitioner did not speak English. Mr. Otano's testimony in this regard is contrary to more persuasive evidence. In April 2008, Mr. Otano's job description changed. Instead of being operations manager, he became a supervisor on an equal footing with Ms. Atkins. Mr. Otano considered the change a demotion. Even though Mr. Otano was no longer in Petitioner's chain of command, he continually complained to Ms. Atkins that she was not treating Petitioner fairly. Because Mr. Otano and Ms. Atkins argued about Petitioner, Respondent's general manager told Mr. Otano to worry about his own responsibilities, roll- offs and front loads, and to let Ms. Atkins worry about residential. In April 2008, Petitioner's wife had a car accident. Petitioner called Ms. Atkins to inform her that he would not be at work the morning after the accident. Ms. Atkins sent a driver in a truck to pick up Petitioner. Sometime in July 2008, Petitioner complained to Respondent's general manager that Ms. Atkins was discriminating against him. Petitioner understood that his complaint would be investigated. On August 28, 2008, Petitioner suffered an injury to his arm and shoulder while working as a slinger. He was transported to a local emergency room/walk-in medical facility. Respondent immediately reported the accident to PMI who was responsible for handling the workers’ compensation claim. After receiving medical treatment and physical therapy for a period of time, Petitioner returned to work with light- duty work restrictions imposed by his physician. Ms. Atkins told Respondent there was no such work available at the work site and sent him home. A second doctor's note dated September 29, 2008, stated that Petitioner could do no work for three weeks. On or about September 29, 2008, Respondent decided that it would be able to accommodate Petitioner's need for light-duty work with restrictions as required by a doctor's note. Once that decision was made, Chris Traughber, Respondent's safety manager, called PMI. PMI then contacted Petitioner's physician to let him know that Respondent would accommodate any restrictions if Petitioner was released to work. On or about October 2, 2008, PMI received a note from Petitioner's physician. According to the note, Petitioner was released to work with restrictions of no lifting, pushing, or pulling, effective that same day. Petitioner reported to work on October 3, 2008. At that time, Petitioner was taking a prescription drug for pain, Lortab. For light-duty work, Ms. Atkins instructed Petitioner to sit in a chair under a shed in the yard and note the truck numbers and times that each truck entered and left the yard. The job could not have been performed anywhere but outside in the yard near the gate. The trucks usually left in the early morning around 4:30 a.m. Some trucks would return around 8:00 or 9:00 a.m. Others would return at 6:00 p.m. Trucks might come and go from the yard anytime there was a mechanical problem with a truck on a route. The shed provided Petitioner shade and some protection from rain. Respondent created this job for Petitioner in order to return him to work. Ms. Atkins did not tell Petitioner that he could not take breaks or go to the bathroom. The most credible evidence indicates that Petitioner sometimes visited with Natalie Richardson, Respondent's dispatcher, in the air-conditioned dispatch office on his breaks. There are restrooms in the dispatch office and in the mechanic's shop area. There also was a portable toilet close to the shed where Petitioner was stationed. Petitioner's testimony that he urinated in his clothes on September 7, 2008, because it was raining and he was not allowed to go to the bathroom is not credible. Petitioner also took lunch breaks while he was working light duty. On one occasion, Petitioner left for lunch and did not come back to work. On or about October 8, 2008, Petitioner was sitting under the shed at work when he had a seizure or fainting spell that caused him to fall down on the ground and foam at the mouth. An ambulance transported Petitioner to the emergency room of a local hospital. There is no competent medical evidence regarding the incident. A doctor's note dated October 10, 2008, stated that Petitioner could return to light-duty work on October 18, 2008, with restrictions against swimming, driving, or climbing. On or about October 14, 2008, PMI sent a memorandum to Respondent, advising that Petitioner could return to light-duty work on October 18, 2008, with restrictions of no swimming, driving, or climbing. Petitioner returned to work light duty as restricted by his physician. Once again Respondent directed Petitioner to sit under the shed and count trucks. He was able to go to lunch and take breaks as needed. On or about October 13, 2008, Petitioner spoke to Respondent's general manager at the work site. During the conversation, Petitioner complained that Ms. Atkins was harassing him and treating him unfairly. Petitioner was told to go ahead and file a complaint with PMI. Petitioner subsequently filed a complaint with PMI, alleging that Respondent was harassing him and treating him unfairly. That same day, PMI learned that Petitioner had filed an employment discrimination claim with FCHR. Because FCHR was investigating the grievance, PMI did not investigate Petitioner's allegations. In the fall of 2008, Respondent began a reduction-in- force (RIF) process for economic reasons at multiple work sites. On or about November 21, 2008, Petitioner was reassigned to PMI along with over 30 other employees, several of which worked at Petitioner's work site. Respondent's Chief Financial Officer, Bruce Roy, decided which employees would be reassigned to PMI during the RIF. Mr. Roy worked at Respondent's corporate office and did not directly supervise the employees on the list. Petitioner's testimony that he was not aware that he had been reassigned until months later is not persuasive. The record is not clear as to the last day that Petitioner actually worked at the work site. Between October 2, 2008, and June 10, 2009, Respondent terminated/reassigned 99 employees at multiple work site locations. The RIF included men and women of Caucasian, African-American, Hispanic, and Asian ethnicities. There is no persuasive evidence that Respondent targeted Hispanics in deciding which employees to include in the RIF.
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 8th day of March, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2010. COPIES FURNISHED: John S. Mead, Esquire Michael WM Mead, P.A. Post Office Drawer 1329 Fort Walton Beach, Florida 32549 Jeffery Daryl Toney, Esquire Law Office of Jeffery D. Toney, Sr. 502 North Main Street Post Office Box 579 Crestview, Florida 32536 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
