Findings Of Fact At all times material hereto, Petitioner has been employed by the Respondent as a multi-trades worker. On or about September 2, 1987, Petitioner was demoted from the position of multi-trades worker III to II, with a 5% reduction in pay. He currently remains in the multi-trades worker II position. Petitioner was demoted because he made discriminatory and derogatory racial remarks to employees under his supervision. Specifically, he referred to black employees as "niggers, sambos and blackies" on several occasions. He also told a female employee under his supervision that he would not promote her because she was a woman. Following his demotion, Petitioner appealed this action to the Civil Service Board of Hillsborough County. On or about December 16, 1987, the Civil Service Board upheld his demotion based upon its finding that Petitioner had "uttered racial slurs, racially derogatory remarks and other insulting and abusive language directed toward subordinate employees under his supervision over an extended period of time and on a number of occasions." On or about March 24, 1988, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations, and after investigation, a finding of No Cause was entered. Thereafter, Petitioner timely filed a Petition for Relief alleging that Respondent had unlawfully discriminated against him due to his national origin, Hispanic. No evidence in this record supports Petitioner's allegation.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 7th day of February, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1989. COPIES FURNISHED: Clemente Quintana 162 Venice Circle Land O'Lakes, FL 34639 Catherine P. Teti, Esquire Post Office Box 1110 Tampa, FL 33601 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Constanza D. Scott, is a black female. She began employment with respondent, Wal-Mart Stores, Inc., d/b/a Sam's Club (Wal-Mart), on July 29, 1988, in its soft lines (men and women's apparel) department. The store is located in Tallahassee, Florida. She was a full-time employee and worked forty hours per week. Besides working full-time for Wal-Mart, beginning in August 1991 she worked "at least" twenty hours per week for Marriott Food Services at Florida State University, and she attended classes at an undisclosed Tallahassee college or university on Tuesdays and Thursdays from 1:30 p. m. until around 4:30 p. m. Petitioner's regular hours at Wal-Mart were from 5:00 a. m. to 1:00 p. m., Monday through Friday. From at least May 1991 until October 1991, her supervisor was Scott Cosby, an assistant store manager for the merchandising department. Cosby was replaced in October 1991 by Tim Strahan, Jr., who supervised petitioner until her termination on December 21, 1991. Wal-Mart refers to its procedure for handling disciplinary problems as performance coaching, and it involves a series of progressively sterner disciplinary measures taken against an employee. On the first occasion disciplinary action is warranted, the employee is given what is called verbal counseling. This type of action is not documented in writing and simply involves counseling by an employee's supervisor. If the problem persists, the employee is given a verbal warning, which is reduced to writing and placed in the personnel file of the employee. If a verbal warning does not result in the correction of the deficiencies, a written warning is issued, and the employee is required to prepare a responsive plan of action stating how the employee intends to correct the cited deficiencies. As a last resort, the employee is given a day off with pay, which is called a decision-making day, so that the employee can reflect on his or her performance and prepare a plan of action detailing how the deficiencies will be corrected. Thereafter, an employee is automatically terminated if further disciplinary action is required. On May 1, 1991, petitioner's supervisor (Scott Cosby) gave her a verbal counseling for "attendance problems." In response to this counseling, petitioner stated that she was very tired from school but would improve her attendance. On May 6, 1991, she was again cited for an "ongoing attendance problem." This is memorialized by a written verbal warning contained in her personnel file. On September 21, 1991, a second verbal warning was given by Cosby, this time for petitioner working overtime when Cosby apparently felt she could complete her work within the normal forty-hour week. Petitioner explained, however, that all overtime had been approved by the store manager. On October 7, 1991, Cosby again gave her a verbal warning for "not keeping up with 'basics of the business' consistently." In her action plan filed in response to this criticism, petitioner stated she would "do a better job of signing, cleaning, displaying, zoning and shrink wrapping," all specific duties of her job. During the week of November 11-15, 1991, petitioner was late to work every day. On one of those days, November 14, 1991, she telephoned an assistant store manager (Don Graves) and reported that her car would not start. She eventually came to work around 4:00 p. m. that afternoon. For her lack of punctuality, a written reminder was issued, which is the last step before decision-making day. On November 27, 1991, petitioner telephoned her team leader, Jennifer Christie, at 5:40 a. m. to say that her alarm clock had failed to go off and she would be late. Deciding not to accept any more excuses regarding her attendance and punctuality, Strahan, her supervisor since October, gave petitioner the day off with pay so that she could contemplate her future with the store. When she returned the next day, Wal-Mart agreed to accept petitioner's suggestion that her work hours be changed on Mondays, Wednesdays, and Fridays to 7:00 a. m. to 2:00 p. m., and on Tuesdays and Thursdays to 7:00 a. m. to 12 noon. This was done in order to accommodate her other work and school activities. The number of store employees at any one time is governed by the store sales. In other words, payroll (staffing) cannot exceed a percentage of current sales. In order to stay within the required percentage, a specified number of hours are allocated to each department within the store, and the department assistant manager determines how many employees can be employed within the allocated hours. When sales drop, workers are laid off, and when sales pick up again, Wal-Mart increases its work force. In December 1991, Wal-Mart was faced with a reduction in force due to declining sales. On a storewide basis, six part-time and three full-time positions were eliminated. In the soft lines department, which had four full-time and three part-time employees, a decision was made to eliminate one part-time and one full-time position in order to stay within the department's allocated hours. Strahan was charged with the responsibility of selecting the positions to be eliminated. In doing so, he was able to transfer Joyce Willis, a part-time black female employee, to the "front" since she had experience in operating a cash register. Of the four full-time employees, Jennifer Christie, the team leader and a white female, and Armie Brown, a black female, had seniority over petitioner, and neither had attendance or punctuality problems. In addition, Strahan considered both of them to be more "dependable" than petitioner. The third employee, Joe Watson, a white male, was an experienced fork lift driver for the store, and Strahan desired to retain him in that position. Although petitioner had been given some training in the operation of a fork lift, unlike Watson she had no actual on-the-job experience in that position. The only remaining full-time position was filled by petitioner, who had less flexibility in her work hours than the others due to requirements of school and her second job, and unlike the others, she had a record of disciplinary action during the preceding seven months for attendance and punctuality problems. For these reasons, Strahan selected petitioner's position as the full-time slot to be eliminated. Petitioner was called to a meeting with Strahan and the team leader on December 21, 1991. At that meeting Strahan told petitioner that he was forced to eliminate her full-time position due to a reduction in force caused by declining sales. Petitioner asked "why me?" and if there were any other full- time slots in the store to which she could be transferred. When Strahan replied there were none, petitioner said "you're full of shit, fuck you," and walked out of the office. Had she not departed, Strahan was about to offer her a part-time position. Because petitioner left the store, however, Strahan had no choice except to terminate her employment. According to petitioner's Associate Exit Interview form, which is prepared whenever a position is eliminated or an employee leaves, petitioner remains eligible for re-employment "when vacancies occur which the store needs to fill." She was unaware of this, however, and has never made application to be rehired. This is probably because she left the store before Strahan had an opportunity to have her sign the form and give her a copy. There is no evidence that petitioner's position was ever reestablished, and if so, whether it was filled by a person outside petitioner's protected class. Petitioner alleges that her position was eliminated solely because of her race. The evidence, however, belies that contention. Accordingly, it is found that petitioner's race played no role in the employment decision taken by respondent. Petitioner also contended she was a hard worker who did her assigned tasks, and she did not deserve the criticisms noted in her personnel file. For example, a minute or two after 5:00 a.m. the front door was locked and any late employees were then required to go to the back door of the store to gain entry to the premises. This added another ten or fifteen minutes for petitioner to reach her work station. Petitioner says this made it appear that she was fifteen or twenty minutes late when in fact she had been tardy by only a minute or two. Even so, by her own admission she was late on "numerous occasions," including every day during the week of November 11, 1991. She also complained that she did not get along with Cosby, a former supervisor, and denied that he twice counseled her for poor attendance in May 1991, as reflected in her personnel file. Even if petitioner's assertion is true, however, that employee left Wal-Mart in October 1991, which was before many of the relevant events occurred. While petitioner is to be highly commended for her work ethic (at least sixty hours per week plus school), the pertinent criticisms in her personnel file were substantiated and were properly taken into account by respondent in making its employment decision.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 28th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 28th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0318 Respondent: Partially accepted in finding of fact 1. Rejected as being unnecessary. Partially accepted in finding of fact 8. 4-5. Partially accepted in finding of fact 4. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 3. 9-11. Partially accepted in finding of fact 8. 12-16. Partially accepted in finding of fact 9. 17-19. Partially accepted in finding of fact 10. 20-21. Rejected as being unnecessary. 22. Covered in preliminary statement. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Constanza D. Scott 3250 West Tennessee Street, Lot 146 Tallahassee, Florida 32304 Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593
Findings Of Fact Petitioner, Mose Howard, Jr., was hired by the Respondent, K-Mart Corporation, as a night maintenance man at its store number 7339 located at 2620 N. Hiawassee Road in Orlando, Florida on July 10, 1984. According to Mr. Howard, his job was to help clean up after the store closed for the evening and to -notify the store authorities if and when the alarm went off during that period. His duty hours were from 9:00 p.m. to 7:00 a.m., Monday through Friday. He worked at the store for approximately six weeks during which time, according to him, he was never told by anyone in authority that his work was unsatisfactory. On August 16, 1984, Mr. Howard was called in by Mr. King who advised him that his work was not satisfactory. Mr. Howard contends that at the time in question, Mr. Ring gave him two pieces of paper to sign and advised him that if he didn't perform better, he'd be laid off. At the time, Mr. Howard looked at the papers and determined that his name was on them, but nothing else. The form in question was a Personal Interview Record consisting of two pages and Mr. Howard contends that that portion of the record dealing with the summary of discussion held between the parties at the interview was left blank. According to Mr. Howard, he signed the form in blank because he thought it was merely a notice that he was being placed on probation. In fact, though he may not have known it, he was on a probationary period from the time he was hired. During the course of the discussion, Mr. King advised him that the store had been receiving complaints about his work from undisclosed sources and also information that he had been sleeping on the job. Mr. Howard categorically denies having slept on the job at any time during the period of his employment and Respondent produced no evidence that he had. He admits, however, that his cleaning duties may have been, from time to time, accomplished in a less than satisfactory fashion. From time to time, when he was cleaning up paper and other debris from under the counters, crews of the contractor hired to maintain the floors in the store, whose job it was to strip and re-wax the floors periodically, were working on other aisles of the store. He contends that when this crew would go from one aisle to another, they would turn off and on the lights. Because he could not turn the lights on where he was working if the crew had previously turned them off, it was too dark for him to see and clean up well. He believes that it was this inability to clean up properly because of lack of lighting that formed the basis of the complaints against him. In addition, he states, the burglar alarms would periodically sound and when this happened, it would be necessary for him to call someone to come in and turn them off. This caused him to lose work time because when the alarm sounded, he felt he had to stop working and leave-the store because, had he stayed in there, the police might think he was breaking in. While denying, unequivocally, that he ever slept on the job, Mr. Howard admitted he would sit down from time to time in the break room but only on his two 15 minute breaks or during his 30 minute meal period. There were other times, he admits, that because of the lighting situation, he was unable to work in the store while the floor crew was there. In that case, he would sit down and wait until the crew would finish where it was working and he could go back to work. Sometimes this would be for an hour or even a couple of hours and during the period of enforced break from sweeping, he would try to find something else to do like cleaning the restrooms. In this regard, according to Mr. King, the cleaning of the restrooms was an integral part of Petitioner's responsibilities and his accomplishment of these duties was also periodically and repeatedly unsatisfactory. After the personnel interview conducted on August 16, 1984, Mr. Howard finished work for the evening and left. When he returned the following evening, a Friday, he was called in by another supervisor and advised that he was discharged. He says that at this point he was not given any reason for his discharge. However, he waited around outside the store until the closing time of 9:30 p.m. (approximately a half-hour after he came to work and was fired), went into the office, and picked up his paycheck from Payroll. The check he received that night was for all that was owed him up to the end of the pay period. A few days later, (the following Monday), he went back and was given another check for the day and a half wages owed him for the new pay period up until he was discharged. Mr. Howard denies having received a call in advance to advise him his work was unsatisfactory nor was he given a reason for being fired. Nonetheless, he did not question the basis for his firing either on August 17, or the following Monday, but merely accepted the pay due him and left. Even though Mr. Howard says he was not given a reason for his discharge and does not know why he was fired, he is convinced the discharge action was taken on the basis of his race because he always did his duty to the best of his ability and worked extra hours without pay on many occasions. It is because of his own satisfaction with his duty performance that he contends his discharge must have been racially motivated. However, he admits that no one from K-Mart Corporation or the store in which he worked ever gave him any indication of a desire to get rid of him or other black employees. Further, during the period of time he worked there, he never heard any racial comments or slurs from any employees, either upper management or low level, except from one young stockboy who used the term "nigger" frequently. He admits to being told on one occasion by an employee of the contractor that he had missed an area in his sweeping and had to go back and do it again and, on several occasions, he observed areas he missed and went back and cleaned them on his own, but aside from those instances, he contends no one from the corporation ever complained to him about the way he was performing his duties until the night of August 16, 1985, when he was interviewed by Mr. King about his performance. Even on that occasion, according to Petitioner, there were few specifics in Mr. King's comments. As he remembers it, Mr. King merely stated that he was deficient in keeping the floors, the walls, the restrooms, etc. clean but Mr. Howard states that these allegations are all lies. Mr. King, on the other hand, indicates that when Mr. Howard was hired, he was fully briefed on the nature and scope of his duties and was taken around the store and shown where and how things were to be done. At that time, the routine janitorial. duties such as wet mopping the floors, cleaning the restrooms and the cafeteria, and the other items of a similar nature were clearly made known to him. In the interim, Mr. King has personally discussed his performance, which was not up to par with Mr. Howard on at least three or four separate occasions, including in his comments such things as the stools not being kept clean, the floors not being mopped, spots being left on the mirrors. These duties and others of a similar nature were solely the responsibility of the Petitioner on the nights he worked. On each occasion, Mr. King found Petitioner's attitude to be negative. Mr. Howard gives the impression he feels he is performing satisfactorily and if management doesn't like the way he's doing his job, that's too bad. Though Mr. Howard contends that the problems he faced in accomplishing his duties were caused by the low availability of light in the store after closing hours due to the actions of the contractor's crew, he never complained to anyone about this. He didn't feel he had to say anything to the contractor's employees because he did not work for them and he felt that they could see the problem because it was obvious. He also contends that he cleaned the ladies' room as he was required to do and that any unsatisfactory condition may well have been caused by two white contractor's employees who would sleep in there from time to time. Again, he did not say anything to the contractor or anyone else about this because he thought what was happening was obvious. Petitioner's deficiencies and the counselings he received for them ultimately culminated in the personal interview reduced with a written memorandum on August 16, 1985. At that time, Petitioner was told that if he didn't improve, it would be necessary to get someone else to do the job. The personal interview on August 16, 1984 was the last effort on the part of K-Mart management to get Petitioner to do a better job. The description of his deficiencies, according to Mr. King, was placed on the interview form before the interview and was given to Petitioner to read at the time. Mr. King is quite certain that Petitioner looked at the form containing these comments and signed it. The personnel manager for the store was present at the time. When the work was not done properly that August 17, 1984 when he came to work, he recommended Petitioner's termination to the store manager. The other assistant manager, Mr. Avera, concurred in this recommendation on the basis that Petitioner was simply not getting the job done. Mr. King unequivocally denies that his recommendation for termination was racially motivated. He has, in the past, recommended only one other termination of an employee. This employee was white. The list of all employees terminated by this K-Mart store from August , 1983 through November, 1984, with reasons therefor, reflects that of the three other night maintenance personnel terminated during that period, two were white and one was black. The reasons for termination include sleeping on the job, unsatisfactory performance and drug possession. Of the fifteen total employees discharged during the period, at least ten were white, four were black, and one is not identified by race. On balance it is clear that Mr. Howard was terminated not as a result of any racial motivation but simply because he was a probationary employee and management was dissatisfied with his performance during the period of probation. Mr. Howard rejects Mr. King's evaluation of him on the basis that Mr. King did not personally supervise his work and that his analysis is based on matters outside his personal knowledge. He contends that his work was always done to the best of his ability and he does not accept the possibility that his performance could have resulted in his termination. Nonetheless, he does not know if any other black maintenance employees were discriminated against or, for that matter, if any other black employees in any job were discriminated against at this facility. Mr. Howard denies signing the separation report that was prepared on the night of his discharge even though, admittedly, it bears his signature. It is for this reason as well as because of his denial that any detail was included on the interview report when he signed it that a question is raised as to the accuracy of his analysis of the situation. In substance, there is ample evidence with specifics to establish the legitimate ground of inappropriate performance as the basis for his discharge and very little evidence other than his allegation to support a claim of racial prejudice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Petition of Mose Howard, Jr. be denied. RECOMMENDED this 30th day of September, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 30th day of September, 1985. COPIES FURNISHED Mose Howard, Jr. 67 West Michael Gladden Blvd. Apopka, Florida 32703 Janice Paulsen, Esq. International Headquarters K-Mart Corporation 3100 West Big Beaver Road Troy, Michigan 48084 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303 Aurelio Durana General Counsel Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, FL 32303
The Issue The Petitioner's Amended Petition for Relief involves matters which have been the subject of final agency action in other administrative and court proceedings in which the Petitioner was a party. On September 1, 1987, the Respondent filed a "Motion to Take Official Recognition" pursuant to Section 120.61, Florida Statutes, in which the Respondent prayed for an order taking official recognition of the Final Orders in each of those proceedings and prohibiting the parties from relitigating issues previously adjudicated in those proceedings. Respondent's motion is well taken and is GRANTED in all respects. Therefore, the hearing is limited to a consideration of whether the Respondent was in violation of Section 760.10, Florida Statutes. The issue presented is whether the Respondent has discriminated against the Petitioner in its employment practices on the basis of the Petitioner's race or sex in violation of Section 760.10, Florida Statutes, in the hiring of persons for the 15 positions for which the Petitioner applied between January 1, 1985 and August 27, 1985.
Findings Of Fact Stipulation and Admissions Petitioner is a black male. Respondent is a public employer within the meaning of Section 760.02(6), Florida Statutes. During the period between January 1, 1985 and August 27, 1985, the Petitioner applied for 15 positions within the school district of Leon County, Florida. Findings Based on Evidence Presented at Hearing Petitioner, James Weaver, holds a bachelor's degree in political science with a minor in history from North Carolina A & T State University in Greensboro, North Carolina; a master's degree in education with a concentration in social studies from the same institution; and a Ph.D. in education leadership with a concentration in adult education and social studies from Florida State University. The Petitioner held these degrees prior to his employment with the Respondent. The Petitioner has been certified to teach social studies in grades 7-12 since July 1, 1978 and is certified through June 30, 1993. The Petitioner taught social studies at North Carolina A & T State University while working on his master's degree in 1974-75. While an officer in the U.S. Air Force, he taught history at Gulf Coast Community College in Panama City, Florida. The Petitioner was given a year's teaching credit for teaching social studies at FAMU High School from January 1980 until June 1980. Petitioner was a substitute teacher for the Leon County School Board from the period 1979 until 1985. He held a temporary position with the Leon County School Board from November 2, 1984 until March 15, 1985. He had significant teaching experience. Based upon his master's degree in social studies, the Petitioner is qualified to teach social studies in the schools of the State of Florida. This is the minimum qualification necessary for the positions for which the Petitioner applied. The Petitioner applied for 15 positions, six of which were part-time hourly positions and nine of which were full-time. The Respondent filled 11 of the 15 positions. Four of the positions, one full-time and three part-time, were not filled due to budgetary constraints. However, one full-time position was filled twice and one part-time position was filled twice. Consequently, there were nine hiring opportunities for full-time positions and four hiring opportunities for part-time positions. The evidence indicates that the wages and benefits for the part-time positions were less than the wages and benefits for full-time positions. When the statistics are analyzed separately for full-time and part-time positions which were actually filled, a picture develops which is different from what Respondent reports. The Respondent reports that there were 109 white applicants and 73 black applicants and 1 applicant from the group denominated as "other" for all 15 positions. Further, Respondent represents that 89 of these applicants were male and 94 were female. Based upon these statistics, approximately 60 percent of the applicants for the 15 positions were white and 40 percent were black. The Respondent represents that 64 percent of the persons hired were white and 36 percent were black based upon its statistics which combine full-time and part- time positions and positions which were filled and not filled. These representations distort the real picture and are rejected. There were only 23 applicants for the three part-time positions which were actually filled: 15 blacks (65 percent) and 8 whites (35 percent). There were 85 applicants for the full-time positions which were actually filled: 27 blacks (32 percent) and 58 whites (68 percent). The 35 percent of applicants for part-time jobs who were white accounted for 50 percent of those hired, and the 68 percent of the applicants for full-time jobs who were white accounted for 87.5 percent of those hired. Appendix B, based on Respondent's Exhibits 8 and 9, is included and made a part of these findings. Appendix B sets forth the closing date, position number, location, type of position, number of applicants, a break down of the applicants by race and sex, the race and sex of the individuals hired to fill the positions, and indicates by a single asterisk those positions in which individuals were hired who had not applied for the positions. In Appendix B, those positions indicated by an asterisk clearly reflect that the individuals hired to fill the position are inconsistent with the race and sex of applicants reportedly applying for the jobs. For example, in the first position, a white male was hired for the position yet the break down of the applicants by race and sex indicate that there were no white male applicants. Either the Respondent hired persons to fill the positions who did not apply for the positions or the data provided by the Respondent in Exhibits 8 and 9 to show the relative equality of its hiring practices is inaccurate. The Respondent offered the testimony of those administrators who made the hiring recommendation to the Respondent regarding the positions involved in this case. In two cases, position 0040-0011 and position 0040-0001, the reason the Petitioner was not hired was that the administrator making the recommendation was actually hiring a coach for one of the school's athletic teams; however, coaching was not a stated part of the positions' criteria. At Fairview, the Petitioner was not considered because the administrator could not contact the Petitioner at his home number during the day. Other administrators within the system indicated that they called applicants after 5:00 p.m. and took other action to notify them of job interviews. In the remaining cases, the administrators stated that the sole reason they did not hire the Petitioner was because he lacked experience in teaching. There was no evidence presented concerning the experience of Messina who filled position 0590-0004, the Detention Teacher at Rickards High School. Nix(W/F) had a BS and two years of experience, Davis(W/M) had a BS and five years of experience, McCarron(W/F) had a BS and six years of experience, and Boggs(W/M) had an MS and five years of experience. Nix, who had the least experience, was employed in two full-time positions at Fairview Middle School. Only the administrator at SAIL facility presented credible testimony that the conditions of teaching at that facility were unique and that Cynthia Waddell, who was employed, possessed specialized training and experience required in the job. It was established that the Respondent had a legitimate, nondiscriminatory reason for not hiring the Respondent at SAIL.
Recommendation Having found that the Petitioner has presented a prima facie case of discrimination, and having found that the Respondent did not have a legitimate, nondiscriminatory reason for not hiring the applicant, it is RECOMMENDED that the Commission grant the Petitioner such relief as is necessary to rectify the Respondent's discrimination against him to include but not limited to a Final Order directing the Respondent to desist from its discriminatory practices, to hire Petitioner in a full-time position, and to award him attorney fees. DONE and ORDERED this 18th day of November, 1987, in Tallahassee, Florida. STEPHEN F. DEAN 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 18th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0605 The Respondent presented Proposed Findings of Fact and Conclusions of Law which were read and considered by the Hearing Officer, as follows: Incorporated in Appendix B. Adopted. Rejected on the basis of the inconsistencies in the data pointed out in Appendix B. True; however, it is rejected as irrelevant. 5-6. Rejected on the basis of the inconsistencies in the data pointed out in Appendix B. 7-9. Consistent with the testimony of the administrators; however, their testimony is inconsistent with the statistical facts and it is highly doubtful that these administrators would admit to any discriminatory motive. 8-10. Portions of these paragraphs relating to the Petitioner's background experience and certification are adopted and consolidated. Rejected. See transcript, page 69. First sentence is rejected as inconsistent with the evidence. Remainder of the paragraph is rejected as irrelevant. Although the Notice of Determination: No Cause was read and considered, it was concluded that the Commission's hearing officer had not considered the eight full-time positions separately and had not identified the inconsistencies in the statistics submitted by the Respondent. The Petitioner presented Proposed Findings of Fact and Conclusions of Law which were read and considered by the Hearing Officer, as follows: 1-8. Adopted 9. Rejected as irrelevant 10-12. Adopted 13 Restated in greater detail. SAIL articulated a legitimate, nondiscriminatory reason for not hiring Petitioner. 14. Petitioner lost the wages he would have earned from Respondent. Petitioner was not employed in other positions during the period. However, the statute apparently does not permit recovery of economic damages, therefore, 14 is irrelevant. APPENDIX A SCHOOL # APPS. B/M B/F W/M W/F HIRED *01/08/85 0040-0011 Lincoln Soc. Studies 3 1 1 0 1 W/M Davis 01/11/85 0590-0004 Rickards Det. Tchr. 12 2 4 2 4 W/M Messina 01/11/85 0011-0051 Ad. Ed. Adult Ed. 8 1 6 1 0 B/M Weaver 01/18/8 0040-0003 Rickards Soc. Stud. 7 2 0 2 3 B/M Parrish *01/18/85 0011-0051 Ad. Ed. Adult Ed. 3 0 0 1 2 B/M Weaver *01/25/85 0011-0087 Gilchrist Adult Ed. 13 3 5 0 W/F 4 Stephenfield W/M Andrews 02/01/85 0011-0051 Ad. Ed. Adult Ed. 26 3 8 4 11 N/A 02/08/85 0011-0087 Gilchrist Adult Ed. 4 2 1 0 1 N/A 02/12/85 0011-0051 Ad. Ed. Adult Ed. 12 2 2 3 5 N/A 02/15/85 0590-0005 Fairview Detent. Tchr. 14 5 4 1 4 W/F Nix 06/14/85 0040-0011 Lincoln Soc. Studies 14 3 1 8 2 W/F McCarron B/M Parrish *06-14-85 0040-0006 SAIL Soc. Studies 6 2 0 4 0 W/F Waddell 08/23/85 0590-0005 Fairview Detent. Tchr. 32 5 8 12 7 N/A 08/23/85 0040-0010 Fairview Soc. Studies 19 1 0 11 7 W/F Nix 08/23/85 0040-0001 Leon Soc. Studies 10 1 0 7 2 W/F Boggs Based upon Resp. Exh. 8 & 9. *Person hired did not apply based on Respondent's data. COPIES FURNISHED: Curley R. Doltie, Esquire Post Office Box 125 Tallahassee, Florida 32302-0125 Graham Carothers, Esquire AUSLEY, McMULLEN, McGEHEE, CAROTHERS & PROCTOR 227 South Calhoun Street Post Office Box 91 Tallahassee, Florida 32302 Donald A. Griffin Executive Director Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
The Issue Whether Respondent, Milos, illegally terminated Petitioner based on her race (Black), in violation of the Florida Civil Rights Act ("FCRA"), section 760.10, Florida Statutes (2018).
Findings Of Fact The undersigned makes the following findings of material and relevant fact: Petitioner is a Black female who worked for Milos as a line cook. Respondent is a Greek restaurant located in Miami, Florida. On January 12, 2016, Respondent hired Petitioner for a line cook position. Petitioner was interviewed and hired by Arsan. Arsan supervises all back-of-the-house staff and was Petitioner's supervisor throughout her entire 20-month period of employment. On May 30, 2016, approximately four and a half months after Petitioner's hire at Milos, Arsan gave Petitioner a raise in pay because he felt that she was performing well. Many of the employees Arsan supervises at Milos are Black. PETITIONER'S PERFORMANCE ISSUES AT MILOS On September 23, 2016, Petitioner was suspended for insubordination and violating company policies and procedures. Resp. Ex. 7 and 8. More specifically, Arsan was notified by the sous chef that there had been an argument between Petitioner and a coworker. Arsan attempted to investigate the dispute and found Petitioner to be very emotional and aggressive during the investigation. She was asked to leave but refused. Eventually, she left the premises. This incident came on the heels of another similar incident involving a verbal argument with a coworker, which occurred on September 17, 2016. Subsequently, on April 28, 2017, Petitioner was involved in another workplace argument with an employee named Rosa Salazar ("Salazar"). Resp. Ex. 10. The manager on duty intervened and attempted to resolve the dispute and calm the parties down. After he did so, Petitioner left work without permission and left early the following day as well. On June 27, 2017, a third employee named Ishay (a.k.a., Ayse Akbulut) complained that she could not work with Petitioner at their assigned station because Petitioner was "being rude and territorial." Resp. Ex. 11. Arsan spoke to Petitioner and resolved the matter between the two employees. However, he documented the incident as other employees had previously complained about Petitioner creating a hostile working environment. On June 30, 2017, Petitioner reportedly was involved in yet another workplace incident with Sonya Cabret ("Cabret"). Cabret complained that Petitioner made racially charged and demeaning comments to her based on Cabret's Haitian national origin. More specifically, Cabret complained that Petitioner called her an "ignorant Haitian," a "f ing Haitian," and stated that Cabret does not know how to speak English and that Cabret could not find a job anywhere else. Two months prior, Salazar had also complained that Petitioner made derogatory remarks to her based on Salazar's Latin ethnicity. Resp. Ex. 12 and 13. Salazar recounted that Petitioner had called her a "f ing Latino." Arsan disciplined Petitioner by counseling her and sending her home for the day. Each of the above incidents occurred prior to Hurricane Irma in September 2017. The undersigned finds that these incidents, and their related warnings and discipline, are relevant to the ultimate decision to discharge Petitioner and have some bearing on the propriety and necessity for termination. PETITIONER'S FAILURE TO RETURN TO WORK AFTER HURRICANE IRMA At some point in time on Wednesday, September 6, 2017, Arsan informed all employees that Milos would be closed at the end of the work day due to the approaching landfall of Hurricane Irma. Petitioner had been scheduled to report to work on September 6, 2017, at 10:00 a.m., but she did not do so. At 12:40 p.m. on September 6, 2017, Petitioner texted Arsan that she could not report to work because she was evacuating to Georgia due to Hurricane Irma. However, she hoped to return to work the following Tuesday (September 12, 2017). Resp. Ex. 14. After the hurricane had passed, on September 10, 2017, Arsan sent a group text message to all back-of-the-house staff alerting them that the restaurant was "closed for Monday" (September 11, 2017) and "we will be probably open for Tuesday" (September 12, 2017). Resp. Ex. 15. Petitioner received this text message. Petitioner never informed Arsan that she would not be back from Georgia by September 12, 2017, as she mentioned in her text message on September 6, 2017. Believing Petitioner would be back in Miami on September 12, 2017, Arsan scheduled Petitioner to work Wednesday, September 13, 2017. Resp. Ex. 16. On September 13, 2017, Petitioner did not call in or report for work. That same day, Arsan called Petitioner to find out why she did not report to work. Petitioner did not answer or return Arsan's call. On September 14, 2017, Petitioner again failed to call in or report for work. Arsan again attempted to reach Petitioner by telephone, but she did not answer. Arsan then sent Petitioner a text message notifying her that she was scheduled to be at work. Petitioner responded to Arsan's text messages on September 14, 2017, and the following discussion ensued: Arsan: "Denise you are scheduled to work today[.]" Petitioner: "Nobody called me and told me anything I cannot get out until Tuesday or Wednesday I'll [sic] area was hit bad and the bus is [sic] down here start running Wednesday[.]" Arsan: "Denise everybody is at work except you. How the bus starting [sic] on wednesday, [sic] half of staff is using the bus and they are here, The buses working [sic] fine." Petitioner: "When you come to my family I don't care about no job [sic] that's not my life we had an emergency down here we don't have any lights some of the buses is not running my house got water in it I am coming from Georgia so I might not be back until Thursday I have a lot of stuff to take care of in my house[.]" Arsan: "Please help let [sic] me understand your situation are you in Miami? or Georgia? Petitioner: I will be in Miami tonight I still have a lot of stuff to do at my. . . . Resp. Ex. 14. Arsan and Petitioner did not have any further communications after this text message exchange. Further, Petitioner did not initiate or attempt to send any more text messages to Arsan after the September 14, 2017, exchange. Petitioner did not report for work scheduled on September 15, 16, 17, 18, 19, or 20. Petitioner testified that she did not report to work from September 13, 2017, to September 20, 2017, because she was attending to damage to her home caused by the hurricane. Based on Petitioner's text message that she does not "care about no job [sic]," Arsan, after consulting with Milos' outside contracted human resource company, removed Petitioner from the schedule for the week of Monday, September 18, 2017, to Sunday, September 24, 2017. On September 21, 2017, Petitioner showed up at Milos to work. Arsan believed Petitioner had abandoned her job and did not expect her to report to work again. After she arrived, Arsan directed Petitioner to speak to Faundez, Milos' outside human resource representative at Eleva Solutions. Contrary to what Petitioner told Arsan (i.e., that she missed work because she was attending to damage in her home from the hurricane), Petitioner gave Faundez three different reasons for her failure to call in or show up for work the preceding week: she did not know that she was supposed to be at work; there was no bus transportation; and (c) Petitioner had to be evacuated. Faundez concluded that Petitioner's reasons for failing to appear for work were inconsistent and conflicted with each other. She also did not believe that Petitioner had provided a definitive or plausible answer explaining why she had not returned to work. After consultation, Faundez and Arsan decided together to terminate Petitioner's employment. Arsan was not the sole decision-maker with respect to Petitioner's termination. Prior to her termination and despite having received Respondent's antidiscrimination policy and complaint procedures, Petitioner never complained that Arsan was discriminating against her because of her race. During the course of the hearing, Petitioner was unable to identify any employee(s) outside of her protected class who engaged in the same conduct and were not terminated from employment. Specifically, on cross-examination, Petitioner admitted that she was unable to identify a single non-Black employee who failed to show up for work following the hurricane and who was not terminated from employment. The evidence Petitioner offered to support her race discrimination claim was vague, unpersuasive, and included only conclusory and general allegations by her that Arsan "was a racist" and is a "nasty human being." There were no emails, texts, documents, or other direct evidence from Petitioner or Arsan supporting her claim that she was fired by Milos because of her race. Likewise, Petitioner called no witnesses to offer any compelling facts or circumstances to support her claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief with prejudice and find in Respondent's favor. DONE AND ENTERED this 23rd day of October, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2018.
The Issue Whether the Respondent engaged in an unlawful employment practice contrary to Chapter 760, Florida Statutes, by discharging the Petitioner?
Findings Of Fact The Petitioner, Loreal Bailey, is an African-American woman who was employed as a cashier by the Respondent. One of the tasks that the cashiers were required to do was make a count of their registers at the end of their shift and "drop" the receipts, the cash, and their count of their cash drawer into a safe. The cashier did not have access to the safe. Cashiers were not supposed to let any other employee handle their deposit. On or about January 7, 2003, the Petitioner was on duty, and, at the close of her shift, she was being assisted in closing out her tour by another employee, who helped her count her money. The other employee, Hattie Killingsworth, an African-American woman, dropped Petitioner's package containing the receipts, the cash, and her count of the cash drawer into the safe. A subsequent accounting of the deposits revealed that $400 was missing from the Petitioner's "drop." The Respondent discharged the Petitioner shortly after this incident on January 13, 2003. Killingsworth was also terminated at this time. Both women were terminated for failing to follow company procedures that prohibited an employee from handling another employee's money. The matter was reported to the local sheriff's office; however, no charges were brought. Testimony by the Respondent's managers revealed that the money was most probably taken by a management employee of the company who was video-taped shutting off the security cameras prior to a period when money went missing. Money was missing on more than one occasion. It was surmised by management that this employee had found a way to access the safe. When this employee was terminated, the losses stopped. The general manager, Richard Eschenbacher, testified that the policy of not letting an employee touch another employee's money was not only to protect the employees, but to permit employees to testify about chain of custody of moneys if there were problems. The actions of Killingsworth and Bailey prevented Bailey from being able to testify that she had counted and deposited the money without interference from anyone else. Such testimony is helpful in prosecutions when a thief is caught, and a conviction without such chain of custody evidence is difficult to obtain. The Petitioner presented no evidence showing that the grounds presented by the Respondent for her discharge were pretextual.
Recommendation Based upon the foregoing findings of law and conclusions of law, it is recommended that the Florida Commission on Human Relations enter its final order dismissing the Petitioner's complaint. DONE AND ENTERED this 13th day of July, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2004. COPIES FURNISHED: Loreal Bailey 621 Smith Road Monticello, Florida 32344 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lorraine Maass Hultman, Esquire Kunkel, Miller & Hament Orange Professional Centre 235 North Orange Avenue, Suite 200 Sarasota, Florida 34236 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner, a black male, was hired on May 17, 1978, by Respondent as a Maintenance Worker I, and was assigned to the water and sewer section of Respondent's utility department. In accordance with Respondent's personnel rules, Petitioner was required to serve a probationary period of six months, the purpose of which was "[t]o provide [Petitioner] with an opportunity to demonstrate basic qualifications and a desire to perform the duties as assigned . . . , and [t]o provide [Respondent] with an opportunity to observe [Petitioner], his work habits and attitude." Under Respondent's personnel rules, "probationary employees" are not afforded many of the protections enjoyed -- by "regular employees" who have completed their probationary employment period. For example, vacation days and sick leave days are not accrued during an employee's probationary period, nor are probationary employees entitled to reimbursement for time off taken due to illness during the probationary period. Whereas "regular employees" are entitled to leaves of absence without pay for a period not to exceed one year for sickness, disability, pregnancy or , . . other good and sufficient reasons which are considered to be in the best interests of (Respondent] . . .", no such privileges are enjoyed by "probationary employees". In addition, although Respondent's personnel rules allow for dismissal of any employee for cause, dismissals of "regular employees" may not take effect until at least ten days from the date a written statement of the reasons for dismissal is subpitted to the employee and his department head. Finally, one of the grounds for dismissal "for cause" for any city employee is " . . . failure to maintain a satisfactory attendance record or properly report absence due to illness, emergency, or other reason". At the time of his initial employment, Petitioner completed and filed with Respondent an "Application for Employment" form and a form entitled "Required Personnel Information, both of which provided telephone numbers at which Petitioner could be contacted in case of emergency. While employed by Respondent, Petitioner's job consisted of a five-day work week, during which Petitioner was to report to work at 7:30 a.m., and leave at 4:00 p.m. During the period of his employment it was possible for Petitioner to have worked a total of 44 days, with one day off for the July 4 holiday. During this 44-day work period, Petitioner was late in checking in for work a total of 25 times, and was absent from work for personal reasons a total of approximately 4 days. Petitioner was cautioned on several occasions by his superiors, including his foreman, a black male, that continued tardiness and absences could endanger his continued employment by Respondent. Although Respondent was never absent from his duty station without permission from his supervisors, he never gave advance notice of such requests, instead delaying such requests until the day on which he was to absent himself from his job. As a result of Petitioner's tardiness and absences, his foreman was unable to fully evaluate his abilities as an employee in that Petitioner never worked a full week during the time that he was employed by Respondent. By letter dated July 13, 1978, Petitioner was advised by Respondent's Director of Utilities that he would be separated from the work force of Respondent effective the following day. The reasons civen by Respondent for terminating Petitioner's employment were that he had failed to furnish an emergency telephone number, he was habitually late for work each morning, and had been constantly absent from work. There is a total absence from the record in this proceeding of any direct evidence that Petitioner's discharge was in any way related to race. Petitioner testified that the question of race never was discussed between him and his supervisors, and Petitioner's forenan, a black male, also testified that no such discussion ever occurred, and that Petitioner's discharge was the direct result of his poor attendance record. Another white male employee of Respondent was alleged by Petitioner to have received preferential treatment, though his work record with respect to tardiness was similar to that of Petitioner. However, it appears from the record that this white employee had been a long-time employee of Respondent, and was, therefore, not in "probationary" status. It further appears that that employee's record of tardiness was not as extensive as Petitioner's. The record also clearly establishes that Respondent placed a written reprimand in the white employee's file, which is a procedure allowed under Respondent's personnel rules. Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The issue for determination is whether Petitioner was subjected to a hostile work environment and subsequent termination of employment due to Petitioner's race in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Respondent employed Petitioner in 1988. Petitioner received regular pay raises and promotions during the course of her employment with Respondent. On May 14, 1997, Petitioner was called to the manager's office from her work as a department manager and "back-up" customer service manager in Respondent's store located at 1212 Capital Circle, Southwest, in Tallahassee, Florida. Upon arrival in the manager's office, Petitioner was questioned regarding her involvement in an incident where another associate employed by Respondent in the store had been observed and apprehended placing store merchandise in the associate's automobile which had not been paid for in the store. Upon confrontation, the associate allegedly implicated Petitioner and several other black employees in similar activities. When confronted with these allegations, Petitioner denied any involvement in any scheme where merchandise was being removed from Respondent's store without payment for the merchandise. Petitioner was sent back to her work station following this meeting. Shortly thereafter, Petitioner and other accused black employees were suspended from employment. Petitioner was admonished to cooperate with local police in the course of their investigation. Petitioner promised her cooperation. On May 22, 1997, Respondent's representatives contacted the Tallahassee Police Department to report employee theft and an investigation ensued. Petitioner was never arrested and never questioned by law enforcement officials prior to being contacted again by Respondent's representative in June of 1997 and asked to come into the store. Upon arrival at the store, Petitioner's employment was terminated by Respondent's representative on the basis that police investigators had been unable to contact Petitioner and, therefore, she had not been cooperative with law enforcement authorities. During or close to the time of Petitioner's job termination, Respondent's management at the Tallahassee store was concerned that the ratio of black employees to white employees was disproportionate in that too many blacks were employed compared to white employees. When the personnel manager in Respondent's personnel office presented the names of candidates to store managers for employment, she would be questioned as to the race of the potential employees and told that the number of black employees needed to be reduced. The personnel manager had no knowledge personal to Petitioner's situation. The personnel manager later transferred to another store and, subsequently, resigned from employment with Respondent. Petitioner, a black female and member of a protected class, presented no evidence at the final hearing that she was replaced by a non-black employee or other member of an unprotected class. Additionally, no evidence was presented that white employees were treated differently in similar situations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. DON W. 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 12th day of September, 2001. COPIES FURNISHED: Betty J. Davis-Gavin 12573 Forest Run Drive Tallahassee, Florida 32311 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 J. Todd Lewis, Esquire Wal-Mart Legal Team 702 Southwest Eighth Street Bentonville, Arizona 72716 John A. Unzicker, Jr., Esquire Vernis & Bowling of Northwest Florida, P.A. 635 West Garden Street Pensacola, Florida 32501 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Respondent, Just 1 More Bar and Grill (hereinafter the "Bar"), discriminated against Petitioner, Mildred R. Smith, by refusing her entry into the Bar due to her race, African-American.
Findings Of Fact Petitioner is an African-American woman. The Bar is a Florida sole proprietorship which operates as an establishment selling alcohol for consumption on the premises. Despite its name, there is no grill or food service at the Bar. The Bar is owned by Kerry Winkler, a Caucasian male. On or about May 8, 2011, Petitioner was going to meet a male friend at an establishment across the street from the Bar. Petitioner could not remember the exact date, but thought it was in April or May. Petitioner was accompanied by a female friend. Petitioner and her female friend had just left church, and it was approximately three or four o'clock on a Sunday afternoon. Upon arrival at the male friend's establishment, no one was there. Petitioner decided to go into the Bar to have a beer while she waited. Her companion did not join her. Petitioner recounts that as she started to enter the Bar, a man stood in the doorway, held out his hand, and said, "You can't come in here." Nothing more was said. The man was a large white man and wearing a "biker's jacket" with a rag on his head. He had a large mustache. Petitioner says that she could see into the Bar and that all the patrons in the Bar were white. She turned around and walked back to her car. As she crossed the parking lot, a man sitting on a motorcycle said, "Man, that was quick." Petitioner concluded that she had been discriminated against because of her race. She believed she had been denied admission to the Bar because she is African-American. She filed a complaint with the Florida Commission on Human Relations about the incident. In her verified complaint, Petitioner said that she "was met by a white female (Kerry Winkler) who told me I could not enter the building and that I was not welcome there." Under oath at the final hearing, Petitioner said that she could not explain her verified statement to the Commission, because she remembers being met by a large white male, not a woman. She did not know why the name Kerry Winkler was in her signed statement. Kerry Winkler, the owner of the Bar, is, in fact, a Caucasian male. At the final hearing, Petitioner was introduced to Kerry Winkler; she said he was not the man who met her at the door of the Bar. No one associated with the Bar knows who the man was that Petitioner met at the front door. There are no employees fitting his description and neither the owner, nor patrons at the Bar, recognized the person Petitioner described. Several regular patrons of the Bar testified at final hearing. Each of them was an African-American male. Each affirmed the Bar's open policy of allowing all people to come into the Bar. None of them had ever witnessed any discriminatory behavior at the Bar, especially by the owner who they all knew and respected. Neither the owner, nor his wife (who was likely operating the Bar on the day in question), could identify the person that Petitioner described. No one by that description is an employee or otherwise affiliated with the Bar. Neither the owner, nor his wife, was aware that Petitioner had allegedly been denied admission into the Bar until several months after the fact. They received notice of the allegation from the Commission well after the fact. Petitioner did not contact the Bar after the fact to make a complaint or report the alleged incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Mildred R. Smith in its entirety. DONE AND ENTERED this 8th day of August, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2011. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mildred R. Smith Post Office Box 4158 Lake Wales, Florida 33859 Robert H. Grizzard, II, Esquire Robert H. Grizzard, II, P.A. Post Office Box 992 Lakeland, Florida 33802-0992
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner is a black female who was employed by the Respondent on or about March 21, 1989. Petitioner's job with the Respondent was to assemble and wire electrical devices in a designated configuration and to a specified standard. Petitioner was the only black employee stationed in her job location, but the company employes other blacks in other areas of production. Petitioner's job was an entry level position which required minimum skills but aptitude for the work and attention to detail were necessary. During her employment with the Respondent, Petitioner was supervised by Charlie Goodman. Mr. Goodman was known to be a demanding and sometimes brusk individual. Petitioner perceived the corrections Mr. Goodman required to be personally directed toward her. Others besides Mr. Goodman observed Petitioner's work and deemed it inadequate to the requirements of the job. Both Mr. Gardner and Ms. Giles observed that Petitioner made errors or took too long to perform routine tasks. Mr. Gardner confronted Petitioner on two occasions regarding her work performance. In both cases, Petitioner responded by claiming Mr. Goodman was "nit picking" her work and was demeaning to her personally. Finally, on May 5, 1989, when Petitioner's work performance did not improve, Mr. Gardner advised Petitioner that she was terminated. Respondent is an employer within the definition of Section 760.10, Florida Statutes. Respondent did not terminate Petitioner on account of her race but because her work performance fell below company standards. Subsequent to Petitioner's termination, Respondent's production demand decreased resulting in layoffs. Those positions, including Petitioner's, have not been filled.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination against this Respondent. RECOMMENDED this 22nd day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3619 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 3, 5, and 6 are accepted. All other paragraphs are rejected as irrelevant, argument, or unsupported by the weight of the credible evidence presented in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Sheila D. Crawford 3650 Washington Street Sanford, Florida 32771 Stuart I. Saltman ABB Power T & D Company, Inc. 630 Sentry Park Blue Bell, PA 19422
