The Issue Whether respondent discriminated against petitioner on account of his race in terminating his employment?
Findings Of Fact Larry Drake, who is black, began his employment at Whataburger, Inc., on May 2, 1983, as a management trainee in Pensacola. He trained first under June Bell at Unit No. 168, then under Kin Pearson at Unit No. 42. New Warrington Road On July 17, 1983, he became assistant manager at Unit No. 25, Whataburger's restaurant on New Warrington Road, where he was put in charge of the "early bird" or late night shift, from eleven at night to seven in the morning. Randall Potts occasionally worked the late night shift, and, during his tenure as assistant manager in charge of the shift, Mr. Drake supervised Elijah Johnson and Randy Cotton, as well. He initially supervised only one employee, but when Linda Blevins began on the late night shift, he also supervised her. As manager of Unit No. 25, Byron Reno was Mr. Drake's supervisor while Mr. Drake worked there. Mr. Reno came in at six or seven in the morning and left before the late night shift began, but he saw petitioner when the night shift started on numerous occasions, in addition to occasionally overlapping petitioner's shift in the morning. He worked with Mr. Drake when, as sometimes happened after Mr. Drake's initial three months at Unit No. 25, Mr. Drake worked the day shift. On October 30, 1983, Mr. Reno prepared a written evaluation of petitioner's job performance on a form calling for a "CLASSIFICATION EVALUATION" and for a separate "PERFORMANCE EVALUATION." Respondent's Exhibit B-2. On the "CLASSIFICATION EVALUATION" section, he gave hid a total score in the "needs improvement" range, although written comments indicated he was "FULLY ADEQUATE IN MOST AREAS." On the "PERFORMANCE EVALUATION, he gave him a score of 41.4, half a point from the "needs improvement" cut-off. These ratings may be lower than those for "the bulk of the" (T.i27) assistant managers. By May 5, 1904, when Mr. Reno prepared a second evaluation using the same format, he rated petitioner fully adequate overall, and gave him a score in the outstanding range for "CLASSIFICATION EVALUATION." Respondent's Exhibit A-2. Sometimes petitioner complained he was tired when he reported for work at Unit No. 25, and Mr. Reno felt his energy level was low in general. Mr. Reno also felt that inaccuracies in the daily reports and in inventory reports should be eliminated. During the time Mr. Drake worked at Unit No. 25, Sonya Jarman worked, at various times, on both day shifts. On the later shift, she was sometimes unable to leave at eleven, because petitioner had not yet arrived at work. Sometimes she telephoned petitioner to wake him up so he would relieve her. On the other hand, Mr. Drake also "stayed over plenty of times" (T.75, 76) for late replacements. On the earlier day shift, Ms. Jarman sometimes arrived to find that the night shift's paperwork had not been done. Mr. Drake asked her more than once to do the paperwork for the night shift, saying he would help serve customers. Sometimes he sat in his office, reading the paper and smoking cigarettes, while Ms. Jarman completed reports which night shift personnel were charged with filling out. One night Mr. Drake was on duty, Ms. Jarman was summoned "to fix the register because the drawer had jammed." (T.149). When she arrived, she found petitioner had left the premises, leaving the cash register with open drawer in the care of a subordinate. In general, Ms. Jarman characterized her experience working with petitioner as "wild." In her opinion, "Larry ... just wasn't Whataburger material." (T.14i) He did not pitch in when things got busy. He was slow on the grill ... and even on the board he wasn't fast (T. 148). For part of the time petitioner worked as assistant manager at Unit No. 25, Elijah Johnson worked under his supervision as a crew leader. Mr. Johnson once left the premises to buy Krispy Kreme doughnuts. Petitioner once left to buy cigarettes. Gregory Street When Mr. Drake tired of working the graveyard shift, he asked the senior area supervisor, Mr. Turbeville, for a new assignment. Mr. Turbeville obliged and petitioner began work at the Gregory Street Whataburger, Unit No. 42, as assistant manager for the day shift, on August 12, 1984, under the supervision of Bob Echois, a long-time Whataburger manager and a former marine. The third time in eight days that petitioner reported late for work, Mr. Echois, who had come to view petitioner as incompetent after he sent to the bank $100 more in cash than the deposit slip reflected, made a written report of Mr. Drake's tardiness and forwarded it to Mr. Turbeville, the area supervisor, who counselled petitioner, urging him to come to work on time. Mr. Turbeville was present on August 28, 1984, when petitioner arrived or 30 minutes late, his fourth late appearance for work at Unit No. 42. He had had a flat tire on his way to work, abandoned the car, and run the rest of the way. Mr. Turbeville asked for directions to the abandoned car, confirmed that the tire was flat, and asked Mr. Drake to report to his office the following day. At the meeting the following day, Mr. Turbeville placed him on disciplinary leave for four days for "excessive tardiness," Respondent's Exhibit A-30, after first, however, telling him he was going to fire him. To this, petitioner had responded with a claim that another employee, Ronnie Hill, had an even less satisfactory record for prompt arrivals which, he said, the time cards would bear out; and he threatened to retain a lawyer. It was true that Ronnie Hill arrived late some days, but it was because Mr. Echois instructed him to pick up certain supplies on his way to work. (T.157) Ronnie Hill is white. Unit No. 21 Instead of returning to Mr. Echois' supervision, petitioner reported to Unit No. 21 on September 2, 1994. He chose this assignment over returning to Unit No. 25, the alternative Mr. Turbeville offered. Petitioner felt the manager of Unit No. 21, Kim Pearson, did not back him up properly in his dealings with a subordinate, who was also a friend of the manager. In any event, the manager of Unit 21 gave petitioner a written reprimand for "[f]ailure to use proper set out procedure for breakfast items," Respondent's Exhibit A-28, on October 29, 1984, but, on November 3, 1984, rated him fully adequate in his overall classification and performance evaluations, while indicating that improvement was needed in certain categories, including dependability. Jack Riley replaced Don Turbeville as Whataburger's senior area supervisor. In speaking to managers in the area, he asked most of them, including Pearson, how he could help improve day-to-day operations. In reply, Mr. Pearson complained that Mr. Drake would not take directions. Mr. Riley had not received a good report from Mr. Turbeville about Mr. Drake, and, in visiting Whataburger outlets, had not been favorably impressed with petitioner. Once he walked in the unit... "[and] was probably in the unit ten to fifteen minutes before Larry even knew ... [H]e was busy reading the newspaper." (T.163) One Sunday afternoon he found petitioner watching a basketball game on a television set he had brought to work. (T.62). Unit No. 169 In order, he testified, to see how petitioner Drake would do in a "clean environment," Mr. Riley transferred him to Unit No. 169, where Jamie Harrelson was manager, and assigned him to the late night shift. The transfer was effective March 3, 1985. Respondent's Exhibit A-32. Some two weeks later, Mr. Riley terminated petitioner's employment, effective March 16, 1905. In the interim, Messrs. Drake and Riley spoke three times, the first at Mr. Riley's office when petitioner asked why he had been transferred. As reasons for discharge, Mr. Riley cited "poor attitude, failure to follow orders and being late for work on several occasions." Petitioner did not do his job well at Unit No. 169. He ignored instructions the manager left for him in a notebook, refused to look at her when she spoke to him, called the manager at home at 10:30 or 11:00 at night to complain about his schedule, called her at two in the morning to ask her permission to lend another Whataburger unit a CO2 tank which, as assistant manager, he might well have lent without special authorization, and arrived late for work by, at least on one occasion, well over an hour. That night he called to say "he was having his car repaired at almost 9:00 o'clock at night." (T. 203). Assistant managers who were white have been terminated "for being late to work in the same situation. (T.169) Mr. Riley believed that no Whataburger manager in Pensacola was willing to accept petitioner as an assistant manager. Employees' Race On June 2, 1985, Whataburger promoted Elijah Johnson, a black assistant manager, to manager. On January 27, 1985, Whataburger promoted Sandra Mack, another black assistant manager, to manager. Under Mr. Riley, who is white and still works as the senior area supervisor, Whataburger's employment of black persons reached a peak in the Tallahassee-Pensacola area. Of the 174 persons Whataburger employs in the area as "team members," 45, or 26 percent, are black. About 26 percent of the assistant managers in the area are also black and, since the recent promotions, three of eleven (or 33 percent) of the managers are black. Fifty-eight percent of the area's "team leaders" and 67 percent of the "breakfast coordinators" in the area are black. Until Mr. Drake made these accusations, neither Whataburger nor any of the managers with whom he worked had been accused of discriminating on grounds of race. Nor, however, was there a black manager in Pensacola until after petitioner was fired and complained to the FCHR.
The Issue The issue herein is whether petitioner was unlawfully terminated from her employment with respondent because of race. Based upon all the evidence herein the following findings of fact are determined:
Findings Of Fact Petitioner, Ruby McKenzie, is a black female who was first employed by respondent, Bach Engineering, Inc. (Bach), on June 14, 1982, in the position of electronics assembler. She initially held a temporary position but was later placed in a permanent position in March, 1993. At the time of her termination on February 17, 1984, she was earning $4.82 per hour. Bach, which is located in Altamonte Springs, Florida, is a manufacturer of radio systems, components and parts for the airline industry. As such, it requires that workers have some degree of skill and precision. The business employs some 55 to 50 persons, of whom perhaps a dozen are black, and is functionalized into departments (e.g., quality control, repair, final assembly and stockroom). All departments are under the control of a supervisor. During much of her employment with Bach, McKenzie's supervisor was Ida Metzer, who was responsible for most of her performance evaluations and criticisms. However, Metzer was killed in an automobile accident in late 1984. At the time of her discharge, McKenzie was in the repair department where her supervisor was Karen Miller, a white female. Bach's personnel policies regarding attendance and tardiness are set forth in a document entitled "Personnel Manual." Although its president, Michael Bach, claimed that this document is disseminated to all employees, there was evidence that this was not true. Nonetheless, all employees including McKenzie, had the "understanding" that if they were going to be absent or late for work (which began at 7:00 a.m. each day Monday through Friday), they were to call their department supervisor before the beginning of the work day. This was generally consistent with the instructions in the personnel manual. Under company "policy", an employee with "excessive" absenteeism or tardiness is first given a verbal warning, then a written warning, and is then subject to termination. McKenzie understood that even after a verbal and written warning had been given, she would then be placed on probation for a 50 or 90 day period rather than being terminated. However, Michael Bach said his policy was that once a verbal warning is given, the employee is automatically placed on probation for "around" 90 days. In all cases, he stated that a verbal and written warning is given prior to an employee being discharged. Bach hires both temporary (part-time) and permanent employees. The temporary employees are generally supplied by a local agency that provides this type of employee. The rules regarding absenteeism and tardiness apply to both temporary and permanent employees, although Michael Bach stated that mode leeway is given temporary employees when enforcing the rules. McKenzie worked in various departments within the firm. She was described by Michael Bach and the operations manager as being capable of doing a food job, but did so only when she enjoyed the job she was performing. If she did not like her job, her work was described as being less than satisfactory. Nonetheless, she received at least a satisfactory rating for each six month period she worked at Bach, the last being for the period July 5, 1983 through January 5, 1984, or approximately six weeks before being discharged. Bach stated that even though McKenzie received a satisfactory rating, these evaluations were not always accurate, because if less than satisfactory ratings were given, it would tend to discourage a worker from performing satisfactorily during the next six months period. Despite the satisfactory performance evaluation, McKenzie's most recent performance on the job was characterized as "very poor" by the operations manager. She was also criticized for poor workmanship on the "boards," did not wear glasses as required by her job, and was slower than counterparts in performing her work duties. This was confirmed by a coworker (black) who stated that she worked twice as many boards each day as did McKenzie, and frequently had to do "rework" on McKenzie's errors. Bach gives each worker five days sick leave and five days vacation time annually. Employees are expected to use their vacation time during July of each year when the plant is shut down. McKenzie was absent from work or tardy a total of 100 hours during 1983, or more than her allotted amount of sick and annual leave, and 19.5 hours the first month and a half in 1984. In 1983, she received a verbal warning for her absenteeism and tardiness on March 31 and October 12, and a written warning concerning the same on April 19, 1983. She was again given a verbal warning on February 15, 1984. The next day she was discharged for "absenteeism, inconsistent (sic) in quality and quantity of work." Her termination prompted the instant proceeding. McKenzie's dismissal was ordered by Michael Bach after McKenzie's immediate supervisor (Karen Miller) complained to the operations manager (Sonja Schultz) about McKenzie's continued tardiness, absences and poor work. Indeed, most recently, she had been late on February 10 and 13, and simply left a message on February 15 that she "wasn't coming in." The termination notice reflected that the "employee was warned on several occasions about attendance and workmanship, failure to do acceptable jobs in areas required", and that she was ineligible for reemployment "due to attendance and workmanship." To substantiate her complaint, McKenzie points to two white female employees, Debbie Price and Connie McIntosh, both temporary employees, who had more absences than her when she was fired, but were allegedly not terminated by Bach. Mclntosh was absent 50.5 hours from October 13, 1983 through the end of the year, and 85.5 hours from January 1 through March 9, 1984 when she was laid off because of a production slowdown. However, more than half of Mclntosh's absences were due to her child's illness. She was given a verbal warning concerning her attendance on February 15, 1984, or just prior to being laid off. The other employee (Price) requested a change to a permanent status in her job, but was turned down because of poor attendance. Because of this, she quit her job on February 17, 1984, the same day McKenzie was discharged. A third employee, also a white female was fired on March 10, 1984, for excessive absenteeism after receiving two verbal warnings and two written warnings between September, 1953 and February, 1984. In the latter case, the employee had been absent 114 hours in 1983 and 90 hours in 1984 prior to her termination. Bach has been in operation for some five years. Its president has a policy of treating all employers equally, and claims its hiring and firing policies apply equally across the board to all employees regardless of race or sex. A number of employees (all black) confirmed this and denied the existence of any discriminatory practices employed by the company. Indeed, McKenzie herself could not identify any such practices, and merely "guessed" that the reason she was fired was because she was black. After being terminated by Bach, McKenzie was unemployed for approximately six weeks. She then obtained a job with Sonitrol Electronics Corporation at an hourly wage of $4.00, or .82 cents less an hour than she earned at Bach. She has been employed continuously with Sonitrol since obtaining that job. In this proceeding, she asks for the difference between her present salary and the salary she received at Bach, the loss of wages while she was unemployed, and reasonable attorney's fees and costs for prosecuting this complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that petitioner's petition for relief be GRANTED, that respondent be found guilty of unlawful employment practice, and that petitioner receive the relief set forth in paragraph 5 of the conclusions of law portion of this order. DONE and ORDERED this 8th day of May, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 8th day of May, 1985. COPIES FURNISHED: Harry L. Lamb, Jr., Esquire 521 N. Fern Creek Avenue Orlando, Florida 32803 Mr. Michael C. Bach 654 N. Douglas Avenue Altamonte Springs, Florida 32301 Aurelio Durana, Esquire 325 John Knox Road, Ste. 240, Bldg. F Tallahassee, Florida 32303
The Issue The central issue in this case is whether Petitioner was not hired for a position with the Respondent in violation of Chapter 760, Florida Statutes.
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: On or about November 2, 1989, Petitioner executed a pre-employment application with the Respondent and sought full-time work as a cashier. That application indicated Petitioner was over 18 years of age but did not otherwise state her age. In late November, 1989, Deanna Clements telephoned the Petitioner's home to arrange for an employment interview. Since Petitioner was unavailable, Ms. Clements left a message for Petitioner to telephone the store to schedule an appointment. The next day, Petitioner went to the store (without having scheduled an appointment) and asked to see Ms. Clements who was not available. Ms. Chan, the store attendant, advised Petitioner that she could come back to see when she could be scheduled. Whereupon Petitioner left the store. Approximately thirty minutes later, Petitioner returned to the store and again asked to see Ms. Clements. Again, Ms. Chan advised Petitioner that Ms. Clements was not available at that time. Petitioner then elected to wait for an opportunity to see Ms. Clements and began to circulate among the store's customers. It was then that Petitioner claimed she observed a male customer attempting to shoplift a key chain. Petitioner confronted the customer who was upset by the accusation. The customer went to the counter where Ms. Chan was located and emptied his pockets to verify that he had taken nothing. When Petitioner came into the store a third time and Ms. Chan again informed her that Ms. Clements was not available to interview her, Petitioner became upset, made several derogatory comments to Ms. Chan, tore up an application and threw it at Ms. Chan. Some days later, Pamela Smith (then employed as a personnel assistant) telephoned Petitioner to arrange a job interview. Ms. Smith was unaware of the activities that are described in paragraphs 2 through 6 and scheduled an appointment for the next day to interview Petitioner. Ms. Smith interviewed Petitioner and found her less than attentive to the requirements of the job. For her part, Petitioner was anxious to have full- time employment and did not consider the demands of the position beyond her capabilities. Following the interview, Ms. Chan observed Petitioner leaving the premises and advised Ms. Clements and Mr. Wright of the incidents that had occurred earlier. Upon being advised of those matters, Mr. Wright told Ms. Smith to remove Petitioner's application from those to be considered. When those directions were given Mr. Wright did not know Petitioner's age. Petitioner was not hired by the Respondent because she exhibited poor judgment in challenging the store's customer and in berating Ms. Chan. Respondent is an employer within the statutory definition set forth in Chapter 760, Florida Statutes.
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 the Respondent. RECOMMENDED this 17th 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 17th day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2762 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 18 are accepted. COPIES FURNISHED: Olga Hughes 106 Orienta Drive Altamonte Springs, Florida 32701 J. Mark Johnston HOGG, ALLEN, NORTON & BLUE, P.A. 201 South Orange Avenue Barnett Plaza Suite 740 Orlando, Florida 32801 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue Whether the Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, Lakeyta Givens, is a black female, and was first employed by the Respondent on February 6, 2001. The Petitioner had no experience in the business of re- financing real property; however, the Petitioner was trained by the Respondent, and was given one promotion and a pay-raise. She became sufficiently knowledgeable and productive that she was tasked to train other employees. After she had been with the company for nearly two years, her supervisor wanted to step down for personal reasons. This opened up a position with greater responsibility and increased pay. The Respondent was a closely held corporation owned and operated by Anthony and Rachel Catanzeriti. Anthony Catanzeriti was the manager of the office and was there daily. His wife, Rachel, was the president of the corporation and was not there on a daily basis. She did, however, exercise primary control over the company. Anthony Catanzeriti asked the Petitioner if she would be interested in moving into the supervisor's position at a salary of $15.00 per hour, a raise of $5.00 per hour. The Petitioner indicated that she would be pleased to make the move. Mr. Catanzeriti indicated that his wife would have to approve the promotion, and that he would talk to her about the promotion. There was no action on the promotion for a long time. The Petitioner was concerned about the status of her promotion. The Petitioner heard during this time that Rachel Catanzeriti had stated that she "would not have a nasty nigger work in the company." The Petitioner asked to speak about her promotion with Mr. and Ms. Catanzeriti, but because of various mutual indispositions a meeting was delayed. On February 3, 2003, Rachel Catanzeriti came in to do some personnel work, and a meeting was arranged at which Mr. Catanzeriti was not present. From the content and progression of this meeting, it was clear that the Petitioner was concerned that she was not being promoted because of her race. The Petitioner immediately confronted Ms. Catanzeriti about the purported racial slur. Ms. Catanzeriti denied having made such a remark; however, she immediately became angry. The meeting never addressed the promotion because of Ms. Catanzeriti's anger. In an effort to de-escalate the situation, the Petitioner walked out of the office. Ms. Catanzeriti followed the Petitioner out of the office and between buildings continuing the heated exchange. The Petitioner asked her to discuss the racial epithet, and Ms. Catanzeriti, replied, "Let's talk about your big fat ass." Very shortly after this comment and within the same argument, Ms. Catanzeriti fired the Petitioner. Subsequently, the supervisor's position was filed by a white female, whom the Petitioner had previously trained. The Petitioner's work record was good, and her attendance was regular. She was unable to find employment until April 2004. After the Petitioner had been fired, U S Mortgage, Inc., was closed by the Office of the State's Attorney. The Petitioner reported that Mr. Catanzeriti was currently imprisoned out of state, and Ms. Catanzeriti was living in Texas.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter its final order directing that the Respondent desist from discriminatory employment practices and awarding the Petitioner $4,800.00 in damages for lost wages. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lakeyta Givens Post Office Box 293 Sanderson, Florida 32087 U S Mortgage, Inc. 28 West Macclenny Avenue, Suite 14 Macclenny, Florida 32063 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue 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 The issues are (1) whether the Petition for Relief filed by Petitioner was timely under Section 760.11(7), Florida Statutes, and (2) whether Respondent engaged in an unlawful employment practice in violation of the Florida Civil Rights Act of 1992 when it terminated Petitioner's employment as a retail sales associate in May 1998.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is an African American female. During the period of time at issue in this proceeding (i.e., January through May 1998), Petitioner was 49 years old. Respondent is a retail department store chain with stores located throughout Florida, including a store in Oviedo, Florida. Respondent is an employer subject to the Florida Civil Rights Act of 1992. Petitioner's Employment With Respondent On or about January 30, 1998, Petitioner was hired by Respondent to work as a retail sales associate in Respondent's Oviedo store. She was originally assigned to work in the women's clothing department. Petitioner was interviewed and hired by Heidi Jensen, a white female. Ms. Jensen was the assistant sales manager responsible for the women's clothing department, and was Petitioner's direct supervisor throughout the course of Petitioner's employment. Petitioner was hired as a part-time employee at a rate of $9.00 per hour. As a part-time employee, she worked approximately 20 hours per week. Petitioner's schedule was flexible; she worked eight hours on some days and four hours or less on others. She was typically scheduled on the closing shift (i.e., nights), rather than the opening shift. On February 7, 1998, Petitioner signed a certification indicating that she had read and agreed to abide by Respondent's work rules and policies. Those rules include the following directive, hereafter referred to as "Work Rule 10": Associates must exhibit positive behavior toward their job, Management, supervisors, and co-associates in all of their actions and speech. Customers must always be treated courteously. Anything to the contrary will not be tolerated. On February 8, 1998, Petitioner attended a general orientation at which the work rules and policies were discussed. That orientation was also attended by other recently-hired employees, including non-African American employees. Petitioner received additional training from Respondent throughout her employment, including customer service and sales training and direction for handling merchandise returns. That training was also provided to other employees, including non- African American employees. Petitioner never received formal training on how to "open" the store. However, as noted above, Petitioner typically worked during the closing shift rather than the opening shift. Slightly more than a month into her employment, Petitioner's co-workers began complaining about her unprofessional behavior. The complaints alleged that Petitioner yelled at co-workers; that she initiated arguments with co- workers in front of customers regarding who should get credit for the customer's purchases; that she referred to the customers in the woman's department (which caters to larger women) as "fat pigs"; that she stole customers from her co-workers; that she referred to some of her co-workers as "vultures" and others as "bitches" or "wolves," often in front of or within "earshot" of customers; and that she generally upset or harassed co-workers through her attitude and derogatory comments. The complaints came from eight different co-workers, at least one of whom was an African American female. The complaints were made in writing by the co-workers, typically through signed, hand-written statements given to Ms. Jensen or the store manager. Petitioner denied making any of the statements or engaging in any of the conduct alleged in the complaints. In response to the complaints, she took the position that she was being "singled out" by her co-workers because her aggressive tactics made her a more successful salesperson than most of her co-workers. Despite Petitioner's denials, Ms. Jensen determined that disciplinary action was appropriate based upon her investigation of the complaints. Ms. Jensen gave Petitioner a verbal warning "concerning using a positive attitude towards merchandise and customers" on March 7, 1998, and she gave Petitioner a formal written warning for her lack of positive attitude towards customers and co-workers on March 19, 1998. Both warnings cited Work Rule 10 as having been violated. Despite the warnings, Petitioner's conduct continued to generate complaints from her co-workers. She received another verbal warning from Ms. Jensen on April 17, 1998, and she received a formal written warning from the store manager on April 22, 1998. Again, the warnings cited Work Rule 10 as having been violated. Petitioner continued to deny any wrongdoing. She again claimed that she was being "targeted" by her co-workers because of their "jealousy and envy" over her success as a salesperson. The April 22, 1998, written warning stated that "[i]f there is one more report of negativity or verbal abuse of customers or associates, [Petitioner] will be terminated." It also enumerated Respondent's "expectations" with respect to Petitioner's conduct, including a requirement that Petitioner "never confront an associate in front of a customer" (emphasis in original). At some point after the April 22, 1998, written warning, Petitioner was transferred from the women's department to the casual department to give her a "clean slate" with her co-workers. Despite the transfer, Petitioner's co-workers continued to complain about her behavior. The complaints were of the same nature as the complaints discussed above, e.g., stealing sales from other co-workers and initiating confrontations with co-workers over customers in the customer's presence. On May 22, 1998, Petitioner and a co-worker, Brenda Ross, "had words" over a customer. When confronted about the incident by Ms. Jensen, Petitioner "was loud and aggressive" towards her. As a result of this incident and the prior warnings, Ms. Jensen recommended that Petitioner's employment be terminated. The store manager accepted Ms. Jensen's recommendation, and, Petitioner was terminated on May 22, 1998. Thus, the term of Petitioner's employment with Respondent was less than four months. After she was fired, Petitioner returned to her work station to retrieve her belongings. While doing so, she confronted Ms. Ross and called her a "lying bitch" (according to Petitioner's own testimony at the hearing) or something similarly derogatory.1 There are no videotapes of the incidents described above. None of the co-workers who reported the incidents testified at the hearing. Nevertheless, the co-worker's contemporaneous hand-written reports of the incidents which were received into evidence (Respondent's Exhibits 21-30) are found to be credible based upon their general consistency and the corroborating testimony of Ms. Jensen at the hearing. By contrast, Petitioner's testimony regarding the incidents was not credible. There is no credible evidence to support Petitioner's allegations that she was denied the opportunity to file complaints against her co-workers. Nor is there any credible evidence that Petitioner did file complaints (alleging discrimination or anything else) which were ignored by Respondent's management. By all accounts, Petitioner was a good salesperson; her sales per hour were high and, on several occasions, they were the highest in the department where she was working. Ms. Jensen complemented Petitioner on at least one occasion for her high level of sales. Petitioner was also punctual and had a good attendance record. She was on track to receive a pay increase at her next review. However, as a result of the unprofessional behavior detailed above, she was fired prior that review. Petitioner is currently unemployed. She has not held a job since she was fired by Respondent in May 1998. However, she has only applied for four or five other jobs since that time. Petitioner's Discrimination Claim Petitioner first contacted the Commission regarding her allegation that Respondent discriminated against her on or about June 29, 1998. On that date, she filled out the Commission's "intake questionnaire." On the questionnaire, she indicated that she had sought assistance from attorney Anthony Gonzales, Jr. (Attorney Gonzales) regarding the alleged discrimination by Respondent. Petitioner also listed Attorney Gonzales as her representative on the "intake inquiry form and complaint log" completed on or about July 10, 1998. Petitioner consulted with Attorney Gonzales in April 1998, prior to her termination. Although Petitioner claimed at the hearing that Attorney Gonzales did not agree to represent her beyond the initial consultation, Petitioner provided the Commission a copy of Attorney Gonzales' business card and a copy of the check by which Petitioner paid Attorney Gonzales' consultation fee with the Commission's intake documents. Based upon those documents, the Commission apparently (and reasonably) assumed that Attorney Gonzales was Petitioner's attorney because it subsequently directed various letters to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address. Petitioner filed her formal charge of discrimination on November 9, 1998. The charge did not reference Attorney Gonzales. Nevertheless, on December 7, 1998, the Commission sent a letter to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address confirming receipt of the charge of discrimination. The record does not include any correspondence from Attorney Gonzales to the Commission in response to the December 7, 1998, confirmation letter. However, Attorney Gonzales continued to receive correspondence from the Commission regarding Petitioner's charge of discrimination after that date. On February 2, 1999, the Commission sent a letter to Petitioner "c/o Anthony Gonzales, Esq." at Attorney Gonzales' address indicating that Petitioner's charge of discrimination had been pending for over 180 days and identifying the options available to Petitioner. The letter was accompanied by an "election of rights" form which was to be completed and returned to the Commission. Attorney Gonzales apparently forwarded the form to Petitioner because Petitioner completed and signed the form and returned it to the Commission on June 17, 1999. This strongly suggests that there was an attorney-client relationship between Attorney Gonzales and Petitioner at the time. Indeed, if there was no attorney-client relationship, either Petitioner or Attorney Gonzales would have informed the Commission in connection with the return of the form that Attorney Gonzales was not representing here. However, neither did. The record does not include any additional communications between the Commission and Petitioner and/or Attorney Gonzales between June 1999 and August 2001. Notably absent from the record is any notice to the Commission that Attorney Gonzales was no longer representing Petitioner. On August 31, 2001, the Executive Director of the Commission issued a "no cause" determination on Petitioner's charge of discrimination. On that same date, the Clerk of the Commission sent notice of the determination to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address. The notice stated that "[c]omplainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE" (emphasis supplied and capitalization in original), and further stated that the claim "will be dismissed" if not filed within that time. Attorney Gonzales contacted Petitioner by telephone after he received the notice of determination. The record does not reflect the date of that contact. However, Petitioner testified at the hearing that Attorney Gonzales informed her during the telephone call that the deadline for requesting a hearing had not yet expired. Accordingly, the contact must have occurred prior to October 5, 2001, which is 35 days after August 31, 2001. Despite the notice from Attorney Gonzales, Petitioner did not immediately file a Petition or contact the Commission. She did not contact the Commission until October 16, 2001. On that date, she spoke with Commission employee Gerardo Rivera and advised Mr. Rivera that Attorney Gonzales was not representing her. Mr. Rivera indicated that the Commission would send an "amended" notice directly to her. An "amended" determination of no cause was issued by the Executive Director of the Commission on October 26, 2001. On that same date, an "amended" notice of determination was mailed to Petitioner. Included with the "amended" notice was a blank petition for relief form. Petitioner completed the form and mailed it to the Commission. The Petition was received by the Commission on November 28, 2001,2 which is 33 days after the date of the "amended" determination, but 89 days after the date of the original August 31, 2001 determination. Mr. Rivera's affidavit (Exhibit P1) characterized the mailing of the original determination to Attorney Gonzales as "our [the Commission's] error" and a "mistake." The preponderance of the evidence does not support that characterization. Specifically, the record reflects that it was Petitioner who gave the Commission the impression that Attorney Gonzales was representing her, and neither Petitioner nor Attorney Gonzales did anything to advise the Commission otherwise during the two and one-half years that the Commission investigated Petitioner's charge of discrimination and sent letters to Attorney Gonzales on Petitioner's behalf. Indeed, Petitioner testified at the hearing that the October 16, 2001, conversation with Mr. Rivera was the first (and only) time that she informed the Commission that Attorney Gonzales was not representing her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 31st day of December, 2002.
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice against Petitioner on the basis of race and national origin in violation of the Civil Rights Act.
Findings Of Fact Respondent has a department General Services Administration (hereinafter “GSA”) responsible for providing security to County departments and facilities. GSA provides security services by contracting with private vendors. Two of the private security vendors are Delad Security (hereinafter “Delad”) and Forrestville Security (hereinafter “Forrestville”). In 2005, GSA, on behalf of Respondent, entered into a contract with Delad and Forrestville to assign security guards at County posts. The “General Terms and Conditions” of the contract provide in pertinent part: 1.16 Responsibility As Employer The employee(s) of the successful Bidder shall be considered at all times its employee(s) and not employee(s) or agent(s) of the County or any of its departments. . . . The County may require the successful bidder to remove any employee it deems unacceptable. . . Even though Delad and Forrestville as vendor companies provide security officers through a contract with Miami-Dade County, only the vendor companies have the authority to terminate one of its employees. Dangervil secured his security officer position by applying for employment through the vendor companies who set his schedule, administered his leave time, paid his salary and taxes, monitored his actions to ensure compliance with the terms and conditions of the contract, as well as provided his job duties and assignments. Dangervil is a black male whose national origin is Haitian. On June 27, 2007, Dangervil was working for Delad assigned to the 140 West Flagler Building for his security post. His job duties were patrolling the parking lot and checking the floors in the building. Joseph Wolfe (hereinafter “Wolfe”), a white male, is the GSA supervisor responsible for County facilities. On June 27, 2007, he reported to the 140 West Flagler Building location to look into a complaint about a possible disturbance on the 16th floor during a code compliance hearing. When he arrived on the 16th floor, Wolfe met Dangervil who was dressed in a uniform Wolfe determined had a sweat-stained shirt. Wolfe began to ask Dangervil a series of questions regarding his being assigned to the disturbance location, but was unable to ascertain why Dangervil was there. Dangervil did tell him "I don't work here." Wolfe determined that Dangervil was not properly prepared for the security detail and that Dangervil lacked the requisite ability to effectively communicate using the English language. After the incident, Wolfe contacted a Delad supervisor who confirmed that Dangervil had been instructed thru the chain of command to go to the hearing location for his post June 27, 2007. Section 3.41 of the security contract with Delad provides an English proficiency qualification for security personnel and states in relevant part: * * * C) Ability to Communicate in English . . . all Contractor Security personnel must be fully literate in the English language, (e.g., able to read, write, speak, understand, and be understood). Oral command of English must be sufficient to permit full communication. . . . The contract further allows a security guard to be removed from the contract if s/he has difficulty understanding or speaking English. Wolfe subsequently wrote a Guard Infraction Report against the security vendor directing that Dangervil be removed from the Delad contract with the County stating: I was dispatched to location ref a code compliance hearing and protesters carrying signs criti[c]izing Dade County. Upon arrival to the 16th floor I met with S/O Dangervil, Brunel. Dangervil was unable to tell me why he was there, stating, "I don't work here." Then he asked someone on their way to attend hearing to help me as if he thought they were a county employee. It was determined the officer was not pro[p]erly briefed prior to being sent to the detail. The officer was allowed to work with what appeared to be a sweat stained uniform shirt. Dangervil's removal from the Miami-Dade contract did not affect Dangervil's employment status with Delad. On October 26, 2007, GSA dispatched Wolfe to the Opa Locka Elderly Facility, a County public housing facility, to investigate a complaint that a Forestville security officer did not want to work his assigned post. David Thibaudeau (hereinafter “Thibaudeau”), Wolfe's supervisor and GSA Deputy Chief, and GSA Supervisor Sanchez also reported to the Opa Locka Elderly Facility after receiving a call from the dispatch center. There had been several reports from security vendors that officers were being assaulted and Thibaudeau and Sanchez went to the location to help resolve the problem regarding the security officer assigned to the post and the supervisor refusing to work at the post. On duty at the location was Dangervil, the assigned security officer. Upon arriving, Thibaudeau had a conversation with Dangervil, Wolfe, and two Forrestville supervisors. The Forrestville supervisor explained that Dangervil did not want to work the post and was going to leave. Dangervil explained to Thibaudeau that he didn't want to work the location because he heard bad things happened at the location.1 Subsequently, Thibaudeau instructed the Forrestville Supervisor to work the post since Dangervil was leaving. The supervisor also refused to work the facility but ultimately agreed when Thibaudeau explained that he would have to call their company to get the project manager to resolve the issue. Wolfe recognized that Dangervil was the same Delad security officer he had dealt with in June 2007 at the 140 West Flagler incident. Dangervil had been placed on a “do not hire” list by Wolfe because of the previous incident that took place at the 140 building. Wolfe wrote up a second Guard Infraction Report which directed that Dangervil be removed from the Forrestville contract. The report narrative stated: While conducting an inspection of the post during an afternoon to mid shift change I recogni[z]ed the on coming [sic] midnight shift officer as being previ[o]usly removed from the contract by me while he was employed by Delad security. Prior to being removed again S/O Dangervil refused to stay at post because of the previous incidents. Dangervil was not removed from the contract because he was Haitian or Black.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of July, 2009, in Tallahassee, Leon County, Florida. JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2009.
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Respondent hired Petitioner on October 13, 1997, as a maintenance operator. Six months later he was promoted to the position of Maintenance Technician I. During his employment, Petitioner was one of six technicians. He was the only black technician. Petitioner was initially paid at a rate of $6.00 per hour. He received no pay increase with his first promotion. His yearly evaluation was delayed, but finally received by him on December 7, 1998. His evaluation for 1999 was received by December 23, 1999. His wages had climbed by this time to $8.40 per hour. His evaluations were satisfactory or above. Although Petitioner had been told he would be provided training on the job, he was relegated to the night shift, working by himself. As a consequence, he educated himself on maintenance of Respondent’s facility. In 1999, all technicians were to receive formal training. Another technician, who was white and lower in seniority than Petitioner, was selected for training before Petitioner. When Petitioner brought this to the attention of a supervisor, Petitioner was sent to other training provided by Siemen’s Corporation in Atlanta, Georgia. Petitioner stated he was treated unfairly because he was required to absorb the cost of lodging for the first night in Atlanta, prior to commencement of training. The five other technicians employed by Respondent were being paid a minimum of $11.00 per hour when Petitioner, on or about May 5, 2000, requested an increase from his current $8.40 per hour rate to $10.00 per hour. His supervisor responded that he could not grant the increase. An argument ensued and Petitioner left the office and returned to work. Later that day, Respondent’s human resource officer contacted Petitioner. He informed Petitioner that Petitioner’s employment was terminated due to “insubordination.” On Respondent’s termination form, the reason listed for Petitioner’s termination was insubordination and using “slanders to his senior manager.” The form also listed Petitioner’s absence from work on Saturday, April 29, 2000, as a reason for employment termination. In rebuttal, Petitioner produced a copy of an annual leave slip at final hearing requesting approval of his absence on the date in question. Petitioner had accumulated ample leave to cover the requested time. Respondent’s approving authority failed to approve Petitioner’s absence, but no notification was given to Petitioner. Respondent’s claim of unauthorized absence is effectively rebutted. According to a copy of a letter dated June 19, 2003, and received by DOAH on June 24, 2003, bearing the purported signature of David Anderson, registered agent for Respondent on June 20, 2002, Respondent was reputed to have ceased operation. According to statements contained in the letter, the Bank of America sold Respondent on March 10, 2002, in the “form of rights in collateral.” The letter additionally stated “unliquidated assets” in the bankruptcy were “sold in a Section 363 auction” on May 23, 2002. No direct evidence was presented on behalf of Respondent corroborating the contents of the letter and consequently the letter is not credited. Petitioner produced documentation at the final hearing, specifically a corporation reinstatement form issued by the Florida Department of State, documenting Respondent’s continued existence as of April 22, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered directing that Respondent to cease the discriminatory employment practice evidenced in this case and awarding Petitioner back pay at the rate of $10.00 per hour for each normal 40-hour work week between May 5, 2000, and the present. DONE AND ENTERED this 19th day of March, 2004, in Tallahassee, Leon County, Florida. S 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 19th day of March, 2004. COPIES FURNISHED: Michael F. Coppins, Esquire Coppins & Monroe Post Office Box 14447 Tallahassee, Florida 32317-4447 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Dwight E. Mazion 1713 Calgary Drive Desoto, Texas 75115 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner on the basis of her age, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is a Caucasian, female who, at the time of the alleged employment discrimination, was 42 years old. Petitioner was an employee of Kelly Services, an agency that supplied temporary employees to Respondent. At the time of the alleged incident, Petitioner was filling the position of material handler in Respondent’s warehouse. Her job title, pay, and hours worked did not change during her period of employment with Kelly Services at Respondent's warehouse. She received her pay from Kelly Services. When she decided to terminate her employment at Respondent's warehouse, she advised Kelly Services that she was quitting, not Respondent. There were three or four employees at the warehouse who were employees of Respondent. In addition, there were several temporary employees at the warehouse. No evidence was presented as to the total number of employees employed on either a permanent or temporary basis by Respondent. Petitioner began her employment with Kelly Services at Respondent's warehouse in late August 2002. For approximately two weeks prior to October 23, 2002, Petitioner was being trained to operate a forklift. She was the only temporary employee being so trained. On October 23, 2002, Jason Titra (Titra), a warehouse employee of Respondent, commented to Petitioner that it was easier to train a young person to operate a forklift than an older person. He analogized that "if you were training his niece and his grandmother to operate a forklift, who do you think would learn more quickly?" Petitioner was offended by this comment, thinking it derogatorily referred to her age. Titra was not authorized to make employment decisions by Respondent although he exercised supervisory authority over temporary employees, including Petitioner. Following the October 23, 2002, comment made by Titra, Petitioner refused to train to operate the forklift even though encouraged to train on the forklift and given the opportunity to do so by Respondent’s management representative. On November 18, 2002, Tim Staab (Staab), Respondent’s operations plant manager, sought out Petitioner and asked why she wasn’t training to operate the forklift. She told Staab about the comment made by Titra. Respondent immediately investigated the incident; as a result of Respondent’s investigation, Titra was disciplined for making inappropriate comments. Titra attempted to apologize to Petitioner; however, Petitioner refused to accept his apology. The October 23, 2002, comment by Titra is the only basis for Petitioner’s claim of age discrimination. There is no evidence that Titra repeated the comment or any similar comment, nor did any other employee. Nor is there any suggestion that the work environment became hostile. Petitioner acknowledged that Staab “tried to make it right”; Petitioner was repeatedly given the opportunity to train to operate the forklift, but she refused. Neither Petitioner’s pay or hours changed after the incident was reported. Late in January 2003, Petitioner voluntarily left the employment of Kelly Services and her assignment with Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order granting Respondent's Motion to Dismiss and finding that Petitioner failed to present a "prima facie" case. DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 17th day of February, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Frances Ann Ratliff 1101B North Hoagland Boulevard Kissimmee, Florida 34741 Jeffrey L. Thompson, Esquire Constangy, Brooks & Smith, LLC 577 Mulberry Street, Suite 710 Macon, Georgia 31201 Robin Sheridan Parcel Direct, LP N63W23075 Main Street Sussex, Wisconsin 53089 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by CDR Systems Corporation (Respondent) due to Petitioner's race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent produces packaging for electronics in Palatka, Florida, and another plant located in the state of Oklahoma. Respondent's president, Bud McGrane, had a good relationship with his employees and provided them with his home telephone number. In January 1995, McGrane made a decision, based on business necessity, to move Respondent's "big box" production line to the Oklahoma facility. Eddie L. Swinson, a black male, began working for Respondent on August 6, 1990. By January of 1995, Swinson had become the supervisor of the "big box" production line. Approximately 12 employees in the Palatka plant, including Swinson, were affected by the move of the "big box" production line to Oklahoma. Respondent attempted to find employment for the 12 affected employees in other departments within the Palatka plant. These approximately 12 employees included Swinson as well as other black, white and Hispanic employees. Swinson’s supervisory position was eliminated when the "big box" production line moved to Oklahoma. Also, no other supervisory positions were available in the Palatka plant after moving the "big box" production line to Oklahoma. As a result, Swinson was offered an available production line position within another department, but he was unhappy in the position. Richard Ramirez is the plant manager for Respondent in Palatka, Florida, and was the direct supervisor of Swinson during January and February of 1995. The two men had enjoyed a good working relationship prior to Respondent's decision to move "big box" production line to Oklahoma. In the few months prior to his lay off in February 1995, Swinson was counseled several times by Ramirez because of his aggressive behavior toward other Respondent employees, specifically Mexican employees with whom Swinson had difficulty understanding and communicating. Swinson received an oral warning by Ramirez for insubordination on January 3, 1995, for his failure to curb his aggression toward these workers. On January 27, 1995, Swinson was involved in an altercation with another Respondent employee, Jose Montanez, who is of Hispanic heritage. When Ramirez was informed of the altercation, he immediately took Swinson and Montanez aside to resolve the situation. Despite Ramirez’s efforts, Swinson remained highly agitated and accused Ramirez of being prejudiced. Montanez appeared shaken and frightened. Fearing that the situation would escalate, Ramirez asked Swinson to leave the plant. Swinson left the plant still in an agitated state and, upon parting, threatened to get a gun and "take care of them." As a result of Swinson's threat, local police were called. The law enforcement officials told Respondent's manager that nothing could be done until Swinson took steps to carry out his threat. Respondent's management took Swinson’s threat of violence seriously and decided to hasten Swinson’s lay off. Swinson was laid off by Respondent on February 7, 1995. Swinson signed a clearance slip on February 7, 1995, acknowledging the reason for his leaving Respondent's employment was "Employee was laid off due to restructuring in production." Swinson's application for unemployment benefits from the Florida Department of Labor and Employment Security was approved based on a finding that "the claimant was separated due to lack of work." Respondent never challenged these findings with regard to Petitioner. Respondent did not rehire Swinson at a later date when the "big box" production line was resumed because of his previous threat to bring a gun to the workplace. Swinson presented no evidence that he was replaced by a nonmember of the protected class or any credible evidence that he was subjected to racial discrimination while employed by Respondent.
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 21st day of February, 2002, 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 21st day of February, 2002. COPIES FURNISHED: William R. Amlong, Esquire Amlong & Amlong, P.A. 500 Northeast Fourth Street Second Floor Fort Lauderdale, Florida 33301-1154 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Eddie L. Swinson 1714 1/2 Westover Drive Palatka, Florida 32177 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
